author: ROBERTS, J.,

text:
    Willie J. GILBERT a/k/a “Brownie”, Appellant, v. STATE of Mississippi, Appellee.
    No. 2004-KA-02080-COA.
    Court of Appeals of Mississippi.
    April 4, 2006.
    Rehearing Denied July 25, 2006.

      John Carl Helmert, Clarksdale, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Willie Gilbert was convicted of murder in the Lee County Circuit Court and sentenced to serve a life term in the custody of the Mississippi Department of Corrections. Posttrial, Gilbert filed an unsuccessful motion for judgment notwithstanding the verdict. Aggrieved, Gilbert appeals and raises eight issues:

I. The evidence against him was insufficient to sustain a conviction for murder.

II. The trial court erred when it overruled his request for a Weathersby instruction.

III. The trial court erred when it excluded evidence submitted by Gilbert.

IV. The trial court erred when it overruled Gilbert’s challenge under Bat-son.

V. The trial court erred when it sustained the State’s request for a flight instruction.

VI. The indictment did not allege the essential elements of murder.

VII. The trial court erred when it overruled Gilbert’s request for a continuance for the purpose of locating eyewitnesses.

VIII. The cumulative effect of these errors denied -Gilbert a fair trial.

Finding no error, we affirm.

FACTS

¶2. Sometime between 12:30 and 1:00 a.m. on the night of July 13, 2003, Enoch “Conrad” Townsend died from the chest wound inflicted by Willie J. “Brownie” Gilbert’s 7.62 mm 30/30 caliber high powered rifle. Gilbert shot Townsend at an apartment complex in the Shannon community of Lee County. Gilbert was subsequently indicted and stood trial for murder on August 18 and 19, 2004. The case went to the jury on the State’s theory of murder and on the lesser-included offense of manslaughter by culpable negligence. The jury returned a unanimous verdict of murder.

¶ 3. The State presented only three witnesses: Andrew Long, patrolman with the Shannon Police Department; Derrick Adams, a former friend of Gilbert and an eyewitness to the homicide; and Dr. Steven T. Hayne, the forensic pathologist who performed Townsend’s autopsy.

¶ 4. Derrick Adams testified that he was in his living room when he heard Gilbert say to Townsend, “You don’t believe I will kill you, do you?” Adams testified that he then looked out of his screen door and saw Gilbert, armed with a rifle. According to Adams, Gilbert, stood over a seated Townsend. Adams testified that Gilbert had the rifle leveled at Townsend. Adams heard Townsend say, “You won’t kill a flipper flop fan. Get that gun out of my face.” Adams’s testimony indicated that Townsend “eased” Gilbert’s rifle away and that Gilbert stepped back and shot Townsend. Adams testified that Gilbert held the rifle with one hand and that the discharge caused the rifle to swing around and hit Corey Fells in the head. Adams also testified that, after Gilbert shot Townsend, Gilbert slowly walked away.

¶ 5. Dr. Hayne’s testimony corroborated Adams’s. Dr. Hayne testified that: (a) the path of the bullet indicated that Townsend was seated when Gilbert shot him; (b) Gilbert shot Townsend from the side; and (c) Townsend was not facing Gilbert in an offensive stance when Gilbert shot Townsend.

¶ 6. Officer Andy Long’s testimony also corroborated Adams’s testimony. Officer Long testified that he arrived at the scene and found Townsend lying on the ground near an overturned chair. Officer Long also testified that he found the fatal 7.62 mm projectile in the ground a couple of feet from the overturned chair. Officer Long testified that Townsend was alive at that time and that Townsend said Gilbert shot him.

¶ 7. Gilbert presented four witnesses: Delois Williams, his fiancee; Cory Fells, Gilbert’s friend and an eyewitness; Calvin Williams, Gilbert’s friend and the brother of his fiancee, as well as an eyewitness; and himself. Gilbert’s witnesses testified that Gilbert killed Townsend as a result of an accident or misfortune.

ANALYSIS

I. DID THE TRIAL COURT ERR WHEN IT OVERRULED GILBERT’S REQUEST FOR A JUDGMENT NOTWITHSTANDING THE VERDICT PURSUANT TO THE WEATHERSBY RULE?

¶ 8. Gilbert argues that the trial court erred when it denied his motion for JNOV because he, Fells and Williams were the only eyewitnesses to the killing and they all testified that Gilbert accidentally shot Townsend. Gilbert claims that the Adams was the only witness who testified that Gilbert murdered Townsend. Gilbert submits that Adams was not a credible witness. Further, Gilbert claims that the trial court should have applied the rule set forth in Weathersby. The State disagrees and submits that the rule in Weathersby does not apply, because physical evidence and Adams’s testimony contradicted Gilbert’s version of events.

¶ 9. A motion for a judgment notwithstanding the verdict is a challenge to the sufficiency of the evidence. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 886, 844(¶ 16) (Miss.2005). If any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we will uphold the verdict. Id.

¶ 10. If a defendant and his eyewitnesses give a reasonable account of a killing, which is not substantially contradicted in material particulars by credible witnesses, the defendant’s conduct after the killing, physical evidence, or facts in common knowledge, the Weathersby rule applies. Green v. State, 631 So.2d 167, 174 (Miss.1994); Harveston v. State, 493 So.2d 365, 370-71 (Miss.1986). The Weathersby rule requires the court to direct a verdict of acquittal, if the defendant’s account affords an absolute legal defense. Green, 631 So.2d at 174. Whether the Weathers-by rule applies is a question for the court, not the jury. Id. at 175. Nevertheless, witness credibility is left for the jury to assess. Id. Therefore, a court is not required to assess credibility before it denies a Weathersby directed verdict. Id.

¶ 11. Gilbert and his witnesses presented a defense theory based on accident or misfortune. “The killing of any human being ... shall be excusable: (a) [w]hen committed by accident or misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.” Miss.Code Ann. § 97-3-17(a) (Rev.2000). By Gilbert, Fells, and Williams’s accounts, Gilbert was holding the gun in self-defense, because he reasonably feared imminent danger from Townsend and a possible weapon, but when Gilbert shot Townsend, that was an accident.

¶ 12. However, the accounts of Gilbert, Fells, and Williams were contradicted by physical evidence. Dr. Hayne testified that the fatal shot traveled from the right side of Townsend’s chest, through Townsend’s chest cavity, and exited through the left side of Townsend’s chest. Dr. Hayne indicated Townsend was not in a fighting stance when Gilbert killed him. Dr. Hayne also opined that Townsend was seated when Gilbert shot him, because the bullet traveled at twenty to thirty degree downward angle. Despite the fact that Gilbert was taller than Townsend, Dr. Hayne testified that their height difference was not enough to create that same trajectory if both were standing at the time. Officer Long and Adams corroborated Dr. Hayne’s testimony. Officer Long testified that, when he arrived at the scene, Townsend was on the ground next to an overturned chair. Adams testified that Townsend was seated when Gilbert shot him.

¶ 13. The physical evidence and collective testimony of Officer Long, Adams and Dr. Hayne substantially contradicted Gilbert’s version of events. Testimony that Townsend sat in a chair and faced away from Gilbert and that Gilbert stepped back and then shot Townsend created a jury issue as to whether Gilbert shot Townsend by accident. The lower court did not abuse his discretion in refusing a Weathersby directed verdict. It was the job of the jury to decide which of these accounts were more credible. Green v. State, 631 So.2d at 174.

II. DID THE TRIAL COURT ERR WHEN IT OVERRULED GILBERT’S REQUEST FOR A WEATHERSBY INSTRUCTION?

¶ 14. As stated above, whether Weathersby applies is a question for the court, not the jury. Green, 631 So.2d at 175. The trial court found, and we agree, that Gilbert’s self-defense evidence was substantially contradicted by the State’s evidence. This issue has no merit.

III. DID THE TRIAL COURT ERR WHEN IT EXCLUDED PORTIONS OF FLOYD WILLIAMS’S TESTIMONY ON THE BASIS THAT IT WAS INADMISSIBLE HEARSAY?

¶ 15. This issue centers around the premise that Gilbert and Townsend had words prior to Gilbert’s shooting Townsend. Through Adams, the State presented evidence, without objection, that Gilbert told Townsend, “you don’t believe I’ll kill you” before he shot him. During Gilbert’s case-in-chief, Gilbert called Floyd Williams as a witness and, on redirect, attempted to ask him whether he heard Gilbert threaten to kill Townsend. Williams began to testify as to what Townsend said when the State objected on the basis of hearsay. Defense counsel argued that the State brought the matter up on cross-examination. The trial judge pointed out that the State brought the matter up without objection from Gilbert. Defense counsel conceded that he did not object to the State’s question during cross-examination. Ultimately, the trial judge sustained the State’s hearsay objection.

¶ 16. On appeal, Gilbert complains that the trial judge, by sustaining the State’s hearsay objection, violated Gilbert’s right to call witnesses on his behalf and rendered his trial fundamentally unfair. The State does not defend this ruling or even address this issue in its brief. This wholesale failure to address the issue is tantamount to a confession of error. Trammell v. State, 622 So.2d 1257, 1261 (Miss.1993). That, however, does not mean we must find reversible error.

¶ 17. Under this Court’s standard of review, the admissibility of evidence rests within the trial court’s discretion. Burton v. State, 875 So.2d 1120(116) (Miss.Ct.App.2004). Abuse of discretion will only be found where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense. Id. This Court shall not disturb a trial court’s decision unless it is clearly wrong. Id. Additionally, we will not reverse an erroneous decision to exclude evidence unless the error adversely affects a substantial right of a party. Perry v. State, 904 So.2d 1122(¶ 7) (Miss.Ct.App.2004).

¶ 18. Even if we were to find that the trial judge abused his discretion in sustaining the State’s hearsay objection, Williams was allowed to testify that it was Townsend who was talking about killing Gilbert. Williams’s point that Townsend was the aggressor and was threatening Gilbert’s life was made to the jury. What is more, Gilbert never argued that he killed Townsend in self-defense. If anything, Gilbert argued that he retrieved his rifle in self-defense, but he shot Townsend accidentally. In this case, exclusion of the exact statement was harmless error.

IV.DID THE TRIAL COURT ERR WHEN IT DENIED GILBERT’S BATSON CHALLENGE?

¶ 19. During jury selection, counsel for Gilbert stated, “Your Honor, at this point the defense would like to make a Batson challenge regarding the State’s use of its peremptory challenges, particularly as to prospective Juror No. 1, Linda Agnew. Ms. Agnew is an African American lady, as the defendant is an African American man.” After discussion, the trial judge held, “[t]he defendant has not met his burden of showing a pattern of discrimination against black jurors.” Aggrieved, Gilbert appeals.

¶ 20. In Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) the United States Supreme Court held that a defendant may establish a prima facie case of purposeful discrimination during jury selection based solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish the prima facie case under Batson, a defendant must demonstrate three elements: (1) that the defendant is a member of a cognizable racial group; (2) that the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race; and (3) that facts and circumstances infer that the prosecutor used his peremptory challenges for the purpose of striking minorities. Tanner v. State, 764 So.2d 385(¶ 12) (Miss.2000).

¶21. “Once the defendant sets forth a prima facie case, the burden shifts to the State to come forward with a race-neutral explanation for challenging the jurors.” Id. at (¶ 13) (internal quotations omitted). “The trial court must then determine whether the objecting party has met its burden of proving there has been purposeful discrimination in the exercise of the peremptory challenge.” Id. “[G]reat deference is given the trial court when determining whether the offered explanation under the unique circumstances of a case is truly a race-neutral reason.” Id. at (¶ 14). “Accordingly, we will not reverse a trial judge’s factual findings on this issue unless they appear clearly erroneous or against the overwhelming weight of the evidence.” Id.

¶ 22. The State exercised two of its peremptory strikes on black veniremen. Additionally, one member of the jury was black and one alternate was black. The number of peremptory strikes which the State used against the minority members, standing alone, is insufficient to establish an inference to a pattern of purposeful discrimination. Dennis v. State, 555 So.2d 679, 681 (Miss.1989) (ruling that the appellant had not established that an inference of purposeful discrimination by the prosecution solely on the number of peremptory challenges the State used against black members of the jury pool).

¶ 23. We hold that no prima facie case of racial discrimination has been shown in this case. To establish such a case, the defendant must show, among other things, that the State’s use of peremptory challenges and any other relevant circumstances raise an inference that the State excluded prospective jurors on the basis of their race. Here, Gilbert simply stated that, by exercising peremptory strikes on two black veniremen, the State exercised its peremptory strikes in a racially discriminatory manner. Instead of demonstrating a prima facie case of racial discrimination, counsel for Gilbert noted that the State exercised two of its peremptory challenges on two black veniremen and then asked the trial judge to have the State give race-neutral reasons for its strikes. When we examine all of the facts and circumstances surrounding the case, they simply fail to create an inference that the prosecution purposefully and intentionally struck potential jurors solely because they were black. The State accepted one black juror and one black alternate. The State also exercised most of its peremptory strikes on white people. We find no error and affirm.

V. DID THE TRIAL COURT COMMIT PLAIN ERROR WHEN IT GRANTED THE STATE’S REQUEST FOR A FLIGHT INSTRUCTION?

¶ 24. Gilbert argues that the court was in error for instructing the jury that it could take his flight after the shooting as evidence of his guilt. The State argues that the issue is waived, or in the alternative, the trial judge’s decision to grant the flight instruction is not erroneous.

¶ 25. In determining whether error lies in the granting of jury instructions, the instructions must be read as a whole. Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002). “When so read, if they fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. However, it is reversible error to grant a flight instruction when the defendant is claiming self-defense. Tran v. State, 681 So.2d 514, 519 (Miss.1996). As the supreme comet has explained:

Where the defendant is arguing self-defense, a flight instruction should be automatically ruled out and found to be of no probative value.... To suggest and highlight, through the sanction of a court granted instruction, that the defendant’s flight was possibly an indication of guilt suggests that the court does not accept the self-defense argument.

Banks v. State, 631 So.2d 748, 751 (Miss.1994).

¶26. In Tran v. State, the court held that since Tran argued self-defense, and the jury heard evidence of his flight, it was free to draw its own conclusion as to the weight of that evidence. Tran, 681 So.2d at 519. The court held that the effect of the flight instruction was error, because it amounted to an improper comment on the evidence and called “undue attention to Tran’s flight.” Id.

¶ 27. In his opening statement to the jury, defense counsel did not even argue that the killing was in necessary self-defense. Gilbert gave a written statement to law enforcement four days after the shooting. In that statement, Gilbert made no claim that he felt threatened or that his life was in danger, nor did he claim that he thought Townsend had a gun or weapon in his pocket which forced him to use deadly force. Neither the assistant district attorney nor defense counsel mentioned Gilbert’s flight from the scene until the prosecutor’s last few remarks in closing in which he said:

And here is what any normal person would do: A normal person wouldn’t rush off and try to hide. A normal person would say, oh, my God. Oh, my God, what have I done? And call the police, call an ambulance, call 911, and say I just shot somebody, come help them, come give them aid, come take them to the hospital. No. Like the coward he is, he took off and ran. Now, he didn’t want people to know about that gun. He didn’t want people to find the gun and be able to use it in this courtroom as evidence against him. He wanted to get rid of it. Did he get rid of it? You heard his testimony. He got rid of that gun, and he didn’t go to the police the next day, as far as I know, not the next day.

¶ 28. To highlight the fact that Gilbert’s primary defense was accident or misfortune, Corey Fells testified:

Q. Did Conrad Townsend make any movement toward the gun?
A. Yeah, he did like that right there. Hit the gun up, the gun hit me in the forehead. As soon as the gun hit me in the forehead, it went off. Just like that.
Q. The gun hit you in the forehead?
A. Hit me in the forehead.
Q. After Mr. Townsend pushed it away?
A. After he pushed it away. When he hit it, the gun hit me. As soon as it hit my forehead, it went off. It’s just that fast. You know, a blink of an eye, you missed it.
⅜ ⅜ ⅜ *
Q. He was standing so close to you when he shot Conrad Townsend that the barrel hit you in the head?
A. He wasn’t standing that close to me. The gun was long, you know what I’m saying. How he was standing, the gun was going across like that right there, across like that right there. (Indicating.)
Q. You were standing close enough to him that when the gun went off it hit you in the head; is that right?
A. Well, I was standing — Conrad hit the gun. How he hit the gun, the gun come back like this right here. The gun hit my head. As soon as the gun hit my forehead, the gun went off.

Calvin Williams testified similarly about an accident and the reason Gilbert ran.

Q. And there is no question in your mind before that gun — before Willie went to get that gun, that they had had words?
A. Yes, sir.
Q. Conrad [Townsend] was yacking at him, he was yacking at Conrad. I’ll kill all you MF’s. And then Willie Gilbert went all the way to his car, opened the trunk, got the gun out. Didn’t take — didn’t say, hey, man, I am getting in trouble; I got to defend myself. Hey, man, this may be something bad. I don’t want to get involved in it. This is a time for me to leave and not go get a gun and come back. Instead he walked to his trunk of his car and he got that gun. Now that’s no question in your mind that he did that, is there?
A. Yes, sir.
* * * *
Q. Right by the chair, the chair that’s right here. Now, you were high, and you saw what you wanted to see. Everything was fine. And you didn’t want Willie [Gilbert] — you didn’t want Willie to be a murderer. You wanted to have this story that the gun accidentally went off. Isn’t that what you wanted?
A. The gun accidentally did went off.
Q. And he ran because he knew he had shot and killed Conrad [Townsend], didn’t he?
A. (Inaudible)
THE REPORTER: I’m sorry. I didn’t hear your response.
A. Yes, sir.

¶ 29. Gilbert also testified that the shooting was an accident. Gilbert testified:

[Townsend] told me, he said like, you ain’t got the guts to shoot nobody, you punk motherf-. Then when he hit it, like I said, the gun did, it went off. I didn’t — I had no intention of killing nobody. I ain’t never had that intention to kill nobody. I’m not a murderer.

Gilbert explained his flight from the scene:

Q. You didn’t stick around?
A. No, I didn’t stick around.
Q. Why?
A. Because I didn’t have no reason to stick around. Was that after the accident or before the accident did I stick around?
Q. After the accident?
A. Oh, no, sir. I panicked. I — you know, I panicked. I ran, you know. It — it shocked me. It scared me, you know. I mean, I — I—I thought, you know what I’m saying. I maybe — I— I told him, I said, God — I told my wife when I got home, I said, Lord I hope I ain’t shot — shot—I hope it ain’t bad. I hope I ain’t shot nobody. That’s what I told her when I got to the house, because I ain’t ever did nothing to nobody.
Q. Did you mean to shoot him?
A. No I did not. He hit the gun, and it went off. That’s what — I didn’t shoot him. When he hit that gun, that gun went off.
⅛ ⅜ ⅜ *
Q. Did you intentionally shoot?
A. No, sir, I did not. It was an accident. He hit the gun, and it went off. I did not intentionally shoot nobody. I never intended to do nothing to anybody.

Gilbert further explained his flight.

I didn’t even know he was hit, because, like I said, it happened so fast, when the gun went off, I panicked, you know what I’m saying. I just ran. I ran past my car and turned around, you know, and I went into this gate, this little fence that runs across there, and when I was trying to get over the fence, I thought about it, you know what I’m saying. And like I say, I dropped that gun, right down there, and that’s where the gun was.

¶ 30. Gilbert agreed that the only people actually physically present at the time of the shooting were he, Townsend the decedent, his past friend Adams, his friend Fells, and Williams, his friend and the brother of his fiancee. He was surrounded by his friends. No evidence is in the record that Townsend’s brothers or family members were anywhere nearby. Gilbert was armed with a 30/30 caliber high powered rifle. He was obviously fully capable of defending himself. Gilbert’s explanation that he fled because he “panicked” is feeble indeed.

¶ 31. “[A]n instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” Holly v. State, 671 So.2d 32, 38 (Miss.1996) (quoting Reynolds v. State, 658 So.2d 852, 856 (Miss.1995) (quoting Fuselier v. State, 468 So.2d 45, 57 (Miss.1985))). The Mississippi Supreme Court has made it clear that “[w]here the defendant is arguing self-defense, a flight instruction should be automatically ruled out and found to be of no probative value.” Banks, 631 So.2d 748, 751.

¶ 32. It is evident that Gilbert focused his defense on the prospect that he accidentally shot Townsend. Gilbert testified that Townsend walked towards him with his hand in his pocket. Gilbert then testified that he walked to his own car and Townsend followed him, cursed him, and kept one hand in his pocket. Gilbert testified that he retrieved a rifle from his trunk and walked away from Townsend. Next, Gilbert testified that Townsend continued to walk towards him and that Townsend had his hand in his pocket. According to Gilbert, he was afraid of Townsend, so he leveled the rifle at Townsend and held it there with one hand. Apparently, they were in close proximity. Gilbert testified that Townsend said, “[y]ou don’t have the guts to kill nobody. Man, get that gun out of my face.” According to Gilbert’s version of events, Townsend hit Gilbert’s rifle and Gilbert’s rifle swung out and hit Corey Fells in the head. Next, the rifle ricocheted or somehow bounced off Fells’s skull, swung back towards Townsend, and accidentally discharged.

¶ 33. It is clear from the record that no evidence or testimony, not even Gilbert’s, indicated that Gilbert shot Townsend in self-defense. Rather, Gilbert’s own testimony was that Townsend caused the rifle to discharge when he hit it. Gilbert’s own testimony demonstrated that he may not have even known if he shot Townsend. In no way did Gilbert testify that he consciously and intentionally shot Townsend in self-defense. If anything, he testified that he pointed the rifle at Townsend in self-defense and that Townsend hit the rifle and caused it to fire accidentally.

¶ 34. Gilbert claims that he ran after shooting Townsend because Gilbert feared retribution if he lingered. There was no testimony that anyone threatened retribution against Gilbert. Even if one could infer that Townsend’s friends or family would have wanted to avenge Townsend, there is no evidence that they were at the scene or otherwise made that known at the time Gilbert shot Townsend.

¶ 35. Gilbert submits that he received threats from Townsend’s brother after Gilbert was released on bond. Gilbert claims that Banks supports the proposition that, in such a case, “flight seems logical and necessary.” Banks, 631 So.2d at 751. It is true that, according to Banks, “[wjhere the person against whom self defense has been exercised is still alive and has the back up support of other persons, flight seems logical and necessary.” Id. Still, Banks certainly did not hold that flight seems logical and necessary when a defendant kills someone with a rifle and the victim’s brother threatens the defendant two weeks afterwards. Gilbert cannot rationally explain his flight on a threat from Townsend’s brother that only came two weeks after Gilbert killed Townsend.

¶ 36. In order to avoid a flight instruction under such circumstances, Gilbert should be required to offer some rational and reasonable explanation for his flight. To say that “I panicked” is insufficient. Gilbert’s flight did indeed have some probative value; i.e., the jury could have easily concluded that his flight was motivated by a guilty conscience.

¶ 37. Instruction 104.12 of the Mississippi Model Jury Instructions (1999) is the model instruction on flight. It reads:

“Flight” is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the defendant,_, did flee or go into hiding, such flight or hiding is to be considered in connection with all other evidence in this case. You will determine from all the facts whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of the defendant,_

Instruction C-ll, the flight instruction given without defense objection, read:

The Court instructs the Jury that flight is a circumstance from which in the absence of a reasonable explanation therefor, guilty knowledge and fear may be inferred. If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, WILLIE J. “BROWNIE” GILBERT, did flee from the scene of the death of ENOCH “CONRAD” TOWNSEND, then the flight of WILLIE J. “BROWNIE” GILBERT is to be considered in connection with all other evidence in this case. You will determine from all of the facts whether the flight was from a conscious sense of guilt or whether it was caused by other things, and give it such weight as you think it is entitled to in determining the guilt or innocence of WILLIE J. “BROWNIE” GILBERT.

C-ll tracks nearly word-for-word with the model jury instruction. Simply said, it was an issue for the jury to consider along with all the other evidence in the case. The jury was able to use its good common sense and honest judgment in evaluating Gilbert’s explanation for his flight from the crime scene.

¶ 38. Additionally, Gilbert testified that he and Townsend had words while Gilbert was at Adams’s apartment door. Gilbert said that Townsend went out to the parking lot to meet a mysterious car and returned to confront Gilbert again. According to Gilbert, Townsend had his hands in his pockets. Gilbert testified that Townsend continued to harass him and get in his face. Gilbert said Townsend slapped him on the head. Gilbert explained that he was concerned that Townsend might have had a weapon in his pocket. Thereafter, Gilbert testified that he walked to his car in the parking lot, opened his trunk, retrieved his 30/30 caliber loaded rifle, and attempted to return to Adams’s apartment. The confrontation with Townsend escalated. Gilbert then “accidentally” shot Townsend.

¶ 39. Under these facts, there is a serious question regarding Gilbert’s right to even claim necessary self-defense. The law in this state has been for years that a defendant who has been in an altercation or dispute with the victim can not temporarily leave the scene of the dispute, arm himself, return to the scene, shoot or kill the victim and thereafter claim necessary self-defense. See Skinner v. State, 751 So.2d 1060(¶ 48) (Miss.Ct.App.1999) (“[O]ne who leaves an altercation, arms himself, and returns with the intent to and does use his weapon on the other party cannot claim self-defense.” (quoting Griffin v. State, 495 So.2d 1352, 1354 (Miss.1986))).

¶ 40. Not only is there little to no evidence of self-defense, Gilbert did not object to the instruction at issue. When the State tendered the flight instruction at issue, the trial judge asked Gilbert if he had any objection to the instruction. Gilbert responded, “no objection.” That instruction became instruction C-ll. When Gilbert filed his motion for new trial, he did not claim that instruction C-ll entitled him to a new trial. He failed to mention C-ll in any way. Gilbert raises this issue for the first time on appeal. At no time has Gilbert raised the propriety of C-ll, prior to his appeal to this Court. Gilbert certainly never gave the trial judge an opportunity to pass on the propriety of the flight instruction.

¶ 41. Gilbert claims he was not bound to object to the instruction because it resulted in plain error. Under normal circumstances, “[i]t is the duty of defense counsel to object to an instruction offered by the State which he deems improper, and ordinarily failure to timely object will on appeal be deemed a waiver of any defect.” Duvall v. State, 634 So.2d 524, 526 (Miss.1994). ‘Where, however, the State offers and the circuit judge grants an instruction which we have clearly held is erroneous, we are not going to hold defense counsel to the same degree of diligence he has on instructions this Court has not ruled upon.” Id. Gilbert claims he was not bound to object to the flight instruction because Banks held, “[w]here the defendant is arguing self-defense, a flight instruction should be automatically ruled out and found to be of no probative value.” 631 So.2d at 751.

¶ 42. This all may very well be, but Gilbert cites no authority that even suggests that a trial judge commits plain error justifying reversal when he gives a flight instruction with no objection from a defendant and where a defendant presents an extremely weak to nonexistent claim of self-defense. We will not initiate that precedent in this case.

VI. DID THE INDICTMENT AGAINST GILBERT ALLEGE THE ESSENTIAL ELEMENTS OF MURDER?

¶ 43. Gilbert argues the initial indictment did not sufficiently allege murder, because it did not allege that he acted out of “deliberate design.” He also claims the trial court was in error for allowing a motion to cure this alleged defect at the close of trial. The trial court found the amendment was not one of substance, so it was not prejudicial to Gilbert to so amend.

¶ 44. This Court engages in a relatively broad standard of review in determining whether an indictment is fatally defective. Nguyen v. State, 761 So.2d 873, 874(¶ 13) (Miss.2000). “All indictments may be amended as to form but not as to the substance of the offense charged.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” URCCC 7.09. An indictment may be amended after the State has rested. Montgomery v. State, 891 So.2d 179, 186(¶ 23) (Miss.2004).

¶ 45. Murder is defined as “[t]he killing of a human being without authority of law ... [w]hen done with deliberate design to effect the death of the person being killed, or of any human being.” Miss.Code Ann. § 97-3-19(1)(a). “Malice aforethought” and “deliberate design” mean the same thing for purposes of defining the offense of murder. Tran, 681 So.2d at 517. Therefore, amending a murder indictment from “malice aforethought” to “deliberate design” is one of form, not substance. Greenlee v. State, 725 So.2d 816, 822(¶ 12) (Miss.1998).

¶ 46. The original indictment charged:

WILLIE J. “BROWNIE” GILBERT in [Lee] County, [Mississippi] on the 18th day of July, A.D., 2003, did wilfully, unlawfully and feloniously and with malice aforethought or deliberate kill and murder Enoch “Conrad” Townsend, a human being; contrary to [§ 97-3-19] in such eases made and provided, and against the peace and dignity of the state of Mississippi.

The case went to trial on this indictment. At the close of evidence, the State moved to amend the indictment, to add the word “design” between the words “deliberate” and “kill.” Gilbert objected, but the court allowed the amendment. Since the indictment did already allege “malice aforethought,” the judge ruled this amendment was merely one of form, not substance.

¶ 47. Greenlee v. State dealt with an original indictment, worded similarly to the one at bar. In that case, the original indictment read, “Aaron Greenlee did willfully, unlawfully, feloniously, without authority of law and of his malice aforethought, kill and murder one Shelia Greenlee....” Id. at 821. This indictment was amended to “Aaron Greenlee did willfully, unlawfully, feloniously, without authority of law and by deliberate design to effect the death of the person killed, or of any human being, and the defendant did shoot and kill and murder one Shelia Greenlee, a human being, by shooting her with a rifle.... ” Id. The court held the original indictment was sufficient to allege the crime of murder, since “malice aforethought” and “deliberate design” are synonymous. Id. at 822. Further, the court held that changing “malice aforethought” to “deliberate design” was a change of form. Id.

¶ 48. Greenlee is instructive here. Although Gilbert’s original indictment only alleged “malice aforethought,” it was sufficient to charge the crime of murder by deliberate design under Mississippi Code Annotated section 97-3-19(1)(a). The amendment was proper as one of form, and since the two terms are synonymous, Gilbert was not prejudiced by the addition of “deliberate design” to the indictment. This issue has no merit.

VII. DID THE TRIAL COURT ERR WHEN IT OVERRULED GILBERT’S REQUEST FOR A CONTINUANCE?

¶ 49. The day before trial, counsel for Gilbert made an ore tenus motion for continuance. Gilbert’s attorney claimed that he needed a continuance to procure a toxicology report and to locate three witnesses. Neither the State nor Gilbert subpoenaed those three witnesses. Gilbert’s attorney admitted that he received discovery, including the names of those missing witnesses, two months before trial. Accordingly, the trial judge denied Gilbert’s request for a continuance.

¶ 50. “The decision to grant or deny a continuance is left to the sound discretion of the trial court.” Stack v. State, 860 So.2d 687(¶7) (Miss.2003). “Unless manifest injustice appears to have resulted from the denial of the continuance, this Court should not reverse.” Lambert v. State, 654 So.2d 17, 22 (Miss.1995). “The burden of showing manifest injustice is not satisfied by conclusory arguments alone, rather the defendant is required to show concrete facts that demonstrate the particular prejudice to the defense.” Stack, 860 So.2d at (¶ 7) (internal quotations omitted).

¶ 51. We find that Gilbert suffered no manifest injustice as a result of the trial judge’s decision. Dr. Hayne testified that Townsend had a blood-alcohol content of .03 at the time Gilbert shot and killed him. Dr. Hayne also testified that Townsend had inhaled some marijuana shortly before Gilbert shot him. Gilbert suffered no prejudice as a result. As for the missing witnesses, Gilbert had months prior to trial to locate those witnesses, interview them, and subpoena them for trial. Gilbert does not indicate to what those witnesses would have testified or how their testimony would have benefitted his defense. Furthermore, Gilbert made no effort whatsoever to comply with the requirements of Section 99-15-29 of the Mississippi Code Annotated (Rev.2000). That Section states that:

On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or the presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought to delay only, but that justice may be done.

Accordingly, this issue has no merit.

VII. DID THE CUMULATIVE EFFECT OF ERRORS INFRINGE UPON GILBERT’S RIGHT TO A FAIR TRIAL?

¶ 52. Gilbert claims that the cumulative errors in this case demand that we reverse for a new trial. As we find no cumulative error, there can be no cumulative effect. This issue is meritless.

¶ 53. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE TO LIFE IN PRISON IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Cynthia Ann Arledge BEASNETT and Joy Lynn Arledge, Appellants, Cross-Appellees, v. Robert ARLEDGE, Appellee, Cross-Appellant.
    No. 2005-CA-00228-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.
    Frank J. Campbell, Vicksburg, attorney for appellants.
    Lee Davis Thames, Jackson, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Cynthia Ann Arledge Beasnett (“Beasnett”) and Joy Arledge (“Joy”) filed a petition for contempt and for judgment for child support arrearage, interest, and attorney’s fees against Joy’s father and Beasnett’s ex-husband, Robert Arledge (“Arledge”). The chancellor awarded Joy and Beasnett $22,963.75 in child support arrearage, representing the amount he failed to pay from November 1982 through October 1984 plus eight percent interest per annum, plus forty-five cents per day from July 1, 2003 through June 18, 2004. The chancellor did not award child support arrearage after October of 1984, because Arledge’s parental rights were terminated by joint agreement on October 17, 1984. Aggrieved that the chancellor did not award additional child support arrearage for the period following the termination of Arledge’s parental rights, Beasnett and Joy appeal. Arledge cross-appeals, contending that the chancellor erred in awarding eight percent interest per annum. Finding no error, we affirm the decision of the chancellor.

FACTS

¶ 2. Beasnett and Arledge were divorced on November 5, 1982, on the grounds of irreconcilable differences, and Arledge was ordered to pay $200 per month in child support for their daughter, Joy. On September 29, 1984 Beasnett and Arledge filed a joint petition to terminate Arledge’s parental rights. On October 3, 1984, because of the gravity of the petition before the court, Joy was appointed a guardian ad litem to make sure her interests were being properly served. Arledge’s parental rights were terminated on October 17, 1984. The order terminating Arledge’s parental rights did not mention cessation of child support payments. From the time of the divorce decree on November 5, 1982, to the time his parental rights were terminated on October 17, 1984, Arledge did not pay any child support; nor did he pay any child support thereafter. Approximately eighteen years later, in December 2002, Beasnett and Joy filed a petition for contempt and for judgment for child support arrearage, interest, and attorney’s fees. The chancellor held that Arledge owed $22,963.75 in child support arrear-age, representing the amount he failed to pay from November 1982, through October 1984, plus eight percent interest, plus forty-five cents per day from July 1, 2003 through June 18, 2004. The chancellor additionally awarded Joy attorney’s fees and expenses in the amount of $6,355. Aggrieved that the chancellor did not award additional child support arrearage for the period following the termination of Arledge’s parental rights, Beasnett and Joy appeal, asserting the following issues: (1) that the termination of Arledge’s parental rights in 1984 under Mississippi Code Annotated Section 93-15-103(3)(a) did not terminate Arledge’s responsibility to pay child support thereafter; (2) that summary judgment was not appropriate; and (3) that the chancellor erred as a matter of law by failing to have a contempt hearing and failing to find Arledge in contumacious contempt for failing to pay child support. Arledge cross-appeals, contending that the chancellor erred in awarding eight percent interest.

ISSUES AND ANALYSIS

I. Whether the termination of parental rights under Mississippi Code Annotated Section 93-15-103(3)(a) terminates the father’s responsibility to pay child support.

¶ 3. In domestic relations cases, this Court’s standard of review is limited. A & L, Inc. v. Grantham, 747 So.2d 832, 838(¶ 18) (Miss.1999). We will not disturb the findings of a chancellor “unless manifestly wrong, clearly erroneous, or if the chancellor applied the wrong legal standard.” Id. This Court reviews a chancellor’s interpretation of the law under a de novo standard. Isom v. Jernigan, 840 So.2d 104, 106(¶ 6) (Miss.2003).

¶ 4. The case and statutory law in Mississippi is sparse regarding whether a parent’s obligation to pay child support terminates when his parental rights are voluntarily terminated. Mississippi Code Annotated Section 98-15-103(2) provides:

The rights of a parent with reference to a child, including parental rights to control or withhold consent to an adoption, and the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of the parent and child terminated by the execution of a written voluntary release, signed by the parent, regardless of the age of the parent.

Miss.Code Ann. § 93-15-103(2) (Rev.2004) (emphasis added). In McCracking v. Champaigne, 805 So.2d 586 (Miss.Ct.App. 2002), this Court reviewed a chancellor’s decision which held that “while McCracking’s relationship with his eldest daughter had deteriorated, that did not relieve him of the responsibility to pay child support.” McCracking, 805 So.2d at 590(¶ 12). In so holding, the chancery court stated that “the public policy of this State does not countenance the voluntary termination of parental rights for the sole purpose of avoiding child support.” Id. at (¶ 13) (emphasis added). This Court stated that the record supported the chancellor’s findings and found no abuse of the chancellor’s discretion. Id. at (¶ 14). While not a direct holding by this Court, our support of the above quoted language in McCracking indicates what seems an obvious conclusion: that it is inherent in the voluntary termination of parental rights that the obligation to pay child support ends. Further, as is clear from Mississippi Code Annotated Section 93-15-103(2), the voluntary termination of parental rights completely and utterly extinguishes the parent-child relationship. When the parent-child relationship terminates, not only are the rights of the parent with regard to the child terminated, but the reverse is also true, so long as such termination is not sought simply to evade the obligation to pay child support.

¶ 5. It would be against public policy to allow voluntary termination of parental rights as a mere proxy for avoiding the responsibility to pay child support, but there is no evidence that this is the situation in the case sub judiee. The order terminating Arledge’s parental rights was approved by both Beasnett and Joy’s guardian ad litem. The chancellor sub judiee found that the chancellor who originally granted the termination of Arledge’s parental rights did so only after considering the issue of future child support. In the parental rights termination proceedings, Joy’s guardian ad litem stated:

the Plaintiff, Cynthia Ann Arledge [Beasnett], has provided and continues to provide a stable and nuturing [sic] home environment, [and] has sufficient income to support [Joy] and provide for all [her] needs ... in a satisfactory manner and thus the termination of the parental rights of Robert Charles Arledge has no detrimental affect [sic] whatsoever on the well being of the child.

As the chancellor sub judiee stated, “It is clear that the expectation of [the chancellor granting the termination of parental rights] was that there would be no obligation on the part of the father to pay child support after the termination of his parental rights.”

¶ 6. Additional support for the view that termination of parental rights terminates the obligation to pay child support appears in Mississippi Code Annotated Section 43-15-17(1) (Rev.2004), which states:

Upon court order, the parent(s) shall be responsible for reimbursing [Mississippi Department of Human Services] for any foster care payments made on behalf of his or her child, based upon financial ability to pay, until such time as there is a termination of parental rights regarding the child, or the child is adopted.

Here, the legislature appears to list two clear events that terminate the obligation to pay child support (although the application of this particular section of the Mississippi Code is narrow): (1) adoption of the child; and (2) the termination of parental rights.

¶ 7. Furthermore, there is scholarly support for the view that termination of parental rights’ terminates the responsibility to pay child support. See Deborah Bell, Child Support Orders: The Common Law Framework-Part II, 69 Miss. L.J. 1063, 1079 (2003) (“A parent’s support obligation ceases when parental rights are terminated either by consent or as a result of a termination action”). This is also the view of our sister state of Colorado, as the Mississippi Supreme Court notes (quoting the United States Supreme Court) in the following excerpt:

“In Colorado, for example, it has been noted: ‘[Upon termination of parental rights, t]he child loses the right of support and maintenance, for which he may thereafter be dependent on society; the right to inherit; and all other rights inherent in the legal parent-child relationship, not just for [a. limited] period ..., but forever.’ ”

Natural Father v. United Methodist Children’s Home, 418 So.2d 807, 810 (Miss.1982) (quoting Santosky v. Kramer, 455 U.S. 745, 760 n. 11, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (quoting In re K.S., 33 Colo.App. 72, 515 P.2d 130, 133 (1973))). Also illustrative of this view is Virginia v. Fletcher, 38 Va.App. 107, 562 S.E.2d 327 (2002), in which the court noted the view of the Virginia Supreme Court on the matter:

In defining the effect of termination of parental rights upon the legal relationship between a parent and child, the Virginia Supreme Court has held “[t]he termination of parental rights is a grave, drastic, and irreversible action. When a court orders termination of parental rights, the ties between the parent and child are severed forever, and the parent becomes a ‘legal stranger to the child.’ ”

Fletcher, 562 S.E.2d at 329 (citations omitted); see also Roelfs v. Wallingford, Inc., 207 Kan. 804, 486 P.2d 1371, 1376 (1971) (holding that when parent is permanently deprived of parental rights, “there remains no legal obligation of support”); Coffey v. Vasquez, 290 S.C. 348, 350 S.E.2d 396, 398 (Ct.App.1986) (“[A] parent’s obligation to feed, clothe and otherwise support a child, being correlative to the parent’s rights in and to the child, does not exist where the parent’s reciprocal rights in and to the child have been terminated”).

¶ 8. Thus, while there is very little statutory or case law on this matter in Mississippi, we find that it is an inherent aspect of voluntary termination of parental rights that, just as the entire parent-child relationship terminates, so too does the responsibility to pay child support, so long as the best interests of the child are preserved. Accordingly, we hold that the chancery court was not in error in holding that Arledge’s obligation to pay child support ceased when his parental rights were terminated.

II. Whether summary judgment was appropriate.

¶ 9. This Court reviews de novo a trial court’s grant of summary judgment. Owens v. Thomae, 904 So.2d 207, 208(¶ 7) (Miss.Ct.App.2005). Summary judgment is proper if no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Mozingo v. Scharf, 828 So.2d 1246, 1249(¶ 5) (Miss.2002). If, however, any genuine issue of material fact exists, the grant of summary judgment is improper and this Court will reverse. Id. at 1249-50 (¶ 5).

¶ 10. Beasnett has presented to us no issue of genuine material fact as to make the chancellor’s grant of summary judgment on the issue of child support arrear-age improper. Even viewing the evidence in the light most favorable to Beasnett, the dispute in this case concerns only the law as to whether the voluntary termination of parental rights terminates the responsibility to pay child support. Because we have adjudication that issue in favor of Arledge, we cannot say that summary judgment was improper. This assignment of error is thus without merit.

III. Whether the chancellor erred as a matter of law by failing to have a contempt hearing and failing to find Arledge in contumacious contempt for failing to pay any child support.

¶ 11. A chancellor’s finding of civil contempt is subject to review under a manifest error standard. Dennis v. Dennis, 824 So.2d 604, 608(¶7) (Miss.2004). The chancellor sub judice stated,

Although [Arledge] was, at the very least, apparently in contempt for his failure to make child support payments pri- or to the termination of his parental rights, under the facts of this case, [he] may have reasonably believed that all child support obligations, both past and future, were eliminated by the order terminating his parental rights. Therefore, the Court cannot at this point in time find that Robert Arledge is in willful or contumacious contempt for failing to pay the child support arrearage which accrued up to the date of the termination of his parental rights. However, as previously stated, [Arledge] does owe the vested child support and interest thereon.

We see no manifest error in the chancery court’s decision and will not substitute our own judgment for that of the chancellor. Beasnett presents to us no authority persuasively suggesting that the chancellor manifestly erred. This assignment of error is therefore without merit.

IV.Whether the chancellor erred in awarding Joy and Beasnett eight percent per annum interest on the child support arrearage.

¶ 12. Arledge asserts on cross-appeal that he does not owe child support from November 5, 1982 through October 17, 1984. He contends that one of the very reasons his parental rights were terminated was his failure to pay child support. Further, he argues that Beasnett’s failure to seek such arrearage for over eighteen years caused the amount he allegedly owed to increase by approximately five times due to accrued interest (from $4,800 to $22,963.75). He argues, citing Mississippi Code Annotated Section 75-17-7 (Supp.2000), that the court is not required to use eight percent interest per annum, but rather only a “fair interest rate.” Mississippi Code Annotated Section 75-17-7 states, in relevant part: “All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair, but in no event prior to the filing of the complaint.” The language in this statute is fairly deferential to the trial court. We see no manifest error in the chancellor’s application of eight percent per annum interest on the child support arrearage. See, e.g., Howard v. Howard, 913 So.2d 1030, 1036(¶12) (Miss.Ct.App.2005) (affirming chancellor’s award of child support arrearage with eight percent per annum interest). We therefore affirm the decision of the chancery court as to this issue.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED ON DIRECT AND CROSS APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANTS/CROSS-APPELLEES AND AP-PELLEE/CROSS-APPELLANT.

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

      . We reiterate, however, that the termination of parental rights may not simply be used as a mechanism for one parent to avoid paying child support. In the case sub judice, however, it is clear that this is not the case, as evidence by the fact that both Beasnett and Joy's guardian ad litem agreed to the termination of Arledge’s parental rights. The best interests of the child must be preserved in any case.


author: KING, C.J.,

text:
    Deidra BROOKS; Elbert Cole; Trakena Cole; Vincent Dancy; Earl Dew; Valexia Edwards; Michael Hughes; Velma Jenkins; Shawnegua Rucker; and Russell Smart, Appellants, v. STONE ARCHITECTURE, P.A.; Sneed Construction Company, P.A.; G & G Construction, Sheet Metal and Roofing, Inc.; and Cole Refrigeration, Appellees.
    No. 2004-CA-00919-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Meredith Anne Mayberry, Gerald Maples, attorneys for appellants.
    Thomas Michael Cronin, Lonnie D. Bailey, Greenwood, Carolyn Buttles Mills, Ridgeland, George E. Dent, Tupelo, Kathryn Russell Gilchrist, Jackson, Steven Cavitt Cookston, Greenwood, Whitney Morgan Stone, Jackson, attorneys for ap-pellees.
    Before KING, C.J., ISHEE and CHANDLER, JJ.
   KING, C.J.,

for the Court.

¶ 1. Students and teachers of two Nox-ubee County schools, Earl Nash Elementary School (Nash) and B.F. Liddell Middle School (Liddell), filed suit against Stone Architecture, P.A. and several subcontractors (hereinafter collectively referred to as “Stone”) that performed work at the schools, alleging fear of future disease due to asbestos exposure. Stone moved for and was granted summary judgment. The Appellants claim that genuine issues of material fact existed as to their claim for fear of future disease. Finding no error, we affirm.

FACTS

¶ 2. Prior to the start of the 1997 school year, the Noxubee County School District undertook an energy upgrade project. In August of 1997, Stone installed a new heating, ventilation, and air conditioning system at Nash. Stone began work, which included roofing and updating the heating, ventilation, and air conditioning system, at Liddell, in October of 1997. Within a few weeks parents began complaining about the resulting dust and debris to which their children were being exposed. On November 3, 1997, Stone Architecture ordered the subcontractors to stop all work and suggested that the roofers have a dust analysis performed. On November 14, 1997, Earnest Pearl, a certified asbestos inspector, found that none of the work debris contained asbestos. In December 1997, the school board hired Environmental Management Plus (EMP), an asbestos abatement contractor, to conduct an air sampling at the schools. EMP detected the presence of asbestos. As a result, the schools closed early for Christmas break.

¶ 3. On January 2, 1998, the Appellants initiated the present action in the Noxubee County Circuit Court. After three amended complaints and the completion of discovery, Stone filed a motion for summary judgment on March 19, 2002. A hearing was held on March 8, 2004. The court granted Stone’s motion for summary judgment on April 22, 2004.

ANALYSIS

Standard of Review

¶ 4. Summary judgment orders are reviewed de novo. Pitts v. Watkins, 905 So.2d 553, 555(¶6) (Miss.2005)(citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). This Court will reverse the trial judge’s grant of summary judgment only if a triable issue of fact exists. Erby v. North Miss. Med. Ctr., 654 So.2d 495, 499 (Miss.1995). Summary judgment is appropriate where a non-moving party who will bear the burden of proof at trial fails to establish the existence of an essential element of his case. Gorman-Rupp Co. v. Hall, 908 So.2d 749, 757(¶ 25) (Miss.2005).

¶ 5. The Appellants’ only claimed damages is “fear of future disease.” Stone contends that Mississippi does not recognize fear of future disease as a cause of action. However, the Mississippi Supreme Court has indeed recognized fear of future disease as a basis for emotional distress claims.

We have before found that emotional distress inflicted either negligently or intentionally is compensable. However, emotional distress based on the fear of a future illness must await a manifestation of that illness or be supported by substantial exposure to the danger, and be supported by medical or scientific evidence so that there is a rational basis for the emotional fear. We do not harm and, in fact, preserve a recovery for emotional distress when the same is based on such a foundation.

Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648, 650 (Miss.1995) (emphasis added). Since the Appellants chose to bring their case before any manifestation of illness, in order to survive summary judgment, they were required to show that genuine issues of material fact existed regarding their (1) substantial exposure to asbestos and (2) medical or scientific evidence supporting the reasonableness of their emotional fear. We examine the admissible evidence presented on each element of the tort to determine whether summary judgment was properly granted.

Substantial Exposure

¶ 6. Prior to beginning construction, Stone hired Hazclean Environmental Consultants, Inc. to conduct an engineering facility survey to identify and sample suspected asbestos containing materials (ACM) on the roofs at Liddell and Nash. The Hazclean report revealed that no friable asbestos was detected during the survey, although non-friable ACM was detected in the roofing materials. After concern arose over the content of the debris, G & G Construction hired Ernest Pearl, a certified asbestos inspector, to determine if asbestos was present at Lid-dell. On November 14, 1997, Pearl tested samples from a Liddell ceiling and dust particles generated from construction inside one of the classrooms. Pearl’s polarized light microscopy (PLM) test showed that no asbestos was present in the samples.

¶ 7. In December 1997, the school district hired Environmental Management Plus (EMP) to test for the presence of asbestos in the Noxubee County Schools. Unlike Hazclean and Pearl, whose testing involved static air samples, EMP took air samples pursuant to the Asbestos Hazard Emergency Response Act (AHERA), 40 C.F.R. § 763. This method involved stirring up the air to be tested with a leaf blower. Using this methodology, EMP determined that Nash had acceptable clearance levels, but Liddell did not. Rather than having medical tests performed, the Appellants relied on the EMP air sample testing results to support their assertion that they had been exposed to asbestos.

¶ 8. Also in December 1997, Stone hired Environmental Evaluation and Control, Inc. (EE & C) to perform an asbestos inspection by collecting samples of window sealant and glazing compounds on the ground at five Noxubee County schools, including Liddell and Nash, where new windows had recently been installed as part of the energy upgrade. EE & C determined that the samples taken from Liddell and Nash tested positive for asbestos content. As for the condition of the ACM, EE & C determined that since the material was on the ground, broken in small pieces, subject to continuing deterioration by exposure to weather, and subject to being crushed by pedestrian traffic, the ACM was considered friable or potentially friable.

¶ 9. The Mississippi State Department of Health (MSDH) also conducted an investigation after being contacted by several concerned parents. The stated purpose of the MSDH investigation was to determine the nature of the reported events and the extent of the potential health risks. Regarding any exposure to asbestos, MSDH ultimately found,

Since the roofing material was a solid matrix of multiple materials, the data collected did not suggest a source of friable asbestos. Therefore, given the amount of roofing materials (composite dust) that fell from the ceiling during the construction process[,] exposure [to] friable asbestos was unlikely. However, there was a potential exposure from the other materials.

MSDH’s findings as to potential health risks will be discussed below.

¶ 10. During discovery, Stone hired John W. Spencer, a certified industrial hygienist. Spencer opined that the.testing performed by EMP is not generally accepted by industrial hygienists to determine actual exposure levels to occupants of the space tested, and that the appropriate testing involves static air samples. Spencer further stated,

The methodology for taking air samples pursuant to 40 C.F.R. [§ ]763 Final Rule, calls for an aggressive sampling, whereby the air is intentionally stirred up using a leaf blower to disturb any dust that may be present so that the air monitoring results reflect “worst” case conditions. Such clearance air monitoring is an accepted protocol to take air samples following the completion of an asbestos abatement activity to ensure that the activity is complete and that the area is safe to reoccupy. It is not, however, an acceptable method to determine the level of actual asbestos exposure to individuals occupying the sampled space. Results reached using such methodology would not be indicative of conditions [to which] the plaintiffs were exposed while they were occupying the classrooms during the course of the construction project.

¶ 11. In sum, the Appellants claim that Stone exposed them to asbestos. Stone claims that some of the construction materials contained non-friable asbestos which is not respirable. Further, Stone argues that the testing performed by EMP was inappropriate. Both sides submitted admissible evidence to support their positions regarding the Appellants’ alleged substantial exposure to asbestos. What is the proper testing methodology to determine asbestos exposure to individuals occupying the sampled space, what is the relevance of exposure to non-friable versus friable asbestos, and whether the Appellants’ potential exposure to any type of asbestos was substantial are material questions of fact. Accordingly, we find that there were triable issues of fact regarding the Appellants’ alleged substantial exposure to asbestos.

Medical/Scientific Evidence

¶ 12. The Appellants offered testimony from Drs. Gaeton Lorino and Arnold Bro-dy to support their contention that their fears of developing asbestos-related disease in the future are reasonable. Dr. Lorino was admitted as an expert in the fields of pulmonary medicine and internal medicine. Dr. Lorino ultimately opined that the Appellants have a reasonable basis to be fearful for their health in the future because of their increased risk of developing certain cancers and asbestos-related diseases. Dr. Lorino specifically identified mesothelioma as a disease that the Appellants had an increased risk of developing because, in his opinion, it is not a dose-related disease.

¶ 13. Mississippi Rules of Civil Procedure Rule 56(e) requires that evidence in support of and in opposition to a summary judgment motion must be admissible evidence. In order to be admissible, expert testimony must be based upon sufficient facts or data and be the product of reliable principles and methods. M.R.E. 702. Also, the expert must apply the principles and methods reliably to the facts of the case. Id. In addition to the requirements of Rule 702, the admissibility of expert testimony is governed by the modified Daubert standard adopted by the supreme court in Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31, 35(¶ 5) (Miss.2003). In McLemore, the court stated,

[T]he analytical framework provided by the modified Daubert standard requires the trial court to perform a two-pronged inquiry in determining whether expert testimony is admissible under Rule 702.... First, the court must determine that the expert testimony is relevant— that is, the requirement that the testimony must assist the trier of fact means the evidence must be relevant. Next, the trial court must determine whether the proffered testimony is reliable. Depending on the circumstances of the particular case, many factors may be relevant in determining reliability, and the Daubert analysis is a flexible one. Dau-bert provides an illustrative, but not an exhaustive, list of factors that trial courts may use in assessing the reliability of expert testimony.

Id. at 38(¶ 16) (internal citations and quotations omitted). For purposes of our analysis, we will assume that the trial court found the testimony of Dr. Lorino to be relevant, insofar as it pertained to the connection between non-occupational asbestos exposure and the potential for developing future disease.

¶ 14. We now examine the reliability of Dr. Lorino’s opinion that the Appellants’ non-occupational exposure to asbestos provides a reasonable basis for their fear of contracting future disease. In his testimony, Dr. Lorino stated that all asbestos-related diseases except for mesothelioma were dose-related diseases. Later in his testimony, Dr. Lorino admitted that he did not know how long the Appellants had been exposed to asbestos. If all asbestos-related diseases except mesothelioma are dose-related, and Dr. Lorino was unaware of the duration of the Appellants’ exposure to asbestos, his opinion that the Appellants are at a greater risk for asbestos-related diseases other than mesothelioma is unreliable because it lacks the necessary factual foundation required to reach that conclusion.

¶ 15. Also, on cross-examination, Dr. Lorino was asked the basis for his opinion that mesothelioma was not a dose-related disease. He was unable to cite a single study or publication to support his assertion. Rather, Dr. Lorino repeatedly referred to “the literature” and “studies” in general. Courts are not required to “admit opinion evidence that is connected to existing data only by the ipse dixit of the expert,” because self-proclaimed accuracy by an expert is an insufficient measure of reliability. Id. at 37(¶ 13) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

¶ 16. Dr. Lorino also admitted that he had not met with any of the Appellants, had not reviewed their medical records, nor did he know a single Appellant’s name. Although he knew how long the construction lasted, he did not know how long the Appellants had been exposed to the construction debris. Dr. Lorino also admitted that he could not identify the source of the asbestos. Finally, Dr. Lori-no admitted that he was not familiar with how asbestos testing was done, nor the particulars of how the EMP data was generated. Clearly, Dr. Lorino’s opinion was not based on sufficient facts. We find that Dr. Lorino’s testimony failed the reliability prong of the Daubert/McLemore test as well as the requirements of Mississippi Rules of Evidence Rule 702.

¶ 17. Dr. Arnold Brody testified for the Appellants as an expert in the field of pathology. Although he gave interesting testimony on the effects asbestos has on the human body, he did not testify that the Appellants were likely to develop any asbestos-related diseases in the future, nor did he testify as to the rationality of their fears. In fact, Dr. Brody could not give any testimony relating to the Appellants because he did not know who the Appellants were, nor had he reviewed any materials relating in any way to them. All that he knew was that Appellants’ counsel informed him that they had been exposed to asbestos. Accordingly, his testimony does not raise a question of material fact regarding the Appellants’ claim.

¶ 18. Although we find that the Appellants failed to establish a genuine issue of material fact as to the second element of their claim, we briefly discuss the evidence put forth by Stone that the Appellants had no rational basis for fearing future disease. Below is a summary of the conclusion of the investigation performed by the Mississippi Department of Health, Office of Community Health Services, Division of Epidemiology, Surveillance Branch,

Based on the best available data, it is very unlikely that cancer will result from indoor asbestos exposure, especially where ACM is well maintained.... In recent surveys, the measured asbestos levels in indoor air cast some doubt on whether occupant exposure to asbestos levels are contributed to significantly by ACM even when some of the material is friable or in bad condition.... Based on the test results, all air samples taken after construction are below the Occupational Safety and Health Administration permissible exposure level ... [Gjiven the findings of the investigators and the researched data presented, it is very unlikely that long term health effects will result from this short term problem.

Also, the Agency for Toxic Substances and Disease Registry Record of Activity examined the situation at the Noxubee County schools. The Agency found that the maximum asbestos level detected by EMP was 0.027 fibers/cc. The Agency cited a recent survey which reported asbestos levels in public buildings ranged from zero to 0.2 fibers/cc, and that short-term exposure to low levels of asbestos, which the Agency described as 0.2 fibers/cc or less, has not been shown to cause adverse health effects. Regarding the Noxubee County schools, the Agency concluded, “Adverse health effects other than minor upper respiratory and ocular irritation that may occur from exposure to indoor dust are not anticipated.”

CONCLUSION

¶ 19. Although there may have been a triable issue of fact regarding the Appellants’ alleged exposure to asbestos, we find that no genuine issue of material fact existed as to the evidence required to show a rational basis for the Appellants’ fear of future disease. Accordingly, the trial court’s grant of summary judgment in favor of Stone is affirmed.

¶ 20. THE JUDGMENT OF THE NOXUBEE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . All materials determined to contain more than 1% of ANY type of asbestos are classified as ACM and must be handled in accordance with EPA and OSHA regulations pertaining to renovation and/or removal.

      . Friable asbestos is non-encapsulated and respirable. Non-friable asbestos cannot be crumbled, pulverized, or reduced to powder by hand pressure.

      . Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) set forth a non-exhaustive list of factors to consider in determining the reliability of an expert’s testimony. These factors include (1) whether the theory or technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error; (4) whether there are standards controlling the techniques operation; and (5) whether the theory or technique enjoys general acceptance within a relevant scientific community.


text:
    HOLMAN DEALERSHIPS, INC., a Mississippi Corporation, Appellant Cross-Appellee. v. Vera Helen DAVIS, Paul Davis and Catherine Davis, Appellees Cross-Appellants.
    No. 2005-CA-00101-COA.
    Court of Appeals of Mississippi.
    July 25, 2006.

      Taylor Nicholson Ferrell, Jackson, William W. Busching, attorneys for appellant.
    Thomas Quitman Brame, Jr., attorney for appellees.
    Before KING, C.J., CHANDLER, and BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. Holman Dealerships, Inc., appeals the decision of the Hinds County Circuit Court denying its motion to compel arbitration. On cross-appeal, Vera Davis, Paul Davis, and Catherine Davis appeal the court’s dismissal of Paul and Catherine Davis as parties in this action. Finding that the motion to compel arbitration should have been granted, and that Paul and Catherine Davis are third party beneficiaries, who are entitled to pursue their claim in arbitration, we reverse and remand to the lower court.

FACTS

¶ 2. On October 28, 2003, Vera Davis purchased a 2002 Volkswagen vehicle for her son and daughter-in-law, John and Catherine Davis, from Holman Dealerships, Inc. In connection with the sale, Vera and Holman entered into a binding arbitration agreement. That agreement required the arbitration of “all claims, demands, disputes or controversies of every kind or nature ... arising from, concerning or relating to any of the negotiations involved in the sale, lease, or financing of the vehicle, the terms and provisions of the sale, lease, or financing agreements, the arrangements for financing, ... [and] the performance or condition of the vehicle

¶ 3. On March 25, 2004, Vera, Paul, and Catherine filed a complaint against Holman alleging fraud, fraudulent concealment, breach of good faith and fair dealing, and misrepresentation related to the sale of the vehicle. On May 5, 2004, Holman filed its answer and affirmative defenses to the complaint. Included among the affirmative defenses was a challenge to the standing of Paul and Catherine Davis to bring the action, and a motion to compel mandatory arbitration. On June 28, 2004, the trial court held a hearing on Holman’s motion to compel arbitration and challenge to the standing of Paul and Catherine Davis. By order dated August 25, 2004, the court dismissed Paul and Catherine as plaintiffs, and denied Holman’s motion to compel arbitration. Aggrieved by the trial court’s findings, Holman appeals the denial of its motion to compel arbitration, while Paul and Catherine cross-appeal the court’s decision to dismiss them as plaintiffs.

DISCUSSION

¶ 4. The grant or denial of a motion to compel arbitration is reviewed de novo. Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1169(115) (Miss.2003) (citing East Ford, Inc. v. Taylor, 826 So.2d 709, 713(¶ 9) (Miss.2002)).

¶ 5. There is a liberal federal policy favoring arbitration agreements. Terminix International Inc. v. Rice, 904 So.2d 1051, 1054(11 7) (Miss.2004). Therefore, this Court will respect the right of an individual or an entity in agreeing in advance of a dispute to arbitration or other alternative dispute resolution. Id. Doubts as to the availability of arbitration must be resolved in favor of arbitration. IP Timberlands Operating Co., v. Denmiss Corp., 726 So.2d 96, 107(¶46) (Miss.1998).

¶ 6. Holman claims that the trial court erred in denying the motion to compel because Davis’ claim is a fraudulent inducement defense to the entire agreement with Holman and not a specific challenge to the arbitration clause. In support of its argument, Holman cites the Fifth Circuit holding that a court’s inquiry on a motion to compel arbitration is limited. Primerica Life Ins. Co. v. Brown, 304 F.3d 469, 471 (5th Cir.2002). The merits of the underlying dispute are for the arbitrator to decide, not the court. Id.

¶ 7. On the other hand, the Davises argue that false representation claims should be issues for a jury, not arbitration. The Davises cite to East Ford, Inc. v. Taylor, 826 So.2d 709 (Miss.2002), for this contention. In East Ford, James Taylor, the plaintiff, filed a complaint against the East Ford car dealership alleging common law fraud, breach of contract, and breach of express warranty because East Ford sold Taylor a car represented as new when it was in fact used. Id. at 712(¶ 6). As in this case, East Ford’s sales contract contained an arbitration clause. Id. However, the arbitration clause in East Ford was found to be invalid based upon procedurally unconscionability, i.e., lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, etc. Id. at 714(¶ 12).

¶ 8. In the case sub judice, the Davises have not attacked the validity of the arbitration agreement. Instead, their attack is upon the fraudulent representations made to induce them to contract with Holman, and the failure to receive that for which they bargained and contracted. These things fall squarely within the scope of the arbitration agreement. The controlling portion of that agreement reads:

Buyer/lessee and dealer agree that all claims, demands, disputes or controversies of every kind or nature between them arising from, concerning or relating to any of the negotiations involved in the sale, lease, or financing of the vehicle, the terms and provisions of the sale, lease, or financing agreements, the arrangements for financing, the purchase of insurance, extended warranties, service contracts or other products purchased as an incident to the sale, lease or financing of the vehicle, the performance or condition of the vehicle, or any other aspects .of the vehicle and its sale, lease, or financing shall be settled by binding arbitration....

¶ 9. Because the fraudulent misrepresentation argument goes to the merits of the underlying dispute, the trial court should have ordered the claim to be submitted to arbitration. The court’s decision to deny the motion to compel arbitration was in error.

¶ 10. In their cross-appeal, Paul and Catherine argue that they are necessary parties to the contract and should not have been dismissed from the lawsuit. However, this Court’s determination that arbitration is mandatory makes it unnecessary to directly address the issue of whether Paul and Catherine are necessary parties and should be allowed to continue as named plaintiffs in this court action. The plain language of the arbitration agreement reads, “This agreement is binding upon, and inures to the benefit of buy-erfiessee and dealer and the officers, employees, agents and affiliated entities of each of them ... ”. As third party beneficiaries, Paul and Catherine are affiliated entities of Vera Davis, and are thus bound by the agreement for mandatory arbitration. Arbitration agreements are enforceable as to non-signatories to a contract when the non-signatory party is a third-party beneficiary. See Smith Barney, Inc. v. Henry, 775 So.2d 722, 727(¶ 19) (Miss. 2001). Accordingly, arbitration is mandatory as it relates to the claims of Vera, Paul, and Catherine against Holman. Additionally, because these claims are subject to binding mandatory arbitration, the trial court lacked the authority to address the claims or the claimants.

¶ 11. The judgment of the trial court is reversed, and this matter is remanded for mandatory arbitration of the claims of Vera, Paul, and Catherine against Holman.

¶ 12. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT DENYING MANDATORY ARBITRATION IS REVERSED AND THIS CASE IS REMANDED TO THE TRIAL COURT TO COMPEL ARBITRATION OF THE CLAIMS OF VERA DAVIS, PAUL DAVIS AND CATHERINE DAVIS AGAINST HOLMAN DEALERSHIPS, INC., ON DIRECT APPEAL AND CROSS-APPEAL IS DISMISSED AS MOOT. ALL COSTS OF THIS APPEAL ARE EQUALLY ASSESSED TO THE APPELLANT/CROSS-APPEL-LEE AND APPELLEES/CROSS-AP-PELLANTS.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS,-JJ„ CONCUR.


author: LEE, P.J.,

text:
    Jesse (Jess) PARKER, Jr., Appellant v. Beverly W. PARKER, Appellee.
    No. 2005-CA-00675-COA.
    Court of Appeals of Mississippi.
    July 25, 2006.

      Harold O. Grissom, Gulfport, attorney for appellant.
    Herbert J. Stelly, Gulfport, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Beverly W. Parker and Jesse Parker, Jr. married in 1980 and divorced in 2004. Although two children were born to the marriage, only one of the children was a minor at the time of the divorce. Beverly sought a divorce on the grounds of uncondoned adultery, to which Jesse confessed. The parties agreed to all but two contested issues in a property settlement, child custody and child support agreement, which the chancellor approved and incorporated into the judgment of divorce. The two issues preserved for trial were the apportionment of alimony and the distribution of tax liabilities from 2003.

¶ 2. The chancellor awarded Beverly $1500 per month in periodic alimony, and Jesse filed a motion to reconsider. Although the motion is not included in the record,- the chancellor denied the motion to reconsider, and it is from this denial that Jesse appeals, arguing that the court erred in determining Beverly’s alimony. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 3. This Court’s review of an alimony award is well-settled. “Alimony awards are within the discretion of the chancellor, and his discretion will not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion.” Ethridge v. Ethridge, 648 So.2d 1143, 1145-46 (Miss.1995) (citing Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993)).

I. DID THE CHANCELLOR ERR IN DETERMINING BEVERLY’S ALIMONY?

¶ 4. Jesse argues that the chancellor applied the wrong legal standard in awarding Beverly alimony. As a second assignment of error Jesse also argues that the chancellor’s alimony award was manifestly wrong and clearly erroneous based upon the evidence adduced at trial. We disagree.

¶ 5. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), our supreme court outlined twelve factors that must be considered by a chancellor in arriving at findings and entering a judgment for alimony. These factors are: (1) the income and expenses of the parties; (2) the health and earning capacity of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence and absence of minor children in the home, which may require that- one or both of the parties either pay, or personally provide child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) any fault or misconduct; (11) wasteful dissipation of the assets by either party; (12) any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

¶ 6. The chancellor considered each of these factors in his judgment, finding that Beverly’s need for health insurance, Jesse’s substantially larger income, the parties’ expenses, and the length of the marriage all weighed in favor of an award of alimony. The chancellor further found that, while Jesse’s monthly expenses were approximately $1,742, Beverly’s monthly expenses were in excess of $4,000. From the record before this Court, it is clear that Beverly made $16,000 in 2002, as compared to Jesse’s income which was barely shy of $80,000. Furthermore, while 2003 was a lucrative year for Jesse, as he earned over $100,000, nothing in the record indicates that Beverly’s income exceeded her regular income of $16,000. Beverly’s assets, including retirement, were approximately $119,598, while her liabilities, including the mortgage, totaled $92,741. Jesse’s assets and liabilities totaled $191,232 and $87,590, respectively. After dividing the parties’ assets, Beverly’s net monthly income of $2,684 was not sufficient to meet her expenses, including the additional expense of health insurance.

¶ 7. In support of his argument Jesse points to the following language in the chancellor’s order denying Jesse’s motion to reconsider: “[t]he agreed property division is not relevant to the issue of alimony as none of the property divided is income producing property.” Jesse argues that this excerpt clearly indicates a misapplication of the appropriate legal standard in awarding Beverly alimony. Again, we disagree. As reflected in the chancellor’s judgment and his order denying the motion to reconsider, the chancellor found a disparity in the households despite the division of assets and the payment of child support.

¶ 8. We cannot agree that the chancellor misapplied the appropriate law. We also do not agree that the chancellor erred in finding that Jesse had the ability to earn in excess of $100,00 per year. That finding was supported by Jesse’s tax returns, as well as the financial disclosure submitted to the court by Jesse.

¶ 9. Jesse further argues that the court erred in failing to rule regarding certain tax liability incurred by Jesse in 2003. During trial, Beverly testified that she filed her taxes for 2003 separately because Jesse refused to cooperate with her. Because Beverly filed separately she received a tax refund, whereas Jesse paid additional taxes. In the order denying the motion for rehearing, the chancellor modified the original judgment so that Jesse could claim his daughter as a dependant for tax purposes as long as he paid child support, including any credits for educational expenses. The chancellor considered the effect of the tax liability as evidenced by his awarding Jesse the tax deduction. As noted by the chancellor, “The motion to reconsider addresses a different tax liability for 2003 than reflected in the exhibit. The [c]ourt notes that [Jesse] has significantly less tax liability with the dependancy deduction.”

¶ 10. We are well aware of our supreme court’s recent holding in M.W.F. v. D.D.F., 926 So.2d 897, 898(112) (Miss.2006), in which the supreme court dismissed an appeal because the judgment of divorce did not dispose of all of the claims presented to the trial court and the trial court did not certify the judgment under M.R.C.P. 54(b).

¶ 11. Rule 54(b) provides:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

M.R.C.P. 54(b) (emphasis added).

¶ 12. Without a certification under Rule 54(b), “any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54(b) cmt; see also Owens v. Nasco Int’l., Inc., 744 So.2d 772 at 774(¶ 8) (Miss.1999) (citing Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (Miss.1999)).

¶ 13. Notwithstanding the chancellor’s failure to explicitly state that he was ruling on the tax liability from 2003, we find that the judgment was, indeed, a final judgment in compliance with Rule 54. It is clear from the chancellor’s order that the tax liability discussed in the motion for rehearing (which was not included in the record before this court) was different from the tax liability presented at trial. Furthermore, in ruling on the motion for rehearing, the court accommodated Jesse by allowing him to claim his daughter as a tax deduction. Having reviewed the chancellor’s rulings, we cannot agree with Jesse’s contention. This argument is without merit.

¶ 14. “The amount of alimony awarded is a matter primarily within the discretion of the chancery court because of ‘its peculiar opportunity to sense the equities of the situation before it.’ ” Tilley v. Tilley, 610 So.2d 348, 351 (Miss.1992) (quoting Holleman v. Holleman, 527 So.2d 90, 94 (Miss.1988)). On appeal we are required to affirm a chancellor’s findings of fact that are supported by credible evidence and are not manifestly wrong. Henley v. Jones, 880 So.2d 382, 383-84(¶5) (Miss.Ct.App.2004). Considering the chancellor’s thorough application of the Armstrong factors, as well as our deferential standard of review, we find Jesse’s arguments to be without merit.

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

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