author: CHANDLER, Justice, LAMAR, Justice,

text:
    Candice YOUNG, Personal Representative of the Wrongful Death Beneficiaries of Cherie S. Hancock, Deceased v. Donald C. GUILD, M.D.
    No. 2004-CA-02532-SCT.
    Supreme Court of Mississippi.
    April 23, 2009.

      Ronald M. Kirk, attorney for appellant.
    Whitman B. Johnson, III, Denice C. Wesley, attorneys for appellee.
   ON MOTION FOR REHEARING

CHANDLER, Justice,

for the Court.

¶ 1. The appellee’s/cross-appellant’s motion for rehearing is granted. The previous opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. In this wrongful death suicide case, the Court must consider several evidentia-ry issues and determine whether the trial court properly instructed the jury. We find that no reversible error occurred. Therefore, we affirm on the direct appeal, and we dismiss Dr. Guild’s cross-appeal as moot.

FACTS

¶ 3. Jim Herring, Cherie S. Hancock’s divorce attorney, referred his client to Donald C. Guild, M.D., a psychiatrist, for a mental evaluation and medical treatment. Herring wanted Dr. Guild’s expert opinion for a divorce proceeding that involved Hancock and her husband, George Thomas Hancock. Hancock’s mental state was at issue in the proceeding.

¶ 4. Dr. Guild first met with Hancock on August 7, 1999. Hancock informed Dr. Guild that during the 1990s her relationship with her husband and children had deteriorated; she had suffered a miscarriage; and she previously had shot herself in the chest in an attempt to commit suicide. Hancock visited Dr. Guild’s office again on August 16, 1999. Dr. Guild began to treat Hancock on an inpatient basis at St. Dominic Hospital in Jackson, Mississippi, on August 20,1999.

¶ 5. On September 15, 1999, Dr. Guild testified at Hancock’s divorce hearing. When asked the question, “[D]o you have an opinion as to what her condition would be if she is not allowed to move back into [her] house and have free reign [sic]?”, Dr. Guild responded:

I really just don’t want to think about that. I don’t think it will be good at all. I hope she would make it, but we have to find another place for her to live. It won’t be permanent. It will be a temporary place. And for anybody else, for most other people, they could look ahead and see the fact that they’re going to come out all right. But I’m afraid she can’t do that. With her depression and everything, it’s going to be clouded, she’s going to be hopeless. I’m afraid she will take her life.

¶ 6. Dr. Guild was also asked how long he thought Hancock would need to be hospitalized. Dr. Guild responded, “I think I could put her back into the house in two days. I would feel comfortable doing that. If she goes someplace else I just wouldn’t estimate.” Further, when asked how life threatening it would be, in Dr. Guild’s opinion, for Hancock not to be allowed to go back to her house, Dr. Guild responded:

I can’t put a figure on it. I can’t put anything, but I couldn’t recommend it. I’m here today because I’m very fearful there is a good chance that if she doesn’t have that situation, she won’t be here and the need for a divorce won’t be before the court.

Dr. Guild discharged Hancock from the hospital on Friday, September 17, 1999.

¶ 7. Dr. Guild formulated a discharge plan for Hancock which provided that she live with her mother and stepfather. According to the plan, Hancock was to be “with someone at all times if possible.... [and] [i]f there was anything unusual ... [her mother and step-father] were to let [Dr. Guild] know.” Hancock’s parents were supposed to make sure that she took her medications and met with Dr. Guild on an outpatient basis. Dr. Guild did not speak with Hancock’s parents regarding the discharge plan, but he delegated that task to a social worker and Herring. Hancock committed suicide on September 20, 1999, three days after her release from St. Dominic Hospital.

¶ 8. As part of its investigation of Hancock’s suicide, the Yazoo County Sheriffs Department discovered various suicide notes at the suicide scene and at the home of Hancock’s mother. Throughout the notes, Hancock blamed her husband for her impending suicide, and she assigned her possessions to various family members. Hancock also left a note telling her children how much she loved them.

PROCEDURAL HISTORY

¶ 9. On September 14, 2001, Candice Young, individually and as personal representative of the wrongful death beneficiaries of Hancock, filed a complaint against Dr. Guild. Young alleged that Hancock was under the care and treatment of Dr. Guild from August 6, 1999, until her death on September 20, 1999. Young specifically alleged that Dr. Guild directly and proximately caused Hancock’s death by his negligence in: (1) failing to meet his duty of care in treating Hancock; (2) failing to adequately assess and screen Hancock as a suicide risk prior to releasing her from the hospital; and (3) failing to take reasonable steps to eliminate or mitigate situational factors of which he was aware that constituted a danger to Hancock and enhanced her ability to take her own life.

¶ 10. In his answer, filed on October 18, 2001, Dr. Guild admitted that he had provided treatment to Hancock prior to her death and that Hancock had taken her life by firearm on September 20, 1999. Dr. Guild affirmatively pleaded section 85-5-7 of the Mississippi Code Annotated and the doctrine of illegality.

¶ 11. During discovery, Dr. Guild’s counsel repeatedly attempted to depose Herring and eventually filed a motion to compel Herring’s deposition. In her “Plaintiffs Response to Defendant’s Motion to Compel,” Young asserted the attorney-client privilege and the work product doctrine on behalf of the deceased Hancock. Thereafter, the trial court denied Dr. Guild’s motion to compel Herring’s deposition by order filed April 5, 2004. The order did not contain any grounds for the denial, and the transcript of the hearing could not be located.

¶ 12. Dr. Guild also filed a motion for summary judgment contending that because suicide was a common law criminal act, the illegality defense barred Young’s claims against Dr. Guild. Further, Dr. Guild argued that because suicide is generally a superceding cause precluding liability, Young was required to show that her case qualified for the exception recognized in Mississippi, the Irresistible Impulse Doctrine. Dr. Guild averred that Young failed to show that Dr. Guild committed an intentional tort which caused an irresistible impulse in the decedent to commit suicide. Dr. Guild also argued that the suicide notes found by the Yazoo County Sheriffs Department demonstrated that Hancock understood the consequences of shooting herself; thus, her acts were volitional and not compensable.

¶ 13. Young responded that the defense of superceding cause is inapplicable in cases based upon the doctor/patient relationship. Young argued the jury should determine whether the suicide was foreseeable and determine the reasonableness of Dr. Guild’s actions. Young asserted that there were genuine issues of material fact as to whether Dr. Guild took reasonable steps to prevent Hancock’s suicide.

¶ 14. The trial court denied the motion for summary judgment without explanation on April 5, 2004. A jury trial occurred on August 17-19, 2004. Young called six witnesses, including Dr. Guild as an adverse witness. Young questioned Dr. Guild about whether he performed a suicide risk assessment and prepared a discharge plan.

¶ 15. Young also called Dr. Raymond F. Patterson to testify as a forensic psychiatry expert. Dr. Patterson testified that Dr. Guild violated the standard of care in the following respects: (1) he failed to perform a proper suicide risk assessment; (2) he discharged Hancock prematurely; (3) his discharge plan to assist Hancock’s survival in the community at the time of discharge was inadequate to that task; and (4) Dr. Guild’s failure to speak directly with Hancock’s mother and stepfather pri- or to her discharge violated the standard of care applicable to implementing a discharge plan.

¶ 16. Dr. Guild called four witnesses in his defense. Hancock’s best friend, Donna Carey Pigg, identified handwritten letters sent to her by Hancock, and she also testi-tied about Hancock’s familial interactions. Dr. Guild essentially testified that his treatment of Hancock comported with the standard of care. Willie Bell Hood, a deputy clerk at the Yazoo County Sheriffs Department, testified about her fax transmission of the Hancock investigation file to Dr. Guild’s counsel. Hood verified the date on the cover sheet as her own handwriting, but she could not identify the papers in the file as those she faxed or attest to the person who placed the papers in the file. Lastly, Dr. Sandra Holly testified as an expert in the field of psychiatry that Dr. Guild had met the standard of care in his treatment of Hancock.

¶ 17. At trial, Dr. Guild’s counsel made this offer of proof regarding the testimony of Herring:

[W]e would expect him to testify consistent with the — testify with regard to Ms. Hancock’s state of mind regarding how she was being treated and the effect it had on her, with regard to her discharge situation that she wanted to be — -wanted to go to her mama’s home, she didn’t want to stay in the hospital. He talked to Dr. Guild, and he also thought it was the right thing to do. She was not suicidal. Those would be the two main things, although we would also expect him to confirm various discussions he had with Dr. Guild that’s been testified to by Dr. Guild.

¶ 18. After the offer of proof, the trial court excluded any testimony from Herring. Thereupon, Dr. Guild requested that the court give a negative inference instruction to the jury. The court refused the instruction without comment.

¶ 19. The jury returned a verdict for Dr. Guild on August 24, 2004, and the trial court entered a final judgment on August 26, 2004. On November 22, 2004, the trial court denied Young’s motion for a new trial. On December 17, 2004, Young appealed, and on December 29, 2004, Dr. Guild cross-appealed.

DISCUSSION

ON DIRECT APPEAL

¶ 20. Young raises the following issues on direct appeal:

I. Whether the Trial Court Erred When It Denied Young’s Proposed Instructions P-5 And P-6.
II. Whether the Trial Court Erred in Denying Young an Apportionment Instruction.
III. Whether It Was Reversible Error for the Trial Court To Admit into Evidence Cherie Hancock’s Suicide Notes.
IV. Whether the Cumulative Errors Of the Admission Of Inappropriate References to Privileged Information and Inadmissible Hearsay of Conversations with the Decedent Constitute Reversible Error.

I. Whether the Trial Court Erred When It Denied Young’s Proposed Instructions P-5 and P-6.

¶ 21. Young requested two jury instructions that set forth the standard of care for medical malpractice and related the standard of care to specific evidentiary facts. Instruction P-5 read:

If you find from a preponderance of the evidence in this case that:
1. Given the circumstances of Cherie S. Hancock’s medical condition during the time the defendant, Donald C. Guild, saw and treated her, a minimally competent physician and psychiatrist who had available the same general facilities, services, equipment and options as Donald C. Guild had during the time she was his patient would not have discharged Mrs. Hancock on September 17,1999 from St. Dominic Hospital without performing a comprehensive suicide assessment and preparing an adequate discharge plan that included taking reasonable steps to provide a supportive environment and support system to Mrs. Hancock upon discharge; and
2. The defendant Donald C. Guild failed to comply with this standard of care in his treatment of the plaintiff; and
3. Such failure on the part of Donald C. Guild constituted a proximate cause or contributing proximate cause of the suicide death of Mrs. Hancock, then you must return a verdict for the plaintiff against the defendant, Donald C. Guild.

¶ 22. Instruction P-6 read:

If you find a preponderance of the evidence in this case that:
1. Cherie S. Hancock was a patient of Dr. Donald C. Guild; and
2. While a patient of Dr. Guild, Cherie S. Hancock was suffering from a mental and physical condition; and
3. Defendant, Donald C. Guild, should have reasonably been aware of Mrs. Hancock’s condition and was aware that she had previously attempted to commit suicide in 1996; and
4. That on September 15, 1999, defendant, Donald C. Guild testified in open court under oath in the presence of Cherie S. Hancock in a divorce preceding that in his opinion, if Cherie S. Hancock were not allowed to move back into the marital house that she would take her own life; and
5. That Donald C. Guild, knowing that Cherie S. Hancock, had not been allowed by the Court to return to the marital house, discharged her from St. Dominic Hospital two (2) days later on September 17, 1999 without performing a comprehensive suicide assessment or otherwise preparing an adequate discharge plan that included taking reasonable steps to provide a supportive environment and support system for Mrs. Hancock upon discharge; and
6. That Donald C. Guild failed to provide the care and attention that Cherie S. Hancock’s condition reasonable [sic] required and which a reasonable [sic] prudent and minimally competent psychiatrist treating Mrs. Hancock would have provided; and
7. That Donald C. Guild’s failure to provide such care and attention was the proximate cause or a proximate contributing cause of Cherie S. Hancock’s self-inflicted death by firearms on September 20, 1999, then your verdict should be for plaintiff.

The trial court denied instructions P-5 and P-6, finding that they improperly instructed the jury on what the standard of care required, when that decision was for the jury. Instead of P-5 or P-6, the trial court granted the following two medical negligence instructions:

[ (1) ] The Court instructs the jury that the word “negligence” as used in these instructions with regard to Dr. Guild’s actions means the doing of some act which a reasonably prudent, minimally competent psychiatrist treating a patient such as Ms. Hancock would not have done under the same or similar circumstances, or the failure to do some act which a reasonably prudent, minimally competent psychiatrist treating a patient such as Ms. Hancock would have done under the same or similar circumstances. Therefore, if you believe that, during his care and treatment of Ms. Hancock, Dr. Guild acted as a reasonably prudent, minimally competent psychiatrist would have acted when faced with the same or similar circumstances, it is your duty to return a verdict for the defendant, Dr. Guild.
If you believe that, during his care and treatment of Ms. Hancock, Dr. Guild failed to act as a reasonably prudent, minimally competent psychiatrist would have acted when faced with the same or similar circumstances, it is your duty to return a verdict for the plaintiffs.
[ (2) ] The Court instructs the jury that you may not return a verdict against Dr. Guild simply because Ms. Hancock committed suicide after being released from the hospital. Instead, the burden of proof is on the plaintiff to prove that the psychiatrist was guilty of negligence which caused the injury. In this case, the plaintiff must prove by a preponderance of the evidence that Dr. Guild was negligent in his treatment of Ms. Hancock and that such negligence, if any, caused her suicide. Therefore, before the plaintiff is entitled to a verdict in any amount whatsoever against Dr. Guild, she must prove by a preponderance of the evidence (1) that Dr. Guild failed to act as a reasonably prudent, minimally competent psychiatrist would have acted when faced with the same or similar circumstances, and (2) that such failure, if any, proximately caused Ms. Hancock’s death.

Other jury instructions set out the preponderance of the evidence standard, proximate cause, and the rules for the jury’s consideration of expert testimony.

¶ 23. Regarding jury instructions, the trial court possesses considerable discretion. Bickham v. Grant, 861 So.2d 299, 301 (Miss.2003) citing Southland Enters. v. Newton County, 838 So.2d 286, 289 (Miss.2003) (citing Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992)). A party is entitled to a jury instruction if it concerns a genuine issue of material fact and there is credible evidence to support the instruction. Mariner Health Care, Inc. v. Estate of Edwards, 964 So.2d 1138, 1156 (Miss.2007) (citing DeLaughter v. Lawrence County Hosp., 601 So.2d 818, 824 (Miss.1992)). While a party is entitled to jury instructions that present his theory of the case, this entitlement is limited; the trial court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Ford v. State, 975 So.2d 859, 863 (Miss.2008) (citing Howell v. State, 860 So.2d 704, 745 (Miss.2003)). “On the other hand, it would be error to grant an instruction which is likely to mislead or confuse the jury as to the principles of the law applicable to the facts in evidence.” Southland Enters., 838 So.2d at 289 (citing McCary v. Caperton, 601 So.2d 866, 869 (Miss.1992)).

¶ 24. On appellate review of the trial court’s grant or denial of a proposed jury instruction, our primary concern is that “the jury was fairly instructed and that each party’s proof-grounded theory of the case was placed before it.” Splain, 609 So.2d at 1239 (citing Rester v. Lott, 566 So.2d 1266, 1269 (Miss.1990)). We ask whether the instruction at issue contained a correct statement of law and was warranted by the evidence. Beverly Enters. v. Reed, 961 So.2d 40, 43-44 (Miss.2007) (citing Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986)). This Court will reverse based on the denial of an instruction upon a showing that the granted instructions, taken as a whole, do not fairly present the applicable law. Mariner Health Care, 964 So.2d at 1156 (citing Whitten v. Cox, 799 So.2d 1, 16 (Miss.2000)). Thus, “[i]f other instructions granted adequately instruct the jury, a party may not complain of a refused instruction on appeal.” Southland Enters., 838 So.2d at 289 (citing Purina Mills, Inc. v. Moak, 575 So.2d 993, 996 (Miss.1990)). In analyzing the aggregate jury instructions, “[djefects in specific in-struetions will not mandate reversal when all of the instructions, taken as a whole fairly — although not perfectly' — announce the applicable primary rules of law.” Beverly Enters., 961 So.2d at 43 (citing Burton v. Barnett, 615 So.2d 580, 583 (Miss.1993)).

¶ 25. On appeal, Young argues that the trial court’s refusal of instructions P-5 and P-6 constituted reversible error because the jury instructions granted by the trial court omitted Young’s fact-based theory of the case and were abstract when read as a whole. This Court has held that “[i]nstructions should be tied to the specific facts of the case and when given merely in the abstract, may be grounds for error.” McCarty v. Kellum, 667 So.2d 1277, 1287 (Miss.1995) (quoting T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 952 (Miss.1992)). “The test to determine whether or not an instruction is abstract is to determine whether or not the instruction relates to facts shown by the evidence on the issues involved in the case. If an instruction merely relates a principle of law without relating it to an issue in the case, it is an abstract instruction and should not be given by the Court.” Fred’s Stores, Inc. v. M & H Drugs, Inc., 725 So.2d 902, 918 (Miss.1998). “Abstract instructions on legal principles unrelated to facts and issues set out in the instructions are dangerous, because, although they may be correct in principle, they require legal training to properly interpret.” Kellum, 667 So.2d at 1287. This Court has stated that “[o]f late where we instruct our juries that all instructions must be considered as a whole, we do not consider abstractness as much of a vice, though we still do not regard it a virtue.” Fred’s Stores, 725 So.2d at 918. Notably, the granting of an abstract jury instruction will be considered reversible error only if the instruction tends to confuse and mislead the jury. Freeze v. Taylor, 257 So.2d 509, 511 (Miss.1972).

¶ 26. The aforementioned legal principles establish that Young is not entitled to reversal based upon the trial court’s refusal of instructions P-5 and P-6 if the granted jury instructions fairly and adequately instructed the jury on the applicable primary rules of law. Young argues that the granted jury instructions failed to meet this standard because they were abstract. Young contends that the granted instructions were abstract because, while they correctly stated the standard of care, they did not relate the standard of care to any facts alleged to be medical negligence.

' ¶ 27. We recognize that this Court has indicated that jury instructions on medical negligence should be made applicable to the particular facts of the case. Kellum, 667 So.2d at 1288. “[T]he use of an abstract instruction without application of the specific facts of the case under consideration invites reversible error.” Id. Nonetheless, “our review does not begin and end with the contested instructions.” Id. The overarching principle is that this Court will not reverse based upon the denial of a jury instruction if, considering the granted jury instructions as a whole, the jury was fairly and adequately instructed as to the applicable primary rules of law. See Canadian Nat’l/Ill. Cent. R.R. v. Hall, 953 So.2d 1084, 1100-01 (Miss.2007).

¶28. We find that no reversible error occurred in this ease because the jury instructions, considered as a whole, fairly and adequately instructed the jury on the applicable primary rules of law. The jury instructions correctly defined the elements of medical negligence, including the standard of care applicable to Dr. Guild in his care and treatment of Hancock. See Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1157 (Miss.1992) (in reviewing allegations that jury instructions on negligence were too general, this Court stated that “we ask only that the instructions, read collectively, fairly inform the jury ‘on the elements necessary to establish liability.’ ”). Any imperfection inherent in the failure to instruct the jury on the specific acts alleged to be negligent does not require reversal; Young’s theory of the case was squarely before the jury. While perhaps the trial court could have provided the jury with more definitive instructions, there is no doubt that in this case the outcome would have been the same. Given the jury instructions that were provided and the clear contrasting theories that were hammered home by the skilled counsel of both litigants, it is clear to this Comb that the jury had a firm understanding of the law as it applied to the facts in this case, and it reached a permissible verdict. This issue is without merit.

II. Whether the Trial Court Erred in Denying Young an Apportionment Instruction.

¶ 29. Young argues that she was entitled to an apportionment instruction. At trial, Young orally tendered the following instruction:

I’m proposing to say that ... we, the jury find for the plaintiff and assess the damages, so you may apportion those damages as follows, and list the wrongful death beneficiaries, each one of them, and let the jury say — for instance, Your Honor, he’s going to argue that the house — that’s the home, the fact that the husband and the minor son, the part about cutting the phone line off and getting the divorce. I’ve got to two wrongful death beneficiaries that weren’t even living at home, had been gone for four years. Any apportionment of damages as to causation by the husband or the smallest son cannot be imputed to the other two.

¶ 30. Young argues that the apportionment statute, Mississippi Code Annotated section 85-5-7 (Supp.2008), and the comparative negligence statute, Mississippi Code Annotated section 11-7-15 (Rev. 2004), direct the jury to consider all conduct that may have proximately contributed to an injury. According to Young, the trial court should have given the jury an apportionment instruction pursuant to section 85-5-7 because Dr. Guild put forth evidence that Thomas Hancock and other family members caused Hancock to commit suicide. Dr. Guild’s testimony indicated several times that Hancock’s family exacerbated her mental condition. He referred to notes from previous doctors suggesting that Hancock’s children and particularly, her husband, had mentally and physically abused her. Dr. Guild also stated that Hancock’s previous psychiatrist had instructed the family that Hancock was not to have access to any guns. Pigg’s testimony included various references to negative interactions between Hancock and her family and how the divorce and those interactions had adversely affected Hancock.

¶ 31. Dr. Guild asserts that Young waived the right to request an apportionment instruction when Young swore in an interrogatory response that no heir-at-law had exacerbated Hancock’s mental illness. Dr. Guild cites Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 24 (Miss.2002), where this Court held that a failure to raise the issue of another tortfeasor during discovery barred the right to an apportionment instruction.

¶ 32. In McCarthy, the plaintiff served an interrogatory on the defendants, requesting the identity of any parties the defendants would contend caused the accident. Id. The defendants did not identify any additional parties in their answer, nor did they supplement their response. Id. Consequently, the Court found they had waived any right they had to apportion fault to another tortfeasor. Id.

¶ 33. The Court finds that McCarthy controls the outcome of this issue. Young stated in a discovery response that no heir had exacerbated Hancock’s mental illness. In arguing for an apportionment instruction, Young provided no other theory as to how an heir could be held partially responsible for the suicide. Young’s denial in her discovery response was binding on her; she waived her right to an apportionment instruction.

III. Whether It Was Reversible Error for the Trial Court To Admit into Evidence Cherie Hancock’s Suicide Notes.

¶ 34. The standard of review governing the admissibility of evidence is whether the trial court abused its discretion. Bullock v. Lott, 964 So.2d 1119, 1132 (Miss.2007). An erroneous evidentiary ruling alone does not warrant reversal. Young v. City of Brookhaven, 693 So.2d 1355, 1358 (Miss.1997). Rather, before reversal is warranted, the Court must determine whether the proper legal standards were applied and prejudice resulted. Id.

¶ 35. Dr. Guild offered in evidence exhibit D-5, consisting of suicide notes that the sheriffs office found in Hancock’s bedroom and in her mother’s home. The exhibit also contained handwritten letters which Pigg and Young attested were written by Hancock. At trial, Young objected to the admission of the suicide notes and argued they were never authenticated. The objection was overruled, and the suicide notes were admitted into evidence. Young contends that the admission of the suicide notes constituted reversible error.

¶ 36. Rule 901 of the Mississippi Rules of Evidence governs the authentication requirements for evidence. Sewell v. State, 721 So.2d 129, 140 (Miss. 1998). Authentication requires evidence sufficient to support a finding that the matter in question is what its proponent claims. Id.; Miss. R. Evid. 901(a). A person’s handwriting may be authenticated by a lay witness who is familiar with the handwriting. Sewell, 721 So.2d at 140 (citing Hentz v. State, 542 So.2d 914, 917 (Miss.1989)). Such an authenticated document may be used by the trier of fact in comparison with a specimen for which authenticity is in question. Miss. R. Evid. 901(b)(3). A party need only make a pri-ma facie showing of authenticity, not a full argument on admissibility. Sewell, 721 So.2d at 140. “Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court. The only requirement is that there has been substantial evidence from which they could infer that the document was authentic.” Id.

¶ 37. The Court finds that the letters Hancock wrote to Young and her children while hospitalized were sufficiently authenticated by Young’s testimony. Likewise, during her trial testimony, Pigg sufficiently authenticated a letter Hancock wrote to her. The trial court appropriately allowed the jury to compare the letters with the unauthenticated suicide notes. This issue is without merit.

IV. Whether the Cumulative Errors of the Admission of Inappropriate References to Privileged Information and Inadmissible Hearsay of Conversations with the Decedent Constitute Reversible Error.

A.Whether Dr. Guild’s Counsel Erred When He Made Comments Regarding Hancock’s Divorce Attorney After Young Invoked the Attorney-Client Privilege.

II38. Young contends Dr. Guild’s counsel inappropriately commented to the jury that they would not hear from Hancock’s divorce attorney, Herring, despite Young’s claim of the attorney/client privilege. Young claims that these comments were prejudicial to her, since they allowed the jury to consider that Herring’s testimony would have been detrimental to Young. Dr. Guild responds that any error was cured when the trial judge instructed the jury to disregard his counsel’s comment about Herring.

¶ 39. In Parker v. Jones County Community Hospital, 549 So.2d 443, 445 (Miss.1989), this Court ruled that certain testimony violated the Mississippi Rules of Evidence and was inadmissible. The Court then noted that the trial court sustained the objection to the testimony and instructed the jury to disregard the testimony. Id. We stated that “[t]he law of error and curative instructions seems to be an analog to harmless error.” Id. “Generally speaking, our law presumes that jurors follow the trial judge’s instructions, as upon their oaths they are obliged to do.” Id. at 446 (citing Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988)). Thus, a trial court’s admonishment to the jury to disregard an improper question and answer generally is deemed sufficient to cure any taint. The Court concludes that any taint that resulted from counsel’s comment about the absence of Herring was cured by the court’s instruction to the jury to disregard the comment. This issue is without merit.

B. Whether the Trial Court Erred in Admitting Hearsay in the Form of Conversations between Pigg and Hancock.

¶ 40. Young also avers that throughout Pigg’s examination, Pigg referred to conversations between herself and Hancock which were hearsay. Young further argues that these statements were irrelevant, unfairly prejudicial, confusing, and misleading. Dr. Guild notes that Young failed to identify any particular statements. Dr. Guild also argues that Young elicited hearsay statements similar to those complained of when she testified about her conversations with Hancock. Dr. Guild further argues the conversations fit within hearsay exceptions because they went to Hancock’s state of mind.

¶ 41. Young broadly states that Pigg’s testimony constituted hearsay, but failed to provide this Court with any reference to that testimony. Without support from the record, this Court is not required to rule upon the merits of Young’s argument. See Jordan v. State, 995 So.2d 94, 110 (Miss.2008) (citing Miss. R.App. P. 28(a)(6) (stating “[t]he argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied upon.”)). Therefore, we need not decide this issue.

C. Whether the Tnal Court Etred in Admitting Hearsay in the Form of Undocumented Conversations between Dr. Guild and Hancock.

¶ 42. The third error Young raises is that Dr. Guild, during his examination, repeatedly referenced conversations between himself and Hancock. Dr. Guild claims that these conversations contained statements made for the purpose of medical diagnosis or treatment. However, Young responds that these statements do not meet the trustworthiness requirement of Mississippi Rule of Evidence 803(4) because they were not written in Dr. Guild’s medical records. Dr. Guild argues that Mississippi Rule of Evidence 803(4) contains no such requirement or limitation.

¶ 43. Once again, Young has not provided this Court with any direction as to the specific testimony at issue. Without support from the record, this Court is not required to rule upon the merits of Young’s argument. Therefore, the Court does not decide this issue.

ON CROSS-APPEAL

¶ 44. Dr. Guild raises three issues on cross-appeal:

I. Whether the Trial Court Erred in Denying Summary Judgment Because Young Failed to Provide Evidence Sufficient for the Irresistible Impulse Doctrine.
II. Whether the Court Should Have Allowed Dr. Guild to Depose Herring.
III. Whether the Court Erred in Denying Dr. Guild’s Inference Instruction.

¶ 45. Our affirmance of the trial court’s judgment in Dr. Guild’s favor obviates the necessity of adjudicating these issues. This is because “[w]here relief, other than an injunction, is sought, a case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant.” Gartrell v. Gartrell, 936 So.2d 915, 916 (Miss.2006). Accordingly, we dismiss the cross-appeal as moot. See Rosson v. McFarland, 962 So.2d 1279, 1289 (Miss.2007).

¶ 46. ON DIRECT APPEAL: AFFIRMED; ON CROSS-APPEAL: DISMISSED.

CARLSON, P.J., RANDOLPH, KITCHENS AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. LAMAR, J, DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, J. WALLER, C.J., NOT PARTICIPATING.

LAMAR, Justice,

Dissenting:

¶ 47. I disagree with the majority because, in my view, the given jury instructions, in toto, are abstract. The two instructions which the trial court granted, and which the majority cites with approval, are not tied to the specific facts of this case. See McCarty v. Kellum, 667 So.2d 1277, 1287 (Miss.1995) (“Instructions should be tied to the specific facts of the case and when given merely in the abstract, may be grounds for error.”) More importantly, none of the jury instructions granted by the trial court relate the standard of care to the facts and issues of the case. As the majority aptly notes, “[a]b-straet instructions on legal principles unrelated to facts and issues ... are dangerous, because, although they may be correct in principle, they require legal training to properly interpret.” Id. (emphasis added).

¶ 48. Regardless of whether or not the trial court should have granted the plaintiffs requested instructions P-5 and/or P-6, the trial court failed to fulfill its ultimate duty to properly instruct the jury with any instruction that tied the facts and issues of the case to the law of negligence. The trial court should have given Young the oppoi'tunity to place before the jury an instruction that informed the jury of the matters Young contended were at issue and necessary to prove her theory of the case. When a trial court is put on notice of a legal issue on which the jury should be instructed, it is the court’s ultimate duty to properly instruct the jury on that issue. See Harper v. State, 478 So.2d 1017, 1022 (Miss.1985) (holding that the trial court should modify an improper instruction or advise counsel of the deficiencies and “afford counsel a reasonable opportunity to present a new instruction”).

¶ 49. In my opinion, the majority resorts to rank speculation in concluding that despite the trial court’s failure to tie the abstract instructions concerning negligence to the facts of this case, “there is no doubt that in this case the outcome would have been the same.” (Majority opinion at ¶ 28).

¶ 50. I would reverse the judgment and remand for a new trial since the given jury instructions were all abstract, and when read in toto, failed to present Young’s theory of the case.

DICKINSON, J., Joins this Opinion.

      . Although the record is not clear, it appears Young wanted an apportionment instruction because she feared her individual claims would be reduced because of the alleged negligence of other heirs.

      . A trial court is not required to instruct the jury sua sponte or give instructions in addition to those tendered by the parties. Harris v. State, 861 So.2d 1003, 1016 (Miss.2003).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Merlean MARSHALL, Alphonzo Marshall and Eric Shepard, Individually and on behalf of all Wrongful Death Beneficiaries of Lucy Shepard, Deceased, Appellants v. KANSAS CITY SOUTHERN RAILWAYS COMPANY, Eric W. Robinson, The Estate of Robert Everett and C.L. Duett, Appellees.
    No. 2006-CA-00519-COA.
    Court of Appeals of Mississippi.
    Nov. 6, 2007.
    Rehearing Denied Aug. 19, 2008.

      James W. Craig, Jackson, Herbert Lee, attorneys for appellants.
    Charles Edwin Ross, Charles Henry Russell, Benjamin Noah Philley, Jackson, attorneys for appellees.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Wrongful death beneficiaries filed two actions in the Circuit Court of Scott County against the defendant railway company and its employees. The first was removed to federal court where it was voluntarily dismissed without prejudice. The second case, now on appeal, was filed following the dismissal of the first. Upon motion of the railway company, the circuit court dismissed the beneficiaries’ second action as barred by the statute of limitations. On appeal, the beneficiaries argue that their case falls within the protection of Mississippi Code Annotated section 15-1-69 (Rev.2003), and that the trial court erred in dismissing their case as time-barred. We find no error and affirm.

FACTS

¶ 2. On July 10,1998, Lucy Shepard died in a Scott County railroad crossing accident when the vehicle in which she was driving collided with a freight train owned and operated by the Kansas City Southern Railways Company (KCS). Phyllis B. McKee, a passenger in the automobile driven by Shepard, survived but sustained injuries in the accident. Merlean Marshall, Alphonzo Marshall, and Eric Shepard, individually and on behalf of all the wrongful death beneficiaries of Shepard (collectively “the Shepard Beneficiaries”), filed two wrongful death suits in the Circuit Court of Scott County, the second of which is the subject of this appeal. McKee also brought a negligence action against KCS in Mississippi state court. The relevance of McKee’s case will be explained in the discussion below.

Shepard I.

¶ 3. On July 20, 1998, the Shepard Beneficiaries filed suit in the Circuit Court of Scott County asserting that Shepard was negligently killed by KCS. The complaint named as defendants KCS, as well as three of its Mississippi employees, Eric W. Robinson, the estate of Robert E. Everett, and C.L. Duett (collectively “the Defendants”). During discovery, the Defendants served requests for admission on the Shepard Beneficiaries seeking an admittance that they had no evidence to support their claims against the Mississippi resident defendants. The Shepard Beneficiaries failed to respond timely to the requests for admission and the defendants removed the action to the United States District Court for the Southern District of Mississippi alleging that the Mississippi resident defendants were fraudulently joined in the action solely to defeat diversity jurisdiction.

¶ 4. The Shepard Beneficiaries filed a motion to remand in the district court. Upon finding that no cause of action could be established against the Mississippi resident defendants, the district court denied the motion to remand and dismissed the non-diverse defendants. The Shepard Beneficiaries attempted to obtain interlocutory review of the denial of their motion to remand by the United States Court of Appeals for the Fifth Circuit. However, the appeal was dismissed for lack of jurisdiction as the district court’s order was not certified under Federal Rule of Civil Procedure 54(b).

¶ 5. Meanwhile, McKee’s action had proceeded to trial in the United States District Court for the Southern District of Mississippi following the same procedural pathway as the instant case; the state court action was removed and the non-diverse defendants were dismissed from the case. In the McKee case, which involved the same accident, driver, and railroad defendant, the jury returned a verdict in favor of KCS. See McKee v. Kansas City S. Ry., 281 F.3d 1279 (5th Cir.2001). Upon learning of the jury’s verdict in McKee, the Shepard Beneficiaries filed a motion for entry of final judgment in favor of the Defendants. This motion sought to operate under Federal Rule of Civil Procedure 54 and pointed out that the McKee case had recently been decided in favor of KCS and that the judgment in McKee was binding upon the Shepard Beneficiaries in their case. After a hearing on the motion, the district court, by order dated September 30, 2003, granted the Shepard Beneficiaries’ motion as one for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2). The order of dismissal did not specify whether the dismissal was with or without prejudice. The Shepard Beneficiaries then filed a notice of appeal in order to challenge the denial of their motion to remand. On August 4, 2004, the Fifth Circuit Court of Appeals dismissed this appeal for lack of jurisdiction finding that the district court’s order of dismissal was a dismissal without prejudice because the order did not specify otherwise; therefore, the order lacked the requisite finality to confer appellate jurisdiction. Marshall v. Kansas. City S. Ry., 378 F.3d 495, 499-500 (5th Cir.2004).

Shepard II.

¶ 6. On August 16, 2004, the Shepard Beneficiaries filed the instant action against the Defendants in the Circuit Court of Scott County. The case was again removed but later remanded based upon the district court’s finding that there was evidence to support a claim against the Mississippi resident defendants. The Defendants then filed a motion for summary judgment claiming that the Shepard Beneficiaries’ claims were time-barred. After a hearing on the motion, the circuit court dismissed the case finding that the statute of limitations had run. The court also determined that the statute of limitations was not tolled during the pendency of Shepard I because the Shepard Beneficiaries’ voluntary dismissal was without prejudice.

DISCUSSION

¶ 7. We review a lower court’s grant or denial of summary judgment de novo, viewing the evidence “[i]n the light most favorable to the party against whom the motion was made.” Jackpot Miss. Riverboat, Inc. v. Smith, 874 So.2d 959, 960(¶ 4) (Miss.2004).

¶ 8. The Shepard Beneficiaries’ action was subject to the three-year statute of limitations found in Mississippi Code Annotated section 15-1-49(1) (Rev.2003). Shepard I was filed in state court on July 20, 1998, ten days after the cause of action arose. Thus, absent tolling or saving, the statute of limitations expired on July 20, 2001. The instant action was filed in state court on August 16, 2004, well outside of the three-year statute of limitations.

1. Savings Statute

¶ 9. The Shepard Beneficiaries argue that Mississippi Code Annotated section 15-1-69 (the savings statute) applies to their situation, and them second action is not time-barred because they had an additional year from the dismissal of Shepard I in which to re-file their action. They cite Boston v. Hartford Acc. & Indem. Co., 822 So.2d 239 (Miss.2002), and Norman v. Bucklew, 684 So.2d 1246 (Miss.1996) as controlling and argue that a voluntary dismissal without prejudice of a prior case in federal court is within the protections of the savings statute. The Defendants contend that the Shepard Beneficiaries voluntarily dismissed their complaint in Shepard I and, as a result, the savings statute is not applicable. W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8 (1926).

¶ 10. We begin our analysis of this issue with the savings statute itself, which provides as follows:

If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict of the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiffs death, commence such new action, within the said one year.

Miss.Code Ann. § 15-1-69 (emphasis added). In the instant case it is beyond dispute that the first lawsuit was timely commenced and that the instant case is for the same cause of action. Our inquiry thus turns on whether the termination of Shepard I — a voluntary dismissal without prejudice — falls within the statutory language that “the writ shall be abated, or the action otherwise avoided or defeated ... for any matter of form.” Id.

¶ 11. The jurisprudential rationale of our savings statute was addressed in Ryan v. Wardlaw, 382 So.2d 1078, 1080(¶ 6) (Miss.1980), wherein the court explained that:

[Section 15-1-69] is a highly remedial statute and ought to be liberally construed for the accomplishment of the purpose for which it was designed, namely, to save one who has brought his suit within the time limited by law from loss of his right of action by reason of accident or inadvertence....

(quoting Tompkins v. Pacific Ins. Co., 53 W.Va. 479, 44 S.E. 439, 441 (1903)). An early supreme court case explained that “[w]here the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which he can remedy or avoid by a new process, the statute shall not prevent him from doing so, provided he follows it promptly, by suit within a year.” Hawkins v. Scottish Union & Nat’l Ins. Co., 110 Miss. 23, 31, 69 So. 710 (1915) (citations omitted). As a voluntary dismissal without prejudice under Rule 41(a)(2) is not an adjudication on the merits, logic suggests, at first blush, that the savings statute applies to such a termination of the action.

¶ 12. However, subsequent to Hawkins, our supreme court addressed an issue similar to that of the instant case in W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8 (1926). The Barnes court held that a voluntary nonsuit without prejudice, although a failure otherwise than on the merits, is not a dismissal “as a matter of form” under section 15-1-69. Bames, 143 Miss. at 601, 109 So. at 9. We find that a voluntary nonsuit is substantially similar to a Rule 41(a)(2) voluntary dismissal. Therefore, we interpret the holding of Barnes to apply equally to a Rule 41(a)(2) voluntary dismissal without prejudice. We find Barnes to be controlling on this issue and hold that the voluntary dismissal of Shepard I does not invoke the protection of the savings statute.

¶ 13. We disagree with the Shepard Beneficiaries’ contention that a voluntary dismissal without prejudice of a prior case in federal court is within the protection of the savings statute. In Boston, the plaintiffs filed suit in federal court alleging federal and state law claims. Boston, 822 So.2d at 242-43. The district court dismissed the plaintiffs’ federal claims with prejudice and dismissed the plaintiffs’ state law claims without prejudice. Id. When the plaintiffs sought to re-file their state law claims in state court, the defendants raised the statute of limitations as a defense and the state court dismissed the plaintiffs’ claims. Id. On appeal, our supreme court reversed the lower court’s finding that Boston’s state law claims were time-barred. Id. at 248. In reaching this holding, the Boston court quoted Norman for the proposition that the filing of federal court claims “[tjolled the statute of limitations [of state law claims] when pendent jurisdiction was invoked.” Id. (quoting Norman, 684 So.2d at 1256).

¶ 14. We do not find the instant case to fit within the holdings of Boston and Norman. Neither case applied the savings statute in reaching its decision. Although not expressly stated in Boston or Norman, it appears that these decisions were based upon 28 U.S.C. section 1367(d), which provides that the statute of limitations for claims over which the federal courts have supplemental jurisdiction are tolled during the pendency of a federal action where the federal court declines to exercise supplemental jurisdiction over those claims and dismisses them without prejudice. The Shepard Beneficiaries do not contend that section 1367(d) applies to their case. However, in the interest of explanation only, we will briefly address the issue. We find that the instant case is distinguishable from Boston and Norman and does not invoke the protection of section 1367(d) because the claims asserted against the Mississippi resident defendants were subject to original federal jurisdiction pursuant to 28 U.S.C. section 1832, which provides that the federal courts have original jurisdiction of all civil actions between citizens of different states where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). Thus, unlike Boston and Norman, the claims refiled in the instant case were subject to original federal jurisdiction as opposed to supplemental jurisdiction and, therefore, not subject to the tolling provision of section 1367(d).

¶ 15. We find further distinction between the instant case and Boston and Norman in the voluntariness of the dismissals. The dismissal in Norman and Boston may fairly be characterized as an involuntary dismissal. Had Norman and Boston addressed the savings statute they likely would have found that the dismissals there at issue were involuntary dismissals for lack of jurisdiction and thus a dismissal “for a matter of form” under Mississippi Code Annotated section 15-1-69. See Frederick Smith Enterprise Co. v. Lucas, 204 Miss. 43, 36 So.2d 812, 814 (1948). Conversely, the dismissal in the instant case was a voluntary dismissal which does not invoke the protection of the savings statute under Barnes, a case we find to have more squarely addressed the issue presented in this appeal.

2. Mississippi Code Annotated section 15-1-57

¶ 16. The Shepard beneficiaries argue that section 15-1-57 excepted from the period of limitations the time during which Shepard I was pending in federal court. However, they did not assert this claim in the proceedings below. “We do not consider issues raised for the first time on appeal.” Jones v. Fluor Daniel Servs. Corp., 959 So.2d 1044(15) (Miss.2007). Therefore, we decline to address this issue.

CONCLUSION

¶ 17. We are mindful that the Shepard Beneficiaries were not in federal court of their own choosing and that they sought to have Shepard I dismissed with prejudice under Rule 54 in order to appeal the denial of their motion to remand, yet instead received a Rule 41(a)(2) dismissal. We are also sympathetic that, as a result of the district court’s ruling, the Shepard Beneficiaries fell into a procedural trap in which they were unable either to have their claims heard on appeal to the Fifth Circuit, or to re-file them in state court.

¶ 18. While prior Mississippi case law pertaining to the issue presented in this appeal is sparse, and the guidance extractable therefrom is limited, we find that precedent strongly suggests that a voluntary dismissal without prejudice does not fall within the protection of section 15-1-69. Barnes, 143 Miss. at 601, 109 So. at 9 (“The dismissal of a suit without prejudice ‘does not deprive the defendant of any defense he may be entitled to make to the new suit, nor confer any new right or advantage on the [plaintiff] ....’” (quoting Nevitt v. Bacon, 32 Miss. 212, 228 (1856))). Additionally, we do not find such a holding to frustrate the purpose of the savings statute, i.e., to ensure that a trial on the merits is not forfeited by reason of accident, inadvertence, defect or informality. A voluntary withdrawal does not constitute the “accidental” or “inadvertent” failure of an action, nor is a plaintiff “defeated” within the meaning of section 15-1-69 when he is nonsuited upon his own request. We find no error in the trial judge’s grant of summary judgment and affirm.

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

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

      . This finding was based upon an appeal taken in the McKee case, in which the Fifth Circuit found that a cause of action could be established against the Mississippi resident defendants. See McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 335-36 (5th Cir.2004).

      . Stewart v. Guaranty Bank & Trust Co., 596 So.2d 870, 872-73 (Miss.1992).

      . In Boston and Norman, the federal district court had original jurisdiction over the plaintiffs' federal claims pursuant to 28 U.S.C. section 1331, and supplemental jurisdiction over the state law claims under 28 U.S.C. section 1367. When the district court declined to exercise supplemental jurisdiction over the plaintiffs’ state law claims, the claims were dismissed without prejudice; thus, the statute of limitations on the plaintiffs' state law claims were tolled pursuant to 28 U.S.C. 1367(d).


author: IRVING, J.,

text:
    Patti Hughes WARE, Appellant, v. William Stephen WARE, Appellee.
    No. 2007-CA-00358-COA.
    Court of Appeals of Mississippi.
    April 29, 2008.

      Lee Davis Thames, Jr., J. Mack Varner, Vicksburg, attorneys for appellant.
    John Robert White, Pamela Guren Bach, Ridgeland, attorneys for appellee.
    Before KING, C.J., IRVING and CHANDLER, JJ.
   IRVING, J.,

for the Court.

¶ 1. The Hinds County Chancery Court granted William Ware (Billy) a divorce from Patti Hughes Ware on the ground of uncondoned adultery. The chancellor divided the marital property and awarded Patti both lump sum and rehabilitative alimony. After the final judgment was entered, Patti asked the chancellor to reconsider her defense of condonation; however, the chancellor denied her request. Feeling aggrieved by the chancellor’s ruling, Patti appeals and asserts: (1) that the chancellor erred by granting Billy a divorce because of the doctrine of recrimination, (2) that the chancellor erred by granting Billy a divorce on the ground of uncondoned adultery, and (3) that the chancellor erred in enforcing their ante-nuptial agreement.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Billy and Patti married on February 1, 1992, and separated on March 17, 2004. On August 27, 2004, Billy filed a complaint seeking a divorce on the ground of habitual drunkenness or, alternatively, for irreconcilable differences. Patti responded by filing a “Response and Counter-Complaint for Petition for Separate Maintenance and Other Relief.” On November 19, 2004, Billy filed an amended complaint adding the ground of uncondoned adultery. Patti answered the amended complaint and asserted the affirmative defenses of recrimination, condonation, and collusion. On August 19, 2005, Billy amended his complaint a second time, adding habitual cruel and inhuman treatment as a ground for divorce.

¶ 4. Patti filed a motion to bifurcate the proceedings, asking the court to determine whether Billy had proven that he was entitled to a divorce before addressing the financial matters and equitable division of the marital estate. The chancellor granted Patti’s motion, allowing issues relating to the grounds for divorce to be presented first. At the conclusion of the hearing, the chancellor found that Billy was entitled to a divorce on the ground of uncondoned adultery; however, the chancellor did not enter a judgment of divorce. On January 23, 2006, Patti filed a “Motion and Affidavit for Partial Summary Judgment” wherein she asked the court to declare an ante-nuptial agreement that she had signed on January 30,1992, null and void. A hearing was held on January 24, 2006, and the chancellor determined that the agreement was valid and entered an order to that effect on February 8, 2006. In April 2006, the chancellor heard testimony relating to alimony and the division of assets. The chancellor entered a final judgment of divorce on December 14, 2006.

¶ 5. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF ISSUES

¶ 6. This Court employs a limited standard of review of domestic cases. Monis v. Morris, 804 So.2d 1025, 1027(¶ 6) (Miss.2002). Therefore, we “will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (quoting Steen v. Steen, 641 So.2d 1167, 1169 (Miss.1994)).

1. Recrimination

¶ 7. In her first assignment of error, Patti contends that the chancellor erred in granting Billy a divorce because she asserts that the doctrine of recrimination bars him from obtaining a divorce. “The doctrine of recrimination is founded on the basis that the equal guilt of a complainant bars his/her right to divorce, and the principal consideration is that the complainant must come into court with clean hands.” Cherry v. Cherry, 593 So.2d 13, 18 (Miss.1991) (citing Oberlin v. Oberlin, 201 Miss. 228, 233, 29 So.2d 82, 83 (1947)).

¶ 8. Patti argues that Billy did not come to court with clean hands because he was having an affair at the time that he moved out of the marital home. Patti testified that Billy was responsible for the dissolution of the marriage, as he moved out of the marital home because he was having an affair with Sarah Reynolds. Billy testified that he met Reynolds in the summer of 2003 and that they became involved in a sexual relationship, which he described as being “off and on.” Billy also testified that he had told Patti about his affair with Reynolds.

¶ 9. Mississippi Code Annotated section 93-5-3 (Rev.2004) provides that: “If a complainant or cross-complainant in a divorce action shall prove grounds entitling him to a divorce, it shall not be mandatory on any chancellor- to deny such party a divorce, even though the evidence might establish recrimination on the part of such complainant or cross-complainant.” (Emphasis added). Thus, even though Billy admitted having an affair, the chancellor was not required to deny him a divorce when he had proven that Patti had also committed adultery. There is no merit to this issue.

2. Uncondoned Adultery

¶ 10. Billy and Patti admitted having extramarital affairs during their marriage. The record contains substantial details of a relationship between Patti and Ken Szilasi and a relationship between Billy and Tracy Szilasi, Ken’s wife. Based on our review of the record, we are convinced that at least one of the sexual encounters between Patti and Ken was condoned by Billy. However, the basis of Billy’s charge of uncondoned adultery stems from Patti’s sexual involvement with Stuart Irby. Patti testified that she and Irby first had sex when Irby spent the night at their home after a night of drinking with Billy. Patti stated that she went into the guest room where Irby was staying and that the two of them had sexual intercourse. Patti further stated that she had sex with Irby again a few months later.

¶ 11. Billy testified that he had become suspicious of Patti’s relationship with Irby, and he repeatedly asked her if she had been sexually involved with Irby. Patti told Billy that her relationship with Irby had been inappropriate, but she maintained that it had not been sexual. Unconvinced, Billy broached the subject with Irby in August 2004. Billy stated that Irby informed him that he had in fact had sexual intercourse with Patti. Nevertheless, Patti continued to deny that she had had sex with Irby. According to Billy, he did not learn from Patti that she had slept with Irby until her deposition on January 14, 2005. After hearing the evidence, the chancellor granted Billy a divorce on the ground of uncondoned adultery.

¶ 12. Patti contends that Billy should not have been granted a divorce for two reasons: (1) because he condoned her adultery with Irby by having sex with her in January 2005 and (2) because he forgave her for committing adultery with Irby in a letter that he wrote to her on November 6, 2004.

¶ 13. On the night of January 1, 2005, Billy invited Patti to his home, and they had sexual intercourse after Patti agreed that she would not later claim that Billy, by having sex with her, condoned her adultery. Nevertheless, Patti later claimed exactly that. Patti argued before the chancellor, and argues now, that by having sex with her, Billy condoned her indiscretions with Irby because, according to Patti, Billy knew about her involvement with Irby when he had sex with her. Billy, on the other hand, argued that although Irby admitted to him in August 2004 that he had been sexually involved with Patti, he did not become certain until Patti’s deposition on January 14, 2005. The chancellor addressed Patti’s condonation argument in the following manner:

I do believe that Mr. Ware has proven by clear and convincing evidence that he is entitled to a divorce on the grounds of adultery and that the legal defense of condonation by Mrs. Ware does not rise to the level sufficient to prevent the Court [from] awarding him a divorce on adultery. Mr. White, I believe, has summarized it very well. As I understand the case law on the issue of condo-nation, it basically, more than anything else, seems to turn on the concept of forgiveness by the nonoffending spouse. And I don’t believe there’s any way that it can be said that Mr. — regardless of their sexual liaison after the separation, that Mr. Ware said that he was forgiving Mrs. Ware for the adulterous conduct. For one thing, he cannot forgive what he doesn’t believe. So, you know, you could look at it more than one way, I suppose. He said, as Mr. White has pointed out, that he wanted to believe his wife and did, despite what Mr. Irby directly told him. Mrs. Ware continued to protest that that was not accurate. So I’m not — neither am I very sure that, had he been considered to have believed it and forgiven her at that point, that his consent to have sexual relations with her and to resume the marital relationship was a free and voluntary act and not induced by some sort of fraud on Mrs. Ware’s part. The concept of condonation carries with it the express or implied agreement by both parties to resume the marital relationship, and I don’t believe the proof shows that they intended to do that.

¶ 14. We agree with the chancellor that Billy’s act of engaging in sexual relations with Patti is not sufficient for the defense of condonation to be applicable. In Lee v. Lee, 232 So.2d 870, 373 (Miss.1970) (quoting Bunkley & Morse, Amis on Divorce and Separation in Mississippi Section 4.02 (1957)), the Mississippi Supreme Court stated that:

Condonation is forgiveness of a marital offense theretofore committed, on condition that it will not be repeated and that the offender will thereafter treat the forgiving party with conjugal kindness. So long as the offending spouse observes the conditions on which the condonation rests, the unoffending spouse may not complain of the condoned offense, and in such a case a plea of condonation will be a valid defense to an action for divorce. But if the offense be repeated, the condoned offense is revived, and a plea of condonation will not be a valid defense. And the general rule is that if the offender be guilty of any other marital offense, the condoned offense is revived. In such cases the offender is placed on probation, and any subsequent grave or serious misconduct, indicating an intent or purpose not to keep or perform the conditions of the condonation in good faith, will be sufficient to avoid it, in itself. It is necessary also that the con-donation be free and voluntary. If it is induced by fraud, fear or force, it is of no effect.

We find that Patti’s defense of condonation must fail, as there is nothing in the record to suggest that Billy, by engaging in sexual intercourse with Patti, forgave her for committing adultery with Irby. According to Billy, he made it clear to Patti before she arrived at his home that he still wanted a divorce. As previously stated, he even asked Patti whether she would use their encounter against him at some later point. Apparently, the chancellor considered Patti’s act of claiming condonation, after she assured Billy that she would not, a form of fraud. Even though we agree with the chancellor that the record does not reflect that Billy condoned Patti’s adultery, we are not convinced that Patti’s actions constituted fraud under the circumstances of this case.

¶ 15. Patti also argues that Billy should not have been granted a divorce because he explicitly forgave her for her indiscretions in a letter that he wrote to her in November 2004. In the letter, Billy stated: “I’m not mad at you. I decided to forgive you for disrespecting me. I’ve even forgiven you for your adultery. I’ve reached a state of ambivalence. I just want to move [on] to try to be happy. You should think about moving on, too.” Patti argues that Billy was referring to her affair with Irby because he had known about it since August 2004 and had amended his complaint three months after Irby informed him that he and Patti had in fact been sexually involved. Patti also argues that the chancellor’s finding that “for one thing, he cannot forgive what he doesn’t believe” is error. The chancellor considered all of the evidence and determined that Billy could not have been referring to Patti’s relationship with Irby because in November 2004 he wanted to believe Patti, who at that point had not admitted having sex with Irby. Patti did not admit that she had been sexually involved with Irby until January 14, 2005. Although Billy stated that he forgave her in the letter, he did not specify which adulterous conduct he was referring to. Therefore, we find no error in the chancellor’s finding that Billy was not referring to Patti’s affair with Irby. “A chancellor sits as a fact-finder and in resolving factual disputes, is the sole judge of the credibility of witnesses.” Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994) (citing West v. Brewer, 579 So.2d 1261, 1263-64 (Miss.1991)). We will not second guess the chancellor’s finding, as he made it after listening to the evidence firsthand. This issue lacks merit.

3. Antenuptial Agreement

¶ 16. The Mississippi Supreme Court has held that fairly executed antenuptial contracts are just as enforceable as other contracts. Smith v. Smith, 656 So.2d 1143, 1147 (Miss.1995) (citing Estate of Hensley v. Estate of Hensley, 524 So.2d 325, 327 (Miss.1988)). Further, in Mabus v. Mabus, 890 So.2d 806, 819(¶ 53) (Miss.2003), the Mississippi Supreme Court also held that:

A duty to disclose is also of paramount importance.... However, “it is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.” Estate of Hensley, 524 So.2d at 328 (citations omitted). “This Court will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” McBride v. Jones, 803 So.2d 1168, 1170 (Miss.2002) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)).

¶ 17. Prior to then* marriage, Patti signed an antenuptial agreement wherein she agreed that Billy’s interest in his family’s business, Mid State Construction Company, Inc., as well as his interest in Ware Properties; Bradshaw, LLC; and Briar-wood West, LLC, would be considered nonmarital assets. Patti testified that she signed the agreement because Billy told her that it would provide security for his elderly parents and his young children in the event of his death.

¶ 18. Patti attacks the validity of the agreement, arguing that it was not fairly executed because Billy presented it to her at their home two days prior to their wedding. According to Patti, she did not have an opportunity to read the agreement or to have an attorney review it before she signed it. As such, Patti claims that she felt somewhat pressured into signing the agreement. Patti also argues that the agreement was not signed before a notary public.

¶ 19. Billy recalled that the agreement was signed and notarized at his office, rather than at their home. Billy testified that he presented the agreement to Patti “around the first of the month” and asked her to review it. Patti admitted that she and Billy had discussed an antenuptial agreement before he presented it to her, but she argues that Billy told her that he simply wanted to ensure that if anything happened to him, Patti’s creditors would not be able to come after assets that were derived from his family’s construction business and from his other properties. Patti argues that Billy told her that the agreement contemplated death and not divorce, an explanation that she claims was a misrepresentation of what the agreement actually provided. Thus, Patti argues that the chancellor erred in enforcing the agreement because she claims that she was misled and did not enter into the agreement knowingly or voluntarily. Patti also contends that the agreement is invalid because it provides that “each party has sought and obtained independent advice and counsel as to the execution of this document,” and she did not have advice from an attorney. We disagree.

¶ 20. There is nothing in the record which suggests that Patti was forced to sign the agreement. Moreover, Patti admitted that she did not read the contract and that she did not take it to an attorney to review it before she signed it. It is well established that “a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.” Oaks v. Sellers, 958 So.2d 1077, 1082(1117) (Miss.2007) (quoting Stephens v. Equitable Life Assurance Soc’y of the U.S. 850 So.2d 78, 82(¶ 14) (Miss.2003)). Additionally, the Mabus court ruled that “independent counsel is not required to fairly execute a prenuptial agreement.” Mabus, 890 So.2d at 821(1163). It is Patti’s contention that the agreement is invalid because it provides that she obtained advice from an attorney when she had not done so. Patti cannot argue that the chancellor erred in upholding an agreement that she signed on the basis that the agreement reached a conclusion that was not true when, had she read the agreement, she would have discovered that it contained such a statement.

¶ 21. We also note that the antenuptial agreement did not cover the entire marital estate, and the chancellor équitably divided the remainder of the Wares’ property. Therefore, despite Patti’s contentions that “[t]he agreement protects Billy and makes no provisions for [her]” we point out that she received forty percent of the marital assets, valued at $234,436.60. We find that the record supports the chancellor’s finding that the agreement was fairly executed. This issue lacks merit.

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

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

      . During the hearings, reference was made to several depositions that had been taken; however, the transcripts of those depositions • are not a part of the record before us.

      . Billy and Patti cohabited before they married.

      . The antenuptial agreement reflects that it was entered into on January 30, 1992, but was notarized on January 29. The record does not adequately explain this discrepancy, as Billy testified that the agreement was executed prior to its being drafted, i.e., that the agreement was executed on January 29, 1992, but was not drafted until January 30. Nevertheless, this discrepancy is immaterial, as Patti admits that she signed the agreement, and there is no contention that she signed anything other than the agreement in question.

      .Patti filed for bankruptcy prior to her marriage to Billy.