author: GRAVES, Justice,

text:
    Danny EDMONDS v. Sharon EDMONDS and Department of Human Services.
    No. 2005-CA-01270-SCT.
    Supreme Court of Mississippi.
    Aug. 3, 2006.

      William Paul Starks, II, Starkville, attorney for appellant.
    Danny Edmonds, pro se.
    Lisa Lynn Meggs, Oxford, for appellee.
    Before COBB, P.J., CARLSON and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. Danny Edmonds sought termination or reduction of child support payments based on his minor child’s incarceration and subsequent conviction on a murder charge. Sharon Edmonds filed a counter-petition seeking attorney’s fees incurred in the child’s defense. The Chancellor denied Danny’s motion but did award attorney’s fees to Sharon. Danny now challenges the chancellor’s ruling.

FACTUAL AND PROCEDURAL HISTORY

¶2. Danny and Sharon Edmonds were divorced on August 20, 1993, and Danny was ordered to pay $213 per month in child support for the couple’s minor child, Tyler. Tyler was incarcerated on a charge of murder in May of 2003. Danny filed a Petition to Terminate Child Support based on his son’s incarceration. Sharon filed an answer to Danny’s petition and filed a Counter-Petition to require Danny to contribute to the litigation expenses she had incurred and would continue to incur regarding Tyler’s criminal defense. The parties agreed to continue this matter until after the adjudication of Tyler’s criminal case.

¶ 3. Tyler was convicted of murder, as an adult, in Oktibbeha County Circuit Court in July of 2004 and sentenced to life in prison. Danny filed an Amended Petition to Terminate Child Support and Sharon responded by requesting that Danny be required to pay up to one-half of the costs associated with Tyler’s defense at trial and on appeal. The chancellor conducted a hearing on this matter in Clay County Chancery Court on March 23, 2005. The chancellor entered his judgment denying Danny’s petitions to terminate child support and ordering Danny to pay $5000.00 to Sharon for costs associated with Tyler’s appeal. Danny filed a Motion to Reconsider, Alter or Amend Judgment which the chancellor denied. Danny then filed his timely notice of appeal. Sharon has not filed a brief in opposition to Danny’s appellate brief. We affirm in part and remand in part for the reasons stated below.

DISCUSSION

¶ 4. On review, this Court “will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied.” Rennie v. Rennie, 718 So.2d 1091, 1093 (Miss.1998) (citation omitted). However, this Court reviews issues of law de novo. Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998). Where, as here, the appellee has failed to file a brief in a matter concerning child support and/or custody, “our practice is to make a special effort to review the record for support for affirmance” rather than to “take the issues raised by the opposing party as confessed.” Barber v. Barber, 608 So.2d 1338, 1340 (Miss.1992).

I. Emancipation.

¶ 5. Danny argues that the chancellor erred in failing to find that Tyler was emancipated based on his lengthy incarceration that resulted from his arrest and conviction for murder. Though Tyler did not meet the statutory definition for finding that a minor child has been emancipated, Danny contends that he should be relieved of his support obligation since Tyler is no longer in the custody of his mother and is being supported by the State of Mississippi.

¶ 6. In Rennie v. Rennie, 718 So.2d 1091 (Miss.1998), this Court went beyond the statutory definition of emancipation to find that a minor child was emancipated. In Rennie, the evidence showed that the daughter of the parties (Heather) was no longer in school, she gave birth to an illegitimate child, she moved out of her mother’s home to live with the father of her child, and she began working part-time; however, she later moved back in with her mother. Rennie, 718 So.2d at 1092-93. We reversed the chancellor’s grant of child support to Heather’s mother upon a finding that Heather was emancipated. Id. at 1094. In reaching this conclusion, we reasoned that when Heather voluntarily moved into an apartment with the father of her child, she had “removed herself from her mother’s care and control” and she was also supporting herself and her child upon leaving her mother’s household. Id. at 1094. While Heather did not meet the statutory grounds to be emancipated, as stated in Miss.Code Ann. Section 93-5-23 (Rev.2004), this Court stated that “[t]he statutory language is not exclusive” and “[o]ther situations, not contemplated by the statute, may also establish emancipation.” Id. at 1093. In Ren-nie, this Court also recited its definition of emancipation prior to enactment of the current statutory definition and recognized that the statutory definition enlarged, rather than diminished, the judicial definition. Id. at 1093-94. In Rennie, we found that Heather’s actions worked to emancipate her from her mother and release her father’s support obligation, and it did not matter that Heather later returned to her mother’s house because “once a child is emancipated, child support is terminated forever.” Id at 1094 (citing Crow v. Crow, 622 So.2d 1226 (Miss.1993)).

¶ 7. Danny contends that the instant situation is one of those not contemplated by statute that establishes emancipation. While he does not cite to any Mississippi law for the proposition that a non-custodial parent should be relieved from his/her support obligation upon the incarceration of the minor child, he invokes opinions from other jurisdictions to support this contention.

¶ 8. Danny cites to a Missouri Court of Appeals decision, Sutton v. Schwartz, 860 S.W.2d 833, 835 (Mo.Ct.App.1993), where that court opined that in the proper situation, a lengthy incarceration could suffice to emancipate a minor child yet held that the minor child was not emancipated in the instant case because the felony conviction did not result in a lengthy incarceration and the minor child “remained subject to his mother’s control throughout the relevant time frame.” The, Sutton Court reasoned that since “emancipation is the relinquishment. of parental control a life style change must be viewed from the standpoint of whether it has effectively, by its very nature, terminated parental control” and recognized that “[i]f a custodial parent is willing to help a child with behavioral problems, chemical dependency problems, and criminal convictions, the courts should not hinder the providing of such help by eliminating financial assistance by the noncustodial parent.” Id. 835.

¶ 9. In Garver v. Garver, 981 P.2d 471, 474 (Wyo.1999), the Wyoming Supreme Court made reference to the dicta from Sutton (opining that “lengthy incarceration may create an emancipation”) without finding such language applicable to the instant situation since there “remain[ed] a likelihood that Son will be released or placed on probation prior to serving a lengthy sentence.” The Garver Court agreed with the trial court’s recognition that a minor child’s “incarceration does not act to relieve the parents of their duty of support, a duty that arises from both statute and common law” and acknowledged that even though the minor child “has answered to criminal charges in district court, he remains a minor until he reaches 18, the age of majority” in Wyoming. Id. at 473-74.

¶ 10. Danny also cites to Gimlett v. Gimlett, 95 Wash.2d 699, 629 P.2d 450, 452 (1981), where the Washington Supreme Court recognized that emancipation can occur both by operation of law and based on the factual circumstances of a particular case. The Gimlett Court stated that the concept of an emaneipation-in-fact “reflects the legal recognition that certain events, such as marriage, military service, incarceration or economic sufficiency, may terminate the economic dependence a child has upon her parents” which causes the child “to be emancipated ‘in fact’ prior to reaching majority” and extinguishes in whole or in part a parent’s rights and duties. Id. at 452. While the above-quoted statement of the Gimlett Court recognizes that emancipation can be granted upon incarceration, the issue of a minor child being incarcerated was not before the Court in Gimlett. Danny relies on Gim-lett’s recognition that incarceration can be a ground for emancipation and attempts to use that case in conjunction with another Washington Supreme Court case, Sutherland v. Sutherland, 77 Wash.2d 6, 459 P.2d 397 (1969), to argue that Tyler’s long-term incarceration has caused him to be emancipated “in fact,” thus relieving Danny’s support obligation. The Sutherland Court stated that since the jurisdiction of the court to enforce child support judgments is predicated upon a child’s continued dependency:

[i]t follows that a mother cannot compel payments of support money for children whose dependency upon her has ceased by reason of death, emancipation by marriage, attainment of majority, service in the Armed Forces of the United States, adoption, incarceration in penal or other custodial institutions, or economic sufficiency resulting from earnings, gifts, or inheritance. In the absence of specific provisions to the contrary, there is a necessary implication in every decree for child support, that its binding effect shall extend into the future only for the period during which the children’s dependency upon their custodian continues.

Sutherland, 459 P.2d at 398-99 (citing Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759 (1956)). However, the Court in Sutherland, just as in Gimlett, was not faced with a scenario where it had to adjudicate whether an incarcerated minor was to be found emancipated.

¶ 11. Building on the notion from Sutherland that a mother cannot compel child support payments when a child is no longer dependent upon her because of attainment of majority, incarceration, etc., Danny points to various Mississippi cases to argue that Tyler should be considered emancipated, thus relieving him from making child support payments to Sharon, since Tyler no longer lives with Sharon and she is no longer responsible for the direct support and maintenance of Tyler. Danny notes that in Alexander v. Alexander, 494 So.2d 365, 368 (Miss.1986), we stated that both parents have “a continuing duty, both legal and moral in nature” to support the children of their marriage and that the child has a vested right to receive that support. We further recognized that “[ejhild support is awarded to the custodial parent for the benefit and protection of the child, the underlying principle being the legal duty owed to the child for the child’s maintenance and best interest.” Alexander, 494 So.2d at 368. Danny also cites to Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989), where we stated that “[c]hild support is given to the custodial parent strictly for the benefit and protection of the child.” The Nichols Court did state that “regular child support refers to the sums of money which the particular parent is ordered to pay for the child’s basic, necessary living expenses, namely food, clothing, and shelter,” yet we also recognized that a non-custodial parent may also be ordered to pay other expenses such as college tuition, health-related expenses (medical, dental, psychiatric), life insurance, and automobile and/or mortgage payments. Nichols, 547 So.2d at 769.

¶ 12. Danny argues that since Tyler has been convicted of murder, sentenced to life in prison, and is now in the care and custody of the Mississippi Department of Corrections (MDOC), he is no longer dependent on either of his parents for his daily support and maintenance. Based on these facts, Danny argues that Tyler is “emancipated in fact” and that he (Danny) should be relieved of his obligation to make child support payments to Sharon on Tyler’s behalf. Danny notes that since Tyler is no longer in Sharon’s custody, she “no longer has the financial obligations originally contemplated by said child support,” and he argues that her purported use of support payments to pay Tyler’s legal fees is “not an expense contemplated by the child support statutory or common law scheme.”

¶ 13. The chancellor, in denying Danny’s petitions to terminate child support, recited the statutory grounds for emancipating a minor child under Miss. Code Ann. Section 95-5-23, found that Tyler met none of the conditions for emancipation under statute, and ultimately found that Tyler was not emancipated. Based on the evidence before us, the chancellor was correct in finding that Tyler was not emancipated according to Miss.Code Ann. Section 95-5-23. However, as Danny notes, we have previously found that these statutory grounds for emancipation are not exclusive and that “other situations, not contemplated by the statute may also establish emancipation.” Rennie, 718 So.2d at 1093. Before us is the question of whether Tyler has been emancipated by virtue of his incarceration, such that his father should be relieved from paying child support.

¶ 14. While Danny makes a compelling argument that Tyler’s lengthy incarceration (a life sentence for murder) should, in and of itself, establish Tyler’s emancipation, the authority he presents for such a proposition is less than compelling. He acknowledges that he has found no Mississippi authority to support his position. Though a few sister jurisdictions have concluded that the lengthy incarceration of a minor could be considered a ground for emancipation for purposes of child support, none of those cases cited by Danny (Sutton, Garver, Gimlett, or Sutherland) hold that a minor child was emancipated by virtue of incarceration. As Danny has failed to point to any case where a court has actually found a minor- child to be emancipated based upon his/her incarceration, we decline to find that Tyler’s incarceration, in and of itself, worked to emancipate him from his parents.

¶ 15. Furthermore, the testimony at the motion hearing showed that even though Tyler now receives the majority of his support from MDOC, his mother still spends roughly $140 per month in support of Tyler, though this money is deposited into a canteen account at the correctional facility. Danny also admitted at the hearing that he was in arrears on his child support payments in the amount of $4,380.97. Though child support is typically awarded to the custodial parent, such an award is “for the benefit and protection of the child” and the benefits “belong to the child, and not the parent who, having custody, receives such benefits under a fiduciary duty to hold and use them for the benefit of the child.” Caldwell, 579 So.2d at 547 (citation omitted). Additionally, this Court has recognized that children have “a vested right ... growing out of the marriage relation” to support from both of their parents, a duty which is “both legal and moral in nature.” Alexander, 494 So.2d at 368.

¶ 16. With these rules in mind, we find that there is sufficient evidence in the record for the chancellor to conclude that Tyler is still receiving support and maintenance from his mother (despite his incarceration), such that the chancellor’s ruling that Tyler was not emancipated (and thus still entitled to support payments from Danny) is not an abuse of discretion. According to Alexander, Tyler has a vested right to the support of his parents. He is unable to provide for his own support, which is one of the strongest considerations in determining that a minor is emancipated, even though most of his needs are met by MDOC. Danny should not, therefore, be allowed to completely avoid the support obligation to which Tyler is entitled, even though Tyler is no longer under Sharon’s direct custody and control. Thus, we find that the chancellor did not abuse his discretion in denying Danny’s petition to terminate child support.

II. Motion for Modification of Child Support.

¶ 17. As an alternative to his argument that his child support payments should be terminated, Danny argues that he is entitled to a modification of child support based on a material change in Tyler’s circumstances and that the chancellor erred in failing to properly consider a modification of child support. Danny cites to an Illinois Appellate Court case, Van Winkle v. Van Winkle, 107 Ill.App.3d 73, 62 Ill.Dec. 831, 437 N.E.2d 358 (1982) (superseded by statute as stated in In re Marriage of Hawking, 240 Ill.App.3d 419, 181 Ill.Dec. 254, 608 N.E.2d 327 (1992)), to support this argument.

¶ 18. In Van Winkle, the father had filed a petition for modification seeking to terminate his child support obligation, based on the fact that his son was adjudicated a juvenile delinquent and was in the custody of the state’s department of corrections, which the trial court denied. Van Winkle, 62 Ill.Dec. 831, 437 N.E.2d at 359-60. The Illinois Appellate Court stated that a transfer in custody was the type of substantial change in circumstance that could warrant a modification and noted that while “placement of a minor child with the Department of Corrections does not relieve the parents of their duty of support,” it could not be denied that the facts before the Court showed that the minor child’s “current needs, while in the custody of State juvenile authorities, have substantially decreased.” Id. at 360. The Van Winkle Court remanded the case to the trial court because “the record does not disclose that a reduction in child support was considered by the trial court in its determination and that we cannot determine on the record before us that such a reduction was not warranted under the circumstances presented.” Id. at 361. While this case from a sister jurisdiction may be more factually similar than any Mississippi case found by Danny, we need not rely on Van Winkle for adjudication of this issue, as there are a number of Mississippi cases dealing with modification of a child support award.

¶ 19. As this Court has previously stated, modification of a child support award may be appropriate “if it can be shown that there has been ‘a substantial or material change in the circumstances of one or more of the interested parties: the father, the mother, and the child or children, arising subsequent to the entry of the decree to be modified.’ ” Caldwell, 579 So.2d at 547 (quoting Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983)). In Caldwell, we also articulated several factors to be considered in determining if a material change has occurred, including:

(1) increased needs caused by advanced age and maturity of the children (2) increase in expenses, and (3) inflation factor. Other factors include (4) the relative financial condition and earning capacity of the parties, (5) the health and special needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the father, (8) the estimated amount of income taxes the respective parties must pay on their incomes, (9) the free use of a residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support subject shown by the evidence.

Id. Our Courts have found the modification of a child support award (both an increase and reduction) to be warranted on a number of grounds. See Parker v. Parker, 645 So.2d 1327 (Miss.1994) (affirming reduction in support because father’s loss of income due to loss of job was a substantial and material change in circumstances); Setser v. Piazza, 644 So.2d 1211 (Miss.1994) (finding father’s support obligation should have been abated due to material change in circumstance where hurricane destroyed his home and his truck and trailer needed for his job); Edwards v. Edwards-Barker, 875 So.2d 1126 (Miss.Ct.App.2004) (affirming increase in support where evidence showed that costs of supporting children had increased as they got older and father was making more money than at time of divorce);.

¶ 20. Here, the testimony showed that Tyler was not living with either parent, but rather, was currently in the custody of MDOC serving a life sentence for murder. Sharon testified that she has not provided Tyler with meals, clothing, or other regular expenses since his incarceration. Sharon admitted that the State of Mississippi was now providing for Tyler’s food, clothing and shelter, but she stated that she had been putting roughly $140 per month in a canteen account which provided Tyler with toiletries and other items which are not provided by the State. These are facts which tend to show that a material change in circumstances has occurred since the time of the divorce decree. Neither parent is directly providing for Tyler’s daily support, and Sharon’s only support of Tyler, as it pertains to routine expenses normally contemplated by child support, consists of approximately $140 per month that she deposits into his canteen account.

¶ 21. Based on the record before us, there is sufficient evidence to warrant a consideration of Danny’s request for modification. Though the chancellor considered and rejected Danny’s argument that his support obligation should be terminated, the chancellor’s judgment fails to even address Danny’s alternative request that his child support payments be modified/reduced, a request which he made in both his original and amended petitions and in his Motion to Reconsider, Alter or Amend Judgment. Although this Court has stated that a “finding by the court that there had been no material change, and that the child support award should remain at [the same level], is reviewed under the manifest error/substantial evidence rule,” Caldwell, 579 So.2d at 547, we cannot uphold a chancellor’s finding (regarding a change in circumstances) when the record reflects that he did not address/consider whether modification was warranted. Accordingly, we find that the chancellor committed reversible error in failing to consider Danny’s modification request.

III. Payment of Child Support into Commissary Account.

¶ 22. Danny argues that if this Court does not terminate Danny’s child support obligation, he should be allowed to make child support payments directly to Tyler’s commissary account. He cites no authority for such a proposition and makes no allegation that it would be in error for the chancellor to continue allow payments to go through Sharon, who has a fiduciary obligation to see that the support payments are used for Tyler. See Caldwell, 579 So.2d at 547. We have recognized that an appellant has a duty “to provide authority and support of an assignment” of error and “this Court is under no duty to consider assignments of error when no authority is cited.” Drennan v. State, 695 So.2d 581, 585-86 (Miss.1997). We find this rule to be applicable here and hold that Danny is procedurally barred from having this issue considered on appeal for failure to cite to any authority.

IV. Attorney’s Fees.

¶ 23. Danny argues that the chancellor erred in awarding $5,000.00 to Sharon to pay for half of the attorney’s fees associated with Tyler’s criminal appeal. He complains that Sharon contracted with a private attorney without ever consulting him and argues that he should not be financially responsible for this unilateral expense which he claims was not a necessity, since Tyler was entitled to appointed counsel by the State. Danny claims that Sharon never requested attorney’s fees for Tyler’s appeal until March 17, 2005, the date she filed her response to his amended petition, and argues that Sharon incurred the disputed fees prior to that date since Tyler was convicted in July of 2004 and his appeal commenced shortly thereafter. Danny argues that under Kirkland v. McGraw, 806 So.2d 1180 (Miss.Ct.App.2002), and Van Winkle, the chancellor was only entitled to reimburse Sharon for expenses incurred on or after the date that she filed her petition to modify his child support obligation.

¶ 24. In rendering his judgment, the chancellor found that Sharon first made a request for an increase in child support to help pay Tyler’s legal bills on January 20, 2004, the date that she filed her Counter-Petition in response to Danny’s initial Petition to Terminate Child Support. While Sharon made a general request for an increase in child support to cover “future out-of-pocket expenses” in her Counter-Petition of January 20, 2004, she did not specifically request that Danny contribute to expenses associated with Tyler’s appeal until she filed her Petition to Modify on March 17, 2005. The chancellor did not hold Danny responsible for any of the attorney’s fees associated with the trial of Tyler’s criminal case, stating that “[a]ll of the evidence in this is that the approximate $104,000.00 incurred by Sharon and Tyler’s aunt was expended before the filing of the modification petition.” However, the chancellor did find that “Sharon made timely demand for Danny to contribute to Tyler’s appeal costs,” found $10,000.00 to be a reasonable fee for a criminal appeal and ordered Danny to pay $5,000.00 toward Tyler’s appeal.

¶ 25. The chancellor’s decision was based on the Court of Appeals’ decision in Kirkland v. McGraw. In Kirkland, the mother sought an increase in the amount of support payments made by the father, which the trial court granted. Kirkland, 806 So.2d at 1182. On appeal, the Court of Appeals held that the chancellor erred in ordering the father to pay for expenses associated with the son’s college education that were incurred prior to the mother’s filing of a petition to modify child support. Id. at 1184. The Kirkland court cited to Lawrence v. Lawrence, a case in which this Court stated that “the trial judge, may in his discretion, order the increased payments retroactive to the date the petition was filed.” Id. (citing Lawrence v. Lawrence, 574 So.2d 1376, 1383 (Miss.1991)). Based on the ruling in Lawrence, the Kirkland court held that “the chancellor could only order [the father] to pay college expenses incurred on or after the date [the mother] filed the petition to modify [the father’s] child support obligation.” Kirkland, 806 So.2d at 1184. While the chancellor was correct in finding that he may not order payment of expenses before a request for modification is filed, he erred in finding January 20, 2004, controlling since a specific request for attorney’s fees related to Tyler’s appeal was not made until March 17, 2005.

¶ 26. Also, there is a factual distinction between requiring a non-custodial parent to contribute to his minor child’s criminal defense and requiring a non-custodial parent to contribute to a minor child’s educational expenses associated with college. In scrutinizing the chancellor’s reliance on Kirkland and Laivrence, which held that a non-custodial parent could be required to contribute to educational expenses (including college), a discussion of the authority on which those cases rely, Nichols v. Tedder, is necessary to properly dispose of this issue. In Nichols, this Court invoked Miss.Code Ann. Sections 93-5-23 and 93-11-65, which address a court’s authority for making decisions concerning care, custody, support, and/or maintenance of minor children, and indicated that not only did these statutes cover orders for regular child support (such as food, clothing, shelter), they were also “ ‘susceptible of an interpretation to allow’ the court to order the payment of expenses for a college education.” Nichols, 547 So.2d at 768-69.

¶ 27. While we have recognized that a chancellor has the discretion to order payment for educational expenses associated with college, this recognition is based on the fact that Miss.Code Ann. Section 93-ll-65(l)(b) specifically provides for payment of educational expenses. We find no such provisions within Sections 93-5-23 or 93-11-65 that can be extended to payment of criminal defense expenses, which in our view, does not fit under the general provisions of “maintenance,” “support,” or “education” for a child. Miss.Code Ann. § 93-ll-65(l)(a)-(b). Therefore, we decline to extend Nichols, Lawrence, or Kirkland to the instant case. The holdings in those cases should not be read in such a way as to allow Sharon to hold Danny financially liable for the costs related to Tyler’s criminal appeal which she incurred unilaterally.

¶ 28. The “retroactive reimbursement of extraordinary expenses” should not be allowed in the case at bar. Van Winkle, 62 Ill.Dec. 831, 437 N.E.2d at 363. Based on Kirkland and Lawrence, Sharon’s request for appeal-related expenses was untimely, as Tyler was convicted in July of 2004 and his appeal commenced shortly thereafter, yet the request for attorney’s fees was not made until March 17, 2005. Additionally, we find that attorney’s fees related to a minor child’s criminal defense are not an expense contemplated by the child support provisions of Miss.Code Ann. Sections 93-5-23 and 93-11-65. Therefore, we find that the chancellor abused his discretion in awarding $5,000.00 in attorney’s fees to Sharon Edmonds.

CONCLUSION

¶ 29. We find that the chancellor did not abuse his discretion in finding that Tyler was not emancipated. However, the record before us does not reflect that the chancellor either considered or ruled on Danny’s request for a modification of child support. Accordingly, we remand this case to Clay County Chancery Court so that the chancellor may make a ruling on Danny’s modification request. We also find that the chancellor abused his discretion in awarding $5,000.00 in attorney’s fees to Sharon and vacate that award.

¶ 30. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY.

      . Miss.Code Ann. § 93-5-23 states in part:
      The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child:
      (a) Attains the age of twenty-one (21) years, or
      (b) Marries, or
      (c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or
      (d) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

      . Prior to the codification of Miss.Code Ann. Section 93-5-23, this Court defined emancipation as follows:
      Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent's legal obligation to support it.

        Rennie, 718 So.2d at 1093-94 (citing Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss.1991)).

      . The chancellor’s judgment explicitly stated:
      The Court finds that Tyler meets none of the definitions of this section. He is not 21, has not married, and is not full time employed. He did not voluntarily move from his home although it can be argued that he has independent living arrangements. The Court finds that Tyler is not emancipated.

      . As his second issue, Danny raises an argument that if child support is terminated, he should be granted retroactive credit for all payments made since July 2004. Since we found that the chancellor did not err in refusing to terminate child support, this issue is moot and further discussion is not necessary.

      . In her Counter-Petition, Sharon alleged that "[a]t the present time, family members have contributed $2,500.00 towards out-of-pocket expenses in the defense of the minor child, as well as future out-of-pocket expenses which have yet to be incurred” and requested that "the amount of child support should be increased to a reasonable amount to take into account the substantial litigation expenses which are being incurred on behalf of the minor child.” These statements indicate that Sharon was seeking to make Danny financially responsible for legal fees that had yet to be incurred.

      . We have previously held the reason the statutes cover college education is because they use the term "education” and do not exclude college education, making the extension logical. Pass v. Pass, 238 Miss. 449, 118 So.2d 769, 773 (1960).


source: Caselaw Access Project

author: COBB, Presiding Justice,

license: Public Domain

text:
    Cheryl ROBLEY, Ph.D. v. BLUE CROSS/BLUE SHIELD OF MISSISSIPPI.
    No. 2003-CT-02209-SCT.
    Supreme Court of Mississippi.
    Aug. 10, 2006.

      Paul J. Delcambre, Jr., Gulfport, attorney for appellant.
    James Altus McCullough, II, Cheri D. Green, Jackson, Whitney Morgan Stone, attorneys for appellee.
   ON WRIT OF CERTIORARI

COBB, Presiding Justice,

for the Court.

¶ 1. This appeal is before this Court on writ of certiorari from the Court of Appeals’ reversal of the Harrison County Circuit Court. After the close of Dr. Cheryl Robley’s case in chief, the trial court granted a directed verdict in favor of Blue Cross Blue Shield of Mississippi (Blue Cross) pursuant to Miss. R. Civ. P. 50(a). The Court of Appeals reversed the trial court stating that Blue Cross, via contract, created a fiduciary relationship with Cheryl Robley and therefore, whether Blue Cross breached its duty of confidentiality was a jury question. In its petition for certiorari to this Court, Blue Cross assigns as error the Court of Appeals’ holdings that: Robley’s insurance policy with Blue Cross created a fiduciary relationship; no claim for public disclosure could stand under the present facts; and Robley’s injuries were unforeseeable as a matter of law. We hold that the contract did not create a fiduciary relationship and therefore reverse the Court of Appeals and affirm the trial court on that issue. However, we agree that the trial judge erred in granting a directed verdict on the issues of breach of confidentiality and negligent infliction of emotional distress, and we reverse and remand for a jury’s determination of those issues.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Under a group health insurance contract sponsored by her husband’s employer, Robley and their daughter Kelly had dependent health care coverage. Robley had been a clinical psychologist in Tennessee prior to moving to Mississippi. During the 1980’s Robley began experiencing severe migraine headaches, and her efforts to treat them failed. The headaches were persistent and disabling and ultimately forced her to close her practice. As a part of her treatment for the headaches, Robley was prescribed narcotic medication by her physicians. Blue Cross, as Robley’s insurer, was privy to her medical records, including her prescriptions for narcotic medications.

¶ 3. In February 1997, Kelly was hospitalized several times at Gulf Coast Community Hospital and its affiliated Wound Care Center in Biloxi for treatment for severe deep abscesses which required continual care after her release, including attending to and re-wrapping their dressings. Because of Robley’s history with migraines and her husband’s concerns that he could not properly care for Kelly’s wounds, the staff of the Wound Care Center sought approval from Blue Cross for in-home visits by a home healthcare nurse. Approval was sought because home healthcare was not covered by the group policy and would require a policy extension.

¶ 4. Paula Mason, R.N., an employee of the Wound Care Center called Blue Cross seeking approval, and spoke with Sandra McFarland, R.N., who worked for Blue Cross and was the case manager assigned to Robley’s plan. The conversation between McFarland and Mason became the subject matter of the controversy. According to Mason, McFarland referred to Robley as a “drug seeker”, a derogatory term for someone who abuses prescription narcotic medication despite the fact that they do not need it. Upon conclusion of the call, Mason relayed McFarland’s comments to Robley’s husband, within hearing distance of Robley and Kelly. Robley claims that, upon overhearing McFarland’s comments, she entered a psychotic state which aggravated her migraines and left her bedridden for several days. Further, since the incident she has frequently become enraged, violent and suffered bouts of crying over minor events that previously would not have affected her.

¶ 5. On January 29, 1999, Robley filed suit against Blue Cross in the Harrison County Circuit Court. Her complaint sought damages for both intentional and negligent infliction of emotional distress, as well as breach of confidentiality. Preceding the listing of these specific counts was the statement “[bjecause of the nature of these [medical] records, Blue Cross/ Blue Shield had a fiduciary or other duty to maintain the confidentiality of these records.”

¶ 6. Blue Cross denied the allegations, asserting that it acted reasonably and in good faith with respect to its obligations under the policy. Following discovery, Blue Cross filed a motion for partial summary judgment as to the claim of intentional infliction of emotional distress which was granted. Soon thereafter Blue Cross filed a second motion for summary judgment in regard to the remaining claims, which the trial court denied.

¶ 7. The ease went to trial, and after Robley presented her evidence, Blue Cross moved for a directed verdict. Before hearing argument on the motion, the trial court suggested that, if the parties agreed, he would take the motion under advisement and then let the defense present its video of McFarland’s deposition, before excusing the jury for the day. There was no objection, the video was shown, and the jury was then dismissed for the evening. The trial court’s very first statement, before hearing argument on the motion, was “now that I have heard the testimony of the defense witness, it’s very difficult to separate it even in my own mind.” After an extensive hearing on the motion for directed verdict, the trial court stated:

In my view, no reasonable juror, giving every benefit of every inference that could be raised, could return a verdict and award damages to this lady under the facts that are here. Even if they could jump the issue of liability, breach of the duty to keep confidential this information, even if they could agree on that, legally they could not find any damages because there is [sic] none. And we all know you can’t have a negligence without injury.

¶ 8. When counsel for Robley asked the trial court whether “the basis for that ruling was the lack of foreseeability or simply the lack of evidence of the causal connection,” the trial court chose not to answer, saying “I’m not going to isolate the reason for granting of the directed verdict at this time.” After further discussion, the trial court stated that it directed a verdict in favor of the defendant because “there was no testimony that would support an award of damages which proximately resulted from this so-called breach of confidentiality. And without damages, there’s nothing for the jury to decide, even if they found there was a breach.” The directed verdict was then granted.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 9. On appeal, the Court of Appeals reversed the trial court, finding a fiduciary relationship existed between Blue Cross and Robley which required Blue Cross to evince a high degree of care as to the dissemination of her medical records. Robley v. Blue Cross/Blue Shield of Miss., 935 So.2d 1021, 2005 WL 1500300 at ¶ 12 (Miss.Ct.App.2005). Additionally, finding the record below was unclear with regard to whether Blue Cross lived up to that standard, the Court of Appeals remanded for a jury to make that determination. Id. at ¶ 13. Finally, the Court of Appeals held that, taken in the light most favorable to Robley, sufficient evidence existed to submit to a jury the causal connection between McFarland’s comments and Rob-ley’s injuries. Id. at ¶ 14.

ANALYSIS

I. FIDUCIARY DUTY

¶ 10. A fiduciary relationship is a broad term embracing technical fiduciary relations and informal relations which exist wherever one person trusts in or relies upon another. Burgess v. Bankplus, 830 So.2d 1223, 1227 (Miss.2002); Lowery v. Guar. Bank & Trust Co., 592 So.2d 79, 83 (Miss.1991). Traditional fiduciary relationships are found in cases of trustee and beneficiary, partners, principal and agents, guardian and ward, managing directors and corporation. Carter Equip. Co. v. John Deere Indus. Equip. Co., 681 F.2d 386, 390 (5th Cir.1982). However, our law applies a broad brush to this doctrine and does not preclude a jury’s finding of a fiduciary relationship in other situations. Id.

¶ 11. Ordinarily this Court does not impose fiduciary duties upon parties to a contractual agreement, but in some rare cases the terms of the contract itself create a fiduciary relationship. Id. However, this is only in cases where the contract relationship creates a justifiable special trust and confidence in the parties so that the first party relaxes the care and vigilance normally exercised in entering into a transaction with a stranger. Lowery, 592 So.2d at 83.

¶ 12. Although every contractual agreement does not give rise to a fiduciary relationship, in Mississippi such a relationship may exist under the following circumstances:

(1) the activities of the parties go beyond their operating on their own behalf, and the activities [are] for the benefit of both; (2) where the parties have a common interest and profit from the activities of the other; (3) where the parties repose trust in one another; and (4) where one party has dominion or control over the other.

University Nursing Assocs., PLLC v. Phillips, 842 So.2d at 1270, 1274 (Miss.2003). See Carter, 681 F.2d at 391. The Court of Appeals found that the language of the policy, alone, created a fiduciary relationship. The policy states in pertinent parts:

Each member receiving care under the Benefit Plan authorizes and directs any Provider to furnish to Company, at any time upon its request, all information, records, copies of records or testimony relating to attendance, diagnosis, examination, or treatment. Such authorization and compliance therewith by each Provider affected will be a condition precedent to rights to Benefits to each Member hereunder, and no Benefits will be provided in any case where such authorization is not given full effect. Company will utilize the information described in this paragraph for internal administration of the benefit Plan, medical analysis, coordination of benefit provisions with other plans, subrogation of claims, or in the reviewing of a disputed claim. Additionally, Company will hold such information, records, or copies of records, as confidential except where in its discretion the same should be disclosed.
Company, as a part of its utilization management activities, may disclose information about a Member’s utilization to a treating physician or a dispensing pharmacy.

¶ 13. This policy creates an arm’s-length relationship where medical records will be kept confidential except where, in the discretion of the company, the same should be disclosed. There is no indication from the policy or from the parties’ course of dealings that they acted in any way other than for their own best interests. The relationship was not conducted for mutual profit and Robley had not, nor should she have, reposed any special degree of trust or confidence in Blue Cross.

¶ 14. This Court has refused, in a similar case, to recognize the existence of a fiduciary relationship where the parties were involved in little more than an arm’s-length business transaction. Phillips, 842 So.2d at 1275 (citing Merchants & Planters Bank of Raymond v. Williamson, 691 So.2d 398, 404 (Miss.1997)); see also Szumigala v. Nationwide Mut. Ins. Co., 853 F.2d 274, 280 n. 7 (5th Cir.1988) (finding no fiduciary duty under Mississippi law between an insured and insurer in a first-party insurance contract). Although one does not typically enter into a contract with another person unless he or she has a degree of trust or confidence in that person, without more, such a transaction amounts to merely a business relationship and not a fiduciary relationship. AmSouth Bank, 838 So.2d at 216. The severity of the burdens and penalties integral to a fiduciary relationship should not apply to ordinary insurance policy transactions. Id.

¶ 15. That being said, there is nothing in the policy itself and no evidence presented to this Court which indicates a fiduciary relationship. The Court of Appeals’ decision misread this Court’s precedent and applied language to the policy which did not exist. As a result we reverse the Court of Appeals on this issue, and reinstate the ruling of the trial court that no fiduciary relationship existed under the policy between Robley and Blue Cross.

II. BREACH OF CONFIDENTIALITY AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

¶ 16. As a question of law, we review the grant or denial of a motion for a directed verdict de novo. Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1054 (Miss.2003). In reviewing a motion for a directed verdict this Court must decide whether the facts presented, together with any reasonable inferences, considered in the light most favorable to the nonmoving party, point so overwhelmingly in favor of the movant that reasonable jurors could not have returned a verdict for the plaintiff. Drennan v. Kroger Co., 672 So.2d 1168, 1170 (Miss.1996).

¶ 17. The pivotal question in the present case is whether the alleged disclosure of Robley’s medical history occurred and, if so, whether such disclosure was unnecessary and unreasonable. We remain mindful of the absolute sensitivity of confidential medical information possessed by insurance companies, and the importance of protecting that information from improper disclosure. An insurance company’s dissemination of an insured’s medical records must be governed by the strict necessities of the situation. However, there are situations where limited disclosure is appropriate under the terms of the policy.

¶ 18. As written, the policy allows Blue Cross, within its discretion, to release its patient’s medical records to the patient’s physician. The wording of the policy indicates clearly and unambiguously the terms of the agreement. This Court must give effect to the plain meaning of clear and unambiguous language. Jackson v. Daley, 739 So.2d 1031, 1041 (Miss.1999). Robley argues that her medical records should not have been released, for two reasons. First, her records were not necessary to further Kelly’s treatment. Second, that the records were released to Kelly’s physicians and not Robley’s physicians thereby violating confidentiality.

¶ 19. Although the language of the policy seems to give broad authority, Blue Cross does not have unfettered discretion to disseminate Robley’s medical records. There still remains a dispute between McFarland and Mason as to whether the term “drug seeker” was used. There was evidence presented at trial by both which contradicts the other’s story. This conflict should have been decided by the jury rather than the judge. From our review of the record, and giving due deference to the nonmoving party, reasonable jurors can disagree as to which party, McFarland or Mason, was telling the truth. This evidence brings into question whether there was a breach of confidentiality.

¶ 20. From the trial judge’s bench ruling, it appears the basis of his decision was Robley’s failure to present evidence of damages sufficient to prove a case of negligence. Thus, as a matter of law, the trial judge found that such evidence did not exist. With this conclusion we cannot agree. Robley’s expert medical •witness, Dr. Richard Strub, testified to a reasonable degree of medical certainty that this disclosure could have caused Rob-ley increased levels of stress and anxiety. Such an increase, in his opinion, “aggravated” her preexisting migraine headache condition. Dr. Strub described this as meaning “[Robley] would have more migraines during those times when she was thinking about [the disclosure] or worrying about it or dealing with it.” Further, that in his own observations, following the disclosure, her condition worsened and that “she was having quite a bit of trouble.” This evidence brings into question causation and damages.

¶ 21. While it is clear that the injuries alleged by Robley are unusual, their unique nature does not defeat her action. It is well established in this State, that in order for one to be liable in a negligence action the test is not whether they were able to foresee the particular type of injury suffered, but whether they could foresee an injury would result from their actions. M & M Pipe & Pressure Vessel Fabricators, Inc. v. Roberts, 531 So.2d 615, 618 (Miss.1988). One could foresee an injury might arise from the unnecessary and unreasonable disclosure of confidential medical records. Therefore, the uniqueness of the injuries claimed by Robley will not defeat her claim.

¶ 22. While Blue Cross had the right to disseminate Robley’s medical records under certain conditions, the means of doing so must be both necessary and reasonable. In this case it is not clear, as a matter of law, that Blue Cross acted appropriately in disclosing Robley’s medical records. We conclude that reasonable jurors could disagree. Blue Cross’s disclosure must remain tailored to the related medical purpose. As a result, we hold that the trial judge erred in granting Blue Cross’s Rule 50(a) motion.

CONCLUSION

¶ 23. We hold that the trial court was correct in granting a directed verdict as to Robley’s fiduciary duty claim. However, the issues of negligent infliction of emotional distress and breach of confidentiality remain jury questions. Therefore, we affirm the judgment of the Court of Appeals in part and reverse it in part, affirm the trial court’s judgment of no fiduciary duty, reverse the trial court’s judgment in all other respects, and remand this case for further proceedings in the trial court consistent with this opinion.

¶ 24. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

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

      . McFarland- and Blue Cross deny that the term “drug seeker" was ever used.

      . Dr. Strub, a board certified neurologist who practices at the Oschner Clinic, in New Orleans, Louisiana, has treated Robley since 1993. His testimony was admitted via video deposition.


author: WALLER, Presiding Justice,

text:
    Samuel Lee MILEY v. STATE of Mississippi.
    No. 2005-KA-01135-SCT.
    Supreme Court of Mississippi.
    Aug. 10, 2006.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office Of The Attorney General by John R. Henry, attorney for appellee.
    Before SMITH, C.J., WALLER, P.J., and DICKINSON, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. A jury in the Circuit Court of Scott County, Mississippi, convicted seventy-six-year-old Samuel Lee Miley of the statutory rape of his girlfriend’s fifteen-year-old daughter pursuant to Miss. Code Ann. § 97 — 3—65(l)(a) (Rev.2000). Miley was sentenced to five years in the custody of the Mississippi Department of Corrections. Miley appealed the circuit court’s judgment after the circuit court denied his motions for a directed verdict and for a new trial or judgment notwithstanding the verdict, and his request for a peremptory instruction. We affirm the circuit court’s judgment.

FACTS

¶ 2. Miley lived with his girlfriend who had a fifteen-year-old daughter, K.S. On a Monday holiday (Martin Luther King, Jr., Day) in 2004, Miley was at home alone with K.S., who was home from school. Miley’s girlfriend was at work. According to KS.’s testimony at trial, she and Miley were sitting on the couch together when Miley stated, “You don’t take care of me.” Miley then immediately instructed her to don a white tee shirt. K.S. testified at trial that she knew from past experience that Miley meant for her to take off all of her clothing, wear nothing but the white tee shirt, and have sex with him.

¶ 3. On the day in question, Miley used a particular brand of lubrication. K.S. told no one of the incident until Thursday of that same week, when she heard the issue of rape being discussed on a talk show. She then told her aunt and cousin what had happened. The minor later apprised her mother of the incident, and the mother believed her daughter because the brand of lubrication she mentioned was exactly the brand Miley used in his regular sexual encounters with the mother. The next day, Friday, the Department of Human Services took custody of the victim.

¶ 4. K.S. testified that Miley was the sole disciplinarian in the house and would punish her regularly, including prohibiting visits to her grandmother for a year when she once misbehaved in school.

¶ 5. Miley did not testify at trial and did not call witnesses to his defense. No medical evidence of intercourse was offered.

¶ 6. Once the State rested, Mitey moved for a directed verdict. The circuit court denied the motion and Miley’s request for a peremptory instruction. The jury found Miley guilty of statutory rape, and he wag, sentenced to five years in the custody o&> the Mississippi Department of Corrections. Miley then moved for a new trial or J.N.O.V. After the circuit court denied this motion, Miley appealed.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED BY DENYING MILEY’S MOTION FOR A DIRECTED VERDICT, MOTION FOR A NEW TRIAL/J.N.O.V. OR THE REQUEST FOR A PEREMPTORY INSTRUCTION.

Sufficiency of the Evidence

¶ 7. In considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. However, this inquiry does not require a reviewing court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).) Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Bush, 895 So.2d at 843 (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Bush, 895 So.2d at 843 (quoting Edwards, 469 So.2d at 70).

¶ 8. Under Miss. Code Ann. § 97-3-65(l)(a) (Rev.2000), the following elements must be proven beyond a reasonable doubt: (1) the alleged victim must be at least fourteen at the time of the rape but under sixteen years of age; (2) the accused must be at least seventeen years of age and more than thirty-six months older than the victim; (3) the victim must not be the accused’s spouse; and (4) the two must have engaged in sexual intercourse (meaning “the penis of the male is inserted into the vagina of the female”). Here, the only element under dispute is the “sexual intercourse” element.

¶ 9. Considering the evidence in the light most favorable to the State, we find that there was sufficient evidence to convict Miley of statutory rape. K.S. testified that she was alone in the house with Miley, that Miley was sitting near her on the couch and stated, “You don’t take care of me.” Immediately after this statement, Miley told K.S. to put on a white tee shirt. It is undisputed that she also took off everything else and wore nothing but the white tee shirt. The victim testified that Miley’s penis did penetrate her vagina, and she gave explicit detail of the incident (including testifying as to the approximate length of time engaged in intercourse and the approximate height above the floor at which her calves were positioned as they dangled from the bed on which she lay).

¶ 10. Miley argues that since K.S. is the only eyewitness to the alleged penetration, and since the victim was not fond of Miley’s disciplining methods and admitted that she had no affinity for Miley, her testimony as to sexual intercourse was suspect and therefore insufficient for conviction. However, the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence. Collier v. State, 711 So.2d 458, 462 (Miss.1998) (citing Christian v. State, 456 So.2d 729, 734 (Miss.1984)); Inman v. State, 515 So.2d 1150, 1152 (Miss.1987); Doby v. State, 532 So.2d 584, 591 (Miss.1988); Ragland v. State, 403 So.2d 146, 147 (Miss.1981). See also Williams v. State, 512 So.2d 666 (Miss.1987) (where nudity, in the totality of the circumstances, was an indicator of rape despite the victim’s inability to communicate anything directly to the court).

¶ 11. Here, although Miley attacks the victim’s credibility, her testimony was not sufficiently discredited to warrant overruling the verdict. Miley reiterated on appeal that “the possibility exists that ... [K.S.] conducted a deception to accuse Appellant falsely for [her] own purpose.” Deception might be a possibility but it is not a probability in this case.

¶ 12. There is evidence of difficulties between Miley and the victim not emanating from his sexual activity with her. However, her prior disagreements with him on other matters are not strong indications of falsehood about sexual intercourse with Miley, especially when coupled with the totality of the circumstances, particularly Miley’s sexually suggestive ritual of instructing the victim to wear a certain type of garment.

Weight of the Evidence

¶ 13. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush, 895 So.2d at 843 (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). On a motion for new trial, “the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 843 (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)). However, the evidence should be weighed in the light most favorable to the verdict. Bush, 895 So.2d at 843 (citing Herring, 691 So.2d at 957). A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Bush, 895 So.2d at 843 (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)). Rather, as the “thirteenth juror,” we simply disagree with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial. Bush, 895 So.2d at 843.

¶ 14. Sitting as a limited “thirteenth juror” in this case, we cannot view the evidence in the light most favorable to the verdict and say that an unconscionable injustice resulted from this jury’s rendering of a guilty verdict.

¶ 15. Miley argues that the verdict resulted in an unconscionable injustice. He claims on appeal that there was no proof beyond a reasonable doubt that he committed statutory rape because “[s]eventy-six year old men simply do not have that drive, except in very extraordinary circumstances.” However, Miss.Code Ann. § 97-3-65(l)(a) & (6) (Rev.2000) do not require proof of sexual drive for conviction of statutory rape; mere penetration, regardless of libido, suffices.

¶ 16. In determining the minimum proof necessary to prove penetration, we turn to Lang v. State, 230 Miss. 147, 87 So.2d 265 (1956), where this Court found that proof of penetration may be established by circumstantial evidence. Id. at 158-60, 87 So.2d at 268-69; see also Gray v. State, 728 So.2d 36, 61 (Miss.1998) (affirming Lang’s stance on proof of penetration). In Lang, the twenty-year-old victim was raped by an intruder in her house. Although there was no medical testimony and the victim never said on record the exact, or similar, words that she was raped, the Court affirmed Lang’s conviction, holding that (1) a reasonable jury could have deduced through the graphic detail of the victim’s story that she was testifying that the accused raped her; (2) the victim identified the accused in court by sight and by an odor distinct to the accused; (3) the police found evidence to corroborate the victim’s story that she attempted to disinfect herself afterwards; (4) the victim’s wallet, which was taken by the perpetrator or his accomplice, was found near Lang’s place of employment; and (5) Lang had no credible alibi. Lang, 230 Miss. at 152-57, 87 So.2d at 266-68.

¶ 17. In Wilson v. State, 606 So.2d 598 (Miss.1992), this Court reaffirmed Lang and noted that “[a]etual medical evidence of penetration ... is not necessary.... In the case at hand [as opposed to the testimony in Lang,] ... the prosecutrix did specifically testify that her private parts had been penetrated.... The testimony of the prosecutrix as to penetration is sufficient [to prove penetration].” Id. at 599. Wilson involved a thirteen-year-old girl who had been repeatedly raped by her stepfather. At trial, there was no medical testimony as to penetration. Wilson was convicted of capital rape [Miss.Code Ann. § 97-1-7 (attempted and incomplete rape of one less than fourteen years of age by one older than eighteen years of age) ]. We found the following evidence sufficient to sustain Wilson’s conviction: the victim’s testimony of penetration and the testimony of Wilson’s wife that Wilson confessed to her that he had sexual relations with the thirteen year old and that she witnessed Wilson performing sex on the child in the specific incident that later led to trial. While Wilson did give a full confession upon arrest and then later appealed on insufficient evidence, we did not take these facts into consideration when Wilson appealed.

¶ 18. In the present case, the evidence consists of (1) testimony from the victim that the accused’s penis penetrated her vagina, (2) a history of odd instructions from the accused to the victim to participate in sexual activities (i.e. lying nude except for a white tee shirt), and (3) testimony from the victim’s mother as to the similarities of the elements of the rape and the mother’s regular sexual encounters with the accused.

¶ 19. The case against Lang contained far less evidence than that presented here. The record shows that the prosecution established all of the elements of statutory rape under Miss.Code Ann. § 97-3-65(l)(a) (Rev.2000). Thus, the verdict did not result in an unconscionable injustice.

¶20. For these reasons, we find that the circuit court did not err in denying Miley’s motion for a new trial or J.N.O.V, his request for peremptory instruction, or his motion for directed verdict.

II. WHETHER THE CIRCUIT COURT ERRED IN ADMITTING EVIDENCE OF PRIOR ACTS OF INTERCOURSE BETWEEN MI-LEY AND THE VICTIM.

¶ 21. Under Rule 403 of the Mississippi Rules of Evidence, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 404(b) of the Mississippi Rules of Evidence dictates that evidence of prior “crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (Emphasis added). See also Carter v. State, 450 So.2d 67, 69 (Miss.1984).

¶ 22. Under Rule 105 of the Mississippi Rules of Evidence, when evidence against a party is admissible for one purpose but not for another purpose, the trial court must limit the scope of the evidence and instruct the jury accordingly.

¶23. The evidence of whether Miley had ever before asked K.S. to don a white tee shirt and whether he had ever before had sexual relations with her was inadmissible to directly prove the crime for which he was indicted. However, the circuit court found that the evidence was more probative than prejudicial, would be helpful to the jury in defining the issues (issues such as why the girl would take off all of her clothes though not specifically instructed to do so), and was therefore admissible on the condition that the State not delve into the details of the alleged prior incidents. The circuit court also gave the jury a limiting instruction as to how this evidence should be used.

¶ 24. The circuit court’s ruling met the requirements of Rules 105, 403 and 404(b). There is no abuse of discretion on this issue; and therefore, there is no reason to overrule the circuit court’s discretionary decision to admit this evidence of prior acts. Brooks v. State, 242 So.2d 865, 869 (Miss.1971) (reaffirming the tenets of Rule 404(b) and stating that in statutory rape cases evidence of prior sexual acts between the accused and the victim is admissible). See also Hicks v. State, 441 So.2d 1359, 1360 (Miss.1983); Speagle v. State, 390 So.2d 990, 992 (Miss.1980); Kolb v. State, 129 Miss. 834, 835, 93 So. 358, 360 (1922) (stating the relation of the male and female prior to the alleged act may be shown in evidence for the purpose of showing opportunity and otherwise corroborating the testimony of guilt at the time of the act).

CONCLUSION

¶25. For these reasons, we affirm the trial court’s judgment.

¶ 26. CONVICTION OF STATUTORY RAPE AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY AND GRAVES, JJ., CONCUR IN RESULT ONLY.


author: DICKINSON, Justice, for the Court.

text:
    CITIZENS NATIONAL BANK v. DIXIELAND FOREST PRODUCTS, LLC, Pacesetter Properties, Inc., and Elwin Randy Pope.
    No. 2005-IA-00384-SCT.
    Supreme Court of Mississippi.
    Aug. 10, 2006.

      Don 0. Rogers, Meridian, attorneys for appellant.
    Henry Palmer, attorneys for appellee.
    Before WALLER, P.J., DICKINSON and RANDOLPH, JJ.
   DICKINSON, Justice, for the Court.

¶ 1. In this unusual case, a bank wore two litigation hats as to one of its customers. It was both a defendant in a lender-liability lawsuit filed by the customer and a judgment creditor as a result of successful litigation against the customer. The first question presented is whether the bank, in its role as judgment creditor, may purchase at a sheriffs execution sale the customer’s chose in action, that is, the customer’s lawsuit against the bank. If so, then the second question is whether the bank may substitute itself as the plaintiff, and real party in interest, and have the litigation against itself dismissed.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Citizens National Bank extended lines of credit totaling $2,500,000 to Elwin Randy Pope and his wholly owned companies, Dixieland Forest Products, Inc. and Pacesetter Properties, Inc., for the purchase of real estate. Pope alleges the bank cancelled these lines of credit without justification, essentially ruining his business. On March 7, 2003, Pope, Pacesetter, and Dixieland filed a Complaint (later amended three times) asserting a variety of lender liability claims against the bank. The final Amended Complaint sought general damages “in an amount in excess of $4,000,000, punitive damages in an amount to be determined to be fair and reasonable by the jury, a reasonable attorney’s fee and all costs.”

¶ 3. When the bank filed its Answer, it included counterclaims for debts owed to it by the plaintiffs and a third party. The bank’s first counterclaim and third-party complaint was against Clarkdale Development Group, LLC, as the maker of a November 12, 1999, promissory note for $850,025.00, and against Pacesetter and Pope as guarantors.

¶ 4. The bank’s second counterclaim was against Pacesetter as maker of a February 3, 2003, promissory note for $123,852.42, and against Pope as guarantor. During the litigation, the bank foreclosed on a deed of trust it held as security for this note. The sale proceeds were then applied to the note, leaving a deficiency of $30,866.31.

¶ 5. In addressing four separate Motions for Summary Judgment filed by the bank, the trial court denied summary judgment on the lender liability claims filed by Pope and Pacesetter, but granted summary judgment as to those filed by Dixie LLC. As to the counterclaims, the trial court granted the bank summary judgment against Clarkdale and Pope in the amount of $815,083.60, plus specified interest, and against Pacesetter in the amount of $30,866.31, plus specified interest. Thus, the issues left unresolved after the disposition of the bank’s summary judgment motions were Pope’s and Pacesetter’s lender liability claims against the bank and the bank’s claims for attorney’s fees and collection costs to be determined at a future damages hearing. However, in entering the summary judgments on August 23, 2004, the trial court stated there was “no just reason for delay and this judgment should be made final under Rule 54, MRCP.” The plaintiffs did not appeal the summary judgments, and they are therefore now final.

¶ 6. Although the bank attempted to collect the judgments by enrolling them in the Judgment Roll Books of several Mississippi counties and by sending eighteen writs of garnishment to financial institutions, the bank asserts that its efforts failed to yield payment. When the plaintiffs tendered two checks to the bank to bring current their indebtedness, the bank returned the checks, stating that the amounts did not cure the default.

¶ 7. On September 20, 2004, at the request of the bank as judgment creditor, the Lauderdale Country Circuit Court Clerk issued writs of execution directed to the sheriff to levy on Pacesetter’s and Pope’s choses in action filed in the Laud-erdale County Circuit Court, cause number 03-CV-030-B. The writs were served, and on October 4, 2004, the choses in action were sold for cash at auction by the sheriff at the front door of the Lauderdale County Courthouse. The plaintiffs neither attended nor bid at the sale. The bank, as the highest bidder, made the following purchases:

(1) The ownership interest (including stock) of Pope in Dixieland, for $1,000.00.
(2) The claims and choses in action of Pacesetter against the bank, including but not limited to those claims made in the lawsuit pending in the Circuit Court, assigned cause number 03-CV-030-B, for $10,000.
(3) The claims and choses in action of Pope against the bank, including but not limited to those claims made in the lawsuit pending in the Circuit Court, assigned cause number 03-CV-030-B, for $40,000.
(4) The ownership interest (including stock) of Pope in Pacesetter, for $15,000.
(5) The ownership interest (including stock) of Pope in Dixie LLC, for $25,000.

¶ 8. After receiving a total amount of $91,000 for the successful bids, the sheriff executed conveyances to the bank (as successful purchaser) and paid the money received to the bank (as judgment creditor). Those conveyances were filed and indexed by the Circuit Clerk.

¶ 9. After the execution sale, Pacesetter and Pope subtracted the sale proceeds credit of $91,000 and paid the bank the balance of the final judgments, including attorney’s fees and collection costs. Fully satisfied of its claims, the bank released all pending garnishments, cancelled the enrolled judgment liens, and released the other collateral it held.

¶ 10. The bank then filed a motion in the lender liability suit (which it had purchased) to substitute itself as the party plaintiff and to have the suit dismissed. The bank argued that because it owned all of the remaining claims in the suit, it could rightfully dismiss them. The plaintiffs claimed, however, that the execution sale did not attach to their choses in action, particularly their claim for punitive damages. On November 30, 2004, the trial court denied the bank’s motion.

¶ 11. On December 2, 2004, we released our decision in Maranatha Faith Center, Inc. v. Colonial Trust Co., 904 So.2d 1004 (Miss.2004), which affirmed a Lowndes County Sheriffs execution sale of a chose in action. Based on this ruling, the bank filed a Motion to Reconsider, which the trial court heard on January 24, 2005, but denied, stating that Maranatha was too factually dissimilar to be applicable to the instant case. On February 22, 2005, the bank filed its Motion for Permission to Appeal Interlocutory Order, which this Court granted. See M.R.A.P. 5.

DISCUSSION

¶ 12. The bank presents this Court with two specific issues for consideration: (1) whether the trial court erred in denying its Motion to Substitute Party Plaintiffs; and (2) whether the trial court erred in denying its Motion to Dismiss the claims in cause number 03-CV-030-B.

I. Whether the trial court erred in denying the bank’s Motion to Substitute Party Plaintiffs.

¶ 13. A motion to substitute under Mississippi Rule of Civil Procedure 25(c) is generally discretionary in nature. When we review a decision that is within the trial court’s discretion, we first ask “if the trial court below applied the correct legal standard. If the trial court applied the right standard, then this Court considers whether the decision was one of several reasonable ones which could have been made.” Amiker v. Drugs for Less, Inc., 796 So.2d 942, 948 (Miss.2000) (citing Burkett v. Burkett, 537 So.2d 443, 446 (Miss.1989)). We will affirm a trial court’s decision “unless there is a ‘definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing the relevant factors.’ ” Amiker, 796 So.2d at 948 (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990)). For issues of law, though, this Court employs de novo review. State Indus., Inc. v. Hodges, 919 So.2d 943, 944 (Miss.2006).

A. Maranatha Faith Center, Inc. v. Colonial Trust Co.

¶ 14. The Plaintiffs cite a single authority in their brief, Maranatha, so a discussion of that case is an appropriate starting point. In February 2003, the Chancery Court of Lowndes County entered a final judgment against a debtor, Maranatha, and in favor of its creditor, Colonial Trust, for $876,753.08. Maranatha, 904 So.2d at 1005. After the judgment went unsatisfied for several months, Colonial Trust levied execution on Maranatha’s chose in action against another company, styled Maranatha Faith Center, Inc. v. Kerr-McGee Corp. Id. Maranatha moved to quash the writ and stay the execution, but the trial court denied these motions. Id.

¶ 15. The issue before this Court, one of first impression, was “[wjhether an action for unliquidated damages can be executed upon by a judgment creditor and subsequently sold at public auction, possibly to a third party.” Id. Maranatha argued that a writ of execution could only be applied to the proceeds of a lawsuit, not to the lawsuit itself. Id. at 1006. Additionally, Maranatha claimed that a writ of execution could not be applied to intangible property, like a pending lawsuit. Id.

¶ 16. The Court looked to Mississippi Code Annotated Section 11-7-7 for guidance, which provides, in part, “[a]ny chose in action or any interest therein, after suit has been filed thereon, may be sold or assigned the same as other property .... ” Id. (quoting Miss.Code Ann. § 11-7-7 (Rev.2004) (emphasis in original)). We concluded the statute was reasonably interpreted as meaning a chose in action may be treated the same as other personal property. Maranatha, 904 So.2d at 1007.

¶ 17. The Court also considered Section 13-3-135, which provides, “[t]he purchaser of any chose in action, stock, share, interest, judgment, or decree of the defendant, sold under execution or attachment, shall become the owner thereof, in the same manner as if it had been regularly assigned to him by the defendant.” Id. (quoting Miss.Code Ann. § 13-3-135 (Rev. 2002) (emphasis in original)). We found that “[ijmplicit in § 13-3-135 is that a chose in action may be sold under execution.” Maranatha, 904 So.2d at 1007.

¶ 18. In dicta, we noted that all three parties involved in the case had an interest in purchasing the chose in action. Id. at 1009. Specifically, “Kerr McGee would be interested in buying the suit against it. Second, Maranatha would be interested in reacquiring the suit based on the fact that it [believed] it [was] worth much more [than] the judgment against it which [was then] being executed. Third, Colonial Trust could buy the suit itself.” Id. at 1010 n. 9.

¶ 19. In summarizing why a chose in action could be sold under execution, we noted:

[A chose in action] is property. It is capable of being transferred. It is capable of being converted into a judgment which is subject to execution. It is an asset of the judgment debtor, and why should not his assets, whatever their nature, be taken to satisfy a judgment? We cannot see any logical reason why such property should not be levied on.

Id. at 1009 (quoting Johnson v. Dahlquist, 130 Wash. 29, 225 P. 817, 818 (1924)). We held that a chose in action is subject to a writ of execution. Colonial Trust, as judgment creditor, could levy upon Marana-tha’s chose in action against Kerr-MeGee “with such levy not to exceed the amount to which Colonial is now entitled pursuant to the chancery court judgment heretofore rendered in its favor against Maranatha.” Maranatha, 904 So.2d at 1010.

B. Whether the choses in action are subject to the writ of execution issued by the circuit court clerk on the enrolled final judgments in favor of the bank.

¶ 20. Under Maranatha and the statutes cited therein, a chose in action is personal property subject to a writ of execution. Id. The plaintiffs argue a trial is necessary to determine the value of their claims against the bank, and an execution before a trial circumvents their rights. Notably, the same “proceeds” argument was made, and rejected, in Maranatha. Id. at 1006. Additionally, the relevant statutes do not require “valuation by trial.” The Legislature could have excepted chos-es in action from execution, but it did not, and it is not our role to create such exceptions in an unambiguous statutory scheme. As with any other personal property, a chose in action’s value — for purposes of levy and execution — is determined at a sheriffs execution sale. See id. at 1007; Miss.Code Ann. § 11-7-7 (chose in action may be sold in the same manner as other personal property); Miss.Code Ann § 13-3-161 (personal property may be sold under execution); Miss.Code Ann. § 13-3-135 (a chose in action may be sold under execution); Miss.Code Ann. § 13-3-169 (property sold at an execution sale must go to the highest bidder).

C. Whether the bank may initiate a sheriffs execution sale against Pacesetter’s and Pope’s choses in action (their OS-CV-OSO-B lawsuit claims).

¶ 21. The trial court entered final judgments against the plaintiffs and in favor of the bank for $815,083.60 and $30,866.31. The trial court also found “there is no just reason for delay” in the bank’s collection of the judgments. The judgment debtor plaintiffs did not appeal the judgments, and they became final. Thus, the bank’s right to collect the judgments is not now subject to attack.

¶ 22. Under both clear statutory language and this Court’s precedent, the plaintiffs’ lawsuits were choses in action and subject to a writ of execution, and the procedure selected by the bank, that is, the initiation of a sheriffs execution sale against the plaintiffs’ choses in action, was entirely appropriate. Mississippi Code Annotated Section 13-3-111, which provides for execution on a judgment debtor’s assets to collect a final judgment, states in part, “[t]he clerks of all courts of law or equity ... shall, at the request and cost of the owner of the judgment or decree or his attorney, issue executions on all judgments and decrees rendered therein.... ” (Emphasis added).

¶ 23. The key consideration here is the finality of the judgments against the plaintiffs, rendering them judgment debtors. The bank correctly notes, “[s]ince it is the finality of the judgment that allows execution, it would make no difference if the bank had obtained its judgments in a separate court proceeding against the Plaintiffs ... [or] if the bank had bought the two judgments from [a] third party.” Consistent availability of the execution option is important. Under the present circumstances, the bank properly initiated a sheriffs execution sale against the plaintiffs’ choses in action.

D. Whether the bank may purchase those choses in action at a sheriff’s execution sale if it is the highest bidder.

¶24. The Mississippi Code sets forth several requirements for a sheriffs execution sale. Section 13-3-161 requires the execution sale to be held at the county courthouse. Section 13-3-165 prohibits the execution sale from occurring on a Sunday and requires at least ten days of pre-sale advertising. Finally, Section 13-3-169 gives the time of day a sale can be conducted and states, “[a]ll such sales shall be by auction to the highest bidder for cash, and only so much of the property levied on shall be sold as will satisfy the execution and costs.” It is important to note that the plaintiffs do not contend the sheriffs execution sale was improper or unfair.

¶ 25. The sale was held at the door to the Lauderdale County Courthouse at 11:00 a.m., on a Monday, fourteen days after the county clerk issued the writs of execution. The bank, as the highest bidder, gave the sheriff $91,000. Each element of the sale complied with the statutory requirements. We have no specific information about the sale’s advertising, but again, the plaintiffs never argue the execution sale was unfair.

¶ 26. The plaintiffs quote the portion of our Maranatha holding that states Colonial Trust “may by writ of execution levy upon [Maranatha’s] chose in action in the pending court action against Kerr-McGee, with such levy not to exceed the amount to which Colonial is now entitled.” Maranatha, 904 So.2d at 1010 (emphasis supplied). Although the plaintiffs do not articulate a clear reason for emphasizing the above language, it appears the plaintiffs believe that, because their evaluation of the lawsuits is $4,000,000, an amount which far exceeds the amount owed to the bank, the sheriff could not conduct a valid sale and pass title to the lawsuits for $91,000. Stated another way, the plaintiffs contend the statutory language prohibits the execution sale of their 03-CV-030-B lawsuits because their value far exceeded the amount of the bank’s judgments. Thus, the plaintiffs argue, the sheriff must have sold more property than was necessary to satisfy the bank’s judgments. The plaintiffs provide us no authority for this assertion. For purposes of the execution and sale, the value of the lawsuits was set by the highest bid. The plaintiffs’ subjective valuation is irrelevant.

¶ 27. In Maranatha, the judgment debtor argued its lawsuits against Kerr-McGee were worth $15,000,000. Id. at 1005 n. 2. The judgment against Marana-tha in favor of Colonial Trust was approximately $877,000. Id. at 1005. The multimillion dollar difference between Marana-tha’s valuation of its pending claims and the judgment against it did not prevent execution in that case, and it does not prevent execution here.

¶ 28. The language in Maranatha that “such levy [is] not to exceed the amount to which Colonial is now entitled,” id. at 1010, accurately tracks the language of Mississippi Code Annotated Section 13-3-169, which states, “only so much of the property levied on shall be sold as will satisfy the execution and costs.” Here, the sheriffs execution sale yielded $91,000, an amount far less than the $845,949.91 total judgment to which the bank was entitled.

¶ 29. No statutory exception exists to prevent a judgment creditor or a defendant from bidding at the sale of a chose in action. In dicta in Marcmatha, this Court envisioned the possibility that a defendant in a lawsuit (chose in action) might be the purchaser at an execution sale. 904 So.2d at 1010 n. 9. Here, the bank is analogous to the defendant, Kerr-MeGee. Under the scenario discussed in Maranatha, the bank, as the highest bidder, was eligible to purchase the plaintiffs’ choses in action at the sheriffs sale.

¶ 30. The plaintiffs’ primary argument centers on the bank’s “sham purchase” of their choses in action for $91,000, because the $91,000 bid “was a figure very close to the unwarranted attorneys (sic) fees and collection costs that [the bank] required of Pope to satisfy its Judgment.” According to the plaintiffs’ calculations, they were required to pay $88,327.28 in attorney’s fees and collection costs in order to bring current their debts. The plaintiffs argue they tried to pay the debts less these fees, but the bank refused the payment. Finally, the plaintiffs argue the bank could not ask for any fees because the trial court specifically reserved the issue of attorney’s fees for a future damages hearing.

¶ 31. The plaintiffs’ calculations can only be found in their Brief, as they were not derived from any document in the record. Needless to say, their figures are dubious at best. The plaintiffs calculate the debt owed on the Clarkdale note as of September 28, 2004, as $846,322.15, and on the Pacesetter note as of September 27, 2004, as $31,973.01. Thus, the total judgment amount owed was $878,295.16. The plaintiffs then obtain the $845,622.94 figure, allegedly the bank’s demand, from a letter not contained in the record. This amount apparently represented the amount owed by the plaintiffs on October 5, 2004, after the $91,000 execution sale credit. The plaintiffs then added the credit amount and bank demand together to get $936,622.94. After subtracting the amount they felt they owed — $878,295.16— the plaintiffs arrived at $88,327.78 in improper fees and costs assessed by the bank. Since this amount is close to the bank’s $91,000 bid for their choses in action, the plaintiffs argue the sale was merely pretense to force them to pay more than necessary to bring current their debts.

¶ 32. This argument is meritless for a number of reasons. First, the calculations are all based on different dates — September 27, September 28, and October 5. Second, even assuming the plaintiffs’ method of calculation was correct, the amount of “improper” fees assessed by the bank would be $58,327.78, a figure not nearly as coincidentally close to the $91,000 bid, and hardly evidence of a “sham purchase.”

¶ 33. Poor math aside, the plaintiffs also omit several relevant facts regarding their payoff and the documents allegedly supporting their calculations. The bank’s letter to the plaintiffs on October 25, 2004 (from which the plaintiffs take their $845,622.94 bank demand figure) concerns the payoff of three loans, not just the two judgment loans. Additionally, the letter notes that the plaintiffs paid off the judgments as well as a number of unspecified deeds of trust. According to the bank, the calculation relied on by the plaintiffs also included the cancellation of five deeds of trust and two UCC-1 filings.

¶ 34. The plaintiffs never asked the trial court for assistance in determining their payoff. In fact, the plaintiffs willingly paid all of their debts due to the bank, and only now do they complain about the amount. The plaintiffs claim they tendered an amount that would have brought their debts current, but the bank refused their offer. The trial court found the plaintiffs’ offer could not have cured the default, so the bank properly rejected it. The trial court also stated, “[jjust picking an amount that the debtor thinks is correct and offering it as a tender to bring the note current is not an acceptable practice.”

¶ 35. The plaintiffs cite no authority to support any of their arguments. Marana-tha actually supports the bank’s contention that it could purchase the choses in action at the properly conducted sheriffs execution sale. Parties are required to cite relevant authority or face imposition of a procedural bar. See Williams v. State, 708 So.2d 1358, 1361 (Miss.1998); Cook v. Mardi Gras Casino Corp., 697 So.2d 378, 383 (Miss.1997). The plaintiffs concede the execution sale was fair. Their only argument concerns the closeness of the $91,000 purchase price with the $88,327.78 they claim to have paid in improper fees and costs. Bald, unsupported assertions simply cannot invalidate a properly conducted sheriffs execution sale. As such, the bank, as the highest bidder, could purchase the plaintiffs’ choses in action.

E. Whether the bank, as purchaser at the sheriff’s execution sale, becomes the owner of Pacesetter’s and Pope’s 03-CV-030-B choses in action.

¶ 36. According to Mississippi Code Annotated Section 13-3-135, “[tjhe purchaser of any chose in action, stock, share, interest, judgment, or decree of the defendant, sold under execution or attachment, shall become the owner thereof, in the same manner as if it had been regularly assigned to him by the defendant.” (Emphasis added). We relied on this statute in Maranatha and held that the purchaser of a chose in action at a sheriffs execution sale has the right of ownership over the chose. 904 So.2d at 1007. Therefore, under both statutory and case law, the bank became the owner of the plaintiffs’ lawsuits (choses in action) when it purchased them at the sheriffs execution sale.

F. Whether the bank, as owner of the choses in action, may substitute itself as the sole plaintiff and dismiss the 03-CV-030-B claims against it.

¶ 37. M.R.C.P. 17 states, “[ejvery action shall be prosecuted in the name of the real party in interest.” As the owner of the 03-CV-030-B choses in action, the bank has the only real interest remaining in those claims. The plaintiffs no longer have a stake in the unresolved lender liability claims asserted against the bank. M.R.C.P. 25(c) concerns party substitution involving a transfer of interest, and states, “[i]n a case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.”

¶ 38. Although Rule 25(c) transfers are generally permissive, in this case, the execution sale and purchase of the lawsuits left only one party, the bank, with any interest in the litigation. Because Rule 17 allows only the real party in interest to prosecute its claims, the trial court abused its discretion by refusing to substitute the bank as plaintiff in the 03-CV-030-B actions.

¶ 39. To support their argument that the bank should not be allowed to substitute itself as party plaintiff, the plaintiffs present a hypothetical to demonstrate the inequities they perceive would result if the bank’s motion is granted. However, the plaintiffs never cite any authority at any point in their entire argument as to why substitution should be prohibited. See Williams, 708 So.2d at 1361 (parties must cite relevant authority to support their positions); Cook, 697 So.2d at 383 (same). Even if application of the law might be inequitable in rare cases, there are no exceptions in the relevant statutes, rules, or cases that would prevent the bank from substituting itself as plaintiff in the choses in action it purchased. This Court is without authority to invalidate statutes simply because we find they may occasionally engender what we consider to be inequitable results. Such considerations are for the Legislature. We conclude the trial court erred in denying the bank’s Motion to Substitute Party Plaintiffs.

II. Whether the trial court erred by not dismissing the case against the bank.

¶ 40. The bank sought dismissal of the 03-CV-030-B claims because it was the only party in interest remaining in the case. The bank moved for dismissal under M.R.C.P. 41(a)(2), which states, in relevant part, “an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.” This Court reviews a denial of a Rule 41(a)(2) motion to dismiss under an abuse of discretion standard. BellSouth Pers. Commc’n LLC v. Bd. of Supervisors, 912 So.2d 436, 440 (Miss.2005).

¶ 41. Here, the trial court found our Maranatha decision did not apply to this case because Maranatha involved three parties, while this case involved only two. The trial court failed to address any of the statutory authority cited in Maranatha, which was directly applicable to this case. Beyond the number of parties involved, Maranatha is factually and procedurally on point with this case. Because the trial court misapprehended and misapplied the law, its denial of the bank’s Motion to Dismiss was an abuse of discretion.

CONCLUSION

¶ 42. Statutory law permits the bank to levy upon its judgment debtors’ choses in action in order to satisfy a final judgment in its favor. Significantly, the plaintiffs never appealed the final judgment. The plaintiffs’ choses in action were sold to the bank, as the highest bidder, at a properly conducted sheriffs execution sale. The plaintiffs did not attend or bid at the sale, and they never claimed that the sale was improperly conducted or unfair. The bank became the owner of those choses in action, and the plaintiffs willingly paid the remainder of the judgments against them less the set-off from the sale. As the owner of the claims and only remaining party in interest, the bank had the right to be substituted as the party plaintiff in the 03-CV-030-B action. Finally, as the proper plaintiff in a lawsuit against itself, the bank had every right to dismiss those claims, since further litigation under such circumstances would have been futile and a waste of judicial resources. We find the trial court erred in denying the bank’s Motion to Substitute Party Plaintiffs and Dismiss Complaint. Therefore, we reverse the trial court’s judgment and render judgment here substituting Citizens National Bank as the plaintiff and finally dismissing with prejudice all remaining unresolved claims in this case on the bank’s motion under M.R.C.P. 41(a)(2).

If 43. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J., NOT PARTICIPATING.

      . In the third, and final, Amended Complaint, Dixieland was not a named plaintiff. Instead, Dixieland Forest Products, LLC ("Dixie LLC”) was named as a plaintiff. This change is relevant to the trial court’s disposition of the bank's motion for summary judgment on all claims made by Dixie LLC, discussed infra.

      . Besides the two counterclaims discussed in this opinion, the bank also filed a counterclaim against Dixieland and Pope for an August 10, 2001, note for $35,061.00. Dixieland paid the note on June 30, 2003. Since the note was paid, this counterclaim only appeared in the bank’s original Answer and not in its later amended Answers.

      . The trial court found that Dixieland, to whom the bank had extended lines of credit, was not the same entity as Dixie LLC, who was named as a plaintiff in the final Amended Complaint. Therefore, Dixie LLC had no cause of action against the bank.

      . Plaintiffs attempted to pay off a Clarkdale note with a check for $5,088.39 and a Dixieland note with a check for $31,911.28.

      . This Court has previously defined the term "chose in action" as follows:
      A 'chose in action’ means, literally, a thing in action, and is the right of bringing an action, or a right to recover a debt or money, or a right of proceeding in a court of law to procure the payment of a sum of money, or a right to recover a personal chattel or a sum of money by action, or, as it is defined by statute, a right to recover money or personal property by a judicial proceeding.

        Garrett v. Gay, 394 So.2d 321, 322 (Miss.1981) (citing 73 C.J.S. Property § 9 (1951)).

      . This chose in action involved Maranatha's claims against a company, Kerr-McGee, for trespass and contamination of real property by hazardous materials.

      .Plaintiffs offer no argument to the bank's assertion that the claims made in 03-CV-030-B are "choses in action.” See Yarbrough v. State, 911 So.2d 951, 955 (Miss.2005) (State failed to offer any opposition, so the Court found that it had "conceded this element as being established.”).

      . Plaintiffs offer no argument or opposition to the bank's assertion that the $30,860.31 judgment and $815,083.60 judgment were final. See Yarbrough, 911 So.2d at 955.

      . Plaintiffs offer no argument or opposition to the bank’s assertion that it had the right to pursue collection of the final judgments by execution. See Yarbrough, 911 So.2d at 955.

      . In arriving at this figure, the plaintiffs evidently forgot that 2004 was a leap year.

      . $936,622.94-$878,295.16 = $58,327.78 (not $88,327.78 as the plaintiffs claim).

      . In its Motion to Substitute Party Plaintiffs, the bank mistakenly cites M.R.C.P. 25(a) in support. Rule 25(a) concerns substitution upon a party's death, so it is not relevant to this case. However, Rule 25(c), concerning substitution based on a transfer of interests, is applicable.