author: LEE, P.J.,

text:
    Timothy ROACH a/k/a Timothy K. Roach, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-01244-COA.
    Court of Appeals of Mississippi.
    Feb. 7, 2006.
    Rehearing Denied June 20, 2006.

      Rebecca G. Taylor, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On November 8, 1998, Timothy Roach was arrested for burglarizing the home of Ruth Marbury in Jackson, Mississippi. A neighbor of Marbury, Johnny Barksdale, saw Roach exit Marbury’s house carrying a television. The police were notified and apprehended Roach a short distance from Marbury’s residence. The police found several items belonging to Marbury on Roach’s person and in his car.

¶ 2. Roach was indicted on April 8, 1999, for the crime of breaking and entering a dwelling and as an habitual offender. On October 13, 2000, Roach was tried and convicted by a jury in the Hinds County Circuit Court. Roach was sentenced as an habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections without the possibility of parole, probation or sentence reduction. Aggrieved, Roach appeals to this Court asserting nine issues: (1) he was illegally detained by the State; (2) the trial court erred by failing to dismiss the indictment; (3) he was denied a speedy trial; (4) he did not receive a fair trial; (5) the verdict was against the overwhelming weight of the evidence; (6) the trial court erred in refusing his circumstantial evidence instruction; (7) he was illegally sentenced as an habitual offender; (8) the trial court erred in failing to provide him with a hearing on his motion for a new trial; and (9) he did not receive effective assistance of counsel.

DISCUSSION

¶ 3. We first note that, although Roach’s appellate counsel has written the majority of the brief, Roach has interspersed his own arguments for specific issues throughout the brief. The State has moved to strike the pro se portions of Roach’s brief and requests this Court to stay the briefing schedule pending an order. We decline to do so.

I. WAS ROACH ILLEGALLY DETAINED BY THE STATE?

¶4. In his first issue on appeal, Roach argues that he was illegally detained by the State. Specifically, Roach contends that, pursuant to Rule 6.03 of the Uniform Rules of Circuit and County Court, he was not provided with the complaint against him and was also denied a preliminary hearing. Roach was arrested on November 8, 1998. As of December 9, 1998, the State had not produced a copy of the affidavit, complaint or warrant against Roach; thus, a municipal court judge released Roach from jail on December 12, 1998.

' ¶ 5. Roach’s argument is correct. However, the Supreme Court has stated that the failure to provide a prompt initial appearance does not necessarily entitle a defendant to have his conviction reversed. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Furthermore, Roach must prove that his defense was prejudiced by the denial of a preliminary hearing in order to reverse his conviction. See Esparaza v. State, 595 So.2d 418, 423 (Miss.1992); Lee v. State, 759 So.2d 1264, 1266(¶ 11) (Miss.Ct.App.2000). Roach has not done so. In fact, Roach fails to mention any prejudice to his defense other than the mere assertion that Rule 6.03 was violated. We find this issue to be without merit.

II. DID THE TRIAL COURT ERR BY FAILING TO DISMISS THE INDICTMENT?

¶ 6. In his second issue, Roach has simply attached a copy of a motion entitled “motion for defective indictment” which he previously filed in the trial court. Roach, in fact, has filed two motions to dismiss the indictment, both of which were denied. Roach contends that the indictment was fatally defective because it failed to specifically state where the offense occurred. Specifically, Roach argues that the indictment should have stated Ruth Marbury’s address. The indictment stated as follows:

That TIMOTHY ROACH in said District, County and State on or about the 8th day of November, 1998 did wilfully, unlawfully, feloniously and burglariously break and enter the dwelling house of Ruth S. Marbury with the intent to commit a crime therein, to-wit:
to take, steal and carry away personal property of Ruth S. Marbury then and there situation in said dwelling house....

¶ 7. According to Rule 7.06 of the Uniform Rules of Circuit and County Court, an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” It is clear from reading the indictment that Roach was informed of the charges against him, including when and where the crime was committed. We cannot find that failure to list the specific address of the dwelling, when the person from whom the property was taken is named in the indictment, is error. See, e.g., Triplett v. State, 910 So.2d 581, 588(¶ 6) (Miss.Ct.App.2005). This issue is without merit.

III. WAS ROACH DENIED A SPEEDY TRIAL?

¶ 8. In his third issue on appeal, Roach asserts that his right to a speedy trial was violated. As Roach appears to address both his constitutional right and statutory right to a speedy trial, we will address both. Our standard of review in claims of speedy trial violations is as follows:

Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court’s standard of review, this Court will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, this Court will ordinarily reverse. The state bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.

DeLoach v. State, 722 So.2d 512, 516(1112) (Miss.1998) (citations omitted).

a. Statutory right to a speedy trial

¶ 9. Roach briefly mentions that his statutory right to a speedy trial was violated under Mississippi Code Annotated Section 99-17-1 (Rev.2000), which states as follows:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

Roach was arraigned on June 11,1999, and was not tried until October 12, 2000, well over the 270 day deadline. However, we have held that if a defendant fails to raise the statutory right to a speedy trial within 270 days of his arraignment, he acquiesces to the delay. Mims v. State, 856 So.2d 518, 522(¶ 11) (Miss.Ct.App.2003); Malone v. State, 829 So.2d 1253, 1257(¶ 11) (Miss. Ct.App.2002). See also Walton v. State, 678 So.2d 645, 649-50 (Miss.1996). This argument is without merit.

b. Constitutional right to a speedy trial

¶ 10. The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), employed a four pronged balancing test in determining whether a defendant had been deprived of his right to a speedy trial. The four prongs are (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Arthur v. State, 735 So.2d 213(¶ 11) (Miss.1999). We. look to these factors as they apply to Roach’s case.

¶ 11. Roach’s constitutional right to a speedy trial attached at the time of his arrest, which was on November 8, 1998. Roach was released sometime in December 1998, and not indicted until April 8, 1999. Although Roach was not incarcerated prior to his indictment, the length of delay until his trial in October 2000, was well over eight months. As our supreme court has stated that a delay of more than eight months is presumptively prejudicial, we must look to the next factor. See DeLoach, 722 So.2d at 517(¶ 16).

¶ 12. The second factor requires that we look to the reason for the delay. It is apparent from the record that Roach had problems with his attorneys. Roach fired his first appointed counsel and indicated that he would be hiring counsel to represent himself. Ultimately, after much delay by Roach in finding new counsel, the trial court had to reappoint another attorney to represent Roach. The trial court found that Roach’s actions accounted for a substantial part of the delay. We agree and find that this weighs against Roach. See Wesley v. State, 872 So.2d 763, 768(1122) (Miss.Ct.App.2004). However, there was some delay due to the overcrowded docket. Roach’s trial date was changed several times due to conflicts with other lengthy trials. An overcrowded docket will not be weighed heavily against the State. McGhee v. State, 657 So.2d 799, 802 (Miss.1995). As it is apparent that there was reason for delay from both Roach and the State, we find this factor to be neutral.

¶ 13. The third factor concerns Roach’s assertion of his right to a speedy trial. Roach filed his motion to dismiss for violation of his right to a speedy trial the day before trial on October 11, 2000. We note that, according to the docket, there is an entry on June 2, 2000, stating that a pro se letter was filed “requesting to be put on court docket.” However, this letter is not included in the record and Roach himself notes that it is missing from the record. “A defendant has no duty to bring himself to trial.... Still he gains far more points under this prong of the Barker test where he had demanded a speedy trial.” Brengettcy v. State, 794 So.2d 987, 994(¶ 17) (Miss.2001). The Mississippi Supreme Court has also stated that a motion for dismissal based on violation of the right to a speedy trial and a demand for a speedy trial are not equivalent, with regard to the Barker analysis, as one seeks discharge and the other an immediate trial. Perry v. State, 637 So.2d 871, 875 (Miss.1994). See also Adams v. State, 583 So.2d 165, 169-70 (Miss.1991) (holding that demand for dismissal coupled with demand for instant trial is insufficient to weigh third Barker prong in defendant’s favor where motion came after bulk of delay had elapsed). Here, we have no indication that Roach ever filed a motion demanding a speedy trial, only that he filed a motion to dismiss for violation of his right to a speedy trial prior to trial. We find the third factor weighs against Roach.

¶ 14. The fourth factor concerns prejudice suffered by the defendant. This includes prejudice in preparing his defense and the loss of liberty he suffered due to the delay. Perry, 637 So.2d at 876. The supreme court has identified three main considerations in determining whether the accused has been prejudiced by lengthy delay: “(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.” Jefferson v. State, 818 So.2d 1099, 1108(1121) (Miss.2002). Roach does not provide any specific evidence concerning any anxiety he suffered or any specific injury to his ability to prepare his defense. In fact, after his motion to dismiss was denied, Roach asked for a continuance in order to prepare his defense, which the trial court denied. We find that Roach has failed to show any prejudice, and this factor weighs in favor of the State.

¶ 15. Our final obligation under Barker is to weigh all of the factors. “The balancing test set forth in Barker must be applied on a case by case basis under the particular facts of the case under consideration.” Birkley v. State, 750 So.2d 1245, 1253(¶ 30) (Miss.1999). While not considering lightly the fact that a delay did exist, we recognize that Roach failed to assert his right to a speedy trial; did not object to any delays, other than filing the day before trial a motion to dismiss for failure to provide a speedy trial; and has, importantly, failed to show he suffered any actual prejudice due to the delay. Thus, we cannot find Roach’s constitutional right to a speedy trial was violated. This issue is without merit.

IV. DID ROACH RECEIVE A FAIR TRIAL?

¶ 16. In his fourth issue on appeal, Roach argues that he did not receive a fair trial due to the misconduct of the State. Specifically, Roach contends that the State erred in failing to provide him with a copy of the original police report. Roach claims that the State provided a copy of the police report which had been altered by the State. During a hearing on the matter, the trial court determined that the alteration made by the prosecutor was the addition of one word “recovered” written next to the entry regarding Marbury’s credit card. Roach requested a mistrial, which was denied. The trial court allowed Roach additional time to restructure his cross-examination of the officer who wrote the report. We can find no error here.

¶ 17. Roach also claims that he is “unsure of what alterations were made by the Prosecutor and what transpired at trial.” We are unimpressed with Roach’s assertion as there was a lengthy discussion of the alteration in the record to which Roach refers. This issue is without merit.

V. WAS THE JURY’S VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 18. In his fifth issue on appeal, Roach contends that the jury verdict was against the overwhelming weight of the evidence. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. For this Court to disturb the verdict on appeal, it must be so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bright v. State, 894 So.2d 590, 592(¶ 8) (Miss.Ct.App.2004).

¶ 19. Johnny Barksdale saw Roach exit Marbury’s house, reenter, then exit again carrying Marbury’s television. The police were notified and were able to apprehend Roach as he was driving away from Marbury’s house. Roach’s car contained property belonging to Marbury, and Marbury’s husband’s credit card was found in Roach’s pocket. During trial, Roach put on no evidence. Accepting as true the evidence supporting the jury’s verdict, we cannot find that allowing the guilty verdict to stand would sanction an unconscionable injustice. This issue is without merit.

VI. DID THE TRIAL COURT ERR IN REFUSING ROACH’S CIRCUMSTANTIAL EVIDENCE INSTRUCTION?

¶ 20. In his sixth issue, Roach argues that the trial court erred in refusing to grant his circumstantial evidence jury instruction. Roach claims that the State failed to produce any direct evidence that Roach had broken into Marbury’s home. “Circumstantial evidence instructions are only given when the State is without a confession or eyewitness to the offense charged.” Myers v. State, 832 So.2d 540, 542(¶ 7) (Miss.Ct.App.2002). Direct evidence excludes any necessity for a circumstantial evidence instruction. Sullivan v. State, 749 So.2d 983, 992(¶20) (Miss.1999). A back window had been broken, and Marbury testified that it was intact prior to her leaving the house. Roach was seen by an eyewitness exiting the house with property belonging to Mar-bury. Furthermore, Roach was apprehended so close to Marbury’s house that Barksdale was able to point Roach’s car out to the police. Because of the overwhelming direct evidence, we find this issue is without merit.

VII. WAS ROACH ILLEGALLY SENTENCED AS AN HABITUAL OFFENDER?

¶ 21. In his seventh issue, Roach argues that he was illegally sentenced as an habitual offender because he was not given a separate trial pursuant to Rule 11.03 of the Uniform Circuit and County Court Rules. However, according to the record, after the jury was excused, the trial court conducted a separate hearing for the State to present evidence of the two prior felony convictions necessary to sentence Roach as an habitual offender. The State produced the evidence, Roach failed to object, and the trial court pronounced his sentence. This issue is without merit.

VIII. DID THE TRIAL COURT ERR IN FAILING TO PROVIDE ROACH WITH A HEARING ON HIS MOTION FOR A NEW TRIAL?

¶22. In his eighth issue, Roach argues that the trial court erred in failing to provide him with a hearing on his motion for a new trial. Roach filed a pro se motion for a new trial over eight months after trial. Although this motion was not ruled upon until December 2003, the trial court found Roach’s motion to be without merit. Hearings on a motion for new trial are discretionary with the trial court. Jordan v. State, 786 So.2d 987, 1021 (¶ 125) (Miss.2001). Roach gives us no reason why the trial court abused its discretion in failing to conduct a hearing on his motion for a new trial. We are disinclined to guess. This issue is without merit.

IX. DID ROACH RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 23. In his last issue on appeal, Roach argues that he did not receive effective assistance of counsel. For a defendant to successfully prove ineffective assistance of counsel, the defendant must show that the counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a defendant raises an ineffective assistance of counsel claim on direct appeal, the question before this Court is whether the judge, as a matter of law, had a duty to declare a mistrial or order a new trial sua sponte, on the basis of trial counsel’s performance. Colenburg v. State, 735 So.2d 1099, 1102(¶ 8) (Miss.Ct.App.1999). Roach claims that his trial counsel was ineffective for failing to subpoena two of the State’s witnesses, thereby depriving him of his right to confront witnesses, and for failing to timely perfect the appeal.

¶ 24. In his first contention, the two witnesses Roach mentions did not testify at trial. We fail to see how Roach’s attorney was deficient in failing to subpoena these two witnesses who did not even testify at trial against Roach.

¶ 25. Roach’s other contention is that his trial counsel failed to perfect the appeal. According to the record, his trial counsel did file a timely notice of appeal. Although the time between the notice of appeal and the assignment of the case to this Court is long, we fail to see how Roach can argue that his appellate rights were not preserved when, in fact, his appeal is now before this Court. Furthermore, Roach has failed to show how any actions by his trial counsel prejudiced his defense. This issue is without merit.

¶ 26. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF BREAKING AND ENTERING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Rhonda M. ROGERS, Appellant v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 2004-CA-02074-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2006.
    Rehearing Denied June 20, 2006.

      Austin R. Nimocks, Biloxi, attorney for appellant.
    Eric Joseph Dillon, Jackson, William C. Griffin, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Allstate Insurance Company filed a complaint for declaratory judgment seeking a determination that Allstate had no duty under a homeowner’s policy to defend or indemnify Rhonda M. Rogers in an ongoing lawsuit. Allstate subsequently filed a motion for summary judgment. The trial court granted the motion for summary judgment, finding that there was no coverage available under Rogers’s homeowner’s policy. Aggrieved by the judgment, Rogers appealed. Finding no error, we affirm the judgment of the Harrison County Circuit Court.

FACTS

¶ 2. The basis for the underlying tort action began on August 23, 1994, when Ms. Rogers and her then husband, Herbert Lubin, legally separated. The Chancery Court of Harrison County appointed Dr. Gasparrini, a clinical psychologist, to perform a custody evaluation of Ms. Rogers and Mr. Lubin’s children and to submit a written report. In addition to submitting a report, Dr. Gasparrini testified as to certain custody matters during the trial, which began on May 14, 1994. After the trial, the chancery court awarded custody of the children to Mr. Lubin.

¶ 3. On October 17, 1994, Ms. Rogers filed a formal ethics complaint against Dr. Gasparrini with the American Psychological Association (APA). Ms. Rogers also filed an ethics complaint with the Mississippi Board of Psychological Examiners. On February 23, 1995, the Mississippi Board of Psychological Examiners sent Ms. Rogers a letter stating that her complaint had been dismissed, as “no ethical violation of the Ethical Principles of Psychology occurred.”

¶4. On February 12, 1996, nearly one year after receiving the dismissal letter from the Mississippi Board of Psychological Examiners, Ms. Rogers received a letter from the APA stating that it “decided to open this up as a formal ethics case.” Ms. Rogers then typed and mailed multiple letters to various health care providers with whom Dr. Gasparrini had business relationships. In the letters, set on or about February 27, 1996, Ms. Rogers informed the health care providers that Dr. Gasparrini was under investigation by the APA. Ms. Rogers wrote: “[s]ince your organization has a professional relationship with Dr. Gasparrini, I thought you would need to know that Gasparrini is currently under investigation by the American Psychological Association.”

¶ 5. Dr. Gasparrini learned of the letters sent by Ms. Rogers. He filed suit against her and “unknown others yet to be named” in circuit court on February 27, 1997. Dr. Gasparrini alleged that he suffered financial damages and damages to his reputation as a result of Ms. Rogers’s writing and mailing the letters to the health care providers with whom he had a business relationship. Dr. Gasparrini further claimed that Ms. Rogers’s conduct was persistent and malicious, with the intent to harm him economically and professionally. Dr. Gasparrini’s claims against Ms. Rogers included the following: (1) false light; (2) invasion of privacy; (3) civil conspiracy; (4) tortious interference with business relations; (5) defamation; (6) abuse of process; and (7) malicious prosecution. Dr. Gasparrini requested injunctive relief, and sought compensatory and punitive damages.

¶ 6. On May 23, 1997, Allstate hired a law firm to defend Ms. Rogers and to file an answer to Dr. Gasparrini’s complaint on her behalf.

¶ 7. More than six years later, on March 17, 2003, Allstate decided that it was not legally obligated to defend Ms. Rogers and it filed a complaint for declaratory judgment in the United States District Court for the Southern District of Mississippi, Southern Division. The complaint sought a determination that Allstate had no duty under the Deluxe Plus Homeowners Policy (“the policy”) purchased by Ms. Rogers on July 11, 1996 to defend or indemnify Ms. Rogers in the lawsuit brought against Rogers by Dr. Gasparrini.

¶8. On July 22, 2003, Dr. Gasparrini filed his third amended complaint in circuit court against Ms. Rogers. The amended complaint added Allstate as a defendant. The amended complaint also included the previously unnamed defendants, Gregory and Sandra Bredemeier, as co-conspirators. Dr. Gasparrini removed the claims of abuse of process and malicious prosecution from the amended complaint. In addition to requests for injunctive relief and compensatory and punitive damages, Dr. Gasparrini sought a declaration from the Circuit Court of Harrison County regarding Ms. Rogers’s coverage under the policy-

¶ 9. Allstate filed an answer to the third amended complaint with a counterclaim and cross-claim for declaratory judgment on September 4, 2003. On July 2, 2004, Allstate filed a motion for summary judgment. Allstate presented the circuit court with several arguments in support of its position that Ms. Rogers’s actions were not covered under the policy. Allstate argued that there was never an “occurrence” as defined by the policy and by Mississippi law. Allstate further argued that Dr. Gas-parrini did not suffer “property damage” or “bodily injury” as defined by the policy and by Mississippi law. Finally, Allstate asserted that Ms. Rogers’s actions were excluded from coverage because they were intentional acts under the policy.

¶ 10. The relevant provisions of the policy provided the following:

Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and covered by this part of the policy.
We do not cover any bodily injury or property damages intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of any insured person.

The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage.” The policy defined “property damage” as “physical injury to or destruction of tangible property, including loss of its use resulting from such physical injury or destruction.” Finally, the definition of “bodily injury” read as follows:

[Pjhysical harm to the body, including sickness or disease, and resulting death, except that bodily injury does not include:
(a) any venereal disease;
(b) Herpes;
(c) Acquired Immune Deficiency Syndrome;
(d) AIDS Related Complex;
(e) Human Immunodeficiency Virus; or any resulting symptom, effects, condition, disease or illness related to (a) through (e) listed above.

¶ 11. The circuit court entered an order granting Allstate’s motion for summary judgment, on September 8, 2004. The court found that Ms. Rogers’s actions were not an “occurrence” under the policy. The court also concluded that Ms. Rogers’s actions were intentional acts, and were therefore excluded from coverage. Although the court declined to address the property damages and bodily injury issues, it acknowledged that those issues would likewise support summary judgment for Allstate.

¶ 12. Aggrieved by the judgment, Ms. Rogers appealed. She now asserts that the circuit court erred in granting summary judgment and presents the following assignments of error: (1) the court erred in determining that the facts demonstrated did not qualify as an “occurrence” under the policy; (2) the circuit court erred in determining that the facts fell within the intentional acts exclusion of the policy; and (3) the circuit court erred in failing to interpret and harmonize the Mississippi Supreme Court’s opinions in Moulton, Omnibank, and Allard.

STANDARD OF REVIEW

¶ 13. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Mississippi, Inc., 908 So.2d 181, 183(¶ 4) (Miss.Ct.App.2005). Our standard for reviewing a grant of summary judgment is the same as the standard employed by the trial court, namely, whether any genuine issues of material fact exists. Id.

ISSUES AND ANALYSIS

I. Whether the circuit court erred in determining that the facts demonstrated did not qualify as an “occurrence” under the policy.

¶ 14. Ms. Rogers maintains that her actions qualified as an occurrence both under the terms of the policy and as defined by Mississippi law.

¶ 15. Under Mississippi law, whether a liability insurance company has a duty to defend hinges on the language of the policy. United States Fid. & Guar. Co. v. Omnibank, 812 So.2d 196, 200(¶ 12) (Miss.2002) (citing Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 212(¶ 19) (Miss.2000)). The test for determining whether the insurer has an obligation to defend is accomplished by examining the allegations in the complaint or the declaration in the underlying action. Id. (citing Sennett, 757 So.2d at 212(¶ 19)). In Merchants Co. v. American Motorists Ins. Co., 794 F.Supp. 611, 617 (S.D.Miss. 1992), the federal district court stated that “the duty to defend is broader than the insurer’s duty to indemnify under its policy of insurance: the insurer has a duty to defend when there is any basis for potential liability under the policy.”

¶ 16. In order for coverage to exist, the triggering event must be an “occurrence,” which is defined by the Allstate policy as an “accident.” By its very nature, an accident is something that “produces unexpected and unintended results.” Omnibank, 812 So.2d at 200(¶ 12). In Omnibank, the supreme court reiterated its position that in determining whether there has been an occurrence “the only relevant consideration is whether, according to the declaration, the chain of events leading to the injuries ... were set in motion and followed a course consciously devised and controlled by [the insured] without the unexpected intervention of any third person or extrinsic force.” Id. (quoting Allstate Ins. Co. v. Moulton, 464 So.2d 507, 509 (Miss.1985)).

¶ 17. In Moulton, the insured swore out a complaint that Walls stole her dog. Moulton, 464 So.2d at 507. After the charges against Walls were dismissed, he sued Moulton for malicious prosecution. Id. The court determined that although Moulton may not have intended to embarrass or humiliate Walls, she “obviously intended to swear out the compliant” and “[s]he certainly intended for him to be arrested.” Id. at 509. Thus, the court held that the test to determine whether the action in question was an accident is whether the insured intended the action, not whether the insured intended the results of that action. Id. at 510.

¶ 18. However, in Southern Farm Bureau Cas. Ins. Co. v. Allard, 611 So.2d 966 (Miss.1992), the court took a difference approach to determine whether an accident had occurred. In that case, the insured shot his brother-in-law in the leg. Id. at 966. Allard asserted that it was not his intention to shoot or to injure his brother-in-law, but only to fire a warning shot. Id. at 968. Allard’s insurance policy contained an exclusion similar to the case at bar, for “bodily injury or property damage which is expected or intended by the insured.” Id. The case went to trial and a jury found that the shooting was unintentional. Id. On appeal, the supreme court affirmed the judgment of the trial court, noting that an act is “intentional if the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it.” Id. (citing Coleman v. Sanford, 521 So.2d 876, 878 (Miss.1988)).

¶ 19. In Omnibank, the court attempted to reconcile the apparent incongruence between the Moulton and Allard decisions by stating that Allard did not constitute a change in the law, but “emphasized that a fact issue existed as to whether the insured intended to harm the victim.” Omnibank, 812 So.2d at 201(¶ 19). The court went on to say that the Allard decision merely sought to determine whether an accident had occurred, not whether the intentional acts exclusion applied. Id. The court concluded that the two decisions were consistent “in that they both address the nature of the insured party’s conduct, not the resulting damage of the conduct.” Id. Finally, the court agreed with the ruling of Mississippi federal courts that “a claim resulting from intentional conduct which causes foreseeable harm is not covered, even where the actual injury or damages are greater than expected or intended.” Id. (citing Nationwide Mut. Fire Ins. Co. v. Mitchell ex rel. Seymour, 911 F.Supp. 230 (S.D.Miss.1995)).

¶ 20. In the instant case, Ms. Rogers’s actions clearly cannot be seen as an accident under either an Allard or Moul-ton analysis. As in Moulton, Ms. Rogers consciously and purposely set the chain of events in motion when she initiated her letter-writing campaign. Although she might not have specifically intended for Dr. Gasparrini to suffer financial loss, Ms. Rogers admitted that her purpose in the mailing the letters was to prevent others from suffering as she did. As this Court held in Gasparrini v. Bredemeier, 802 So.2d 1062, 1067(¶ 17) (Miss.Ct.App.2001), “[i]t goes without saying that letters sent to Gasparrini’s employers, insinuating that he was an unethical psychologist, were intended to bring about one result, namely, to deter individuals and companies from employing Gasparrini.” Thus, similar to Allard, the mailing of the letters was not an accident. Ms. Rogers desired to cause the consequences of her actions, namely, harm to Dr. Gasparrini’s business relationships.

¶21. Accordingly, we hold that Ms. Rogers’s actions were not covered under the policy, as they did not constitute an accident. Moreover, even if the circuit court determined that Ms. Rogers’s actions constituted an occurrence, Dr. Gas-parrini did not allege that he suffered any bodily injury or property damage. The policy provided coverage for “damages which an insured person becomes legally obligated to pay because of bodily injury or property damage.” The policy defined bodily injury as some “physical harm to the body,” and property damage as “physical injury to or destruction of tangible property.” Dr. Gasparrini claimed to have suffered financial loss and damages for loss to his reputation.

¶ 22. Clearly, Dr. Gasparrini’s claims for damages do not amount to bodily injury, or physical harm to the body. Moreover, in Audubon Ins. Co. v. Stefancik, 98 F.Supp.2d 751, 756 (S.D.Miss.1999) the court held that financial losses and tangible injuries to reputation through defamation claims are not injuries to tangible property. We agree. Therefore, even if we concluded that Ms. Rogers’s actions were an occurrence, or accident under the policy, coverage would still not exist because Dr. Gasparrini did not claim as damages any type of bodily injury or property damage. Consequently, we find that summary judgment was appropriate as a matter of law and affirm the judgment of the circuit court.

¶ 23. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The district court abstained from determining the coverage issues when the Circuit Court of Harrison County granted Dr. Gas-parrini leave to amend his complaint to join Allstate as a party to the circuit court action.


author: GRIFFIS, J.,

text:
    Bruce PADGETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-02046-COA.
    Court of Appeals of Mississippi.
    March 7, 2006.
    Rehearing Denied June 27, 2006.

      Bruce Padgett, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Bruce Padgett appeals the denial of his motion to vacate judgment and sentence, which the trial court treated as a motion for post-conviction relief. We find no error and affirm.

¶2. On March 16, 1979, Padgett was indicted for capital murder in violation of Mississippi Code Annotated Section 97-3-19(2)(e) (1972). On September 23, 1980, Padgett pled guilty to murder as a habitual offender. He was sentenced to serve a term of life in custody of the Mississippi Department of Corrections, without the possibility of parole.

¶ 3. In August of 2004, Padgett filed a motion to vacate judgment and sentence. The court treated Padgett’s motion as a submission under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. § 99-39-1- § 99-39-119 (Rev.2000). The trial court summarily denied the motion as time barred because it was filed more than three years after the entry of Padgett’s guilty plea.

¶ 4. The standard of review requires that we not reverse the trial court absent a finding that the decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 5. In his appeal, Padgett raises five issues: (1) whether the life sentence without the possibility of parole is an illegal sentence as that court did not have jurisdiction to impose sentence and to accept the plea of guilty on an illegal bill of information, that the state used the bill of information to illegally amend the indictment; (2) whether the bill of information was illegal, and therefore the court was without jurisdiction to try Padgett; (3) whether the bill of information properly charged Padgett as a habitual offender; (4) whether Padgett received effective assistance of counsel; and (5) whether the trial court erred in dismissing the motion as time barred.

¶ 6. The trial court held:

After careful review, the court finds that Petitioner’s motion is time barred under Mississippi Code Ann. § 99-39-5(2). That statute provides, “[a] motion for relief under this chapter shall be made, ... in the case of a guilty plea, within three (3) years after the entry of the judgment of conviction.” Petitioner’s judgment of conviction was entered on or about September 30,1980. Petitioner submitted his motion for post-conviction collateral relief in August, 2004. Even with the Court giving Petitioner the maximum benefit of the statute of limitations by considering the period not to have commenced until the passage of the Uniform Post Conviction Collateral Relief Act in 1984, the Petitioner is still approximately twenty (20) years past the time for filing. The statute lists several exceptions to the three year limitations period, however, the petitioner has submitted no evidence to indicate that any of these exceptions are applicable in this case. He has cited no intervening decision of the Supreme Court which would have adversely affected the outcome of his conviction or sentence. Nor has he presented any evidence which is of such a nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Therefore, this action is time barred pursuant to Miss.Code Ann. § 99-39-5(2).

¶ 7. The trial court correctly determined that Padgett’s motion was for post-conviction relief. Likewise, the trial court correctly dismissed the motion as time barred. Padgett raises no issues within the statutory exceptions. Accordingly, we affirm and find no basis to address Pad-gett’s remaining issues.

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

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


author: KING, C. J.,

text:
    Henry Clay LEWIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00343-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied July 25, 2006.
    Jackson County Circuit Court, Hon. Robert P. Krebs, Judge.
    Henry Clay Lewis, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   KING, C. J.,

for the Court.

¶ 1. On April 25, 1983, Henry Clay Lewis pled guilty in the Jackson County Circuit Court to aggravated assault on a law enforcement officer. Lewis was sentenced as an habitual offender to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections. Lewis timely filed a petition for post-conviction relief which was denied by the circuit court. The supreme court subsequently affirmed that decision. See Lewis v. State, 473 So.2d 488 (Miss.1985). In December 1985, Lewis filed a second petition for post-conviction relief. The circuit court again denied Lewis relief, and this decision was also affirmed by the supreme court. See Lewis v. State, 510 So.2d 809 (Miss.1987). On December 6, 2004, Lewis filed a third petition for post-conviction relief in the circuit court, alleging the same issue that served as the basis for his first petition. The circuit court dismissed Lewis’ petition on January 10, 2005. From this dismissal, Lewis appeals.

¶2. An order dismissing or denying a prisoner’s request for post-conviction relief is a final judgment and is conclusive unless reversed. Miss.Code Ann. § 99-39-23(6) (Rev.2000). Such an order serves as a bar to any successive motions under this chapter. Id. Finding that Lewis’ third post-conviction relief motion is procedurally barred as a successive writ, we affirm the decision of the Jackson County Circuit Court.

¶ 3. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: ROBERTS, J.,

text:
    Frances WAGNER and Morris Wagner, Appellants v. The MATTIACE COMPANY, Appellee.
    No. 2005-CA-01634-COA.
    Court of Appeals of Mississippi.
    Sept. 12, 2006.

      Christopher Ethan Kittell, Clarksdale, attorney for appellants.
    Michael D. Simmons, Jackson, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This “slip and fall” case is appealed from the Circuit Court of Panola County. While browsing at a catalog return store, aptly named Returns, Frances Wagner, stepped backward to get a better view a certain piece of furniture and tripped, striking her head on the floor below and causing severe injury. Wagner subsequently brought suit against the store owner and sublessee, Mike Lukács (Lu-kács), the lessee, Food Giant Supermarkets, Inc. (Food Giant), and the Mattiace Company (Mattiace), the property manager of the shopping center in which Returns was located. After Wagner’s claims against Lukács and Food Giant had settled and been dismissed, Mattiace filed its motion for summary judgment. After hearing arguments concerning the motion from both parties, the Circuit Court of Panola County granted Mattiace’s motion and dismissed Wagner’s claims. This appeal followed. Finding no error, we affirm.

FACTS

¶2. Returns was part of a shopping center in Senatobia, coincidentally named Senatobia Plaza Shopping Center (the Plaza). Through a series of subleases and amendments to the original lease (Lease), dated November 12, 1975, the store space in question was leased to Food Giant on March 20,1995. After operating a grocery store out of the space for an undermined amount of time, Food Giant subleased (Sublease) the space, subject to all applicable terms and conditions contained in the Lease, to Lukács for a term to run from August 1, 2000, to September 29, 2002.

¶ 3. In this case, as in most things, the devil is in the details. With that in mind, it is important to review applicable sections of the Lease and Sublease. Paragraph seventeen of the Lease stated as follows,

[T]he Lessor reserves the right during the term of this lease, to enter said premises at reasonable hours to show the same to other persons who may be interested in renting or buying the property, and for the purpose of inspecting the premises and to make such repairs as Lessor may deem necessary for the protection and preservation of the said building and premises; but Lessor is not bound to make any repairs whatsoever, nor to be held liable for any damage in consequence of leaks, or for defects about the building and premises, the Lessee having examined the same and being satisfied therewith; but should such leaks, obstructions, freezing, stoppages, or other defects about the building and premises occur during the term of this lease, or while the Lessee is occupying the premises, then the Lessee shall remedy the same promptly at the Lessee’s expense unless the Lessor by written agreement undertakes to do the same (except as provided in Paragraph 38 hereof).

Paragraph thirty-eight of the lease, entitled “Repair,” stated as follows,

[T]he Lessor is to make necessary repairs to roof, roof structure, exterior walls and foundations, after notice from Lessee of the need for such repairs.... It is further agreed and understood that all other repairs including, but not limited to exterior doors to the property herein leased are to be made by the Lessee, and all labor and material used by it in making any repairs or permitted alterations will be paid for promptly by Lessee....

The Sublease, under paragraph four entitled “Assumption Agreement and Covenants” stated as follows, “Lukács hereby assumes and shall faithfully and promptly make all payments and perform all obligations and duties imposed on Food Giant as ‘Lessee’ under the Lease, including without limitation, any obligations to maintain and repair the Leased Premises.... ” Furthermore, the Sublease stated that Lu-kács inspected the premises and accepted it “AS IS.”

¶ 4. Mattiace was in the business of managing property and in furtherance of this business entered into a management agreement (Agreement) on April 1, 1999, with the owner of the Plaza to manage three properties (collectively referred to as the “Property”), one of which being the Plaza. As part of its duties, Mattiace was generally responsible for leasing the various spaces located within the Property, preparing monthly and yearly budgets, collecting rent when due, and keeping the Property in a general state of repair. Specifically, the Agreement stated that “[t]he Manager shall .... hire, pay, supervise and discharge engineers, janitors and other personnel required to maintain and operate the Property.”

¶ 5. Mark McCormack was employed by Mattiace as the property manager for the Plaza. He stated in an affidavit that Mat-tiace was not responsible for making repairs to, or maintaining the interior of, Returns or for providing janitorial services for Returns. However, prior to Lukács occupying the space, but while the space was still demised under the Lease, Matti-ace did replace missing and broken tiles inside the space, swept and mopped the floors of the space, and made some plumbing repairs. McCormack stated this was done strictly to facilitate Lukacs’s occupancy. Also, there was testimony that McCormack routinely inspected the Plaza, to include the inside and outside of the Returns space, and conducted one such inspection during the interval between the time Food Giant vacated the space and the time Lukács opened Returns.

¶ 6. On September 12, 2002, Wagner was shopping at Returns and found a piece of furniture that caught her eye. Backing up to gain a better view of the item, she tripped and fell backwards to the floor, striking her head as she landed. Wagner alleges that the cause of her fall was a ridge on the ground that consisted of a buildup of wax, soil, and grease that was formed between the shelving units employed by Food Giant during their use of the space. Twenty of these ridges were scattered throughout Returns, and each ridge was approximately eight feet long, two inches wide, and one-quarter of an inch thick.

¶ 7. Frances and Morris Wagner brought suit, the latter under a loss of consortium claim, on December 31, 2002. In her complaint, Wagner set forth claims of negligence against Mattiace, Food Giant, and the Lukács, d/b/a/ Returns. After Wagner settled with both Food Giant and the Lukács, the Circuit Court of Panola County entered a final judgment on October 19, 2004, dismissing both aforementioned parties with prejudice. Several months later, on March 14, 2005, Mattiace filed its motion for summary judgment and alleged that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Obviously in agreement with Mattiace, the Circuit Court of Panola County entered an order granting summary judgment for Mattiace on June 30, 2005. Wagner filed a motion to alter or amend the judgment on July 11, 2005, which was denied. Wagner then filed her notice of appeal on August 11, 2005.

¶ 8. On appeal, Wagner contends that the lower court erred in, (1) “holding that a negligent party may avoid liability for its negligent acts by later repudiating the duty which it had already breached,” (2) “finding that [Mattiace], after assuming a duty to make repairs to a building’s floor and after breaching its duty by negligently repairing the floor, can absolve itself of future responsibility for its previous negligent repair by abdicating its assumed duty,” and (3) “finding that Mattiace’s duty to maintain the property only applied to the outside of the property” when the Agreement did not explicitly contain such a limitation.

STANDARD OF REVIEW

¶ 9. Our review of summary judgments is de novo. Lyons v. Biloxi H.M.A., Inc., 925 So.2d 151(¶ 13) (Miss.Ct.App.2006). A motion for summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The movant carries the burden of showing that no genuine issue of material facts exists. Cothern v. Vickers, Inc., 759 So .2d 1241(¶ 6) (Miss.2000). Once the movant has met his burden, the nonmovant must show by affirmative evidence that a genuine issue of material fact does, indeed, exist. Id. The evidence must be viewed in a light most favorable to the non-movant. McMillan v. Rodriguez, 823 So.2d 1173(¶ 9) (Miss.2002). Furthermore, “the non-movant should be given the benefit of every reasonable doubt.” Cothern, 759 So.2d at (¶ 6).

ISSUES AND ANALYSIS

I. WHETHER MATTIACE HAD A CONTRACTUAL DUTY TO REMOVE THE SUBSTANCE THAT ALLEGEDLY CAUSED WAGNER TO FALL.

¶ 10. Wagner’s first point of error is that the lower court erred in finding that Mattiace had no contractual duty to maintain the interior of the space where Returns was located. The lower court opined that the language of the Agreement specifying that Mattiace was to “hire, pay, supervise and discharge engineers, janitors and other personnel required to maintain and operate the Property” notwithstanding, the Lease between the owner and Food Giant in combination with the Sublease between Food Giant and Lukács showed that Mattiace had no contractual duty to maintain the interior of Returns. We agree.

¶ 11. In order to succeed in a negligence action, the plaintiff must prove, through sufficient evidence, the conventional tort elements of duty, breach of said duty, proximate causation, and injury. McFarland v. Leake, 864 So.2d 959(¶ 7) (Miss.Ct.App.2003). Therefore, to rebut the movant’s claim of a lack of any genuine issue of material fact, the nonmovant must bring forth supportive evidence of significant and probative value which shows the movant breached an established duty, and that the breach was the proximate cause of the non-movant’s injury. Id. Whether a duty exists is a question of law. Brown v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129(¶ 9) (Miss.2003).

¶ 12. The Agreement stipulated that Mattiace was to hire and supervise those individuals needed to “maintain and operate the Property.” This document alone may indicate that Mattiace had a duty to not only maintain the exterior of the Plaza, but also the interior of the individual spaces within the Plaza, which we do not address. Whatever duty burdened Matti-ace as a result of the Agreement was narrowed, as to the space Returns occupied, by the Lease and Sublease.

¶ 13. An agent steps into the shoes of his principal and is his principal’s alter ego. Aladdin Const. Co., Inc. v. John Hancock Life Ins. Co., 914 So.2d 169(¶ 10) (Miss.2005). The supreme court has held that “a lease ‘operates as a demise or conveyance of the property’ ” for the duration of the lease. Skelton v. Twin County Rural, 611 So.2d 931, 936 (Miss.1992) (quoting Hurst v. English, 357 So.2d 132, 134 (Miss.1978)). As Mattiace was the owner’s agent, Mattiace stepped into the shoes of the owner, whose duties with respect to the Returns’ space were detailed in the Lease. The Lease stated that “the Lessor is not bound to make any repairs whatsoever” other than repairs relating to the roof, roof structure, exterior walls, and foundation. The Lease went on to state that the lessee was responsible for all other repairs. Lukács accepted these duties and responsibilities through his entrance into the Sublease. Thus, even if the Agreement instilled a duty to maintain the interior of the Returns’ space, the Lease and Sublease relieved the lessor of such duties while the Lease was in effect.

¶ 14. Wagner further argues that, if Mattiace did not have a contractual duty to maintain and repair the interior of the space, there would be no reason for McCormack to inspect the interior. The Lease did reserve to the lessor, i.e., the owner, and in accordance with the familiar principle of agency law stated above, Mat-tiace, the right to enter and inspect the property, but this can hardly be interpreted to stand for the notion that as a result of this reservation the lessor retained a duty to keep the interior of the space in repair. To say otherwise would place the lessor in the unenviable position of leasing his property without reserving this right of inspection for fear that the lessor would be liable for harm resulting from any defects of the premises as the lessor would have a duty to repair all defects. In effect, the lessor would be leasing blind, never able to ensure the condition of his investment.

¶ 15. It would insult logic to say that the owner would intend to instill in Matti-ace a duty to repair and maintain the interior of a space within the Plaza when the owner previously placed that duty with the lessee. It makes no difference how the Agreement between the owner and Mattiace is interpreted, the duty to maintain and repair the interior of the space where Returns was located had been squarely placed with a lessee, in this case Lukács, since 1975. As such, Mattiace can not be said to have had a contractual duty to remove the substance on the floor of Returns that allegedly caused Wagner to fall and injure herself. Therefore, there being no genuine issue of material fact, we hold that Mattiace was not under a contractual duty to maintain or repair the interior of the Returns space, generally, or remove the substance which allegedly caused Wagner’s injuries, specifically.

II. WHETHER MATTIACE ASSUMED A DUTY TO REMOVE THE SUBSTANCE WHEN IT MADE SOME INTERIOR REPAIRS AND HIRED A CLEANING COMPANY.

¶ 16. Wagner next argues that even if Mattiace did not have a contractual duty to remove the substance, it assumed such a duty when it made some repairs and hired a cleaning crew for the space prior to Returns opening for business.

¶ 17. Wagner cites Rein v. Benchmark Constr. Co., 865 So.2d 1134 (Miss.2004), for the proposition that when determining if a duty exists, an important component of the inquiry is whether the injury at hand was reasonably foreseeable. While that question is paramount in determining if a duty exists, Rein and other precedents show that foreseeability is not a factor to consider when determining if a duty is voluntarily assumed, as is the issue here.

¶ 18. The facts of Rein show that Mrs. Rein was bitten by fire ants while lying in her bed at Silver Cross Nursing Home and died of her injuries three days later. Rein, 865 So.2d at 1137. Her husband and son sued Silver Cross, Benchmark Construction Co., Ace Pest Control, and two landscaping companies, one of which being Growin Green Landscape, Inc. Id. Benchmark was hired by Silver Cross to build its facility and the Reins alleged that it failed to correctly construct the Silver Cross facility in that faulty site preparation, the condition of the fill dirt used, and the construction of the building itself caused moisture to build up. Id. at 1137-38. The Reins further alleged that this moisture attracted ants and other insects which caused the death of Mrs. Rein. Id. at 1137.

¶ 19. The plaintiffs also sued Growin Green. Id. at 1139. Growin Green was under contract with Silver Cross until one month prior to Mrs. Rein’s death. Id. While current, the contract provided for initial landscaping and continued maintenance of Silver Cross’s grounds, but the contract was silent as to fire ant treatment or control. Id. The Reins contended that the contract instilled in Growin Green an obligation to treat for ants and provide advice on fire ant control. Id. at 1140. Alternatively, the Reins urged that even if no contractual duty existed, Growin Green assumed such a duty when Growin Green did make some effort to control ants on the grounds in order to protect Growin Green’s equipment. Id. Growin Green countered that there was no contractual or assumed duty to control the fire ants, and even if there was an assumed duty that duty must be limited by the extent of the undertaking. Id. The Rein court found for Benchmark as the death of Mrs. Rein was deemed to be not reasonable foreseeable. Id. at 1146. In holding in favor of Growin Green and finding that it did not assume a duty, the supreme court analyzed the facts surrounding Growin Green’s involvement in Silver Cross’s apparent ant problem as opposed to the foreseeability of harm. Id. The supreme court further noted that “Silver Cross was not induced to forgo other methods of pest control in reliance on any assumed duty by Growin Green.” Id. at 1147. Furthermore, the Rein court stated that even if Growin Green had assumed a duty to treat and control fire ants, the liability imposed must be limited to the undertaking they allegedly assumed. Id. This theory was asserted by Growin Green through authority from other jurisdictions. Id. at 1140-41. See, e.g., Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085 (Pa.Super.Ct.1997) (salting one portion of the parking lot is not an undertaking to salt it all).

¶20. Requiring a showing of reliance on the part of the injured individual to impose liability for an assumed duty is not a new concept in this State. Over five decades ago, the supreme court held in Higgins Limber Co. v. Rosamond, 217 Miss. 1, 63 So.2d 408 (1953), that an agent could be held to a duty of reasonable care for a gratuitous undertaking if the plaintiff relied upon the agent’s performance. The Fifth Circuit applied Higgins in Coleman v. Louisville Pants Corp., 691 F.2d 762 (5th Cir.1982), in finding that Mississippi law only imposes a duty of care for a gratuitous or voluntary undertaking if the plaintiff detrimentally relied on the defendant’s undertaking. In Coleman, the employer attempted to secure benefits for his employees under the Trade Act of 1974 by mailing a petition to the employees’ union, who was then supposed to send it to the Secretary of Labor. Coleman, 691 F.2d at 763-64. The union claimed it never received the petition, and the employees ended up losing their benefits. Id. at 764. The employees then brought suit against their former employer alleging the employer breached a voluntarily assumed duty to correctly file the petition. Id. at 766. In finding for the employer, the Fifth Circuit held that the employees failed to show that they relied or knew about the employer’s attempt. Id.

¶ 21. This issue was also addressed by the supreme court in Century 21 Deep South Properties v. Corson, 612 So.2d 359, 368-69 (Miss.1992). There, a real estate agency was not found liable when they gratuitously promised a non-client they would perform a title work update and fulfilled that limited duty. Corson, 612 So.2d at 368. The Corson court stated, “Century 21 owed the Corsons a duty to use care in obtaining this update or to give notice that it would not obtain the update while the Corsons had other means available to obtain the update.” Id. Higgins, Corson, and Rein show that in order for a party to be held liable for negligent performance of a gratuitous or voluntary act, the plaintiff must show detrimental reliance on the performance. Furthermore, the negligent party can only be held liable to the extent of the gratuitous undertaking.

¶ 22. With that legal framework in mind, we now turn to the facts at hand. In citing Rein, Wagner asserts that Matti-ace is analogous to Benchmark in that if the injury Wagner suffered was reasonably foreseeable, a duty existed or was assumed by Mattiace to remove the substance that allegedly caused the injury. As our precedent shows, whether a party assumed a duty must be determined by the individual facts of the case and the existence or absence of detrimental reliance on that assumed duty. Therefore, Mattiace is more correctly compared to Growin Green rather than Benchmark. The distinction between the two is the difference between an existing duty to use a standard of care and the extension of that duty to encompass those injuries that are reasonably foreseeable (Benchmark), and a gratuitous assumption of a duty not previously in existence and detrimental reliance on that assumed duty (Growin Green).

¶ 23. It is undisputed that Matti-ace made some repairs to the interior of the Returns space, namely it replaced some broken tiles, repaired some leaks in the plumbing, and swept and moped the floor to remove loose debris, in order to facilitate Lukacs’s occupancy of the store. There was testimony from Lukács that Mattiace also hired a professional cleaning company to further clean the space prior to Lukács opening for business. Lukács also testified that he asked about removing the substance on the ground when the tiles were being repaired and was told that Mattiace would not remove them. Even assuming that Mattiace assumed a duty to generally clean the interior of the Returns space in order to facilitate Lukacs’s opening of the store, it can not be said that Mattiace assumed a duty to remove the substance. Any liability incurred by Mat-tiace must be limited to the duty it undertook, i.e., generally clean the space (not to include the substance), repair broken tile, and repair certain plumbing fixtures. Wagner did not allege that breach of any of these assumed duties caused her injuries.

¶ 24. Even if Mattiace did gratuitously assume a duty to remove the substances from the Returns space, there is no evidence in the record indicating that either Lukács or Wagner detrimentally relied on that voluntarily incurred duty. Despite this lack of evidence, Wagner argues that once Mattiace assumed a duty to remove the substance they could not then relinquish their duty to complete the task once they had already breached said duty by not removing the substance. Restatement (First) of Agency § 378 (1933), quoted with approval in Higgins, 63 So.2d at 410, states in Comment b as follows,

The fact that one has gratuitously promised another to do an act does not of itself create a duty to perform it, nor does the giving of the service create a duty to continue the service. Unless there is consideration for the undertaking, the duty to perform is created only where performance is necessary in order to protect the other from the harm to his interests which otherwise would result from his reliance upon the performance .... Likewise, a gratuitous promi-sor may at any time terminate his duty to act by giving notice of his intention not to continue, unless before such time the promissee has changed his position in reliance upon his belief in or expectation of performance by the promisor....

In contradiction to Wagner’s argument, it is obvious that if Mattiace did, in fact, assume a duty to remove the substance, it could have relieved itself of such a duty at any time, unless Lukács changed his position in reliance on said duty. As is evident from his own testimony, Lukács was aware that Mattiace did not intend to remove the substance from the time Mattiace had the broken tiles replaced, and he had two years from the time he learned this to the time of Wagner’s accident to remove the substance himself, as was his duty under the Lease, Sublease, and common law of this State. It can hardly be said that Lukács changed his position to his detriment in reliance of Mattiace’s actions. Applying the facts in a light most favorable to Wagner, and affording Wagner every reasonable doubt, we find that there is no genuine issue of material fact, and hold that, as a matter of law, Mattiace did not assume a duty to remove the substances from the floor of the Returns space.

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

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

      . Certain terms and conditions of the Lease were not made a part of the Sub-lease. None of which are pertinent to the case sub judice.


text:
    Sheila Knight STINSON, Appellant v. Steven G. HALL and Karen P. Hall, Appellees.
    No. 2005-CA-00469-COA.
    Court of Appeals of Mississippi.
    Sept. 12, 2006.

      Gary Goodwin, Columbus, attorney for appellant.
    Steven R. McEwen, Columbus, attorney for appellees.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On January 4, 2002, Sheila Stinson filed a complaint in the Lowndes County Chancery Court against Steven Hall and Karen Hall (the Halls), asking the court to declare a property transaction between her and the Halls null and void. Specifically, Stinson asked the court to declare a deed absolute to be a mortgage. After a trial, the chancellor, in his ruling on February 10, 2005, found the deed to be one absolute and not a mortgage, denied Stin-son relief and dismissed the case with prejudice. Aggrieved, Stinson appealed to this Court asserting two issues: (1) the chancellor erred in ruling that she failed to show by clear and convincing evidence that the instrument in question was a mortgage and not a deed absolute and (2) the chancellor erred in refusing to impose a constructive trust. Finding no error, we affirm.

FACTS

¶ 2. Stinson and her late husband were friends with the Halls. Mr. Hall had sold Mr. Stinson a life insurance policy and also helped Mrs. Stinson invest the proceeds from the policy after Mr. Stinson’s death in 1990. In early 1997, Mr. Hall learned Stinson was having financial problems and offered to help her by providing her financing to consolidate her mortgage debt and credit card debt. At the time Stinson owed around $16,800 on her land, which consisted of a 105 acre farm and residence. The Halls borrowed money and put up their own property as collateral in order to lend approximately $23,000 to Stinson. The parties executed a promissory note, a land deed of trust and an option to purchase real estate. All three documents were executed on February 21,1997.

¶ 3. After making six payments to the Halls, Stinson defaulted on the loan in late 1997. Stinson agreed to sell her property to the Halls via warranty deed dated November 4, 1997. In consideration for the land, the Halls cancelled Stinson’s debt and paid other debts accumulated by Stin-son, including unpaid taxes and credit card debt. As part of the consideration, the Halls promised to allow Stinson and her parents to live on the property under certain conditions. On her 1997 tax return, Stinson reported the transaction as a sale.

STANDARD OF REVIEW

¶ 4. This Court has a limited standard of review in examining and considering the decisions of a chancellor. Ellison v. Meek, 820 So.2d 730, 734(¶ 11) (Miss.Ct.App. 2002). “When reviewing a chancellor’s decision, we will accept a chancellor’s findings of fact as long as the evidence in the record reasonably supports those findings. In other words, we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied.” Peagler v. Measells, 743 So.2d 389, 390(¶ 6) (Miss.Ct. App.1999). “The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony.” Ellison, 820 So.2d at 734(¶ 11). The standard of review for questions of law is de novo. Id.

DISCUSSION

I. DID THE CHANCELLOR ERR IN RULING THAT STINSON FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE INSTRUMENT IN QUESTION WAS A MORTGAGE AND NOT A DEED ABSOLUTE?

¶ 5. In her first issue on appeal, Stinson argues that the chancellor erred in ruling that she failed to show by clear and convincing evidence that the instrument in question was a mortgage and not a deed absolute. “A deed absolute on its face may be found valid and effectual as a mortgage, if it were intended by the parties ‘to operate as a security for the repayment of money.’” Harris v. Kemp, 451 So.2d 1362, 1364 (Miss.1984). In order to prove that a deed was intended as a mortgage, the evidence must be clear and convincing. Id. Although there is no conclusive test to administer in determining whether a transaction was a mortgage rather than a deed absolute, the supreme court has noted helpful factors: the relation of the parties, the financial condition of the grantor, the property’s value, possession by the grantor, the conduct of the parties, the payment of taxes, any subsequent dealings between the parties and whether the debt has been extinguished by agreement of the parties. Id. at 1365. Furthermore, if the grantor retains possession of the property, parol evidence may be introduced to prove that the absolute deed was intended as a mortgage. See Miss.Code Ann. § 89-1-47 (1972).

¶ 6. From the record, it is clear that Stinson has failed to meet her burden in establishing that the deed was intended to be a mortgage. Stinson testified that there was no agreement between her and the Halls where she would be remain liable to them for any debt after the sale and conveyance of her property on November 4, 1997. Dick Rollins, Stinson’s CPA, testified that she told him that she had sold her property. Stinson declared the transaction to be a sale on her 1997 income tax return. Stinson did not inquire about the possibility of repurchasing the land until several years after the transaction. The Halls allowed Stinson and her parents to remain in the house, and Stinson referred to herself as the Halls’s tenant.

¶ 7. There was some discrepancy in the record as to who paid the property taxes, the home insurance and the phone bill. Both parties asserted that they paid these bills, but the record gives more support to the Halls. Included in the record is a list of expenditures paid by the Halls on behalf of Stinson. The list includes a monthly phone bill, property taxes, federal and state taxes, home insurance and even car insurance. A copy of a check for $985 from Stinson to the Halls was included in the record. The check was remitted to the Halls in September 2001, and that is the only evidence of payment by Stinson. More importantly, Stinson was not under the assumption that she owed the Halls any money on a debt secured by the deed. The Halls also rented part of the property to Dwight Colson. Colson gave his rent checks to Stinson who then turned the checks over to the Halls.

¶ 8. We cannot find that the chancellor erred in determining that Stinson failed to prove by clear and convincing evidence that the deed was intended as a mortgage. This issue is without merit.

II. DID THE CHANCELLOR ERR IN REFUSING TO IMPOSE A CONSTRUCTIVE TRUST?

¶ 9. In her other issue, Stinson argues that the chancellor should have determined that she had a right to redeem her property and then impose a constructive trust for her benefit upon the legal title of the property. A constructive trust arises in order to prevent unjust enrichment by a person gaining property which rightfully belongs to someone else. McNeil v. Hester, 753 So.2d 1057, 1064(¶ 24) (Miss.2000). The supreme court has defined a constructive trust as follows:

A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1034 (Miss.1990) (citing Sojourner v. Sojourner, 247 Miss. 342, 353, 153 So.2d 803, 807 (1963)). A chancellor may construct a trust for the benefit of the party whose confidence has been abused. Davidson v. Davidson, 667 So.2d 616, 620 (Miss.1995). The existence of a constructive trust must be proven by clear and convincing evidence. McNeil, 753 So.2d at 1064(1125).

¶ 10. We do not find that the chancellor should have imposed a constructive trust after determining that the warranty deed was valid. Furthermore, we do note that Stinson, during questioning, stated numerous times that she did not think the Halls had treated her badly or forced her into signing the warranty deed or any other documents. This issue is without merit.

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

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

      . The day after filing her complaint Stinson married Ronnie Ray. For clarity we will refer to her by Stinson as it was her name during the events leading up the filing of the suit.


text:
    Tony Terrell BUNTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00749-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.
    George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On Monday evening, March 12, 2001, Tony Terrell Bunton and Gwendolyn Davis Scott smoked crack cocaine and engaged in sexual activity in an alleyway next to Jimmy Davis pool hall in Bolton, Mississippi. Scott’s lifeless body was found the in the alleyway the next morning. She had suffered numerous traumatic injuries, including lacerations to her jugular vein and carotid artery.

¶ 2. On July 23, 2001, Bunton was indicted by a Hinds County grand jury for Scott’s murder. During the jury trial, Bunton testified that he pushed and slapped Scott because she knocked a piece of crack cocaine out of his hand. When Scott swung back at Bunton, he picked up a beer bottle, broke it, and stabbed her in the neck. Bunton further testified that he was responsible for Scott’s death.

¶ 3. The jury found Bunton guilty of the lesser offense of manslaughter, and on January 9, 2004, the Circuit Court of Hinds County entered an order sentencing Bunton to serve twenty years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Bunton appeals. Finding no error, we affirm.

ANALYSIS

¶ 4. In his brief filed with this Court, Bunton’s attorney cites Lindsey v. State, No. 2003-KA-00331-SCT, 939 So.2d 743, 2005 WL 613396 (Miss. Mar. 17, 2005) and asserts that he has “diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could can [sic] be presented to the court ... in good faith for appellate review, and upon conclusion, has found none.” Bun-ton’s attorney further asserts the following:

2. The matters considered, reviewed and included in counsel’s search were: (a) the reason for Mr. Bun-ton’s arrest and the circumstances, interrogation, search and seizure surrounding the arrest; (b) any possibility of violations of Mr. Bunton’s right to counsel; (c) the entire trial transcript and the transcript of Mr. Bunton’s pretrial motion hearing; (d) all of the rulings of the trial court; (e) any possible prosecutorial misconduct; (f) all of the jury instructions offered, granted and refused (g) all exhibits, whether admitted into evidence or not, and the evidentiary foundation, relevance, and chain of custody; (h) the consideration of any misapplication of the law in sentencing (i) the indictment and all of the pleadings in the record [sic] and (j) any possible ineffective assistance of counsel issues.
3. Counsel further confirms that he has, as of the date of filing this brief, mailed by first class mail, postage prepaid, a copy of this brief and correspondence informing Mr. Bun-ton that counsel finds no arguable issues in the record and that Mr. Bunton has a right to file a pro se brief.
4. Counsel for appellant requests that the Court grant Mr. Bunton 30 days of additional time in which to file a pro se brief if he desires to do so.
5. Counsel stands ready to prepare supplemental memoranda of law on any issues requested by the court.

¶ 5. Pursuant to Lindsey, if Bunton files a pro se brief raising “any arguable issue” or if this Court discovers “any arguable issue” during our review of the record, then “if circumstances warrant, this Court must require counsel for the appellant to file supplemental briefing ‘regardless of the probability of the defendant’s success on appeal.’ ” McClain v. State, 928 So.2d 210, 211(¶ 6) (Miss.Ct.App.2006) (citing Lindsey, No. 2003-KA-00331-SCT, 939 So.2d at 748(¶ 18)).

¶ 6. As of this date, this Court has not received any supplemental filing by Bun-ton. Furthermore, after thoroughly reviewing the record, we have found no arguable issues for our review. Therefore, in lieu of any error which warrants reversal, we must affirm. Id. at (¶ 8) (citing Eaton v. State, 913 So.2d 413, 416(¶ 6) (Miss. Ct. App .2005)).

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: BARNES, J.,

text:
    Clemie L. LEA, Administratrix of the Estate of Bernard Johnson, Deceased, Appellant v. Rachel ALMORE, Appellee.
    No. 2005-CA-00357-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.

      Melvin G. Cooper, Biloxi, attorney for appellant.
    Joseph P. Hudson, Gulfport, Malcolm F. Jones, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Clemie L. Lea appeals the judgment of the Chancery Court of Harrison County in favor of Rachel Almore. The chancery court admitted to probate the typed will of Bernard Johnson; appointed Rachel' Al-more administratrix of the Estate of Bernard Johnson; and dissolved a temporary restraining order, thereby paying Rachel Almore life insurance proceeds held by the Clerk of the Harrison County Chancery Court. On appeal, Lea argues that the beneficiary designation form for Johnson’s Federal Employees’ Group Life Insurance policy is invalid because it was improperly witnessed. Specifically, Lea argues that a witness to Johnson’s signature, required pursuant to federal regulation, should have been physically present when Johnson signed this form naming Almore as beneficiary. We find that the trial court did not err in pronouncing Johnson’s beneficiary designation form valid, and thus releasing his life insurance proceeds to named beneficiary Almore. Accordingly, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 27, 2003, Bernard Johnson died in Gulfport, Mississippi at the age of fifty-two from lung cancer which had metastasized to his liver. At his death, Johnson’s assets included a house, its contents, and a 1996 Dodge Intrepid. He also carried a $240,000 Federal Employees’ Group Life Insurance (FEGLI) policy. He had designated his girlfriend, Rachel Almore, as beneficiary five days before his death.

¶ 3. This matter commenced in the chancery court on August 25, 2003, when Cle-mie L. Lea, Johnson’s mother, filed a petition to determine heirship and a petition for letters of administration claiming her son died intestate. The court appointed her administratrix of Johnson’s estate. On September 25, 2003, Almore filed her own petition for letters of administration and produced a typewritten will which left Johnson’s house, its contents, and his car to her. On September 30, 2003, Lea filed a complaint to set aside the will, and this litigation ensued.

¶ 4. Johnson and Almore lived together as “man and wife” for fifteen consecutive years, first in Greenwood, Mississippi in 1988 and then on the Mississippi Gulf Coast. At the time of his death, Johnson’s debts totaled $132,331.47, including two mortgages totaling $94,710 for his home in Gulfport, which he had purchased in 1994 and where he had lived with Almore. At his death, Bernard Johnson was not married, nor did he have any children. Both Johnson and Almore were married to others when they started dating, but Johnson obtained a divorce around 1988. Almore had been estranged from her former husband since 1982. Although Almore had filed for divorce, it was not finalized until after Johnson’s death. In 1991 Johnson and Almore moved to the Gulf Coast so that Johnson could take a job at the Veterans Administration Hospitals. Prior to his death, Johnson had been a vocation rehabilitation specialist, and Almore worked at the Armed Forces Home as a certified nursing assistant. Johnson held many federal employee benefits with his job, including a group life insurance policy, as did Almore.

¶ 5. On May 19, 2003, Johnson became ill and was hospitalized in Gulfport, Mississippi. On May 20, 2003 he was diagnosed with lung cancer and began treatment at hospitals in Jackson and the Gulf Coast. On July 22, 2003, as his health deteriorated, Johnson called his co-worker at the Veterans Administration Hospital, Marsha Garrett, to help him get his affairs in order, which she did. Four days later, on July 27, 2003, Johnson passed away.

¶ 6. During the contest over Johnson’s will, the issue of the life insurance proceeds came up peripherally, first in Rachel Almore’s deposition, and later at trial. Lea alleged after Louise Roberts’s testimony at the April 13, 2004 hearing that the life insurance beneficiary form may have been improperly witnessed. Lea contended the designation was invalid, and she, not Almore, should receive the benefits under the order of precedence stated in 5 U.S.C. § 8705(a) (2006).

¶ 7. According to testimony, the designation of beneficiary form was signed in the following manner. Five days before Johnson’s death, on July 22, 2003, Garrett procured several designation forms relating to his federal benefits, per Johnson’s request, and took them to his home. Garrett witnessed Johnson’s signature on several documents, including the FEGLI designation form, according to his instruction. It is in this form that Johnson named Almore as beneficiary of his life insurance policy. Since two witnesses were needed for his life insurance designation form, Johnson instructed Garrett to take the form, along with other papers, to Louise Roberts, a coworker at the Veterans Administration Hospital who is a notary. Johnson then telephoned Roberts to ask her to notarize his will, as well as witness his signature on the various federal designation forms. Garrett delivered the will and paperwork to Roberts at the VA Hospital. Roberts then signed as the second witness on the beneficiary form. Garrett confirmed to Roberts that she had seen Johnson sign the will and designation forms the prior day. Roberts stated she recognized Johnson’s signature on the VA papers. Roberts also testified that in the past she had conversations with Johnson regarding his intent to financially support Almore in the event of his death.

¶ 8. Upon Johnson’s death, Almore was paid the $240,000 life insurance proceeds. On April 15, 2004, Lea filed a motion for a temporary restraining order regarding the life insurance proceeds. The chancellor granted the temporary restraining order. The balance of the life insurance proceeds was deposited into the registry of the Chancery Court of Harrison County by agreed order on May 4, 2003.

¶ 9. On February 4, 2004, the chancery court dissolved the temporary restraining order, releasing the funds to Almore. Aggrieved, Johnson’s mother Lea filed this appeal. We hold that the chancery court did not err in interpreting 5 U.S.C. § 8705(a) (2006) or 5 C.F.R. § 870.802(b) (2006). Thus, we find Almore is the proper beneficiary of Johnson’s life insurance policy.

STANDARD OF REVIEW

¶ 10. A de novo standard is used to analyze the chancery court’s interpretation and application of law. Nichols v. Funderburk, 883 So.2d 554, 556 (¶7) (Miss.2004).

ISSUES AND ANALYSIS

¶ 11. Although not raised by the parties, this Court’s first responsibility is to assure itself that we have jurisdiction over these proceedings. M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss.2006). Though the issue of the life insurance policy was not pled initially, the group life insurance policy became part of Lea’s claims by ore terms motion of her attorney. During the hearing on April 13, 2004, the chancellor stated that this issue has been “raised and approved by the Court.” In his final judgment, which resolved all outstanding claims of the parties, the chancellor approved the validity of Almore as designated beneficiary of Johnson’s life insurance policy. Thus, this issue received final adjudication from the chancery court required under M.R.C.P. 54(b). It follows that jurisdiction is proper in this Court.

¶ 12. Lea raises three issues on appeal: first, whether Congress intended courts to strictly construe 5 U.S.C. § 8705(a); second, whether Johnson’s designation form was valid when the second person signing as a witness did not actually view the insured signing the form; and third, whether Louise Roberts’s witness signature establishes her as a “presence witness” under 5 U.S.C. § 8705(a) and 5 C.F.R. § 870.802 (2006). Central to each of Lea’s arguments is whether the life insurance beneficiary form was properly witnessed according to 5 C.F.R. § 870.802(b), when the second witness was not physically present when Johnson executed the beneficiary form. Thus, we will combine Lea’s issues for discussion.

¶ 13. Federal statute specifically dictates the order of precedence whereby a beneficiary who presents a valid claim shall be paid FEGLI life insurance benefits upon the federal employee’s death. 5 U.S.C. § 8705(a). The order of precedence states, upon the establishment of a valid claim, if there is no designated beneficiary, and the decedent has no widow or children, the decedent’s surviving parents receive the life insurance proceeds. 5 U.S.C. § 8705(a). If the employee wishes to designate a beneficiary different from the order of precedent, he must properly fill out and file a designation of beneficiary form. 5 C.F.R. § 870.802(a). To be valid, “[a] designation of beneficiary must be in writing, signed by the insured individual, and witnessed and signed by two people.” 5 C.F.R. § 870.802(b).

¶ 14. Lea argues that the chancery court misinterpreted case law regarding the above statute and regulation. There is no dispute that the few cases pertaining to this issue clearly establish that Congress intended courts to strictly construe the beneficiary designation statute regarding FEGLI life insurance. Stribling v. United States, 419 F.2d 1350, 1354 (8th Cir.1969); Metro. Life Ins. v. Smith, 727 F.Supp. 234, 237-38 (W.D.N.C.1989); Adams v. Macy, 314 F.Supp. 399, 401 (D.Md.1970); Pekonen v. Edgington, 298 F.Supp. 158, 159 (E.D.Cal.1969). However, Clemie Lea contends that “strictly construed” means both witnesses must be physically present when the insured signs the FEGLI designation form in order for it to be valid. This Court disagrees.

¶ 15. Factually, neither party disputes that one witness, Louise Roberts, was absent when Johnson signed his FEGLI designation form. Lea claims that the chancery court misinterpreted two cases which dealt with the relevant statute and regulation, Metro. Life Ins. v. Smith, 727 F.Supp. 234 (W.D.N.C.1989) and O’Neal v. Gonzalez, 653 F.Supp. 719 (S.D.Fla.1987). Lea states these cases hold that the witnesses must be physically present while the insured executes the FEGLI form in order for it to be valid. However, contrary to Lea’s interpretation, these two cases explicitly hold either a presence requirement or an oral acknowledgment by the witnesses of the insured’s signature is sufficient under 5 C.F.R. § 870.802(b). Smith, 727 F.Supp. at 237; O’Neal, 653 F.Supp. at 722.

¶ 16. In O’Neal, the insured did not sign his FEGLI designation form at the same time and in the physical presence of two witnesses. O’Neal, 653 F.Supp. at 721. There, it was unclear how the insured received the signature of the two witnesses. Id. at 721 n. 3. Nevertheless, both witnesses testified that the insured either signed the form in their presence or that they recognized the insured’s signature. Id. Thus, the court found the designation form valid. Id. at 723.

¶ 17. Similarly, in Smith, that court found the O’Neal case persuasive and specifically stated “the explicit language of 5 U.S.C. Section 8705(a) and of the regulations does not require the insured to sign the designation of beneficiary form in the presence of the persons designated as witnesses.” Smith, 727 F.Supp. at 237 (emphasis added). The Smith court referred to Black’s Law Dictionary to support its contention that the verb “witness” does not have a presence requirement but primarily means to subscribe for the purpose of attesting authenticity. Id. The court explained that in order for the witness requirement to be meaningful, “a person who is going to be a witness on a designation of beneficiary form either must be present when the insured signs the designation of beneficiary form or must receive at least an oral acknowledgment ...” that the insured signed the form. Id. (emphasis added). The Smith court found the insured’s form invalid because the persons acting as witnesses did not sign the form in the presence of the insured, and the insured did not acknowledge to the witnesses that he had signed the form. Id. at 238. Accordingly, we find that the only two applicable cases cited to us do not require the witness of a FEGLI form to be present if the insured acknowledges his signature to the witness.

¶ 18. Lea also makes a policy argument that Congress intended to create an inflexible rule for administrative convenience. See Metro. Life Ins. Co. v. Manning, 568 F.2d 922, 926 (2nd Cir.1977). However, a more stringent requirement of present witnesses would frustrate the dual Congressional purposes of the regulation: alleviating administrative difficulties with the insurance company and avoiding delays in payment to beneficiaries upon the death of the insured. O’Neal, 653 F.Supp. at 722. When the regulations do not provide for a given factual problem or error, courts have preferred a more commonsense approach in interpreting these regulations. See Metro. Life Ins. Co. v. Hurford, 983 F.Supp. 1045, 1047 (D.Ka.1997) (holding form designating “200%” of insurance proceeds to various beneficiaries in “strict compliance” with regulations); Terry v. Metro. Life Ins. Co., 354 F.3d 527, 528-29 (6th Cir.2004) (stating errors of incomplete signature and date did not invalidate form).

¶ 19. This Court agrees with the O’Neal court that a presence requirement for witnesses is unnecessary because the purpose of a witness is to establish the intent of the insured and make certain the insured voluntarily signed the form. O’Neal, 653 F.Supp. at 722. It is sufficient if the insured specifically tells the witnesses he signed the forms and intends to leave the proceeds to the named beneficiary.

¶ 20. Lea cites several cases where the designation forms were invalidated by the court. Yet, all of these cases contain an omission of an entire element of the statutory requirement. For example, in Metro. Life Ins. Co. v. Dillon, 291 F.Supp.2d 390 (D.Md.2003), the court invalidated the FEGLI designation form. Id. at 393. However, one of two witnesses’ signatures was entirely missing from the form. Id. at 391. Likewise, in Campbell v. Metro. Life Ins. Co., 812 F.Supp. 1173 (E.D.Ok.1992), the witness signature was missing. Id. at 1174. In Ward v. Stratton, 988 F.2d 65 (8th Cir.1993) there were no witnesses at all on a letter to change beneficiaries, and the insured’s information on the form was only partially filled out. Id. at 66.

¶ 21. These cases are distinguishable from the case at bar. In our case, the form is complete and the only issue is whether the second witness is required to be present upon execution. Testimony proves that Johnson expressed both his intent to the witnesses and that the witnesses knew Johnson and were familiar with his signature. There were no missing insured signatures, no missing witness signatures, and no ambiguous intent on the part of the insured. The designation form was completely and properly filled out. Johnson’s intent was clear when, on his deathbed, he requested his co-worker, Marsha Garrett, to obtain the necessary designation forms for his federal benefits and bring them to his home. After Garrett witnessed the forms and will, Johnson explicitly instructed Garrett to take the forms and will to Louise Roberts, another co-worker, to witness. Furthering his intent, Johnson called Roberts and told her he had some papers which he had signed. Garrett delivered the documents to Roberts in due course, and she witnessed them as requested by Johnson. Roberts testified she was familiar with and recognized Johnson’s signature on the forms. Finally, Roberts had numerous conversations with Johnson before he became ill, in which he expressed his intent to marry Rachel Al-more and financially provide for her. It is apparent from these facts that Bernard Johnson’s intended beneficiary was Rachel Almore, who properly received his life insurance proceeds.

¶ 22. Lastly, Almore argues that Lea waived any claim she may have had to the life insurance benefits by failing to exhaust administrative process concerning her competing claim. Almore points out that neither Johnson’s estate nor Lea individually filed any further affirmative pleadings challenging the designation of beneficiary form, except for the temporary restraining order. The Office of Personnel Management (OPM) has promulgated numerous regulations dealing with this issue of competing claims. In order to recover in equity on a FEGLI life insurance policy, the action must be brought against the life insurance company. 5 C.F.R. § 870.101 (2006). Any requests to reconsider an agency’s decision to pay life insurance proceeds must be made according to 5 C.F.R. § 870.105 (2006). Almore contends that the OPM has jurisdiction for adjudication of claims. Thus, Almore argues, by failing to submit a competing claim to the OPM, Lea failed to exhaust her administrative remedies and waived her right to make a claim on the life insurance proceeds. While this issue may have merit, this Court declines to analyze this issue as it is unnecessary to support an affirmance of the trial court order.

¶23. Accordingly, we find under the strict construction of 5 U.S.C. § 8705(a) and 5 C.F.R. § 870.802(b), Bernard Johnson’s FEGLI beneficiary designation form was valid in that it was properly signed by the insured and witnessed and signed by two other people. This Court finds that an oral acknowledgment by the insured as to his signature is sufficient. Therefore, the judgment of the trial court is affirmed.

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

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

      . Johnson's other federal benefits are not at issue in this appeal as the chancery court held Lea failed to plead these issues. Lea has not contested that ruling before this Court.

      . However, both parties agreed at the May 25, 2004 hearing that the life insurance proceeds would never become part of Johnson’s estate. The parties stipulated that the competing claims for the life insurance proceeds were between Almore and Lea individually based on the order of precedence.

      . Louise Roberts testified twice during the hearings — first as a witness for Lea and second as a witness for Almore. On redirect examination for Lea, Roberts testified Garrett brought the form to her; Johnson had signed it; and Garrett, not Johnson, asked her to sign it. However, during direct examination, Roberts did state Johnson telephoned her about witnessing his signature on a will in this same package of papers. Then, during her second testimony on direct examination for Almore, Roberts stated:
      Q: Now, did you later talk to Mr. Johnson in July of 2003?
      A: I believe he called me at work.
      Q: When he called you at work what did he tell you?
      A: He told me that Marsha [Garrett] was on the way to the office and that he had signed papers and asked me if I would notarize his will.
      Q: Did he ask you to witness the paperwork?
      A: Yes, sir.

      Q: If you would tell the Court what happened when Ms. Marsha Garrett brought you that documentation ... ?
      A: She [Garrett] brought the paperwork in and asked me to notarize the paperwork and when we looked over the insurance form we realized it did not need notarizing so I signed it as a witness.

      Q: Based upon your conversation that day with Mr. Johnson and based upon the representations that Ms. Garrett made too did you witness the life insurance beneficiary designation form?

      A: Yes, I signed as a witness.
      Q: By signing as a witness did you at that point indicate Mr. Johnson’s signature — did you verify that was his signature?
      A: He told me it was his signature.

      . Lea did not file any further affirmative pleadings regarding her competing claim to Johnson's FEGLI life insurance proceeds.

      . Even if an executed and filed will attempts to change the beneficiary, this act will have no effect on the beneficiary designated in accordance with this statute. See 5 U.S.C. § 8705(c).

      . The verb “witness” is defined as “[t]o subscribe one's name to a deed, will, or other document, for the purpose of attesting its authenticity, and proving its execution, if required, by bearing witness thereto.” Black's Law Dictionary 1603 (6th ed. 1990). Nowhere does this definition mention that the witness must “see” the execution of the signature.