author: EASLEY, Justice,

text:
    BREWER CONSTRUCTION COMPANY, INC. v. DAVID BREWER, INC., and Pear Orchard Vicksburg, LLC and Massey Land & Timber, LLC v. David Brewer, Inc., Pear Orchard Vicksburg, LLC and Brewer Construction Company, Inc.
    No. 2005-CA-01661-SCT.
    Supreme Court of Mississippi.
    Aug. 24, 2006.
    Rehearing Denied Nov. 9, 2006.

      Jan F. Gadow, Clyde X. Copeland, III, Jackson, Jeffrey Stephen Moffett, Robert Niles Hooper, attorneys for appellant.
    Samuel C. Kelly, Cheri Turnage Gatlin, Jackson, attorneys for appellees.
    Before WALLER, P.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. On June 20, 2001, David Brewer, Inc. (DBI), Brewer Construction, Inc. (BCI), and Bruce Hartfield, Inc. (Hart-field) filed suit against BellSouth Telecommunications (BellSouth), Deviney Construction (Deviney), and Curtis Wright Construction (Wright) in the Circuit Court of Warren County, Mississippi.

¶ 2. In April 2002, Joe Bonelli Construction Company, Inc. (Bonelli), Sanderson-Hollingsworth Builders, L.L.C. (Sander-son-Hollingsworth), and Hartfield intervened by filing a motion to allow intervention, cross-claims, and third-party claims. On April 11, 2002, the special master allowed the intervention and the attached proposed complaint, cross-claims, and third-party claims to be filed with the court. On April 12, 2002, Bonelli, Sander-son-Hollingsworth, and Hartfield filed their complaint and cross-claims against defendants, BellSouth, Deviney, and Wright; cross-claims against DBI and BCI; and third-party claims against Pear Orchard Vicksburg, L.L.C. (POV) and Massey.

¶ 3. BCI, with permission of the court, amended its complaint to include an indemnification claim against Massey for its negligence in the grading and compaction of the soil in the Pear Orchard subdivision. Massey was joined on July 3, 2002, as a party defendant. DBI and POV, with permission of the court, amended their complaint alleging that BCI and Massey breached their duty to properly construct and compact lots for the Pear Orchard subdivision. On April 6, 2004, the trial court entered an order for the special master requested by DBI and POV to handle the proceedings. DBI and POV filed a motion specifically requesting the appointment of a special master and provided the trial court with the name of the special master of their choice. BCI filed for summary judgment against Massey on September 1, 2004. The special master denied the motion for summary judgment on October 28, 2004.

¶ 4. Prior to trial, all parties settled except DBI and POV (collectively the “Ap-pellees”) and BCI and Massey (collectively the “Appellants”). The special master heard the case on November 1-4, 2004. Following the trial, the special master accepted briefs from all of the parties involved on December 6, 2004. A draft copy of his report was sent to the trial court on December 21, 2004. In his report, the special master found that Webber Brewer (Webber) and Pear Orchard Development, Inc. (POD) each had a one-half interest in POV. David Brewer (David) was the owner of POD. The special master recommended a judgment in favor of DBI against BCI and Massey, jointly and severally, for $179,034.32; judgment in favor of POV against BCI and Massey, jointly and severally, for $401,760.80; and judgment in favor of DBI and POV against BCI and Massey, jointly and severally, for the special master’s fee of $8,249.60.

¶ 5. Massey filed its objection to the special master’s report raising eight objections. BCI filed its objection raising ten objections to the special master’s report and a reply to Massey’s objections in support of BCI’s objections. The trial court on June 27, 2005, entered its order denying BCI’s motion for credit or offset for the settlement of a co-defendant. On the same day, the trial court entered its order addressing the objections to the special master’s report. The trial court found merit to some of the objections and reduced the amount of damages awarded to POV. Otherwise, the trial court stated that the special master’s report was adopted by the trial court.

¶ 6. The trial court entered its final judgment on July 25, 2005, finding BCI and Massey jointly and severally liable in the amount of $179,034.32, plus costs of court, in favor of DBI. The trial court also entered a final judgment, finding BCI and Massey jointly and severally liable in the amount of $349,718.90, plus costs of court, in favor of POV. The trial court then found that judgment should be granted in favor of BCI against Massey for full and complete indemnity to the extent BCI is required to pay the judgments to DBI and POV as stated above. BCI and Massey now appeal to this Court.

FACTS

¶ 7. Webber incorporated BCI on December 15, 1977. Webber was the sole owner of BCI. BCI purchased the subject property on December 10, 1996. In June 1999, Massey contracted with BCI to “cut and move approximately 74,000 yards of dirt ... compact dirt to create as much usable property as possible, suitable for residential development.” David, Web-ber’s son, incorporated DBI on November 6,1998. David was the sole owner of DBI. Massey quoted a lump sum price of $62,900 for the project. David contended that he was “continually kept in the know” through conference calls with his father as Massey was cutting and filling the subject property in 1999. However, David subsequently testified at trial that his company, DBI, had no involvement with the subject property until the summer of 2000 when DBI purchased parcels of land from POV in order to build houses. David testified that POV did not exist until March 13, 2000.

¶ 8. Massey completed his work in September, 1999. After Massey completed his work in September 1999, neither BCI nor Massey completed a soil test on the subject property to determine its worthiness for residential construction. Likewise, DBI did not have a soil compaction test completed when it bought a lot in the subdivision during the summer of 2000.

¶ 9. POD was incorporated on February 23, 2000. David was the sole owner of POD. However, Webber served as the president of POD, and David served as the vice-president, secretary, and treasurer of POD. POD was administratively dissolved by the Mississippi Secretary of State on September 5, 2002, for the non-payment of franchise tax and/or failure to file an annual report. On January 8, 2003, POD filed an application for reinstatement which named David as the president.

¶ 10. POV was incorporated on March 13, 2000, by Webber with David listed as its registered agent. Initially, Webber was the sole owner of POV. Some time later, Webber sold one-half interest in POV to POD. This sale eventually created two equal partners in POV, Webber and POD, which was solely owned by David.

¶ 11. On March 17, 2000, BCI, as the sole owner of the subject property, transferred the land to Webber, individually. On the same day, Webber, as the sole owner of the subject property, transferred the land to the newly created limited corporation, POV. Neither David, DBI, nor POV had any ownership interest in the subject property at the time Massey performed and completed the dirt work in 1999.

¶ 12. In June 2000, POV began selling lots to builders, including DBI. DBI and other builders began building houses in the subdivision. POV had BellSouth install telephone lines in the subdivision by the fall of 2000. By September 2000, DBI had completed one house in the subdivision. The subdivision began to settle by December 2000, including the houses, sidewalks, curbs, gutters, and roads. The trenches cut by BellSouth and its contractors were left open for some period of time. As a result of the open trenches, damage to the subject property resulted. However, BellSouth and its contractors, Deviney and Wright, are not involved in this appeal. Likewise, the other builders, Bonelli, Sanderson-Hollingsworth, and Hartfield also settled their claims and are not part of this appeal.

¶ 13. BCI and Massey were found to be jointly and severally liable to POV and DBI. However, at the time BCI contracted with Massey to perform work, POV had not been formed. Also, the subject property was transferred in 2000 from BCI to Webber, individually, before it was subsequently transferred to POV in March 2000.

¶ 14. Recapitulation of time line of events pertinent to this appeal:

December 1996 — BCI purchased subject property from Ellis Jabour Farris.
June 1999 — BCI hired Massey to complete the dirt work.
September 1999 — Massey completed the dirt work.
February 23, 2000 — POD was incorporated. POD was administratively dissolved on September 5, 2002, and reinstated on January 8, 2003.
March 13, 2000 — POV was formed and incorporated by Webber. Webber as the sole owner of POV subsequently transferred an one-half interest in POV to POD.
March 17, 2000 — BCI transferred subject property to Webber, individually.
March 17, 2000 — Webber, individually, transferred the subject property to POV.
June 2000 — DBI, Sanders-Hollings-worth, Bonelli, and Hartfield began purchasing lots from POV to build homes.

DISCUSSION

I. Whether BCI was POV’s general contractor which rendered BCI and Massey jointly liable to POV and DBI as determined by the special master and subsequently ratified by the trial court.

¶ 15. The special master found that BCI was the general contractor hired by the owner of the property, POV, to perform the dirt work and Massey was BCI’s sub-contractor and agent when Massey contracted to and performed the dirt work on the land. Accordingly, the special master then determined that BCI and Massey were jointly and severally liable to POV and DBI for the damages because Massey was BCI’s subcontractor and BCI was responsible for the failures of its agent, Massey. Massey was determined to be liable to BCI for complete and full indemnity. The trial court ratified and accepted the special master’s report via its adoption of the findings of the report.

¶ 16. Fundamental to the special master’s and the trial court’s findings of fact is that the special master, and the trial court by ratification, reasoned that POV, as the owner of the property, hired BCI, as its general contractor, to perform the dirt work and BCI then hired Massey, as its subcontractor, to perform the dirt work. DBI and POV argue on appeal that it is a “red herring” as to who owned the property because BCI could still be the “general contractor” even if BCI was actually the owner of the property at the time the work was performed by Massey. While it is true that BCI, as the owner of the subject property, could be its own general contractor, the special master, and subsequently the trial court, erred in its analysis finding BCI and Massey jointly and severally liable to POV and DBI based on BCI being POV’s general contractor and having hired Massey as its subcontractor to perform the dirt work.

¶ 17. Clearly, POV did not exist in 1999 when BCI owned the subject property and hired Massey to perform the dirt work. Massey performed and completed the dirt work in 1999 while the subject property was owned by BCI. According to the articles of incorporation, POV was not incorporated until March 2000; and therefore, POV unquestionably did not exist in 1999. As such, it is impossible for POV to have hired BCI as its general contractor to perform the dirt work through Massey as BCI’s subcontractor when it did not exist as a legal entity. With this fundamental error in the special master’s and the trial court’s reasoning, BCI and Massey cannot be held jointly and severally liable to POV and DBI.

¶ 18. “Mississippi judges have long had the power to appoint masters, referees, and commissioners as assistants to the court.” M.R.C.P. 53 cmt. Mississippi Rule of Civil Procedure 53(g)(2) provides that where a special master is appointed, the trial court shall accept the special master’s findings of fact unless manifestly wrong. The trial court may adopt the special master’s report, modify the report, reject the report in whole or in part, receive further evidence, or recommit the report to the special master with further instructions. See M.R.C.P. 53(g)(2); Trovato v. Trovato, 649 So.2d 815, 820 (Miss.1995). The review of the special master’s report shall be limited to questions of law only when the parties have stipulated that the special master’s findings of fact shall be final. Id. at 820.

¶ 19. “The standard by which this Court reviews factual determinations made by a trial judge sitting without a jury is the substantial evidence standard.” Classic Coach, Inc. v. Johnson, 823 So.2d 517, 520 (Miss.2002); see Church of God Pentecostal v. Freewill Pentecostal Church of God, 716 So.2d 200, 204 (Miss.1998) (citing Hill v. Thompson, 564 So.2d 1, 10 (Miss.1989); UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hospital, Inc., 525 So.2d 746, 753 (Miss.1987)). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Donaldson v. Covington County, 846 So.2d 219, 223 (Miss.2003); see Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000).

¶ 20. BCI argues that the special master erred in finding that it was liable to POV and DBI. Likewise, BCI and Massey argue that the special master erred in finding BCI and Massey jointly and severally liable. We agree. Contrary to the special master’s findings, POV did not exist at the time the dirt work was performed and completed by Massey, and BCI was the owner of the property at the time of the dirt work was performed and completed. David incorporated POV on March 13, 2000. David testified that he had no involvement with the subject property until 2000.

¶ 21. BCI purchased the subject property on December 10, 1996. In June 1999, Massey contracted with BCI to perform the dirt work. Massey performed the dirt work from July to September 1999. POV did not exist until March 13, 2000. On March 17, 2000, BCI transferred the subject property to Webber, individually. Webber then transferred the subject property by warranty deed to the newly created limited corporation, POV. The warranty deed did not contain any warranty as to the condition of the land or the dirt work performed on the subject property. The warranty deed only referenced the mineral rights that had been retained when the property was originally transferred to BCI from Farris.

¶ 22. In June 2000, POV began selling lots to builders, including DBI. DBI and the other builders began building houses in the subdivision. POV had BellSouth install telephone lines in the subdivision by the fall of 2000. The trenches cut by BellSouth were left open for some period of time. By September 2000, DBI had completed one house in the subdivision. The subdivision began to settle by December 2000, including the houses, sidewalks, curbs, gutters, and roads.

¶ 23. The special master assigned ten percent of the damage to the subdivision to BellSouth. The special master found ninety percent of the damage resulted from Massey’s failure to compact the land and determined that Massey and BCI were jointly and severally hable. Clearly, at the time the dirt work was performed, POV did not exist nor did it own the property. Therefore, BCI could not have been POV’s general contractor at the time the dirt work was done. Accordingly, POV did not exist at the time as a legal entity to enter into any contract or agreement. As such, the special master’s, and the trial court’s, reasoning as how Massey and BCI were jointly and severally liable to POV and DBI is manifestly flawed.

¶ 24. The trial court adopted the special master’s findings that “BCI implicitly warranted the work of Massey.” The trial court stated, “Webber Brewer’s testimony established BCI was acting as a general contractor for Pear Orchard [POV] and hired Massey to do the dirt work in a good and worksmanlike manner.”

¶ 25. A review of the record reveals that Webber testified on cross-examination that POV was not incorporated, and as such did not exist, at the time Massey was hired by BCI to perform the dirt work and completed the dirt work in 1999. Webber testified that at the time Massey did the dirt work in 1999 BCI was the owner of the subject property, and POV was not incorporated until 2000. Further, BCI transferred the subject property to Web-ber, individually, on March 17, 2000. Web-ber, individually, not BCI, then transferred the subject property to POV. No written agreements, contracts, or warranties exist between BCI and POV or DBI regarding the subject property. The record reflects the following exchange during Webber’s cross-examination:

Q: As between Pear Orchard Vicksburg and Brewer Construction, Inc., you understood that it was Brewer Construction, Inc.’s responsibility to oversee the dirt work and make sure it was done properly, right?
Mr. Holland: Objection. Your Honor. Pear Orchard Village [sic] [Vicksburg (POV)] was not even in existence at the time of development. Unless he’s going to give a date, I object to him asking questions as to what the responsibilities were. In the developmental stage, Pear Orchard Village [sic] was not even created yet?
The Court: Put a date on that, Mr. Kelly.
Q: When you were talking with David Brewer about the plan for the subdivision, Mr. Brewer, you understood that Pear Orchard Vicksburg was going to be created at some point in the future and take over the development after the dirt work and sewer had been installed, right?
A: Yes.
Q: When you’re talking with Mr. David Brewer about that plan as between Pear Orchard Vicksburg that was going to be created in the future and Brewer Construction, Inc., you certainly understood and accepted responsibility for the dirt work portion of the development, correct?
Mr. Holland: I have to object. He’s asking if he had responsibility to an entity that did not exist at the time these conversations occurred. I think it’s improper. I think it is misleading to the witness about whether or not he intended to have an agreement with an entity that did not exist, Your Honor.
The Court: What do you say to that, Mr. Kelly?
Mr. Kelly: I think that clearly this witness has testified that was the intent of the parties, that they had discussed this plan, had developed this plan. And he understood that this entity was going to be created in the future. So I think he is perfectly capable of responding to the question.
Mr. Holland: Our other objection, just for the record, is that the best evidence rule, if there’s a contract, then that needs to be evidence as opposed to some oral understanding between two entities that did not exist.
The Court: Overruled.
Q: I am going to move forward. The bottom line is, Mr. Brewer, you understood that Brewer Construction, Inc., with respect to the development of Pear Orchard Subdivision[,] was undertaking to perform the dirt work or to have the dirt work performed through another entity?
A: That’s correct.
Q: And did Brewer Construction, Inc., at the time of that transfer, discuss that with David Brewer as a representative of Pear Orchard Vicksburg?
A: I don’t know if I ever just discussed the land part with him. We talked about the subdivision, building houses on it. As far as the land, we didn’t have any reason to talk about the land at that point.
* * *
Q: Now, at the time that Brewer Construction, Inc. — they contracted with Massey to do the dirt work out there on this property. Did I understand you to say, Mr. Kelly, [sic] [Mr. Web-ber] that at that point Pear Orchard Vicksburg was not formed? They were not actually incorporated?
A: That’s right.
* * *
Q: Now, I understand you had an appreciation that Pear Orchard Vicksburg was going to be formed at the time you were talking with Massey. You also knew at that point, did you not, you were going to ultimately be in Pear Orchard Vicksburg, L.L.C., right?
A: We actually hadn’t even talked about Pear Orchard—
Q: I don’t mean a specific name, sir.
A: I was going to be involved in buildings some houses, yes.
Q: Whatever the ultimate name was going to be, you understood that you personally were going to be a partner in that developer entity, whatever it ultimately was going to be?
A: Yes.

¶ 26. Webber testified that he did not recall having any conversation with David, as a representative of POV, after POV was created regarding anything to do with the land. He stated that “as far as the land, we did not have any reason to talk about the land at that point.” Furthermore, David testified that he had no specific conversation with BCI about any soil compaction.

¶ 27. The special master acknowledged that no formal contract existed or was ever signed by POV to hire BCI as its general contractor to perform the dirt work performed by Massey. Furthermore, David testified that he did not become involved with the subject property until 2000. David further testified that BCI performed the dirt work to the land through Massey before POV was incorporated. BCI subsequently transferred the subject property to Webber, individually, who then transferred the subject property to POV.

¶ 28. As previously stated and restated for clarity, POV was incorporated on March 18, 2000. On March 17, 2000, BCI transferred the subject property to Web-ber, individually, who then on the same day transferred the subject property to POV, owned by Webber. POV subsequently transferred one-half of the property by POV to POD, owned by David. POV then transferred lots to DBI, owned by David, in the summer of 2000, and to the other builders, Hartfield, Bonelli, and Sanderson-Hollingsworth.

¶ 29. The trial court specifically based BCI’s liability to POV and DBI upon Massey’s negligence in the performance of the dirt work. The trial court then erroneously determined that BCI acted as POV’s general contractor and as such BCI warranted Massey’s dirt work to POV.

¶ 30. Here, the documents in the record demonstrate that POV was not incorporated until March 13, 2000. Massey was hired in 1999 by BCI, the owner of the subject, to perform dirt work which Massey completed for BCI by September, 1999. Accordingly, the trial court’s findings cannot be reconciled to the record we have before us on appeal. Clearly, Massey and BCI could not be jointly and severally liable to POV and DBI as determined by the trial court. Likewise, BCI cannot be liable to POV and DBI. BCI owned the land from 1996 to March 17, 2000, when it was transferred to Webber, individually, and then transferred the same day to POV from Webber. The chain of title/transfer as to the subject property was broken. Webber made no written warranty as to the dirt work performed by Massey for BCI to POV. Likewise, Webber testified that he did not discuss the dirt work with David as a representative of POV.

¶31. The special master and the trial court erred by treating BCI and Webber, not named as a party to this litigation, as being the same legal entity instead of as two separate and distinct legal entities. Therefore, the special master’s and the trial court’s reasoning are flawed.

¶ 32. A review of the record demonstrates that the attorneys and David were also clearly confused as to the legal distinction between BCI and Webber as separate and distinct legal entities. In fact, David’s testimony at trial contradicts both his deposition testimony as well as earlier testimony at trial. David testified that POV was obligated to pay his father’s company, BCI, $110,000 pursuant to a deed of trust in order to purchase the subject property and $69,000 for the improvement to the land for Massey’s dirt work. However, BCI did not sell the subject property to POV in order to be paid for the property. Webber, individually, sold the land to POV Likewise, any improvement to the land, e.g., dirt work, would have passed to Webber when BCI transferred the subject property to Webber, individually, in the form of increased value to the property. Rather, Webber, not BCI, owned the subject property at the time it was transferred to POV. The deed clearly states that Webber, individually, transferred the land to POV, not BCI.

¶ 33. David tried to clarify his testimony by stating that he was confused and meant to say that Webber was owed money for the subject property, not BCI. When David tried to clarify the financial arrangement regarding the subject property during cross-examination by BCI’s counsel, David was referred back to his deposition wherein he testified that BCI was owed the money. Many pages of transcript later, David testified:

It’s easy to get [confused], when being asked all these questions and the same thing during [the] deposition, the Brewer Construction and the Webber Brewer and trying to separate those entities.

Later, the following transpired when David was cross-examined by BCI’s counsel:

Q: You said it three times in here that even through Brewer Construction wouldn’t get a part of the profit, it would get paid back for this land that it bought from Mr. Farris? That’s what you said here three times, right?
A: That’s what I said there, yes, sir.
A: When I set up the company and we were trying to set those things up to where the money would flow back and go the proper way, we trust [sic] attorneys to do that. My father met with the attorney — we all met with attorneys to set that up. How the flow of that works, we have accountants and attorneys.
Q: Your accountants and attorneys didn’t answer this. To your understanding on the date of this, three times, sir, were that the land [sic]— the money for the land will be paid back to Brewer Construction?
A: There’s a lot of times I misunderstand things that my accountant and attorney has to straighten me out on.

¶ 34. Therefore, we find that the trial court erred in finding BCI and Massey jointly and severally liable to POV and DBI. Likewise, the trial court erred in finding BCI liable to POV and DBI based upon Massey’s negligence in the performance of the dirt work. Accordingly, this assignment of error requires reversal. Furthermore, the trial court’s judgment in favor of DBI and POV against BCI and Massey, jointly and severally, for the special master’s fee of $8,249.60 is reversed based on the reasons stated above regarding the lack of joint and several liability as to BCI and POV. The award of the special master’s fee of $8,249.60 is reversed, and this case remanded to the trial court to assess the special master’s fee between DBI and POV, the parties that requested the trial court appoint the special master to hear this case.

II. Whether the trial court erred in granting BCI indemnification from Massey.

¶ 35. Indemnity is defined as pertaining “to liability for loss shifted from one person held legally responsible to another person.” Black’s Law Dictionary 393 (5th ed.1983). In Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So.2d 549, 551(Miss.1970), this Court held:

Two critical prerequisites are generally necessary for the invocation of non[-]contractual implied indemnity in Mississippi: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured person; and (2) it must appear that the claimant did not actively or affirmatively participate in the wrong. Bush v. City of Laurel, 215 So.2d 256 (Miss.1968); Southwest Mississippi Electric Power Ass’n v. Harragill, 254 Miss. 460, 182 So.2d 220 (1966).

See also 3 Encyclopedia of Miss. Law, Contracts § 21:23 at 282-83 (2001).

¶ 36. In BCI’s cross-claim for common law indemnity, BCI, while denying liability, sought to be indemnified by Massey in the event the fact finder held BCI liable. The trial court found BCI and Massey to be jointly and severally liable to POV and DBI. The trial court then found that judgment should have be granted in favor of BCI against Massey for full and complete indemnity to the extent BCI is required to pay the judgments to DBI and POV.

¶ 37. However, as stated above, the trial court erred in finding BCI and Massey jointly and severally liable to POV and DBI. The trial court based BCI’s liability to POV and DBI upon Massey’s negligence in the performance of the dirt work. However, POV was not incorporated until March 13, 2000; Massey was hired by BCI, the owner of the subject property, in 1999; and Massey completed the dirt work for BCI by September, 1999.

¶ 38. Furthermore, BCI cannot be liable to POV and DBI. BCI owned the land from 1996 to March 17, 2000, when it was transferred to Webber, individually. Web-ber then transferred the property to POV. The chain of title/transfer was broken as to the subject property. Webber made no written warranty as to the dirt work performed by Massey for BCI. Since BCI is not liable to POV and DBI based on the dirt work performed by Massey, BCI is not entitled to indemnification from Massey.

¶ 39. Therefore, we find the trial court erred in granting a judgment in favor of BCI against Massey for full and complete indemnity to the extent BCI was required to pay the judgments to DBI and POV. As such, this assignment of error requires reversal.

CONCLUSION

¶ 40. For the foregoing reasons stated above, the judgment of the Circuit Court of Warren County, Mississippi, is reversed as to BCI’s and Massey’s joint and several liability in the amount of $349,718.90, plus costs of court, in favor of POV. The judgment of the Circuit Court of Warren County, Mississippi, is reversed as to BCI’s and Massey’s joint and several liability in the amount of $179,034.32, plus costs of court, in favor of DBI. Accordingly, judgment is rendered in favor of BCI and Massey as to joint and several liability to POV and DBI. Furthermore, based on the lack of BCI and Massey’s joint and several liability to POV and DBI, the trial court’s judgment ordering the special master’s fee of $8,249.60 to be paid by BCI and Massey, jointly and severally, is reversed and this case remanded to the trial court to assess the special master’s fee between DBI and POV. Based on the lack of BCI’s liability to POV and DBI, the trial court’s judgment granting BCI indemnification from Massey is reversed and judgment rendered in favor of Massey.

¶ 41. REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

SMITH, C.J., WALLER, P.J., DIAZ, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ„ CONCUR. COBB, P.J., NOT PARTICIPATING.

      . Contrary to POV's counsel’s line of questioning treating David and/or Webber as parties, neither David nor Webber were named as parties in this litigation in their individual capacity.

      . Again, contrary to this line of questioning and answering, the documents in the record unquestionably demonstrate that BCI did not transfer the subject land to POV. BCI transferred the land to Webber, individually. Web-ber, individually, then transferred the subject land to the newly created POV. This fact is routinely ignored and/or confused in the record, and this fact is crucial to understanding the error involved.

      . Hartfield, Bonelli, and Sanderson-Hollings-worth are not parties to this appeal.

      . BCI and Webber are separate and distinct legal entities.


source: Caselaw Access Project

author: DICKINSON, Justice, EUGENE PARKER, JR., SPECIAL JUSTICE,

license: Public Domain

text:
    CHILDREN’S MEDICAL GROUP, P.A. v. Robert PHILLIPS, Individually and as next friend and Natural Guardian of Tanner Wade Phillips and Grant Russell Phillips, minors.
    No. 2005-IA-00593-SCT.
    Supreme Court of Mississippi.
    Oct. 26, 2006.

      John L. Low, Mildred M. Morris, Jackson, attorneys for appellant.
    Chuck McRae, William B. Kirksey, Minor F. Buchanan, Jackson, attorneys for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. A husband claims in a lawsuit that the medical clinic employing his wife recklessly allowed her and a coworker to engage in an extramarital affair in the workplace and, therefore, is liable to him for alienation of affections. The husband alternatively claims the employer is vicariously liable for its employee’s actions. The question presented is whether either claim can survive a motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6).

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Robert and Julie Phillips divorced in September 2004. Prior to the divorce, Robert alleges that he discovered Julie was having an affair with Dr. Erwyn E. Freeman, Jr., who was Julie’s coworker at Children’s Medical Group, P.A. (“CMG”). Robert sued Dr. Freeman and CMG, claiming both were liable for alienating Julie’s affections for him. According to Robert’s complaint, CMG “knew of and negligently and recklessly allowed the illicit relationship between the Defendant, Er-wyn E. Freeman, Jr., and its employee, Julie Rawson Phillips, to be carried on while employed with said Defendant at its office and elsewhere.”

¶ 3. CMG filed a Rule 12(b)(6) motion to dismiss claiming Robert’s complaint failed to state a claim upon which relief could be granted. Specifically, CMG argued (1) the tort of alienation of affections requires intentional acts of misconduct, and Robert failed to allege any intentional conduct by CMG; (2) CMG owed no duty to Robert to prevent Dr. Freeman from pursuing a consensual affair with another employee; and (3) CMG was not vicariously liable for its employees’ consensual sexual relationships, as those activities were beyond the employees’ course and scope of employment.

1Í 4. The trial court denied CMG’s motion to dismiss. CMG then sought an interlocutory appeal, which we granted. See M.R.A.P. 5.

DISCUSSION

¶ 5. A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a claim. Stuckey v. Provident Bank, 912 So.2d 859, 865 (Miss.2005). Therefore, we review de novo the denial of a motion to dismiss for failure to state a claim. Webb v. DeSoto County, 843 So.2d 682, 684 (Miss.2003). In order to reverse, “it must be such that no set of facts would entitle the opposing party to relief.” Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006); see also M.R.C.P. 12(b)(6) cmt. (to grant a Rule 12(b)(6) motion to dismiss, “there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim”) (emphasis added).

I. Whether the trial court erred in denying CMG’s motion to dismiss for failure to state a claim based on CMG’s own conduct.

¶ 6. According to Robert’s complaint, CMG committed the common law tort of alienation of affections by “kotow-ing] of and negligently and recklessly allowing] the illicit relationship between the Defendant, Erwyn E. Freeman, Jr., and its employee, Julie Rawson Phillips, to be carried on while employed with said Defendant at its office and elsewhere.” In order to reverse the trial court’s denial of CMG’s Rule 12(b)(6) motion to dismiss, we must be able to say, with certainty, that Robert cannot prove any set of facts to support his claim. See Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 11 (Miss.2002); M.R.C.P. 12(b)(6) cmt.

¶ 7. There is a vast difference between the pleading burden necessary to survive a Rule 12(b)(6) motion to dismiss and the evidentiary requirements necessary to survive a motion for summary judgment under Mississippi Rule of Civil Procedure 56. A motion to dismiss under Rule 12(b)(6), as opposed to other devices in civil law, contemplates a high degree of speculation by the reviewing court. In Stuckey, we explained the differences between Rule 12 and Rule 56:

While the two rules provide for dismissal of actions, their bases are completely different. Accordingly, a Rule 12(b)(6) motion tests legal sufficiency, and in applying this rule ‘a motion to dismiss should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of the claim.’ Missala Marine Services, Inc. v. Odom, 861 So.2d 290, 294 (Miss.2003). Quite differently, Rule 56 tests the notion of well-pled facts and requires a party to present probative evidence demonstrating triable issues of fact.

Stuckey, 912 So.2d at 865-66. Our inquiry on a Rule 12(b)(6) motion to dismiss is not limited to the specific allegations in Robert’s complaint, which we must accept as true. Poindexter v. S. United Fire Ins. Co., 838 So.2d 964, 966 (Miss.2003). We are charged to consider only whether any set of facts could support Robert’s action for alienation of affections against CMG. Cook v. Brown, 909 So.2d 1075, 1078 (Miss.2005).

¶ 8. According to this Court’s opinion in Walter v. Wilson, 228 So.2d 597, 598 (Miss.1969), overruled in part on other grounds by Saunders v. Alford, 607 So.2d 1214, 1219 (Miss.1992), “[ujnder the common law a husband is entitled to the services and companionship and consortium of his wife. When he is wrongfully deprived of these rights, he is entitled to a cause of action against one who has interfered with his domestic relations.” The required elements of an alienation of affections lawsuit include (1) wrongful conduct of the defendant, (2) loss of affection or consortium, and (3) a causal connection between the conduct and the loss. Bland v. Hill, 735 So.2d 414, 417 (Miss.1999).

¶ 9. The “wrongful” conduct necessary to maintain an action for alienation of affections is the direct and intentional interference with the marriage relationship by the defendant. In Stanton v. Cox, 162 Miss. 438, 450, 139 So. 458, 460 (1932), the Court held that:

it must appear ... that there had been a direct interference on the defendant’s part, sufficient to satisfy the jury that the alienation was caused by the defendant, and the burden of proof is on the plaintiff to show such interference.... But to maintain this action it must be established that the husband was induced to abandon the wife by some active interference on the part of the defendant. ■

(internal citations omitted; emphasis added). See also Kirk v. Koch, 607 So.2d 1220, 1223 (Miss.1992) (defendant “directly and intentionally interfered with” plaintiffs marriage, inducing the alienation of affections); Martin v. Ill. Cent. R.R., 246 Miss. 102, 110-11, 149 So.2d 344, 348 (1963) (same).

¶ 10. It is true that Robert fails to specify CMG’s conduct that directly and intentionally interfered with his marriage. However, under our rules, Robert is not required to plead the specific wrongful conduct. At the pleading stage, he is required only to place CMG on reasonable notice of the claims against it and to demonstrate that he has alleged a recognized cause of action upon which, under some set of facts, he might prevail. Consequently, in order to succeed in having this case dismissed pursuant to Rule 12(b)(6), CMG must demonstrate that Robert cannot prevail under any set of facts. This is the analysis we must apply. See Ralph Walker, Inc., 926 So.2d at 893; Cook, 909 So.2d at 1078; Poindexter, 838 So.2d at 966; Little, 835 So.2d at 11.

¶ 11. We are unable to say, as a matter of law, that there are no possible facts which could result in CMG’s liability for alienation of affections. Accordingly, we affirm the trial court’s denial of CMG’s motion to dismiss for failure to state a claim insofar as Robert alleges CMG committed the tort of alienation of affections based on its own actions.

II. Whether the trial court erred in denying CMG’s motion to dismiss for failure to state a claim based on the theory of vicarious liability for CMG’s employee’s actions.

¶ 12. In its motion to dismiss, CMG argues that Robert cannot be granted relief against it based on the theory of vicarious liability. The trial court found that a jury should determine whether Dr. Freeman’s actions were within the course and scope of his employment, such that Robert could maintain a claim for vicarious liability against CMG. Although these determinations can be highly fact sensitive, some actions are so clearly beyond an employee’s course and scope of employment that they cannot form the basis for a claim of vicarious liability, as a matter of law.

¶ 13. “Under the doctrine of respondeat superior, the master is liable for the acts of his servant which are done in the course of his employment and in furtherance of the master’s business.” Sandifer Oil Co. v. Dew, 220 Miss. 609, 630, 71 So.2d 752, 758 (1954). Under Section 228 of the Restatement (Second) of Agency:

(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency § 228 (1958); see also Commercial Bank v. Hearn, 923 So.2d 202, 208 (Miss.2006). If an employee “deviates or departs from his work to accomplish some purpose of his own not connected with his employment— goes on a ‘frolic of his own’ — the relation of master and servant is thereby temporarily suspended,” and the employer is not vicariously liable. Seedkem S., Inc. v. Lee, 391 So.2d 990, 995 (Miss.1980) (citations omitted). See also Mabus v. St. James Episcopal Church, 884 So.2d 747, 756 (Miss.2004) (as a matter of law, church not vicariously liable for priest’s surreptitious taping of counseling session with parishioner); Gulledge v. Shaw, 880 So.2d 288, 295 (Miss.2004) (as a matter of law, bank not vicariously liable for employee’s knowing notarization of forged signature); Adams v. Cinemark USA, Inc., 831 So.2d 1156, 1159 (Miss.2002) (as a matter of law, theater not vicariously liable for assault on movie patron).

¶ 14. In Cockrell v. Pearl River Valley Water Supply District, 865 So.2d 357, 362 (Miss.2004), this Court held that a law enforcement officer was outside the scope of his employment when he made romantic advances toward an arrestee. In L.T. v. City of Jackson, 145 F.Supp.2d 750, 757 (S.D.Miss.2000), the district court found that a security guard who stopped the female plaintiff in his capacity as a city police officer and had sex with the woman in exchange for letting her go with a warning was acting outside the course and scope of his employment.

¶ 15. Other jurisdictions have specifically found that an employee’s affair with a coworker is beyond the course and scope of employment. In Jackson v. Righter, 891 P.2d 1387, 1390 (Utah 1995), the Utah Supreme Court considered a situation in which a jilted husband sued the employer of his wife’s paramour. The court found that the employee’s romantic advances were “so clearly outside the scope of his employment that reasonable minds cannot differ.” Id. at 1391. See also Mercier v. Daniels, 139 N.C.App. 588, 533 S.E.2d 877, 881 (2000) (no vicarious liability where workplace affair in no way furthered the business of the employer).

¶ 16. The question we must consider is whether Robert can prove any set of facts showing Dr. Freeman’s alleged consensual sexual relationship with Robert’s wife was within the course and scope of his employment with CMG. We find no such showing can be made. The comment to Section 228 of the Restatement (Second) of Agency explains that “not all physical acts of the kind authorized performed within the time and at the place of service are within the scope of employment, since only those which the servant does in some part for the purpose of giving service to the master are included.” Restatement (Second) of Agency § 228 cmt. a (emphasis added). It defies reason to argue that engaging in an affair at work or during working hours in any way furthered the business interests of CMG or enhanced the medical care of CMG’s pediatric patients.

¶ 17. The trial court erred as a matter of law in finding that a claim was stated as to whether Dr. Freeman, in having an alleged consensual affair with a coworker, was acting within the course and scope of his employment with CMG. Robert can prove no set of facts that would entitle him to recover against CMG under a theory of vicarious liability. Therefore, we find the trial court should have granted CMG’s Rule 12(b)(6) motion to dismiss this theory.

CONCLUSION

¶ 18. We affirm the trial court’s denial of CMG’s motion to dismiss with respect to Robert’s claim that CMG committed the tort of alienation of affections. Robert is entitled to the opportunity to conduct discovery and present facts that demonstrate when and how CMG committed the tort. Whether Robert demonstrates that triable issues of material fact exist for a jury’s consideration is a question for another day.

¶ 19. We reverse the trial court’s denial of CMG’s motion to dismiss on the theory of vicarious liability. This case is remanded to the trial court for further proceedings consistent with this opinion.

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

DIAZ, EASLEY AND RANDOLPH, JJ., AND BARRY, S.J., CONCUR. PARKER S.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND GRAVES, JJ., NOT PARTICIPATING.

EUGENE PARKER, JR., SPECIAL JUSTICE,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 21. I concur with that part of the majority’s opinion designated Issue II and would reverse the trial court upon the issue of vicarious liability. Aside from my belief that the antiquated cause of action of alienation of affections should be abolished out right, I respectfully dissent as to Issue I, “whether the trial court erred in denying CMG’s motion to dismiss for failure to state a claim based on CMG’s own conduct,” and would reverse the trial court on this issue. The reasons therefor are varied and multiple.

¶ 22. Historically, this Court has distinguished the requisite elements of the cause of action between first-party participants (the paramours) versus third-party participants, such as a parent of one of the parties or an employer. In the former case, direct interference by the defendant is required. Stanton v. Cox, 162 Miss. 438, 139 So. 458 (1932). But in the latter case, the Court has required a showing of malice. See Tucker v. Tucker, 74 Miss. 93, 19 So. 955 (1896). All Mississippi cases have required the familiar elements of this tort to coexist, i.e., (1) wrongful conduct of the defendant, (2) loss of affection or consortium, and (3) a causal connection between the conduct and the loss. Bland v. Hill, 735 So.2d 414, 417 (Miss.1999).

¶ 23. In the present case, the complaint alleges that CMG “knew of and negligently and recklessly allowed the illicit relationship .... ” (Emphasis added). In my view, the plaintiff has pleaded himself out of court, as respects CMG, as he asserts that CMG “allowed the illicit relationship.... ” To “allow” in its common usage, and as defined according to Mr. Webster, means “to let do or happen: permit.” Webster’s II New College Dictionary 30 (Rev. ed.2001). To “allow” is a passive omission (not an action at all), whereas all case law requires an active intentional interference of the marital relationship. See Kirk v. Koch, 607 So.2d 1220 (Miss.1992); Gorman v. McMahon, 792 So.2d 307 (Miss.Ct.App. 2001). Where in the law is there a stated duty of an employer not to “allow” fornication or even adultery between co-employees? To what measure(s) or expense would the employer be exposed not to “allow” this to occur on or off its premises?

¶ 24. In my humble view, the majority opinion unnecessarily expands the range of potential defendants to this medieval cause of action, whose only excuse for existence is the antiquity of its ancestry. I respectfully dissent.

      . Robert’s claims against Dr. Freeman are not at issue in this appeal.

      . Robert also sued both defendants as next friend of his two minor children.

      . In Bland v. Hill, 735 So.2d 414, 418 (Miss.1999), we declined to abolish the common law tort of alienation of affections. However, then Justice Chuck McRae, now one of Robert's counsel, passionately argued for the elimination of this cause of action in his opinion in Bland. Justice McRae opined, "[t]he alienation suit is an anachronism which we would do well to rid ourselves of. A wealth of experience has demonstrated that these lawsuits do much more harm to society than good. Our courts should not be in the business of policing broken hearts.” Id. at 427 (McRae, J., concurring in part and dissenting in part) (footnote omitted).


author: GRIFFIS, J.,

text:
    SOUTHLAND ENTERPRISES, INC., Appellant/Cross-Appellee v. NEWTON COUNTY, Mississippi, Appellee/Cross-Appellant.
    No. 2004-CA-00731-COA.
    Court of Appeals of Mississippi.
    Feb. 7, 2006.
    Rehearing Denied Aug. 15, 2006.

      G. Martin Warren, Jr., attorney for appellant/cross-appellee.
    Jason A. Mangum, Newton, attorney for appellee/cross-appellant.
   GRIFFIS, J.,

for the Court.

¶ 1. Newton County accepted a bid from Southland Enterprises, Inc., to reseal a portion of Chunky-Duffee Road. After the project was over, Newton County refused to pay Southland and claimed that the result was unsatisfactory. Southland brought this action, and a Newton County Circuit Court jury awarded Southland the total amount owed for its work, $94,800.98. Judge Vernon Cotten denied Southland’s motion to reform the judgment to include prejudgment interest and attorney fees. He denied Newton County’s motion to conform the judgment to the $84,800.98 amount pled in the complaint. He also denied Newton County’s motion for a JNOV or a new trial. Both parties appeal these rulings.

¶2. We affirm in part and reverse and render in part.

FACTS

¶ 3. Dale Alexander was a former member of the Newton County Board of Supervisors. He was going out of office at the end of 1999. On November 1,1999, Alexander asked the Board to reseal a seven mile stretch of Chunky-Duffee Road, where he and his family resided. The Board approved the project, without consulting the county State Aid engineer, and advertised for bids on November 29. Newton County awarded the project to Southland, the lowest bidder.

¶ 4. The time of year for such a project was unusual. Chunky-Duffee Road is a State Aid road, and State Aid policy is not to allow such a project between October 1 and March 15. Only rarely are such projects allowed during this time period. Even then, the temperature must be above 60 degrees. If it is colder, the asphalt reseal does not adhere properly.

¶ 5. Both parties were aware of the role temperature would play into the success of the project. Nevertheless, Newton County insisted that the project be completed on or before December 30,1999, which was Alexander’s last day in office. Newton County Engineer Jimmy Kemp instructed Southland to work on the project as long as the temperature was 50 degrees and rising. County employee Bussy Clark was on-site every day monitoring the temperature. Kemp and Clark testified that Southland followed this instruction.

¶ 6. Southland completed the job December 16. Upon completion, Kemp accepted and approved the job and submitted Southland’s bill to the Board of Supervisors. Kemp calculated the amount due based upon the unit price Southland had bid, multiplied by the amount of materials used. Because of a mathematical error on Kemp’s part, the bill submitted to the Board was $84,800.98. However, the actual amount due was $94,800.98.

¶ 7. A couple of weeks later, the temperature dropped into the twenties and low teens, and rocks began to come loose from the asphalt. As a result, Newton County refused to pay Southland. Kemp then suggested that Newton County pay South-land $21,697.24 for the leveling work that it did and then dispute the rest of the bill. Newton County still refused to pay.

¶ 8. Southland sued Newton County for breach of contract and open account. The case went to a jury that awarded South-land $21,697.24. The Mississippi Supreme Court upheld the liability finding but ordered a new trial on damages. Southland Enterprises, Inc. v. Newton County, 838 So.2d 286 (Miss.2003). On November 24, 2003, the second trial proceeded with the new jury instruction that was ordered by the supreme court. The jury entered a verdict that awarded Southland $94,800.98. Since Newton County had already paid the first $21,697.24 verdict, Judge Cotten ordered Newton County to pay the balance of $73,103.74.

ANALYSIS

I. Is Newton County entitled to a JNOV or a neio trial?

¶ 9. In its cross-appeal, Newton County argues that Judge Cotten should have granted a new trial or a judgment notwithstanding the verdict. The county asserts there was insufficient evidence to find it liable under the contract.

¶ 10. The first jury found Newton County liable. In the appeal to the Mississippi Supreme Court, the county did not challenge the jury’s liability finding. The court upheld liability and remanded the case for a new trial on damages only. Southland Enters., 838 So.2d at 292(¶ 20). This argument is both untimely and without merit.

II. Was the complaint properly amended to allow Southland to recover $91,800.98?

¶ 11. Newton County wants the judgment of $94,800.98 conformed to the amount originally pled in the complaint, $84,800.98. Even though evidence was admitted that the actual amount owed was $94,800.98, the county argues that it was not on notice to object to the variance. The trial court found that the county had plenty of notice that the amount being actually sought was $94,800.98, and therefore, the variance was tried by consent of both parties.

¶ 12. A trial court’s decision to allow an amendment to a pleading will be reviewed for an abuse of discretion. Church v. Massey, 697 So.2d 407, 412-13 (Miss.1997). When evidence outside the pleadings is offered at trial, and the other side consents, the complaint is amended by operation of law. M.R.C.P. 15(b). If the plaintiff puts on evidence that her damages are greater than pled, and defendant does not object, Rule 15(b) amends the complaint accordingly. Lahmann v. Hallmon, 722 So.2d 614, 619(¶ 17) (Miss.1998).

¶ 13. Whether an issue was tried by consent depends on whether it was reasonable for the opposing side to recognize that the evidence not presented in the complaint was being tried. Cox v. S.B. Thomas Trust, 755 So.2d 52, 56-57(¶15) (Miss.Ct.App.2000). The county argues that the new figure was only mentioned three times at trial, and this was not enough to put it on notice to object. The history of the case and the record tell a different story.

¶ 14. To begin with, the amount sought was a liquidated amount, which the county was in just as good a position to calculate as was Southland. There is no prejudice in such a case. Lahmann, 722 So.2d at 619(¶ 17). In fact, the county’s miscalculation contributed to the confusion of the amount due. Furthermore, this mistake was brought to everyone’s attention in the first appeal. Southland Enters., 838 So.2d at 288(¶ 5).

¶ 15. The $94,800.98 figure was mentioned throughout the second trial. In Southland’s opening statement, its attorney asked the jury for $94,800.98 in damages. Ronnie Blacklidge explained the miscalculation once on direct and again on redirect. In fact, on redirect, Mr. Black-lidge went through a discussion that explained the calculations to the jury. Kemp testified on behalf of the county and mentioned the miscalculation during his direct examination. In preparing the jury instructions, Southland’s attorney brought out the fact that the jury instructions should list $94,800.98 as the total contract damages. During its closing argument, Southland’s attorney asked the jury five times for $94,800.98 in damages. The first time, he again explained the miscalculation and asked the jury to remember that the correct amount of damages was $94,800.98.

¶ 16. Not only was it reasonable to conclude that the $94,800.98 figure was being tried, it was the only number that was offered. The only times the $84,800.98 figure was ever mentioned at trial was accompanied by an explanation that it was not the correct amount of damages.

¶ 17. The $94,800.98 figure was tried by consent of both parties. This acted to amend the complaint accordingly, by operation of Rule 15(b). The trial court was correct in upholding the judgment. We affirm.

III. Is Southland entitled to prejudgment interest and attorney fees?

¶ 18. In the first appeal, the supreme court held Southland was not entitled to prejudgment interest and attorney fees, because the jury found liability based on quantum meruit. Id. at 291(¶ 19). When Southland asked for this relief in the second trial, Judge Cotten used the supreme court opinion as the basis for denying the relief. Southland argues that the damage award is a breach of contract award and not a quantum meruit award. The county argues that since the amount owed was in dispute, neither interest nor attorney fees are owed.

¶ 19. Statutory interpretation is a matter of law and is therefore reviewed de novo. Grand Casino Tunica v. Shindler, 772 So.2d 1036, 1038(¶ 8) (Miss.2000).

¶ 20. Whether to award attorney fees rests entirely within the discretion of the trial court. Ward v. Ward, 825 So.2d 713, 720(¶ 28) (Miss.Ct.App.2002). A trial court’s decision on attorney fees is subject to an abuse of discretion standard. Id. (quoting USF & G Co. v. Conservatorship of Melson, 809 So.2d 647(¶ 69) (Miss.2002)). Unless the trial court is manifestly wrong, its decision regarding attorney fees will not be disturbed on appeal. Id. Denial of prejudgment interest is reviewed for abuse of discretion. Moeller v. Am. Guarantee & Liab. Ins. Co., 812 So.2d 953, 958(¶ 11) (Miss.2002).

A. Prejudgment interest

¶ 21. After the first trial, the trial court and the supreme court found the jury’s verdict was based on quantum meruit. Statutory pre-judgment interest is not available for a quantum meruit award. Stanton & Assocs. v. Bryant Constr. Co., 464 So.2d 499, 504 (Miss.1985). Therefore, the supreme court ordered that no prejudgment interest be allowed in this case. Southland Enters., 838 So.2d at 291(¶ 19).

¶ 22. While the trial court referred to this ruling as res judicata, it may fall under “the law of the case” doctrine. The law of the case is similar to res judica-ta but is restricted to questions of law only. Cont’l Turpentine & Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 479-80, 142 So.2d 200, 206-07 (1962). When an appellate court issues a ruling and sends the case back on remand, the ruling is the law of the case. Moeller, 812 So.2d at 960(¶ 22). It is binding on the trial court unless it falls under an exception. Id. Exceptions include material changes in evidence, pleadings or findings, or the need for the court to depart from its earlier decision to avoid unjust results. Id.

¶23. In the first appeal, the supreme court ruled that “[bjecause Southland was awarded an amount in quantum merit [sic], we find that the County is not liable for statutory interest or attorney’s fees.” Southland Enters., 838 So.2d at 291(¶ 19). The case, however was remanded for a new trial on damages, with an additional jury instruction. Id. at 292(¶ 20). The new award was for the full amount of the contract. It follows that the law of the case does not apply.

¶24. To be entitled to prejudgment interest, the claim must be liquidated when originally made, and the pleadings must request it. Moeller, 812 So.2d at 958(1111). Here, the claim was liquidated, and Southland pled for prejudgment interest in its complaint.

¶ 25. First, Southland points to Mississippi Code Annotated Section 31-7-305(3) for relief. This statute applies to all public bodies of the state and reads in pertinent part:

If ... payment of an invoice is not mailed or otherwise delivered within forty-five (45) days after receipt of the invoice and receipt, inspection and approval of the goods and services, the public body shall be liable to the vendor, in addition to the amount of the invoice, for interest at a rate of one and one-half percent (1-1/2 %) per month or portion thereof on the unpaid balance from the expiration of such forty-five-day period until such time as [payment] is mailed or otherwise delivered to the vendor. The provisions of this paragraph shall apply only to the undisputed amounts for which payment has been authorized. In the case of an error on the part of the vendor, the forty-five-day period shall begin to run upon receipt of a corrected invoice by the public body and upon compliance with the other provisions of this section....

Miss.Code. Ann. § 31-7-305(3) (Rev. 2005). The statute does not apply to amounts which are disputed. The trial court held that there was a good faith dispute as to what amount Newton County owed Southland, if any. Bad faith is defined as a refusal to fulfill a duty, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. Bailey v. Bailey, 724 So.2d 335, 338(¶ 9) (Miss.1998) (quoting Black’s Law Dictionary 139 (6th ed. 1990)). Bad faith is not simply bad judgment or negligence. Id. It implies conscious wrongdoing because of dishonest purpose or moral obliquity. Id. It is different from negligence, because it contemplates a state of mind affirmatively operating with furtive design or ill will. Id. For the county to be guilty of a bad faith dispute, it would have to concede that it owed the amount due, yet still refused to pay. Sports Page, Inc. v. Punzo, 900 So.2d 1193, 1207(¶ 61) (Miss.Ct.App.2004). The county did not concede that it owed Southland any money. In fact, the county disputed whether it owed Southland anything, because it accused Southland of using defective materials in the project. There was no evidence that the county’s refusal to pay arose from a sinister motive. The record reveals that the county’s refusal to pay arose out of an honest mistake as to its rights and duties under the contract. Therefore, Section 31-7-305(3) is not applicable, because there was a good faith dispute as to whether the amount was payable.

¶ 26. Secondly, Southland points the Court to Mississippi Code Annotated Section 31-5-25, which provides in relevant part:

(1) All sums due contractors under all public construction contracts shall be paid as follows:
(b) Final payments: The final payment of all monies owed contractors shall be due and payable:
(i) At the completion of the project or after the work has been substantially completed in accordance with the terms and provisions of the contract
If the contractor is not paid in full within sixty (60) calendar days from the first occurrence of one (1) of the above-mentioned events, then said final payment shall bear interest from the date of said first occurrence at the rate of one percent (1%) per month until finally paid. In no event shall said final payment due the contractor be made until the consent of the contractor’s surety has been obtained in writing and delivered to the proper contracting authority.

“The fact that there may be a potential claim against the contractor does not affect the timing for final payment to the contractor following the completion of the project.” Op. Att’y Gen. No. 93-1010 (1994). Unlike Section 31-7-305, Section 31-5-25 does not have an exception for disputed amounts.

¶ 27. The county contends that this argument is waived because Southland did not plead for relief under this particular statute. A remedy by statute will not fail if the pleading states sufficient allegations which notify the court and the opposing party that the allegations fall within the statute, even though the statute is not named in the pleadings. Marx v. Truck Renting & Leasing Ass’n, 520 So.2d 1333, 1340 (Miss.1987). The complaint states that the county is a government body, that Southland was a construction contractor hired to do work on a public project, that the project was complete on or before December 30, 1999, and that it was seeking prejudgment interest. We find these facts were sufficient to plead a case under Section 31-5-25.

¶ 28. The evidence supported these allegations. The evidence showed that the project was completed December 16, 1999, and that Newton County did not pay within sixty days of this date. Nothing in the payment clause of the contract changes the basis for payment set out in Section 31-5-25. Therefore, we hold it was an abuse of discretion for the lower court not to award Southland prejudgment interest under Section 31-5-25 on the unpaid balance of Southland’s contract. This interest began to accrue monthly from December 16,1999.

B. Attorney fees

¶ 29. Southland asks for attorney fees pursuant to Mississippi Code Annotated Section 31-7-309 (Rev. 2005). This statute grants an award of attorney fees to a vendor who prevails in a “formal administrative or judicial action to collect interest due under Sections 31-7-301 through 317.... ” Because Southland does not qualify for prejudgment interest under Section 31-7-305, it is not entitled to attorney fees under Section 31-7-309. Section 31-5-25 does not provide for a statutory award of attorney fees. Accordingly, we affirm the court’s denial of attorney fees.

CONCLUSION

¶ 30. We reverse and render the lower court’s denial of prejudgment interest. As to all other issues, we affirm.

¶ 31. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT IS AFFIRMED IN PART ON AND REVERSED AND REMANDED IN PART ON DIRECT APPEAL AND AFFIRMED ON CROSS-APPEAL. STATUTORY INTEREST IS AWARDED CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT AND THE APPEL-LEE.

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


author: CHANDLER, J„

text:
    Lillie BRAKEFIELD, Appellant v. The PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellee.
    No. 2003-CC-01680-COA.
    Court of Appeals of Mississippi.
    March 14, 2006.
    Rehearing Denied July 25, 2006.

      William Owen Mayfield, Jackson, attorney for appellant.
    Mary Margaret Bowers, attorney for ap-pellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J„

for the Court.

¶ 1. Lillie Brakefield was a nurse’s aide at the University of Mississippi Medical Center (UMC) for over twenty years. On October 17, 1996, Brakefield filed a workers’ compensation report of injury. In the report, Brakefield claimed that she sustained an injury when she assisted another hospital worker in turning a heavy bedridden patient. After the injury, Brakefield continued to work for approximately one month. Brakefield did not work after November 19, 1996, but she was not officially terminated from employment until February of 1998. On February 18, 1998, Brakefield filed her application with the Public Employees’ Retirement System of Mississippi (PERS). Brakefield was notified that her PERS application had been denied so she requested a hearing with the PERS Disability Appeals Committee. The committee granted Brakefield a hearing. After weighing the evidence, the committee recommended that the PERS Board of Trustees deny Brakefield’s application. The PERS Board of Trustees adopted the committee’s findings.

¶ 2. On September 21, 1999, a notice of appeal was filed in the Circuit Court of Hinds County to seek judicial review of the PERS Board of Trustees’s decision. The circuit court affirmed PERS’ ruling and Brakefield now appeals, raising the following issues:

I. WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE DECISION OF THE PERS BOARD OF TRUSTEES
II. WHETHER THE DECISION BY THE BOARD OF TRUSTEES VIOLATED THE APPELLANT’S STATUTORY RIGHT

FACTS

¶ 3. Lillie Brakefield was a nurse’s assistant at University Medical Center for over twenty years. On October 17, 1996, Brakefield was assisting in turning a bedridden patient, when she claims that she injured her arm. That same day, Brake-field filed a workers’ compensation report of injury, but she continued to work until November 19, 1996. Subsequently, Brake-field went to Dr. William Geissler who treated Brakefield for her injury and released her to return to work on November 25, 1996, with some restrictions. Despite Dr. Geissler’s release, Brakefield did not return to work. Because Brakefield had accumulated sufficient medical and personal leave, she was paid without working until March 12, 1997. Brakefield was on leave without pay from March 13, 1997 until February 28, 1998, when she was officially terminated.

¶4. On March 11, 1997, Brakefield underwent surgery for trigger finger on her left hand. Brakefield had progressive pain in her back and neck and she was diagnosed with a herniated nucleus pulposus. On April 30, 1997 and on August 5, 1998, Brakefield had surgery on her neck. In a letter dated September 28, 1998, Brake-field’s physician, Dr. Robert McGuire, stated that it was unlikely that Brakefield would be able to function as a nurse’s aide in the future. Dr. McGuire stated that her disability was due to chronic neck pain. Brakefield claims that all of these surgeries are related to the injury she sustained on October 17,1996.

¶ 5. On February 18, 1998, Brakefield filed an application for disability benefits with PERS pursuant to Mississippi Code Annotated Section 25-11-113 (Rev.2003). On August 24, 1998, Brakefield was notified that her PERS application had been denied so she requested a hearing with the PERS Disability Appeals Committee pursuant to Mississippi Code Annotated Section 25-11-120(1) (Rev.2003). At the hearing on January 15, 1999, the question before the committee was whether Brake-field met the statutory requirements to qualify for disability benefits. The committee heard testimony, reviewed the evidence and requested that Brakefield undergo a Functional Capacity Evaluation (FCE) before making a recommendation to the PERS Board of Trustees.

¶ 6. On February 15, 1999, Brakefield underwent a FCE. The examiner who conducted the FCE stated that it was difficult to determine Brakefield’s abilities due to her self-limited behavior. The examiner found that it was unlikely that maximum effort was given by Brakefield on the FCE as indicated by the fact that she failed four out of the five tests. Nevertheless, the examiner noted that Brakefield was able to lift twenty pounds from knee to waist, fifteen pounds from waist to overhead, twenty pounds in front carry, and twenty pounds in a one-handed carry on either side.

¶ 7. After the FCE, the Disability Appeals Committee recommended that Brakefield’s request for the payment of benefits be denied. On August 24, 1999, the PERS Board of Trustees adopted the committee’s findings. The circuit court of Hinds County affirmed the PERS final order.

STANDARD OF REVIEW

¶ 8. Under proper circumstances, employees working for the State of Mississippi are entitled to disability retirement benefits under PERS. Public Employees’ Retirement Sys. v. Dishmon, 797 So.2d 888, 890(4) (Miss.2001). Mississippi Code Annotated Section 25-11-113 lists standards by which a person can be determined disabled. A person is disabled if he is unable “to perform the usual duties of employment.” Id. Also, PERS must find that the employee seeking benefits is unable “to perform the duties of any employment covered by the [PERS] that is actually offered and is within the same general territorial work area, without material reduction in compensation.” Id.

¶ 9. Once PERS has made a decision regarding the application of disability benefits, the decision shall not be disturbed unless unsupported by substantial evidence; is arbitrary or capricious; is beyond the agency’s scope or powers; or the decision violates the constitutional or statutory rights of the aggrieved party. Fulce v. Public Employees’ Retirement Sys., 759 So.2d 401, 404(6) (Miss.2000). There is a rebuttable presumption which favors the agency’s decision and the challenging party has the burden of proving the contrary. Id. “Neither this Court nor the circuit court is entitled to substitute its own judgment for that of PERS, nor may we re-weigh the facts of the case.” Purnell v. Public Employee’s Retirement Sys., 894 So.2d 597, 601(20) (Miss.Ct.App.2004) (citing Dishmon, 797 So.2d at 891(9)).

LAW AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE DECISION OF THE PERS BOARD OF TRUSTEES

¶ 10. Brakefield contends that the circuit court erred in affirming the final order of the PERS Board of Trustees because the order was not supported by substantial evidence. Substantial evidence is “evidence which affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” Johnston v. Public Employees’ Retirement Sys., 827 So.2d 1, 3(7) (Miss.Ct.App.2002). Substantial evidence requires that there be “more than a mere suspicion.” Public Employees’ Retirement Sys. v. Henderson, 867 So.2d 262, 264(6) (Miss.Ct.App.2004). After examining the record, we determine that substantial evidence existed in favor of PERS’ruling.

¶ 11. Brakefield claims that the results of the FCE prove that she is unable to return to work. However, the results of the FCE were inconclusive. The examiner stated that Brakefield’s true abilities were difficult to determine because of her self-limited behavior. The examiner noted that the results of the examination were what the patient was willing to do and did not reflect her true physical capabilities. Additionally, the only medical records Brakefield presented to PERS were the records from the surgeries on her back and finger. Brakefield also stated that she had been to a physical therapist two times. PERS found this medical evidence insufficient to prove Brakefield’s alleged disabling injuries. The inconclusive results of the FCE and the lack of medical evidence fail to establish that PERS’ decision was unsupported by substantial evidence.

¶ 12. Brakefield claims that Dr. McGuire, her surgeon, and A1 Davis, a retirement counselor at UMC, are both on record with opinions that she cannot return to her job and, therefore, the decision by PERS is not supported by substantial evidence. Although Dr. McGuire is Brakefield’s surgeon, PERS has the discretion to determine which physicians’ assessments to consider and how much weight should be given to each assessment. Byrd v. Public Employee’s Retirement Sys., 774 So.2d 434, 438(15) (Miss.2000). Additionally, Dr. McGuire only stated that Brakefield could not return to work for at least twelve months after her surgery.

¶ 13. Davis, the UMC retirement counselor, is a lay person. The Mississippi Supreme Court has held “that the opinion of a lay person should not be taken as conclusive evidence of disability.” Dishmon, 797 So.2d at 894(6). There is a rebuttable presumption which favors PERS’ decision. Brakefield bears the burden of proving the ruling was not supported by substantial evidence. Dr. McGuire and A1 Davis’s opinions fail to prove that PERS’ decision was not supported by substantial evidence.

II. WHETHER THE DECISION BY THE BOARD OF TRUSTEES VIOLATED THE APPELLANT’S STATUTORY RIGHT

¶ 14. Brakefield claims that PERS’ decision to deny her application for disability benefits is a violation of Mississippi Code Annotated Section 25-11-113(l)(a) which contains the definition of disability. Brakefield contends, because she meets the definition, PERS has failed to comply with the statute in granting her disability benefits. However, the only evidence to prove Brakefield meets the statutory requirements is the testimony of Dr. McGuire and Davis. Again, the opinions of Dr. McGuire and Davis have been presented to the committee and the committee made the determination what evidence to consider and how much weight the evidence should be given. We find that Brakefield does not prove that the statutory criteria are met based on this evidence. Therefore, Brakefield was not denied any statutory right under Mississippi Code Annotated Section 25-11-113.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, J„

text:
    Reginald Joe MOSS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00689-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.
    Rehearing Denied Oct. 24, 2006.

      Reginald Joe Moss, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J„

for the Court.

¶ 1. Reginald Joe Moss pleaded guilty to murder, kidnapping, grand larceny, and arson in the Circuit Court of Alcorn County. The court sentenced him to life for the murder conviction and to ten years for the kidnapping conviction, to run consecutively to the life sentence. For the grand larceny conviction, Moss was sentenced to five years, to run consecutively to the sentence imposed for murder but concurrently with the sentence imposed for kidnapping. Finally, on the arson conviction, the court sentenced him to three years to run consecutively to the sentences imposed for murder and grand larceny but concurrently with the sentence imposed for kidnap-ing. The court ordered that all sentences were to be served in the custody of the Mississippi Department of Corrections. After his incarceration, Moss filed a motion for post-conviction relief which the Alcorn County Circuit Court dismissed without a hearing. Aggrieved, Moss appeals and alleges the following errors: (1) his guilty plea was not knowingly and intelligently made because “he was under the influence of prescription medication that induced somnolence and lethargicism [sic] at the time of his plea hearing,” (2) the State erred in establishing venue in Alcorn County, and (3) he received ineffective assistance of counsel.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In early September of 2000, Angel Moss went to a residence in Corinth, Mississippi to visit her two children who were in the custody of her ex-husband, Reginald Moss. Renita McCormick, Moss’s sister, allowed Angel in the house so that she could visit her children. When Moss arrived at the house, he became irate because Angel was in the house and directed her to leave. At some point, Moss and Angel went to the front porch of the house to talk. Within ten to fifteen minutes, McCormick heard noises which caused her to open the front door. When she opened the door, she saw Moss standing over Angel, who had been severely beaten. McCormick saw Moss pick Angel up by her hair, draw out a pocketknife, and slash Angel’s throat.

¶ 4. Moss then put Angel in the back of his Ford Bronco truck. Moss tried to get McCormick and Regan Moss, his brother, to assist him, but neither would. Cranston Switcher, who was dating McCormick and was at the house that night, agreed to follow Moss in the Jeep Grand Cherokee that Angel had been driving.

¶ 5. Moss, with Angel in the back cargo area, drove his Ford Bronco to County Road 157 in Alcorn County, where he pulled off the highway, got out of his truck, opened the back hatch, and beat Angel with an unknown object. Moss, followed by Switcher, then drove Angel to a field somewhere in Tishomingo County. Angel’s body was transferred from the back of the Ford Bronco onto the floor of the back seat of her Jeep. The fuel line was disconnected and the Jeep was set on fire. The autopsy report indicated that Angel’s immediate cause of death was smoke inhalation from the fire.

¶ 6. Shortly thereafter, Moss told Belinda Christine Moss, his sister-in-law, about how he had beaten Angel, how he had cut her throat, and how he had loaded her body into his Ford Bronco truck. Moss went on to tell Belinda that he found a deserted field, that he transferred Angel’s body to the floor of the back seat of her Jeep, and that he set the Jeep on fire. Moss also told Belinda that he had disposed of the clothes that he was wearing on that night in a dumpster and that he had gotten rid of the knife that he used to cut Angel’s throat.

¶ 7. After being arrested and read his Miranda warnings, Moss gave a statement admitting his guilt in killing Angel.

STANDARD OF REVIEW

¶ 8. Our standard of review of a trial court’s denial of post-conviction relief is well-established. “In reviewing a trial court’s decision to deny a petition for post-conviction relief [we] will not reverse such a denial absent a finding that the trial court’s decision was clearly erroneous.” Kirksey v. State, 728 So.2d 565, 567(¶8) (Miss.1999) (citing State v. Tokman, 564 So.2d 1339, 1341 (Miss.1990)).

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Voluntariness of Moss’s Guilty Pleas

¶ 9. Under this assignment of error, Moss contends that his guilty pleas were not knowingly and intelligently made because when he entered them, he “was under the influence of prescribed medication that [induced] somnolence and leth-argieism [sic].” Moss argues that the doctor who prescribed medication for him and the sheriff who dispensed the prescribed medication to him “should have been called to an evidentiary hearing” to give testimony which would have provided credence to his contention.

¶ 10. We note that the trial court extensively questioned Moss to determine whether he was entering a knowing and voluntary plea. As part of the process, the court specifically asked Moss if he had taken or ingested any substance which would affect his ability to completely understand and appreciate the proceedings and the questions asked by the court. To emphasize the extent that the court went to on this particular point, we quote the following colloquy from Moss’s plea qualification hearing:

Q. Are you under the influence of any intoxicating liquor or drug of any kind?
A. No, your Honor.
Q. Is there anything about your condition or anything you have taken or ingested before you come [sic] here today that would affect your ability to completely understand and appreciate these proceedings and the questions that I’m asking you?
A. No, your Honor.

¶ 11. The above quoted statements clearly contradict Moss’s contention that he was suffering from the ill effects of prescribed medication when he entered his guilty pleas. Contrary to Moss’s assertion, there was no need to call the doctor or sheriff to an evidentiary hearing because where the petitioner’s claim “is belied by unimpeachable documentary evidence in the record such as, for example, a transcript [of his sworn testimony from his plea qualification hearing] .... no hearing is required.” Simpson v. State, 678 So.2d 712, 716 (Miss.1996). Therefore, this issue is without merit.

2. Venue

¶ 12. Moss claims that the State erred in establishing venue in Alcorn County. He argues that venue was proper in Tishomingo County because that was where Angel’s death occurred. Moss maintains that Article 8, Section 26 of the Mississippi Constitution provides that he should have been afforded “a speedy and public trial by an impartial jury of the county where the offense was committed [Tishomingo County].”

¶ 13. The resolution of this issue is controlled by Mississippi Code Annotated section 99-11-19 (Rev.2000), which states:

When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.

From the record, it is clear that the commission of Moss’s crimes began in Alcorn County. The State's offer of proof, which Moss admitted was correct, clearly established that Moss commenced his series of crimes by severely beating Angel and slashing her throat at a residence in Corinth, which is in Alcorn County. Therefore, jurisdiction was proper in Alcorn County even though Angel’s ultimate death may have not occurred there. This issue is without merit.

3. Ineffective Assistance of Counsel

¶ 14. In his final assignment of error, Moss alleges that his trial counsel rendered ineffective assistance of counsel “by failing to conduct any sort of investigation into the facts surrounding the crime, deposing or preparing witnesses, and wholly failing to structure any kind of coherent theory of defense.” In order to establish a claim of ineffective assistance of counsel, Moss must meet the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476 (Miss.1984). According to the test, Moss must show (1) that his counsel’s performance was deficient and (2) that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Moss has the burden of proving both prongs of the Strickland test. Id.

¶ 15. A review of the record reveals that Moss has failed to prove either prong of the Strickland test. The following colloquy between Moss and the court during his plea qualification hearing shows the lack of merit in this claim:

Q. Mr. Moss, are you satisfied with the legal services and advice of your attorneys, Mr. Comer and Mr. Beard?
A. Yes, your Honor.
Q. Do you believe your attorneys have properly advised you before entering these pleas and have properly represented your best interest in these cases?
A. Yes, your Honor.

Nothing in the record indicates that Moss’s trial counsel was deficient in any way. In fact, the record contains numerous motions filed by Moss’s counsel in an effort to aid his defense. Additionally, Moss’s trial counsel successfully negotiated with the district attorney’s office to get the original charge, capital murder, reduced to murder. Considering the fact that Moss had given a confession to the police in which he had admitted his guilt in Angel’s murder, his trial counsel significantly assisted Moss by negotiating a deal that helped Moss escape a possible death sentence. Such actions by trial counsel will seldom constitute ineffective assistance of counsel because:

a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.... At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

¶ 16. Therefore, based on the facts of the case, we find that Moss’s trial counsel did not render ineffective assistance of counsel. This issue is without merit.

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

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

      . Although Moss phrases his argument in terms of “venue,” his argument is actually based solely on jurisdiction. Therefore, we address only whether jurisdiction was proper in Alcorn County.


author: ROBERTS, J.,

text:
    Phillip Matthew KLAUK, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02434-COA.
    Court of Appeals of Mississippi.
    Oct. 24, 2006.
    Jonathan Michael Farris, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the COURT.

¶ 1. While living with his sister’s family, Phillip Matthew Klauk, who was born on February 19, 1973, touched his ten year old niece, Sara , for lustful purposes. After Sara’s mother, Jennifer, failed to contact the proper authorities, Nikki, Sara’s stepsister, contacted the Department of Human Services and Sara was temporarily removed from her mother and stepfather’s care. They, along with Klauk, were questioned as to the accusations made and Klauk was subsequently arrested. A trial was held on June 23, 2004, in which Klauk was found guilty of three counts of touching of a child for lustful purposes. He now appeals raising no issues.

PROCEDURAL HISTORY

¶ 2. Klauk was indicted on February 2, 2004, on three counts of touching of a child for lustful purposes, pursuant to Mississippi Code Annotated § 97-5-23(1). Following the indictment, Klauk’s attorney, Assistant Public Defender Jonathan M. Farris, filed several pre-trial motions to suppress, one of which was a motion to exclude hearsay statements of Sara. The Circuit Court of Forrest County heard arguments concerning Klauk’s pre-trial motions on June 17, 2004, which was followed by Klauk’s trial on the merits of the State’s case on June 23, 2004. A jury of Klauk’s peers, after hearing the testimony and other evidence presented by the prosecution, found Klauk guilty of three counts of touching of a child for lustful purposes. Immediately following the jury’s verdict, the Circuit Court of Forrest County, Judge Robert Helfrieh presiding, sentenced Klauk to fifteen years in the custody of the Mississippi Department of Corrections for each count, each sentence to be imposed consecutively, for a combined sentence of forty-five years. Klauk then filed, through Mr. Farris, his motion for judgment notwithstanding the verdict or, in the alternative, motion for a new trial, which was subsequently denied. Possibly aggrieved by this, Klauk appeals and raises no issues. In accordance with Lindsey v. State, 939 So.2d 743 (Miss.2005), Klauk’s attorney filed his brief stating that after complying with the directives of Lindsey no arguable issues could be found. Klauk did not file a pro se brief.

FACTS

¶ 3. Prior to February of 2003 Jennifer was living in Prentiss, Mississippi with her family, to include Sara. Jennifer’s father lived across the street from her, and Klauk was living with him at the time. Sara testified that, while she was living in Pren-tiss, Klauk touched her in a “bad way” on more than one occasion. In February of 2003, for unrelated reasons, Sara and her family moved to Petal, Mississippi. So he could help with the household bills, Klauk was allowed to accompany the family. Then, in March 2003, May 2003, and July 2003 Klauk again touched Sara in a “bad way” between her legs. During this period of time, Sara would often become depressed, have nightmares regularly, and spend as much time away from home, and Klauk, as possible. Jennifer never contacted the police or sought medical attention for her daughter.

¶ 4. In September of 2003 Nikki, after speaking with her father and Sara, contacted DHS in the hopes of having Sara removed from Jennifer’s household and placed with her. On September 23, 2003, Officer Matthew Hiatt of the Petal Police Department along with case workers from DHS came to Jennifer’s home. After DHS removed Sara and her brother from the home, Hiatt arrested Klauk after he became suspicious following statements he overheard while Klauk was speaking to DHS officials. When asked by DHS officials if he knew why they were there, Klauk responded in the affirmative and that he needed to get out of Mississippi. Subsequent to Klauk’s arrest, Hiatt asked Jennifer and her husband to follow them to the police station for questioning. The trio arrived at the police department at approximately 5:30 p.m. and Hiatt conducted separate interviews with each of them, beginning with Sara, and followed by her husband. At approximately 8:30 p.m. Hiatt read Kaulk his Miranda rights and received a signed waiver from Klauk. Hiatt, along with Chaplain Jimmy Gar-rand, who was also a police officer, and CSI Charles Suggs questioned Klauk until 10:00 p.m. when Klauk decided to give them a statement. According to the recorded statement, Klauk confessed to touching Sara two times in Prentiss, but only once in Petal. Additional facts will be disclosed below, as needed.

ANALYSIS

¶ 5. As mentioned above, Klauk’s attorney filed a brief on Klauk’s behalf complying with the mandate of Lindsey. Within the brief Mr. Farris indicated that he informed Klauk that he could identify no arguable issues, provided Klauk with a copy of the brief stating as such, and advised Klauk of his right to file a pro se brief on his own behalf. Lindsey additionally directs this Court to review the record and, if the circumstances warrant, require Klauk’s attorney to brief any arguable issues we discover. Lindsey, 939 So.2d 743. After a thorough review of the record, we find that one issue does deserve discussion, but additional briefing is not required. The issue is, whether the trial court erred in admitting hearsay testimony under the tender years exception, pursuant to Mississippi Rule of Evidence 803(25), without first “[finding], in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide a substantial indicia of reliability.”

¶ 6. For the tender years exception to apply, the child must be of tender years. M.R.E. 803(25). There is a rebut-table presumption that children under twelve years of age are within their tender years. Veasley v. State, 735 So.2d 432(¶ 16) (Miss.1999). The child’s age at the time of the statement, rather than her age at trial, is the relevant age used to determine if the tender years exception applies. Walls v. State, 928 So.2d 922(¶ 14) (Miss.Ct.App.2006). The record is clear that at the time of Sara’s statements she was under the age of twelve, so she was within the age limit of the presumption. Once this has been found, the trial court must establish the reliability of the child’s statements. Id. While the notes to Mississippi Rule of Evidence 803(25) set out several factors, “the judge should make an overall determination of the likelihood that these statements are true and make an on the record finding that there is substantial indicia of reliability.” Id. (citing Hennington v. State, 702 So.2d 403(¶ 54) (Miss.1997)). Specifically, before admitting hearsay testimony, the trial court must rule on the factors detailed in Rule 803(25)(a) and (b). Veasley, 735 So.2d at (¶ 16). The record indicates that Jennifer and Nikki were allowed to testify, under the tender years exception, that Sara told them Klauk had touched her on several occasions. What is lacking from the record is a determination by the trial judge that those statements provide a substantial indicia of reliability. Accordingly, we find that the trial court erred in admitting this evidence without first making the required on the record factual determination that Sara’s statements contained substantial indicia of reliability.

¶ 7. Having determined that error occurred, we must now address whether such error compels reversal. In order to make that determination we must decide “whether the weight of the evidence against Klauk is sufficient to outweigh the harm done by allowing admission of [the] evidence.” Veasley, 735 So.2d at (¶ 17) (quoting Fuselier v. State 702 So.2d 388, 391 (Miss.1997)). In order to accomplish this, it is necessary to detail those statements which Klauk objected to as being hearsay. Jennifer was first asked when Sara came to her to complain about what Klauk was doing. She responded that Sara came to her in March 2003, May 2003, and July 2003. Although Klauk objected to this questioning, Jennifer’s answer was not hearsay as it was not an out-of-court statement, but facts from her personal knowledge regarding when she was told of Klauk’s actions. Jennifer was next asked to detail Sara’s complaints, which she did. As Rule 803(25) of the Mississippi Rules of Evidence does not apply to these statements for those reasons explained above, this testimony was hearsay without an applicable exception and, as such, must be excluded. Next, Jennifer was asked about complaints Sara voiced while living in Petal. These statements were also hearsay without an exception, and should have been excluded. Lastly, Klauk objected when Nikki testified as to what Sara told her regarding where Klauk touched her. Again, this was inadmissable hearsay. We feel it should be stressed that Sara’s statements to Jennifer and Nikki, identified as hearsay without an exception above, would had been admissible hearsay had the lower court complied with the requirements of the tender years exception and made an on-the-record determination that her statements contained substantial indicia of reliability.

¶ 8. Excluding the testimony of Jennifer and Nikki detailed above, we find the jury was still left with more than sufficient evidence to find Klauk guilty beyond a reasonable doubt. Specifically, Sara testified that Klauk touched her between her legs, both on the outside and inside of her clothing, on two occasions in Prentiss and on three occasions in Petal, detailing the place and circumstances of the incidents.

Our case law clearly holds that 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, especially if the conduct of the victim is consistent with the conduct of one who has been victimized. The victim’s physical and mental condition after the incident, as well as the fact that the incident was immediately reported is recognized as corroborating evidence.

Ladnier v. State, 878 So.2d 926(¶ 14) (Miss.2004). Klauk never took the stand to contradict these in-court statements, as was his right, nor did he cross-examine Sara when given the opportunity. Additionally, Sara reported these incidents to her mother soon after they occurred, and Jennifer testified that Sara was generally depressed and withdrawn after Klauk’s improper acts. Finally, the jury heard Klauk’s recorded confession. Therefore, given the evidence properly admitted to the jury, we find the lower court’s error in admitting the above hearsay statements was harmless.

¶ 9. For these reasons, we affirm.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF COUNT I TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN YEARS; COUNT II TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN YEARS TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I; AND COUNT III TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN YEARS TO RUN CONSECUTIVELY TO SENTENCES IN COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . Due to the sensitive nature of this case, we have assigned pseudonyms to the parties involved, save the appellant.