source: Caselaw Access Project

author: COBB, Presiding Justice,

license: Public Domain

text:
    Owens CORNING v. MISSISSIPPI INSURANCE GUARANTY ASSOCIATION.
    No. 2005-CA-01450-SCT.
    Supreme Court of Mississippi.
    Feb. 1, 2007.

      Alan W. Perry, Jackson, Jamila Kamaria Alexander, Mitchell F. Dolin, Brent F. Powell, attorneys for appellant.
    Michael Wayne Baxter, Ridgeland, and Charles G. Copeland, Robert Louis Goza, Andy Lowry, James D. Holland, Jackson, attorneys for appellee.
    Before COBB, P.J., DIAZ and RANDOLPH, JJ.
   COBB, Presiding Justice,

for the Court.

¶ 1. This appeal comes from the Madison County Circuit Court’s grant of the motion for summary judgment filed by the Mississippi Insurance Guaranty Association (MIGA). Aggrieved by that decision, Owens Corning, Inc. (Owens Corning) argues that the trial court erred in finding it could not assert the underlying tort claimants’ residency in order to satisfy the residency requirement of Miss.Code Ann. § 83-23-109(f). We conclude this argument is without merit and we affirm the judgment of the trial court.

FACTS

¶2. Owens Corning is a publicly held Delaware corporation with its principal place of business in Ohio. Between 1953 and 1973 Owens Corning manufactured, sold and installed insulation which contained asbestos. This insulation later became the source of tens of thousands of product liability tort claims. By 1999 Owens Corning had incurred roughly $4.5 billion in total liabilities and defense costs for these claims, including $135 million attributable to claims brought by Mississippi residents.

¶ 3. Between September 1979 and September 1982, Owens Corning purchased three insurance policies from Southern American Insurance Company (Southern) with a combined face limit of $17 million. Southern was licensed to transact insurance business in Mississippi, making it a member of MIGA. Southern was declared insolvent and placed in liquidation by a court in Utah where it was then headquartered.

¶ 4. In an effort to recoup the losses it suffered due to the asbestos litigation, Owens Corning first sought coverage from the Ohio Insurance Guaranty Association [OIGA]. OIGA denied Owens Coming’s claim because Southern was not licensed in Ohio. Owens Corning then turned to MIGA to collect on its insurance policy with Southern. On September 3, 1999, Owens Corning filed the present action for declaratory relief and damages in the Madison County Circuit Court. After a variety of procedural maneuvers, MIGA filed its motion for summary judgment based on Owens Coming’s lack of residency. The trial court, after considering the motions, granted summary judgment for MIGA, finding that Owens Corning could not rely on the underlying tort claimants’ residency for the purposes of Miss.Code Ann. § 83 — 23—109(f). Owens Corning subsequently perfected this appeal.

ANALYSIS .

¶5. MIGA asserts that it is a state agency and its interpretation of the Insurance Guaranty Act is entitled to substantial deference. That argument is without merit. It is true that this Court accords great deference to an administrative agency’s construction of its own rules and regulations and the statutes under which it operates, and we will not substitute our judgment for the agency’s unless the latter’s interpretation is arbitrary or unreasonable. Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1202 (Miss.2003). However, MIGA is not a state agency, and therefore its interpretation of the Insurance Guaranty Act is not entitled to deference. MIGA is a nonprofit, unincorporated legal entity of which all insurers with the authority to transact insurance in this State are made members. Miss. Ins. Guar. Ass’n v. Gandy, 289 So.2d 677 (Miss.1973); see also Miss.Code Ann. § 83-23-111. MIGA is not an entity akin to the Mississippi Division of Medicaid or any other administrative agency.

¶ 6. That being the case, the standard of review applied to the lower court’s grant or denial of summary judgment is de novo. Miss. Ins. Guar. Ass’n v. Byars 614 So.2d 959, 963 (Miss.1993). This entails reviewing all the evidentiary matters in the record: affidavits, depositions, admissions, interrogatories, etc. The evidence must be viewed in the light most favorable to the nonmoving party. Id. (citing Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986)). A motion for summary judgment lies only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. This Court does not try issues on summary judgment motions, but only determines whether there are issues to be tried. Byars, 614 So.2d at 963.

¶ 7. Owens Corning admits that it is not a resident of the State of Mississippi for the purposes of the Insurance Guaranty Act. However, Owens Corning argues that this Court’s recent decision in Byars would allow it to use the Mississippi residency of the underlying tort claimants in order to meet the statute’s definition of covered claims. Before addressing the merits of this central question of this case, it is important to lay the predicate for this Court’s canons of construction as applied to the Insurance Guaranty Act. Our traditional analysis requires that a statute receive such construction as will, if possible, make all its parts harmonize with each other, and render them consistent with its scope and object. Miss. Ins. Guar. Ass’n v. Gandy, 289 So.2d 677, 680 (Miss.1973). In determining the proper construction of a statute, the entire legislation on the subject matter, its policy, reason, as well as the text, must be considered. Id.

¶ 8. This Court has found that the sole purpose of the Insurance Guaranty Act is to protect the insured from insolvent insurance companies and to require the financially healthy insurance companies to involuntarily contribute to protect the public. Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 135 (Miss.1989); see also Gandy, 289 So.2d at 681. For that purpose the Insurance Guaranty Act requires that courts interpret the act liberally. See Miss.Code Ann. § 83-23-107. However, membership in MIGA is involuntary and therefore the Legislature has placed limitations on MIGA’s liabilities. Bobby Kitchens, 560 So.2d at 135. MIGA is prohibited, by statute, from paying anything other than a “covered claim,” and the statute further requires that all other sources of insurance be exhausted before looking to MIGA for coverage. Byars, 614 So.2d at 963.

¶ 9. The central question in this case, just as in Byars, is whether Owens Coming’s claim is a covered claim under Miss.Code Ann. § 83-23-109(f), which says in its entirety:

(f) “Covered claim” means an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this article applies issued by an insurer, if such insurer becomes an insolvent insurer and (1) the claimant or insured is a resident of this state at the time of the insured event, provided that for entities other than an individual, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event; or (2) the property from which the claim arises is permanently located in this state. “Covered claim” shall not include any amount awarded as punitive or exemplary damages; or sought as a return of premium under any retrospective rating plan; or due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise and shall preclude recovery thereof from the insured of any insolvent carrier to the extent of the policy limits.

The facts in Byars are instructive to its holding and a brief recitation is necessary here. Russell Byars, a Mississippi resident, received near fatal injuries as a result of a motorcycle accident where the helmet he was wearing shattered on impact. Byars, 614 So.2d at 960-61. As a result of injuries to the frontal lobe of his brain, Byars was diagnosed as 100% disabled and dismissed from the Navy. Id. at 961. A guardianship was opened for Byars and suit was filed against the manufacturer and retailer of the helmet. Id. The retailer was a Michigan-based hardware store which maintained an insurance policy with a then-insolvent carrier. Id. After unsuccessfully pursuing his claim against the insurance guaranty associations of Michigan and Virginia, Byars sought recovery from MIGA. Id.

¶ 10. Byars settled with the retailer in an agreement where the retailer agreed to pay a sum of money and assigned its right against MIGA in return for a promise from Byars not to pursue further action against it. Id. MIGA denied Byars’ claim and legal action ensued. Id. In deciding that case this Court held that:

[T]he above statute [present day § 83-23 — 109(f) ] requires that the insured ... OR the claimant ... be a resident of Mississippi in order to fall under MIGA’s umbrella. Both parties stipulated as to Byars’s Mississippi residency. Therefore, a literal reading of § 83-23-109(c) [present day section 83-23-109(f) ] clearly affords the claimant Byars coverage.

Id. at 964 (emphasis in original). Owens Corning argues that the above-quoted language gives it the right to use the underlying tort claimants’ residency to force MIGA to take action. Although this Court has never addressed this particular issue, two foreign jurisdictions have done so, and found it gives no such right.

¶ 11. The Supreme Court of Massachusetts in Clark Equip. Co. v. Mass. Insurers Insolvency Fund, 423 Mass. 165, 666 N.E.2d 1304 (Mass.1996) and the Third Circuit Court of Appeals in T & N v. Penn. Ins. Guar. Ass’n, 44 F.3d 174 (3d Cir.1994) have dealt with strikingly similar situations. While admittedly the residency requirements of the three insurance guaranty acts contain marginally different language, they are all still based on the Post-Assessment Insurance Guaranty Association Model Bill, and thus they have similar origins. Clark Equip., 666 N.E.2d at 1308. Therefore, these courts’ interpretations are instructive in interpreting our statute.

¶ 12. In both cases, the party asserting a claim against the guaranty association admitted its lack of residency but attempted to gain recognition by using the residency of the underlying tort claimants. Id. at 1306; T & N, 44 F.3d at 176. Both courts found the operative term under them statute was “claim.” Clark Equip., 666 N.E.2d at 1307; T & N, 44 F.3d at 180. Their insurance guaranty associations, just like MIGA, are only authorized to pay “covered claims;” therefore, the relevant party is the one actually bringing the claim. To adopt Owens Coming’s analysis, which emphasizes the “or” in our decision in Byars, would make the terms “insured” and “claimant” mutually exclusive, which these other courts refused to do. See Clark Equip., 666 N.E.2d at 1306.

¶ 13. The underlying tort claimants are not currently asserting claims. Therefore, they are not “claimants” within the meaning of § 83 — 23—109(f). Owens Corning is asserting a claim and therefore is the statutory “claimant” and “insured” but is not a resident. Thus, the residency requirement is not satisfied and Owens Coming’s claim is not a “covered claim.” This is implicit in our holding in Byars, where the out-of-state retailer was not asserting a claim against MIGA, but rather had assigned its right to assert a claim to Byars, who was a Mississippi resident. Therefore, in that case, Byars was both the insured and the claimant and the retailer was not a party to the action. For the purposes of determining if the claim was a “covered claim,” Byars’ residency became the only one considered because he was the only one raising a claim. Since Byars was a Mississippi resident, he satisfied the residency requirement.

¶ 14. Owens Coming’s argument is not consistent with the stated purpose of the Insurance Guaranty Act. The purpose of the act is to protect Mississippi residents.

CONCLUSION

¶ 15. The trial court correctly granted MIGA’s motion for summary judgment, and therefore we affirm.

¶ 16. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: DICKINSON, Justice,

text:
    CALDWELL FREIGHT LINES, INC. v. LUMBERMENS MUTUAL CASUALTY COMPANY, INC.
    No. 2006-CA-00088-SCT.
    Supreme Court of Mississippi.
    Feb. 1, 2007.

      Donna Powe Green, Hattiesburg, attorney for appellant.
    Dorrance D. Aultman, Jr., Hattiesburg, attorney for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. Jared M. Harvey filed suit against Caldwell Freight Lines (“Caldwell”) to recover damages he claims resulted from an accident involving one of Caldwell’s trucks. Caldwell’s primary liability insurer, Legion Insurance Company (“Legion”), became insolvent, causing Caldwell to turn to its Commercial Catastrophe Liability Policy (“Catastrophe Policy”) written by Lumber-mens Mutual Casualty Company (“LMCC”) to fill the gap in coverage caused by Legion’s insolvency. The question presented is whether LMCC’s policy covers a gap in coverage resulting from a primary insurer’s insolvency.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On July 8, 2000, Harvey was involved in an automobile accident with William S. Campbell, who was driving a Freightliner truck owned by Caldwell. Harvey filed a complaint against various defendants to recover damages and expenses he incurred as a result of the accident. Caldwell was insured by Legion through a commercial general liability policy with limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. In addition to its commercial general liability policy with Legion, Caldwell was covered by a Catastrophe Policy issued by LMCC.

¶ 3. When the North Carolina Department of Insurance placed Legion into insolvency, the North Carolina Insurance Guaranty Association (“NCIGA”) became obligated to pay up to $300,000 on behalf of Caldwell, should Caldwell be found liable to Harvey.

¶ 4. During the course of the original action, Harvey entered into a settlement agreement with several defendants whereby NCIGA paid $300,000 and Caldwell paid $200,000. Apparently believing that Harvey’s damages totaled $1,200,000, LMCC agreed to pay the $200,000 in damages which exceeded the $1,000,000 Legion policy limit. Arguing that LMCC’s policy provided coverage for losses exceeding the $300,000 paid by NCIGA, Caldwell demanded LMCC reimburse it for the $200,000 it paid to Harvey.

¶ 5. This demand for “gap” coverage was the subject of a Third-Party Complaint filed by Caldwell against Kemper Casualty Insurance Company and its subsidiary, LMCC. Caldwell alleged the Catastrophe Policy required LMCC to provide primary coverage under certain circumstances, including the primary insurer’s insolvency. Caldwell also claimed LMCC had a duty to defend it in the litigation filed by Harvey.

¶ 6. LMCC filed a motion for summary judgment alleging the Catastrophe Policy covered only the damages exceeding the primary insurer’s policy limits, and therefore, LMCC could not be liable for the gap in coverage caused by Legion’s insolvency. Caldwell filed its own motion for summary judgment arguing the Catastrophe Policy required LMCC to “drop down” and fill the gap caused by Legion’s insolvency.

¶ 7. The trial court granted LMCC’s motion for summary judgment and denied Caldwell’s. Final judgment was rendered in favor of LMCC on January 3, 2006. In his order, Judge Eubanks, applying North Carolina law, found that the language of the Catastrophe Policy at issue unambiguously precluded “drop down” coverage to Caldwell, so LMCC could not be required to reimburse Caldwell for the $200,000 paid in settlement to Harvey.

¶ 8. Caldwell claims as its only issue on appeal that the circuit court erred in finding that LMCC’s policy did not require “drop down” coverage. Thus, Caldwell argues, the trial court erred in granting LMCC’s motion for summary judgment and denying Caldwell’s.

DISCUSSION

I.

¶ 9. The standard which guides us in reviewing a summary judgment is settled and clear. “This Court applies a de novo standard of review to the trial court’s grant of summary judgment.” Moss v. Batesville Casket Co., 935 So.2d 393, 398 (Miss.2006). Our rules of civil procedure require the trial court to grant summary judgment where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c).

¶ 10. The movant bears the burden of demonstrating that no genuine issues of material fact exist for presentation to the trier of fact. This is a difficult burden, given that the non-moving party must be given the benefit of every reasonable doubt. Moss, 935 So.2d at 398. “ ‘Issues of fact ... are present where one party swears to one version of the matter in issue and another says the opposite.’ ” Id. (quoting Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)).

¶ 11. In the instant case, both parties agree that no genuine issues of material fact exist and, therefore, the coverage dispute should be decided as a matter of law. Also, this Court has held that “[t]he interpretation of insurance policy language is a question of law.” Lewis v. Allstate Ins. Co., 730 So.2d 65, 68 (Miss.1998). Therefore, because there are no genuine issues of material fact, we now proceed to determine whether the trial court erred in granting LMCC’s Motion for Summary Judgment and denying Caldwell’s Cross-Motion for Summary Judgment.

II.

¶ 12. The issues to be resolved in addressing the question presented are (1) whether the LMCC Catastrophe Policy provides “drop down” coverage; (2) whether Caldwell’s reasonable expectation entitles it to coverage; and (3) whether LMCC owed a duty to defend Caldwell. In deciding these issues, we apply North Carolina law which, as applied to this case, is not materially different from our own.

1. Whether the LMCC Catastrophe Policy provides “drop down” coverage to Caldwell to fill the gap in coverage caused by Legion’s insolvency.

¶ 13. In characterizing the relative positions of the parties, the trial court aptly stated, “we are asked to declare the winner in a game of grammatical tug-of-war between an excess insurer and an insured over whether an excess insurance policy ‘drops down’ in place of a policy issued by a now-insolvent primary insurer.” Caldwell argues that the Catastrophe Policy is ambiguous and should be construed against the drafter and in favor of the insured. LMCC argues that the Catastrophe Policy unambiguously precludes “drop down” coverage.

¶ 14. Under North Carolina law, when policy language is unambiguous, there is a “ ‘duty to construe and enforce insurance policies as written, without rewriting the contract or disregarding the express language used.’ ” Eatman Leasing, Inc. v. Empire Fire & Marine Ins. Co., 145 N.C.App. 278, 281, 550 S.E.2d 271, 273 (2001) (quoting Fidelity Bankers Life Ins. Co. v. Dortch, 318 N.C. 378, 380, 348 S.E.2d 794, 796 (1986)). However, judicial construction is necessary “ ‘[w]here the language used in the policy is ambiguous and reasonably susceptible to more than one interpretation.’ ” Eatman Leasing, 550 S.E.2d at 273 (quoting Allstate Ins. Co. v. Runyon Chatterton, 135 N.C.App. 92, 94, 518 S.E.2d 814, 816 (1999)). Any ambiguity in an insurance policy as to whether certain provisions impose liability should be resolved in favor of the insured. Williams v. Nationwide Mut. Ins. Co., 269 N.C. 235, 238, 152 S.E.2d 102, 105 (1967). Furthermore, “exclusions from liability are not favored, and are to be strictly construed against the insurer.” Eatman, 145 N.C.App. at 281, 550 S.E.2d at 273. We will discuss and analyze the disputed provisions separately.

A. Whether the term “sums actually payable” refers to the policy limit of $1,000,000 under Legion’s policy.

¶ 15. The parties dispute whether the term “sums actually payable” refers to the limit of $1,000,000 under Legion’s policy or to the actual amount Legion was able to pay, which was zero due to insolvency. The provision states:

[LMCC] will pay only the amount in excess of the sums actually payable under the terms of the ‘underlying insurance.’ No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments. In the event the duty of the underlying insurer to defend the insured against a ‘suit’ ceases solely.because the applicable limit of insurance is used up in the payment of judgments, then we shall assume the duty for such defense.

(Emphasis added).

¶ 16. Caldwell argues that the term “sums actually payable” is ambiguous and should be liberally construed in its favor. On the other hand, LMCC argues that the phrase “sums actually payable” should be read in the context of the entire policy, and when doing so, the phrase unambiguously provides coverage only in excess of the primary insurer’s coverage. The trial court agreed with LMCC, stating, “it follows that in reading the entire policy the Court finds that the meaning of [the term ‘sums actually payable’] is clearly qualified at Section V, part 9, ‘Underlying Insurance’ to preclude any form of ‘drop down’ coverage from the insurance policy issued by [LMCC].” Section V, part 9 of the policy, dealing with “Commercial Catastrophe Liability Conditions” and “Underlying Insurance” states that “[i]n the event of bankruptcy, insolvency or financial impairment of the insurance company that issued the ‘underlying insurance,’ [LMCC] shall be liable under Coverage A only to the extent we would otherwise have been liable.” (Emphasis added).

¶ 17. In construing the terms of an insurance policy, the North Carolina Supreme Court has stated “[w]here the immediate context in which words are used is not clearly indicative of the meaning intended, resort may be had to other portions of the policy and all clauses of it are to be construed, if possible, so as to bring them into harmony.” Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 355, 172 S.E.2d 518, 522 (1970). Furthermore, “[e]ach word is deemed to have been put into the policy for a purpose and will be given effect, if that can be done by any reasonable construction in accordance with the foregoing principles.” Id.

¶ 18. The North Carolina Court of Appeals has addressed similar disputes regarding whether an excess insurer had an obligation to provide “drop down” coverage when the primary insurer became insolvent. In Newton v. U.S. Fire Ins. Co., 98 N.C.App. 619, 623, 391 S.E.2d 837, 838-39 (1990), the North Carolina Court of Appeals examined a trial court’s finding that an excess insurer’s umbrella policy “dropped down” to primary coverage. Caldwell contends that Newton is not applicable because it is factually distinguishable and did not attempt to define the term “sums actually payable.” However, we have found no case that deals with the term “sums actually payable,” and therefore, we rely on cases which analyze the use of similar terms in determining whether an excess insurer is required to “drop down” when the primary insurer becomes insolvent.

¶ 19. Although the facts of Newton differ slightly, the North Carolina court’s analysis is clearly applicable to this case. There, the court found that the excess insurer was not obligated to cover any claim unless the claim was greater than the $500,000 policy limit of the primary insurer, regardless of whether or not that $500,000 was “collectible.” Id. at 840. Although there was no gap in coverage, the Newton court noted “the possibility of a ‘gap’ in coverage that may occur when a primary carrier becomes insolvent since the statutory cap on NCIGA’s liability here is $300,000.” Id. at 839. Accordingly, the court found that U.S. Fire was entitled to summary judgment. Id. at 840.

¶ 20. Four years later, the North Carolina Court of Appeals faced a similar situation in North Carolina Ins. Guar. Ass’n v. Century Indem. Co., 115 N.C.App. 175, 444 S.E.2d 464 (1994). A dispute arose between NCIGA and Century Indemnity Co. (“Century”) as to whether Century’s commercial umbrella policy was required to “drop down” and become the primary liability insurance as a result of the primary insurer’s insolvency. Id. at 467. NCIGA argued that the phrase “amount recoverable” meant “that amount actually recoverable and collectible from the primary insurer.... Because [the primary insurer was] now insolvent, no amount [was] recoverable from the primary insurer.” Id. at 469. Therefore, NCIGA argued, Century was required to “drop down” and provide primary coverage. Id.

¶21. The court reasoned that the “amount recoverable” phrase, read in connection with the “loss payable” condition, made it clear that “a loss arising from an occurrence is not payable by ... Century unless the limit of the underlying insurance is exhausted by payment, coming either from the insured or from the insured’s underlying carrier.” Id. at 470. In addition to finding the language of the policy unambiguously to preclude “drop down” coverage, the court stated that “the fundamental purpose of excess insurance is to protect the insured against excess liability claims, not to insure against the underlying insurer’s insolvency.” Id.

¶22. Though there are some differences in the language of the various insurance contracts in Newton and Century, this Court finds the reasoning in both cases applicable to this case. We find that the disputed term “sums actually payable” is unambiguous, particularly when read in connection with the “Underlying Insurance” provision. Furthermore, North Carolina law provides that where words are not clear in their immediate context, other clauses may be used to bring the policy into harmony. Wachovia Bank, 172 S.E.2d at 522.

¶ 23. An equally convincing argument is found in looking at the entire phrase in the contract provision of the Catastrophe Policy, where LMCC contracted to pay only the amount in excess of the “sums actually payable tonder the terms ” of the Legion policy. (Emphasis added). There is only one amount “payable under the terms” of the Legion policy, and that is the policy limit of $1,000,000. LMCC points out that “Caldwell improperly divorces the phrase ‘sums actually payable’ from the remainder of the sentence.” LMCC correctly notes that the sentence, taken as a whole, “refers to what amount is covered pursuant to the Legion policy, not what Legion is capable of paying.” Caldwell, on the other hand, argues that LMCC should pay the amount in excess of what was actually paid, rather than the amount payable under the terms of the policy. This interpretation would require rewriting the terms of the insurance contract.

¶24. Furthermore, the clause in Section V, part 9 of the policy clearly defines LMCC’s obligation should the underlying insurer become insolvent. It provides that, in the event of insolvency, LMCC will be liable “only to the extent we would otherwise have been liable.” Taken together, the policy terms evidence that the Catastrophe Policy was not required to “drop down” and provide primary coverage due to Legion’s insolvency. Therefore, we conclude that the Catastrophe Policy, by its plain language, covered only losses in excess of $1,000,000.

B. Whether LMCC’s failure to use a “loss payable” clause causes the Catastrophe Policy to “drop down” and fill the gap caused by Legion’s insolvency.

¶ 25. Caldwell alleges that LMCC’s failure to use a “loss payable” clause, such as the one used in Century, evidences that LMCC’s coverage should “drop down” and fill the gap caused by Legion’s insolvency. Other than its position that the “Underlying Insurance” provision adequately conveys that the Catastrophe Policy precludes “drop down” coverage, LMCC did not specifically respond to this argument. Caldwell claims that, pursuant to North Carolina Rule of Appellate Procedure 28(a), LMCC’s failure to respond requires that this Court accept its position.

¶ 26. We first point out that Rule 28(a) is a procedural rule which has no application in this case. When we are required to apply the law of another state, we apply its substantive law, but we continue to rely on our own procedural rules. Zurich Am. Ins. Co. v. Goodwin, 920 So.2d 427, 433 (Miss.2006).

¶ 27. LMCC clearly argues that the contract, read as a whole (including its “Underlying Insurance” provision), is dis-positive of Caldwell’s claim. Additionally, Caldwell cites no authority which mandates that a “loss payable” clause must be included in an excess insurer’s policy in order to preclude “drop down” coverage. Furthermore, the “Underlying Insurance” provision in the Catastrophe Policy adequately addresses LMCC’s obligations in the event the underlying insurer becomes insolvent. The provision states that “[i]n the event of bankruptcy, insolvency or financial impairment of the insurance company that issued the ‘underlying insurance,’ [LMCC] shall be liable under Coverage A only to the extent we would otherwise have been liable.” While Caldwell argues that the phrase, “to the extent we would otherwise have been liable,” is ambiguous, we disagree, and find Caldwell’s argument to be without merit.

¶ 28. Under Coverage A, LMCC is liable for the “amount in excess of the sums actually payable under the terms of the ‘underlying insurance.’ ” As determined previously in Part 1A, supra, that amount is the $1,000,000 policy limit, which is clearly provided under the terms of the policy. Therefore, the “Underlying Insurance” provision clearly and unambiguously provides that, in the event of insolvency of the underlying insurer, LMCC is liable only for losses exceeding $1,000,000.

¶ 29. In this case, LMCC paid $200,000, which was the portion of the loss that exceeded $1,000,000. Therefore, this Court finds that LMCC paid the amount it contracted to pay and, consequently, is not liable for any gap in coverage caused by Legion’s insolvency. For these reasons, we find that not only does the lack of a “loss payable” clause not evidence that the Catastrophe Policy must “drop down,” but the “Underlying Insurance” provision clearly precludes such drop down coverage under the terms of the policy.

C. Whether the “Other Insurance” clause is applicable to the NCIGA coverage.

¶ 30. The LMCC Catastrophe Policy includes an “Other Insurance” provision which states:

If other valid and collectible insurance is available to the insured for loss covered hereunder, this Coverage Part will be excess of such other insurance. This condition does not apply to insurance purchased specifically to be either quota share with this insurance or excess of this insurance.

Caldwell creatively argues that the NCI-GA policy qualified as “other insurance,” and therefore, the Catastrophe Policy “will be excess of such other insurance.” Thus, Caldwell argues LMCC should reimburse it for the $200,000 it paid in settlement to Harvey.

¶ 31. Conversely, LMCC argues that it would be preposterous to interpret its “Other Insurance” clause as providing “drop down” coverage. LMCC points out that nearly all excess liability policies contain such a clause, which does not void or abrogate the effect of the policy’s other provisions.

¶ 32. Interpreting the “Other Insurance” clause as implying a duty to provide “drop down” coverage would not only contradict the specific policy provisions, but it would also contradict North Carolina law, which states that “drop down” coverage will not be found unless the policy expressly provides for such coverage. Century, 444 S.E.2d at 470. Furthermore, the Century court noted that “excess insurance is to protect the insured against excess liability claims, not to insure against the underlying insurer’s insolvency.” Id.

¶ 33. For the reasons stated, this Court finds that the “Other Insurance” provision does not imply that LMCC is liable for all amounts which exceed the amount paid by NCIGA. The LMCC policy does not expressly provide for “drop down” coverage, but merely states that the Catastrophe Policy is to be in excess of any other insurance available to the insured.

D. Whether Coverage B causes the Catastrophe Policy to “drop down, by contemplating primary protection in certain circumstances.

¶ 34. Caldwell argues, without citation of any authority for the proposition, that the Catastrophe Policy “is more like an umbrella policy, which can certainly ‘drop down’ ” because it contemplates excess protection in Coverage A and primary protection in Coverage B. We find this argument unpersuasive for two reasons.

¶ 35. First, Coverage B of the Catastrophe Policy applies when underlying insurance does not apply, that is, where “there is no other insurance in any way applicable.” Further, according to the policy, the “retained limit” means the greater of:

a. The amount stated in the Declarations as Retained Limit; or
b. The amount payable as damages under any other valid and collectible insurance purchased specifically in excess of this insurance.

Thus, the provisions of Coverage B are clear and unambiguous. We find that Coverage B provides that where neither the terms and conditions of the Catastrophe Policy or any other policy apply, then Coverage B of the Catastrophe Policy may apply. There is no dispute that Legion was the primary insurer and its policy covered the instant loss. Therefore, Coverage B is neither applicable nor does it require LMCC to “drop down” and provide primary coverage due to Legion’s insolvency. Thus, whether the Catastrophe Policy is characterized as an excess policy or an umbrella policy, its interpretation is controlled by contract law, and the result remains the same.

¶ 36. Second, as noted previously, the policies in Newton and Century were both umbrella policies, and in each case, North Carolina law provided that the policies did not “drop down.” Therefore, for both of these reasons, this argument has no merit.

2. Whether Caldwell’s expectation that the LMCC Catastrophe Policy would fill any gaps in coverage entitles it to obtain “drop down” coverage.

¶ 37. Caldwell argues that it “had a reasonable expectation when it obtained approximately $20,000,000 of insurance coverage that there would be no gaps in that coverage and that any policy such as [LMCC] would drop down to fill in any gaps.” Caldwell correctly states that when an insurance policy is ambiguous, the law requires the intention of the parties to be determined based on what a reasonable person placed in the insured’s position would have understood the terms to mean. Therefore, Caldwell argues, because it understood the policy to provide “drop down” coverage, thé policy should be interpreted based on what it (the insured) understood the terms of the policy to mean.

¶ 38. However, the critical requirement to trigger the “reasonable person expectations” argument is ambiguity. Where the contract language is clear, North Carolina law follows the majority of jurisdictions (including Mississippi) in applying the objective theory of contracts. See Higgins v. Higgins, 321 N.C. 482, 486, 364 S.E.2d 426, 429 (1988). Thus, North Carolina courts enforce the terms of a contract pursuant to objective evidence, such as the language of the contract, rather than the subjective thoughts and expectations of the parties, which are irrelevant, absent an ambiguous term capable of more than one reasonable interpretation. Caldwell’s subjective expectations and beliefs concerning “drop down” coverage are irrelevant in the face of the clear contract language which contradicts those expectations.

¶ 39. As stated previously, the terms of the Catastrophe Policy unambiguously preclude “drop down” coverage. The mere fact that Caldwell argues that the terms of the policy preclude “drop down” coverage does not cause the policy to be ambiguous causing it to be interpreted in its favor. See Wachovia Bank, 172 S.E.2d at 522 (“[AJmbiguity in the terms of an insurance policy is not established by the mere fact that the plaintiff makes a claim based upon a construction of its language which the company asserts is not its meaning.”).

¶ 40. Furthermore, Caldwell argues that the $131,000 premium it paid to LMCC in exchange for the excess policy was a high premium, unlike the low premiums typically charged by excess insurers. Therefore, Caldwell argues, because it paid such a high premium in exchange for coverage, it is now entitled to receive “drop down” coverage. In support of this argument, Caldwell points to the Affidavit of Caldwell’s President, Dave Brenner, who attested that LMCC did not set its premium until it was apprised of the identity of the underlying insurer. Caldwell argues that in doing so, LMCC was determining the risk to which it would be exposed.

¶ 41. LMCC explains that setting a premium, in part, based on the identity of the underlying insurer does not indicate LMCC intended its policy to “drop down” and cover any gaps caused by the underlying insurer’s insolvency. LMCC points out that there are “[n]umerous reasons for wanting to know the identity of the underlying insurer. Most significantly, Coverage B of the LMCC Policy applies when ‘underlying insurance’ does not apply.” Therefore, LMCC argues, it had a vested interest in knowing the identity of the underlying insurer because inapplicable underlying insurance would increase LMCC’s risk under Coverage B.

¶ 42. Caldwell also argues that because it paid a high premium, LMCC assumed the risk of insolvency of the primary insurer. The premium charged in LMCC’s policy was $131,000 for $2,000,000 of excess coverage. Although this premium may, at first blush, appear high, we note that the policy covered a fleet of trucks for a trucking company. On the other hand, Caldwell paid a premium of $708,525 for the primary policy with limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. Both the Legion policy and the LMCC Catastrophe Policy had an effective period from January 1, 2000 to July 1, 2001. Therefore, in accordance with the foregoing reasoning, we find these arguments have no merit.

3. Whether LMCC owes a duty to defend Caldwell.

¶ 43. Caldwell alleges that LMCC has a duty to defend it in the litigation because in “dropping down,” LMCC “assumes the primary insurer’s obligations, including defense.” LMCC points out that NCIGA paid for Caldwell’s defense, and “there is no evidence that Caldwell has incurred any defense costs that have not been paid by insurance or NCIGA.” Therefore, LMCC argues, Caldwell’s argument is moot because there is no controversy regarding the payment of defense costs. Furthermore, LMCC argues that in the event defense costs are an issue, LMCC has no duty to defend under the terms of the Catastrophe Policy.

¶ 44. Looking to the language of the policy, Section I, Coverage A of the Catastrophe Policy clearly states that “[i]n the event the duty of the underlying insurer to defend the insured against a ‘suit’ ceases solely because the applicable limit of insurance is used up in the payment of judgments, then we shall assume the duty for such defense.” (Emphasis added). This language is unambiguous, and the North Carolina Supreme Court has stated that absent ambiguity, “the court must enforce the contract as the parties have made it and may not, under the guise of interpreting an ambiguous provision, remake the contract and impose liability upon the company which it did not assume and for which the policyholder did not pay.” Wachovia Bank, 172 S.E.2d at 522.

¶ 45. The language in the Catastrophe Policy clearly states that LMCC has a duty to defend only when the applicable limit of insurance is used up in the payment of judgments, which did not happen here. The policy does not provide that LMCC will defend if the underlying insurer becomes insolvent, but instead specifically provides that LMCC will only assume the duty to defend when the applicable limit of insurance is “used up” in the payment of judgments.

¶ 46. We find that LMCC’s duty to defend Caldwell was not triggered according to the plain and unambiguous language of the Catastrophe Policy. Furthermore, as pointed out by LMCC, the lawsuit has concluded, and there is no evidence in the record that Caldwell has incurred any defense costs that have not been paid. In addition, a finding that LMCC has a duty to defend Caldwell assumes that the Catastrophe Policy “drops down” to provide primary coverage in Legion’s place. Having already determined that the Catastrophe Policy does not “drop down,” it reasonably follows that LMCC does not owe Caldwell a duty to defend.

CONCLUSION

¶ 47. While it is unfortunate that Legion is insolvent and unable to cover Caldwell’s loss as a result of the settlement with Harvey, this does not justify holding LMCC liable for an obligation it never contracted to assume. For the reasons stated herein, we affirm the Pearl River County Circuit Court’s grant of summary judgment in favor of LMCC and its denial of Caldwell’s cross-motion for summary judgment.

¶ 48. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The defendants named in the complaint are Campbell, Caldwell, and Legion.

      . Kemper Casualty Insurance Company was dismissed without prejudice on August 25, 2005, per an Agreed Order of Dismissal.

      . See discussion infra regarding the conflict of laws issue.

      . The parties agree that North Carolina law applies; therefore, we find it unnecessary to address this choice of law issue further.

      . Although the parties cite authority from numerous other jurisdictions, we find the North Carolina cases to be dispositive of the issues in this case.

      . The U.S. Fire policy provided that the company would pay on behalf of the insured the ultimate net loss in excess of the retained limit, with the ''retained, limit” defined as the “total of the applicable limits of the underlying policies listed in the schedule and the applicable limits of any other insurance collectible by the insured.” Newton, 391 S.E.2d at 839 (emphasis added).

      . In Newton, the court was faced with determining the meaning of the word “collectible” as used in the definition of "retained limit.” 391 S.E.2d at 839. Furthermore, there was no gap in coverage because NCIGA's liability, per statute, was $300,000 and the injured plaintiffs claims amounted to $185,000. Id.

      . Century's policy provided that it would be
      liable for the ultimate net loss the excess of either
      (a) the amount recoverable under the underlying insurances as set out in Item 7 of the Declarations, or
      (b) the amount of the retained limit state in Item 4 of the Declarations in respect of each occurrence not covered by said underlying insurances....
      In the event of reduction or exhaustion of the aggregate limits of liability under said underlying insurances by reason of payment of claims in respect of occurrences occurring during the period of this policy, this policy, subject to all the terms, conditions and definitions hereof, shall
      (1) in the event of reduction pay the excess of the reduced underlying limit;
      (2) in the event of exhaustion continue in force as underlying insurance.

        Century, 444 S.E.2d at 468 (emphasis added).

      . Centuiy’s policy included a "loss payable” clause which provided that "[[liability under this policy ... shall not attach unless and until the Insured ... shall have paid the amount of the underlying limits on account of such occurrence.” Id. at 469.

      . See the “loss payable” clause language, supra, footnote 7.

      . Caldwell writes in its brief that "[w]ithout NCIGA, Caldwell would apparently have to foot the bill for its own defense....” This indicates that NCIGA defended Caldwell, and Caldwell did not incur any defense costs.


author: IRVING, J.,

text:
    Marilyn C. DEDEAUX and Eugene Dedeaux, Appellants v. PELLERIN LAUNDRY, INC., Appellee.
    No. 2003-CA-02408-COA.
    Court of Appeals of Mississippi.
    June 28, 2005.
    Rehearing Denied June 13, 2006.
    Robert H. Tyler, Biloxi, attorney for appellant.
    John Roger Miller, attorney for appel-lee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Marilyn and Eugene Dedeaux filed a claim against Pellerin Laundry, Inc. alleging that they sustained multiple damages as a result of an automobile accident between a vehicle driven by Marilyn and a vehicle owned by Pellerin. The jury returned a verdict in Marilyn’s favor and awarded her damages; however, it awarded zero damages to Eugene In response, the Dedeauxes moved for a new trial on the issue of damages, or in the alternative, for an additur. The trial court denied the motion for a new trial, but granted an additur which the Dedeauxes found to be insufficient.

¶2. On appeal, the Dedeauxes argue that (1) the jury award in favor of Marilyn was nominal and against the overwhelming weight of the credible evidence, (2) the jury verdict failing to grant damages to Eugene was against the overwhelming weight of the evidence, (3) the trial court erred in refusing to grant their motion for a new trial on the issue of damages, and (4) the trial court erred in failing to grant a more substantial additur to the jury award in their favor.

¶ 3. We find that Pellerin failed to affirmatively accept the additur in a timely manner; therefore, we order a new trial on the issue of damages only.

FACTS

¶ 4. In May 1998, Marilyn Dedeaux was involved in an automobile accident with a vehicle owned by Pellerin. Thereafter, on January 14, 1999, Marilyn and her husband Eugene filed a complaint in the Harrison County Circuit Court against Pelle-rin, alleging multiple damages as a result of the accident. Marilyn specifically alleged property damage, past and future mental and physical pain, suffering, emotional distress, and the loss of enjoyment of life. As already mentioned, Eugene made claims for property damage and loss of consortium as a result of the injuries incurred by his wife. A jury found Marilyn forty-seven percent at fault and returned a verdict in her favor in the amount of $38,512. The verdict was reduced to $20,411.36 following the application of her fault percentage.

¶ 5. The Dedeauxes filed a motion for a new trial on damages, or in the alternative, for an additur. After a hearing on the matter, the trial court denied the motion for a new trial but granted Marilyn an additur in the amount of $20,000 and Eugene an additur of $10,000. After a reduction to reflect Marilyn’s percentage of fault, Marilyn received a total recovery of $31, 011.36, and Eugene received a recovery of $5,300.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. Although the Dedeauxes have assigned several issues for our review, the resolution of this case is determined by whether Pellerin made a timely acceptance or rejection of the additur ordered by the trial judge. Under applicable ease law, if Pellerin timely accepted the additur, the Dedeauxes do not have a right of appeal. See Maddox v. Muirhead, 738 So.2d 742 (Miss.1999); Odom v. Roberts, 606 So.2d 114 (Miss.1992); Edelen v. Jackson Coca-Cola Bottling Co., 782 So.2d 1256 (Miss.Ct.App.2001). We therefore restrict our analysis to this issue.

¶ 7. Mississippi Code Annotated section 11-1-55 (Rev.2002) authorizes a trial judge to award an additur under certain circumstances. Similarly, the Mississippi Supreme Court in Odom outlined the options available to a plaintiff and defendant where the trial court has granted an addi-tur. The Odom court held that a defendant only may elect to (1) reject the addi-tur and have the case retried on the issue of damages only, (2) appeal on the grounds that the circuit court should not have granted the additur at all, or alternatively, the additur granted was legally excessive, or (3) accept the additur and pay the judgment. Odom, 606 So.2d at 121.

¶ 8. Under Odom, a plaintiff dissatisfied with the amount of recovery, even as enhanced by an additur, may not demand a new trial. Edelen v. Jackson Coca-Cola Bottling Co., 782 So.2d 1256, 1257 (¶ 3) (Miss.Ct.App.2001). Also, in a case where the defendant accepts the addi-tur and pays the judgment, the dissatisfied plaintiff is precluded from appealing because, according to Odom, if the defendant accepts the additur, the plaintiffs only option is to cross appeal, arguing that the additur is legally inadequate and that the trial court abused its discretion. Odom, 606 So.2d at 121. If the additur is accepted and paid by the defendant, quite logically there will be no direct appeal, and if there is no direct appeal, there is no procedural mechanism for a cross appeal.

¶ 9. A defendant has thirty days from the entry of the trial court’ judgment awarding the additur to exercise his option to accept or reject the additur. Estate of Berry v. Dahlem, 741 So.2d 932, 935 (¶ 17) (Miss.1999). Where the defendant takes no action within those thirty days, the trial court must proceed with a new trial on damages. Id.

¶ 10. Turning to the case at bar, we note from the outset that the trial judge’s order awarding the additur failed to expressly condition the denial of the De-deauxes’ motion for a new trial upon Pelle-rin’s acceptance of the additur. However, since additurs are governed by statute, we are satisfied that this condition was, by operation of law, incorporated into the judge’s order. Similarly, the record reveals that the trial judge’s intent was indeed to condition the denial of the De-deauxes’ motion upon Pellerin’s acceptance of the additur. The following exchange between the court and both parties at the conclusion of the motion hearing supports this contention.

MS. LEE: Your Honor, procedurally if the — if I understand it correctly, the plaintiffs have to accept the additur or take it up on appeal?
THE COURT: Actually I think it’s up to the defense. The defense has the option of accepting it or not.
MR. MILLER: I believe that’s correct, your Honor. But if I don’t accept the additur, do we do a new trial on damages?
THE COURT: I think that’s what the law is. I think the option is up to the defense, that they accept or not. And if they do not accept, I think we would have a new trial on damages. I think the law used to give the plaintiff the option, but it’s been changed quite sometime ago.
MR. MILLER: I believe, as you say, I believe it is my option.
THE COURT: I know under the current case law it’s the option of the defense to accept or not. So get the judgment and get it to the Court for entry. And then, Mr. Miller, you can advise Ms. Lee what your client’s position is. All right. Y’all have a good day. Thank you.

¶ 11. Although the above testimony reveals that the trial judge intended to grant a new trial if Pellerin chose not to accept the additur, the record before us is silent as to whether Pellerin affirmatively accepted or rejected the additur within the requisite time period. Similarly, there is no evidence in the record before us to suggest that Pellerin ever paid the judgment as ordered by the trial judge. As a result, we find that due to its failure to affirmatively accept the additur within thirty days of the trial court’s order, Pelle-rin effectively acceded to a new trial limited to damages only.

¶ 12. It may be deduced from what is not said in Pellerin’s appellate brief that it has implicitly accepted the additur. For example, Pellerin does not argue that the additur is excessive or was improperly granted. However, according to the clear dictates of Estate of Berry, a defendant, within thirty days, must “either accept the additur, reject it and proceed to a new trial on damages, or file an appeal.” Estate of Berry, 741 So.2d at 935 (¶ 17). Pellerin, the defendant in the trial court, did not file an appeal. The Dedeauxes are the ones who filed the appeal. Accordingly, this matter is reversed and remanded for a new trial on the issue of damages. We therefore find it unnecessary to address the merits of the Dedeaux’s remaining arguments.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED, AND THIS CAUSE IS REMANDED FOR A NEW TRIAL LIMITED TO DAMAGES ONLY. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Eugene was not physically involved in the accident but asserted claims for loss of consortium and property damage.

      . At the time of the accident, the vehicle was being operated by Donald O. Neubeck, an employee of Pellerin. Nuebeck was subsequently dismissed from the suit as a result of his discharge in bankruptcy.


author: ISHEE, J., GRIFFIS, J.,

text:
    W.A. COLEMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00346-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2005.
    Rehearing Denied Feb. 21, 2006.

      David M. Holly, Greenwood, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   ISHEE, J.,

for the Court.

¶ 1. Petitioner appeals his conviction for embezzlement. Finding insufficient evidence to sustain the conviction, we reverse and render.

STATEMENT OF FACTS

¶2. W.A. Coleman and James Brown were deacons at the Pillow Chapel Missionary Baptist Church in Greenwood, Mississippi. As deacons, they were responsible for collecting the monthly tithes from the church members, depositing the funds in the church’s bank account, and paying for authorized maintenance and repairs to the church facilities. Between January and July 2001, Coleman wrote checks payable to cash and drawn on the church’s bank account totaling approximately $1,600.

¶ 3. When Brown became aware of Coleman’s conduct, he notified the police and an investigation ensued. As a result, Coleman was indicted for embezzlement pursuant to Mississippi Code Annotated § 97-23-19 (Rev.2000).

¶ 4. In January 2004, the matter went to trial. Coleman testified that he had written those checks to compensate himself for payments he had made from his own funds for repairs done to the church’s property. Coleman testified that the repairs included plumbing and electrical work, as well as maintenance to the church’s lawn mower. The church’s pastor, however, testified that before any authorized work could be done for the church, the deacons must have received prior approval from the congregation. Furthermore, the pastor testified that the plumbing work which had been done was minor, and that there had been no electrical work done at the church. The pastor testified emphatically that the limited repairs performed on the church were nowhere near $1,600 worth.

¶ 5. At the completion of the State’s case-in-chief, Coleman made a motion for a directed verdict. He argued that the State had failed to prove that the money had been embezzled from a “corporation” or a “private person” as required by Mississippi Code Annotated § 97-23-19. Coleman further argued that the State had failed to prove any misappropriation for personal use. After hearing the parties’ respective arguments, the trial court denied the motion. The jury subsequently found Coleman guilty of embezzlement, and he was later sentenced to a ten-year term of incarceration and ordered to pay restitution in the amount of $2,265.

¶ 6. Aggrieved by his conviction, Coleman appeals asserting the following: (1) whether the trial court erred in denying Coleman’s motion for a directed verdict; (2) whether the trial court erred in limiting Coleman’s cross-examination of James Brown; (3) whether the trial court erred in failing to grant a circumstantial evidence instruction; (4) whether the trial court erred in denying Coleman’s motion for a directed verdict or, in the alternative, a judgment notwithstanding the verdict; and (5) whether the trial court erred in denying Coleman’s motion for a new trial as the verdict was against the overwhelming weight of the evidence.

DISCUSSION

I. Whether the trial court erred in denying Coleman’s motion for a directed verdict.

¶ 7. We begin our discussion with the standard of review. The Mississippi Supreme Court has consistently held that when reviewing a challenge to the sufficiency of the evidence, an appellate court must consider all of the evidence in the light most consistent with the verdict, and the State must be given the benefit of all inferences favorable to the verdict. Taylor v. State, 672 So.2d 1246, 1255 (Miss.1996). Furthermore, when the record evidence is such that reasonable jurors could have found the defendant guilty, the verdict is beyond the reviewing court’s authority to disturb. Id. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under circumstances that every element of the offense existed.... ’ ” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If the evidence points in favor of the defendant on any element of the offense such that a reasonable juror could not have found the defendant guilty beyond a reasonable doubt, the motion for a directed verdict must be granted. Edwards v. State, 469 So.2d 68, 70 (Miss.1985).

¶ 8. Coleman maintains that the trial court erred in denying his motion for a directed verdict at the close of the State’s case-in-chief. He asserts that there was insufficient evidence to sustain his conviction as to the issue of who owned the money. Coleman was indicted under Mississippi Code Annotated § 97-23-19 which defines embezzlement by agents, bailees, servants and persons generally as follows:

if any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person, shall embezzle ... or convert to his own use, any ... money ... which shall have ... been intrusted to his care or possession by virtue of his office, place, or employment ... shall be guilty of embezzlement....

(Emphasis added).

¶ 9. When Coleman offered his motion for a directed verdict at trial, he argued that the State had failed to prove that the funds were embezzled from either a corporation or a private person. In opposition to the motion, the State, admitting that the church was not incorporated, argued that the church was a private person. Further, the State argued that in a church of that size, the trustees are considered the owners. The State asserted that since Brown was a trustee, he was an owner, thereby satisfying the statute’s private person requirement.

¶ 10. Coleman countered that the evidence offered by the State did not support that conclusion. The checking account on which the funds were drawn was in the church’s name. The State offered no evidence that the money belonged to Brown. Furthermore, the record reflects that the pastor testified that the deacons had to have the congregation’s prior approval before spending any of the church’s money. Finally, Coleman and Brown were both church deacons and were equally accountable for the church’s money. Coleman maintains that this evidence negates the State’s assertion as to Brown’s ownership of the funds.

¶ 11. The trial court subsequently denied Coleman’s motion for a directed verdict. The trial court, while admitting that it’s decision might be wrong, relied on State v. Journey, 105 Miss. 516, 62 So. 354 (1913) as the basis for its ruling. The defendant in Journey had been indicted for embezzling from a corporation. Id. The defendant’s motion to dismiss was subsequently granted by the trial court. Id. The trial court ruled that the applicable embezzlement statute, which was the predecessor to Mississippi Code Annotated § 97-23-19, had no application whatsoever to a corporation. Id. The trial court concluded that the statute referred only to embezzlement from a private person. Id. The Mississippi Supreme Court reversed the trial court’s ruling and held that “the language employed by the [legislature refers to trustees, factors, carriers, or bail-ees of both artificial and natural persons.” Id.

¶ 12. In this appeal, the State argues that, based on Journey, the church should be considered an artificial person for the purposes of the embezzlement statute. However, the Mississippi legislature, has amended the embezzlement statute a number of times since the Journey decision. The current version includes corporations as the sole type of artificial persons who may be the object of embezzlement. See Miss.Code Ann. § 97-23-19. We are reminded that where the language used by the legislature in a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to the rules of statutory interpretation. State v. Heard, 246 Miss. 774, 781, 151 So.2d 417, 420 (1963). Therefore, we conclude that Journey has been superced-ed by the current statute and that it does not provide a sufficient basis for denying Coleman’s motion for a directed verdict.

¶ 13. The Mississippi Supreme Court has enumerated the requisite elements of embezzlement, and this Court has updated the elements to reflect the language in the current statute. These elements are:

(1) an agent or trustee of a private person or [corporation]; (2) embezzling or converting to his own use; (3) rights in action, money, or other valuable security, effect or property of any kind; (4) which have been intrusted to his care or possession by virtue of his position or employment.

May v. State, 240 Miss. 361, 363, 127 So.2d 423, 425 (1961).

¶ 14. After an analysis of the statute and the relevant case law, this Court finds that implicit in these elements is the requirement that the State present proof beyond a reasonable doubt to establish the specific person or corporation that owned the embezzled money. A conviction for embezzlement requires proof of the identity of the corporation or private person whose goods and money the accused has embezzled. Bunkley v. State, 495 So.2d 1, 3-4 (Miss.1986). Proof as to ownership of the money and the extent of the agency relationship which existed are essential to distinguishing embezzlement from larceny. See Jackson v. State, 211 Miss. 828, 832, 52 So.2d 914, 915 (1951).

¶ 15. Returning to the record facts, it is clear from the undisputed testimony that the church was not a corporation. Therefore, this Court focuses on the issue of whether there was sufficient evidence for a reasonable juror to conclude that Coleman embezzled funds from Brown, the private person named in the indictment. Even after considering all of the evidence in the light most consistent with the verdict, and after giving the State the benefit of all the inferences favorable to the verdict, we are unable to find that the evidence reflects that Brown had an ownership interest in the funds. The testimony reveals that Brown was merely a deacon in the church. He was responsible for collecting the money from the congregation, but he was not allowed to spend any of the money without prior authorization from the church members. Also, while there was testimony that Coleman gave several hundred dollars each month to the church in tithes, there is no evidence in the record that Brown had ever given any of his own money to the church. These record facts lead this Court to the conclusion that Brown had no ownership rights in any portion of the embezzled funds. Based on the record evidence, we are unable to conclude that a reasonable juror could have found Coleman guilty of embezzlement beyond a reasonable doubt as detailed in the indictment.

¶ 16. This Court emphasizes that a criminal conviction, and the resulting loss of liberty, must rest on finite evidence rather than conjecture or surmise. Sisk v. State, 294 So.2d 472, 475 (Miss.1974). Consequently, we specifically find that the proof in this ease as to the issue of who owned the funds does not sustain the conviction for embezzlement, and the trial court erred in denying Coleman’s motion for a directed verdict.

¶ 17. We further note that Mississippi Code Annotated § 97-17-41(2) (Rev.2000) states in part, “[ejvery person who shall be convicted of taking and carrying away, fe-loniously, the property of a church, synagogue, temple or other established place of worship, of the value of five-hundred dollars ($500) or more, shall be guilty of grand larceny ...” Thus, Coleman was charged with the wrong crime. The grand jury should have indicted Coleman for the crime of larceny, not embezzlement.

¶ 18. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT OF CONVICTION OF EMBEZZLEMENT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAYMENT OF RESTITUTION IN THE AMOUNT OF $2,255 IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

KING, C.J., BRIDGES, IRVING, AND BARNES, JJ„ CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND MYERS, P.JJ., AND CHANDLER, J.

GRIFFIS, J.,

Dissenting.

¶ 19. I respectfully dissent. I would affirm the conviction of W.A. Coleman.

¶20. The majority’s position is that Mississippi Code Annotated Section 97-23-15 only allows the crime of embezzlement to be committed against an “incorporated company” or a “private person.” The majority reasons that Pillow Chapel Missionary Baptist Church is neither. I disagree. Indeed, it is, or may be considered, both.

¶ 21. Section 97-23-19 refers to “incorporated company.” We must determine exactly what is an “incorporated company.” Title 79 of the Mississippi Code Annotated is titled “Corporations, Associations and Partnerships.” I am of the opinion that the use of the term “incorporated company” includes all of the entities that are created by statute under Title 79. We would not doubt that corporations, created under Mississippi Code Annotated Section 79-4-1 et seq., are included in the definition of “incorporated company.” Likewise, the following entities would also be included in the definition: business development corporations (Miss.Code Ann. § 79-5-1 et seq.); small business investment companies (Miss.Code Ann. § 79-7-1 et seq.); professional corporations (Miss. Code Ann. § 79-10-1 et seq.); or nonprofit corporations (Miss.Code Ann. § 79-11-1 et seq.). Therefore, I fail to see how an entity created under the same statutes that create nonprofit corporations can be summarily excluded from the definition of “incorporated company,” which is contained in a criminal statute.

¶ 22. I am of the opinion that the record is sufficient to establish that Pillow Chapel Missionary Baptist Church is an unincorporated religious society. This entity is created as part of Title 79 — “Corporations, Associations, and Partnerships,” in Chapter 11 — “Nonprofit, Nonshare Corporations and Religious Societies.” Section 79-11-31, titled “Religious societies and associations,” provides:

(1) Any religious society, consisting of the members of any particular denomination or congregation, desiring to act as an organized body may do so by associating together and electing or appointing from its membership any number of officers, trustees, or managers, by whatever name known, for the purpose of managing the affairs of the society. Such society or association shall keep a record of its proceedings, which shall show the name of the society, its organization, and the election of the officers, trustees, or managers; but the society so organized at each particular locality shall be a distinct and independent society. Any society so organized may sue and be sued by its society name or appellation, and process may be served on its presiding or chief officer, or secretary, or on the trustees or manager.
Upon the completion of the organization of any such society, the title to the real property theretofore owned by it shall thereupon vest in the society as hereunder organized, and shall not be divested out of the same, or encumbered, except by a deed, deed of trust, or mortgage duly executed under the authority of a resolution adopted by a majority vote of the members present at a meeting duly called for that purpose, at which meeting at least twenty per cent (20%) of the members in good standing of such organized society must be present. The minutes of such meeting shall be entered in the official record book of such society, and the aforesaid resolution shall designate which officers, trustees or managers of such society are to execute such deed, deed of trust, or mortgage.
The provisions of this subsection shall also apply to all real property acquired by any such society after its organization hereunder.
(2) Whenever any number of religious societies or organized bodies or congregations formed under subsection (1) of this section shall decide to act together as an organized body, they may do so in the manner provided in subsection (1) by and through representative elected or appointed for that purpose, and when so organized shall likewise be a distinct and independent society or group, by whatever name called, and subject to sue and be sued and be served with process in the same manner.

Pillow Chapel Missionary Baptist Church is an organized body or congregation that exists by virtue of and under the authority of our corporate statutes. It is, and as such should be considered, an “incorporated company” under Section 97-23-19.

¶ 23. Furthermore, Pillow Chapel Missionary Baptist Church may also be considered an association. An “association” is defined as:

a collection of persons who have joined together for a certain object. At common law, an unincorporated association is not an entity, and has no status distinct from the persons composing it, but is rather a body of individuals acting together for the prosecution of a common enterprise without a corporate charter but upon methods and forms used by corporations. However, although an unincorporated association technically does not exist as a legal entity apart from its members, the legislature may recognize the separate existence of an association by statute....

6 Am Jur 2d, Associations § 1 (1999). By this definition, an association is simply a group of “private persons” who join together for a common purpose. The evidence here was sufficient to establish that Coleman embezzled the funds from and association, which by definition is several private persons. As such, several private persons who make up an association would be included in the statutory definition of “any private person,” under Section 97-23-19.

¶ 24. With much respect for the majority, I simply cannot agree with their reasoning and the technical difference that they rely upon. I would affirm the conviction of Coleman. Therefore, I dissent.

LEE AND MYERS, P.JJ., AND CHANDLER, JOIN THIS SEPARATE OPINION.


author: ROBERTS, J.,

text:
    Jimmy CULBERT, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01107-COA.
    Court of Appeals of Mississippi.
    April 25, 2006.
    Rehearing Denied Nov. 7, 2006.

      Jimmy Culbert, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Jimmy Culbert appeals from the denial of his motion for post-conviction relief filed on April 14, 2004, in the Circuit Court of Warren County. This was Cul-bert’s second motion for post-conviction relief attacking his guilty plea of September 10, 1997, to kidnaping and sexual battery charges. This is Culbert’s second appeal to this Court on his 1997 conviction and sentence. See Culbert v. State, 800 So.2d 546 (Miss.Ct.App.2001). We again find no error.

FACTS

¶ 2. A full statement of the facts can be found in this Court’s first opinion. Id. at 548 (¶¶2-3). Culbert pleaded guilty to kidnaping and sexual battery and was sentenced to thirty years for sexual battery and six years for kidnaping, each sentence to run consecutively.

¶ 3. Culbert filed his first motion for post-conviction relief in 1999. The circuit court denied relief on November 30 and December 14, 1999. This Court unanimously affirmed the ruling of the circuit court denying post-conviction relief in its November 13, 2001 opinion.

¶ 4. The present motion for post-conviction relief was filed on April 14, 2004. The motion was denied on the basis that it was a successive petition and barred by statute. The court also found that because this Court had affirmed the denial of Cul-bert’s previous motion for post-conviction relief, that the circuit court did not have jurisdiction over the matter.

DISCUSSION

¶ 5. Mississippi Code Annotated § 99-39-23(6)(Supp.2005) provides:

The order ... dismissing the prisoner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.... [Ejxcepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi of the United States which would have actually adversely affected the outcome of his conviction at the time of trial or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

None of the exception to the successive writ bar are applicable in this case.

¶ 6. The circuit court also found that it lacked jurisdiction. See Miss.Code Ann. § 99-39-7 (Supp.2005) (“Where the conviction and sentence have been affirmed on appeal ... the motion under this article shall not be filed in the trial court until the motion has first been presented to a quorum of the justices of the supreme court of Mississippi ... and an order granted allowing the filing of such motion in the trial court.”). See Torns v. State, 866 So.2d 486, 488(¶ 8) (Miss.Ct.App.2003).

¶ 7. Also, Mississippi Code Annotated § 99-39-5(2) provides that in the case of a guilty plea that a motion should be filed “within three (3) years after entry of the judgment of conviction.” Culbert’s guilty plea was entered on September 10, 1997.

¶ 8. On appeal Culbert has raised that there is evidence of material facts not previously presented or heard which require vacation of his conviction and sentence, which would demonstrate that his plea was involuntary, his counsel ineffective and his incarceration illegal. He also raises the denial of speedy trial, a false arrest warrant, false imprisonment, threats and malicious prosecution. Our review shows that all the facts and issues raises by Culbert were available to him at the time of his first motion for post-conviction relief. Many of these issues, including the right to speedy trial, were waived by Culbert’s guilty plea. Anderson v. State, 577 So.2d 390, 391 (Miss.1991). This Court previously reviewed Culbert’s guilty plea and found that he “knowingly, intelligently, and voluntarily entered his guilty plea.” Culbert, 800 So.2d at 549(¶ 6).

¶ 9. Some of the issues, such as malicious prosecution, false arrest warrant and false imprisonment were never raised before the trial court. As such, this Court cannot consider them for the first time on appeal. Black v. State, 806 So.2d 1162, 1164(¶ 3)(Miss.Ct.App.2002).

¶ 10. Because we conclude that the circuit court correctly denied relief in this case, we affirm.

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

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


author: GRIFFIS, J.,

text:
    Edmond Allen JENKINS, Appellant v. TERRY INVESTMENTS, LLC, Appellee.
    No. 2004-CP-01939-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.
    Rehearing Denied Sept. 26, 2006.

      Edmond Allen Jenkins, Sr., Appellant, pro se.
    John T. Armstrong, Jr., Hazlehurst, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Edmond Allen Jenkins and Terry Investments, LLC, own neighboring tracts of land, fronting New Zion Road in Copiah County. Terry Investments sued Jenkins and alleged that he tore down and stole the boundary fence and trespassed onto its land. Jenkins admitted he tore down the fence but claimed he owned some of the property held by Terry Investments. Chancellor George Ward ruled in favor of Terry Investments, permanently enjoined Jenkins from trespassing, and ordered him to pay for the fence and Terry Investments’s attorney fees. Jenkins appealed and assigned the following errors: (1) whether the trial court erred in ruling the enumerated claims for relief under M.R.C.P. 60(b) are mutually exclusive, (2) whether Jenkins’s admissions negate equitable considerations, (3) whether the court erred in ruling that his application for relief from judgment was untimely, (4) whether the trial court erred in not admitting evidence that Jenkins was defrauded, (5) whether the trial court erred in determining the boundaries of Jenkins’s property, and (6) whether the trial court erred in questioning Jenkins on the stand. We find that res judicata applies to this case, and therefore, we affirm.

FACTS

¶ 2. This case is the fourth appeal to this Court where the issue concerns Jenkins and the property in question. See Jenkins v. Jenkins, 829 So.2d 710 (Miss.Ct.App.2002) (“Jenkins III”); Jenkins v. Jenkins, 757 So.2d 339 (Miss.Ct.App.2000) (“Jenkins II”); and Jenkins v. Jenkins, 691 So.2d 1034 (Miss.Ct.App.1996) (“Jenkins I”). We incorporate by reference the facts as set out in our three prior opinions. Nevertheless, we provide a brief synopsis of the facts.

¶ 3. The separate tracts of property held by Jenkins and Terry Investments were once a single parcel of land held by Jenkins’s grandfather, Jesse Allen Jenkins (“Jesse”). During Jesse’s life, he sold five acres in the southwest corner of the property to his son Cecil, Jenkins’s father. Jenkins became the owner of Cecil’s five acres in 1979. The remainder of Jesse’s land passed intestate to his heirs, which included Jenkins, Eldon Jenkins, Earl Jenkins, Lavelle McRee, Alice Thompson, Edmund Burke Jenkins, Jr., Robert Jenkins, Francis Simmons, Shirley Sessions, Sara Ann White, Henrietta Buckley, and Dilly Jenkins.

¶ 4. In 1992, Jenkins and his wife Donna were sued by Jesse’s other heirs. The other heirs asked the court to partition Jenkins’s share of the property. On May 6, 1993, all parties signed an agreed order that the property to be partitioned was 219 acres and that commissioners would divide the property. The order provided that the only property not subject to partition was the five acres claimed separately by Jenkins. By order dated May 9, 1994, Jenkins was given one-sixth (1/6) of the partit-ed land (or 36.5 acres). Jenkins’s portion of the property was located at the southwest corner so that it would be contiguous with the five acres he already owned. Jesse’s other heirs were awarded the remainder.

¶ 5. Jenkins was ordered to remove his deer camp from the northeast section of the property within thirty days. However, Jenkins wanted the northeast section of the property rather than what was given him. Jenkins appealed the order and claimed that the commissioners failed to properly inspect the property and take into account his improvements to the land. This Court affirmed the chancellor’s order in an unpublished opinion, dated August 6, 1996, and held that Jenkins’s arguments were waived by virtue of the agreed order. Thereafter, the supreme court denied cer-tiorari.

¶ 6. Jenkins failed to move his deer camp. Hence, Jesse’s other heirs sued him and Donna and asked that they be held in contempt of court. A few months later, Jenkins commissioned his own survey and filed a complaint for relief under M.R.C.P. Rule 60(b). Jenkins claimed to have found new evidence that his original plot was not five acres, but seventeen acres, and therefore twelve acres of his property were unlawfully partited in the 1994 judgment. To support his argument, Jenkins pointed to the call in the deed which stated “5 acres more or less.” Jenkins claimed that the word “more” meant “twelve more.” Although Jenkins began to reside on the five acre tract in 1979, this was the first time that Jenkins claimed that he owned more than that five acres. Jenkins’s complaint was denied. We affirmed the chancellor’s decision in Jenkins II, where we held that Jenkins’s Rule 60 motion was untimely and frivolous. This Court awarded the statutory penalty in our mandate.

¶ 7. Thereafter, Jesse’s other heirs filed a lawsuit to recover the statutory penalty and were so awarded. Jenkins appealed for a third time and argued that the chancery court had no authority to assess the statutory penalty. We affirmed the chancellor in Jenkins III.

¶ 8. Jesse’s other heirs sold a portion of their property to Terry Investments. The property conveyed adjoined Jenkins’s property. Jenkins painted a white line some three hundred feet onto Terry Investments’s property, which caused Terry Investments to erect the fence in the wrong spot. After the property was surveyed, in accordance with the 1994 partition judgment, Terry Investments erected boundary markers that were destroyed by Jenkins. Terry Investments then erected a boundary fence, because hunters from Jenkins’s property continued to trespass. Jenkins was present when the fence was erected and threatened to tear it down if Terry Investments put it up. Jenkins carried through on his threat, not only tearing down the fence, but secreting all remnants of it. Jenkins allegedly scared off a potential buyer and told Charles Renfrew, Terry Investments’s president, that he would keep the boundary dispute tied up so that Terry Investments could never sell its property.

¶ 9. When a lawsuit was filed, Jenkins again asked the court for relief from the 1994 judgment. Despite this Court’s previous rulings, Chancellor Ward allowed Jenkins to be heard. Jenkins offered evidence that he originally owned seventeen acres. The chancellor then denied Jenkins’s motion on its merits. The chancellor declined to assess punitive damages against Jenkins, but he did assess actual damages and attorney fees against Jenkins. Jenkins now, once again, appeals to this Court. He asks for relief under Rule 60 and makes a number of irrelevant and unsubstantiated allegations.

ANALYSIS

I. Did the trial court err in ruling the enumerated claims for relief under Rule 60(b) are mutually exclusive?

II. Did Jenkins’s admissions negate equitable considerations?

III. Was Jenkins’s application for relief from judgment untimely?

IV. Should the trial court have admitted evidence that Jenkins was defrauded into signing the Agreed Order?

¶ 10. Since all of these arguments go to the question of whether Jenkins should have been granted relief from the 1994 judgment under Rule 60(b), we will consider them together.

¶ 11. Jenkins argues that he should have been allowed to put on evidence that he was entitled to relief from the 1994 judgment. He claims that the chancellor held that his motion was untimely and, therefore, would not let him put on this evidence. We fail to see the merit in this argument. Chancellor Ward was very patient and courteous to Jenkins. The chancellor could have, quite properly, dismissed Jenkins’s allegations as a procedural matter. Instead, the chancellor allowed Jenkins to present the evidence that he considered necessary to establish his claim for Rule 60 relief. This Court has previously held that Jenkins’s claim, under Rule 60(b), was untimely when it was first made in 1997. Jenkins II, 757 So.2d at 345(¶ 16). We find no reason to reach a different result.

¶ 12. Despite our prior mandate to the contrary, Jenkins was granted a new trial on where the boundary line lay. The chancellor made extensive findings and ruled that Jenkins originally owned five acres, instead of seventeen, and thus, the 1994 partition judgment was proper. The chancellor went on to say:

Now, I think what you wanted more than anything, Mr. Jenkins, was to have somebody listen to you and listen to your position on those deeds, and I’ve done that. I don’t think I had to. I think Mr. Armstrong [Terry Investments’s attorney] had every legal right to assert affirmative matters which he has raised of res judicata and estoppel. These issues have already been tried and determined.
But I ignored those legal issues to give you the opportunity to be heard, and I listened, and I looked at those deeds, and I looked at the survey, and there is no question in my mind you don’t own that land, but I’m giving you the benefit of the doubt that you sincerely believed you might have a claim.

¶ 13. We find that this issue is without merit.

V. Did the trial court err in determining the Jenkins/Terry Investments boundary line?

¶ 14. Jenkins next faults the chancellor for incorrectly determining the Jenkins/Terry Investments boundary line. Specifically, he says that the chancellor erred in depending on the survey relied upon in the 1994 judgment, because that survey ignored the monuments as described in the deed. Terry Investments argues that Jenkins had no authority to reopen the 1994 judgment as this Court has already rejected an identical prior motion. In the alternative, Terry Investments argues that the chancellor was correct to affirm the boundary line as established by the 1994 partition decree.

¶ 15. We give a chancellor’s findings of fact deferential treatment and subject them to the manifest error/substantial evidence standard. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002). However, we conduct a de novo review of legal questions. Id.

¶ 16. The chancellor found a discrepancy between the monuments set out in the deed versus the call of the deed and the distances listed in it. If one follows the monuments, then the land includes seventeen acres. However, if one follows the distances that are listed as being between the monuments, the land includes 5.6 acres. The chancellor found the distances to be more consistent with the call of the deed which reads, “5½ acres, more or less.” Furthermore, the chancellor relied on Jenkins’s own testimony that from 1979 to 1997, where he stated that he was always under the impression he owned only five acres. The chancellor also relied on the property tax records, which indicated that Jenkins only paid property taxes on five acres. The chancellor held the clear intent of the drafting parties was to transfer only 5.6 acres.

¶ 17. As we set out in the previous issue, the chancellor went further to note that Terry Investments had a continuing objection of collateral estoppel and res ju-dicata. Nevertheless, the chancellor overruled the objection to allow Jenkins a chance to prove his claim.

¶ 18. First, we consider whether Jenkins should have been allowed to renew his Rule 60 motion that we previously rejected in Jenkins II. Res judicata is a doctrine which protects the finality of judgments. It applies to final judgments on the merits. Anderson v. LaVere, 895 So.2d 828, 833 (¶ 10) (Miss.2004). Res ju-dicata requires four elements: (1) identity of the subject matter, (2) identity of the cause of action, (3) identity of the parties, and (4) identity of the quality or character of a person against whom the claim is made. Norman v. Bucklew, 684 So.2d 1246, 1253 (Miss.1996). “If these four identities are present, the parties will be prevented from relitigating all issues tried in the prior lawsuit as well as all matters which should have been litigated and decided in the prior suit.” Anderson, 895 So.2d at 832(¶ 10) (quoting Dunaway v. W.H. Hopper & Assocs., 422 So.2d 749, 751 (Miss.1982)).

¶ 19. Our opinion in Jenkins II was a final judgment on the merits. Jenkins did not ask for rehearing of our decision, and he did not request review by the supreme court.

¶ 20. First, Jenkins II involved a dispute over the same piece of property that is at issue here. Jenkins, 757 So.2d at 340(¶ 1). In both cases, Jenkins disputes the boundary line established by the 1994 partition judgment. Id. Thus, identity of the subject matter is satisfied.

¶21. Second, Jenkins II involved the same motion as was involved here, that is a Rule 60(b) motion to set aside the 1994 partition judgment. Id. Specifically, in the former case, Jenkins and his wife sought this relief, because they “claimed that their separate five acre tract, which was included in the survey, was actually 17 acres, thus 12 acres of their fee land was included in the land allotted to them in the partition.” Id. at 342(¶ 4). That is the exact same basis for the latest motion. Thus, the identity of the cause of action is satisfied.

¶ 22. Third, Jenkins was the appellant in both cases. Id. at 340(¶ 1). However, the appellees named in the first ease were Jesse’s other heirs, and not Terry Investments. Id. at 341(¶ 2). However, all that is required to meet this identity is that the later party have at least been in privity with the first party. Williams v. Vintage Petroleum, Inc., 825 So.2d 685, 689(¶ 17) (Miss.Ct.App.2002). Successors in interest are in privity for purposes of res judicata. Id. Terry Investments was the successor in interest of Jesse’s other heirs. Jenkins does not contest this fact. Terry Investments bought the property from Jesse’s other heirs. Thus, there is an identity of parties.

¶ 23. Fourth, there is an identity of the quality and character of the party against whom res judicata is sought. Jenkins was a party in his individual capacity in both suits.

¶ 24. All the requirements for res judi-cata are met in this case. We find that it was error for the chancellor to allow Jenkins to reopen the 1994 partition judgment to try to have it set aside. However, this error was harmless since the chancellor affirmed the boundary line as determined in the 1994 partition judgment. Accordingly, we find no merit to this issue.

VI. Did the trial court err in questioning Jenkins on the stand?

¶ 25. The chancellor examined Jenkins while he was testifying at trial. Jenkins complains that “[i]n questioning [Jenkins], Judge Ward told [Jenkins] he could not explain himself. When [Jenkins] was questioning Edwin Smith, Judge Ward allowed Mr. Smith to ramble on and on without answering [Jenkins’s] questions with yes or no.” Terry Investments asserts that this has no merit “because it attacks questions asked by chancellor to appellant during the hearing.” This is the literal extent of both parties’ arguments under this issue.

¶ 26. Jenkins fails to cite relevant authority to support his allegation that this is error. It is the appellant’s duty to cite relevant authority to support his assignment of error. Williams v. State, 708 So.2d 1358, 1361(¶ 12) (Miss.1998). This failure alleviates our duty to review this assignment of error. Id.

¶ 27. This procedural bar notwithstanding, Jenkins’s argument is without merit for two reasons. First, the chancellor’s questioning was restricted to Jenkins’s Rule 60 evidence. As we stated previously, Jenkins was barred by res judi-cata and was not entitled to a trial on this evidence. Therefore any error, would be harmless.

¶ 28. Secondly, Jenkins misrepresents the record. The record shows that Jenkins was allowed to explain his answers to the court. There is nothing to indicate that he was cut short or had anything left to say. We find no merit to this issue.

CONCLUSION

¶ 29. We find that res judicata barred Jenkins from relitigating his Rule 60 motion to reopen the 1994 partition judgment. Accordingly, we affirm the chancellor’s judgment. In addition, we reluctantly offer a word of caution to Jenkins since he is a pro se litigant. The courts of this state have properly and finally addressed the issues that Jenkins continues to litigate. Should Jenkins file another lawsuit concerning these issues, we encourage Jenkins to read Rule 11(b) of the Mississippi Rules of Civil Procedure and fully understand the potential, or likely, consequences of such further frivolous litigation.

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

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