author: IRVING, J„

text:
    Hezekiah PATTON, Jr., Appellant/Cross-Appellee. v. STATE BANK & TRUST COMPANY, Appellee/Cross-Appellant.
    No. 2004-CA-02243-COA.
    Court of Appeals of Mississippi.
    March 28, 2006.
    Rehearing Denied Aug. 15, 2006.

      Ellis Turnage, Tamekia Rochelle Goli-day, Cleveland, attorneys for appellant.
    Mary McKay Lasker, Arnulfo Ursua Luciano, Cleveland, attorneys for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J„

for the Court.

¶ 1. Hezekiah Patton, Jr. sued State Bank and Trust Company (State Bank) for breach of an oral contract and misrepresentation, among other claims. After discovery, the Bolivar County Circuit Court granted summary judgment to State Bank. Aggrieved, Patton appeals and argues that the grant of summary judgment was improper. State Bank cross-appeals, asserting that Patton’s appeal was filed untimely.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. This dispute arises from the sale of a foreclosed property in Shelby, Mississippi, to Patton by State Bank. Patton maintains that State Bank agreed to finance not only the purchase price of the building, but also to lend sufficient funds to convert the building into a blues club and restaurant. State Bank denies that it agreed to fund the cost of renovating the building. Patton eventually sued State Bank, seeking monetary damages for fraudulent misrepresentation, breach of contract, tortious breach of the covenants of good faith and fair dealing, intentional infliction of emotional distress, gross negligence, fraudulent inducement, misrepresentation, and deceit. The suit sought not only actual damages, but also punitive damages.

¶ 4. In granting summary judgment, the court found that Patton had “failed to present any evidence that any ' contract existed.” The court also found that, since there was no evidence presented that State Bank had made a misrepresentation, all of Patton’s other claims should also be dismissed, since they were dependent on the success of the misrepresentation claim.

¶ 5. Additional facts will be related as needed during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Summary Judgment

¶ 6. We employ a de novo standard of review to a lower’s court grant of summary judgment. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (¶9) (Miss.2002). Since summary judgment was entered against Patton, we will construe the record in the light most favorable to him. Id. Summary judgment is proper only when the non-moving party is unable to present any genuine issue of material fact, thereby entitling the moving party to judgment as a matter of law. Id. The burden is on State Bank to demonstrate that no genuine issue of material fact exists. Id.

¶ 7. Patton argues that summary judgment was improper in his case. He contends that the trial court erred in making credibility determinations and weighing the evidence when it decided the motion for summary judgment. In relation to his breach of contract claim, Patton argues that the trial court erred in determining that he failed to present any evidence that an oral contract existed between the parties because “such a ruling would require that the trial court weigh the credibility of his affidavit and deposition.” Patton maintains that his affidavit and deposition lend credence to his assertion that he and State Bank entered into an oral contract in which State Bank agreed to finance necessary renovations to the property. State Bank counters that it never made such an agreement with Patton. More specifically, State Bank maintains that it merely agreed to completely finance the purchase price of the building and to lend an additional $3,000 to $5,000 for operating expenses, clean up, and inventory. Patton cites Stegall v. WTWV, Inc., 609 So.2d 348 (Miss.1992), for the proposition that “issues of fact sufficient to require denial of a summary judgment motion exists where one party swears to one version of the matter in issue and the other party says the opposite.”

¶ 8. In Stegall, a candidate for public office brought an action against a television station and reporter for false statements made during a news broadcast. Stegall, 609 So.2d at 350. The Mississippi Supreme Court held that there existed material issues of fact to warrant a jury trial where one party alleged that the false statement was made at 6:00 p.m., and the other alleged that it was made at 7:00 p.m. Id. at 351. In that case, it was uncontro-verted that a false statement was made. The Court surmised that the factual dispute as to what time the statement was made, which might influence an award of damages, had to be resolved by a jury. Id. Here, unlike the false statement in Stegall, there is no evidence that a contract existed. Had there been any evidence that a contract existed between the parties, then Patton’s claim would fall under the rationale of Stegall.

¶ 9. We agree with State Bank that Patton’s breach of contract claim is more akin to the facts and holding in Beck v. Goodwin, 456 So.2d 758 (Miss.1984). In Beck, the owner of a used car business brought suit against a bank and its chief executive officer (CEO) because he alleged that the bank’s CEO had orally agreed to finance his used car business but had failed to do so. Beck, 456 So.2d at 759. Our supreme court, relying on the standard it announced in Izard v. Jackson Prod. Credit Corp., 188 Miss. 447, 195 So.2d 331 (1940), held that “the agreement to lend money was too indefinite to constitute a contract.” Beck, 456 So.2d at 760. This same analysis was again utilized in First Money, Inc. v. Frisby, 369 So.2d 746 (Miss.1979), which also involved an oral contract to lend money. The court, citing Izard, held once again that “such an agreement did not amount to a contract to lend money because it was too indefinite.” Frisby, 369 So.2d at 751.

¶ 10. In the case sub judice, Patton cannot state how much money State Bank promised it would lend him to aid with renovations. He could not state the agreed upon interest rate of repayment or what type of payment plan would be utilized. There is no evidence, and Patton provides none, as to whether the parties ever agreed on what type of collateral would be used to secure the loan. According to Patton’s own deposition testimony, none of this information had been discussed because he did not know how much money he would need for renovations prior to purchasing the building. All we have is Patton’s somewhat contradictory deposition testimony and self-serving affidavit that State Bank promised him that it would provide money for renovations if he purchased the building. Furthermore, Loyd Tally, then branch manager of State Bank and the person who sold the building to Patton, categorically denied ever making a loan commitment to Patton for renovations or ever discussing any terms of a renovation loan with Patton. The alleged oral contract between the parties was indefinite and vague, at best. We would have no way of ascertaining the terms of such a contract if we were inclined to find that a contract had indeed been formed. We find that a contract involving the loan of money must be more definite and complete than the one alleged by Patton.

¶ 11. We note that Patton’s complaint alleges a breach of the covenant of good faith and fair dealing that is inherent in all contracts. Having found that Patton has presented no evidence to support the existence of a contract between himself and State Bank, there can be no breach of the covenant of good faith and fair dealing.

¶ 12. Therefore, Patton is forced to rely on his misrepresentation claim in trying to prove that the lower court erred in granting summary judgment. Patton argues that the court erred “in determining that there were no issues of material fact as to whether Tally promised Patton additional funds for renovations.” In resolving this issue, it is essential that a determination be made as to whether Patton produced any evidence showing that State Bank made a misrepresentation in regards to agreeing to lend Patton additional money for renovation purposes. We find that no actual evidence whatsoever was presented by Patton showing that State Bank ever made such a misrepresentation to him. By his own deposition answers, Patton admitted that no specific amount, loan commitment, or loan terms were ever discussed between himself and State Bank. Patton also failed to provide testimony or evidence reflecting other important aspects of the loan, such as repayment terms, interest rate, or collateral to secure the loan. Patton merely relies on his bare assertion that State Bank made a loan commitment for renovation expenses if he purchased the property. Regardless of what Patton alleges that State Bank orally promised him about providing a loan for renovations, we still find that he has not provided any evidence sufficient to establish a genuine issue of material fact regarding this claim.

¶ 13. Patton ends his brief by asserting that he had valid claims for infliction of emotional distress, gross negligence, fraudulent inducement, misrepresentation, and deceit. The basis for each of these claims lie in the alleged misrepresentation by State Bank that it would lend Patton additional funds for renovation if he purchased the property. As noted above, Patton failed to produce sufficient evidence to support his assertion that State Bank made a misrepresentation to him. As such, Patton’s remaining claims, which were interrelated to his- misrepresentation claim, must likewise be dismissed. We find that the lower court properly granted summary judgment on these claims as well.

¶ 14. Despite the heavy burden that a moving party in a motion for summary judgment faces, we find that State Bank has met that burden in this case. The trial court’s grant of summary judgment was proper. Even construing the record in the light most favorable to Patton, we still find that no genuine issue of material fact was demonstrated from the evidence produced.

2. Timeliness of Filing

¶ 15. In its cross-appeal, State Bank asserts that Patton’s appeal was not timely filed. The court entered its order granting summary judgment on July 13, 2004. However, the clerk of the court neglected to send a copy of the order to either of the parties at that time. Consequently, both parties still believed that there was a hearing in the case set for September 30, 2004. On September 27, State Bank’s attorneys discovered that summary judgment had been granted in July and immediately called to inform Patton’s attorneys of the same. The clerk of the court swore in an affidavit that Patton’s attorneys received a certified copy of the order only on September 29, 2004. On October 6, 2004, Patton’s attorneys filed a motion to reopen the time for appeal pursuant to Rule 4(h) of Mississippi Rules of Appellate Procedure, which was granted by the court.

¶ 16. According to Rule 4(h), if notice of a judgment is not received from the court clerk, a party may be granted additional time to file an appeal as long as a motion for more time is made within seven days of receiving notice of the order or judgment, or 180 days from the entry of the order, whichever is earlier. State Bank contends that Patton received notice on September 27, 2004, when its attorney called Patton’s attorneys to tell them that summary judgment had been granted. Patton contends that the phone call was insufficient to constitute the notice required to begin the running of the time in Rule 4(h).

¶ 17. Duncan v. Duncan, 774 So.2d 418, 420 (¶¶ 5-7) (Miss.2000), holds that Rule 4(h) is subject to Mississippi Rule of Civil Procedure 77(d). According to Rule 77(d), “[a]ny party may in addition serve a notice of [the entry of an order or judgment] in the manner provided in Rule 5 for the service of papers.” Under Rule 5, “[s]er-viee upon the attorney or upon a party shall be made by delivering a copy to him; or by transmitting it to him by electronic means; or by mailing it to him at his last known address.... ” The rule does not allow service by merely making a telephone call.

¶ 18. Therefore, the September 27 phone call was not sufficient to provide notice, and the earliest date that Patton received official notice was September 29, 2004, when his attorneys received a certified copy of the order directly from the court clerk. Although Patton urges us to find that “the notice of entry was never served,” we find that notice was served by the clerk on September 29, 2004, when she handed one of Patton’s attorneys a certified copy of the order granting summary judgment. According to the time calculation guidelines specified in Rule 6(a) of Mississippi Rules of Civil Procedure, the date of service of the order is excluded. Accordingly, the October 6, 2004 filing and ensuing appeal were timely, as Patton had seven days from the date of notice to file his motion. State Bank’s argument to the contrary is rejected.

¶ 19. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT IS AFFIRMED AS TO BOTH DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPEL-LEE.

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

      . Stegall claimed that the false statement was made during the 6:00 p.m. news, before the polls closed. WTWV [the television station] and Coggin [the reporter] claimed that the false statement was broadcasted during the election coverage which began after the polls closed at 7:00 p.m.


source: Caselaw Access Project

author: SOUTHWICK, J., ISHEE, J.,

license: Public Domain

text:
    Talvish S. REYNOLDS, individually, and Courtney Reynolds, Minor, and Brittany Reynolds, minor, by and through their Mother and Natural Guardian, Talvish S. Reynolds, Appellants v. COUNTY OF WILKINSON, STATE OF MISSISSIPPI, Appellee.
    No. 2004-CA-02282-COA.
    Court of Appeals of Mississippi.
    April 4, 2006.
    Rehearing Denied Aug. 15, 2006.

      Lester Joseph Meng, attorney for appellants.
    William Robert Allen, Robert 0. Allen, Brookhaven, attorneys for appellee.
   SOUTHWICK, J.,

for the Court.

¶ 1. Talvish Reynolds filed suit against Wilkinson County for personal injuries received when her vehicle collided with a sheriffs vehicle. The trial court granted the county’s motion for summary judgment. Reynolds appeals, alleging error in the trial court’s interpretation of the county’s immunity under the Mississippi Tort Claims Act. We conclude that the trial court properly interpreted that statute, find no disputes of material fact, and affirm.

¶2. In May 2002, Reynolds and her daughters were traveling east on Main Street in Woodville. Wilkinson County Deputy Sheriff Nathaniel Nelson was traveling in a county vehicle toward Main Street at this time, en route to a hardware store to have spare keys made for county gas pumps. Once he arrived at the intersection with Main Street, Deputy Nelson paused at the stop sign. The view to his left was blocked by a blue truck that was legally parked next to the curb on Main Street. Beginning a turn to the right, the deputy edged forward into the intersection to get a better view around the blue truck. As the deputy advanced, his car was struck by the vehicle driven by Reynolds. Reynolds and her daughters sustained injuries in the collision.

¶ 3. Reynolds brought a personal injury action against Wilkinson County on behalf of herself and her daughters. Reynolds later amended her complaint to allege reckless disregard of her safety by Deputy Nelson. The trial court granted the County’s motion for summary judgment after finding that the County was entitled to immunity.

¶ 4. The parties agree that this suit is controlled by the Mississippi Tort Claims Act. Miss.Code Ann. § 11-46-1 through 11-46-23 (Rev. 2002). Those statutes provide immunity for the State and its political subdivisions such as Wilkinson County in certain defined circumstances. On appeal, Reynolds argues that the circuit court misapplied the statutes regarding immunity when police functions are involved and when reckless disregard for the safety of others has occurred. Reynolds also asserts that summary judgment should have been granted to her on liability, an argument that will be answered in our resolution of her first two issues.

ISSUE 1: Definition of “police protection”

¶ 5. Reynolds alleges that law enforcement personnel must be engaged in protective activities to be immune from tort liability. Since Deputy Nelson was driving to have keys made when this accident occurred, Reynolds alleges that there is no immunity.

¶ 6. The relevant statute provides that a governmental entity or employee is immune from suit as long as that person is “engaged in the performance or execution of duties or activities relating to police or fire protection....” Miss.Code Ann. § 11-46 — 9(l)(c) (Rev. 2002). This does not require that a law enforcement officer be then engaged in direct action to apprehend a criminal. Maintenance of a police vehicle has been held to constitute an activity “related to police ... protection.” McGrath v. City of Gautier, 794 So.2d 983, 986 (Miss.2001). The McGrath court reasoned under precedents that predated the Tort Claims Act that the relevant distinction revolved around “whether the municipality acted in a governmental or proprietary capacity.” Id. The court held that under the Tort Claims Act, when “an injury is caused by a police vehicle, operated and maintained by the police department, liability will automatically be precluded because the maintenance of a police department is a governmental function, for which municipalities are exempt.” Id. at 987.

¶ 7. The same reasoning applies to county-owned and operated law enforcement vehicles. Using a county sheriffs vehicle to drive to a location in order to procure keys for county gas pumps is as much of a governmental function as the vehicle maintenance discussed in McGrath.

ISSUE 2: Reckless disregard by Deputy Nelson

¶ 8. There is no immunity under the Tort Claims Act for a governmental employee if he “acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury.” Miss.Code Ann. § 11-46-9(l)(c) (Rev. 2002).

¶ 9. Reynolds asserts that Deputy Nelson acted with reckless disregard when: (1) he moved forward into the intersection when his view was obstructed; (2) he failed to have the legally parked truck removed with tow trucks to which he had access; (3) he failed to use sirens, lights, or a horn to alert other drivers to the fact that he was entering the intersection; and (4) he failed to use an alternate, less busy route where his view would not have been obstructed. Reckless disregard “usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.” Maye v. Pearl River County, 758 So.2d 391, 394 (Miss.1999).

¶ 10. Specific uncontested facts should be highlighted here. The truck that ob-strueted Deputy Nelson’s view to his left was legally parked. The deputy stopped at the intersection, saw nothing to his left, and drove slowly as he turned right onto the crossing street. The collision occurred almost immediately after the deputy began his turn.

¶ 11. In order to withstand a motion for summary judgment, the evidence presented by Reynolds must be able to support a finding that the officer was consciously indifferent to the consequences of his actions, “amounting almost to a willingness that harm should follow.” Id. The only evidence was that the deputy encountered an intersection in which his view was obstructed, entered it slowly, but allowed his vehicle to move into the lane of crossing traffic without his being able yet to see that traffic. The actions or omissions alleged by Reynolds could not properly be found to constitute reckless disregard. Every time a law enforcement officer encounters circumstances that could usefully be corrected, there is not wanton disregard for the safety of others if the officer does not immediately take steps to ameliorate the risk. Calling a dispatcher about the hazard, or making note of it in some other way, or deciding even that the hazard is so temporary that there is nothing to be done, are all within the realm of possible actions. Doing nothing may at times be negligence, but failure to stop, park, and call for a tow truck or start directing traffic himself does not rise “almost to a willingness that harm should follow.”

¶ 12. A somewhat similar fact situation arose in an earlier precedent of this Court in Kelley v. Grenada County, 859 So.2d 1049 (Miss.Ct.App.2003). There, the future plaintiff had finished at a gas station and was waiting to enter the adjacent highway. The lanes of the highway were divided solely by double solid yellow lines. As the plaintiff exited the station in order to cross over the highway and drive to her left, a pickup truck that had been proceeding on the same highway to the plaintiffs right was beginning to turn into the station. The plaintiff drove in front of the truck to cross the highway before turning left. At the same time, a deputy sheriff who had been driving the same direction as the pickup truck decided to avoid the slowing truck by crossing over the center double solid lines to steer around it. The deputy performed his maneuver around the left side of the pickup at the same time as the plaintiff was driving in front of the pickup. The resulting collision led to a suit against the county. Id. at 1051. We concluded that even though the deputy had failed “to anticipate that another vehicle might be pulling out from the blind spot in front of the truck in front of him, [his] decision to steer around that turning truck did not exhibit a wilful or wanton disregard for the safety of others. It showed negligence but not virtually a ‘willingness that harm should follow.’ ” Id. at 1054.

¶ 13. Similarly in the present litigation, Deputy Nelson’s decision to move forward into the lane of the crossing traffic was at worse a negligent failure to anticipate— i.e., to be conscious of the possibility and to drive in such a way as to protect against that eventuality — that there might be a vehicle in the blind spot beyond the parked truck. It does not constitute “reckless disregard.”

¶ 14. The facts of what occurred in this accident are clear. There would be no purpose served by having the same facts shown at a trial. The circuit court was correct in entering a summary judgment for the County.

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

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR. ISHEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY MYERS, P.J.

ISHEE, J.,

concurring in part, dissenting in part.

¶ 16. While I agree that Deputy Nelson was engaged in activities “related to police protection” within the definition of Mississippi case law, I disagree with the majority’s conclusion that summary judgment was proper with regard to whether Deputy Nelson acted with reckless disregard. Accordingly, I respectfully dissent.

¶ 17. This Court reviews a trial court’s grant of summary judgment under a de novo standard. Owens v. Thomae, 904 So.2d 207, 208(¶ 7) (Miss.Ct.App.2005). “[Tjhere must exist no genuine issues of material fact, and the moving party must be entitled to judgment as a matter of law” in order for summary judgment to be proper. Mozingo v. Scharf, 828 So.2d 1246, 1249(¶ 5) (Miss.2002). The evidence must be viewed in the light most favorable to the nonmoving party. Pratt v. City of Greenville, 918 So.2d 81, 82-82(¶ 4) (Miss. Ct.App.2005) (citing McMillan v. Rodriguez, 823 So.2d 1173, 1176(¶9) (Miss. 2002)). The burden of demonstrating the absence of any genuine issue of fact is on the moving party. Id. “That is, the non-movant should be given the benefit of the doubt.” Id. If any genuine issue of material fact exists, summary judgment is improper and we will reverse the decision of the trial court. Mozingo, 828 So.2d at 1249-50(¶ 5). This Court reviews questions of law, including the proper application of the Mississippi Tort Claims Act, de novo. Donaldson v. Covington County, 846 So.2d 219, 222(¶ 11) (Miss.2003).

¶ 18. As the majority correctly states, reckless disregard “usually is accompanied by a conscious indifference to consequence, amounting almost to a willingness that harm should follow.” Miss. Dept. of Pub. Safety v. Durn, 861 So.2d 990, 995(¶ 10) (Miss.2003) (emphasis added) (quoting Maye v. Pearl River County, 758 So.2d 391, 394(¶ 19) (Miss.1999)). But see City of Jackson v. Perry, 764 So.2d 373, 378(¶ 19) (Miss.2000) (“Because Edward’s [sic] actions rise above mere negligence, Edwards showed a reckless disregard of the safety and well-being of others”). However, the language “usually accompanied by” and “almost amounting to” in Maye and Dum leaves room for interpretation, as the language itself precludes applying the above definition as an absolute.

¶ 19. In Maye, an officer backed out of a parking lot onto a road with another driver, though he later admitted that he could not see the road from the parking lot. Maye, 758 So.2d at 392 (¶¶2-3). The supreme court held in that case that the officer’s conduct was sufficient to constitute reckless disregard within the meaning of Mississippi Code Annotated Section 11-46-9. Id. at 395 (¶¶ 21-22).

¶ 20. In Perry, the supreme court held that the conduct of an officer who collided with a vehicle while speeding on his way to a dinner, without flashing lights or siren, constituted “a reckless disregard of the safety and well-being of others.” Perry, 764 So.2d at 378(¶).

¶ 21. In City of Jackson v. Lipsey, 834 So.2d 687, 693 (¶¶ 23-24) (Miss.2003), the supreme court affirmed a trial court’s finding of reckless disregard where an officer collided with a vehicle while responding to an emergency dispatch, but failed to use his sirens or lights.

¶ 22. In Maldonado v. Kelly, 768 So.2d 906, 911 (¶¶ 12-13) (Miss.2000), the supreme court reversed a trial court decision finding, after a non-jury trial, that an officer acted with reckless disregard when he proceeded into an intersection with a partially obstructed view and collided with the plaintiffs vehicle. The court in Maldonado reasoned that the officer in that case took adequate precautions and that the accident was caused by “mere negligence” rather than reckless disregard. Id.

¶ 23. Unlike Maldonado, however, the case sub judice was not allowed to proceed to trial on the merits, but rather was dismissed with prejudice at the summary judgment stage. The record in this case does not so clearly vindicate Deputy Nelson from the possibility of reckless disregard as to warrant a grant of summary judgment for Wilkinson County. It is clearly disputed whether Deputy Nelson, when he moved forward into the intersection with an obstructed view, did so with reckless disregard or through mere negligence. Because the claim only reached the summary judgment stage, the facts necessary to make a determination as to the level of Deputy Nelson’s fault simply are not present in the record.

¶24. In automobile accidents, expert testimony as to speed, angle of impact, and more is generally necessary to give the fact-finder a full enough understanding to determine the level of fault. While I agree with the majority that some of Reynolds’s suggestions as to what Deputy Nelson could have done to avoid the accident (such as calling a tow truck for a legally parked van or taking an alternate route) are somewhat unrealistic, that still does not remove the necessity of allowing a fact-finder to hear enough information to be able to adequately determine whether Deputy Nelson acted with reckless disregard in taking the course of action that he ultimately did take. Keeping in mind Mississippi precedent and viewing the evidence in the light most favorable to Reynolds, summary judgment simply was not the proper course. Thus, I respectfully dissent from the majority’s conclusion that summary judgment was proper in this case. The proper course here is to reverse and remand for a trial on the merits.

MYERS, P.J., JOINS THIS SEPARATE WRITTEN OPINION.


author: KING, C. J.,

text:
    James J. WEIL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02371-COA.

      Court of Appeals of Mississippi.
    April 18, 2006.
    Rehearing Denied Aug. 15, 2006.

      Lori Nail Basham, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
   KING, C. J.,

for the Court.

¶ 1. A Lee County Circuit Court jury found James J. Weil guilty of Driving Under the Influence (DUI) third offense. He was sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections, with two years to serve and two and one-half years suspended, followed by two and one-half years of post-release supervision. Aggrieved, Weil raises the following issues on appeal:

I. Whether the trial court improperly denied the Appellant’s motion for a JNOV, or alternatively for a new trial in that the verdict of the jury was contrary to the law and to the overwhelming weight of the evidence.
II. Whether the trial court erred in failing to suppress Appellant’s statement to the police.
Ill Whether the trial court erred in refusing jury instruction D-5.

FACTS

¶ 2. On the evening of March 31, 2004, the Tupelo Police Department set up a driver’s license checkpoint on Blair Street. At 11:00 p.m., Weil encountered the checkpoint. As Officer Joe Sturm approached Weil’s vehicle, Weil sped off. Sturm jumped in his vehicle and chased Weil about a quarter of a mile down the road where Weil stopped his car. When Officer Sturm approached Weil’s vehicle, the windows were down and Sturm smelled burnt marijuana. Sturm asked Weil to step out of the vehicle, and placed him under arrest for failing to yield to the officer directing traffic. Sturm asked Weil if he had consumed any alcohol, and Weil replied that he had consumed four servings of beer. Sturm then asked if he had consumed any marijuana, to which Weil replied, “not a whole lot.” Sturm observed that Weil had poor balance, bloodshot eyes, slurred speech, and dilated pupils. Sturm testified that he did not perform a field sobriety test due to his concern for Weil’s safety. Instead, Sturm administered an Intoxilizer test in which it was determined that Weil had a blood-alcohol content of .047, well under the legal limit. Based upon his observation of Weil and the smell of marijuana emanating from the car, Sturm additionally placed him under arrest for “DUI other.”

ISSUES AND ANALYSIS

I. Whether the trial court improperly denied the Appellant’s motion for a JNOY, or alternatively for a new trial in that the verdict of the jury was contrary to the law and to the overwhelming weight of the evidence.

¶ 3. Weil argues that the verdict was both legally insufficient and against the overwhelming weight of the evidence because the evidence at trial focused on Weil’s alcohol consumption, rather than marijuana or other intoxicating substance consumption. In reviewing a challenge of legal sufficiency, this Court must determine whether any rational juror could have found that the State proved each and every element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(1116) (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In reviewing a claim that the verdict was against the overwhelming weight of the evidence, this Court will only reverse a conviction if allowing it to stand would sanction an unconscionable injustice. Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss. 1997)). Further, “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (citing Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶ 4. Weil was found guilty of DUI third offense. He was specifically charged with violating Mississippi Code Annotated § 63-ll-30(l)(b)(Rev.2004). The elements of this crime are (1) operating a motor vehicle (2) while under the influence of any substance other than alcohol (3) which has impaired the driver’s ability to operate a motor vehicle. Miss.Code Ann. § 63 — 11— 30(l)(b). Additionally, because it was charged as a third offense, the State was required to prove that Weil had twice previously been convicted of driving under the influence within the last five years preceding the current charge. Miss.Code Ann. § 63-ll-30(2)(c)(Rev.2004). The defense conceded that Weil had been twice convicted of DUI within the last five years.

¶ 5. The first element of § 63 — 11— 30(l)(b), operating a motor vehicle, is not in dispute. Weil attacks the second element of the offense, being under the influence of a substance other than alcohol. Officer Sturm testified that he smelled a strong odor of burnt marijuana coming from Weil’s vehicle. He also testified that Weil had poor balance, bloodshot eyes, slurred speech, and dilated pupils, which Sturm opined were consistent with signs of someone under the influence of marijuana. Most importantly, Sturm testified that when he asked Weil if he had been smoking marijuana that evening, Weil indicated that he had smoked a small amount. Officer Jason Brockman, who assisted Sturm with the arrest, also testified that he smelled a strong odor of marijuana emerging from the vehicle. He also observed that Weil had a difficult time standing and balancing. Additionally, both officers testified as to their training at the regional counter drug training academy and other programs in which they were trained to recognize the signs of intoxication from alcohol and narcotic drugs. Both officers testified that, based on their training and experience, they believed that Weil was under the influence of marijuana. We find that a rational juror could have found that the State proved the second element of the offense beyond a reasonable doubt.

¶ 6. Regarding the third element of DUI other, no direct evidence was presented as to Weil’s driving ability being impaired. However, in reviewing a challenge to legal sufficiency, the State is given the benefit of all reasonable inferences that may be drawn from the evidence presented to the jury. Jerninghan v. State, 910 So.2d 748, 751(¶ 6) (Miss.Ct.App.2005) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). Officer Sturm testified that when he approached Weil’s vehicle at the checkpoint, Weil sped off. From this, a reasonable inference can be made that Weil’s judgment was impaired and thus his driving ability was also impaired. We also find that a reasonable juror could have inferred from the testimony of the officers regarding Weil’s poor balance, bloodshot eyes, slurred speech, and dilated pupils that his driving ability was impaired. Additionally, we do not find that the verdict in this case preponderates heavily against the evidence.

II. Whether the trial court erred in failing to suppress Appellant’s statement to the police.

¶ 7. According to Officer Sturm’s testimony, after Sturm advised Weil that he was under arrest for DUI, Weil told the officer that he recognized that “he had a problem,” and asked if he sought rehabilitation would Sturm “dismiss the charges or help him out in court at a later date.” Weil claims that the trial court erred in failing to suppress this statement as an offer to compromise under Mississippi Rules of Evidence Rule 408.

¶ 8. This Court reviews challenges to the admissibility of evidence under an abuse of discretion standard. Shaw v. State, 915 So.2d 442, 445(¶ 8) (citing Jefferson v. State, 818 So.2d 1099, 1104(¶ 6) (Miss.2002)). Mississippi Rules of Evidence Rule 408 states in pertinent part,

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

¶ 9. Weil’s argument fails because Rule 408 necessarily contemplates situations in which an offer of compromise is made to or by one who has the authority to compromise the claim or charge in question. Sturm, a law enforcement agent, personally observed Weil committing the felony of DUI third offense and executed his duty to take the offender into custody. Sturm had no authority to negotiate the charge against Weil. Therefore, this issue lacks merit.

III. Whether the trial court erred in refusing jury instruction D-5.

¶ 10. Weil submitted the following jury instruction to the trial court which was refused:

The Court instructs the jury that by operating a vehicle on the roadways of the State of Mississippi, the Defendant gave his consent to a chemical test or tests of his breath, blood or urine for the purpose of determining the presence in his body of any other substance that would impair his ability to operate a motor vehicle.

The standard of review regarding jury instructions is as follows,

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

Young v. State, 891 So.2d 813, 820(¶ 16) (Miss.2005) (citing Howell v. State, 860 So.2d 704, 761 (¶ 203) (Miss.2003)).

¶ 11. Weil claims that the instruction was erroneously refused because it supported his theory of the case, which was that Weil’s blood-alcohol content was within the legal limit and he had not ingested any marijuana. The trial court refused the instruction as being an incomplete statement of the law. We agree. Although the implied consent law permits officers with probable cause to have a driver submit to a breath, urine, or blood test, it does not require them to perform each test. Although Weil passed the Intoxilizer test, he admitted to having smoked marijuana and appeared to be under the influence of an intoxicating substance which impaired his driving ability. With the level of proof the officers had, it would have been superfluous to have Weil undergo additional testing. Therefore, we find that this issue also lacks merit.

¶ 12. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF DUI THIRD OFFENSE AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWO AND ONE-HALF YEARS TO SERVE, TWO AND ONE-HALF YEARS SUSPENDED, AND TWO AND ONE-HALF YEARS POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: BARNES, J., LEE, P.J.,

text:
    Alan Keith ORY, Appellant v. Sharon Ann Young ORY, Appellee.
    No. 2004-CA-00545-COA.
    Court of Appeals of Mississippi.
    May 2, 2006.

      Shawn M. Lowrey, Robert R. Marshall, West Point, attorneys for appellant.
    Michael V. Ratliff, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

BARNES, J.,

for the Court.

¶ 1. The appellant’s and appellee’s motions for rehearing are denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefor.

¶ 2. Alan Ory appeals the decision of the Lamar County Chancery Court regarding the validity of his divorce and the distribution of the marital assets. Rejecting Alan’s claim of invalidity but finding error in the classification and calculation in value of certain marital assets, we affirm in part and reverse and remand in part.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. Alan and Sharon Ory were married on November 4, 1995, in Lamar County, Mississippi, and lived together until on or about October 20, 2001. During their marriage, Alan was an employee and part-owner of SpeeDee Oil Change in Hat-tiesburg, and Sharon worked as a respiratory therapist at Forrest General Hospital, also in Hattiesburg. On October 24, 2001, Alan filed for divorce on the grounds of habitual cruel and inhuman treatment and adultery, or in the alternative, irreconcilable differences. Sharon answered and counterclaimed that she also was entitled to a divorce on the ground of habitual cruel and inhuman treatment, or in the alternative, irreconcilable differences. On January 24, 2003, the Chancery Court of Lamar County issued an order granting Alan the divorce on the ground of habitual cruel and inhuman treatment. The order granting the divorce (“judgment of divorce”) stated that the chancery court reserved for a later date other issues such as the distribution of the marital assets. After hearings held in September and October 2003, the chancellor issued a final judgment which ordered the distribution of the marital assets (“distribution judgment”); this judgment was issued on January 23, 2004.

¶ 4. In arriving at the distribution, the chancellor evaluated the following assets:

a. An eighty-acre parcel of land deeded to Sharon prior to the marriage;
b. The Orys’ marital home and a five-acre section of the larger parcel, upon which the home was constructed;
c. The appreciation during the marriage of Alan's share of the SpeeDee Oil Change franchise;
d. Sharon’s retirement fund of $36,520, accumulated during the marriage;
e. A motorcycle, tractor, pick-up truck, desk, and tools.

¶ 5. In the distribution judgment, the chancellor valued the marital assets at $280,077 and awarded each party fifty percent of the marital estate, or $140,038.50 apiece. Sharon was awarded the marital home, fee simple title to the entire eighty-acre parcel of land, the contents of her retirement account, and the furnishings in the home. Alan was awarded the appreciation in value of the SpeeDee Oil Change franchise as well as the motorcycle, tractor, truck, desk, and tools. Because the value of the assets distributed to Sharon slightly outweighed those awarded to Alan, the chancellor required that Sharon pay Alan a total of $13,034.50 to make up for the imbalance. Additionally, the chancellor ordered Sharon to reimburse Alan $49,000 for payments he made prior to the marriage to pay off a lien on Sharon’s parcel of land. Taking into account the effect of the $49,000 payment, Sharon’s award was effectively reduced to $91,038.50, and Alan’s award increased to $189,038.50.

¶ 6. Dissatisfied with the chancellor’s distribution, Alan filed a motion for new trial asserting that the chancellor’s decision was against the overwhelming weight of the evidence. Upon the chancery court’s denial of his motion, Alan, represented by new counsel, appealed to this Court, asserting the following: (1) that the chancellor erred in awarding the divorce on the ground of habitual cruel and inhuman treatment; (2) that the chancellor erred in characterizing the seventy-five-acre parcel of land and certain funds as non-marital assets; (3) that the chancellor erroneously calculated the mathematics of the equitable distribution; and (4) that the chancellor erred in distributing the marital assets. We affirm in part and reverse and remand in part.

STANDARD OF REVIEW

¶ 7. This Court’s scope of review in domestic relations matters is strictly limited. Dunn v. Dunn, 911 So.2d 591, 595(¶8) (Miss.Ct.App.2005). We will not disturb a chancery court’s findings unless the court’s actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998). Particularly in the areas of divorce, alimony and child support, this Court is required to uphold the findings of fact made by a chancellor that are supported by substantial evidence and that do not indicate arbitrariness or caprice. Henley v. Jones, 880 So.2d 382, 384(¶ 5) (Miss.Ct.App.2004) (citing Newsom v. Newsom, 557 So.2d 511, 514 (Miss. 1990)).

ISSUES AND ANALYSIS

I. WHETHER THE CHANCERY COURT ERRED IN AWARDING ALAN THE DIVORCE ON THE GROUND OF HABITUAL CRUEL AND INHUMAN TREATMENT.

¶ 8. Dissatisfied with his share of the marital assets, Alan now challenges not only the chancellor’s distribution of the assets, but the validity of the divorce itself. The challenge seems to stem from Alan’s belief that his financial position would be improved were he awarded a divorce on the ground of adultery, as the chancellor might find that Sharon’s conduct weighs against her receiving a favorable share of the marital assets. Alan now assumes the extraordinary position of asking this Court to find that the divorce he procured is invalid. The matter is complicated by Sharon’s remarriage sometime after the issuance of the judgment of divorce.

¶ 9. It is well-established that a party is not allowed to raise an issue for the first time on appeal, because to do so prevents the lower court from addressing the alleged error. See In re Conservatorship of Murphey, 910 So.2d 1234, 1241(¶ 32) (Miss.Ct.App.2005) (citing Crowe v. Smith, 603 So.2d 301, 305 (Miss. 1992)). Alan stated in a sworn complaint that he suffered habitual cruel and inhuman treatment at the hands of his wife; however, represented by new counsel on appeal, Alan now begs this Court to invalidate his divorce because he failed to put forth sufficient evidence to justify the grant of his divorce. Stunned by Alan’s about-face, Sharon contends that equitable or judicial estoppel should prevent Alan from obtaining the relief he seeks. While estoppel may well prevent Alan from gaming our courts in such a manner, we decline to answer the question, for the issue of the validity, vel non, of the Orys’ divorce is not properly before this Court. An examination of the record shows that Alan failed to raise this issue either by objection or via a post-trial motion. Therefore, Alan waived the issue and we may not pass judgment on his challenge as to the validity of the divorce. See Burcham v. Burcham, 869 So.2d 1058, 1060-61 (¶¶ 7-9) (Miss.Ct.App.2004); Seals v. State, 767 So.2d 261, 263(¶ 6) (Miss.Ct.App.2000).

¶ 10. The dissent would hold the Orys’ divorce invalid because the divorce proceedings were not held in open court, and were thus in violation of section 93-5-17 of the Mississippi Code. However, again, Alan never raised this argument either below or on appeal. Alan’s briefs make no mention of the statute cited by the dissent; he merely claims that the issue below was one of proof — that he did not put forth sufficient evidence to support the chancellor’s finding of habitual cruel and inhuman treatment. He in no way asserts that a section 93-5-17 defect voids the divorce. It is true that the record in this matter is incomplete, and that the docket makes no reference to a hearing on the merits of Alan’s case for divorce. However, the chancellor’s judgment of divorce reflects that he “heard and considered both oral and documentary evidence.” Because Alan failed to raise below that the divorce should be held void for failure to conduct the proceedings in open court, we now have no record to aid us in evaluating any such claim, and Sharon has had no opportunity to respond to the argument. The chancellor would clearly be in a much better position to resolve the issue. He should have been given the opportunity to do so.

¶ 11. Even if the dissent is correct in its assertion that the chancery court failed to comply with the requirements of section 93-5-17, this Court does not have jurisdiction to declare the judgment of divorce void on that basis. Our Court is a court of appeals; it has no original jurisdiction. We “can only try questions that have been tried and passed upon by the court from which the appeal is taken.” Leverett v. State, 197 So.2d 889, 890 (Miss.1967). Alan could have filed a motion with the chancery court pursuant to Rule 60(b)(4) of the Mississippi Rules of Civil Procedure, asking the court to set aside the judgment of divorce as void. However, he filed no such motion. Had he made such a request and been denied, then we would have jurisdiction to rule on the question. However, because Alan did not seek that relief below, we may not grant it on appeal.

II. WHETHER THE CHANCERY COURT ERRED IN CHARACTERIZING THE SEVENTY-FIVE-ACRE PARCEL OF LAND AND CERTAIN FUNDS AS NON-MARITAL ASSETS.

¶ 12. In the distribution judgment, the chancellor found that while the marital home and five-acre parcel of land upon which the home was situated were marital assets, the remaining seventy-five-acre parcel was not a marital asset subject to equitable distribution. Alan challenges this finding, and claims that the land became a marital asset because of his efforts to improve the land and because of his contribution of funds in removing a hen from the property. Furthermore, Alan contests the chancellor’s finding that $35,000 that Sharon put into the home was not a marital asset.

¶ 13. “For purposes of divorce proceedings, the marital estate consists of property acquired or accumulated by the parties during the course of the marriage.” Hankins v. Hankins, 866 So.2d 508, 511(¶ 13) (Miss.Ct.App.2004) (citing Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss. 1994)). The marital estate is subject to equitable distribution upon the divorce of the parties. Id. However, not all property acquired during the course of a marriage is “marital”; those assets attributable to a party’s separate estate prior to marriage are considered non-marital property not subject to equitable distribution. Id. While this is the general rule, non-marital assets may lose their status as such if the party commingles the asset with marital property or uses them for familial benefit. Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994).

¶ 14. In the present case, there is no serious dispute that Sharon owned the property prior to her marriage to Alan. Though Alan argued at trial and again in his briefs that he “bought” the land from Sharon’s parents, the record does not support his contentions. The record shows that the land in question, in Sharon’s family for over 100 years, was encumbered by a mortgage of $49,000. Before the marriage, Alan paid off this lien with his personal funds, but title in the property remained solely in Sharon’s name. While Alan’s contribution removed a cloud from the property, the record is absent of any evidence showing that Alan purchased the land. Sharon testified that prior to Alan’s offer to remove the lien, she had secured a loan to refinance the property. Therefore, Alan’s argument that Sharon would have “lost” the property without him, and that therefore he “bought” the property, is not supported by the record. The chancellor’s distribution judgment, however, recognized the value of Alan’s contribution, and reimbursed him the $49,000.

¶ 15. Because there is no question that the seventy-five-acre parcel belonged to Sharon’s separate estate prior to the marriage, if Alan is to have any interest in the property, it can only come about through the commingling doctrine. See Hankins, 866 So.2d at 511(¶ 16). Alan contends that the parcel was converted to a marital asset due to his efforts to improve the land. The record shows that Alan made some efforts to improve the land; the testimony is unclear as to what extent his efforts improved the seventy-five-acre tract versus the five-acre parcel upon which the marital home was built. Nevertheless, the record reflects that Alan cleared a portion of the land, hauled dirt onto the property, and had a large number of seedlings planted on the property. Alan did not, however, put forth sufficient evidence to prove that his activity was so pervasive as to convert the entire seventy-five-acre parcel into a marital asset, or show how the land increased in value during his marriage to Sharon. Thus, we cannot find that the chancellor was manifestly wrong in characterizing the parcel as a non-marital asset.

¶ 16. Alan also asserts that the chancery court erred in characterizing certain funds as non-marital assets. At the distribution hearing, Sharon testified that at the beginning of her marriage to Alan, she owned a 1991 Cavalier mobile home. She testified that Alan paid $30,000 to pay off a lien on the home, and that when the home was subsequently sold for $19,000, the proceeds were put back into the house the couple was constructing. Additionally, Sharon testified that during the marriage she received $16,000 in personal injury proceeds as a result of an automobile accident. Sharon stated at the distribution hearing that these funds “went back into knobs and door handles and window blinds and the wallpaper and furniture and appliances for the house.” In the distribution judgment, the chancellor assigned to the marital home and five-acre tract a total value of $180,000, which represented the value suggested in an appraisal report on the property. The chancellor subtracted from this figure $28,443, representing the balance of the mortgage on the property. From the resulting figure of $151,557, the chancellor subtracted $35,000 that Sharon had contributed to the purchase of the home. This $35,000 figure represented the total of the proceeds from the personal injury settlement and the sale of the mobile home.

¶ 17. It is clear from the record that the entire $19,000 in proceeds from the sale of the mobile home should not have been characterized as a non-marital asset. Sharon testified that prior to the marriage, she had paid a down payment of $4,500 on the home and had made monthly payments of $418.84 for “six or seven years.” However, it is undisputed that Alan paid approximately $30,000 to clear the lien from the home, and that the mobile home later sold for $19,000. We reverse the chancellor’s characterization of the entire $19,000 as a non-marital asset, and remand for a recalculation of the award that takes into account the contributions of both parties.

¶ 18. Alan also challenges the chancellor’s characterization of Sharon’s $16,000 personal injury award as a non-marital asset. While proceeds from personal injury actions are not generally deemed marital assets, they can lose their non-marital status through commingling with marital assets. Myrick v. Myrick, 739 So.2d 432, 434(¶ 7) (Miss.Ct.App.1999). The record shows that Sharon invested the entire $16,000 in furnishings for the marital home; this is a clear example of commingling. Exacerbating the error is the fact that Sharon was awarded the marital home and its furnishings. The $16,000 injury award was used to furnish the home; thus, the chancellor’s award gave Sharon double credit for her contribution. Finding error, we reverse the chancellor’s characterization of the personal injury proceeds as non-marital assets.

¶ 19. In sum, we uphold the chancellor’s finding that the seventy-five-acre parcel of land was a non-marital asset. However, because we find error in the chancellor’s calculation of the portion of the proceeds from the sale of the mobile home to which Sharon is entitled, and in the chancellor’s determination that Sharon’s $16,000 personal injury settlement was a non-marital asset, we remand to the chancery court for a distribution of these assets in a manner consistent with this opinion.

III. WHETHER THE CHANCERY COURT ERRED IN THE MATHEMATICS OF THE PROPERTY DIVISION.

¶ 20. Alan testified at the distribution hearing that when he sold his share of the SpeeDee Oil Change franchise for $500,000, he “paid out” $296,000 in expenses related to the sale. Included in the $296,000 figure were payments to business partners, a payment to the franchise’s parent company, capital gains taxes, and a payment to pay off a business loan. The chancellor’s distribution judgment mistakenly quoted a figure of $296,000 as the amount Alan netted in the sale, rather than the amount he paid out pursuant to the sale. The chancellor used the $296,000 figure in calculating the appreciation in value of the SpeeDee Oil Change franchise during the Orys’ marriage. The miscalculation was significant; using the $296,000 figure, the chancellor arrived at an appreciation value of $127,000. Had the chancellor used $204,000 as the net profit (resulting from sale price of $500,000 minus expenses of $296,000), he would have arrived at an appreciation of only $35,000.

¶ 21. Though the chancellor clearly erred in his calculation, this does not end the inquiry. Alan testified that he “ha[d] $250,000 left” after the sale of the franchise. It is mathematically impossible that Alan could be left with this sum after paying $296,000 in expenses related to the sale. In order for Alan to have $250,000 after the sale, the sale price must have been over $500,000, or the value of the business at the time of sale must have been the sale price plus the value of certain bank accounts Alan retained after the sale. Annette Turner, Sharon’s expert witness, testified that both the sale price and the amount remaining in the bank accounts at the time of the sale had to be considered. She concluded that Alan actually received $314,932 for his interest when the SpeeDee Oil Change franchise was sold. Thus, it appears that the value Alan retained after the sale of the business was between $250,000 and $314,392.

¶ 22. We remand this issue to the chancery court so that it might revisit the issue of the valuation of the SpeeDee Oil Change franchise, and the corresponding appreciation in value of the franchise during the Orys’ marriage.

IY. WHETHER THE CHANCELLOR ERRED IN DISTRIBUTING THE MARITAL ASSETS.

¶ 23. Though we have found that the chancellor erred in calculating the value of certain assets, we do not find that the chancellor erred in attempting to distribute the marital assets equally. The chancellor took into consideration the equitable distribution principles embodied in Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994), and did not commit manifest error. However, Alan claims that the chancellor erred in distributing the marital assets because he did not take into account Sharon’s adultery. We note that in the distribution judgment, the chancellor made no mention of the relative fault of the parties. Marital misconduct is a factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship. Singley v. Singley, 846 So.2d 1004, 1007(¶ 8) (Miss.2002) (citing Ferguson, 639 So.2d at 927). While Sharon did admit that she had engaged in adulterous activity, Alan put forth no evidence to show that Sharon’s conduct affected the stability of the marriage. Had Alan put forth some evidence of how Sharon’s conduct affected the marriage, it is possible that the chancellor might have erred in ignoring that proof. However, because Alan did not put forth such evidence, we cannot find the lower court in error. This issue is without merit.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE TO BE EQUALLY DIVIDED BETWEEN THE APPELLANT AND THE APPELLEE.

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

LEE, P.J.,

Dissenting:

. ¶25. I joined the dissent in this case which was authored by Judge Bridges. As Judge Bridges has retired from this Court, I adopt his dissent as set forth below.

¶ 26. I disagree with the majority’s decision to affirm the chancery court’s decision. I agree that the majority’s reasoning bears consideration, but I would apply greater weight to other factors. Accordingly,' I respectfully and humbly dissent.

¶ 27. I concede that Alan did "not raise the issue of the validity of his divorce when he was before the chancellor. As the majority notes, a party is not allowed to raise an issue for the first time on appeal. See In re Conservatorship of Murphey, 910 So.2d 1234(¶ 32) (Miss.Ct.App.2005) (citing Crowe v. Smith, 603 So.2d 301, 305 (Miss. 1992)). We have the authority to prevent a manifest miscarriage of justice, even when a party waives its right to assert error. State Highway Comm’n of Mississippi v. McDonald’s Corp., 509 So.2d 856, 863 (Miss.1987) (citing Johnson v. State, 452 So.2d 850, 853 (Miss.1984)). Though no Mississippi case sets a precedent that errors such as those in the present case rise to the level of plain error, I would apply the doctrine under these circumstances.

¶ 28. “[G]rounds of. divorce are purely creatures of statute.” Bland v. Bland, 620 So.2d 543, 545 (Miss.1993). Accordingly, “the requisites of those grounds must be supported by facts and evidence presented at trial.” Id. Section 93-5-17 of the Mississippi Code requires that testimony to prove habitual cruel and inhuman treatment must occur in open court or the divorce is void. Miss.Code Ann. § 93-5-17 (Rev.2004). Here, the testimony did not occur in open court. The statute says the divorce is void, not “voidable.” To allow a void divorce to proceed would amount to a miscarriage of justice.

¶ 29. “Even wheré a divorce on grounds of [habitual] cruel and inhuman treatment is uncontested, there must be corroboration of the plaintiffs testimony.” Peterson v. Peterson, 648 So.2d 54, 57 (Miss.1994) (citing Unif. Chan. Ct. R. 8.03). If no evidence was presented, there was no opportunity for corroboration. Id. In Samples v. Davis, 904 So.2d 1061(¶ 15) (Miss.2004), the supreme court vacated a chancellor’s decision to enter a consent judgment. The judgment was based on a consent agreement, but that consent agreement failed to meet certain procedural requirements because the terms were not read in open court and did not appear in the record. Id. at (¶ 14). Based on the lack of those requirements, the supreme court found a lack of substantial, credible evidence and decided to “in effect ‘wipe the slate clean and put the parties back where they were prior to trial.’ ” Id. (quoting Massingill v. Massingill, 594 So.2d 1173, 1177 (Miss.1992)).

¶ 30. I concede that the majority has reason for concern. Alan’s tactics are disheartening. He obtained what appears to be a divorce judgment on the grounds he requested and now he attempts to return what he previously sought. It is not out of concern for Alan that I dissent. I dissent because certain procedural and statutory requirements transcend Alan’s questionable tactics. Further, I am not concerned that Alan will be unjustly enriched. If his goal is to take another bite at the apple in hope of a more favorable property distribution, there is no reason to believe such will be the result. However, I dissent based on the requirements necessary for a valid judgment of divorce, regardless of Alan’s well-being.

IRVING, J., JOINS THIS SEPARATE WRITTEN OPINION.

      . The chancery court's first judgment was interlocutory in nature, and thus not subject to appeal, because the court reserved the issue of equitable distribution for a later date. See Cameron v. Burns, 802 So.2d 1069, 1071(¶ 14) (Miss.Ct.App.2001); M.R.C.P. 54(b). Accordingly, the second, final judgment is the subject of the present appeal.

      . Alan attempts to dampen the force of Sharon's estoppel argument by claiming that she was taking a risk by remarrying, since she knew that the divorce was being appealed. However, it does not appear from the record that the issue of the divorce’s invalidity was ever raised until Alan filed his appellate brief with this Court on December 30, 2004. There is nothing in the record to reflect that Alan ever contested the validity of his divorce before the chancery court, and neither party has referenced any prior claim of invalidity.

      . The statute reads, in pertinent part: "The proceedings to obtain a divorce shall not be heard or considered nor a judgment of divorce entered except in open court.... Any judgment made or entered contrary to the provisions of this section shall be null and void.” Miss.Code Ann. § 93-5-17(1) (Rev. 2004).

      . We note that on remand, Alan is free to file such a motion in the chancery court.

      . In Tramel v. Tramel, 740 So.2d 286, 290-91(¶ 17) (Miss. 1999), the Mississippi Supreme Court adopted the "analytic approach” in analyzing what portions of personal injury awards are to be considered non-marital property. The record contains no evidence that would lead us to hold that any part of the $16,000 should have been deemed non-marital.

      . Though the judgment actually states that the proceeds of the sale were $290,000, the mathematics of the judgment make it clear that the chancellor meant $296,000.


author: IRVING, J.,

text:
    Trevor Vashon CARLISLE, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01764-COA.
    Court of Appeals of Mississippi.
    June 20, 2006.

      Leslie D. Roussell, Laurel, attorney for appellant.
    Office of the Attorney General by W. Daniel Hincheliff, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK, IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Wayne County jury convicted Trevor Carlisle of possession of over one ounce of marihuana with intent to sell, and the Wayne County Circuit Court sentenced him to ten years in the custody of the Mississippi Department of Corrections and ordered him to pay a $10,000 fine. The court also ordered that this sentence be served consecutively with a prior sentence. Aggrieved, Carlisle appeals and alleges the following errors, which list verbatim:

1.THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO SUPPRESS THE EVIDENCE INTRODUCED IN THIS CASE AS THERE WAS NO PROBABLE CAUSE TO STOP MR. CARLISLE’S VEHICLE BY LAW ENFORCEMENT, AND HIS DETENTION AND THE SEARCH OF HIS VEHICLE AMOUNTED TO A VIOLATION OF HIS RIGHTS TO BE FREE OF UNREASONABLE SEARCH AND SEIZURE, THEREBY MAKING ALL OF THE EVIDENCE OBTAINED BY LAW ENFORCEMENT IN THIS CASE INADMISSIBLE.
2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING MICHAEL TOLBERT TO TESTIFY TO THE JURY CONCERNING EVIDENCE DISCOVERED BY OTHER OFFICERS. THIS ALLOWED THE INTRODUCTION OF EVIDENCE EVEN THOUGH THERE WAS NO PROPER CHAIN OF CUSTODY ESTABLISHED BY THE STATE AT TRIAL.
3. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY LETTING WITNESSES TESTIFY REGARDING PRIOR BAD ACTS OF THE DEFENDANT THEREBY PREJUDICING THE JURY AND VIOLATING HIS RIGHT TO A FAIR TRIAL.
4. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO SWEAR IN THE PETIT JURY THAT SAT AS FACT FINDERS IN THIS CASE.
5. THE TRIAL JUDGE’S MOVING VENIRE MEMBERS TO THE END OF THE JURY LIST VIOLATED THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.
6. THE TRIAL COURT ERRED IN ORDERING CARLISLE TO SERVE HIS TWO SENTENCES CONSECUTIVELY DUE TO A MISTAKEN BELIEF THAT EXISTING LAW REQUIRED SUCH A SENTENCE.
7. WHETHER THE ABOVE DESCRIBED ERRORS WHEN VIEWED CUMULATIVELY RISE TO THE LEVEL OF REVERSIBLE ERROR. ¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Officer Michael Tolbert, commander of the South Mississippi Narcotics Task Force, received a phone call from Deputy Kevin Stevens of the Wayne County Sheriffs Department indicating that Stevens had arrested Stephanie Brown for burglary and that she had some information concerning the sale of illegal drugs. In response, Tolbert interviewed Brown at the sheriffs department, and she informed him that she had been purchasing marihuana from a man she knew only as “Trouble.” After receiving this information, Tolbert began conferring with other confidential informants and “people on the street” to determine the credibility of the information and to ascertain the identity of “Trouble.” Based on his investigation, Tolbert uncovered that “Trouble” could possibly be Trevor Carlisle.

¶ 4. Shortly thereafter, Tolbert contacted Brown and requested that she call “Trouble” to arrange a sale for two ounces of marihuana. Brown placed a phone call to the man she knew as “Trouble” and requested that he meet her at an abandoned bridge in Wayne County. Brown then informed the officers that “Trouble” had agreed to meet her at the arranged location within ten to fifteen minutes and gave them a physical description of the vehicle that “Trouble” would be driving.

¶ 5. Tolbert had officers placed at various locations surrounding the area near the bridge to await “Trouble’s” arrival. Mike Mazingo, a Wayne County Sheriffs Department deputy, was hiding in the woods near the abandoned bridge when he notified Tolbert that he had spotted a vehicle matching the description of “Trouble’s” car in the area. Tolbert contacted Stevens, who was stationed approximately one-eighth of a mile from the abandoned bridge, and requested that Stevens pull the car over. When Stevens stopped the vehicle, he recognized the driver as Trevor Carlisle. After the stop, other officers converged on the scene.

f 6. According to Tolbert’s testimony, he arrived at the scene one minute after the car had been stopped by Stevens. Tolbert testified that when he arrived, Marvin Overstreet, an agent with the South Mississippi Narcotics Task Force, was already on the scene and had requested permission to search Carlisle’s vehicle. Carlisle declined to allow the officers to search his vehicle. After learning that consent to search had been denied, Tolbert testified that he went to his house, retrieved his canine drug dog, and had the dog begin a search of the outside of Carlisle’s vehicle. Tolbert further testified that the dog gave him “an alert at the driver side front and passenger door seam.” Based on this alert, the officers began searching the vehicle. The search revealed 193.1 grams of marihuana concealed in various containers throughout the vehicle. As a result, Car-lisle was arrested and charged with possession of 193.1 grams of marihuana with intent to sell.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Suppression of the Evidence

¶ 7. Alleging a lack of probable cause, Carlisle moved to suppress the marihuana taken from his vehicle. Carlisle argues that the lack of probable cause makes the stop and subsequent search of his vehicle a “violation of both the Fourth Amendment of the United States Constitution and Section 23 of the Mississippi Constitution.”

¶ 8. A suppression hearing was held in which the State put on evidence concerning the basis for the stop and search of Carlisle’s vehicle. The State produced the testimony of various officers pertaining to the events and circumstances that led to the stop and search. After hearing the facts of the case, the trial court overruled Carlisle’s motion to suppress, stating that:

The law is that these officers had probable cause and reasonable grounds to believe that a felony had been committed and that the defendant was probably guilty of that felony. They certainly had a right to stop the defendant and take him into custody. And if that’s the case, they have a right to conduct a search of his person and his vehicle, as I understand the law.

¶ 9. The Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution expressly protect a person’s right to be secure from unreasonable searches and seizures. Floyd v. City of Crystal Springs, 749 So.2d 110, 114(¶ 14) (Miss.1999). “The prohibition against unreasonable searches and seizures ‘applies to seizures of the person, including brief investigatory stops such as the stop of a vehicle.’ ” Id. (citing U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). “The [Mississippi Supreme Court] has recognized that ‘given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest,’ that is, on less information than is constitutionally required for probable cause to arrest.” Id. at (¶ 16) (citing Singletary v. State, 318 So.2d 873, 876 (Miss.1975)).

Such an investigative stop of a suspect may be made so long as an officer has “a reasonable suspicion, grounded in specific and articulable facts, that the person they encounter was involved in or is wanted in connection with a felony” or so long as the officers have “some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.”

Id. (citations omitted).

¶ 10. Here, not only do we find that the officers had reasonable suspicion to perform an investigative stop of Car-lisle’s vehicle, but we also find that they had probable cause to stop and search Carlisle’s vehicle. As support for our finding, we reiterate the facts which we find were sufficient to establish probable cause. The officers received information from Brown that she had been purchasing marihuana from an individual she knew as “Trouble.” Further investigation by the officers revealed that “Trouble” was likely Carlisle. The officers then requested that Brown make a phone call to “Trouble” to arrange a purchase of marihuana. The sale was arranged for a specific location and at a specific time. Brown informed the officers about the vehicle that “Trouble” would be driving, describing it as a “gray four-door car with a different color driver’s side fender and heavily tinted windows.” The location, an abandoned bridge, was staked out by officers who noticed a vehicle matching the description of “Trouble’s” car approach the area. As Carlisle’s vehicle, which matched exactly the description of “Trouble’s” car, approached the abandoned bridge, it was stopped by an officer who recognized Car-lisle and knew that he was on probation for a prior conviction. At this time, the officers had sufficient probable cause to believe that Carlisle was in possession of marihuana. Therefore, based on the above facts, we find that the officers had probable cause to stop Carlisle, place him under arrest, and initiate a lawful search of his vehicle.

¶ 11. Even though the officers had probable cause when they initially stopped Carlisle’s vehicle, the officers further strengthened their case for probable cause by bringing in a certified drug sniffing dog after Carlisle refused to give his consent to the search. Only after the dog gave an alert did the officers initiate a search of Carlisle’s vehicle, which revealed 193.1 grams of marihuana.

¶ 12. In short, we find that the officers had the requisite probable cause to enable them to stop and search Carlisle’s vehicle. Therefore, we affirm the trial court’s denial of Carlisle’s motion to suppress the marihuana discovered in his vehicle.

2. Chain of Custody

¶ 13. Under this assignment of error, Carlisle argues that the trial court erred in allowing Officer Tolbert to testify about marihuana that other officers discovered in Carlisle’s vehicle. According to Carlisle, in order for admissible evidence to be reliable, a valid chain of custody has to be established. Carlisle argues that in order to establish a valid chain of custody and to prove that evidence has not been tampered with, “the person who found that evidence ought to have to testify as to the location it was found, the circumstances under which it was found, and how it was situated.” Carlisle further argues that “to allow another officer to testify as to what other officers found, violates due process, a person’s right to confront a witness, as well as evidence rules regarding hearsay.”

¶ 14. “The test for chain of custody is to ascertain whether there is any indication of tampering or substitution of evidence.” Wells v. State, 604 So.2d 271, 277 (Miss.1992) (citing Gibson v. State, 503 So.2d 230, 234 (Miss.1987)). There is no requirement for the State “to produce every person who handled the object, nor to account for every moment of every day.” Butler v. State, 592 So.2d 983, 985 (Miss. 1991). The burden is on Carlisle to prove that tampering or substitution of the evidence took place. Williams v. State, 794 So.2d 181, 185(¶ 10) (Miss.2001) (citing Hemphill v. State, 566 So.2d 207, 208 (Miss.1990)). When reviewing issues regarding chain of custody, we will reverse only if the trial court has abused its discretion in admitting the evidence. Id. at 185(¶ 12).

¶ 15. Here, Carlisle has offered no proof of either a break in the chain of custody or any tampering with the evidence at issue. At trial, Carlisle merely objected to the chain of custody because some of the marihuana was taken out of the bag that it was discovered in. The record reveals that the reason that the marihuana was taken out of the bag was so that it could be submitted to the Mississippi Crime Laboratory for testing. Car-lisle’s trial counsel never explained or offered any rationale to the trial court about how such a removal of the marihuana amounts to tampering. Moreover, Car-lisle’s brief fails to point to any evidence or articulate any plausible reason for any possible tampering.

¶ 16. Furthermore, Tolbert testified that the marihuana discovered by the other officers was uncovered in his presence and immediately turned over to him. Tol-bert further testified that all marihuana discovered in Carlisle’s vehicle was taken back to the task force office, weighed by him, packaged and sealed by him, and taken to the crime lab by either himself or another agent.

¶ 17. In short, we find that there was sufficient evidence presented for the trial court to find that the chain of custody had been properly maintained. The court did not abuse its discretion in admitting the evidence. This issue is without merit.

S. Testimony Pertaining to Carlisle’s Prior Bad Acts

¶ 18. Carlisle argues that the trial court erred in allowing the prosecution to question Brown about her previous drug transactions with him, thereby eliciting improper prior bad acts testimony. Specifically, Carlisle argues that the trial court improperly allowed the prosecution to question Brown about how many times she had previously purchased drugs from him and about how much marihuana her cousin had previously attempted to purchase from him.

¶ 19. We note, as Carlisle admits in his brief, that no objection was made at trial to Brown testifying that she had previously purchased marihuana from Carlisle about twenty times. Therefore, this issue is procedurally barred because it was not properly raised in the trial court. The Mississippi Supreme Court has held that “[a] trial judge will not be found in error on a matter not presented to him for decision.” Smith v. State, 729 So.2d 1191, 1205-06(¶ 63) (Miss.1998).

¶ 20. Carlisle did, however, object when Brown testified about the reason that she gave Carlisle for her sudden increase in the amount of marihuana she wanted to purchase. A review of the record reveals that Carlisle’s objection in the proceedings below articulates no discerna-ble relation to prior bad acts, which is the basis for this issue on appeal. Instead, Carlisle’s objection sounds like a hearsay objection as he objected “to what her [Brown’s] cousin said.” Our supreme court has held that “[ojbjections to the admissibility of evidence must specifically state the grounds, otherwise, the objection is waived.” Oates v. State, 421 So.2d 1025, 1030 (Miss.1982) (citations omitted). Furthermore, “an objection on one or more specific grounds constitutes a waiver on all other grounds.” Morgan v. State, 741 So.2d 246, 253(¶15) (Miss.1999). Since Carlisle failed to specifically state the grounds for his objection and made what was more akin to a hearsay objection on this point in the proceedings below, he has waived his right to complain of any error on appeal. This issue is procedurally barred.

A Swearing in the Jury

¶ 21. Carlisle argues that the trial court committed reversible error-by failing to administer the petit jury oath to the jury. Carlisle contends that the trial court’s failure to swear in the jury resulted in a violation of his fundamental right to a fair trial.

¶ 22. The State counters that Carlisle failed to make a contemporaneous objection at trial and did not raise the issue in his motion for a new trial. The State also points out that Carlisle failed to make an argument pertaining to the plain error doctrine in his brief to this court. Accordingly, the State maintains that Car-lisle’s argument is procedurally barred. The State also argues that the trial judge is presumed to have sworn in the jury because the record reveals that the court made several references to an oath administered to the jury.

¶ 23. We agree with the State that Car-lisle is procedurally barred from raising this issue on appeal because he failed to make a contemporaneous objection at trial, did not raise this issue in his motion for a new trial, or make an argument to this court under the plain error doctrine. Notwithstanding the procedural bar, we note that this issue is without merit because the Mississippi Supreme Court has held that it is not reversible error where a record does not specifically reflect that a jury was sworn because “the presumption is that the trial judge properly performed his duties.” Bell v. State, 360 So.2d 1206, 1215 (Miss.1978).

¶24. We find that Carlisle has failed to present sufficient evidence to overcome the presumption that the trial judge administered the oath to the jury. Although the record does not explicitly reflect a reading of the oath, the record does reveal references made by the court to the oath. In instructions that the court gave to the jury, the judge made the following statement: “When you [members of the jury] took your places in the jury box, you made an oath that you would follow and apply these rules of law to the evidence in reaching your verdict in this case.” Furthermore, the court’s judgment of conviction stated that “a trial before a jury consisting of Edwin Blue and eleven other jurors, having been duly sworn.... ” From these statements, it can be presumed that the jury was sworn. Furthermore, the record does not clearly contradict these statements indicating that an oath was administered to the jury. Therefore, we find that Carlisle has failed to overcome the rebuttable presumption that the trial judge properly performed his duties. This issue is without merit.

5. Movement of Venire Members to the End of the Jury List

¶ 25. In this assignment of error, Car-lisle argues that the trial court erred in moving fourteen potential jurors to the end of the venire list “so the likelihood of them being selected in this trial would be substantially reduced.” According to Car-lisle, “the actions of the trial judge [were] a radical departure from the jury selection procedures outlined by Mississippi statute and violative of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, article 3, sections 14 and 26 of the Mississippi Constitution, and Mississippi law.” In deciding to move the fourteen potential jurors to the end of the venire list, the trial judge stated the following:

So any appellate court can understand what is going on here, we had a trial Monday and Tuesday and 14 jurors served for two days into the night or late hours Tuesday, and I instructed the bailiff — excuse me — the clerk to take those 14 and put them on the end of the list so that the likelihood of them being selected in this trial would be substantially reduced.

¶ 26. The record reveals that Carlisle made no objection to the court’s movement of the potential jurors to the end of the venire list during his trial or in his motion for a new trial. We also note that Carlisle made no motion to quash the venire. The Mississippi Supreme Court has held “that a party who fails to object to the jury’s composition before it is empaneled waives any right to complain thereafter.” Page v. Siemens Energy and Automation, Inc., 728 So.2d 1075, 1082(¶ 27) (Miss.1998) (citing Hunter v. State, 684 So.2d 625, 631 (Miss.1996)). Because Carlisle failed to raise any problems or concerns that he may have had with the jury’s composition before it was empaneled, we find that he has waived his right to complain about this issue on appeal. Therefore, this issue is procedurally barred.

6. Carlisle’s Consecutive Sentences

¶ 27. Under this assignment of error, Carlisle claims that the trial judge erred in ordering him to serve his two sentences consecutively. Carlisle argues that the trial judge had the discretion to order the “sentences to run either concurrently with or consecutive to each other or to any other sentence or sentences previously imposed upon the defendant.” Car-lisle maintains “that the trial judge was under the mistaken belief that the sentences under law must run consecutively.”

¶ 28. The circuit court’s sentencing order specifically stated that “[t]his defendant [Carlisle] is a prior convicted felon who has served prison time. This sentence [ten years and a $10,000 fine] is consecutive to the sentence in 01-12G-K.” As Carlisle points out in his brief, he was on five years probation for a previous drug-related offense when he was arrested for marihuana possession with intent to sell, resulting in revocation of his probation. Therefore, the court’s discretion in sentencing Carlisle was controlled by Mississippi Code Annotated section 99-19-21(2) (Rev.2000), which states:

When a person is sentenced to imprisonment for a felony committed while the person was on parole, probation, earned-released supervision, post-release supervision or suspended sentence, the imprisonment shall commence at the termination of the imprisonment for the preceding conviction. The term of imprisonment for a felony committed during parole, probation, earned-release supervision, post-release supervision or suspended sentence shall not run concurrently with any preceding term of imprisonment. If the person is not imprisoned in a penitentiary for the preceding conviction, he shall be placed immediately in the custody of the Department of Corrections to serve the term of imprisonment for the felony committed while on parole, probation, earned-release supervision, post-release supervision or suspended sentence.

(emphasis added).

¶ 29. Pursuant to section 99-19-21(2), the court was prohibited from allowing Carlisle to serve his new sentence concurrently with his prior sentence. By statute, Carlisle is required to serve the present sentence consecutive to his probation revocation sentence. Therefore, this issue is without merit.

7. Cumulative Error

¶ 30. In his final assignment of error, Carlisle contends that cumulative errors denied him his constitutional right to a fair trial.

¶ 31. At the outset, we note that “the Constitution does not guarantee a perfect trial, but it does entitle a defendant in a criminal case to a fair trial.” Hammons v. State, 918 So.2d 62, 65(¶ 10) (Miss. 2005) (citing Clark v. State, 891 So.2d 136, 140-141(¶ 19) (Miss.2004)). Therefore, Car-lisle’s trial did not have to be perfect in order to be valid. However, the Mississippi Supreme Court has held that “individual errors, not reversible in themselves, may combine with other errors to make up reversible error.” Caston v. State, 823 So.2d 473, 509 (¶ 134) (Miss.2002). The Court further noted that:

[t]he question that must be asked in these instances is whether the defendant was deprived of a ‘fundamentally fair and impartial trial’ as a result of the cumulative effect of all errors at trial. If there is ‘no reversible error in any part, so there is no reversible error to the whole.’

Id. (citations omitted).

¶ 32. After reviewing the issues presented on appeal and the record, we find no reversible error in Carlisle’s trial. “Based on the finding of no error by the trial court on each individual issue, there is no cumulative effect for all the alleged errors.” Id. at (¶ 135).

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION OF POSSESSION OF OVER ONE OUNCE OF MARIHUANA (193.1 GRAMS) WITH INTENT TO SELL AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $10,000 IS AFFIRMED. THIS SENTENCE IS CONSECUTIVE TO THE SENTENCE IN 01-12G-K. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.

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

      . More specifically, Wayne County Sheriffs Department Deputies Kevin Stevens, Mike Mazingo, and Stephen Wally and South Mississippi Narcotics Task Force Agent, Marvin Overstreet, were dispersed around the area of the abandoned bridge for containment in the event that "Trouble” tried to flee.

      . Mississippi Code Annotated section 13-5-71 (Rev.2002) provides that petit jurors be sworn in the following form: "You, and each of you, do solemnly swear (or affirm) that you will well and truly try all issues and execute all writs of inquiry that may be submitted to you, or left to your decision by the court, during the present term, and true verdicts give according to the evidence. So help you God.”

      . "[The Mississippi Supreme Court] has held that a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because it is otherwise procedurally barred.” Williams v. State, 794 So.2d 181, 187(¶ 23) (Miss.2001) (citing Foster v. State, 639 So.2d 1263, 1288-89 (Miss. 1994)). "The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.” Id. (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). "Further, [we] apply the plain error rule only when it affects a defendant's substantive/fundamental rights.” Id. (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)).