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    Anthony J. HUDSON, Appellant v. Elizabeth PALMER d/b/a Precision Quick Lube; Robert Palmer; Brierfield Insurance Company; Laurel Leader-Call Newspaper; Community Newspaper Holdings, Inc.; and Brian Livingston, Appellees.
    No. 2006-CP-00940-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.
    Rehearing Denied Dee. 11, 2007.

      Anthony J. Hudson, Appellant, pro se.
    L. Grant Bennett, Wayman Dal Williamson, L. Clark Hicks, attorneys for appel-lees.
    Before MYERS, P.J., ISHEE, ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. Anthony Hudson took his vehicle to Precision Quick Lube to be serviced. The following day he discovered the oil cap was missing and presumed that employees at Precision had failed to replace it upon completion of their work. He made repeated attempts to have Precision repair those automotive problems he claimed to be having as a result of the missing oil cap, but Precision would not comply with his requests. In fact, according to Precision, Hudson claimed to be a writer for a local newspaper and threatened to write criticizing articles concerning the business if it did not make him whole. This prompted an employee at Precision to inquiry about Hudson’s employment with the paper.

¶ 2. Brian Livingston, a reporter from the paper, was sent to investigate the claim, and once he arrived at Precision he was informed of the circumstances surrounding Hudson’s alleged claim of employment. After speaking with local law enforcement, Livingston informed individuals at Precision that Hudson’s actions could constitute criminal charges. Notwithstanding this information, Robert Palmer, an employee at Precision, eventually filed charges against Hudson claiming a disturbance of the peace stemming from the repeated calls and alleged threats to Precision concerning damage to his vehicle. In complaints filed with the Circuit Court of Jones County in March and November of 2005 Hudson raised numerous claims against the various parties involved. These claims were later dismissed, and Hudson now appeals. Finding no error, we affirm.

FACTS

¶ 3. On or around September 8, 2004, Hudson took his vehicle to Precision in Laurel, Mississippi in order to have the oil changed. After picking up his automobile from Precision, Hudson drove to Hatties-burg, Mississippi. The next day he returned to Precision and claimed that they failed to replace the oil cap at the conclusion of the previous day’s service. As a result, Hudson claimed that oil had blown all over his motor. While never admitting that the original oil cap was not replaced, Precision provided a new oil cap and replaced the escaped oil.

¶ 4. Three days later Hudson experienced additional problems with his car and requested that Precision correct them. Robert Palmer, the spouse of the owner of Precision, Elizabeth Palmer, stated in his affidavit that when this was not done to Hudson’s satisfaction Hudson began making numerous phone calls to Precision, made threats to picket the business, and stated that he was a writer with The Laurel Leader-Call, a local newspaper, and that he would write disparaging articles about Mr. Palmer and Precision if they refused to comply with his demands. Jessica Wilson, an employee of Precision, stated in her affidavit that she spoke with Hudson when he called regarding his complaint. Wilson claimed that Hudson was asked to quit calling the business, but nevertheless continued. She stated that on at least one call he claimed to be a writer for The Laurel Leader-Call and would publish a negative article concerning Mr. Palmer and Precision.

¶ 5. Hudson then made a claim with Precision’s insurance carrier, Brierfíeld. In response, Brierfíeld sent an appraiser to inspect his vehicle. Upon his inspection, the appraiser opined that there had been a short in the alternator in Hudson’s vehicle, but for reasons unrelated to the leaking oil. Notwithstanding this determination, Brierfíeld still made an offer of settlement of $242.67. However, Hudson rejected this offer.-

¶ 6. In October 2004, but prior to October 28, 2004, The Laurel Leader-Call received a phone call inquiring about Hudson’s possible employment with the paper, and Julius Brian Livingston, a reporter with the paper, was sent to Precision to investigate. After speaking with an employee of Precision, Livingston was informed that Hudson was in a dispute with Precision and threatened to write articles in The Laurel Leader-Call discouraging others from patronizing the business. Livingston later spoke with an investigator with the Jones County Sheriffs Department who advised him that if Hudson demanded'and received money or something of value in response to Hudson’s claim that he would write negative articles about Mr. Palmer or Precision it could amount to extortion or false pretenses. This information, along with the fact that Hudson, at no time, had been an employee of the paper, was relayed to individuals at Precision.

¶ 7. On November 17, 2004, as a result of Hudson’s alleged harassment, Mr. Palmer initiated a complaint with the Laurel Police Department against Hudson alleging a disturbance of the peace, in violation of Mississippi Code Annotated section 97-35-15 (Rev.2004), and signed a criminal affidavit in support. On this same day, but apparently prior to Mr. Palmer’s complaint, Hudson visited the Laurel Police Department and detailed the problems he was having with Precision. However, Hudson would later learn of the warrant and voluntarily visit the Laurel Police Department to inquire about it. Subsequently, on July 28, 2005, a hearing was held in the Jones County Justice Court concerning the charges brought against Hudson, and he was found not guilty.

PROCEDURAL HISTORY

¶ 8. The pertinent procedural history is as follows. Hudson filed his initial complaint, pro se, on March 1, 2005, in the Circuit Court of Jones County and named “Robert Palmer Owner of Precision Quick Lube & Brierfield Insurance Inc aka Mississippi Insurance Managers” as defendants in civil action number 2005-37-CV3. Within his complaint Hudson recounted his version of the ordeal surrounding his missing oil cap and requested “damages for his property, $2,500 for his automobile and $250,000 for the intentional acts of Palmer and Mississippi Insurance Managers.” Hudson did not specify what intentional acts he was referring to.,

¶ 9. On November 10, 2005, Hudson filed his amended complaint in the above action adding Mrs. Palmer as owner and operator of Precision, and naming Mr. Palmer as an employee. Additionally, Hudson alleged that the defendants caused him to be unlawfully arrested and imprisoned, that the defendants maliciously caused him to be prosecuted, that Mr. Palmer committed fraud in his alleged misrepresentation that he was the owner of Precision, that on or about October 28, 2004, the defendants defamed Hudson while filing their charge with the Laurel Police Department, and that the defendants caused the loss of use of his vehicle. '

¶ 10. On November 18, 2005, Hudson filed another complaint, pro se, in the same court and named “Brian Livingston/Employee of the Laurel Leader Call & Laurel Leader Call Newspaper & Community Newspaper Holdings, Inc & ABC Insurance Company” (Livingston Defendants) as defendants. Hudson alleged that on or about October 28, 2004, Livingston “negligently and wantonly told a third person (Robert Palmer) that plaintiff was attempting to obtain monetary gain through false pretense and extortion which was not true.” He further alleged that as a result of this he “was caused suffering through false arrest, defamation, and humiliation.” By order dated December 8, 2005, the two civil actions were consolidated.

¶ 11. On March 13, 2006, Hudson filed a motion for summary judgment. Hudson alleged he was entitled to summary judgment on his claims of loss of property, false arrest, malicious prosecution, fraud, and defamation. Additionally, within his motion for summary judgment, Hudson requested summary judgment on new claims of abuse of process, invasion of privacy, and intentional infliction of emotional distress. In support of his motion, Hudson submitted an affidavit that listed various documents pertaining to his causes of action and attached copies of those documents to his affidavit. The defendants, Elizabeth Palmer and Robert Palmer (Palmer Defendants), along with Brierfield Insurance Company, filed a motion to strike the affidavit based upon earlier objections to the documents on the basis that they had not been properly authenticated, constituted inadmissible hearsay, had not been properly identified, or were irrelevant. Additionally, the Palmer Defendants objected on the premise that Hudson’s affidavit did not comply with Rule 56(e) of the Mississippi Rules of Civil Procedure. Lastly, the Palmer Defendants moved to strike the portion of Hudson’s motion styled “Factual Background” as they claimed it contained only unsubstantiated assertions not supported by any evidence in record. The Livingston Defendants would later join in this motion.

¶ 12. On April 25, 2006, the Livingston Defendants filed their motion for summary judgment. The Livingston Defendants noted that Community Newspaper Holdings, Inc. was not a proper defendant as Community First Holdings, Inc., a sister company of the named defendant, was the actual publisher of The Laurel Leader-Call. This was followed by the Palmer Defendants’s response to Hudson’s motion for summary judgment, cross-motion for summary judgment and motion to dismiss on May 5, 2006.

¶ 13. Following a hearing on May 15, 2006, in the Circuit Court of Jones County on the Palmer Defendants’s motion to strike Hudson’s affidavit, Hudson’s motion for summary judgment, and the Palmer Defendants’s cross-motion for summary judgment and motion to dismiss, the court issued its final judgment on May 19, 2006. Within its eighteen page judgment, the court granted the Palmer Defendants’s motion to strike and cross-motion for summary judgment and denied Hudson’s motion for summary judgment. Additionally, as requested in the Palmer Defendants’s cross-motion, the court dismissed Brier-field Insurance Company as it noted that Mississippi precedent does not recognize a direct action against an insurance company by a third party, except for purposes of seeking a declaratory judgment of coverage when coverage has been denied. The court found that the facts presented showed that Brierfield never denied coverage concerning Hudson’s claim.

¶ 14. Subsequently, in a May 23, 2006 judgment, the trial court granted the Livingston Defendants’ motion for summary judgment. Hudson then filed his notice of appeal on the court’s May 19, 2006 and May 23, 2006 judgments.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DISMISSING BRIER-FIELD.

¶ 15. Hudson argues on appeal that the trial court erred when it dismissed Brierfield as, according to Hudson, Brier-field “denied the Appellant coverage in return causing the Palmers to conspire with Brian Livingston and Crystal Dupre’ to have the Appellant falsely arrested.” However, there is no evidence in the record that Hudson’s claim of coverage with Brierfield was denied. In fact, Hudson acknowledges that Brierfield made a settlement offer, but that he rejected it. Therefore, there is no question as to whether coverage exists for the damages Hudson claims occurred as a result of the missing oil cap. A direct action may only be brought against an insurance company when there is an issue of coverage. See M.R.C.P. 57(b)(2); Miss. Mun. Liab. Plan v. Jordan, 863 So.2d 934(¶ 19) (Miss.2003). This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE AP-PELLEES’ MOTION TO STRIKE.

¶ 16. When reviewing a trial court’s decision to allow or disallow evidence this Court utilizes an abuse of discretion standard. Webb v. Braswell, 930 So.2d 387(¶ 15) (Miss.2006). The trial court found that the documents attached to Hudson’s affidavit violated “numerous rules of evidence as to admissibility as raised by the defendants requiring exclusion from consideration by [the trial court].” The trial court further explained that “most of the documents were excluded on the grounds that they constituted inadmissible hearsay, were not properly authenticated, were not the original presented to prove content when questions existed as to authenticity of the original, and for some, questions existed as to apparent changes that were made to copies not accurately reflective of the original.” The trial court noted that another ground for granting the motion to strike was that Hudson failed to comply with M.R.E. 902(11X0®.

¶ 17. Without citing any supporting authority, Hudson argues that the trial court erred in striking his affidavit and attached documentation and explained that the day of the summary judgment hearing he informed the court that he subpoenaed witnesses that would testify as to the authenticity of the documents. “It is the duty of an appellant to provide authority in support of an assignment of error-.” Jones v. Howell, 827 So.2d 691(1140) (Miss.2002). Additionally, this Court may consider those assertions of error not supported by relevant authority to be abandoned. Id. (citing Thibodeaux v. State, 652 So.2d 153, 155 (Miss.1995)). Notwithstanding this flaw, Hudson assignment of error still fails.

¶ 18. Rule 56(e) of the Mississippi Rules of Civil Procedure states that “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.” M.R.C.P. 56(e). In Hudson’s affidavit submitted in support of his motion for summary judgment, he made no statement nor did he personally set forth any facts, but only attached twenty copies of documents he believed entitled him to summary judgment. The attached documents fail the above requirements as they either are not based upon Hudson’s personal knowledge or are otherwise inadmissible as presented.- These documents include copies of receipts, unidentified handwritten notes, e-mails, correspondence between Hudson and the Better Business Bureau of Mississippi, uncertified documents from the Laurel Police Department, and other similar items. As noted by the trial court, these items were correctly excluded for various reasons to include relevancy, impermissible hearsay, and improper or lacking authentication. As such, this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PALMER DEFENDANTS.

¶ 19. In reviewing a trial court’s grant or denial of a motion for summary judgment, this Court employs a de novo standard of review. Cousin v. Enter. Leasing Company-South Cent., Inc., 948 So.2d 1287(¶ 6) (Miss.2007). So long as no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in the movant’s favor. Id. Mississippi Rule of Civil Procedure 56(c) requires examination of all pleadings, admissions, answers to interrogatories, depositions, and affidavits in determining whether a genuine issue of material fact exists. M.R.C.P. 56(c). This evidence must be viewed in a light most favorable to non-moving, party. Cousin, 948 So.2d at (¶ 6). The movant carries the burden of demonstrating that no genuine issue of material facts exists. Id. However, “the party opposing the motion must be diligent and ‘may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Harrison v. Chan dler-Sampson, Ins., Inc., 891 So.2d 224, 228 (Miss.2005)).

A. WHETHER THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT ON HUDSON’S CLAIM OF DEFAMATION AGAINST THE PALMER DEFENDANTS.

¶20. Hudson’s claim of defamation was alleged in his amended complaint solely by the following sentence, “on or about October 28, 2004, the defendants defamefd] the plaintiff while filing their malicious charge with the Laurel Police Department.” The trial court granted summary judgment on Hudson’s claim of defamation based on its conclusion that the amended complaint alleging defamation was not filed within the period allowed by the statute of limitations and, notwithstanding this flaw, that there existed no genuine issue of material fact, and the Palmer Defendants were entitled to summary judgment as a matter of law. We find that the court’s findings are sufficient to affirm the lower court’s decision.

¶ 21. Under Mississippi Code Annotated section 15-1-85, causes of action for defamation must be brought within one year of their accrual. Miss.Code Ann. § 15-1-35 (Rev.2003); Ellisville State Sch. v. Merrill, 732 So.2d 198(¶22) (Miss.1999). As is obvious from the professed date of accrual of Hudson’s alleged defamation, and the date he alleged the cause of action within his amended complaint, the time limitation specified in section 15-1-35 had expired, and, as such, Hudson’s claim was untimely.

¶ 22. Hudson alleges for the first time in his brief that he did not discover these alleged untrue statements until his arrest on March 1, 2006, as a result of the Palmer Defendants’s concealment of the incident report. As such, he claims that the cause did not accrue until this date. It has long been held that issues not raised at the trial court level- cannot be raised on appeal. Southern v. Miss. State Hosp., 853 So.2d 1212(¶ 5) (Miss.2003) (citing Parker v. Mississippi Game & Fish Comm’n., 555 So.2d 725, 730 (Miss.1989)). Nevertheless, we address Hudson’s claim.

¶ 23. An action for libel or defamation generally accrues at the time of the first publication. McCorkle v. McCorkle, 811 So.2d 258(¶15) (Miss.Ct.App.2001). However, an exception to this general rule was established in Staheli v. Smith, 548 So.2d 1299, 1303 (Miss.1989). The Staheli court held that in those rare instances when “because of the secretive or inherently undiscoverable nature of the publication the plaintiff did not know, or with reasonable diligence could not have discovered, that he had been defamed” the statute of limitations would not begin to run until such conditions had been met. Id. We cannot say that a police incident report is such a publication that is so secretive or inherently undiscoverable so as to delay accrual of Hudson’s cause of action. Additionally, there is no evidence in the record that would show any party attempted to conceal this information from Hudson. Therefore, this issue is without merit.

B. WHETHER THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT ON HUDSON’S CLAIM OF INVASION OF PRIVACY.

¶24. For the first time in his motion for summary judgment, Hudson alleged invasion of privacy as a result of “the defendants ... claiming that the plaintiff was attempting to commit False Pretense and Extortion.” Despite Hudson’s delay, the defendants responded to the merits of Hudson’s claim in their cross-motion for summary judgment. Again, the trial court granted ' summary judgment on the grounds that the claim was brought after the time required by the statute of limitations and on the merits of Hudson’s claim, and, again, the court’s findings are sufficient for this Court to affirm.

¶25. Additionally, Hudson adds for the first time on appeal that his invasion of privacy claim stemmed from his arrest rather than from the filing of the incident report. However, one paragraph later he states that “the Court also erred because the Appellants Invasion of Privacy claim was not time barred because of the Concealment of the defamation and conspiracy by the Laurel Police Department and Brian Livingston.” Despite this confusion, the point is moot as issues not raised before the trial court may not be argued for the first time on appeal. Southern, 853 So.2d, at (¶ 5).

¶ 26. A claim of invasion of ■ privacy must be brought, within one year of its accrual. McCorkle, 811 So.2d at (¶ 13). As with defamation, Hudson’s claim of invasion of privacy, if any, accrued on October 28, 2004. At the very best, Hudson alleged invasion of privacy on November 10, 2005. As this was more than one year after the cause of action accrued, Hudson’s claim is barred.

C. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST HUDSON’S CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

¶ 27. As with Hudson’s claim for invasion of privacy, he first plead intentional infliction of emotional distress in his motion for summary judgment. Again, the Palmer Defendants responded to the merits of Hudson’s claim. The trial court granted summary judgment based upon the merits of Hudson’s ■ claim, or lack thereof, and as a result of the expiration of the statute of limitations prior to the filing of Hudson’s amended complaint. Hudson now argues that the trial court erred in granting summary judgment on this claim because Mr. Palmer and Livingston conspired to have him arrested for extortion and false pretense while defaming him. Additionally, he again argues the statute of limitations should not apply as he was not aware of the charge against him until March 2005.

¶28. The .statute of limitations for intentional infliction of emotional distress is one year. Jones v. B.L. Dev. Corp., 940 So.2d 961(¶ 13) (Miss.Ct.App.2006). Hudson’s claim of intentional infliction of emotional distress related to claims for defamation, invasion of privacy, or fraud that occurred on or before October 28, 2004. As with his claim for invasion of privacy, Hudson alleged his claim of intentional infliction of emotional distress no earlier than November 10, 2005. Therefore, Hudson’s claim of intentional infliction of emotional distress is barred. Also, the proclaimed basis for Hudson’s claim, that Livingston and Palmer conspired to have him arrested for extortion and false pretenses, is not supported in the least by the record. Not only is there no evidence of any conspiracy in the record, but the record also shows that no complaint was filed nor warrant, signed containing allegations of the crimes of extortion and false pretenses.

D. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST HUDSON’S CLAIMS OF ABUSE OF PROCESS AND MALICIOUS PROSECUTION.

(1). ABUSE OF PROCESS

¶ 29. • Hudson argues that the trial court erred in granting summary judgment against his claim of abuse of process because “the Palmers maliciously used the legal process in a wrongful manner to accomplish a purpose for which it was not designed.” An abuse of process claim requires the plaintiff show (1) the defendant made an illegal use of a legal process, (2) the defendant had an ulterior motive, and (3) damage resulted from the perverted use of process. Ayles v. Allen, 907 So.2d 300(¶ 10) (Miss.2005). To successfully challenge the trial court’s grant of summary judgment, Hudson must demonstrate the existence of each element. Id. The facts of record before this Court show that Hudson cannot meet this burden.

¶ 30. As to Hudson’s claim against Mrs. Palmer, the record shows that the criminal affidavit upon which process was issued was not signed by Mrs. Palmer. Additionally, she stated in her undisputed affidavit that she did not file the October 28, 2004 incident report against Hudson with any intended malice as she believed Hudson was making numerous harassing phone calls and threats to Precision. Therefore, as Hudson cannot satisfy all elements of his claim, summary judgment was proper as a matter of law.

¶ 31. Additionally, while Mr. Palmer did file the October 28, 2004 criminal affidavit alleging that Hudson “willfully disturbed the public peace of Precision Quick Lube,” the record shows that he did not do so improperly. Moreover, nothing in the record suggests that Mr. Palmer had any ulterior motive or purpose in having process issued. Mr. Palmer’s undisputed affidavit establishes that he had a reasonable belief that based upon Hudson’s phone calls and threats, he was within his rights to file charges against Hudson. The trial court’s grant of summary judgment as to this issue is affirmed.

(2). MALICIOUS PROSECUTION

¶ 32. To prevail on a claim of malicious prosecution the plaintiff must prove the following elements by a preponderance of the evidence: (1) the institution or continuation of original judicial proceedings, either criminal or civil; (2) by, or at the insistence of the defendants; (3) the termination of such proceedings in plaintiffs favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceedings; and (6) the suffering of damages as a result of the action or prosecution complained of. Cong Vo Van v. Grand Casinos of Miss., Inc., 767 So.2d 1014(118) (Miss.2000). As stated above, Mrs. Palmer did not initiate judicial proceedings against Hudson. Therefore, Hudson cannot sustain his burden of proof as to this claim against Mrs. Palmer and, as a consequence, summary judgment was proper.

¶ 33. It is clear by Mr. Palmer’s own admissions that the first three elements of malicious prosecution are satisfied. Where Hudson’s claim fails is in the lack of proof as to the requisite showing of malice and want of probable cause. In order to show malice as it pertains to a claim of malicious prosecution the plaintiff must show that “the primary purpose of prosecuting is one other than ‘bringing an offender to justice.’ ” Coleman v. Smith, 914 So.2d 807(1112) (Miss.Ct.App.2005) (quoting Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss.1991)). In the context of a malicious prosecution claim, probable cause consists of a reasonable and honest belief in the guilt of the accused. Coleman, 914 So.2d at (¶ 12). Also, “[p]roba-ble cause is determined from the facts apparent to the observer when the prosecution is initiated.” Id. (quoting Benjamin v. Hooper Elec. Supply Co., Inc., 568 So.2d 1182, 1190 (Miss.1990)). If probable cause existed for the initiation of criminal proceedings, a claim for malicious prosecution must fail. Coleman, 914 So.2d at (If 12).

¶ 34. Mr. Palmer stated that he filed the criminal affidavit with no other motive than to “stop the harassment that was being perpetrated by Mr. Hudson.” There are no facts within the record that cast doubt upon this assertion. Additionally, Mr. Palmer stated that Hudson made numerous harassing phone calls to Precision and threatened to picket the business. This statement was supported by Wilson’s affidavit in which she stated that she spoke with Hudson during many of the numerous calls he placed and on several occasions he would raise his voice. She also stated that Hudson was told to stop calling, but did not comply. From the undisputed affidavits of Mr. Palmer and Wilson, it is clear that there can be no showing of malice or a lack of probable cause in the institution of proceedings against Hudson.

E. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST HUDSON’S CLAIM OF FRAUD AGAINST MR. PALMER.

¶ 35. Hudson argues he was the victim of fraud as a result of Mr. Palmer claiming to be the owner of Precision. In order to establish fraud, the plaintiff must prove: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Koury v. Ready, 911 So.2d 441(¶ 13) (Miss.2005). Additionally, fraud must be proven by clear and convincing evidence. Id. at (¶ 14).

¶ 36. Hudson alleged that Mr. Palmer fraudulently held himself out to be the owner of Precision. He claims that Mr. Palmer gave him a business card which named Mr. Palmer as owner and operator of the business, but a copy of this card was one of the several items attached to Hudson’s affidavit that was struck by the trial court. Notwithstanding his lack of proper evidence that a representation was made, Hudson completely fails to establish that he suffered any damage as a result of Mr. Palmer’s alleged misrepresentation. He states in his brief that “from hearing and relying on the misrepresentation of Robert Palmer, the Appellant suffered mental and emotional distress.” However, “bare assertions are simply not enough to avoid summary judgment.” Watson v. Johnson, 848 So.2d 873(¶ 18) (Miss.Ct.App.2002). Therefore, as there are no genuine issues of material fact as to whether Hudson suffered any damage whatsoever stemming from Mr. Palmer’s alleged fraud, Mr. Palmer was entitled to summary judgment as a matter of law. This issue is without merit.

F. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST HUDSON’S CLAIMS OF FALSE ARREST AND FALSE IMPRISONMENT.

(1). FALSE ARREST

¶ 37. Hudson seems to argue that because he was found not guilty of the charges brought by Mr. Palmer he is entitled to summary judgment against the Palmer Defendants for his claim of false arrest. However, to sustain a claim of false arrest a plaintiff must show that the defendant caused him to be arrested falsely, unlawfully, maliciously, and without probable cause. Croft v. Grand Casino Tunica, Inc., 910 So.2d 66(¶ 34) (Miss.Ct.App.2005). Therefore, if the plaintiffs arrest is supported by probable cause the claim must fail. Id.

¶ 38. As repeatedly stated, there is no evidence that Mrs. Palmer filed a criminal affidavit against Hudson. Accordingly, she is entitled to summary judgment as a matter of law as she did not cause Hudson to be arrested, falsely, unlawfully, or otherwise. As to Hudson’s claim against Mr. Palmer, we established in our resolution of Issue D(2) that Mr. Palmer had the necessary probable cause to initiate charges against Hudson. Having found probable cause, this issue is without merit.

(2). FALSE IMPRISONMENT

[31,32] ¶ 39. To prove false imprisonment a plaintiff must show (1) detention of the plaintiff and (2) the unlawfulness of the detention. Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709(¶ 28) (Miss.2001). The supreme court has also defined false imprisonment as an arrest without legal process. Nassar v. Concordia Rod & Gun Club, 682 So.2d 1035, 1039 (Miss.1996). Plaintiff has offered no facts to support the charge of false imprisonment. In addition to the fact that the record shows no instance of the Palmer Defendants ever detaining Hudson, his arrest was not unlawful, but was the result of a valid warrant being issued after an affidavit was filed in good faith. This issue is without merit.

G. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST HUDSON’S CLAIMS OF PROPERTY DAMAGE AND LOSS OF USE

¶ 40. Hudson argues that the trial court erred in granting summary judgment against his claim of property damage and maintains that the “defendants” are hable for the alleged damage and resultant loss of use suffered as a consequence of the “defendants” alleged action of failing to replace the oil cap after completing an oil change on Hudson’s car. Again, Hudson cites no authority for his argument that the trial court erred in granting summary judgment on these issues. Additionally, Hudson first argued his claim of loss of use in his motion for summary judgment. However, despite these recurring flaws in Hudson’s appeal, we reach the merits of his claim of error.

¶41. In order for a plaintiff to prevail on a claim of negligence he must prove by a preponderance of the evidence each and every element of negligence: duty, breach, causation, and damages. Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917(¶ 7) (Miss.2006). Both Mr. and Mrs. Palmer stated in their respective affidavits that it was their belief that Hudson’s oil cap was replaced at the conclusion of his oil change. This was not contradicted by any admissible evidence presented to the trial court. Additionally, Hudson failed to provide the trial court with any evidence that the alleged act of failing to replace the cap actually caused damage to his vehicle. In fact, there is no evidence in the record proving Hudson’s vehicle sustained any damage as a result. Hudson provided no bills for repair, no properly submitted affidavits from any mechanic giving an estimate of the damage allegedly caused, or any sworn testimony demonstrating any compensable damage whatsoever. Hudson alleges that his vehicle sat “in his driveway every [sic] since September 12, 2004,” presumably as a result of the alleged damage cause by the absence of the oil cap; however, bare allegations are not sufficient to defeat a grant of summary judgment. Cousin, 948 So.2d at (¶ 6). This issue is without merit.

IV. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE LIVINGSTON DEFENDANTS.

¶42. In his November 18, 2005 complaint against the Livingston Defendants Hudson alleged that:

On or about October 28, 2004, the defendant (Brian Livingston) employee of the Laurel Leader Call negligently and wantonly told a third party (Robert Palmer) that plaintiff was attempting to obtain monetary gain through false pretense and extortion which was not true.
As a proximate consequence of the defendants said negligence and wantonness behavior, the plaintiff was caused suffering through false arrest, defamation, and humiliation.

The trial court interpreted this as claims for negligent infliction of emotional distress, false arrest, and wanton behavior related to intentional infliction of emotional distress and defamation. Hudson does not dispute this interpretation and raises the issues below pertaining to the Livingston Defendants. Concerning his claim of false arrest, in his reply brief to this Court Hudson acknowledges that any claim of false arrest against the Livingston Defendants was improper.

A. WHETHER THE TRIAL COURT ERRED IN DISMISSING COMMUNITY NEWSPAPER HOLDINGS, INC.

1143. Hudson argues that Community Newspaper Holdings, Inc., is a “true and correct party” and should not have been dismissed. However, the trial court dismissed the corporation as it was neither the employer of Livingston nor the publisher of The Laurel Leader-Call at all times relevant to Hudson’s complaint. This was attested to by both Livingston and Crystal Dupre, a publisher of the Laurel Leader-Call, in their affidavits. Hudson failed to present any evidence to the contrary. Accordingly, his claim of error must fail.

B. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST HUDSON’S CLAIM OF ORDINARY NEGLIGENCE/NEGLIGENT INFLICTION OF EMOTIONAL. DISTRESS.

¶ 44. Hudson raises two separate issues pertaining to a claim of negligence and another claim of negligent infliction of emotional distress. However, within his argument relating to ordinary negligence Hudson not only argues that Livingston’s actions went beyond ordinary negligence, but that they also caused him mental and emotional distress. As such, we will address his argument as an assignment of error concerning negligent infliction of emotional distress.

¶ 45. The trial court granted summary judgment on Hudson’s claim of negligent infliction of emotional distress on two grounds. First, the trial court noted that the law of this state requires a plaintiff seeking emotional distress damages from ordinary negligence show some physical manifestation of injury or demonstrable physical harm, and found that Hudson failed to sufficiently allege any physical injury. While there have been two lines of thought followed on this issue, the supreme court has recently stated that a plaintiff seeking emotional damages as a result of ordinary negligence must show some resulting demonstrable harm. See Wilson v. GMAC, 883 So.2d 56(¶28) (Miss.2004) (quoting Am. Bankers’ Ins. Co. v. Wells, 819 So.2d 1196(¶40) (Miss.2001)). Proof of Hudson’s alleged emotional distress is absent from the record. Hudson stated in his brief to this Court that “the Appellant made reference again that he was under therapy for his nerves prior to this incident and his false arrest/false imprisonment, defamation, and conspiracy caused the Appellant a nervous shock.” Notwithstanding the fact that Hudson admitted to a preexisting nervous condition, he failed to provide any evidence, through affidavit or otherwise, that his condition was worsened as a result of his alleged ordeal.

¶ 46. The trial court also noted that Mississippi law did not allow for a claim of negligent infliction of emotional distress based upon defamation and cited Pierce v. Clarion Ledger, 433 F.Supp.2d 754, 757 (S.D.Miss.2006) and Lane v. Strang Communs. Co., 297 F.Supp.2d 897 (N.D.Miss.2003) in support. While these cases have found that Mississippi courts have not recognized such a cause of action, to formally do so now is not necessary. Any claim for negligent infliction of emotional distress based upon defamation would obviously require a successful claim of defamation, and, as discussed below, Hudson has not met this prerequisite. This issue is without merit.

C. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST HUDSON’S CLAIM OF DEFAMATION.

¶ 47. In granting summary judgment against Hudson’s claim of defamation against Livingston, the trial court found that Livingston’s relay of information from the Jones County Sheriffs Department to individuals at Precision was nothing more than a opinion. While statements of opinion are generally entitled to an absolute privilege in the realm of claims of defamation, a statement in the form of an opinion can still constitute a defamatory communication. Hamilton v. Hammons, 792 So.2d 956(¶ 16) (Miss.2001). Speaking to this point, the supreme court has stated that “opinion statements are actionable only if they clearly and unmistakably imply the allegation of undisclosed false and defamatory facts as the basis for the opinion.” Ferguson v. Watkins, 448 So.2d 271, 276 (Miss.1984) (citing Restatement (Second) of Torts § 566 (1977)). Therefore, “whether a statement is characterized as a ‘fact’ or ‘opinion’ is no longer a relevant inquiry in determining whether it may be constitutionally privileged. Rather, the relevant inquiry is whether the statement could be reasonably understood as deelar-ing or implying a provable assertion of fact.” Roussel v. Robbins, 688 So.2d 714, 723 (Miss.1996) (citations omitted).

¶48. Livingston stated in his affidavit that after speaking with an investigator with the sheriffs department he relayed the information he was told, namely that “if Hudson demanded and received money or something of value in response to any representation that he would otherwise write negative things about the business in the newspaper, then that could amount to extortion or false pretense.” Livingston did not state that Hudson was guilty of extortion or false pretense, only that if what he was told by individuals at Precision was true that it could amount to extortion or false pretense. This statement could not be reasonably understood to imply that Hudson did, as a matter of fact, commit the crimes. Accordingly, Livingston’s statement cannot be “reasonably understood as declaring or implying a provable assertion of fact.” As such, his claim of defamation must fail.

D. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST HUDSON’S CLAIMS OF ‘WANTONNESS BEHAVIOR.”

¶ 49. The trial court held that, as with Hudson’s similar claim against the Palmer Defendants, his claim of intentional infliction of emotional distress against Livingston was barred by the statute of limitations. In line with our reasoning of issue 11(C) above, we agree. Additionally, the trial court again spoke to Hudson’s claim for defamation and held that it was also barred by Mississippi Code Annotated section 15-1-35. In line with our reasoning of issue 11(A) above, we agree. As such, this issue is without merit.

¶ 50. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY 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.

      . Hudson included Community Newspaper Holdings as he believed it was the publisher of The Laurel Leader-Call. Additionally, ABC Insurance Company was listed as the unknown insurance carrier of the paper.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Wallace D. PRATT, Appellant v. Josephine G. PRATT, Appellee.
    No. 2006-CA-00206-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.
    Rehearing Denied Dec. 4, 2007.
    Wren Carroll Way, Vicksburg, attorney for appellant.
    Eugene A. Perrier, Vicksburg, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Wallace D. Pratt and Josephine G. Pratt were divorced on February 26, 2002, on grounds of irreconcilable differences in Warren County Chancery Court. The Pratts entered into a property settlement agreement that was incorporated into the divorce judgment. On July 16, 2004, Wallace filed a motion to reform the property settlement agreement alleging the final agreement was formed under a mutual mistake of the parties due to a scrivener’s error in the drafting. A hearing was held, and on December 29, 2005, the chancellor entered a memorandum opinion and final judgment denying Wallace’s motion. On January 5, 2006, Wallace filed a motion for reconsideration. A hearing was held on the motion for reconsideration, and on January 13, 2006, the chancellor entered her final judgment denying the motion. Aggrieved, Wallace appeals asserting the following assignments of error for this Court’s review:

I. The chancellor erred in not reforming the property settlement agreement to conform to the intent of the parties.
II. The chancellor erred in not correcting a clerical mistake, pursuant to Rule 60(a) of the Mississippi Rules of Civil Procedure, in the property settlement agreement which was incorporated into its judgment of divorce. ■
III. The chancellor erred, pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure, in not correcting a mistake in the property settlement agreement incorporated into its judgment of divorce.

Finding no error, we affirm.

FACTS

¶2. Wallace and Josephine were married on July 3, 1963, in Florence, Alabama. They lived as husband and wife until April 15, 2001. On February 26, 2002, in the Chancery Court of Warren County, the Pratts were divorced on the grounds of irreconcilable differences. They incorporated a property settlement agreement (agreement), pursuant to Mississippi Code Annotated section 93-5-7, into the judgment of divorce for the purpose of resolving all- property rights between the parties. The agreement was executed by Wallace and Josephine, as well as their respective attorneys throughout the divorce and property settlement proceedings. Wallace’s attorney of record was R. Louis Field and Josephine’s was J. Mack Varner. As evidenced by the record, the agreement was reached by negotiations and correspondence mostly between the attorneys for their respective clients.

¶ 3. Initially, Varner sent Field a letter, via facsimile, on August 1, 2001, which requested information regarding (1) the balance of Wallace’s Thrift Savings Plan, (2) the amount of his Social Security benefits upon his retirement, and (3) the amount he would receive from his government retirement benefits so that Varner could draft a settlement proposal. On November 29, 2001, Varner sent Field a draft settlement proposal which divided marital assets of real and personal property. In pertinent part to this appeal, the proposal included a request for $1,500 permanent periodic alimony to be paid monthly and a surviving spousal annuity in the full amount allowed by the government from Wallace’s retirement benefits. The settlement proposal stated that Josephine would make no other claim on Wallace’s government retirement, Social Security, and thrift savings account in exchange for the alimony and surviving spousal annuity. The next correspondence of record was sent by Field to Varner on December 5, 2001, as a counteroffer to Varner’s originally proposed settlement. Field’s counteroffer stated that no alimony would be paid, Wallace would carry Josephine as a dependant on his health insurance, and that a surviving spousal annuity from Wallace’s government retirement would be provided for Josephine in the event Wallace predeceased her.

¶ 4. On December 10, 2001, Field sent Varner the complaint for divorce and indicated that a property settlement agreement was forthcoming. Wallace, through Field, filed the complaint for divorce on December 13, 2001. The next correspondence of record was a letter from Varner to Field on January 2, 2002, with a list of three “suggested changes” to the proposed property settlement agreement. For purposes of this appeal, paragraph three was the only one of consequence, which stated that Varner had an appointment with the office of personnel management at Waterways to educate himself on the language needed regarding “the health benefits under paragraph seven, and the spousal annuity under paragraph eight” of the agreement. On February 8, 2002, Varner sent Field a fax as an “addendum” to the agreement regarding paragraphs seven, eight, and nine which requested that the included language be added to the agreement. The addendum included the following language for paragraph eight:

In the event that Husband predeceases Wife, Husband agrees that Wife shall be paid fifty percent (50%) of his FERS and/or Civil Servants Retirement Service (CSRS) as a Retirement Surviving Spousal Annuity for Wife as his surviving spouse. Husband agrees that Wife will receive full benefits at time of retirement of Husband and not as of the date of the divorce. Wife shall only be entitled to said annuity if she survives Husband. Husband agrees at his retirement to execute such documents as may be required to make his election of Wife to be the beneficiary of the Surviving Spousal Annuity. Husband further agrees to execute any other additional documents required to facilitate payment of the Surviving Spousal Annuity described herein. Husband agrees that this Property Settlement .Agreement and Final Judgment of Divorce shall be forwarded to the Office of Personnel Management for the express purpose to reflect Husband’s election of Wife to receive full benefits of fifty percent (50%) of his FERS Retirement Surviving Spousal Annuity at his time of retirement, and for the Office of Personnel Management to make such notation in his files and records.

¶ 5. Wallace executed an agreement on February 14, 2002, that did contain the requested language of paragraph eight, from Varner’s February 8 fax; however, the language for. paragraphs seven and nine was not included. Josephine did not sign that agreement. Consequently, on February 22, 2002, the Pratts executed an agreement, which became part of the judgment of divorce on February 26, 2002. The suggested language from Varner’s February 8 fax- for paragraphs seven, eight, and nine was not included in the final agreement. For purposes of this appeal, the ultimate language of paragraph eight that was attested to by both parties and their attorneys was the following:

8. In the event that Husband predeceases Wife, Husband agrees that Wife shall be paid fifty percent (50%) of his FERS Retirement Annuity and/or Civil Servants Retirement Service (CSRS) as a retirement surviving spousal annuity for Wife as his surviving spouse. Husband agrees that Wife will receive full benefits at time of retirement of Husband and not as of the date of the divorce. Wife shall only be entitled to said annuity if she survives Husband. Husband agrees at his retirement to execute such documents as may be required to make his election of Wife to be the beneficiary of the Surviving Spousal Annuity. Husband further agrees to execute any other additional documents required to facilitate payment of the Surviving Spousal Annuity described herein. Husband agrees that -this Property Settlement Agreement and Final Judgment of Divorce shall be forwarded to the Office of Personnel Management for the express purpose to reflect Husbands’s election of Wife as his Surviving Spouse and for his Wife to receive full benefits of fifty percent (50%) of his FERS Retirement Annuity and/or CSRS at the time of retirement, and for the Office of Personnel Management to make such notation in his files and records.

¶ 6. On January 31, 2003, the Office of Personnel Management sent Wallace a letter which notified him that they had processed Josephine’s claim for the court-awarded portion of his civil service retirement benefit. The letter stated, “By court order we are to pay your former spouse 50% of your gross retirement annuity benefit and not as the date of divorce. Your former spouses’s benefit is to begin with the commencement of your retirement.” The letter also stated, “By direction of the court your former spouse is eligible for the maximum survivor annuity benefit based on your federal service.”

¶ 7. On July 16, 2004, Wallace filed a motion to reform the property settlement agreement, contending that the final agreement did not properly reflect what the parties agreed to regarding the surviving spousal annuity benefits in paragraph eight, and due to scrivener’s error and ambiguous -language there was a mutual mistake by the parties when they executed the agreement. On February 15, 2005, Josephine filed an amended response to Wallace’s motion in which she affirmatively asserted Wallace’s motion was barred and should be overruled because he had not filed the motion within six months of the divorce judgment, pursuant to Rule 60 of the Mississippi Rules of Civil Procedure.

¶ 8. The chancellor held a hearing on the motion for reformation, and on December 29, 2005, entered her memorandum opinion and final judgment denying Wallace’s motion. Specifically, the chancellor found that to make the final agreement reflect the prior draft, that Wallace argued was the true intent of the parties, would go beyond reformation. Furthermore, she found that the mistake asserted by Wallace went beyond the context of Rule 60(a) of the Mississippi Rules of Civil Procedure, which allows for reformation where there was a clerical mistake in the drafting of the agreement. The chancellor’s memorandum opinion thoroughly discussed the various drafts of the agreement and found that the draft Wallace asserted reflected the parties’ understanding and intent, had different-language in paragraph eight, as well as paragraphs seven and nine. Specifically, the chancellor found that the draft Wallace proposed had undergone further editing and drafting until a final agreement was reached by the parties. Additionally, the chancellor agreed with Josephine that Wallace’s motion was barred, pursuant to Rule 60(b)(2), because Wallace did not file his motion for more than two years after the final judgment was entered, whereas to fall within Rule 60(b)(2) a the motion to correct a mistake must be made within six months of the entry of judgment.

¶ 9. On January 5, 2006, Wallace filed a motion for reconsideration. A hearing was held on January 12, and on January 13, the court entered a final judgment that denied the motion for reconsideration finding that there was no error in the application of Rule 60(a) or Rule 60(b)(2). Aggrieved, Wallace appeals.

STANDARD OF REVIEW

¶ 10. This court has a limited standard of review when reviewing a chancellor’s decision. McNeil v. Hester, 753 So.2d 1057, 1063(¶ 21) (Miss.2000). Upon review of a chancellor’s opinion, when it is supported by substantial evidence and where the chancellor has not abused her discretion, was not manifestly wrong, clearly erroneous, or applied an erroneous legal standard, we will not disturb her opinion. Townsend v. Townsend, 859 So.2d 370, 371-72(¶ 7) (Miss.2003) (citing McBride v. Jones, 803 So.2d 1168, 1169(¶ 7) (Miss.2002)). Applying an abuse of discretion standard, we will not disturb a chancellor’s findings “unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” McNeil, 753 So.2d at 1063(¶21). However, we will review questions of law with a de novo standard. Stacy v. Ross, 798 So.2d 1275, 1278(¶ 13) (Miss.2001).

ISSUES AND ANALYSIS
I. The chancellor erred in not reforming the property settlement agreement to conform to the intent of the parties.
II. The chancellor erred in not correcting a clerical mistake, pursuant to Rule 60(a) of the Mississippi Rules of Civil Procedure, in the property settlement agreement which was incorporated into its judgment of divorce.
III. The chancellor erred, pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure, in not correcting a mistake in the property settlement agreement incorporated into its judgment of divorce.

¶ 11. All three assignments of error question the chancellor’s refusal to reform the agreement, and given that the arguments and analysis are so intertwined, we will discuss them collectively.

¶ 12. Wallace contends that paragraph eight of the agreement, specifically the last sentence, should read as follows:

Husband agrees that this property settlement agreement and final judgment of divorce shall be forwarded to the office of the personnel management for the express purpose to reflect husband’s election of wife to receive full benefits of the fifty percent (50%) of his FERS Retirement Surviving Spousal Annuity at his time of retirement, and for the office of personnel management to make such notation in his files and records.

Whereas, the last sentence of the agreement incorporated into the divorce judgment does not include the words “surviving spousal” after “FERS Retirement.” According to Wallace, the language he submitted for reformation was from a previous draft of the agreement; however, the submitted language reflects the true intentions of he and Josephine in reaching a property settlement agreement. Wallace contends that the omission of the words “surviving spousal” are ,the result of scrivener’s error and a clerical mistake that warrants reformation to the agreement to reflect the understanding and intent of the parties, pursuant to Mississippi Code Annotated sections 93-5-2(2) and 93-5-28. According to the letter from the Office of Personnel Management on January 31, 2003, Josephine’s claim to Wallace’s retirement is fifty percent of his gross retirement annuity benefit, to commence on the date of his retirement. The letter further states that Josephine “is eligible for the maximum survivor annuity benefit” based on Wallace’s federal service. Essentially, according to testimony from Wallace, this language means that Josephine will be paid surviving spouse benefits upon his retirement and the benefits that begin upon Wallace’s death, provided he predeceases her. Additionally, Wallace maintains that he never intended for Josephine to receive both payments of retirement benefits, and the insertion of the- words “surviving spousal”' into the last sentence of paragraph eight would have cleared the ambiguity that caused the Office of Personnel Management, to interpret the divorce judgment in such a way. We disagree.

¶ 13. Josephine maintains that the agreement executed by both parties on February 22, 2002, and incorporated into the judgment for divorce, reflects the true intent and understanding of their agreement as to 'the retirement benefits. She had originally requested alimony and, when Wallace refused alimony, she was of the understanding that the retirement benefits were in the place of the alimony payments. In her .testimony she stated that she believed ■ she accepted “fifty percent of his retirement in lieu of my $1,500 a month ... alimony that I had given up.” She also testified that she had maintained, through Varner, that she would relinquish her claim for alimony in exchange for Wallace’s retirement benefits.

¶ 14. Mississippi Rule of Civil Procedure 60 provides a vehicle for relief from a judgment or order. Specifically, Rule 60(a) provides for relief from a clerical mistake “arising from oversight' or omission” and states that such mistake may be corrected at any time by the court’s own initiative or upon a motion of any party. M.R.C.P. 60(a). Additionally, Rule 60(b)(2) provides that upon motion by a party the court may relieve a party or his legal representative from a final judgment for accident or mistake. M.R.C.P. 60(b)(2). The motion for relief under Rule 60(b)(2) ¡‘shall be made within a reasonable time, and not more than six months after the judgment.” Id.

¶ 15. While Wallace argues on appeal that the agreement should be reformed pursuant to Dilling v. Dilling, 734 So.2d 327 (Miss.Ct.App.1999), in which the Court upheld a chancellor’s reformation of a property settlement agreement incorporated into the divorce judgment pursuant to sections 93-5-2(2) and 93-5-23 of the Mississippi Code Annotated, we disagree with Wallace’s argument. Furthermore, we find that the chancellor did not err in her application of Rule 60(a), finding that reformation “would not make the final agreement a mirror-image of the prior draft, and to make the final agreement reflect the prior draft, the court would have to go beyond reformation.” We agree with the chancellor’s finding and her application of Rule 60(a). In Whitney Nat’l Bank v. Smith, 613 So.2d 312, 315 (Miss.1993), the court stated, regarding the application of Rule 60(a), “the power granted in the rule cannot be utilized to change the effect of a judgment, where the changed effect is not manifest from the record that the change reflects the original intent.” Townsend, 859 So.2d at 375(¶ 19) (citing Whitney, 613 So.2d at 315).

¶ 16. We do not find that the chancellor abused her discretion or was manifestly wrong, clearly erroneous, or applied a erroneous legal standard, as required by Townsend. Townsend, 859 So.2d at 371— 371(¶ 7). The record makes it clear to this Court that the Pratts reached their agreement by and through the negotiations of their attorneys. However, we are not persuaded that the language proposed by Wallace reflects the original intent of the parties and, therefore, we cannot say that the omission of the words “surviving spousal” was a clerical mistake or scrivener’s error that would allow for reformation of the agreement. A thorough comparison of the documents provided in the record before us does not lend this Court to agree with Wallace’s contention that the final agreement should be reformed due to a mutual mistake of the parties. While Field’s testimony that the agreement incorporated into the judgment for divorce was a result of scrivener’s error by his secretary, we agree with the chancellor’s findings that to reform the agreement would cause a very different agreement than that which was clearly signed by both Josephine and Wallace, attested to by Field and Varner, and incorporated into the judgment for divorce on February 26, 2002.

¶ 17. Additionally, pursuant to Rule 60(b)(2), Wallace had six months to bring his motion for reformation. Wallace did not file his motion to reform until July 16, 2004, over two years after the judgment for divorce was entered. He argues that even if the court did not have authority to grant relief under Rule 60(b)(2), that the court should reform the agreement pursuant to Rule 60(b)(6). Rule 60(b)(6) states that relief may be granted from a final judgment for “any other reason justifying relief from judgment,” which serves as a catch-all exception for relief when equity demands. M.R.C.P. 60(b)(6); Townsend, 859 So.2d at 375(¶ 16). Additionally, a Rule 60(b)(6) motion for relief does not have a specific time limit for bringing the motion as Rule 60(b)(2). However, the court has repeatedly held that in order to be granted relief under a Rule 60(b)(6) motion, the claimant must show exceptional circumstances existed that warrant a modification and/or reformation to the judgment. Townsend, 859 So.2d at 375(¶ 16) (citing Moore v. Jacobs, 752 So.2d 1013, 1017(¶17) (Miss.1999)); Bryant, Inc. v. Walters, 493 So.2d 933, 939 (Miss.1986).

¶ 18. Wallace argues the agreement should be reformed because of the inequity allowed for as it reads, where Josephine is designated the surviving spouse and will receive surviving spousal annuity benefits at Wallace’s death and fifty percent of Wallace’s retirement at the date of his retirement. We disagree with Wallace’s contention and do not find that the circumstances are of such an exceptional nature as to warrant reformation under Rule 60(b)(6). The chancellor considered Wallace’s argument that the agreement should be reformed because of its inequity, pursuant to Rule 60(b)(6), in his motion for reconsideration and did not agree. We find that the chancellor did not abuse her discretion in denying Wallace’s motion, nor was she in error in her application of the rule; therefore, we will not disturb her opinion.

¶ 19. Lastly, Wallace received the letter from the Office of Personnel Management on January 31, 2003; however,- he did not file his motion for reformation until July 16, 2004, nearly a year and a half later. Wallace testified that he was not aware there was any time limitation involved and that it was not until he began considering retirement that he took issue with the agreement. We find that even if there was a clerical mistake or accident pursuant to Rule 60(b)(2), Wallace waived such argument by not taking action to reform the mistake within six months of the judgment and/or within six months of receiving the notification from the Office of Personnel Management of Josephine’s claim to his retirement.

¶20. After consideration of the record before us, the arguments presented by Wallace and Josephine, and the applicable law, we find Wallace’s assignments of error I, II, and III to be without merit for all the reasons stated above.

¶ 21. THE JUDGMENT OF THE WARREN 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, ROBERTS AND CARLTON, JJ., CONCUR.

      .Varner’s paragraph five regarding the surviving spousal annuity stated, "a surviving spousal annuity must also be provided for Wallace in the full amount allowed by the government for Jo’s security at Wallace’s death.” Field's paragraph five stated, "surviving spousal annuity from the Government retirement will be provided to Jo if Wallace predeceases her.”

      . This original draft of the agreement is not in the record, and Field testified that he did not retain a copy of the original agreement on his computer.

      . Wallace's place of employment.

      . The last sentence of the executed agreement reads as follows: “Husband agrees that this property settlement agreement and final judgment of divorce shall be forwarded to the Office of Personnel Management for the express purpose to reflect husband’s election of wife as his surviving spouse and for his wife to receive full benefits of fifty percent (50%) of his FERS Retirement Annuity and/or CSRS at his time of retirement, and for the Office of Personnel Management to make such notation in his files and records.”


author: GRIFFIS, J.,

text:
    Cynthia Scarborough THOMAS, Appellant v. Tom SCARBOROUGH and Marsha Scarborough, Appellees.
    No. 2005-CA-02137-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2007.

      Patrick M. Rand, Canton, attorney for appellant.
    David L. Morrow, Jr., Brandon, John R. Elliot, Jr., attorneys for appellees.
   MODIFIED OPINION ON REHEARING

GRIFFIS, J.,

for the Court.

¶ 1. The motion for rehearing is granted. The original opinion is withdrawn and this opinion is substituted in lieu thereof.

¶ 2. In an interpleader action filed by M-Tee Title and Escrow Services, Inc., and joined by Appellant Cynthia Thomas, the chancellor awarded the $22,141.57 balance of the interpleader fund to Appellees Tom and Marsha Scarborough. Although the Scarboroughs breached a Lease Purchase Agreement for real property owned by Thomas, the court determined that an award of the funds to Thomas would constitute unreasonably large liquidated damages. Aggrieved by the trial court’s ruling, Thomas appeals raising the following issues:

I. WHETHER THE CHANCERY COURT ERRED IN ADOPTING VERBATIM THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW SUBMITTED BY THE SCAR-BOROUGHS?
II. WHETHER THE CHANCERY COURT ERRED IN APPLYING MISSISSIPPI CODE SECTION 75-2-718(1) TO THE DISPUTE INVOLVING A LEASE PURCHASE OF REAL PROPERTY AND THEREBY FINDING THE FORFEITURE OF THE $30,000 EQUITY PAYMENT TO BE UNCONSCIONABLE?
¶ 3. We affirm.

STATEMENT OF THE FACTS

¶ 4. On October 30, 2001, Tom and Marsha Scarborough entered into a Lease Purchase Agreement (Agreement) with Cynthia Thomas concerning real property located at 27 Thorngate Drive, Brandon, Mississippi 39042. The lease purchase contract, prepared by Thomas’s attorney, provided that the Scarboroughs would lease the subject property for forty-eight months at the rate of $1,550 per month (“rent”), plus $5,481.52 per annum (“additional rent”), pay all ad valorem taxes due on the property during the term of the lease, ■ and pay a $1,750 initial security deposit. At the conclusion of the lease term, the contract provided the Scarbor-oughs with an option to purchase the subject property for $54,815.18./ The purchase price was computed as follows:

Agreed Purchase Price: $224,900.00
Prior Equity Credit $ 1,628.53
Current Equity Credit $530,000.00
Current Loan Balance $138,456.29
Purchase Price 54,815.18

The term “prior equity credit,” in the amount of $1,628.53, represents the amount paid by the Scarboroughs prior to signing the Agreement, and the amount of $30,000, termed “current equity payment,” represents the amount paid on the date of closing.

¶ 5. In May 2004, the Scarboroughs breached the Agreement by failing to timely pay rent. In July 2004, the. Scar-boroughs vacated the premises and requested that Thomas return the $30,000 equity payment and $1,750 security deposit; Thomas refused. The Scarboroughs filed a lis pendens on the property with the Chancery Clerk of Rankin County. When Thomas desired to sell the property to a third party, she agreed to deposit the disputed monies with the Rankin County Chancery Court in return for the Scarbor-oughs’ release of the lis pendens. After deducting past due rent ($3,875), past due additional rent ($3,882.74), the Scarbor-oughs’ share of unpaid property taxes ($1,770.44), and a pool repair bill ($80.25), Thomas deposited into the registry of the court, $22,141.57 withheld from the funds she received at the closing of the sale of the property to the third party.

¶ 6. On December 7, 2004, M-Tec Title and Escrow Services, Inc., joined by Thomas, filed its complaint for interpleader. The Scarboroughs answered the complaint and requested that they be awarded the interpleader fund. The basis of their argument was the existence of an alleged ambiguity of definitions in the contract between paragraphs two and ten, and on the assertion that the forfeiture clause, found in paragraph ten of the Agreement, constitutes an unreasonable liquidated damages provision and an unconscionable penalty under Mississippi Code Annotated section 75-2-718(1). Thomas argues that the parties were free to contract, the language of the agreement is clear and unambiguous, and the forfeiture of the disputed monies is not liquidated damages, but rather a down payment on the purchase of the property.

¶ 7. In the case sub judice, the chancellor ruled only on the contract, exhibits, and briefs submitted by the parties; no hearings or oral arguments were held. He determined that an ambiguity exists between paragraphs two and ten concerning what would be forfeited in the event of default, and that such ambiguity should be construed against Thomas as drafter of the Agreement. Ruling for the Scarboroughs, the chancellor held that the award of the interpleader fund to Thomas would constitute an award of unreasonably large liquidated damages and therefore was an unconscionable penalty under Mississippi Code Annotated section 75-2-718(1). The chancellor further concluded that Thomas had failed to show any actual harm and had been made whole upon the resale of the property. ■

LEGAL ANALYSIS

I. WHETHER THE CHANCERY COURT ERRED IN ADOPTING VERBATIM THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW SUBMITTED BY THE SCARBOROUGHS?

¶ 8. Thomas argues that the chancery court erred in adopting verbatim the proposed findings of fact and conclusions of law submitted by the Scarboroughs. In support of her arguments, she asserts that the chancellor made no independent inquiry into the facts of the case, but merely rubber-stamped the proposed findings of fact and conclusions of law submitted by the Scarboroughs. The Scarboroughs, in turn, argue that the chancellor is well within his discretion to adopt verbatim a party’s findings of fact and conclusions of law. Additionally, the Scarboroughs argue that the chancellor’s findings of fact and conclusions of law were almost, but not completely, verbatim to those they submitted, and that the chancellor added his own findings, which tends to show independent insight and inquiry.

DISCUSSION

¶ 9. The Mississippi Supreme Court has held that a trial court may, within its sound discretion, adopt verbatim or almost verbatim the findings of fact and conclusions of law submitted by a party. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1266 (Miss.1987). However, less deference is afforded to the chancellor’s findings when the chancellor adopts verbatim or “almost verbatim” one party’s findings of fact and conclusions of law. Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995). The problem with adopting verbatim, or almost verbatim, the findings submitted by counsel is that these findings simply are not the same as findings independently made by the trial judge after impartially and judiciously sifting through the conflicts and nuances of the case. Still, under our standard of review, “[tjhis Court will not disturb the findings of the chancellor when supported by substantial evidence unless the chancellor has abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26, (¶ 18) (Miss.2002).

¶ 10. Upon review of the record, it is apparent that the chancery court adopted the proposed findings of fact and conclusions of law submitted by the Scar-boroughs, subject to a few additions. We note that Thomas failed to submit findings of fact and conclusions of law on her own behalf to the chancellor. This Court recognizes the complexities and nuances of individual cases, which in addition to crushing trial court caseloads necessitate substantial reliance upon the submissions of trial counsel. Hiter, 512 So.2d at 1266. Therefore, this Court will not find such reliance to be in error so long as evidence exists which reasonably tends to support the chancellor’s findings. Sanderson, 824 So.2d at 625-26(¶ 18). Here, the chancellor was asked only to determine whether the Agreement was clear on its face concerning the equity payment and security deposit, and whether the forfeiture of these payments constituted unconscionable and unreasonably large liquidated damages. We are convinced that the chancery court committed no procedural error in adopting almost verbatim the Scarbor-oughs’ proposed findings of fact and conclusions of law.

II. WHETHER THE CHANCERY COURT ERRED IN APPLYING MISSISSIPPI CODE SECTION 75-2-718(1) TO THE DISPUTE INVOLVING A LEASE PURCHASE OF REAL PROPERTY AND THEREBY FINDING THE FORFEITURE OF THE $30,000 EQUITY PAYMENT TO BE UNCONSCIONABLE?

¶ 11. Thomas argues that the chancellor erred in applying Mississippi Code Annotated section 75-2-718(1) to a contract for the lease purchase of real property, and also in finding a forfeiture of the $30,000 equity payment unconscionable. The Scarboroughs argue that the chancellor followed the precedent established by the Mississippi Supreme Court in applying the equitable concepts of section 75-2-718(1) to a contract involving real property and that the chancellor properly found the forfeiture of the $30,000 equity, payment unconscionable.

DISCUSSION

¶ 12. Statutory interpretations are questions of law. Grand Casino Tunica v. Shindler, 772 So.2d 1036, 1038(¶8) (Miss.2000). “We conduct a de novo review for determinations of legal questions.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002). Thus, in interpreting section 75-2-718(1) and its application to the Agreement now in dispute, this Court ■ sits in the same position as if it were the Chancery Court of Rankin County. After thoroughly reviewing the Agreement, we conclude that it is clear and unambiguous on its face. The Agreement provided the terms of the lease, an option to purchase, and a specific provision for the forfeiture of all payments in the event of default. Both Thomas and the Scarboroughs performed dutifully under the terms of the Agreement for approximately two and a half years before the Scarboroughs breached • the Agreement in May 2004, by failing to timely pay rent. The ■ Scarboroughs now seek to recoup monies described in the Agreement as “current equity payment” ($30,000) and “security deposit” ($1,750), after having breached the Agreement. They argue that an alleged contradiction between paragraphs two and ten of the Agreement created an ambiguity concerning whether the current equity payment would be refunded in the event of breach by the lessee. • Paragraph two, entitled “Rent/Lease Purchase,” states in relevant part:

Lessor and Lessee agree that payments of Rent, Additional Rent, and taxes will not be refunded or credited to Lessee if Lessee fails to purchase the Property in accordance with the terms of this Lease and that all such payments will be deemed Rent earned by Lessor.

Paragraph ten, entitled “Default and Remedies” states in relevant part:

If a forfeiture is enforced at the sole option of the Lessor, Lessee shall forfeit all rights and interest in and to the Property and all appurtenances thereto and shall immediately surrender to Lessor peaceable possession of the Property and further shall forfeit all payments made hereunder together with all improvements placed on or in or made to the Property.

(emphasis added).

¶ 13. The Scarboroughs contend that the failure of paragraph two to include the equity payment and security deposit as “payments” that would not be refunded, renders the forfeiture of “all payments” under paragraph ten ambiguous, and that since Thomas’s attorney prepared the contract, any ambiguity should be construed against Thomas. Undoubtedly, “ambiguities in a contract are to be construed against the party who drafted the contract.” Mason v. Mason, 919 So.2d 200, 204(¶ 12) (Miss.Ct.App.2005) (citing Banks v. Banks, 648 So.2d 1116, 1121 (Miss.1994)). However, we find no ambiguity in the Agreement, as there is no conflict between paragraph two and paragraph ten. Paragraph two speaks only to the payments of rent, additional rent, and taxes as being non-refundable. The language used in the Agreement is standard contract language; the meaning is clear and does not in any way preclude the contract from separately establishing remedies available to the parties in the event of default. Paragraph ten, entitled “Default and Remedies,” clearly provides that in the event of default the lessee “shall forfeit all payments made hereunder [the Agreement].”

¶ 14. Alternatively, the Scarbor-oughs argue that, even if the Agreement is unambiguous, the forfeiture of the current equity payment is an unreasonably large liquidated damages provision under section 75-2-718(1). The code section provides:

Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

Miss.Code Ann. § 75-2-718(1) (Rev.2002). Thomas argues that an application of this code section to a lease purchase of real property is in error because Title 75 is an adoption of the Uniform Commercial Code, only applicable to goods and services, and inapplicable to contracts concerning real property.

¶ 15. The Mississippi Supreme Court has recognized the logic behind the Uniform Commercial Code’s treatment of liquidated damages in goods and services contracts, and has applied that logic to land sale contracts. Maxey v. Glindmeyer, 379 So.2d 297, 301 (Miss.1980). In that case, Dr. and Mrs. Maxey contracted to buy Oak Crest Manor from Joyce Glind-meyer. Id. at 298. The Maxeys made a $75,000 down payment. Id. The contract provided that if the Maxeys breached the contract, Glindmeyer “shall have the right to declare the $75,000 of the deposit, ipso facto forfeited as liquidated damages ... or [she] may demand specific performance.” Id. at 299. When the Maxeys breached, she exercised her option to keep the $75,000. Id. The court agreed that the Maxeys had breached. Id. at 300. However, it disagreed “that forfeits ipso facto the $75,000 down payment, earnest money or forfeit, or penalty, or whatever name it may be called.” Id. (emphasis added). The court noted that “Both parties ... have invoked equity principles controlling relief. Courts of equity are not friendly to forfeitures. Equity abhors a forfeiture.” Id. at 300-01 (citations omitted). The court faulted the chancellor for:

operating a forfeiture of the entire down payment without regard to whether Mrs. Glindmeyer has actually suffered $75,000 in damages or not. We believe this state of facts is such that there should be no part thereof allotted to her beyond a sum reasonably necessary to cover her actual damages. It is inequitable to award her any amount in excess thereof. Equity will enforce a contract for liquidated damages if such ... can be found to be reasonable and proper in the light of the circumstances of the case.

Id. at 301 (emphasis added). The court extended the Uniform Commercial Code rule of forfeitures to the real estate contract:

Damages for .breach ... may be liquidated ... but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasability of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

Id. (quoting Miss.Code Ann. § 75-2-718). The court reversed and remanded to the chancellor to determine “the damages actually sustained by” Glindmeyer. Id. (emphasis added).

¶ 16. Maxey is on all fours with this case. This was a real estate contract where $30,000 was made as a down payment. The contract likewise gave Thomas the right to treat the Scarboroughs’ failure to timely pay rent as a material breach and forfeit the $30,000. She exercised that option. As a result, the chancellor found not only that the forfeiture was an unreasonable assessment of damages, but also that there was no difficulty in proving the landlord’s “loss”/profit. So long as there is substantial credible evidence to support this finding, we must affirm.

¶ 17. The contract makes clear that the only thing that Thomas gets as a result of the lease and non-exercise of the purchase option is rent ($1,550 per month), additional rent ($5,848.12 per year) and property taxes. By the contract’s own express, unambiguous terms, she is not entitled to keep the $30,000 “current equity” payment unless (1) the Scarboroughs buy the house, or (2) as reasonable liquidated damagés for breach of the rental agreement. Under the agreement, the Scarboroughs were obligated to rent the home for four years (from November 2001 through October 2005). They failed to timely pay rent in May 2004. They vacated the premises in July of 2004, with 16 months remaining on the lease. Thomas was paid through July of 2004. Thomas. sold the house for $215,000 on November 9, 2004 and paid off the house’s mortgage. Therefore, Thomas’s damage calculation includes:

Expectation:
16 months rent @ $1,550 per month $24,800.00
16 months additional rent (5848.12 . + (5848.12-3882.74)) 7,813.50
16 months property taxes calculated as follows: 3,540.88
8 months = 1,770.44
2/3(lyear) = 1,770.44
1 year = 1,770.44(3/2)
1 year = 2,655.66
4 months = 1/3(2,655.66) = 885.22
16 months = 2,655.66 + 885.22 = 3540.88
16 Total 16 months expectation damages: 36,154.38
Less cover on the November 2004 sale:
$215,000-132,029.01(mortgage)-14,012.81(closing costs) ¿9,028.05
Total realized by Thomas: $32,873.67 profit.

¶ 18. In other words, Thomas is $32,873.67 better off because of the Scar-boroughs’ breach. . She therefore has no damages. In light of this, the forfeiture of $81,750 is an unreasonable penalty pursuant to Maxey. The chancellor so held, because he found that Thomas actually realized a profit from the breach. We agree.

¶ 19. Because she did not suffer any actual damages, but rather she profited over and above the $30,000, Maxey compels the conclusion that the $30,000 forfeiture was void as a penalty.

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

KING, C.J., MYERS, P.J., IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. LEE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . It is worth noting that Thomas calculates her damages as only $4,000 after covering with the November sale. Even under her own analysis, she is only entitled to this much and the rest should be forwarded to the Scar-boroughs.


author: KING, C.J.,

text:
    Jerry Demetrius DELOACH, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-02103-COA.
    Court of Appeals of Mississippi.
    March 18, 2008.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by Desh-un T. Martin, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. On November 29, 2006, Jerry Demetrius Deloach was convicted of burglary of a church in the Circuit Court of Lowndes County, Mississippi and sentenced to serve fourteen years in the custody of the Mississippi Department of Corrections. On appeal, Deloach asserts the following two issues, stated verbatim: “(1) whether the trial court committed reversible error in failing to grant the submitted jury instruction on the alternate defense and/or lesser-included offense theory of the case, and (2) whether the trial court erred in failing to sua sponte declare a mistrial for ineffective assistance of counsel.” Finding no error in the trial court’s decision, we affirm.

FACTS

¶ 2. On February 14, 2005, the Full Gospel Ministry Church in Lowndes County, Mississippi was burglarized. Detective Louis Alexander responded to the call and noticed that the side door of the church appeared to have been kicked in. He entered the church and was led into the church office. There, he found papers on the floor, and it appeared that the room had been ransacked. There was no defacing of the property, but it appeared that the room had been searched. Nothing of value appeared to have been taken from the church. However, Detective Alexander located two checks pulled out of a checkbook, and the checks were signed “Jerry Deloach.”

¶ 3. A church member identified Deloach as one of the church’s parishioners, and Detective Alexander questioned Deloach about the incident. Deloach admitted that he attended the church, but he denied burglarizing the church or signing his name on the checks.

¶ 4. Maxine Hall, the church’s pastor, was interviewed and stated that she had known Deloach for two or three years prior to the incident. The Sunday before the burglary, Deloach had approached the pastor after church and asked for two hundred dollars to assist in purchasing a car. The pastor led Deloach back to the church’s finance department. The pastor testified that she received the money from the finance department and gave Deloach cash money. She instructed Deloach to sign a blank check on the endorsement line as a method of keeping a record for the church’s receipts. She testified that she did not authorize Deloach to sign the two checks that were found on the desk the day of the burglary.

¶ 5. Later, Deloach was formally interviewed by the Columbus Police Department. At this time, Deloach was not under arrest, but he was held on a previous grand larceny charge. Two investigators, Detective Alexander and Detective Louis Greggs, were present at the interrogation. This interrogation was filmed, and the DVD was viewed in the presence of the jury.

¶ 6. At the beginning of the interview, Deloach denied ever being in the church on the day of the burglary. Deloach later confessed to breaking into the church. Detective Alexander prepared a written statement that was read aloud and given to Deloach to review. Deloach signed the written statement, which stated the following:

On Monday, February 14, around 2:30 p.m., I went to the Full Gospel Baptist Church on 19th Street North. This is the church I was attending for service. I kicked in the door on the south side. Once I got into the church, I started rambling through some office until I found a checkbook in one of the office[s]. My intent was to get back at my father, Jerry Brooks, who also attend[ed] the church and to steal some money. Once I saw the checkbook, I wrote my name on a check, but I did not take the check. Did not take anything from the church. I was in the church for about 20 minutes. I went back out the same door I kicked in.

¶ 7. At trial, Deloach alleged that he was coerced into making a confession to the police. He testified that he did not break into the church. Further, Deloach alleged that he only signed the statement because the detective, prior to picking him up for the interview, told him that if he did not want his parole revoked, he needed to give a statement that he entered the church. According to Deloach, the detective informed him that he would not go back to the penitentiary. This conversation was alleged to have occurred during an interview other than the one presented to the jury.

¶ 8. After jury deliberation, Deloach was found guilty of church burglary and sentenced to serve fourteen years in the custody of the Mississippi Department of Corrections. The trial judge noted that the length of Deloach’s sentence was influenced, in part, by Deloach’s acknowledgment during the sentencing hearing that he had burglarized the church. Deloach informed the trial court that he did not want to be sentenced to the same amount of time as someone who actually removed property during a burglary. The trial court, finding that Deloach had no regard for the necessity of being truthful to the trial court, deemed that Deloach should be punished as such.

¶ 9. Deloach timely files this appeal.

DISCUSSION

I. Whether the trial court committed reversible error in failing to grant the submitted jury instruction on the alternate defense and/or lesser-included offense theory of the case.

¶ 10. Deloach’s counsel submitted a jury instruction for the crime of vandalism, which was treated as a lesser-included offense instruction. Deloach argues that the trial court erred in failing to submit this instruction to the jury because the evidence showed that Deloach intended to vandalize, not steal from the church. De-loach argues that he was entitled to present this alternate, though inconsistent, theory of defense to the jury.

¶ 11. In order for a lesser-included jury instruction to be submitted to the jury, the defendant must be able to point “to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser-included offense.” Smith v. State, 907 So.2d 292, 295(15) (Miss.2005) (quoting Ladnier v. State, 878 So.2d 926, 932(¶ 21) (Miss.2004)). A trial judge will not be held in error for refusing to give a requested jury instruction that incorrectly states the law, is already sufficiently addressed in the instructions, or is without an evidentiary foundation. Id. at 295(13).

¶ 12. Deloach cites Brown v. State, 969 So.2d 891 (Miss.Ct.App.2007), reversed by Brown v. State, 969 So.2d 855, 864(¶ 27) (Miss.2007) (on the issue of hearsay and Brown’s federal and state constitutional rights of confrontation), as authority that a criminal defendant is entitled to have an alternate and inconsistent defense theory presented to the jury. In Brown, the Court held that the defendant was entitled to present inconsistent and alternative theories in defense of charges of entrapment. Brown, 969 So.2d at 900(¶ 26) (citing Reddix v. State, 731 So.2d 591, 593(9) (Miss.1999)). However, Brown was not entitled to an entrapment jury instruction, because no evidence was presented to support such an inconsistent theory. Id. The same can be said for Deloach.

¶ 13. In this case, Deloach testified on the stand that he was not in the vicinity of the church during the burglary. Given Deloach’s testimony, there was no eviden-tiary foundation to support the jury instruction that Deloach vandalized the outside of the church instead of burglarizing the church. Jury instructions have to be supported by the evidence presented in the case. Jackson v. State, 815 So.2d 1196, 1200(7) (Miss.2002). Finding no error in the trial court’s decision to deny the submitted jury instruction, this issue is without merit.

II. Whether the trial court erred in failing to sua sponte declare a mistrial for ineffective assistance of counsel.

¶ 14. Deloach claims that his trial counsel’s actions during trial were per se ineffective assistance of counsel, because the defense attorney denounced Deloach’s testimony as false. This, Deloach claims, had the effect of impeaching his testimony and rendering his version of the events as untrue.

¶ 15. Deloach points to the defense counsel’s closing arguments, in which he stated the following:

DEFENSE COUNSEL: Okay. I am convinced that you believe from the evidence that Jerry broke in the church. I am convinced from the evidence that you probably believe that Jerry strew all these papers out that’s shown in the photographs ... and create[d] a mess. But I’m convinced from the evidence that you believe that Jerry stole nothing from the church. And I’m also convinced that nothing was stolen from the church despite the fact that there’s .plenty there to steal according to [the pastor] and according to that videotape where Jerry told the other officer that was interviewing him.

¶ 16. Deloach argues that this statement, in light of the fact that Deloach testified he was not present at the church during the burglary, portrayed Deloach as a liar in front of the jury. Deloach also argues that the .trial counsel failed to object to the detective’s testimony that his investigation techniques were designed.to get at the truth- — affirming by the irrelevant opinion of a lay witness that Deloach was truthful in admitting to the crime during his interrogation. Because the case hinged on this confession and the defense counsel failed to object to this testimony, Deloach argues that his trial counsel affirmed that his testimony was false and assured his conviction.

¶ 17. In order for the appellate court to review ineffective assistance of counsel issues on direct appeal, the record must affirmatively show that the defendant has been denied effective assistance of counsel. If the record does not affirmatively demonstrate that counsel was ineffective, this Court should proceed to decide the case on other issues. Read v. State, 430 So.2d 832, 841 (Miss.1983). If the case is reversed on other grounds, the ineffective assistance issue is moot. Id If the Court should otherwise affirm, it does so without prejudice, to the defendant’s rights to raise the ineffective assistance of counsel issue via post-conviction proceedings. Id.

¶ 18. “Only in those cases where the Court cannot decide the ineffective assistance of counsel issue on the record presented on direct appeal and in those cases where the judgment of conviction is otherwise affirmed will it be necessary actually to hold evidentiary hearings.” Colenburg v. State, 735 So.2d 1099, 1102(¶ 5) (Miss.Ct.App.1999) (quoting Read, 430 So.2d at 842).

¶ 19. We review Deloach’s claims to determine from the four corners of the trial record whether trial counsel’s performance was ineffective. Colenburg, 735 So.2d at 1102(¶ 8). If we are able to determine from the record that trial counsel was ineffective, then it should have been apparent to the trial judge to declare a mistrial or order a new trial, sua sponte. Id.

¶ 20. The Mississippi Supreme Court has adopted the two-pronged ineffective assistance of counsel analysis as announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Colenburg, 735 So.2d at 1102(¶ 9). Under the Strickland analysis, a claimant must show that: (1) the counsel’s performance was deficient and (2) the deficient performance prejudiced the claimant such that confidence in the outcome of the case was undermined. Alexander v. State, 605. So.2d 1170, 1173 (Miss.1992).

¶ 21. From the record, Deloach fails to show that, but for his attorney’s errors, there was a reasonable probability that he would have received a different result. Deloach’s taped confession, where he actually confessed to committing the burglary, is the most damaging evidence.

¶ 22. Aside from this, the circumstantial evidence is very damaging as well. De-loach was in the office the day prior to the burglary, when he received money from the pastor, and there were two checks found in the office with Deloach’s signature on them.

¶ 23. Deloach fails to prove that his trial counsel was so deficient that the trial judge should have, sua sponte, declared a mistrial based on ineffective assistance of counsel. This issue is without merit; however, Deloach is not precluded from asserting an ineffective assistance of counsel claim through post-conviction proceedings.

¶ 24. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A CHURCH AND SENTENCE TO SERVE FOURTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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