source: Caselaw Access Project

author: SOUTHWICK, J., LEE, P.J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Clyde V. WOODFIELD, Deceased, and In the Matter of the Conservatorship of Michael A. Woodfield. John V. Woodfield, Appellant, v. Sharon McCoy Woodfield, Administratrix of the Estate of Clyde V. Woodfield, Deceased, and Alfred R. Koenenn, Guardian Ad Litem and Temporary Conservator of Michael A. Woodfield, Appellees.
    No. 2004-CA-00238-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.
    Rehearing Denied May 1, 2007.

      John Vernon Woodfield, Long Beach, attorney for appellant.
    Timothy Lee Murr, Alfred R. Koenenn, Gulfport, attorneys for appellees.
   SOUTHWICK, J.,

for the Court.

OPINION ON MOTION FOR REHEARING

¶ 1. In this estate proceeding, all beneficiaries under a last will and testament written just before the testator’s death agreed that it should not be probated. The chancellor later found the eve-of-death will to have been void. On appeal, certain decisions that flowed from the failure to probate are challenged. One of the challenged results was to probate and interpret a much older will. Other issues concern sanctions that were entered against the party who offered the recent will for probate, and the failure of the chancellor to recuse himself. We find no error except as to the award of attorneys’ fees as a sanction. We reverse that award and remand for further proceedings.

FACTS

¶ 2. The testator, Clyde V. Woodfield, died on September 29, 2001 in Gulfport. He was survived by his wife, Sharon McCoy Woodfield, and two adult sons, John and Michael. In 1997, the younger son, Michael A. Woodfield, was in a motorcycle accident. He suffered a severe brain injury which rendered him a quadriplegic and totally incapacitated. The older son, John V. Woodfield, was appointed as conservator for his half-brother Michael shortly after the accident. John served as Michael’s conservator until September 2002 when the court substituted Alfred Koenenn as a temporary conservator and as guardian ad litem.

¶ 3. Only three days before his death, Clyde Woodfield executed a will. On October 9, 2001, two weeks after the will was written, his widow Sharon Woodfield petitioned for probate of the 2001 will. Her initial attorney was her stepson, John Woodfield, who practices on the Mississippi Gulf Coast. The will was probated and Mrs. Woodfield was appointed as the executrix of the estate.

¶ 4. Apparently because of John Wood-field’s legal practice, the chancellors of the Eighth Chancery Court District recused themselves from the case on February 19, 2002. After the initially-appointed special judge withdrew, the Supreme Court on April 11, 2002, appointed another former chancellor, William L. Griffin, Jr., to serve as a substitute special chancellor. We will usually refer to him simply as “the chancellor,” though his service is only in this case.

¶ 5. Michael Woodfield’s new guardian filed a petition contesting the 2001 will on October 21, 2002. The executrix, Sharon Woodfield, filed for probate of a last will and testament that was dated January 11, 1973, even though she had already been appointed under the 2001 will. The executrix later testified that she met her stepson, attorney John Woodfield, at the courthouse the day that the 2001 will was presented for probate. She stated that it was the 1973 will that she delivered to him at that time and only later found out that it was a different will that had been probated. She also denied even knowing the 2001 will existed until long after it was probated. Another lawyer represented the estate after the controversies arose regarding John Woodfield.

¶ 6. In ruling on motions before trial, the chancellor found that no one objected to withdrawal of the 2001 will from probate. He therefore granted the motion to withdraw the will on March 18, 2003. Left open was the issue of sanctions against John Woodfield for having sought to probate the will. In the same pretrial order, the chancellor appointed Sharon Woodfield as Administratrix C.T.A. (cum testamento annexo, or with will annexed), under the 1973 will.

¶7. The parties agreed to a two-part trial. The first part, which started the day of the pretrial decisions on March 18, considered three issues. These were the chancellor’s rulings: (1) the 2001 will, after being withdrawn as an instrument that could dispose of property, had no further effectiveness and therefore did not revoke all prior wills; (2) Clyde Woodfield did not die intestate; and (3) though the original of the 1973 last will and testament was not produced, that will was in effect after the withdrawal of the 2001 will and should be admitted to probate as his last will and testament. As a penalty for frivolous litigation by John Woodfield in offering the 2001 will for • probate, the chancellor awarded fees to Sharon Woodfield’s attorney in the amount of $22,155.78. Michael Woodfield’s guardian and conservator was awarded $15,220.78 in fees and expenses. The order was filed on April 25, 2003.

¶ 8. On June 26, 2003, John Woodfield filed a motion seeking Chancellor Griffin’s recusal, which the judge denied but also certified for interlocutory appeal. The sole basis for recusal was that Alfred Koe-nenn, the guardian for Michael Woodfield, had made a $500 contribution to Chancellor Griffin’s unsuccessful 2002 election campaign. On September 5, 2003, a three-justice panel of the Supreme Court found that the chancellor “did not abuse his discretion in determining that a reasonable person knowing all the circumstances would not question his impartiality.” After making that finding, the court denied John Woodfield’s petition for interlocutory appeal.

¶ 9. On October 13, 2003, the second part of the trial commenced. The three issues presented to the chancellor were the testator’s meaning in the clause in his 1973 will that referred to “[m]y homestead,” which was devised to his wife, Sharon Jeanne McCoy Woodfield; whether to accept John Woodfield’s testimony that his monetary debts to Clyde Woodfield had been forgiven prior to the latter’s death; and the ownership of certain personal property, which is no longer an issue.

¶ 10. The chancellor ruled that the term “homestead” in the will encompassed a 324-acre farm. The estate was awarded $261,558.15 against John Woodfield for various debts owed his father. John Wood-field was also ordered to pay $7,710 in attorneys’ fees owed by Michael Wood-field’s guardian ad litem, and $7,500 in attorneys’ fees owed by Sharon Woodfield.

DISCUSSION

¶ 11. Chancellors have broad discretion in their rulings regarding will contests. Their findings of fact will only be disturbed on appeal if they were manifestly wrong, there was an abuse of discretion, or an erroneous legal standard was applied. Estate of Grantham v. Roberts, 609 So.2d 1220, 1223 (Miss.1992). We will affirm unless we are “left with the firm and definite view that a mistake has been made.” Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1264 (Miss.1987).

1. Voiding of the 2001 Last Will and Testament

¶ 12. As discussed in our description of the trial court proceedings, prior to the March 18, 2003 commencement of trial, John Woodfield had withdrawn his petition for probate of the 2001 last will and testament. In a written pretrial order, entered nunc pro tunc after trial, the judge said he received “no objection from any party in interest or any heir at law of the decedent” to the abandoning of probate of the 2001 will, and consequently the motion to withdraw the will was granted. By the time of the trial, the only will potentially to be probated was the one executed in 1973. We note that the -only substantive difference between the two wills is that in the earlier will, both of the testator’s sons shared equally in certain property. In the later will the disabled brother received no property. There was evidence that the testator-father explained the change by saying he expected his wife and attorney son to look after his other son.

¶ 13. During the first phase of trial, there was evidence that John Woodfield was absent when his father came to his office to have the 1973 will revised. There was testimony that John had for some time encouraged his father to remove Michael from the will. Nick Thornton, a paralegal, testified that although he had not worked for John Woodfield full-time since June of 2000, he occasionally visited the office to use the computer and provide limited assistance. Thornton said that he prepared the will after Clyde Woodfield gave him a copy of the 1973 will and told him to delete all references to Michael. Thornton testified that he asked why Michael was being removed from the will, and Woodfield responded that he did not want the government seizing farm assets that under the 1973 will would be given to Michael. Clyde was certain his wife and his other son John would take care of Michael’s needs. There also was evidence that John Woodfield told his counsel after disputes over probate arose that John believed the 2001 will was “tainted” ánd should be withdrawn.

¶ 14. The chancellor in his judgment after the first stage of trial found that John Woodfield had breached his fiduciary duty to his half-brother Michael, for whom he had been serving as conservator, when he allowed Michael’s benefits under the 1973 will to be deleted. The chancellor found the 2001 will “more than ‘tainted.’ ” The chancellor “specifically finds that pursuant to [In Re Estate of Smith], 827 So.2d 673 (Miss.2002), that the Last Will and Testament of Clyde Woodfield, dated September 26, 2001, is void due to a breach of confidential relationship and a breach of fiduciary duty of John V. Wood-field.” That finding is in response to the question posed in the same paragraph of the judgment, namely, “whether or not the September 26, 2001 ‘document’ survived as an instrument of revocation and therefore revoked all prior Last Wills and Testaments of the decedent.” The chancellor held that when John Woodfield withdrew the 2001 will from probate, it “was a withdrawal for all purposes” in part due to his finding of the breach of fiduciary duty.

¶ 15. On appeal, John,Woodfield presents five different arguments as to why it was error to find that the 2001 will was void and not to apply intestacy rules. The result of the chancellor’s supposed error was that it caused the “other issues as alleged by the Guardian Ad Litem” not to be addressed. We are not certain just what issues John Woodfield is referencing. His appellate brief summarizes that “all of the above Petitions filed by the Guardian Ad Litem essentially raise the issue of devisavit vel non contesting the validity of the September 26, 2001, Will....” As defined by eminent authority, this Latin phrase refers to the legal document used by a chancery court “to try the validity of a paper asserted and denied to be a will, to ascertain whether or not the testator did devise, or whether or not that paper was his will.” BlaCk’s Law Dict. (6th ed.1990), at 452; see Miss.Code Ann. § 91-7-29 (Rev.2004) (estate statute regarding “trial of issue devisavit vel non ”).

¶ 16. We accept that the appellate issue posed by John Woodfield is whether the chancellor erred in failing to hold that the 2001 will irreversibly revoked the 1973 will and that Clyde Woodfield in effect died intestate. John Woodfield’s 2003 motion to withdraw the 2001 will from probate noted that the will had been contested on various grounds. In the motion, John denied wrongdoing but said “it is in his best interests as well as the best interests of the Estate itself’ that the 2001 will be withdrawn. The motion also stated John Woodfield did not concede the validity of the 1973 will that his stepmother had offered for probate. We might interpret differently the precedent on which the chancellor relied, In Re Smith, in holding the 2001 will to be void. However, we need not explore In re Smith if we first conclude that withdrawing the will from probate, whether the will was defective or not, was valid and blocked the language of revocation from having any effect.

¶ 17. There is not much appellate court precedent regarding the refusal to probate a will. One well-reasoned and dated opinion by Justice George Ethridge recognized that all parties with an interest in an estate could refuse to offer a will for probate and agree to a different disposition. Parker v. Broadus, 128 Miss. 699, 91 So. 394 (1922). The appellant, who was the executor and not a beneficiary, argued in his brief that probate was mandatory:

If it was proper for [the testator] to want two of his children to receive the property and to want eight of them not to participate in it as his property, and having, as he did, left a last will and testament, then we have no hesitancy in urging upon this court the fact that the devisees in the will [must] be required to take under the will and not otherwise.

Broadus, 128 Miss, at 700, 91 So. 394. The only two children who received property in the will agreed not to probate and instead to share the estate with their siblings. The Supreme Court held that though a testator may dispose of his property in any manner, the beneficiaries also may “renounce the will where it contains no trust or other limitation upon the property devised or bequeathed by the will....” Id., 128 Miss, at 707, 91 So. at 395. Particularly relevant for the issue before us today, once the will is renounced by all interested parties, “the effect of the renunciation relates back to the time the will became effective so as to make it void where, as in this case, the property [in the renounced will] is devised unconditionally and absolutely to the beneficiaries.” Id.

¶ 18. If the agreement to renounce be “entirely free from fraud, and is made by all the parties in interest,” then the agreement is valid. Id. The chancellor in Broadus, V.A. Griffith, who would later serve twenty years on the Supreme Court, was quoted in the opinion:

It is difficult to perceive why the valid wishes of one of the dead should be more obligatory upon us than the equally valid, and in this case more generous, wishes of all the living. A testator may confer by will upon an heir a larger share of his estate than the law would give, but the testator possesses no potentiality to compel the heir to accept it, nor may the court do so for him. There could be no policy of the law, or public welfare or of public interest that could rise above that which would conserve and insure harmony, peace, and good will among the living members of a numerous family. The family settlement here is fair, equitable, and commendable from every standpoint of refinement of feeling and of unselfishness of affection, and it ought to stand.

Id., 128 Miss, at 708, 91 So. at 395. The wishes of the living took priority even over a letter left by the testator insisting that most of his children receive nothing. Id., 128 Miss, at 705, 91 So. at 394.

¶ 19. A pre-eminent scholarly authority on Mississippi law wills and estates law cited Broadus as sole support for the conclusion that “no one has a legal duty to probate a will. If all of the parties in interest are competent and do consent, they may agree not to probate a will but administer the estate as if the decedent died intestate.” RobeRT Weems, Wills & Admin. Of Estates in Miss. § 7.17 (3d ed.2003), at 175. Professor Weems mentions intestacy as the result of such an agreement. Indeed, that might be the usual agreement. Yet Broadus stands for the proposition that equitable agreements among beneficiaries may be enforced. Intestate distribution is not the only agreement that beneficiaries may make, nor was it the Broadus agreement.

¶ 20. We examine Broadus more closely to determine just what it does command.

Though in some jurisdictions an agreement to dispense with the probate of a will has been declared to be against public policy and void, in a majority of the decisions on the point it has been held that all the persons interested in a decedent’s estate may by agreement divide the estate among themselves, without probating such decedent’s will or administering the estate, and the validity of a contract having for its sole purpose the disposition of property in a manner different from that proposed by a testator, even where the contract contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest, would seem to be freely conceded. Thus it has been held that all the parties in interest may agree to eliminate from a will a clause providing for survivorship among them. But an agreement to resist the probate of a will and procure it to be set aside so as to cut off the interest of one who is not a party to such agreement is against public policy. Nor does the right of all the parties in interest to set aside or disregard a will extend to the case of an active trust, for a definite term, created by a testator as he deems proper for the protection of his beneficiaries.

Broadus, 128 Miss, at 707-8, 91 So. at 395 (quoting 28 R.C.L. Wills § 359 (1929), at 357-58).

¶ 21. This quote does not state that property must descend by the rules of intestacy once a will is withdrawn from probate. Instead, the legal principle is that when everyone with an interest in a decedent’s estate have agreed not to probate a will and instead to dispose the “property in a manner different from that proposed by a testator,” the enforcement of that agreement “would seem to be freely conceded.” Id. In Broadus, there was not an earlier last will and testament that was offered for probate after renouncing of the disfavored will. There was, though, an agreement that went beyond substituting the effect of intestate descent and distribution. An equal distribution among all ten children was agreed but then adjusted for advancements made by their father during his lifetime to individual children. Id, 128 Miss, at 706, 91 So. at 394. In the present appeal there was no contract regarding a new disposition. Instead, in the estate proceedings there were pleadings and perhaps orally expressed agreements that the 2001 will should be withdrawn. No agreement was reached on the final disposition of Clyde Woodfield’s property. We have two choices. One is to interpret Broadus as not permitting agreements to refuse the probate of a will unless -a definite alternative disposition is also agreed. The other option is to consider the issues of refusing to probate and the precise substitute disposition as independent.

¶ 22. Assistance in making that choice might come from a closer examination of the only authority on which Broadus relied. The Ruling Case Law encyclopedia it cited does not contain any useful summary of the point beyond the lengthy quotation we have already given. 28 R.C.L. Wills § 359, at 357-58. That section of the encyclopedia refers to case annotations as its principal authority. Id., 358 nn. 13 & 14. More recent annotations were cited in the last-issued supplement to this R.C.L. volume. 28 R.C.L. Wills § 359 (1942), nn. 13 & 13a. One annotation discussed enforcement of agreements in “cases where there was no contemplated ... attack upon the will.” Annotation, Validity of Agreement among Beneficiaries for Distribution in Manner or Proportions Other than that Provided by Will, 97 A.L.R. 468, 469 (1935) (citing Broadus). That annotation cited an earlier one that collected “cases of disagreement among devisees and legatees over the validity or construction of a will,” in which courts applied the right of litigants to settle disputes. Annotation, Right to Settle or Compromise Will Contest, and Validity of Agreement to Induce Others to Do So, 81 A.L.R. 1187, 1188 (1932) (citing Broadus). Though no dispute over a will’s validity existed in Broa-dus, its result was consistent with the general principle that litigants have the right to settle their controversies. The living may agree to avoid a potential dispute left behind by the dead.

¶ 23. The Woodfields consented to settle a dispute by withdrawing the 2001 will. The fact that the parties did not agree as to what happened next does not invalidate the consent. We do not address John Woodfield’s challenge to the chancellor’s application of precedents regarding undue influence and breach of fiduciary duty. Those arguments are irrelevant because of the agreement not to probate the 2001 will. By withdrawing the will, the need for a decision on its validity was avoided. The decision still needed was on the effect of the valid withdrawal of that will. The chancellor found that the earlier will could be probated once the later will was no .longer in issue. We turn to a review of the propriety of probating the 1973 will.

2. Probate of 1973 last will and testament

¶ 24. John Woodfield alleges that the 1973 instrument was a “lost will,” and the requirements of proving the effectiveness of such a will were not met. The original of the will could not be located at the time of trial. Four factors comprise the analysis for probate of a will that has been lost:

(1) the proof of the existence of the will; (2) evidence of its loss or destruction; and (3) proof of its contents. A fourth element has been added: (4) that the testator did not destroy the will with the intent to revoke it. This last element arose from the theory that when a will cannot be found following the death of a testator and it can be shown that the testator was the last person in possession of the will, there arises a rebuttable presumption of revocation.

Estate of Cannon, 733 So.2d 245, 249 (Miss.1999) (citations omitted). The trial judge found clear and convincing evidence supporting probate of the 1973 last will and testament.

¶ 25. At trial, the attorney who drafted the 1973 will testified about proper execution. There was evidence of testamentary capacity in 1973. The only contested lost-will issue in this litigation is whether the testator irretrievably revoked his earlier will. The widow Sharon Woodfield testified she gave the original will to John Woodfield to probate, but it was not produced at trial. Since there was evidence that the original still existed after the testator’s death, any presumption that the testator destroyed it was rebutted. A copy of the 1973 will was accepted into evidence.

¶ 26. Though there is little evidence to support that Clyde Woodfield destroyed the 1973 will, there certainly is evidence that in 2001 he wished to revoke previous wills and adopt a new one. The dissent argues that the 1973 will was revoked by the 2001 will and could not be revived. An analogy is made that when a testator revokes his latest will, he does not intend to revive previous wills. The analogy is not an apt one. The Broacfcs-approved refusal to probate a deceased’s last will is quite likely contrary to testator intent. We are not searching for the testator’s factual intent but for what legally replaces intent. By executing a will in 2001, Woodfield was rejecting intestacy with at least as much clarity as he was rejecting his 1973 will. The Broadus court stated, in words that cover testate and intestate situations, that “the renunciation relates back to the time the will became effective” and the will is effectively “void.” Broadus, 128 Miss, at 707, 91 So. at 395. This holding means that the disposition of the estate is as it would have been the day before the withdrawn will was executed. The dissent is correct that in Broadus there was no prior will. Still, that court chose to say that the will was “void,” not just withdrawn. The act of its execution is canceled, making all terms of the will void by the beneficiaries’ enforceable agreement not to probate.

¶ 27. We could review whether the 2001 will was always void and never validly expressed testator intent because of undue influence or a breach of fiduciary duty. A decision that it was void might create some comfort that the 1973 will better reflected the deceased’s intent near the end of his life than did intestacy. Still, whether the 2001 was ever effective is tangential to the controlling law pronounced in Broadus. Simply put, the beneficiaries may refuse to probate the final will, a right not based on the will’s potential defects. Once that is done, testator intent is lost. The dispute about the validity of the 2001 will was not necessary for the decision to withdraw it from probate, but that dispute strengthens the chancellor’s finding that the 1973 will could be probated.

¶ 28. Regarding equities, we note that the 1973 will was likely closer to testator intent than was intestacy. The only difference between the two last wills was in the dispositions to the testator’s two sons. In the 1973 will, certain bequests and devises were made equally to the sons. In the 2001 will, John Woodfield was the sole beneficiary of those provisions. The significant provision that the “homestead” would be owned solely by Clyde Wood-field’s widow and not also by the two sons, was the same in the two wills. It is also important that the beneficiaries were aware of both last wills and testaments when deciding not to probate the 2001 will. There was no collusion whereby a beneficiary or the chancellor was never informed about one of the wills.

¶ 29. By withdrawing the 2001 will, the parties reached a compromise of a dispute in this case. Had they not done so, the chancellor’s resolution of the validity of the 2001 will would have been subject to appellate review. The parties’ agreement moots such review if the agreement was validly entered. The compromise was accepted by the chancellor and is affirmed on appeal.

¶ 30. Our best choice about how to proceed once the last will is withdrawn by all beneficiaries is where the Supreme Court directs us. The cancellation “relates back to the time the will became effective so as to make it void,” a statement that may be broader than the facts of the opinion in which it appears but persuasive all the same. Broadus, 128 Miss, at 707, 91 So. at 395. The 2001 language revoking all prior wills never came into effect. Equity might on some facts require substitution of intestate disposition for a withdrawn will. It was proper to hold on the facts of this case, though, that the 1973 will should be considered as containing enforceable testamentary disposition once all agreed that the later will was too tainted for probate.

S. Interpretation of 197S will’s reference to “my homestead”

¶ 31. The 1973 will devised Clyde Woodfield’s “homestead and all of the furniture, fixtures and appliances located therein to my wife, Sharon Jeanne McCoy Woodfield.” The remainder of the testator’s real property was left in equal shares to his two sons, John and Michael. The chancellor determined that the entire 324 acres of the ‘Woodfield Farm” was devised by this provision. Since the 1973 and the 2001 last will and testament each had this provision, perhaps the most significant effect of a finding of intestacy would have been to alter the devise of this farm.

¶ 32. The chancellor found that this provision was ambiguous. Substantial parol evidence was admitted to explain its meaning. John Woodfield argued that the provision referred to a three-acre parcel that Clyde and Sharon Woodfield owned as tenants by the entireties with right of sur-vivorship. That tract would have become the surviving owner’s property by operation of law at the death of the other regardless of language in the will. John Woodfield also argued that an eighty-acre parcel on the north side of Woodfield Farms would have been included within the will language.

¶ 33. The chancellor rejected these arguments. Among the several items of evidence relied upon in the chancellor’s finding was that all the Woodfield Farm tracts were contiguous and fenced. The family home was within this tract. The land had been used by Clyde and Sharon Woodfield regularly for family activities and was treated during the testator’s lifetime as a unit. In the ambiguity of this provision, there was substantial flexibility for the chancellor’s fact-findings. Technical legal meanings were unimportant, such as determining what the spouses had claimed or legally could claim for ad valorem tax purposes. Discerning the testator’s intent as to what he wished to leave for his wife’s enjoyment after his death was key. We find no error in the determination that the entire Woodfield Farm was intended to be left to Sharon Woodfield.

A John Woodfield’s debts to the estate

¶ 34. The chancellor ordered John Woodfield to pay substantial sums to the estate for debts that had been incurred through the years prior to the father’s death. John Woodfield testified that some debts had been repaid and others forgiven, but his testimony was the principal evidence of that. Certain documents not produced during discovery were offered at trial, but they were unconvincing.

¶ 35. John Woodfield conceded that he owed $50,000 because a certificate of deposit titled in his father’s name was seized by a bank as security for a loan to the son that was in default. The total awarded by the chancellor, though, was over $260,000. The largest single item was a $90,000 promissory note from John to Clyde Woodfield, which the chancellor found was in default despite John’s argument that the loan had been forgiven. The principal plus interest, late fees and attorneys’ fees for collection being pursued by a Louisiana law firm, brought the total to about $144,000. There were other individual loans made by father to son which comprised the remainder of the total debt.

¶ 36. Substantial evidence supported that these debts were outstanding and they were properly found to be John Woodfield’s continuing obligation after his father’s death.

5. Attorneys’ fees

¶37. John Woodfield alleges that the chancellor erred in concluding “that somehow the withdrawal of the 2001 Will from probate by the Appellant created some obligation to pay the attorneys fees of all parties.” He argues that the withdrawal likely saved every attorney time and expense. The appellate brief does not point us to a specific court order or an amount that constitutes the award. He summarized by saying it was error to award “over $40,000” of attorneys’ fees.

¶ 38. To give the argument its due, we have examined the various orders and judgments to determine the source and explanation of the awards. In the order of April 25, 2003, which followed the first phase of the trial on March 18-21, the chancellor determined that Rule of Civil Procedure 11 sanctions should be imposed on John Woodfield for these reasons:

due to the untimely withdrawal of the September 26, 2001 Last Will and Testament of Clyde V. Woodfield, when John A. Woodfield had previously been notified of the Petition to Contest the Will as early as July 11, 2002 by the Guardian Ad Litem. The Court finds that John V. Woodfield proceeded to be a proponent of the Will until thirteen (13) days before trial on March 18, 2003, which caused all parties and their counsel to spend unnecessary legal and expert costs during the period John V. Woodfield knew the Will was “Tainted.” Further, the Conservatorship of Michael A. Woodfield was required to expend funds from its own account to defend a cause created and prosecuted, both actively and passively, by the very fiduciary whom was statutorily charged to protect the Ward’s interests.

One part of the sanction was Sharon Woodfield’s legal fees of $22,155.78, plus eight percent interest. Michael Wood-field’s temporary conservator and the conservator’s counsel were awarded a total of $15,220.78, plus interest in fees and expenses. This would appear to be the basis of John Woodfield’s complaint concerning approximately $40,000 in sanctions.

¶ 39. There is evidence that John Woodfield admitted that the 2001 will prepared by his former paralegal, removing his half-brother Michael from any distribution, was suspicious no matter what the justification might have been. John Wood-field stated that he decided not to “get everything under the 2001 will” and “to throw that will out; it may be tainted. That I certainly don’t want to even create an appearance of impropriety.” John Woodfield did not concede that there was no justification for the new will. There was evidence that he encouraged his father after Michael’s severe injury to revise the will, but that hardly falls to the level of punishable conduct. The testator was quoted as saying that due to Michael’s profound handicaps, he wanted to keep him from gaining substantial property that some government agency might claim such as to offset costs of care.

¶ 40. Sanctions such as attorneys’ fees under Rule 11 are a matter for the sound exercise of the trial judge’s discretion. Eatman v. City of Moss Point, 809 So.2d 591, 593 (Miss.2000). The chancellor had been presented with an itemization of the legal fees of the parties to whom this award was given. What was awarded was the entirety of the fees, whether connected to any issues .regarding the 2001 will or just to the more general issues of the estate. The chancellor did not address the validity of the charges when adopting without comment the amount of the fees that had been presented.

¶ 41. We note that in the final judgment of November 24, 2003, the chancellor awarded additional fees of $7,710 to the attorney for the conservator and $7,500 to Sharon Woodfield’s attorney, “not as sanctions, but as an equitable matter considering the litigation of this matter as outlined above.” We do not find that John Wood-field disputes those fees, and he has focused us solely on the earlier order of $40,000 imposed as sanctions.

• ¶ 42. The chancellor’s failure to differentiate between fees resulting from issues regarding the 2001 will and those generated by representation on other legal matters arising in the estate was error. There was considerable dispute between the parties that went beyond issues surrounding the 2001 will, and of course those differences have continued until today and perhaps beyond. Insofar as a portion of the fees resulted from a defense against the effort to probate the 2001 will, we must find that there was a basis to award them as a penalty. Under M.R.C.P. Rule 11(b), the court may award reasonable expenses and attorneys’ fees against a party or his attorney, or both, whose pleading or motion is frivolous or filed for the purpose of harassment or delay. A pleading “is frivolous within the- meaning of Rule 11 only when, objectively speaking, the pleader or movant has no hope of success.” Tricon Metals & Servs., Inc. v. Topp, 537 So.2d 1331, 1336 (Miss.1989). Ultimately, the chancellor had to, find as a matter of fact that John Woodfield’s actions in presenting the 2001 will were misconduct. We conclude that it was within his discretion based on the facts before him to determine that some of John Woodfield’s actions were frivolous or for the purpose of delay. But not all of what John Woodfield did prior to the March 2003 trial can be categorized that way. We have noted the reasons we do not need to decide whether the 2001 will was void. We conclude, however, that offering for probate a will drafted for the deceased not long before his death and for which little involvement by John Woodfield has been shown does not appear totally frivolous.

¶43. There is insufficient evidence to support that all these fees should be awarded as a penalty. We reverse the award and remand so that another review of the fees will be made, and a decision reached concerning what fees, if any, should be considered a valid sanction. At the least, fees that resulted from representing a party on issues besides the validity of the 2001 will should be removed from the penalty. More basic, another review of the asserted misconduct is needed.

6. Chancellor’s examination of Wood-field Farms property without a court reporter

¶44. John Woodfield argues that the chancellor improperly toured Woodfield Farms without' a court reporter. During the tour, the chancellor engaged in discussions with Sharon Woodfield and with others. Chancellor Griffin later made a statement on the record that he, the attorneys for John and Sharon Woodfield, and the temporary conservator Koennan toured Woodfield Farms together, and that he did so with the consent of the attorneys. John Woodfield concedes that the tour was without objection, but he argues that the chancellor should not have engaged in conversations. We find, though, that the parties consented to the tour and could have requested a court reporter.

¶ 45. If there was a desire to create a record of the event, there was a means to do so:

If no stenographic report or transcript of all or part of the evidence or proceedings is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement should convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of the appeal....

M.R.A.P. Rule 10(c). This option was not utilized. We will not speculate as to the conversations.

7. Recusal of Chancellor

¶ 46. John Woodfield argues on this appeal that the chancellor should have recused himself. As noted, the chancellor had authorized an interlocutory appeal on that issue between the first and second phases of the trial in 2008. A three-justice panel of the Supreme Court looked at the allegations of a disqualifying $500 campaign contribution by one of the attorneys to the chancellor, and found the argument to be without merit. The interlocutory appeal was dismissed, but we are bound by the ruling that appears in the order of dismissal on the insubstantial nature of the allegation.

¶ 47. We are not bound, though, to ignore evidence of later events that might require recusal. John Woodfield argues here that there was more than the improper donation. In his view, the fact that the chancellor who “admitted the will to probate resigned from office during the pen-dency of this case and joined the firm representing the other side also raised reasonable questions.” In addition, the brother of the partner of Sharon Woodfield’s attorney is the chancellor’s close and longtime friend. The chancellor and the friend also may have lunched together during one of the trials in this suit. Nothing in these claims required recusal. The 2002 campaign contribution made by the conservator to Judge Griffin was termed by the Supreme Court an insufficient basis for recusal, and we adopt that holding. The other issues of friendships between chancellor and certain lawyers are not sufficient grounds for mandatory recusal.

¶ 48. John Woodfield does not explicitly argue on appeal that the chancellor’s findings and conclusions revealed bias. The chancellor found that John Woodfield had “breached his fiduciary duty to Michael, his half-brother and Ward, and that this action is an unforgivable breach of justice to Michael.” Other significant findings of fact were against John Woodfield. The chancellor found that John Woodfield at times was not truthful, such as about his father’s forgiveness of debts. Judges must deal with the facts as they appear, and the resulting decisions occasionally can criticize a party or an attorney’s conduct. The chancellor did not go beyond his role in fairly examining the evidence and reaching the conclusions that in his view were directed by that evidence.

¶ 49. There was no error in the chancellor’s refusal to recuse himself.

¶ 50. We affirm the judgment except on the issue of the sanctions imposed on John Woodfield. That issue is remanded for further proceedings.

¶ 51. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED EXCEPT AS TO THE AWARD OF ATTORNEYS’ FEES OF $22,155.78 AND OF $15,220.78, PLUS INTEREST. THE PORTION OF THE JUDGMENT AWARDING THOSE FEES IS REVERSED AND THE CAUSE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APr PEAL ARE ASSESSED TWO-THIRDS TO THE APPELLANT AND ONE-THIRD TO THE APPELLEES.

KING, C.J., GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. LEE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J., AND BARNES, J. IRVING AND CHANDLER, JJ., NOT PARTICIPATING.

LEE, P.J.,

Concurring in part, Dissenting in part:

¶ 52. The majority reverses and remands for that portion of the judgment awarding Sharon Woodfíeld legal fees of $22,155.78, plus eight percent interest, and the award to Michael Woodfield’s temporary conservator and the conservator’s counsel of $15,220.78, plus interest in fees and expenses, with which I concur. Due to the practical implications of the remainder of the majority’s opinion, however, I must respectfully dissent. This Court’s holding that the withdrawal of a will from probate withdraws the will for all purposes may result, as it did in this case, in a prior will being revived that the testator clearly intended to revoke.

¶ 53. “[I]n the absence of countervailing evidence, a man in possession of his faculties, must be presumed to have intended to do what he did do.” Livelar v. Arnold, 233 So.2d 760, 763 (Miss.1970). Clyde Woodfield’s clear intent was that the 2001 will replace the 1973 will. This Court’s holding ignores his intent to revoke the 1973 will, whether the 2001 will is found to be effective or not. Clyde left this earth thinking that his affairs were in order and that his wishes would be carried out as specified in his 2001 will. Little did he know that the will that he assumed he revoked-would come back as valid.

¶ 54. A testator desiring to revoke a will has two options: the testator may destroy, cancel, or obliterate the will or cause it to be done in his or her presence, or the testator may revoke the will “by subsequent will, codicil, or declaration, in writing, made and executed.” Miss.Code Ann. § 91-5-3 (Rev.2004). The intent to revoke is essential to a revocation by act of the testator. McCormack v. Warren, 228 Miss. 617, 628, 89 So.2d 702, 706 (1956). Robert Weems in his treatise on wills and estates points out the following:

Two very important rules of Mississippi law should be noted with regard to a revocation clause. First, it is effective to revoke prior wills as soon as the instrument which contains the clause is validly executed. Even though a will in general is ambulatory and not effective until the testator’s death, this is not true of the revocation clause. The most important consequence of this rule is that the revocation of the subsequent writing would not operate to revive the will it revoked. Second, a clear, unequivocal statement of revocation in the. validly executed subsequent writing is conclusive on the matter of the testator’s intent to revoke the prior will.

Robert A. Weems, Wills & Admin, of Estates in Miss. § 5:3 (3d ed.2003) (footnotes omitted) (emphasis added). A revocation clause is a valid way to revoke a prior will. It cannot be assumed that if a testator wants a will revoked he will physically destroy it. In many cases this may be impossible as the original will may be misplaced or with an attorney or friend who no longer can be found. It may be argued that the language in the revocation clause of the will is boilerplate, and I am well aware that a will may revoke a previous will without an express statement of revocation. Regardless, when the testator goes through the effort of making sure explicit language revoking all previous wills and codicils is in the will then that language should not be ignored.

¶ 55. Clyde’s intent to revoke the 1973 will was evidenced by the first paragraph of the 2001 will in which he declared “this to be my Last Will and Testament, hereby revoking all previous wills and codicies [sic].” Parol evidence also existed to support Clyde’s desire to revoke the 1973 will. For example, Nick Thornton, John’s paralegal, and Danny Leggett, Clyde’s friend who served as a witness to the will, both testified that Clyde stated his reason for wanting to remove Michael from the will was to keep the government from seizing farm assets that would be given to Michael under the 1973 will. Thornton and Leg-gett also testified that Clyde stated that he was certain that John and Sharon would take care of Michael.

¶ 56. The majority holds that “withdrawing the will from probate, whether the will was defective or not, was valid and would block the language of revocation from having any effect.” The majority cites Parker v. Broadus, 128 Miss. 699, 91 So. 394 (1922), to support this holding. In Broadus, the deceased left all of his property to his two sons, to be owned and held or divided equally between them. As for his other eight children, the will provided that Broadus had “already deeded and conveyed to [his] other sons and daughters a great portion of [his] estate, both real and personal.” Id. at 704, 91 So. at 394. Attached to the will was a letter explaining why he did not want to leave the other children an inheritance. Id. Upon Broa-dus’s death, the two sons named in the will agreed to renounce the will and divide the property equally among the children, taking into account advancements made by their father during his life. Id. at 706, 91 So. at 394. The issue presented for review by the supreme court was “whether a family settlement entered into between parties all competent to agree, including all the beneficiaries of the will, can dispense with the probation of the will and renounce the will so as to make it ineffective as such.” Id., 91 So. at 395. While a testator has the right to dispose of his property in the manner he desires, the supreme court, quoting the chancellor, stated that “[i]t is difficult to perceive why the valid wishes of one of the dead should be more obligatory upon us than the equally valid, and in this case more generous, wishes of all the living.” Id. at 708, 91 So. at 395.

¶ 57. The majority’s reliance on Broa-dus is misplaced as the facts in the Wood-fields’ case are distinguishable. Clyde’s will contained a provision revoking all previous wills and codicils. Broadus’s will did not contain such a provision as there was no need for one since no earlier will existed. The majority relies on the following statement in Broadus for its holding: “when a will is renounced the effect of the renunciation relates back to the time the will became effective so as to make it void where, as in this case, the property is devised unconditionally and absolutely to the beneficiaries.” Id. at 707, 91 So. at 395. In my opinion, this statement in Broadus was only meant to apply in situations where no previous will existed.

¶ 58. Broadus stands for the proposition that those entitled to receive under a will, through agreement and absent a trust or other limitation, can decline to probate and receive as though the testator died intestate. The headnote correctly surmises the rule from Broadus that when beneficiaries properly “repudiate the will and enter into an agreement with the heirs in a family settlement, the renunciation relates back to the date of the death, and such will will not be probated, and administration may be had as in case of intestacy.” Id. at 699, 91 So. at 394. In discussing Broadus, Weems stated that “[i]f all of the parties in interest are competent and do consent, they may agree not to probate a will but to administer the estate as if the decedent died intestate.” Wills & Admin, of Estates IN Miss. § 7:17 (emphasis added). Therefore, when Clyde’s beneficiaries agreed to renounce his will the result should have been that his estate be distributed as if he died intestate. It is not logical to interpret Broadus to say that the beneficiaries of a will have the ability to renounce the will and reinstate a previous will that was obviously intended to be revoked by the deceased. The majority of this Court even states in discussing Clyde’s intent that “there is fairly convincing proof that he wished to revoke by replacing with a new one.” This Court must keep in mind that a testator has the right “to make such disposition not prohibited by law as may suit his purpose.” Id. at 699, 91 So. at 394.

¶ 59. I do not disagree with the well-settled law in Mississippi that the beneficiaries of a will may renounce their gift. I do disagree that when a will is renounced it is void for all purposes, thus possibly reinstating an earlier will which the testator clearly had the intent to revoke. The law, as interpreted in this case, provides no certainty that a will previously made is ever revoked.

¶ 60. In addition to my dissent regarding the interpretation of Broadus, I also must dissent to the finding that the will was not properly executed. Sufficient facts are not present to support the chancellor’s finding of undue influence.

¶ 61. The chancellor found that, because the will was drafted at John’s office while John was Michael’s conservator, the will was void. The chancellor stated “that pursuant to [In re Smith ], 827 So.2d 673 (Miss.2002), that the Last Will and Testament of Clyde Woodfield, dated September 26, 2001, is void due to a breach of confidential relationship and a breach of fiduciary duty of John V. Woodfield.”

¶ 62. The finding of undue influence was erroneous because In re Smith does not apply to this case. In Smith, the will was invalidated because the attorney preparing the will received a bequest from the testator, raising a presumption of undue influence. Id. at 678 (¶ 4). In this case, John did not prepare the will nor was he present when the will was signed. The 2001 will was prepared at John’s office by John’s paralegal on September 26. Danny Leggett, a family friend and witness to the will, testified that he, Clyde and John’s paralegal were the only ones present at the office when the will was executed. From the testimony presented to the trial court, John had nothing to do with the procurement of the 2001 will. It must also be noted that Clyde Woodfield, a former businessman and state senator, was not an uneducated or uninformed person, nor is it illogical that he would utilize his son’s law office to have his will typed.

¶ 63. Because John was not involved in creating the will the presumption of undue influence derived from In re Smith does not apply, as that case addresses the fiduciary duty between the attorney drafting the will and the testator. Whether the actions of John’s office assistant resulted in a breach of fiduciary duty to Michael has not been fully developed in the record or the court’s ruling. Regardless of the existence of such a breach, the chancellor’s conclusion that the breach occurred is not supported, by In re Smith, and I conclude that it was error to find such.

MYERS, P.J., AND BARNES, J., JOIN THIS OPINION.

      . The motion for rehearing is granted. The earlier opinion is withdrawn. This opinion’s writer did not participate in the initial decision, as he had just returned from a leave of absence. Having been on the court when the original decision was presented and not being disqualified or recused, the writing judge is eligible to participate in resolution of the motion. Cf. Dillard v. Musgrove, 838 So.2d 261, 266-67 (Miss.2003) (Waller, J., concurring.)


author: GRIFFIS, J., SOUTHWICK, J.,

text:
    Jackie TENTONI, Individually, and As Next Friend on Behalf of Her Minor Children, Melanie Tentoni, Johnathan Tentoni and Phillip Tentoni, Appellant v. Warren W. SLAYDEN, Appellee.
    No. 2005-CA-00529-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied April 24, 2007.

      Joseph S. Gatlin, III, attorney for appellant.
    Shelly G. Burns, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Jackie Tentoni, individually and on behalf of her minor children Melanie, Johnathan, and Phillip, filed suit against Warren “Wynn” Slayden in the Circuit Court of Madison County for personal injuries arising from a car accident. The jury found for Slayden. Jackie appeals and argue (1) she was entitled to a peremptory instruction on liability, and (2) the verdict is against the overwhelming weight of the evidence and is a product of passion, prejudice, or bias. We reverse and render as to liability, and we remand for a new trial on damages.

FACTS

¶ 2. On January 1, 1999, Jackie was operating her sports utility vehicle in the right, southbound lane on Interstate 55 in Carroll County. Melanie was in the front passenger seat, Phillip was in the back middle passenger seat, and Johnathan was lying down in the cargo area. Slayden was operating his vehicle in the left, southbound lane. It was raining, and the road was wet. Slayden was traveling about sixty-eight miles per hour, and had overtaken the eighteen-wheeler that was traveling behind Jackie.

¶ 3. Slayden’s vehicle hydroplaned when it ran over standing water. The Slayden vehicle went over into the right lane, striking Jackie’s vehicle’s left front bumper with its right front bumper. Slayden’s vehicle then spun around, hitting Jackie’s vehicle’s right rear bumper. This second impact knocked Jackie’s vehicle off the right side of the Interstate. Jackie’s vehicle ran over fallen logs, small trees, and was stopped when it slammed into a tree. The second impact also caused Slayden’s vehicle to run off the left side of the Interstate, coming to rest in the median.

STANDARD OF REVIEW

¶4. We review issues of law de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002). When reviewing the denial of a directed verdict, we consider the evidence in the light most favorable to the appellee. Harrah’s Vicksburg Corp. v. Pennebaker, 812 So.2d 163, 170(¶ 28) (Miss.2002). If the facts are so overwhelmingly in favor of the appellant that a reasonable juror could not have arrived at a contrary verdict, this Court must reverse and render. Id. On the other hand, if substantial evidence exists in support of the verdict, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, then this Court must affirm. Id.

ANALYSIS

I. Was Jackie entitled to a peremptory instruction on liability?

¶ 5. Jackie argues she was entitled to a peremptory instruction on liability, because Slayden was negligent per se, and he admitted causation and certain damages. Slayden does not dispute causation and the damages admitted at trial. Rather, he maintains that negligence was a jury question.

' ¶ 6. In Barkley v. Miller Transporters, Inc., 450 So.2d 416, 419 (Miss.1984), the supreme court affirmed a peremptory instruction on negligence when an eighteen-wheeler hydroplaned while attempting to pass another driver. The defendant driver Hiram Roberts admitted that it was raining and the roads were wet. Id. He admitted knowing of the danger that wet roads pose. Id. He admitted that he lost control of his truck. Id. The court held that Roberts had a duty of care while passing other vehicles under Mississippi Code Annotated Sections 63-3-609 and 63-3-611. Id. The court further held:

it is the duty of every driver to “see that which is in plain view, open, and apparent; to take notice of an obvious danger; and to be on the alert so as to avoid a collision with objects, vehicles, and others using the highway. Moreover, it is the duty of the driver of an automobile to take reasonably proper steps to avoid an accident or injury to persons or property after having knowledge of the danger.”

Id. at 419-20 (quoting Shideler v. Taylor, 292 So.2d 155, 156-57 (Miss.1974)). Because Roberts “ignored the danger he knew lay ahead, and as a result lost control of his truck” the peremptory instruction on negligence was appropriate. Id. at 420.

¶ 7. Barkley instructs our decision. Slayden admitted that it was raining and the road was wet. He admitted that he was aware of the dangers of hydroplaning. Nevertheless, he testified that he did not slow down. He maintained a speed near the posted speed limit. He admitted that he lost control of his vehicle when his car hit a patch of standing water. He ignored the danger and as a result lost control of his car. This testimony went undisputed. We find that Jackie was entitled to a peremptory instruction on negligence. Additionally, since Slayden admitted causation, Jackie was entitled to a directed verdict on liability.

¶ 8. Nevertheless, Slayden points to Shields v. Easterling, 676 So.2d 293, 295 (Miss.1996), in which the court denied a peremptory negligence instruction. That case involved a one vehicle accident in which a truck skidded over a patch of ice. Id. at 294. C.W. Easterling was driving a truck in which Flora Shields was a passenger. Id. It was dark outside, there was no precipitation, and the temperature was below freezing. Id. As the truck passed over the first bridge, it hit a patch of ice, and began to slip. Id. Easterling managed to regain control of the truck without incident. Id. He then slowed down his speed to forty-five miles per hour. Id. Ten to fifteen miles down the road, the truck passed over a second bridge, where it hit another patch of ice. Id. This time the truck fishtailed, and the trailer it was hauling jackknifed and flipped the truck. Id. The court denied the peremptory negligence instruction, because there was a jury question as to whether Easterling’s speed caused the accident. Id. at 295. The court also rejected Shields’s contention that “where an accident occurs involving no other vehicle, the driver ... is hable as a matter of law.” Id.

¶ 9. Shields is readily distinguishable. Easterling recognized that the bridges were icing over and took precautionary measures. Since he had a minor incident, he slowed down. It was a jury question as to whether it was reasonable for him to foresee that he would nevertheless have a major incident at the slower speed he chose. In the case sub judice, however, Slayden recognized the danger but did not slow his speed.

¶ 10. Therefore, we reverse and render as to liability. We remand for a new trial to assess the proper damages.

II. Was the verdict against the overwhelming weight of the evidence or the product of bias, passion and prejudice?

¶ 11. Jackie raised an alternative argument. We address this issue, because it will be instructive on remand. Jackie argues that the verdict was the product of bias, passion and prejudice. As evidence, she points to the defense counsel’s appeal for sympathy for Slayden and vilification of Jackie. Slayden argues that there was no objection to counsel’s comments, and they did not influence the jury.

¶ 12. During closing argument, Slay-den’s attorney stated:

But here’s the problem and here’s why. This has been going for Wynn Slayden and Brenda Slayden for six years. For six years, he has been carrying this burden and all the uncertainty and insecurity and stress that has been going along with this. He’s survived two heart attacks. And he’s sitting there with Nitroglycerine in his pocket right now.
Wynn Slayden has been the object of [Jackie’s] fixation and her obsession for six years. We ask that you return a verdict in his favor today and set him free from that at long last.

¶ 13. An attorney is afforded wide latitude in closing arguments, so long as she keeps fairly within the evidence. Eckman v. Moore, 876 So.2d 975, 986(¶ 38) (Miss.2004). When she “departs entirely from the evidence ... or makes statements intended solely to excite the passions or prejudices of the jury, or makes inflammatory and damaging statements of fact not found in the evidence, the trial judge should intervene to prevent an unfair trial.” Id. (quoting Clemons v. State, 320 So.2d 368, 371 (Miss.1975)). “Appeals to passion or prejudice are always improper and should never be allowed.” Id. at 987(¶ 40). Furthermore, a jury’s verdict may not be the product of sympathy. Forbes v. State, 771 So.2d 942, 949(¶ 18) (Miss.Ct.App.2000).

¶ 14. At the hearing on the motion for new trial, Slayden’s attorney admitted that the comments were irrelevant to the issue of liability. We agree. These statements were neither relevant nor based on the evidence. It is possible that the statements were made inadvertently and in the heat of the moment of closing argument. However, on their face, this statement appears to be intended to ignite the jury’s passions in favor of Slayden and against the Tentonis-Jackie, in particular. On remand, Slayden’s counsel is instructed not to repeat this conduct.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS HEREBY REVERSED AND RENDERED AS TO LIABILITY AND REMANDED FOR A NEW TRIAL ON DAMAGES. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE and MYERS, P.JJ., IRVING, CHANDLER, ISHEE AND ROBERTS, JJ„ CONCUR. SOUTHWICK, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BARNES, J.

SOUTHWICK, J.,

Dissenting:

¶ 16. The majority reverses the judgment entered on the jury’s verdict that the defendant was not negligent in the manner that he was driving. Liability is imposed as a matter of law, and the cause is remanded for further proceedings on damages. The majority’s believing that this defendant was negligent is reasonable based on the evidence. Yet I disagree that such a finding was legally mandated. Instead, the trial court properly instructed and entrusted the jurors about negligence. Since I would affirm, I respectfully dissent.

¶ 17. This accident occurred during rainy conditions. Testimony describing the precise weather at the time of the accident is scarce, and particularly whether the rain was especially heavy at the .time of the accident. The responding officer testified that it was raining and that it is not unusual for cars to hydroplane on this interstate highway in heavy rain. The plaintiff testified that after passing the tractor-trailer, she “felt water on the road, put [her] vehicle in extra traction” mode, and reduced her speed. The defendant testified that he was traveling sixty-eight miles per hour in a seventy mile per hour zone. He said it was raining, but he did not notice puddles on the highway as he passed the tractor-trailer. There was, though, enough water on the road or falling as rain that the tractor-trailer was “blowing water all over the top” of his car. The plaintiffs vehicle also created a spray.

¶ 18. There was some evidence that only after the defendant had passed the tractor-trailer, the plaintiff had moved back into the right-hand lane, and both parties’ vehicles had gone over the crest of a hill, was there a large amount of water on the road. . Not long after the parties started their descent on the hill, the hydroplaning began.

¶ 19. The defendant testified that he was “driving at what [he] thought was a safe rate of speed.” The speed he maintained was slightly less than the speed limit. He allegedly had been driving at that same speed for miles and did not think he needed to slow down further because of the weather. The majority refers to an admission that the defendant was aware that hydroplaning was a danger during rain. However, most drivers would be aware that hydroplaning is both a possibility and a dangerous one during heavy rain. The question the jurors faced was not whether it was a possibility, but whether he was complying with his duty “to take reasonably proper steps to avoid an accident or injury ... after having knowledge of the danger.” Barkley v. Miller Transporters, Inc., 450 So.2d 416, 420 (Miss. 1984). The majority finds Barkley compelling in its reasons for reversing, so I examine the facts of that case closely.

¶ 20. The Supreme Court described the Barkley accident this way:

On September 17, 1979, Jeanne Barkley was proceeding east down two-lane highway 98 from McComb to Columbia. She was being followed by appellee Hiram Roberts, Jr., driving an 18-wheel tractor-trailer rig owned by appellee Miller Transporters, Inc. It had been raining that day and the road was wet. This particular stretch had also been recently asphalted. Just prior to arriving at the long straightaway on which the accident happened,' both Barkley and Roberts passed a road sign which cautioned them that the upcoming stretch of road was slippery when wet. As they reached the straightaway, Roberts pulled into the west lane in order to pass Barkley. Before Roberts had completed his passing effort, he lost control of his truck. Seeing. this, Barkley, without applying her brakes, drove her vehicle off the road at forty miles per hour.

Id. at 417. The opinion does not refer to the speed limit on the highway, which implies that the court did not find the legal limit important. The following additional facts were gleaned from a review of the Barkley record. The speed limit at the location of the accident was not mentioned in the record or in the briefs that I could discover. Thus, whether the court would have found it important, there was nothing on which the court could rely. The plaintiff Barkley was traveling at about forty-five miles per hour when Roberts, the driver of a tractor-trailer, began to pass her and lost control. Barkley took her foot off the accelerator and slowed to about forty miles per hour prior to her vehicle going off of the road. Roberts was traveling between forty-five and fifty miles per hour while attempting to pass Barkley. The two were driving on a stretch of road approaching an asphalt plant. One of the signs the drivers passed while approaching the plant said “Slippery When Wet.” The responding state trooper testified that the road had recently been resurfaced in that location and was a common spot for accidents. The record as well as the Supreme Court opinion indicate that it was the slippery and wet new asphalt near the entrance to the plant, a condition for which a warning sign had been placed and seen by the defendant, that caused the defendant to lose control.

¶ 21. The Barkley court decided that it was justified to give a peremptory instruction that the defendant Roberts was negligent:

Appellee Roberts testified that on the day of the accident it was raining and the road was wet. He admitted knowing that oil rises to the surface of wet asphalt and admitted seeing the road sign that said “slippery when wet.” He further stated that, while passing, he lost control of his truck.
Mississippi Code Annotated § 63-3-609 (1972) provides that “the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.” (Emphasis added). Also, Mississippi Code Annotated § 63-3-611 (1972) provides that upon overtaking a car in such a manner passing must be effectuated in such a way as to be made completely “without interfering with the safe operation of ... any vehicle overtaken.” These statutes imposed upon appellee Roberts a duty of care in passing appellant. It is the duty of every driver to “see that which is in plain view, open, and apparent; to take notice of an obvious danger; and to be on the alert so as to avoid a collision with objects, vehicles, and others using the highway. Moreover, it is the duty of the driver of an automobile to take reasonably proper steps to avoid an accident or injury to persons or property after having knowledge of the danger.” Shideler v. Taylor, 292 So.2d 155, 156-157 (Miss. 1974). Appellee Roberts ignored the danger he knew lay ahead, and as a result lost control of his truck. The granting of the peremptory instruction was not error.

Barkley, 450 So.2d at 419-20. As does the majority, I seek in this precedent some standard that may be applied in later cases such as the one before us today.

¶ 22. To find the standard, I note that both in Barkley and here the only possible negligence arises from the defendants’ speed. True, in each case the defendant was passing another vehicle. However, the collisions resulted from losing control when hazardous road conditions were encountered, conditions which would not have caused any problem had the defendants been at sufficiently slower speeds. Different labels might be placed on the act of negligence — not maintaining control, not maintaining travel in the correct lane — but by whatever label, the foundation of possible negligence was driving too fast. There is tension between the general rule that the jury determines whether a defendant was negligent in light of the circumstances, and a finding that a driver, without stating a relation to any speed limit, was as a matter of law negligently driving too fast. The statutes used in Barkley have never been held to create strict liability for losing control of a vehicle. Since the defendant in Barkley was driving too fast as a matter of law, I am left with trying to glean from the court’s opinion a standard by which a defendant’s speed may be measured for negligence.

¶ 23. To understand Barkley better, I examine the ways in which the Supreme Court has interpreted its own decision. Ño Supreme Court opinion in the over-twenty years since Barkley was decided applied it to find that someone was negligent as a matter of law. In explaining why liability in a particular automobile accident was a fact question, Barkley was distinguished by explaining that the “evidence showed that the truck driver had been alerted to the slippery road and, as a result of his failure to exercise care in passing Barkley, lost control of his truck.” Twin County Elec. Power Ass’n v. McKenzie, 823 So.2d 464, 471 (Miss.2002). My review of the Barkley record, as explained above, confirms that the principal basis for liability was the warning sign about slippery conditions around the entrance to the asphalt plant when the roadway was wet. The defendant admitted he knew that fresh asphalt was dangerously slippery when.wet, and the plant entrance had an obvious build-up of fresh asphalt.

¶ 24. I find only two other cases that cite Barkley in situations comparable to those in this appeal. In one, the court reversed,, finding a close question on whether a directed verdict in favor of liability should have been entered. Dennis v. Bolden, 606 So.2d 111, 114 (Miss.1992). The court said that even though one duty of a driver was to be alert on the highway and avoid hitting what was plainly in view, that defendant’s striking of a child did not mandate a finding of liability since there was some offsetting evidence on whether the child could have been seen in time. Id. Another precedent involved whether an insurance policy covered a particular incident, but the court quoted Barkley to say it was a driver’s duty “to take reasonably proper steps to avoid an accident or injury ... after having knowledge of the danger.” Papa v. Miss. Farm Bureau Cas. Ins. Co., 573 So.2d 761, 763 (Miss.1990) (quoting Barkley, 450 So.2d at 420).

¶ 25. Occasionally Barkley has been cited in a dissenting opinion after a majority of the court held that the question of liability was for the jury to decide. Upchurch v. Rotenberry, 761 So.2d 199, 208 (Miss. 2000) (McRae, J., dissenting) (driver must take reasonable steps to avoid an accident once becoming aware of danger). The Barkley decision also has been cited on other issues, such as about uninsured motorist coverage. Mitchell v. United Servs. Auto. Ass’n, 831 So.2d 1144, 1154 (Miss. 2002); Massachusetts Bay Ins. Co. v. Joyner, 763 So.2d 877, 883 (Miss.2000).

¶ 26. My interpretation is that Barkley very much is limited to its facts, in part because there is so little from which the measure of neglected care can be discerned. Regardless of the speed limit on that highway segment, the Barkley court held that the combination of the warning sign of “slippery when wet,” the rain, and the obviously slick new asphalt, meant that the defendant was negligent. Perhaps there was even a component that regardless of the posted speed limit, the defendant’s driving close to fifty miles per hour in those conditions was irrefutably negligent. Seeing the wet asphalt and also having been otherwise warned, the defendant needed to slow more. Thus Barkley may best be viewed as a case of a specific, obvious and limited hazard encountered during travel on the highway, and the need to respond non-negligently to that hazard.

¶ 27. Our case concerns something rather different. The hazard was not a patch of wet and freshly laid asphalt that the parties suddenly but with notice came upon, but was the general weather conditions that had applied to travel for some length of time. To the extent Barkley may in part have allowed the defendant’s losing control to speak for itself as to whether he drove onto the wet and fresh asphalt with due care, the lengthy period of time the drivers in our case had proceeded without difficulty is certainly a distinction.

¶ 28. I apply Barkley to the instruction given the jury in the present case on the standard of care, an instruction to which no objection is made on appeal:

The Court instructs the jury that the law ... requires a driver of a motor vehicle to drive at a reasonable rate of speed for the conditions then and there existing; to keep and maintain a proper lookout for other vehicles using the roadway; and to maintain his or her vehicle under free and reasonable control and to drive in his lane of travel and not to change lanes until and unless he can do so safely....

¶ 29. The key is that the agreed standard for the jury’s use was one of reasonableness. What was reasonable in the circumstances, and those factual circumstances were explained as well as the parties could, might still lead to an accident.

¶ 30. The majority must be relying on one of three possibilities when it rejects any fact issue:

(1) The defendant may have been negligent per se. Negligence per se depends on violation of a statutory or other relevant standard. Thomas v. McDonald, 667 So.2d 594, 596 (Miss.1995). The defendant was not exceeding the speed limit nor did he violate any other traffic rule while under control of his vehicle. It is true that he lost control of his vehicle. However, loss of control may be caused both by avoidable and unavoidable reasons, which is a way of saying the loss of control may be negligent or non-negligent. Negligence per se is legally inapplicable.

(2) Similarly, the majority may be saying that the facts of this incident are uncontested and that undisputed evidence supports only one result. In such a view, the acts of potential negligence would so clearly fall short of what a reasonable driver would have done that no juror could conclude that liability should not be imposed. The difference between this viewpoint and negligence per se is that no identifiable statutory or regulatory standard would need to be violated.

¶ 31. The factual issue was whether he was driving too fast for the conditions. The jury said “no.” Before the jury’s answer can be found beyond its discretion, we must perform this review:

all evidence with reasonable inferences flowing therefrom must be accepted as true in favor of the party against whom the peremptory instruction is requested, all evidence in conflict therewith is disregarded, and, if such evidence is sufficient to support a verdict for the party against whom the peremptory instruction is requested, then it should be denied.

Downtown Grill, Inc. v. Connell, 721 So.2d 1113, 1123-24 (Miss.1998) (quoting Edwards v. Patrick, 469 So.2d 92, 95 (Miss. 1985)) (quoting Barkley, 450 So.2d at 419).

¶ 32. I will admit that on this bare appellate record, I would likely as a juror have found negligence. My appellate judicial duty is to determine, though, whether it was beyond the jury’s prerogatives not to find negligence. I believe the jurors could have concluded that even though the defendant was proceeding on the high end of a safe speed, he was not negligent based on the conditions before he topped the hill. There was evidence that his speed was almost identical to that of the plaintiff, as he testified that he had been following close behind her for miles. Further, once both parties went over the hill, the hazards of puddles that were then encountered might have been found not reasonably an-ticipatable in light of the conditions until that time. For analytical purposes, we could hypothesize one change to the events in this case: what the parties could see only as they topped the hill and started down was a tree that had fallen across the roadway. One driver then hit the tree before he could do anything else, and was forced by the tree into contact with another vehicle as occurred here due to the hydroplaning. Whether a driver should have better anticipated the chances of a tree having been knocked down across the road in a storm would be an issue for the jury.

¶ 33. Negligence is not usually presumed. I find that the undisputed evidence does not compel a finding that Slay-den was driving too fast. Jurors may have decided that the evidence did not sufficiently prove that the new condition that suddenly led to injury after all the drivers had been proceeding for so many miles without difficulty, was one which the defendant should have been better prepared to face.

(3) Finally, the majority may be implying that this is an occasion for the application of res ipsa loquitor, i.e., “the thing speaks for itself.” Read v. Southern Pine Elec. Power Ass’n, 515 So.2d 916, 919 (Miss.1987). I do not find that allowing the vehicle to hydroplane “speaks for itself’ when considering negligence. Most fundamentally, “the instrumentality causing the damage must be under the exclusive control of the defendant,” which is one of three elements of the doctrine. Id. at 920. The road and weather conditions were not under the defendant’s sole control. Implicit in the majority’s view, though, is that they see the case as loosely controlled by another element of res ipsa loquitor: “the occurrence must be such as in the ordinary course of things would not happen if those in control of the instrumentality used proper care....” Id. Since there is no evidence that the plaintiff was negligent, then surely the defendant must have been. However, “proper care” is the fact issue that I find was for the jury, and which was resolved in favor of the defendant.

¶ 34. The res ipsa loquitor doctrine is not often invoked, but its presence may be felt in some cases all the same. In the very first year of this intermediate court’s existence, our chief judge reviewed the doctrine at some length in an opinion that he later identified as one of his two most significant ones that year; he accurately noted that under Mississippi practice the doctrine creates only an inference and not a conclusive presumption. Southwick, Mississippi Court of Appeals: History, Procedures, and First Year’s Jurisprudence, 65 Miss. L.J. 593, 631-32 (1996) (citing Byars v. Wal-Mart Stores, Inc., 669 So.2d 786 (Miss.Ct.App.1995) (mem., not binding precedent) (Fraiser, C.J., concurring)). The Byars majority had not discussed the doctrine, but a dissent found it to be controlling. Byars, 669 So.2d 786 (Payne.J., dissenting). The majority in our case also does not cite this doctrine, but as a dissenter I sense its brooding and intrusive presence all the same.

¶ 35. I would affirm.

BARNES, J., JOINS THIS OPINION.


author: ROBERTS, J.,

text:
    Seriehel BELTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01299-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.
    Rehearing Denied Aug. 14, 2007.

      Seriehel Belton, Appellant, pro se.
    Office of:the Attorney General by Desh-■un Terrell Martin, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. On November 9, 2005, during a plea hearing before Judge Lamar Pickard, Ser-iehel Belton pled guilty to sale of cocaine and conspiracy to commit capital murder. On February 15, 2006, the Copiah County Circuit Court sentenced Belton to thirty years for the sale of cocaine charge and twenty years for the conspiracy charge. The circuit court specified that Belton’s thirty-year sentence for. selling cocaine was to run concurrently with his twenty-year sentence for conspiracy to commit capital murder.

¶2. On June 28, 2006, Belton sought post-conviction relief by way of a document titled “motion to vacate and set aside conviction and sentence.” By his motion, Bel-ton only sought to have his guilty plea on the cocaine sale indictment set aside based on what he considered ineffective assistance of counsel during his guilty plea. On July 18, 2006, the circuit court found that. Belton was not entitled to relief and that no evidentiary hearing was necessary. Accordingly, the circuit court overruled Bel-ton’s petition for post-conviction relief. Aggrieved, Belton appeals pro se and claims: (a) the circuit court erred when it accepted his guilty plea, (b) he had ineffective assistance of counsel during his guilty plea, and (c) he pled guilty under a void indictment. We find no merit to Belton’s allegations. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On November 1, 2005, the Copiah County Grand Jury returned an indictment against Seriehel Belton in Cause Number 2005-0178-CR. That indictment alleged that, on August 10, 2004, Belton sold cocaine to a confidential informant within fifteen hundred feet of a church in violation of Mississippi Code Annotated Sections 41-29-139 (Rev.2005) and 41-29-142 (Rev.2005) of the Mississippi Code. The indictment also alleged that Belton was a habitual offender under Section 99-19-81 of the Mississippi Code. Belton had previously been indicted for capital murder in Cause Number 2005-0119-CR.

¶4. On November 9, 2005, Belton pled guilty to the cocaine sale charge. Belton also pled guilty to a charge of conspiracy to commit capital murder. On February 15, 2006, the circuit court issued its sentencing order. The circuit court sentenced Belton to thirty years in the custody of the Mississippi Department of Corrections. The circuit court ordered that Belton’s sentence was to run concurrently with his twenty-year sentence for conspiracy to commit capital murder.

¶ 5. On June 28, 2006, Belton filed what amounted to a petition for post-conviction collateral relief, though it was titled as a “motion to vacate and set aside conviction and sentence.” Belton claimed he experienced ineffective assistance of counsel during his guilty plea in that his attorney coerced his plea.

¶ 6. On July 18, 2006, the circuit court entered an order and denied Belton’s petition for post-conviction relief. By that order, the circuit court found that Belton knowingly, intelligently, and voluntarily pled guilty and that, based on portions of his guilty plea colloquy, Belton’s attorney did not coerce his guilty plea. Belton appeals.

STANDARD OF REVIEW

¶ 7. In reviewing a circuit court’s decision to deny a motion for post-conviction collateral relief, we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Boyd v. State, 926 So.2d 233(¶ 2) (Miss.Ct.App.2005). However, we review questions of law de novo. Id.

ANALYSIS

I. DID BELTON PLEAD GUILTY KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY?

¶ 8. According to Belton, “there was no way knowingly [he] would plead guilty to the thirty years maximum time of the charge/or 20 years to the other, voluntarily.” Belton claims his lawyer “tricked, coerced and threatened [him] into pleading guilty.”

¶ 9. A guilty plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge and the consequences of the entry of the plea. Necaise v. State, 916 So.2d 553(¶ 4) (Miss.Ct.App.2005). The defendant must be instructed that a guilty plea waives his or her rights to a jury trial, to confront adverse witnesses, and to protection against self-incrimination. Id. “A plea is voluntary if the defendant knows what the elements are in the charge against him, including an understanding of the charge and its relation to him, the effect of the plea, and the possible sentence.” Id.

¶ 10. It is important to note that Belton raises absolutely no issue with the volun-tariness of his guilty plea to conspiracy to commit capital murder, though he draws much attention to his attorney’s advice that, had Belton rejected the prosecution’s plea offer, Belton would have gone to trial on the charge of capital murder and, if convicted, he could have received the death penalty.

¶ 11. Belton’s claim is belied by the transcript of his guilty plea. During Bel-ton’s guilty plea colloquy, Belton swore that it was his decision to plead guilty, that no one influenced his decision, that no one promised him anything in exchange for his plea, and that no one threatened him to compel his plea. The following exchange is noteworthy:

Q. All right. I want to make sure that you’re fully satisfied with your attorney. I want to make sure that you’re satisfied with the advice, the help, the assistance, the representation and so forth that your attorney has provided for you?
A. Yes, sir.
Q. No problem with your lawyer; is that right?
A. No, sir.
Q. All right. After a full discussion of your case, Mr. Belton, whose decision was it to plead guilty to these offenses?
A. Mine.
Q. All right. Has anyone influenced you or promised you anything, or is there any reward or hope of reward to get you to plead guilty?
A. No, sir.
Q. Have there been any threats made against you or any force or intimidation used against you to compel you to plead guilty?
A. No, sir.
Q. I want to make sure, Mr. Belton. Sometimes after a person pleads guilty and after they go to jail or whatever happens, they start writing these letters and telling that it wasn’t free and voluntarily, that they weren’t ever explained the law. And it’s all these types of things, or that somebody got them to do it, either their family members, or their lawyer, or the police, or whoever it might be. I want to make sure that’s not the case in your situation. This is your decision and yours alone; is that right?
A. Yes, sir.

¶ 12. Where the record and pri- or sworn testimony belie such a claim, an evidentiary hearing is not required. Tem-pleton v. State, 725 So.2d 764(¶ 11) (Miss. 1998). We apply a strong presumption of validity to a statement made under oath. Id. When we compare Belton’s previous sworn testimony during his guilty plea with his current claims, “the latter is practically rendered a ‘sham.’ ” Id. Under the circumstances, the circuit court’s decision to summarily dismiss Belton’s petition will stand. Additionally, when the present circumstances have arisen in the past, it has been said that such a petitioner “has obviously committed perjury, which may warrant appropriate actions by a grand jury.” Id. (citing Sanders v. State, 440 So.2d 278, 289 (Miss.1983) (Roy Noble Lee, J., specially concurring)). We certainly do not find the circuit court’s decision to be clearly erroneous. Suffice it to say, we And Belton’s contention meritless.

II. DID BELTON RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 13. Belton claims his attorney was ineffective in that he did not adequately investigate the cocaine sale charge and that he “didn’t do anything he was suppose to do in representing” him. To establish a claim of ineffective assistance of counsel, Belton must demonstrate (1) a deficiency of his counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Swington v. State, 742 So.2d 1106(¶ 22) (Miss.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Walker v. State, 703 So.2d 266, 268 (Miss.1997)). In deciding whether Belton’s counsel rendered ineffective assistance, this Court examines the totality of the circumstances surrounding the case. Swington, 742 So.2d at (¶ 22). Belton faces a “strong but rebuttable presumption that.his counsel’s conduct falls within a broad range of reasonable professional assistance.” Id. at (¶ 23). To overcome this presumption, Belton must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “A reasonable probability is a probability, sufficient to undermine confidence in the outcome.” Id.

¶ 14. We fail to see how Belton’s attorney rendered ineffective assistance of counsel. Though Belton does not seek to invalidate his guilty plea to conspiracy to commit capital murder while represented by the same hired attorney, our analysis requires that we discuss it. Belton repeatedly states that his attorney told him that he could get the death penalty if he did not take the plea agreement offered by the prosecution. That was correct advice. The logical interpretation of the events is that the prosecution was willing to permit Belton to plead to the lesser charge of conspiracy to commit capital murder and sale of cocaine, rather than go to trial on the capital murder charge. Belton’s attorney negotiated a plea agreement by which Belton avoided a possible life or death sentence and, instead, was sentenced to concurrent twenty and thirty year sentences. Additionally, even if we found that Belton demonstrated the first prong under Strickland, which we do not find, Belton does not allege that any imagined deficiency in his counsel’s performance caused him prejudice. Accordingly, we find no error and affirm the circuit court’s decision to dismiss Belton’s petition for post-conviction collateral relief.

III. DID BELTON PLEAD GUILTY PURSUANT TO A VOID INDICTMENT?

¶ 15. Belton filed what amounted to his original petition for post-conviction relief on June 28, 2006. Belton did not raise an allegation regarding the sufficiency of the indictment under which he pled guilty to sale of cocaine. However, on July 7, 2006, Belton filed a motion to amend his petition for post-conviction relief. The record does not contain an order by which the circuit court granted Belton’s motion to. amend.

¶ 16. In any event, within that motion to amend, Belton claimed the indictment against him was void or insufficient as a matter of law for three reasons: (1) the indictment indicated that it was returned during the July term, but the circuit clerk did not file the indictment until the November term, (2) the indictment did not specify the quantity of cocaine allegedly sold, and (3) the indictment did not verify, by crime lab report or expert witness, that it was actually cocaine that Belton sold. On July 21, 2006, the circuit court entered an order and found that Belton was not entitled to any relief. Though the circuit court noted Belton’s claims regarding the indictment, the circuit court did not specifically address those claims and found that Belton was not entitled to relief. Regardless, we find that Belton is not entitled to relief due to a deficiency in the indictment.

¶ 17. There is no merit to Belton’s claim that the indictment was void because it was returned during the July term, but filed during the November term. Pursuant to statutory law:

Unless otherwise directed by an order of the senior circuit judge, not more than two (2) grand juries shall be drawn or impaneled during a calendar year at or for a term or terms of the circuit court in any county or judicial district of a county; provided, however, upon impan-elment, a grand jury may be convened and reconvened in term time and in vacation. It shall continue to serve from term to term until the next grand jury is impaneled, and it may return indictments to any term of court, notwithstanding that a term of court at which criminal business may be conducted shall intervene between the time the grand jury is impaneled and the time an indictment is returned.

Miss. Code Ann. § 13-5-39 (Rev.2002) (emphasis added).

¶ 18. Regarding Belton’s second claim — that the indictment was void because it failed to specify the quantity of cocaine sold — failure to specify the amount of cocaine sold does not render an indictment void. “[WJith the exception of trafficking, the penalty for the sale of cocaine is the same regardless of the quantity that was sold.” Campbell v. State, 878 So.2d 227(¶5) (Miss.Ct.App.2004) (citing Miss. Code Ann. § 41-29-139(a)(1), (b)(1) (Rev. 2001)). “Therefore, the amount of cocaine that [Belton] sold was not an essential element to the crime.” Campbell, 878 So.2d at 229(¶ 5).

¶ 19. Finally, Belton cites no authority for his argument that the indictment was void because it did not verify, by crime lab report or expert witness, that it was actually cocaine that Belton sold. Accordingly, this issue is proeedurally barred. Robinson v. State, 806 So.2d 1170(¶ 19) (Miss.Ct. App.2002).

¶ 20. THE JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT DISMISSING THE APPELLANT’S PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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

      . Belton’s counsel was duty bound to fully advise Belton of the various options available to him and the possible consequences involved. That advice necessarily included outlining the worst case scenario of being convicted of capital murder and receiving the death penalty or, at best, life without parole. Performing that portion of counsel’s responsibility, while it may have been unsettling for Belton, did not amount to a coercive act on the part of defense counsel.