author: ROBERTS, J.,

text:
    Vincent F. SALEMI, Jr., Appellant v. Sheila Hill SALEMI, Appellee.
    No. 2006-CA-01312-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2007.
    Rehearing Denied Jan. 8, 2008.
    Luther Putnam Crull, attorney for appellant.
    Rebecca Ryan Shappley Moutoux, attorney for appellee.

      Before MYERS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Vincent and Sheila Salemi divorced and executed a property settlement agreement. Nine years after the divorce, Vincent filed a M.R.C.P. 60(b)(6) motion for relief. Vincent specifically sought relief from the provisions of the property settlement agreement that addressed division of Vincent’s retirement benefits. In response, Sheila filed a motion to dismiss and claimed that Vincent’s motion for relief was untimely. The chancellor agreed with Sheila and dismissed Vincent’s motion. Vincent appeals and submits that the chancellor committed reversible error when he dismissed Vincent’s motion for relief. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 3, 1996, Vincent and Sheila Salemi received a divorce based on irreconcilable differences after approximately nineteen years of marriage. Vincent and Sheila executed a property settlement agreement, and the Desoto County Chancery Court incorporated that agreement into the divorce decree. This dispute focuses on the provisions of that property settlement agreement; particularly the portion of that agreement that addressed division of retirement benefits.

¶ 3. According to paragraph 7 of the settlement agreement Vincent and Sheila were to equally divide their retirement benefits as of the time of their divorce. The agreement specifically set forth:

Wife shall receive one-half (1/2) of the value of Husband’s pension through his employment with the United States Postal Service as of the date of the entry of the Final Decree of Divorce. Distribution of said pension shall be made according to the rules governing such pension plan as provided by the U.S. Postal Service. Further, Husband shall receive one-half (1/2) of the value of Wife’s Pension and Retirement plan, including her 401 (k), through her employment with Allen & O’Hara as of the date of the entry of the Final Decree of Divorce. Distribution of said retirement shall be made according to the rule governing such retirement plan as provided by Allen & O’Hara.

On October 31, 1996, the chancellor entered a Qualified Domestic Relations Order (QDRO) regarding Vincent’s pension. On November 7, 1996, the chancellor entered a QDRO in reference to Sheila’s 401(k) plan. Paragraph 7 of Sheila’s QDRO states:

Amount of alternate Payee’s Benefit: This Order assigns to alternate Payee an amount equal to fifty percent (50%) of the total value of the Participant’s 401(k) Plan as of the date of the entry of the Final Judgment of Divorce, which is September 3,1996.

On April 29, 1997, the chancellor entered an Amended QDRO in reference to Vincent’s retirement pension with the U.S. Postal Service. Paragraph 7 of the Amended QDRO stated:

Amount of Alternate Payee’s Benefit: This Order assigns to Alternate Payee an amount equal to fifty percent (50%) of the Marital Portion of the Participant’s Accrued Benefit under the Plan as the Participant’s Accrued Benefit under the Plan as the Participant’s benefit commencement date, or the Alternate Payee’s benefit commencement date, if earlier. The Marital Portion shall be determined by multiplying the Participant’s Accrued Benefit by a fraction (less than or equal to 1.0), the numerator of which is the number of months the parties were married while Participant was an employee of the United States Postal Service, (the parties were married from March 27, 1977 to September 3, 1996), and the denominator which is the total number of months the Participant is an employee of the United States Postal Service.

¶ 4. Vincent continued to work with the postal service for the next six and one-half years. He retired in October of 2003. Pursuant to the amended QDRO, Sheila began receiving over $600 per month from Vincent’s monthly retirement benefits.

¶ 5. In early May of 2005, Vincent sent the following letter to the U.S. Postal Service Office of Personnel Management:

I am responding pertaining to your letter dated June 2, 1997 regarding payment of my civil service benefits to my former spouse. According to the official court decree, I was obligated to pay the 1/2 of the balance (at date of record) as settlement. My records indicate that amount to be approximately $14,000.00 (Benefit balance at date of decree was $28,000.00)[.]
Since my retirement in October 2003, I have been paying her $600.00 per month toward that obligation. At this rate I will have met my obligation to her in October 2005 ($600 x 24 = $14,400.00).
It is my request to validate my full obligation will be met this October. I would also like to request the payment amount that I will receive beginning November 2005. Four [sic] your benefit I am providing page'4 of the divorce decree and a[sic] page 1 of your letter dated June 2,1997.

However, Sheila continued to receive over $600 per month of Vincent’s pension retirement after October of 2005.

¶ 6. In January of 2006, Vincent filed a Rule 60(b)(6) motion for relief. According to Vincent, he was entitled to relief because the property settlement agreement was ambiguous because he thought Sheila was only entitled to a total of $14,000 of his retirement benefits. To support his contention, Vincent submitted that, “[t]his understanding of said provision by Husband is further supported by the fact that Wife paid him one lump-sum payment of one-half (1/2) of the value of her 401(k) with Allen and O’Hara at the time of the divorce decree, which was less than $1,000.00.” Vincent noted that the Amended QDRO granted Sheila the right to receive a portion of his retirement annuity until his death. ' Vincent further noted that he did not sign the amended QDRO. Vincent claimed that the amended QDRO “was either never fully explained to him or because of his disability he did not understand the terms” of the amended QDRO. Finally, Vincent claimed that “[i]f he had known that by signing the Settlement Agreement he would have obligated himself to pay [Sheila] from his retirement annuity until his death, he would not have entered into the Settlement Agreement.”

¶ 7. Sheila responded and filed a motion to dismiss Vincent’s motion for relief. According to Sheila, the settlement agreement language was clear and unambiguous. Further, Sheila claimed that Vincent’s motion for relief was untimely as it was filed nine years after they received their divorce.

¶ 8. In June of 2006, the chancery court convened for a hearing. However, the chancellor did not require arguments from the parties. Instead, the chancellor announced that he had reached a decision based on the written submissions. According to the chancellor:

once I went completely through the agreement of divorce, and I think you got to do that, looked at who got what and what was done and what was not done. And it kind of gave this Court a little better idea of the situation between the parties at the time of the divorce, and in looking, at that, and also looking at the amount of time that took place between when these parties were divorced, and when the money started coming out of the retirement, I cannot help but think that the — that this amount was coming out of the retirement on a monthly basis like it wag suppose[d] to be done.
Other wise [sic], one-half of the value of the retirement would have been done immediately after divorce was done, just like the thousand dollars. I can’t help, but believe that. And for that reason, and seeing the length of time between the divorce and when the retirement started coming out, and that was the only time this matter was — Rule 60(B)(6) motion was filed. I don’t think that time — that time period of waiting there is reasonable. For that reason, I’m going to grant the motion to dismiss.
Like I say, this case, frankly, is one that’s real hard for me to digest, but after looking at the entire divorce decree and seeing — and I understand, from your brief that he’s having health problems and those things, and, frankly, that probably is more of a reason that I believe that was agreed to at that time, and it was coming out like it’s suppose[d] to because you didn’t for see [sic] those problems at that time. And now you do, and it maybe [sic] a way that you want to get out of that. Certainly, I can understand that.
No alimony was given in the decree of divorce, and I think I have to look at the background, and the contents of the property settlement to determine in this Court’s own mind whether the length of time that you waited between the divorce and when you filed [your] 60(B) motion is reasonable because without that, I can only guess as to whether it’s reasonable.
That’s why I think you have to go through the entire property settlement, and look at the entire settlement and digest that, then determine whether the time limit of waiting between the date of the entry — entry of the divorce decree, and the time to file the Rule 60(B) motion is reasonable. And that is the reason I’m finding that I don’t think that time limit — that wait is reasonable, and I find it’s not timely filed and for that reason, I grant the motion to dismiss.

¶ 9. To paraphrase, the chancellor considered the provisions of the entire agreement and found that Vincent’s M.R.C.P. 60(b)(6) motion was not filed in a reasonably timely manner. As such, the chancellor dismissed Vincent’s motion. Following Vincent’s unsuccessful motion for reconsideration, Vincent appeals.

STANDARD OF REVIEW

¶ 10. This Court evaluates the denial of a motion under Rule 60(b) according to the abuse of discretion standard. Lowrey v. Lowrey, 919 So.2d 1112, (¶ 16) (Miss.Ct.App.2005). We will reverse the chancellor’s findings if the chancellor applied an erroneous legal standard. West v. West, 891 So.2d 203, (¶ 8) (Miss.2004). Additionally, we will reverse the chancellor’s findings if the chancellor was manifestly wrong or clearly erroneous. Id.

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED WHEN HE FOUND THAT VINCENT’S RULE 60(B)(6) MOTION WAS UNTIMELY.

¶ 11. Vincent claims the chancellor’s decision to dismiss his Rule 60(b)(6) motion was reversible error. Predictably, Sheila claims the chancellor did not apply an erroneous legal standard and that the chancellor was not manifestly wrong or clearly erroneous. We agree.

¶ 12. Pursuant to Rule 60(b):
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

A party requesting relief pursuant to Rule 60(b)(l)(2) or (3) must file his motion within six months “after the judgment, order, or proceeding” was entered or taken. Id. As for Rule 60(b)(6), a party proceeding under that portion of Rule 60 must make his motion “within a reasonable time.”

¶ 13. A portion of Vincent’s motion for relief may be interpreted as an assertions of accident, mistake or newly discovered evidence. Within his motion for relief, Vincent alleged that he would not have entered into the settlement agreement “[i]f he had known that ... he ... obligated himself to pay [Sheila] from his retirement annuity until his death.” To the extent that this particular claim is a claims of accident, mistake or newly discovered evidence, that claim became untimely six months after the chancellor granted the divorce and incorporated the settlement agreement.

¶ 14. Vincent also claimed that the amended QDRO “was ... never fully explained” to him and that he did not understand the terms of the amended QDRO “because of his disability.” Those allegations may also be reasonably construed as claims of accident, mistake, or newly discovered evidence. Similarly, those claims expired six months after the entry of the amended QDRO. However, Vincent also alleged that the property settlement agreement was ambiguous. The chancellor construed Vincent’s claim as “any other reason justifying relief from the judgment” under Rule 60(b)(6). A party proceeding under Rule 60(b)(6) must make his motion “within a reasonable time.” M.R.C.P. 60(b).

¶ 15. Vincent and Sheila were divorced on September 3, 1996. The chancellor incorporated the settlement agreement at the time of the divorce decree. Vincent’s initial QDRO and his amended QDRO were entered in October of 1996 and April of 1997, respectively. Vincent filed his Rule 60(b)(6) motion on January 13, 2006. Vincent filed his motion after he discovered that Sheila’s portion of his retirement would not be capped at $14,000. Vincent based his interpretation of the language from the property settlement agreement that, ‘"Wife shall receive one-half (1/2) of the value of Husband’s pension through his employment with the United States Postal Service as of the date of the entry of the Final Decree of Divorce.”

¶ 16. True enough, the property settlement agreement indicates that Sheila was entitled to one-half of Vincent’s retirement as of the time of the divorce. The record does not indicate whether Vincent worked for the postal service during the entire time he was married to Sheila. At any rate, it is undisputed that Vincent’s retirement, earned during the marriage, was marital property. Likewise, it is undisputed that Sheila was entitled to an equitable distribution of Vincent’s retirement. However, Sheila was not able to receive a lump sum payment from Vincent’s retirement at the time of the divorce. That made the amended QDRO necessary. The amended QDRO set forth a calculation intended to address the fact that Sheila was forced to defer receipt of any of Vincent’s retirement.

¶ 17. Pursuant to the amended QDRO, Sheila was entitled to monthly payments calculated “by multiplying [Vincent’s] Accrued Benefit by a fraction (less than or equal to 1.0).” The numerator of that fraction was “the number of months the parties were married while [Vincent] was an employee of the United States Postal Service.” Vincent and Sheila were married from March 27, 1977 to September 3, 1996 — approximately ' 233 months. As mentioned, it is unclear whether Vincent worked for the postal service for the entire 233 months he was married to Sheila.

¶ 18. The denominator of that fraction was “the total number of months [Vincent] is an employee of the United States Postal Service.” Vincent retired sometime during October of 2003. Assuming Vincent worked for the postal service for 233 months during the marriage, and he worked an additional 85 months after the marriage, Vincent worked for the postal service a total of 318 months. Vincent was married to Sheila for approximately seventy-three percent of his total employment with the U.S. postal service. According to Vincent’s motion for relief, he is entitled to approximately $1,728 per month in retirement benefits. Of that $1,728, Sheila receives approximately $623 per month, leaving Vincent approximately $1,105. Sheila’s $623 is approximately thirty-six percent of $1,728. This illustrates the fact that, as time passed and Vincent continued to work with the U.S. Postal Service, Sheila’s percentage of Vincent’s retirement decreased from fifty percent to thirty-six percent.

¶ 19. The foregoing is important because it illustrates the fact that it was equitable for Sheila to continue to receive a portion of Vincent’s retirement in this fashion; especially considering the fact that Sheila deferred receiving anything from Vincent’s retirement for several years. Further, the amended QDRO was executed in April of 1997. It is entirely possible that Vincent did not fully understand the provisions of the amended QDRO. It is also entirely possible that the provisions of the amended QDRO were not fully explained to Vincent. However, if Vincent had any questions concerning the language of the amended QDRO, he certainly could have raised those questions before January of 2006. At the very least, such a conclusion could not be considered clearly erroneous or manifestly wrong. “The word ‘manifest’, as defined in this context, means ‘unmistakable, clear, plain, or indisputable.’ ” Lowrey, 919 So.2d at 1118(¶ 21) (Miss.Ct.App.2005). We cannot find that the chancellor’s decision was unmistakably or indisputably wrong.

¶ 20. In a separate argument, Vincent claims the chancellor erred when he did not find the division of retirement benefits portion of the property settlement agreement to be ambiguous. Having found that the chancellor did not err when he found Vincent’s Rule 60(b) motion untimely, any discussion of ambiguity in the retirement provision is moot. Accordingly, there is no need to address that argument. Our standard of review requires that we defer to the chancellor’s discretion. Because the chancellor did not abuse his discretion, we affirm.

¶ 21. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Timothy DUPUIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-01635-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2007.

      David Randall Wade, Jackson, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   FACTS

KING, C.J.,

for the Court.

¶ 1. On June 19, 2001, Dupuis was indicted by a Lincoln County Circuit Grand Jury for sexual battery, in violation of Mississippi Code Annotated Section 97-3-95 (Rev.2006). Dupuis was tried twice-the first trial ended in a mistrial when the jury was unable to reach a verdict. The second trial resulted in Dupuis’s conviction of molestation, in violation of Mississippi Code Annotated Section 97-5-23 (Rev.2006). The trial court sentenced Dupuis to fifteen years imprisonment. Attorney Joseph A. Fernald, Jr. represented Dupuis during both trials.

¶ 2. Dupuis filed a direct appeal, and this Court affirmed his conviction in Dupuis v. State, 872 So.2d 724 (Miss.Ct.App.2004). Dupuis then petitioned for re-hearing, which this Court denied, but issued a modified opinion found in Dupuis v. State, 872 So.2d 724 (Miss.Ct.App.2004).

¶ 3. Dupuis sought leave from the Mississippi Supreme Court to proceed in the trial court on an ineffective assistance of counsel claim. Dupuis claimed that his attorney, Fernald, had an actual conflict of interest. Fernald was employed as the Brookhaven City Attorney and simultaneously represented Fernald in a case in which three City of Brookhaven police officers testified for the prosecution.

¶ 4. The supreme court granted the application for leave to proceed and directed the trial court to conduct an evidentiary hearing regarding Dupuis’s claims. The circuit court conducted the hearing on July 24, 2006. The court found that there was an actual conflict of interest present, but it declined to grant Dupuis’s request for post-conviction relief because it did not find that Dupuis had adequately met his burden of proving that the conflict prejudiced his defense. The court also found that there was sufficient testimony that Dupuis had waived any additional conflicts of interest.

¶ 5. On September 11, 2006, Dupuis timely filed his notice of appeal.

STANDARD OF REVIEW

¶ 6. This Court employs a clearly erroneous standard in reviewing the denial of post-conviction relief motions. Todd v. State, 873 So.2d 1040, 1044(¶8) (Miss.Ct.App.2004). Questions of law, however, are reviewed de novo. Forshee v. State, 853 So.2d 136, 139 (¶ 16) (Miss.Ct.App.2003).

ANALYSIS

1. Whether the trial court erred in finding that Dupuis adequately waived his right to conflict-free counsel.

¶ 7. Defendants may waive their right to conflict-free counsel. United States v. Alvarez, 580 F.2d 1251, 1259 (5th Cir.1978). However, the trial judge must ensure that such waivers are not “casually or lightly inferred,” but that the defendant’s decision is knowingly and voluntarily made. Id. at 1259-60. In cases in which the trial judge has actual notice of a conflict of interest, the Mississippi Supreme Court has held that “the trial judge should affirmatively participate in the waiver decision by eliciting a statement in narrative form from the defendant in indicating that he fully understands the nature of the situation and has knowingly and intelligently made the decision to proceed with the challenged counsel.” Littlejohn v. State, 593 So.2d 20, 25 (Miss.1992).

¶ 8. In United States v. Garcia, 517 F.2d 272, 278 (5th Cir.1975) (disapproved on other grounds by Flanagan v. United States, 465 U.S. 259, 263 n. 2, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984)), the court held that “mere assent in response to a series of questions from the bench may in some circumstances constitute an adequate waiver,” but the court should require the accused to personally articulate his intentions to waive this constitutional safeguard.

¶ 9. Dupuis argues that the trial judge failed to make any specific findings that his waiver of the right to conflict-free counsel was done knowingly and intelligently. He asserts that the trial court failed to comply with the requirements of Littlejohn, which required the court to elicit Dupuis’s waiver in narrative form. He also argues that his waiver was based on Fernald’s representations that he would impeach the police officers’ testimony at trial and Fernald failed to do such.

¶ 10. There was no transcript of Du-puis’s waiver colloquy in the record. During the post-conviction proceedings, the court relied on the out-of-court, transcribed conversations between Dupuis and Fernald in finding that Dupuis adequately waived the conflict of interest.

¶ 11. The court also relied on the similar testimonies of the trial court judge, Mike Smith, and the prosecutor, Diane Jones. The court accepted Smith’s testimony that the colloquy was conducted, Smith observed it, and he followed up on Fernald’s statements to insure that Dupuis wanted to waive his rights and continue with Fernald’s representation. Smith testified, on cross-examination, to the following:

Dupuis’s Counsel: I take it, Your Hon- or, that you would know, then, had you performed your duty to elicit a narrative from Mr. Dupuis, and that duty being set out, I believe, in the case of Littlejohn v. State, 593 So.2d 20 (Miss.1992), that you had a duty which you were on notice of the actual conflict that you had to elicit a statement in narrative form from the defendant, indicating that he fully understands the nature of the situation, and has knowingly and intelligently made the decision to proceed with the challenged counsel. [I]s that correct?
Judge Smith: I did that.

¶ 12. Jones, the prosecutor, testified to the following during direct examination:

State’s Counsel: Do you recall an encounter where a conflict of interest was raised by Attorney Fernald?
Jones: I do.
State’s Counsel: When do you recall it happening?
Jones: Well, unfortunately, I don’t remember the date. I do recall that it was in open court, it was in this courtroom that Mr. Fernald brought his client in front of the bench where Judge Smith was seated. And he advised the Judge that he needed to go over a potential conflict of interest situation.
My recollection is that he, Mr. Fer-nald, that is, explained to Mr. Dupuis, in the presence of the Judge, that he was the city attorney. And I believe he also mentioned that he had gone over this previously, privately, with Mr. Dupuis. But, here, it was in open court.
He advised Mr. Dupuis that he was the city attorney, that there were city police officers who were expected to testify in this case. And that if there arose a situation where he had to, you know, get into their truth and veracity, that could be a conflict. Or the mere fact of him representing both the city and the defendant could raise a conflict. And it was Mr. Dupuis’s right to object to that situation.
Mr. Fernald also advised Judge Smith that he had, as he is, I believe, required to do by the professional— Rules of Professional Conduct, he had also approached the city mayor and the chief of police and had discussed this situation with all of them[....] After — I can’t recall exactly what else Mr. Fernald explained to the defendant in the presence of Judge Smith. But concerning whether or not he understood the conflict or the potential conflict situation, and whether he thought there was currently a conflict, did he have any misgivings about Mr. Fernald representing him.
And the defendant repeatedly stated, no, he didn’t have any trouble with it, he understood. And I do remember his exact words at the end of it were, I want him to represent me. And that was after Judge Smith had gone back over a fair amount of what Joe Fer-nald had already said to the defendant in his presence[.... ]

¶ 13. The court opined that there was often a good reason for the trial judge’s failure to elicit the waiver narrative him or herself-suggesting that in some instances, this would prevent the trial judge from knowing the defendant’s theory of the case.

¶ 14. In the present case, the court relied on similar testimonies of the trial judge, prosecutor, defense attorney, and the defendant in finding that Dupuis was informed of his rights and intended to waive these rights to conflict-free counsel. The court accepted Judge Smith’s testimony that he witnessed this colloquy and asked follow-up questions to ensure that Dupuis’s decision complied with the law.

¶ 15. The circuit court’s finding that Dupuis entered into a valid waiver of his right to conflict-free counsel is substantiated by the record. We find that the circuit court did not err in holding that Dupuis adequately waived his right to conflict-free counsel.

2. Whether the trial court erred in finding Dupuis’s defense was not prejudiced by his attorney’s performance.

¶ 16. Courts apply a two-pronged test, as set forth in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in determining if an attorney’s conduct has compromised the reliability of the trial’s results. Perry v. State, 682 So.2d 1027, 1029 (Miss.1996). In order to prevail on ineffective assistance of counsel claims, a defendant must prove that: (1) his counsel’s performance was deficient, and (2) the counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

¶ 17. The court found that Dupuis failed to satisfy the required showing of prejudice in proving his ineffective assistance of counsel claim. Dupuis attacked Fernald’s failure to adequately cross-examine the testifying police officers, as well as Fernald’s failure to object to the admissibility of a police investigation report. Dupuis alleges that, contrary to Fernald’s promises, he was denied the right to confront the witnesses against him due to Fernald’s lack of vigorous representation.

¶ 18. The court found that Fernald’s limited cross-examination of the police officers was an effective part of his trial strategy in that the first trial ended in a hung jury. The court noted that there was no proffer of the facts that would have been obtained if Fernald had presented a more extensive line of questioning or if he had discredited the police officers. According to the court, Dupuis also failed to show that, if Fernald had suppressed the admission of the police investigation report, the information would have come in otherwise or would have altered the outcome of the case. Finally, the court found that Du-puis’s conviction of a lesser offense did not evidence prejudice in his defense.

¶ 19. The Sixth Amendment provides a right to effective assistance of counsel, not errorless counsel. Hall v. State, 735 So.2d 1124, 1127(¶ 10) (Miss.Ct.App.1999). There is a strong presumption that an attorney’s conduct is a result of trial strategy. Donerson v. State, 812 So.2d 1081, 1087(¶ 16) (Miss.Ct.App.2001). Trial strategy generally includes an attorney’s decision whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections. Foreman v. State, 830 So.2d 1278, 1281(¶ 22) (Miss.Ct.App.2002).

¶20. Dupuis fails to provide evidence that, but for his attorney’s performance, the trial would have, more likely than not, ended in a different result. The court found that Fernald’s conduct clearly fell within the realms of trial strategy and did not amount to ineffective assistance of counsel. This issue is without merit.

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

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

      . The police report, written by Officer Thomas C. Case, concerned his meeting with the victim and her family the day the police received the report of the sexual assault. Judge Smith found that the information in the police' report was consistent with the defense’s theory of the case. He opined that while the police report contained relevant testimony, it may or may not have been material information, depending on the defendant’s theory of the case. The court determined that the admission of the police report did not aid in satisfying the prongs of ineffective assistance of counsel.


text:
    Julia W. LANGE, David L. Lange, James S. Whitaker, Jr. and James S. Whitaker, Sr., by and through the Executrix of the Estate, Joyce Whitaker, Appellants v. CITY OF BATESVILLE, Appellee.
    No. 2007-CA-00533-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      See also 832 So.2d 1236.

      Edward P. Connell, Charles M. Merkel, Clarksdale, attorneys for appellants.
    Benjamin E. Griffith, Cleveland, Michael Stephen Carr, Cleveland, attorneys for ap-pellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. The appellants (the Whitakers) and Panola County entered into an agreement under which the appellants agreed to give the county 70,000 cubic yards of dirt to be used for future construction in exchange for a “public road” the county would build on the appellants’ land. After the county realized it was financially unable to complete the project, the City of Batesville (the City) agreed to take over the project and the agreement with the appellants. Confusion over the specifics of the road arose, and the Whitakers began their legal battle with a bill of exceptions that ultimately led to their current complaint for breach of contract filed with the Circuit Court of Panola County. The City subsequently filed a motion for summary judgment, which the trial court granted. This appeal followed.

FACTS AND PROCEDURAL HISTORY

¶ 2. With the current appeal, the parties find themselves before this Court for the second time. See Lange v. City of Batesville, 832 So.2d 1236 (Miss.Ct.App.2002) (Lange I). As a majority of the underlying facts relevant to the current review were previously stated in sufficient detail in Lange I we now restate those facts verbatim.

Panola County developed plans for construction of an arena on property east of Interstate 55 and south of Highway 6 East in Batesville, Mississippi. The County’s architect, the Warrior Group, LTD, prepared drawings for what was called the “Arena Project.” Those drawings included both the layout of the buildings to be constructed as well as parking lots and a five-lane road leading from the project and intersecting with Highway 6. Also included was a topographical map detailing the extent to which certain portions of the property would be leveled.
On July 31, 1996, Panola County entered into an agreement for a temporary easement [the Agreement] with [the Whitakers]. The Whitakers granted to Panola County “a temporary right of entry and temporary easement” to a certain parcel of property which was to the east of the Arena Project property. The Whitaker property and the Arena Project property shared a common boundary. The temporary easement allowed Panola County to enter the Whitaker property for the purpose of removing 70,000 cubic yards of dirt. The project ultimately required 100,000 cubic yards of dirt. Once the removal was complete, the easement and right of entry would terminate.

Several conditions were placed upon the grant of the easement. The condition which is the subject of this litigation reads as follows:

The Grantee [County] has plans to build an expo center and is about to embark upon Phase I thereof. If the Grantee commences Phase 2 of such project within two (2) years of the date hereof, then the Grantors [the Whitakers] agree to dedicate to the county such part of the above described 5.47 acres as may be needed for a public road. If Phase 2 is not commenced within two (2) years but the County has evidenced good faith to commence same within a reasonable period of time, then the Grantors agree to extend the aforesaid two (2) year period for a reasonable time.

The County also agreed to transfer to the Whitakers a .11 acre parcel of property to the east of the road, but only if a road was built.

The County later determined that it did not have the financial resources to continue with the Arena Project. The County began negotiations for transferring ownership to and completing the project by the City of Batesville. The County, in a letter dated August 3, 1998, requested that the negotiations include a promise by the City to honor the agreement it had entered with the Whitakers concerning the possible construction of a public road.

The County and City signed an agreement on June 16, 1999. The City agreed to complete only Phase I of the Arena Project. The agreement specifically stated that Phase I consisted solely “of the construction of a Stall barn and Multi-Plex Arena.” The agreement referred to the plans drawn by the Warri- or Group, LTD. The City specifically refused to agree to the construction of any other parts of the project shown on those plans. The City also specifically agreed to “honor the Agreement for Temporary Easement between the County and James S. Whitaker et al [sic] dated July 31, 1996....” A copy of the temporary easement was attached to the agreement.

While the Arena Project was proceeding, a new hospital was constructed on property located west of it. Also proposed was the construction of [a] Wal-Mart SuperCenter between Interstate 55 and the new hospital. For clarity, we note that the Whitaker property was to the east of the Arena Project, while both the hospital and the Wal-Mart store were to the west. All these projects were south of the major west-east road, which was Highway 6.

At a February 18, 2000 meeting of the Board of Alderman for the City, discussion turned to the Arena Project. The minutes note that the “need and placement of roads in the area was also discussed.” The minutes note that “Whitaker Road is to be a five lane road.” Presumably, this is a reference to the five-lane public road shown on the plans prepared by the Warrior Group, LTD, and the public road that was to be constructed should Phase 2 of the Arena Project commence.

At a May 2, 2000 meeting, the minutes show that the assistant city attorney was authorized by the Board “to draw up appropriate documents to move forward on the agreement between the County and Mr. Whitaker that the City has agreed to honor.” A memorandum provided to the Whitakers requested that they sign and have notarized a deed to the City “in fulfillment of [the] agreement with the County.” On May 23, 2000, the Whitakers executed a deed donating to the City 4.81 acres of property for the proposed road. The deed did not include specifications for the road such as how many lanes the road might be or when its construction would be completed.

At a September 5, 2000 meeting, the Board decided to delay determining the layout of the roads in the Arena Project area. However, the Board stated that as to the arena, “the main road will be the east most road agreed to in the original agreement between the county and land owners.... ” The minutes were later amended to specify that the eastern-most road would be the main road if there were two entrances to the property. The Board also authorized a traffic study for the hospital and civic arena area.

At a September 19, 2000 meeting, the minutes show that James “Doc” Whitaker and John Hyneman were present. Mr. Hyneman had donated to the County a portion of his property for construction of the new hospital. Wal-Mart wished to locate its proposed SuperCen-ter on the remainder of the property owned by Mr. Hyneman near the hospital. The minutes note that both Whitaker and Hyneman “stated their opinions as to the location of the main [road] to this area.” The administrator of the hospital also provided the Board with his preference for location of the main entrance to the area from Highway 6. The Board was informed that the existing entrance was “not adequate for the hospital traffic.”

At the October 3, 2000 meeting, the Board discussed in executive session “the location of a large retail outlet near the new hospital.” When the Board returned to its public meeting, a motion was adopted that the city engineer be ordered to “draw a road design leaving the current entrance off Highway 6 and the frontage road as is and showing construction of an entrance and road at the east side of the city’s property with a road T-ing’ off this ‘new’ entrance and road and running westerly to tie into the hospital road network and thereafter to submit this design layout to the business prospect desiring to construct a retail outlet northwesterly of the new hospital for its consideration.” This option would provide a road on the Whitaker property.

Two weeks later, on October 17, 2000, the Board again discussed the issue of road design in the area of the Arena Project. The assistant city attorney stated that Wal-Mart did not approve the road design proposed during the last meeting. The Board decided to adopt “the road configuration as proposed by Wal-Mart in the letters of its attorney. ...” The construction of this road configuration was made contingent upon the following: (1) obtaining title to two parcels of land, (2) the removal of a building through which the road would pass, (3) funding, and (4) “matters involving the bidding and construction process.” The minutes of this meeting note that James “Doc” Whitaker and his attorney were present and objected to Wal-Mart’s proposal.

The Whitakers appealed this decision by filing a bill of exceptions. The Whit-akers argued that the action of the Board in adopting the Wal-Mart proposal was an “arbitrary and capricious decision of the City of Batesville to alter or ignore its often-stated and often-confirmed obligation to build the ‘main’ — or primary — road on the strip of land donated, for that purpose, to the City in May of 2000.” The Whitakers alleged that the City’s decision devalued their property and adversely impacted negotiations entered into with other parties about the sale or development of their property. The Whitakers also alleged that their constitutional rights had been violated.

The circuit court found that “the decision of the Batesville Board of Alderman changing the route and location of the primary road to serve a newly constructed community hospital and other commercial developments was not arbitrary and capricious and should be affirmed.”

Lange, 832 So.2d at (¶¶ 2-15) (footnote omitted).

¶ 3. During their first appeal to this Court, the Whitakers argued that the City breached the contract between them by agreeing to build what would become House-Carlson Road “at the direction of a competing developer and a major retailer.” Id. at (¶¶ 13,17). They requested the City commence building a road consistent with the May 23, 2000 deed or, in the alternative, damages. Id. We held that the issue of breach was not ripe for review, and “until there is a breach, we may not properly determine exactly what obligations the City has as to the specifics of a road.” Id. at (¶ 22).

¶ 4. In April 2001, the Whitakers filed suit in the Northern District of Mississippi, but the action was stayed pending this Court’s determination of Lange I. Subsequent to Lange I, the City filed a motion for summary judgment. In the interim, the City completed construction of Whitaker Road in January 2004. In April 2005, the district court granted the City’s motion based upon the doctrines of collateral es-toppel and Rooker-Feldman. Specifically, the district court ruled that the issue of whether the Whitakers were entitled to the “main” road was foreclosed by Lange I.The district court further explained that other issues raised by the Whitakers, one of which was a taking claim, were so intertwined with this Court’s decision in Lange I that they were also precluded from federal court consideration by the Rooker-Feldman doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).

¶5. On appeal of the district court’s ruling, the Fifth Circuit Court of Appeals affirmed the district court’s holding based upon collateral estoppel, but vacated the trial court’s decision to dismiss a taking claim raised by the Whitakers based upon Rooker-Feldman. Nevertheless, the Fifth Circuit dismissed the claim without prejudice as it determined it was not ripe for review. Following the Fifth Circuit’s dismissal, the Whitakers initiated the current cause of action in the Circuit Court of Panola County on January 19, 2006, asserting breach of contract. The City subsequently filed a motion for summary judgment, which was granted by the trial court. The Whitakers now appeal and raise the following issues:

I. WHETHER THE TRIAL COURT ERRED BY FAILING TO CONSIDER PAROL EVIDENCE.

II. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE WHITAKERS’ BEACH OF CONTRACT CLAIMS WERE BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL.

III. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE WHITAKERS WERE NOT ENTITLED TO DAMAGES.

STANDARD OF REVIEW

¶ 6. The standard of review employed by an appellate court on review of disposition of a case on summary judgment is clear.

In reviewing a trial court’s grant or denial of summary judgment, our well-established standard of review is de novo. Hubbard v. Wansley, 954 So.2d 951, 956 [ (¶ 9) ] (Miss.2007). That being said, summary judgment is appropriate where “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 that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). Additionally, “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Green v. Allendale Planting Co., 954 So.2d 1032, 1037 [ (¶ 8) ] (Miss.2007) (quoting Price v. Purdue Pharma Co., 920 So.2d 479, 483 [ (¶ 10) ] (Miss.2006)). “The moving party has the burden of demonstrating that [no] genuine issue of material fact[s] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Id. (quoting Howard v. City of Biloxi, 943 So.2d 751, 754 [ (¶ 4) ] (Miss.Ct.App.2006)).

One South, Inc. v. Hollowell, 963 So.2d 1156(¶ 6) (Miss.2007).

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY FAILING TO CONSIDER PAROL EVIDENCE.

¶7. The trial court opined that parol evidence should not have been considered when determining the meaning of “public road” as used by the parties. Based partly on Martin v. Newell, 198 Miss. 809, 28 So.2d 796 (1945), the court reasoned that because a board of supervisors or aldermen can only act through its minutes, evidence outside its minutes could not be used to determine its obligations. On appeal, the Whitakers argue the trial court erred in ruling as such for three separate reasons. They argue the phrase is ambiguous, that the agreement is incomplete because it does not recite the specifics of the “public road” to be built and, finally, that the parol evidence rule is not applicable to a determination of the true consideration to a contract. We will address each sub-issue separately.

A. Whether the phrase “public road” is ambiguous as used by the parties.

¶ 8. The Whitakers first argue that extrinsic evidence should have been considered by the lower court because the phrase “public road” is ambiguous, requiring examination of evidence outside the purview of the parol evidence rule. In support, Lange cites Kerl v. Smith, 96 Miss. 827, 51 So. 3 (1910), a case in which parol evidence was considered to determine the meaning of the word “timber,” and Hattiesburg Plumbing Co. v. Carmichael & Co., 80 Miss. 66, 31 So. 536 (1901), where the supreme court found the term “artesian” ambiguous requiring extrinsic evidence to glean its meaning as used in the contract. As these cases show, it is firmly established that when the language of a contract is ambiguous parol evidence may be admitted to clarify the meaning of the ambiguity. Aron v. Panola-Quitman Grain Corp., 490 So.2d 891, 892-93 (Miss.1986). However, contracts in which one of the parties is a board of supervisors or other public board are treated differently.

¶ 9. As firmly established as the parol evidence rule is, and its exception for ambiguities, it is also firmly rooted in this state’s judicial precedent that “public boards speak only through their minutes and their actions are evidenced solely by entries on their minutes.” Thompson v. Jones County Cmty. Hosp., 352 So.2d 795, 796 (Miss.1977); Burdsal v. Marshall County, 937 So.2d 45(¶8) (Miss.Ct.App. 2006). One reason for the evidentiary exclusivity of a board’s minutes was stated as such:

We also think it was error for the court to permit individual members of the board of supervisors to testify what the board did, and what the board understood, and what the board had authorized to be done in the premises. A board of supervisors can act only as a body, and its act must be evidenced by an entry on its minutes. The minutes of the board of supervisors are the sole and exclusive evidence of what the board did. The individuals composing the board cannot act for the county, nor officially in reference to the county’s business, except as authorized by law, and the minutes of the board of supervisors must be the repository and the evidence of their official acts.

Thompson, 352 So.2d at 796 (quoting Smith v. Board of Supervisors, 124 Miss. 36, 41, 86 So. 707, 709 (1920) (emphasis added)).

¶ 10. Additionally, the Thompson court further expounded on the basis for the rule as follows:

When official authority is conferred upon a board or commission consisting of three or more members, the authority so conferred must be exercised by a legal quorum, and, as a general rule, the decisions to be executed or the contracts to be awarded by the board must be determined or decided upon only in or at a lawfully convened session, and the proceedings must be entered upon the minutes, of the board or commission. The reasons for the requirements aforesaid are: (1) That when authority is conferred upon a board, the public is entitled to the judgment of the board after an examination of a proposal and a discussion of it among the members to the end that the result reached will represent the wisdom of the majority-rather than the opinion or preference of some individual member; and (2) that the decision or order when made shall not be subject to the uncertainties of the recollection of individual witnesses of what transpired, but that the action taken will be evidenced by a written memorial entered upon the minutes at the time, and to which all the public may have access to see what was actually done.

Thompson, 352 So.2d at 796 (quoting Lee County v. James, 178 Miss. 554, 558-559, 174 So. 76, 77 (1937)) (emphasis added). However, that a board may only speak through its minutes does not equate to the notion that the entirety of a contract must be reproduced within a board’s minutes. See Thompson, 352 So.2d at 797. Plans, specifications and other papers specifically referred to by the board in its minutes have been held to constitute a part of the contract. Id. Similarly, the contract “may be enforced if enough of the terms and conditions of the contract are contained in the minutes for [a] determination of the liabilities and obligations of the contracting parties without the necessity of resorting to other evidence.” Thompson, 352 So.2d at 797 (emphasis added). However, the individual or group contracting with a board carries the responsibility to ensure the contract is properly recorded. Id.

¶ 11. The Whitakers fail to cite any precedent, and we can similarly find none, for the proposition that the parol evidence rule can be defeated, ambiguity or not, when dealing with a contract of a municipality. That is, that the ambiguity exception to the parol evidence rule trumps the doctrine of exclusivity of a board’s minutes. Without such, we hold that application of the parol evidence rule’s exception for ambiguity would sit in direct contradiction to the precedent cited supra, and has no application to contracts entered into by a public board. It would allow individuals the ability to state what they believed “the board did, and what the board understood, and what the board had authorized to be done” when the only evidence of what the board did, what the board understood, and what the board had authorized to be done must come from its minutes.

¶ 12. Additionally, any ambiguity in an agreement must be construed against the drafters. AmSouth Bank v. Quimby, 963 So.2d 1145, 1152(¶ 19) (Miss.2007). “If the minutes do not reflect what is required [by the contract], the private party can insist that a correction be entered.” JLG Concrete Prods. Co. v. City of Grenada, 722 So.2d 1283, 1287 (Miss.Ct.App.1998). While the issues of JLG Concrete did not include the interpretation of a possible ambiguity, the statement supra is nonetheless instructive on a private party’s responsibility in regard to protecting his or her interests when contracting with a municipality, and, by logical implication, the consequences of failing to ensure that the minutes appropriately reflect what the private party believes is required by the contract. Therefore, if evidence of a board’s actions is limited to its minutes any ambiguity in those minutes must be construed against the private party as its shouldered the responsibility to see that the contract was recorded to its specifications. Additionally, any interpretation of an ambiguity must be done without the aid of parol evidence. This issue is without merit.

B. Whether the agreement is incomplete.

¶ 13. The Whitakers next argue that the agreement is incomplete because it does not give specifics of the “public road” that was to be built. In support, they cite to Quick & Grice v. Ashley, 227 Miss. 273, 86 So.2d 40 (1956). In Ashley, Ashley entered into a contract with Quick & Grice to construct a well on Ashley’s property. Id., 227 Miss, at 276, 86 So.2d at 41. After two unsuccessful attempts to complete an operable well Ashley brought suit. Id., 227 Miss, at 277-278, 86 So.2d at 41-42. In allowing testimony on the specifications and warranties promised by Quick and Grice, the supreme court stated,

[t]he original order did not state whether it was to be a water well, an oil well, a gas well, or a sulphur well. It called for a rod pump and the appellant used a jet pump. There were also changes between the original order and the finished well as to the type of fixtures which were used in connection with the well.

Id., 227 Miss, at 279, 86 So.2d at 42. As will be explained in issue III, the City was obligated to build a five-lane public road that would serve as the main, east-most road leading to the arena. While the agreement and subsequent discussions by the board of aldermen, as evinced by its minutes, obviously did not go into great detail on the specifics of Whitaker Road, they did describe the road with sufficient detail so as to remove the contract from consideration as incomplete, and with comparison with the contract in Ashley. Therefore, this issue is without merit.

C. Whether parol evidence should have been admitted to clarify the consideration contemplated in the Agreement.

¶ 14. The Whitakers’ last argument, that parol evidence should have been allowed, focuses on the consideration involved in the agreement. ' They argue that because the agreement states “for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration” extrinsic evidence is allowed to show what the true consideration for the agreement was, and cite State Highway Dep’t v. Duckworth, 178 Miss. 35, 172 So. 148 (1937) in support. However, this argument is also thwarted by the fact that boards may only speak through their minutes. Id., 178 Miss, at 43, 172 So. at 150.

¶ 15. In Duckworth, Duckworth entered into an agreement with the State Highway Department (SHD) that would allow the SHD to enter the Duckworths’ land in order to construct a portion of Highway 49. Id., 178 Miss, at 39, 172 So. at 148. The deed executed between the Duckworths and the state granting the state access to the land stated, in pertinent part, “[f]or and in consideration of Two Hundred Sixty-eight & 25/100 ($ 268.25) dollars and other valuable consideration.” Id., 178 Miss, at 40, 172 So. at 149. However, a subsequent requisition, ordered on the minutes of the board, and auditor’s voucher stated the $ 268.25 was “in full settlement of. claims and accounts.” Id., 178 Miss, at 41, 172 So. at 149. The Duckworths claimed they had an oral agreement with the SHD that approaches would be built and maintained to enable the Duckworths to be able to cross from one side of their land to the other. Id. The trial court subsequently allowed them to present parol evidence that the approaches were the “other valuable consideration” contemplated in the deed’s language. Id., 178 Miss, at 39-41, 172 So. at 148-149.

¶ 16. On appeal, the Duckworths supported the trial court’s ruling by arguing that, while parol evidence was not admissible to contradict the recitals of a contract, it is admissible to show the true consideration. Id., 178 Miss, at 43,172 So. at 150. The supreme court reversed the lower court on two separate grounds. Id., 178 Miss, at 43-44, 172 So. at 150. First, the supreme court stated the Duckworths’ argument was not applicable to the case as the “full settlement” language included in the voucher and requisition constituted full settlement when the Duckworths accepted payment. Id., 178 Miss, at 43, 172 So. at 150. Second, the court stated:

It is familiar law that boards can only bind the public by contracts entered on their minutes, and that the members, individually, of such a board as the Highway Commission, could not authorize an agent to bind it unless an order therefor was entered upon its minutes authorizing the giving of such authority, or unless the order constituting a contract recited the making thereof, and its approval by the Highway Commission. We think this principle is well established.
It was therefore error to admit oral proof of an agreement antecedent to, or contemporaneous with, the execution of the deed, and there was no authority, under the facts of this record, for the rendition of the judgment ... against the Highway [Commission][.]

Id. (citations omitted). Therefore, as with evidence explaining ambiguity, evidence outside a board’s minutes offered to explain the consideration of an agreement with a public board is not admissible. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE WHITAKERS’ BEACH OF CONTRACT CLAIMS WERE BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL.

¶ 17. Under the “FACTS” section of their complaint filed with the Circuit Court of Panola County, the Whitakers alleged that Whitaker Road “differs from what they were originally promised as it is not a main intersection or access to the south of Highway 6, it has no traffic light, and it is not part of the connecting artery joining Highway 35 and Highway 6.” The Whitakers claimed they “suffered a serious devaluation of their property as a result of not receiving a road as originally contracted for in a reasonable amount of time.” Under the heading “BREACH OF CONTRACT” within their complaint, the Whit-akers again stated “the City breached the agreement by failing to perform its promises. Specifically, the City failed to construct Whitaker Road as the main road into the area in question in a timely manner .... ”

¶ 18. The trial court found that in their first appeal to this Court, the Whitakers “included ... a breach of contract action seeking money damages claiming that the City’s decision devalued their property....” Accordingly, the trial court held “that any argument regarding the building of House-Carlson Road [was a breach of contract], that is that [Whitaker Road] is not the ‘main’ road, is precluded by the doctrine of collateral estoppel,” reasoning that the exact issue was addressed in Lange I. As Lange I was at the heart of the trial court’s determination of this issue, it is necessary to examine our holding in that case.

¶ 19. At the time, the Whitakers’ claim came before this Court for the first time House-Carlson Road had been approved by the Board, if not already built, and Whitaker Road was not yet in existence. The Whitakers filed a bill of exceptions in protest of the Board’s decision, claiming it “was an ‘arbitrary and capricious decision of the City of Batesville to alter or ignore its often-stated and often-confirmed obligation to build the “main” — or primary— road on the strip of land donated but were ultimately unsuccessful; Lange, 832 So.2d at (¶ 14). They appealed this decision to the Circuit Court of Panola County, which found the Board’s decision was not arbitrary and capricious. The Whitakers appealed to this Court and included a breach of contract claim despite the fact we were under the same appellate standard of review that constrained the circuit court. Namely,

The standard of review of an order of a Board of Supervisors is the same standard which applies in appeals from the decisions of administrative agencies. Barnes v. Board of Supervisors, 553 So.2d 508, 511 (Miss.1989). “The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Board of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). See also Van Meter v. City of Greenwood, 724 So.2d 925 (Miss. App.1998).

Ladner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 638(¶ 6) (Miss.2001).

¶ 20. In impliedly holding that the Board’s decision was not arbitrary and capricious, we explained that the Whit-akers’ breach of contract claim was premature. We stated, “[t]he Whitakers base their claim for breach of contract upon their belief that Whitaker Road will not or cannot now be built” given the City’s decision to build House-Carlson Road. Lange, 832 So.2d at (¶ 20). However, there was no evidence in the record to show that Whitaker Road could not still be built in accordance with the agreement and pertinent minutes of the Board. Essentially, we held that the Whitakers’ breach of contract claims were not ripe for review, and “[u]ntil there is a breach, we may not properly determine exactly what obligations the City has as to the specifics of a road.” Id. at (¶ 22).

¶ 21. Admittedly, implied in this statement is a holding that the City did not breach the agreement solely by constructing House-Carlson Road. However, that is not to say the Whitakers’ claims of breach were barred by collateral estoppel. The doctrine of collateral estoppel was recently discussed by the supreme court. The high court stated:

Under the doctrine of collateral estop-pel, “[an] appellant is precluded from relitigating in the present suit specific questions actually litigated and determined by and essential to the judgment in the prior suit, even though a different cause of action is the subject of the present suit.” Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289, 293 (Miss.1956). Further, “collateral estoppel, unlike the broader question of res judicata, applies only to questions actually litigated in a prior suit, and not to questions which might have been litigated.” Dunaway v. W.H. Hopper & Associates, 422 So.2d 749, 751 (Miss.1982) (quoting Johnson v. Bagby, 252 Miss. 125, 171 So.2d 327 (Miss.1965)).

Mayor & Bd. of Aldermen v. Homebuilders Ass’n of Miss., Inc., 932 So.2d 44, 59(¶ 64) (Miss.2006).

¶22. Our holding in Lange I did not stand for the proposition that the City could not breach the agreement at some time in the future. This could occur either by the City failing to build Whitaker Road as per the agreement, or, as identified in Lange I, “by simply never beginning construction.” Id. at (¶ 23). At the time the Whitakers filed their most recent complaint with the Circuit Court of Panola County, the issue of whether Whitaker Road, as built, breached the agreement between the City and the Whitakers had yet to be decided. As such, our holding in Lange I did not preclude a future action based upon breach of contract.

¶ 23. With the completion of Whitaker Road in January 2004, the Whitakers were free to bring their most recent action alleging breach of contract. However, given the standard of review we employ upon a review of the trial court’s grant of summary judgment, we find that the parameters of Whitaker Road, as built, do not violate the agreement. That is, the City did not breach the agreement, but fulfilled its obligations to the Whitakers in building Whitaker Road. Therefore, while the Whit-akers’ claim was not barred by the doctrine of collateral estoppel, we nonetheless affirm the trial court’s grant of summary judgment as there was no breach of the agreement by the City. See issue III. This issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE WHITAKERS WERE NOT ENTITLED TO DAMAGES.

¶ 24. Finding the issue of whether “public road” was ambiguous to be effectively irrelevant, the trial court continued and held there was no breach of the agreement stemming from the timing of the construction of Whitaker Road. Examining the record before us, we agree. The agreement provided for commencement of the road by 1998, or within two years of the agreement. Additionally, if building of the road was not commenced within two years, the agreement specified that it would be commenced within a reasonable time period. The issue of what is a reasonable time for performance is a question of law. Fortune Furniture Mfg., Inc. v. Pate’s Electronic Co., 356 So.2d 1176, 1178 (Miss.1978). Whitaker Road was completed in January 2004, one year prior to the completion of the Civic Center to which it led, and four years after the Whitakers deeded over the property upon which it was built. Given the procedural history and activity of this case, the uncertainty of obligation that would certainly accompany that, and the timing of completion of the road in regard to a completed Civic Center and grant of the land, we find that Whitaker Road was completed within a reasonable time.

¶ 25. Additionally, as identified in issue II, the record also affirmatively shows the City did not otherwise breach the Agreement in building Whitaker Road. The minutes of the Panola County Board of Supervisors from July 31, 1996, stated the relevant portion of the agreement for a temporary easement as such:

The Grantee [County] has plans to build an expo center and is about to embark upon Phase I thereof. If the Grantee commences Phase 2 of such project within two (2) years of the date hereof, then the Grantors [the Whit-akers] agree to dedicate to the county such part of the above described 5.47 acres as may be needed for a public road. If Phase 2 is not commenced within two (2) years but the County has evidenced good faith to commence same within a reasonable period of time, then ■ the Grantors agree to extend the aforesaid two (2) year period for a reasonable time.

(emphasis added). The City took over the project and agreed to honor the agreement between the County and the Whitakers, but refused to bind themselves to any other understandings between the County and the Whitakers. Minutes from subsequent meetings of the Board show that it was decided that Whitaker Road was to be a five-lane road and that, in regard to the arena, “the main road will be the east most road agreed to in the original agreement between the county and the land owners.”

¶ 26. From the minutes referenced above it is clear that the City agreed to build a five-lane public road that would be the main, east-most road leading to the arena. Public is defined as “[o]f, concerning, or affecting the community or the people[,]” or “[mjaintained for or used by the people or community.” The American Heritage College Dictionary, 1106 (3d ed.1993). Whitaker Road satisfies all these requirements. It is a five-lane “public road” that is the main, east-most road leading to the arena. Under the facts before us, we find the City did not breach the agreement.

¶ 27. “When a plaintiff shows breach of the contract, damages may also be shown.” Eastline Corp. v. Marion Apartments, Ltd., 524 So.2d 582, 585 (Miss.1988). As the Whitakers have failed to show the City breached the agreement, the issue of damages is moot. Therefore, this issue is without merit.

¶ 28. 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., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.


text:
    Randy LEONARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-02160-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2008.

      Randy Leonard, pro se.
    George T. Holmes, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorneys for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. A jury sitting before the Winston County Circuit Court found Randy Leonard guilty of sexual battery. The circuit court sentenced Leonard to fifteen years in the custody of the Mississippi Department of Corrections with five years to serve and ten years of post-release supervision. The Mississippi Office of Indigent Appeals filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005) and reported that, after a good faith effort to find arguable error, it could find none. Leonard filed a pro se brief and, to paraphrase, submits that the circuit court erred when it (1) tried him without jurisdiction, (2) allowed the prosecution to amend the indictment to reflect the correct date of the offense, (3) overruled his motion to dismiss, (4) overruled his motion for JNOV, (5) violated his rights to a speedy trial, and (6) impaneled a jury comprised of more women than men. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Before we proceed with the facts of this case, it is necessary to discuss the relationships between the various people involved. Leonard was found guilty of sexually battering sixteen-year-old Jane at the home he shared with Jane’s aunt, Donna, in Louisville, Mississippi. Donna’s mother, Linda, also lived with Donna and Leonard. Linda’s other daughter, Belinda, is Jane’s mother.

¶ 3. On August 12, 2005, Jane spent the night with Linda, Donna, and Leonard. Jane slept on the couch that night. According to Jane, around 4:00 a.m., Leonard woke her up when he put his finger in her vagina. Leonard denied that allegation. According to Leonard, he got up around 11:00 p.m. or 12:00 when “one of [his] partners named Charles” visited. Leonard claimed that Jane was undressed and asleep on the couch. Leonard maintained that he only “picked [Jane’s] leg up and put it on the couch and covered her up with a big towel.”

¶ 4. In any event, Jane left early the next morning and did not tell anyone what happened. She later went to another grandparent’s house. Belinda stopped by Leonard’s house to borrow a skirt for a funeral. After the funeral, Belinda went back to Leonard’s house before she went to pick up Jane. Leonard asked Belinda to drive him to the store. Belinda agreed.

¶ 5. At some point during their drive, Leonard told Belinda that Jane mistakenly thought he tried to touch her inappropriately. When they arrived at Jane’s grandmother’s house, Jane let her mother inside. However, she slammed the door in Leonard’s face. Shortly afterwards, Jane relayed her version of events to Belinda. When Belinda told Donna about Jane’s accusation, Donna kicked Leonard out of the house. Donna later asked Leonard to return.

¶ 6. Greg Clark, an investigator with the Louisville Police Department, took statements from Jane and Belinda. When Leonard was picked up for questioning, Leonard waived his right to remain silent and gave a statement in which he reiterated his version of events.

¶7. On October 25, 2005, the Winston County Grand Jury returned an indictment against Leonard and charged him with sexual battery. Leonard pleáded not guilty and proceeded to trial. Ultimately, the jury found Leonard guilty of sexual battery. Consequently, the circuit court sentenced Leonard to fifteen years in the custody of the Mississippi Department of Corrections with five years to serve and ten years of post-release supervision. Leonard appeals.

¶ 8. The Mississippi Office of Indigent Appeals prepared a brief on Leonard’s behalf. However, the Office of Indigent Appeals stated:

Counsel for the Appellant hereby represents to the Court pursuant to Lindsey v. State, 939 So.2d 743 (MS 2005), that counsel has diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the court on Mr. Leonard’s behalf in good faith for appellate review, and upon conclusion, has found none.

Leonard prepared a pro se brief in which he appears to raise five issues: (1) the circuit court lacked jurisdiction to try and sentence him “according to 97 — 3—95(l)(a) [citation to the record] Discovery Violation,” (2) the circuit court erred when it allowed the prosecution to amend the indictment, (3) the circuit court erred when it overruled his motion to dismiss and/or his motion for JNOV, (4) the circuit court violated his right to a speedy trial, and (5) he suffered prejudice because there were more women than men on the jury.

¶ 9. Leonard did not include an argument incident to any of those issues. Leonard included an argument portion with his brief, but he did not address those five issues. Instead, he suggested that he is entitled to bail pending appeal. We can offer no relief in that regard, as Leonard’s appeal is now presently before us.

¶ 10. After Leonard filed his pro se brief, the Office of Indigent appeals filed a supplemental brief. The Office of Indigent Appeals did not discuss Leonard’s first issue, stated as “THE TRIAL COURT erred because it was without jurisdiction to try to impose sentence according to 97-3-95(l)(a) [record citation] Discovery Violation.” Instead, the Office of Indigent Appeals stated, “Counsel cannot locate anything in the record to discuss any discovery violation.” However, the Office of Indigent Appeals submitted arguments for Leonard’s other four issues. We will begin our analysis of Leonard’s remaining four issues, renumbered for clarity.

ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED WHEN IT ALLOWED THE PROSECUTION TO AMEND THE INDICTMENT AFTER TRIAL. •

¶ 11. The original indictmént reflected the date of the offense as August 13, 2005. Prior to Leonard’s trial, the prosecution moved to amend the indictment to reflect the date of the offense as of August 14, 2005. Leonard objected. The circuit court did not rule on the prosecution’s motion at that time. Instead, the circuit court took the matter under advisement. However, the circuit court ultimately granted the prosecution’s motion to amend the indictment. Even so, the circuit court did not enter an order amending the indictment. Leonard seems to claim the circuit court erred when it granted the prosecution’s motion to amend the indictment. The Office of Indigent Appeals suggests there are three questions within this issue: (1) “whether the state was entitled to amend the indictment,” (2) “whether the amendment was ‘effective due to a lack of an order being entered,’ ” and (3) “if the amendment was not effective and there is a variance between the date of the offense in the indictment and the date of the offense from the trial evidence, whether such variance is fatal?”

1. Whether the trial court erred when it allowed the prosecution to amend the indictment.

¶ 12. “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by an appellate court.” Davis v. State, 866 So.2d 1107, 1110(¶ 11) (Miss.Ct.App.2003). Trial courts may amend indictments only to correct defects of form. Spears v. State, 942 So.2d 772, 774(¶ 6) (Miss.2006). In contrast, defects of substance must be corrected by the grand jury. Id. The relevant question is whether amending the indictment to correct the date of the offense amounts to a defect of form or of substance. Resolution of that question depends on the facts of the case and the context of a defendant’s theory of the case. “[A] change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Id.

¶ 13. We cannot find that the circuit court erred when it granted the prosecution’s motion to amend the indictment to correct the date of the offense. According to URCCC Rule 7.06(5), “Am indictment shall ... include ... [T]he date and, if applicable, the time at which the offense was alleged to have been committed.” URCCC Rule 7.06(5) goes on to state, “Failure to state the correct date shall not render the indictment insufficient[.]” The amendment did not materially alter any fact that was the essence of the offense on the face of the indictment as it originally stood. Further, the amendment did not materially alter Leonard’s defense so as to prejudice his case. See, e.g., Davis, 866 So.2d at 1111(1112) (holding that a change in the date of the offenses did not affect the viability of the defendant’s defense, that the date was not the essence of the crimes, and, as such, the amendment to the indictment was “not fatal.”) Leonard did not raise an alibi defense. Instead, Leonard’s defense was based on the premise that he did not touch Jane inappropriately. The date reflected in the indictment had no bearing on Leonard’s assertion.

2. Whether the amendment was ineffective due to the lack of an order amending the indictment.

¶ 14. According to Mississippi statutory law, “[t]he order of the court for amendment of the indictment, record, or proceedings provided in Section 99-17-13 shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record.” Miss.Code Ann. § 99-17-15 (Rev.2007) (emphasis added). The Mississippi Supreme Court addressed a similar situation in Reed v. State, 506 So.2d 277, 279 (Miss.1987). In Reed, the prosecution was allowed to amend an indictment, but there was no valid order entered on the record that authorized that amendment. Id. at 279.

¶ 15. The Reed Court noted that, “The State is required to make sure that, such an order appears in the record and the defense is required to object to the absence of such order if it wishes to preserve this point for appeal.” Id. (citing Sturgis v. State, 379 So.2d 534, 536 (Miss.1980)). According to Reed, because the defense attempted to object but was cut short by the trial judge, the prosecution did not ask the trial court to add an order authorizing the amendment, and did not add the order itself, the attempted amendment was ineffective. Id.

¶ 16. In Sturgis, the Mississippi Supreme Court stated:

where the defendant objects to the state’s motion to amend and the objection is overruled and the amendment is allowed by the court but no order allowing the amendment is placed on the minutes of the court, a variance between the indictment as originally drawn and the proof is fatal, even though the district attorney made the amendment on the face of the indictment.

Sturgis, 379 So.2d at 536 (citing Shurley v. State, 90 Miss. 415, 43 So. 299 (1907)).

¶ 17. Here, Leonard’s attorney objected to the prosecution’s motion to amend the indictment and the prosecution did not see to it that the circuit court entered an order allowing the amendment of the indictment. Pursuant to Sturgis, the issue is now whether the variance in the indictment and the proof is fatal to Leonard’s case.

3. Whether the variance between the indictment and the proof is fatal to the prosecution’s case against Leonard.

¶ 18. According to Section 99-7-5 of the Mississippi Code (Rev.2007):

An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for the want of a proper or perfect venue.

Further, and as we recognized above, “Failure to state the correct date shall not render . the indictment insufficient[.]” URCCC Rule 7.06(5). The question is whether the variance in the indictment and the proof is a variance of form or substance. See Mahfouz v. State, 303 So.2d 461, 462 (Miss.1974). We reach the same conclusion we reached above. The variance in the indictment and the proof is one of form only. It did not prejudice Leonard’s defense, or his theory of the case. Accordingly, we find no merit to this issue.

II. WHETHER THE VERDICT IS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

¶ 19. Posttrial, Leonard filed a “motion for new trial or in the alternative jnov.” Leonard did not state a basis for his motion. Instead, Leonard argued, “The Court erred in overruling the Defendant’s motion for a directed verdict made at the conclusion of the State’s case and renewed at the conclusion of the Defendant’s case.” Leonard also argued, “The verdict of the jury is contrary to the law and to the overwhelming weight of the evidence in this case.” Finally, Leonard claimed, “The interest of justice requires that this Court grant the Defendant a new trial.” Leonard did not expand or elaborate during the hearing on his unsuccessful posttrial motions. Aggrieved, Leonard appeals and challenges both the sufficiency and the weight of the evidence.

1. Sufficiency of the evidence.

¶ 20. A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In appeals from an overruled motion for JNOV, we review the evidence in the light most favorable to the prosecution. Id. We must accept the credible evidence consistent with guilt as true, and we give the prosecution the benefit of all favorable inferences that may be reasonably drawn from the evidence. Beckum v. State, 917 So.2d 808, 8130111) (Miss.Ct.App.2005). “We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id.

¶ 21. Leonard merely presents a generic and conclusory argument. Though he states that the evidence was insufficient to sustain his conviction, he does not elaborate as to why he considers the evidence insufficient. It is not enough that a defendant move for JNOV on the basis that the prosecution failed to demonstrate a prima facie case. Davis, 866 So.2d at 1113(¶ 21). Such a defendant must specifically state just how the prosecution failed to present a prima facie case. Id. Without such specificity, we will not find the circuit court erred when it overruled such a motion. Id. Lack of specificity notwithstanding, Leonard’s argument is meritless. Jane testified that Leonard placed his finger inside her vagina and that he did so against her will.

2. Weight of the evidence.

¶ 22.. A motion for a new trial challenges the weight of the evidence. Beckum, 917 So.2d at 813(¶ 14). The circuit court has substantial discretion in ruling on a motion for a new trial. Id. The circuit court should grant the motion only if it would result in an unconscionable injustice if the verdict were allowed to stand. Id.

¶ 23. As we review the. circuit court’s decision to overrule a motion for a new trial, we must consider the evidence in the light most favorable to the verdict. Id. We are to be mindful that it is the jury’s responsibility to resolve matters regarding the weight of the evidence and the credibility of witnesses. Id. We may only reverse the circuit court if it abused its discretion when it overruled the defendant’s motion for a new trial. Id.

¶ 24. Again, we must note that Leonard failed to specify the basis for his contention. Leonard argued, “The verdict of the jury is contrary to the law and to the overwhelming weight of the evidence in this case.” Leonard also claimed, “The interest of justice requires that this Court grant the Defendant a new trial.” A motion for a new trial must be specific. Id. at (¶ 15). This is unquestionably a vague and general statement. Leonard failed to distinguish any particular deficiency in the proof. Leonard also failed to assert just how the verdict is or was contrary to the overwhelming weight of the evidence. Accordingly, this issue is procedurally barred. Id. Procedural bar notwithstanding, Leonard’s argument lacks merit. Jane testified that Leonard placed his finger in her vagina against her will. As mentioned, it is the province of the jury to determine the weight and credibility of the evidence, and the jury believed Jane over Leonard.

III. WHETHER THE CIRCUIT COURT VIOLATED LEONARD’S RIGHT TO A SPEEDY TRIAL?

¶ 25. In his pro se brief, Leonard seems to complain that the circuit court violated his right to a speedy trial. Leonard never raised this issue before the circuit court. As such, this issue is procedurally barred. Scott v. State, 829 So.2d 688, 691(¶ 5) (Miss.Ct.App.2002).

TV. WHETHER THE CIRCUIT COURT ERRED WHEN IT ALLOWED LEONARD TO BE TRIED BY A JURY COMPRISED OF MORE WOMEN THAN MEN.

¶ 26. The jury that convicted Leonard consisted. of nine women and three men. Leonard seems to claim the circuit court erred when it allowed him to be tried by a jury of more women than men. Leonard did not raise this issue at trial. Therefore, he is procedurally barred from raising this issue on appeal. Spicer v. State, 921 So.2d 292(¶62) (Miss.2006). Procedural bar notwithstanding, “proportional representation of [members of cognizable groups] on a jury is not required.” Harris v. State, 576 So.2d 1262, 1264 (Miss.1991).

¶ 27. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS TO SERVE AND TEN YEARS OF POST-RELEASE SUPERVISION, THE FIRST FIVE OF WHICH ARE TO BE SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.

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

      . We use fictitious names to protect the victim’s identity.