author: SUSAN M. CHEHARDY, Judge.

text:
    Kathleen McGuinness BEAUDION v. Robert Gregory BEAUDION.
    No. 11-CA-53.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2011.

      Edith H. Morris, Suzanne Ecuyer Bayle, Bernadette R. Lee, Morris, Lee & Bayle, L.L.C., New Orleans, LA, for Plaintiff/Appellant Kathleen McGuinness Beaudion.
    Lila Molaison Samuel, George Read Coleman, Toni G. Hurley, Attorneys at Law, Gretna, LA, for Defendant/Appellee Robert Gregory Beaudion.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

| .¿This is a dispute over child custody. The mother challenges the district court’s judgment that maintained a 50/50 custody arrangement. She asks us to reverse the trial court’s judgment and to designate her as the primary domiciliary parent. We affirm.

FACTS

Kathleen McGuinness Beaudion (“Kathleen”) filed for divorce from Robert Gregory Beaudion (“Greg”) in January 2004. She requested that she be designated primary domiciliary custodian of the couple’s triplet girls, who were less than a year old at the time. Kathleen was designated primary domiciliary parent on an interim basis, with Greg having visitation.

The parties’ matrimonial domicile was in Metairie in Jefferson Parish, on the south shore of Lake Pontchartrain. Following their separation, Kathleen remained in the Metairie home, while Greg moved to Mandeville in St. Tammany Parish, on the north shore of Lake Pontchartrain. His home is approximately 40 miles from the children’s school in Metairie.

[¡¡On June 28, 2007, the parties entered into a stipulation regarding custody based on the recommendations of the court-appointed custody evaluator, Dr. Stephen York, that Greg be awarded 50/50 custody. Greg did not initially seek enforcement of the 50/50 custody award. In 2008 he filed a rule to enforce the June 28, 2007 stipulation that he be awarded 50/50 custody. On January 27, 2009, the hearing officer ruled that the stipulation entered into the record on June 28, 2007 granted Greg 50/50 custody. The hearing officer also appointed a “co-parenting facilitator,” Julie Ruel.

On April 20, 2010, Kathleen filed a motion to modify custody and for contempt. She alleged there had been a change in circumstance since 50/50 custody was ordered in June 2007. Specifically, she alleged that Greg’s work schedule and his living arrangements prevented him from bringing one of the children (K.E.B.) to her necessary weekly rehabilitation and tutoring sessions. Kathleen alleged further that Greg had been physically abusive toward one child; that Greg had difficulty communicating and would not discuss parenting issues with her; and that he sent her verbally abusive text messages.

She also alleged that Greg had instigated altercations between himself and the maternal grandparents in the presence of the children. She asserted that due to Greg’s abusive behavior and anger, it is impossible for her to co-parent with him. Further, she stated he had failed to move closer to the children’s school as recommended by the custody evaluator.

On May 10, 2010, Greg filed a combined rule for contempt, rule to reduce child support, and motion to compel signing of the judgment. His contempt rule |4related to the maternal grandparents’ taking one of the children to the doctor rather than waiting for him to pick up the child for the doctor visit.

Kathleen’s motion and Greg’s rule for contempt were heard by a hearing officer on May 25, 2010. On that day, the hearing officer recommended that custody be modified, finding “it is not in the best interest of the children that the parties continue to have shared custody of the children. This is a high conflict case, the parties have not worked together to resolve parenting issues and the Hearing Officer finds that the actions of the parties have been detrimental to the children.”

The hearing officer recommended a full evidentiary hearing for the designation of a domiciliary parent and a joint custody plan. The hearing officer further recommended that Greg be found in contempt for failure to pay child support and that Greg’s rule for contempt be denied. The recommendation also addressed other matters not before us on appeal.

Kathleen did not object to the hearing officer’s recommendation. On May 28, 2010 Greg filed an objection to the hearing officer’s recommendations “with regard to the denial of contempt on the part of Kathleen Beaudion.” Greg’s objection was set for hearing on June 24, 2010, the date originally assigned to hear any objection to the hearing officer’s recommendations.

On June 24, 2010, Greg filed a supplemental objection to the hearing officer’s recommendation, as well as a request for new trial and/or de novo review of all matters heard. Kathleen filed an exception of prescription and no cause of action regarding the supplemental objection to the hearing officer’s recommendation.

The matters came before the court for hearing on August 16, 2010. The parties and the court agreed to limit the evidentia-ry hearing to the issue of | .^designation of a primary domiciliary parent. On August 17, 2010, the court issued a judgment maintaining the 50/50 custody arrangement.

The trial judge specifically stated,

After hearing the testimony of the parties and the witnesses, the court believes that both parents love their triplet girls; they both have the capacity and disposition to give the children love, affection, and spiritual guidance and to continue the education and rearing of the children; ... since the implementation of the consent judgment, the children have lived in an adequate environment; both parents have the ability of providing permanence, as a family unit, of the existing or proposed custodial home or homes. The court has concerns about the moral fitness of each party, insofar as it affects the welfare of the children. The reason for this concern is on several grounds, but foremost on this issue is the fact that McGuinness played a significant part in having Beaudoin fired from a good job, which has caused him to lose 50% of his income, which has caused a significant negative impact on the children; both parents are physically healthy; the children appear to be coping with their home, school, and community environment, as well as can be expected, considering that during the course of the testimony it is abundantly clear that the parents do not like each other very much. The court is of the opinion that the children are too young to express a preference. The [court] finds that there is a lack of willingness of each party to facilitate and encourage a close and continuing relationship between the children and the other party. The parties live approximately 40 miles from each other but this distance between the respective residences of the parties has not created significant problems; it appears from the testimony that Beaudoin is more of a “hands on” parent than McGuinness. McGuinness relies heavily on her parents to feed the children, bring them to and pick them up from school, and after school activities because she works as a nurse-practitioner. Beaudoin also works, but is able to feed his children, bathe them, make sure they have clean clothes, bring them to and from school and other after school activities.
The witnesses presented by the parties on both sides do not convince the court that the terms of the aforementioned Consent Judgment should be changed or modified to a significant extent.
|„The court feels that it must herein advise the parents of these children that they will be their parents for some time into the future and that, whether they like each other or not, they need to make a better effort to get along -with each other for the benefit of the children, failing which the court will take the appropriate action, if called upon to do so.
Kathleen appeals.

ASSIGNMENTS OF ERROR

On appeal Kathleen asserts the trial court committed legal error in the following respects: (1) by not designating a domiciliary parent when it had previously determined by final judgment that “it is not in the best interest of the children that the parties continue to have shared custody;” (2) by continuing a shared custody arrangement without designating a primary domiciliary parent after testimony by all parties, including the parenting coordinator, that the parents are unable to get along or to effectively co-parent; (3) by failing to designate Kathleen Beaudion the domiciliary parent; and (4) by ordering that the parents continue to be involved in therapy with Julie Ruel.

LAW AND ANALYSIS

I. Effect of Hearing Officer Recommendation

In her first assignment, Kathleen asserts the hearing officer’s recommendation became a final judgment. Kathleen argues the hearing officer made a determination on Kathleen’s motion to modify custody, finding that the shared custody arrangement was no longer in the best interest of the children. Because neither party filed a timely objection to that recommendation, Kathleen contends that after three days, it became a final judgment of the court.

Kathleen points out that Greg’s objection that was timely-filed on May 28, 2010 was only to the denial of the contempt rule. She asserts that because the rules |7of the 24th Judicial District Court made the hearing officer’s recommendation regarding the rule to modify custody a final judgment, the court erred by not designating a domiciliary parent after the eviden-tiary hearing on August 16, 2010. She argues further that the court had no authority to deviate from the interim order because it became a judgment of the court, absent the filing of timely objections.

Kathleen filed a motion to set an eviden-tiary hearing as ordered by the hearing officer, and the hearing was scheduled for June 24, 2010. On June 22, 2010, Greg filed a motion to continue the June 24th hearing because he had to go out of town for a conference. On the same date, Greg filed a supplemental objection to the hearing officer’s recommendation, with a request for new trial and/or de novo review of all matters heard. In that supplemental objection, Greg objected to all the hearing officer’s recommendations.

The hearing was continued to August 16, 2010. On that day, counsel for Kathleen argued her exception of prescription and no cause of action, which she raised regarding Greg’s supplemental objections to the hearing officer’s recommendations. The parties and the court then agreed to go forward on the evidentiary hearing to designate a domiciliary parent.

After hearing testimony from the parties and several other witnesses, the court rendered a judgment that continued the shared custody pursuant to the parties’ prior custody agreement.

Kathleen argues that the trial court was bound by previous orders and could not go beyond the pleadings or expand upon the final judgment. She contends the court erred in failing to address the issue before it. She asserts the trial court erred in considering all of Greg’s objections when his supplemental objections were untimely, and that the court erred in failing to address the issue before it.

La. R.S. 46:236.5(c) provides in pertinent part,

|s(6) ... Any party who disagrees with a judgment or ruling of a hearing officer ... may file a written objection to the findings of fact or law of the hearing officer within the time and manner established by court rule. The objection shall be heard by the judge of the district court to whom the case is assigned. Upon filing of the objection, the court shall schedule a contradictory hearing where the judge shall accept, reject, or modify in whole or in part the findings of the hearing officer. If the judge in his discretion determines that additional information is needed, he may receive evidence at the hearing or remand the proceeding to the hearing officer.
(7) If no written objection is filed with the clerk of court within the time and manner established, the order shall become a final judgment of the court and shall be signed by a judge and appeal-able as a final judgment. The judgment after signature by a district judge shall be served upon the parties in accordance with law.

Rule 24(A)(3)(e), Rules of the 24th Judicial District Court, provide in pertinent part:

A party shall have three (3) days from the receipt of the recommendation or order of the domestic hearing officer to file a written objection to said recommendation or order. Thereafter, the recommendation of the domestic hearing officer shall become the judgment of the court. The objecting party shall file a memorandum on the law and facts with the district court judge within five (5) working days of the date the objection is filed.

Based on these rules, Kathleen contends the trial court erred in failing to adopt the hearing officer’s recommendation. Because Greg’s original objection to the hearing officer’s recommendation specified he was objecting to the denial of his rule for contempt against Kathleen, but did not specify other parts of the recommendation, Kathleen asserts the trial court erred in failing to designate a domiciliary parent after the evidentiary hearing. Kathleen argues the court was without authority to deviate from the interim order because it became a judgment of the court absent the filing of timely objections.

Kathleen cites C.G.D. v. M.W.D., 2000-1492 (La.App. 3 Cir. 2/28/01), 782 So.2d 1128, in which the appellate court held that child-support recommendations by the hearing officer constituted a final judgment, and were not subject to additions by trial court, where neither of the ex-spouses contested the recommendations within the three-day period after the hearing prescribed by the local court rule.

The case at bar is distinguishable, however. Adopting the recommendation of the hearing officer would have little effect here, because the hearing officer simply recommended that the shared custody arrangement be ended and one of the parents be designated as domiciliary parent. The decision was to be made by the district judge after an evidentiary hearing. The hearing officer did not recommend either party as domiciliary parent. Hence, to adopt the hearing officer’s recommendation as a final judgment would not resolve the issues.

In addition, because the recommendation was to hold an evidentiary hearing to decide on a domiciliary parent, the court’s action followed the recommendation. Further, during the hearing, Kathleen’s counsel withdrew her exceptions of no cause of action and prescription, and agreed to go forward with the evidentiary hearing.

A trial judge’s authority to adjudicate a matter is not precluded by a hearing officer’s recommendation:

The objection [to the hearing officer’s findings] shall be heard by the judge of the district court ... [at] a contradictory hearing where the judge shall accept, reject, or modify in whole or in part the findings of the hearing officer. If the judge in his discretion determines that additional information is needed, he may receive evidence at the hearing or remand the proceeding to the hearing officer.

La. R.S. 46:236.5(6); see also, Short v. Short, 09-639 (La.App. 5 Cir. 3/23/10), 33 So.3d 988.

Accordingly, the district judge did not err in proceeding to hear and to rule on the question of whether to continue shared custody. Nor did he err in deciding not to designate a domiciliary parent. That was within the court’s discretion.

II. Continuation of shared custody arrangement

In her second assignment, Kathleen contends,

It is undisputed that the parties in these proceedings are unable to communicate or co-parent on any level, even with the assistance of a co-parenting facilitator. No evidence was presented by either party that this acrimony could be lessened or eliminated so that the parties could make decisions in the best interest of the children. As such, the court committed legal error by failing to designate a primary domiciliary parent.

Kathleen sets out numerous instances to demonstrate that the parties have been unable to co-parent effectively and that there is a high level of acrimony between them.

La. R.S. 9:335(B)(1) provides, “In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.”

Here, there is an implementation order to the contrary. The appellate record is replete with consent judgments designating co-domiciliary status, custodial time, and holiday visitation. La. R.S. 9:335 guides courts in determining joint custody arrangements, but it does not require that a specific form be used for the implementation plan. Caro v. Caro, 95-0173 (La.App. 1 Cir. 10/6/95), 671 So.2d 516, 518.

Thus, the fact that the consent judgments previously signed by the Beaudions are not titled “implementation orders” is of no consequence.

InFurther, “other good cause shown” as used in La. R.S. 9:335 can refer to the trial court’s evaluation of the parties’ behavior. Kathleen characterized the relationship between her and Greg as one in which effective co-parenting is impossible because the parties can never agree. Nevertheless, after hearing the evidence and observing the parties, the trial judge determined that shared custody is still appropriate and in the best interest of the children.

Even when there is substantial animosity between parents, where they are equally fit and capable of parenting their children and providing good homes, a trial court’s determination that the parties are unable to communicate effectively with each other regarding issues concerning the children may constitute good cause for refusing to designate a domiciliary parent. Brewer v. Brewer, 39,647, p. 13 (La.App. 2 Cir. 3/2/05), 895 So.2d 745, 752.

Pursuant to La. R.S. 9:335(B), the decision whether to designate a domiciliary parent is within the trial court’s discretion. We find no error in the trial court’s ruling on this issue.

III. Failure to Designate Kathleen as Domiciliary Parent

Kathleen argues the evidence strongly suggests it is in the children’s best interest that she be designated the primary domiciliary parent and that Greg’s overnight visitation be limited to every other weekend.

In support of her argument, Kathleen refers to testimony that when Greg has the children, he does not regularly bring K.E.B. to her weekly tutoring or physical therapy. Greg stated he did not bring the child to these sessions because he could not afford it or could not make arrangements to transport her.

In addition, Kathleen cites testimony that Greg was terminated from two jobs partly because he failed to disclose to the employers that he had been [ 12convicted of felony stalking. Kathleen also refers to the unrefuted testimony of her father that he was physically assaulted by Greg, as well as evidence that Greg was verbally abusive to her.

Greg points out that these facts are not new, yet Kathleen has agreed to consent judgments despite these claims.

A parent seeking modification of a stipulated judgment must prove that there has been a material change in circumstances since the original custody decree was entered, and that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 738.

Kathleen fails to set out a change of circumstances that materially affects the welfare of the children. Rather, she has listed numerous troublesome incidents and negative character traits of Greg, but many of these occurred or existed prior to the issuance of Dr. York’s report and the 2007 consent judgment.

The paramount consideration is the best interest of the children. La. C.C. art. 131; Evans, 708 So.2d at 736. La. C.C. art. 132 provides that if the parents do not agree as to who is to have custody, or if their agreement is found not to be in the best interest of the child, the court “shall award custody to the parents jointly.”

The trial judge’s reasons for judgment, listed above, show that he considered the factors for determining the children’s best interest, set out in La. C.C. art. 134. We are unable to say he was clearly wrong or that he abused his discretion in the determination.

IV. Continuation of Therapy with Julie Ruel

Kathleen challenges the court’s order that the parties “continue to be involved in therapy with Julie Carona Ruel to improve ... their co-parenting skills.... ” Kathleen contends the trial court is more focused on regulating the | ^behavior of the parties and does not once discuss or note how this shared custody arrangement is in the best interest of the children.

La. R.S. 9:358.1, et seq., governs appointment of a parenting coordinator. La. R.S. 9:332, et seq., provides that a court may order the parties to mediate their differences in a custody or mediation proceeding.

The trial court’s rulings concerning the appointment of Ruel are confusing. Ruel was first mentioned in the January 27, 2009 stipulations and/or recommendations of the hearing officer. The hearing officer recommended that Ruel be appointed as “co-parenting facilitator” and the parties were directed to submit their issues to her before filing any rules or motions with the court. That recommendation was rendered as a consent judgment by the district court on July 2, 2010. (The delay in making it a judgment was due to disagreement between the parties, despite their having stipulated to these provisions before the hearing officer.)

In the judgment on appeal, as mentioned above, the parties were ordered to continue in “therapy” with Ruel.

As noted in Footnote 4, supra, the Louisiana Revised Statutes provide for appointment of a mediator (La. R.S. 9:332) and a parenting coordinator (La. R.S. 9:358.1), but do not mention a “co-parenting facilitator.”

“Good cause” to appoint a parenting coordinator “includes a determination by the court that either or both parties have demonstrated an inability or unwillingness to collaboratively make parenting decisions without assistance of others or insistence of the court,” and may also include “an inability or unwillingness to comply with parenting agreements and orders or a determination by the court that either or both parties have demonstrated an ongoing pattern of unnecessary litigation, refusal to communicate or difficulty in communicating about and cooperation in the care of the children, and refusal to acknowledge the right of each party to have and maintain a continuing relationship with the children.”

Griffith v. Latiolais, 2010-0754, p. 16-17 (La.10/19/10), 48 So.3d 1058, 1070, quoting from the 2007 Official Revision Comments to La. R.S. 9:358.1.

Greg argues that Ruel functioned in the role of a mediator, citing the court’s requirement that the parties “submit to the facilitator before filing any rules or motions with the court.” He argues that La. R.S. 9:358.1, regarding appointment of a parenting coordinator, is not applicable, but even if it is applicable, there is good cause in this case for the parties to continue to see Ruel.

Courts have the authority to order litigants to mediate their parenting differences by attending therapy or seeking counseling. See Molony v. Harris, 2010-1316, p. 20 (La.App. 4 Cir. 2/23/11), 60 So.3d 70, 83.

This case clearly fits within the description of “good cause” quoted in Griffith, supra. We find no abuse of discretion in the trial court’s continuation of Ruel as parenting coordinator.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellant, Kathleen McGuinness Beaudion.

AFFIRMED

      . We shall refer to the children as K.R.B., K.A.B., and K.E.B. to protect their privacy. They were born on May 1, 2003.

      . A judgment of divorce was rendered in February 2005.

      .The parties disagree as to whether Dr. York's recommendation was dependent on Greg moving to the south shore. In fact, the transcript of the June 28, 2007 hearing shows the 50/50 arrangement was implemented without mention of Greg moving.

      . The Revised Statutes allow for appointment of a mediator (La. R.S. 9:332-9:334) and appointment of a parenting coordinator (La. R.S. 9:358.1-9:358.9). The statutes do not contain the phrase "co-parenting facilitator.”


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    A & A MECHANICAL, INC. v. SATTERFIELD & PONTIKES CONSTRUCTION GROUP, LLC and Chris Head.
    No. 2011-CA-0784.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 2012.

      H. Minor Pipes III, Keith L. Magness, Seth T. Thorp, Barrasso Usdin Kupper-man Freeman & Sarver, LLC., New Orleans, LA, for Plaintiff/Appellant.
    W. Glenn Burns, Joseph L. Spilman III, Hailey McNamara Hall Larmann & Pa-pale, L.L.P., Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|tA & A Mechanical, Inc. appeals the trial court’s dismissal without prejudice of its claims against Satterfield & Pontikes Construction Group, L.L.C. and Chris Head and referral of the matter in its entirety to arbitration. For the reasons that follow, we find that the trial court committed legal error in failing to allow claims outside of the scope of the arbitration clause to proceed in state court and reverse and remand.

FACTS AND PROCEDURAL HISTORY

On November 25, 2008, Appellee, contractor Satterfield & Pontikes Construction Group, L.L.C. (“S & P”), entered into a subcontract with Appellant, A & A Mechanical, Inc. (“A & A”) to perform work in connection with the construction of L.B. Landry High School in Algiers, Louisiana. On January 6, 2011, A & A filed suit, naming S & P and Chris Head, the project manager for S & P, as defendants. In the petition, A & A asserted that it was not paid for all the work performed under the subcontract. In addition to the breach of contract claims, |2A & A also alleged that Chris Head demanded side payments of cash and other benefits from A & A as a kickback on the job and threatened that if A & A refused to pay the kickbacks, he would make things “difficult” for A & A. A & A further asserted that although A & A’s principles notified George Pontikes, the manager of S & P, of Head’s demands for cash and kickbacks, neither S & P nor Pontikes attempted to address the issue.

A & A alleged that as a result of the refusal to provide kickbacks to Chris Head, A & A suffered retaliation. Specifically, A & A asserted that S & P barred A & A’s project manager, Kenny Diaz, from the jobsite; refused A & A’s payment applications, requiring A & A to resubmit payment applications and/or change order requests multiple times to include additional detail and supporting documentation beyond what was typically required; failed to respond to requests for information about the project; and refused to coordinate ongoing work with A & A. As a result, A & A argues that it suffered lost profits and business opportunity, and that A & A’s overhead and labor costs were increased. A & A contended that Chris Head and S & P’s actions and inactions constituted unfair trade practices and tor-tious interference; that S & P was vicariously liable for Chris Head’s actions; and that S & P had been unjustly enriched by A& A.

S & P filed an exception of prematurity, arguing that the subcontract provided that any disputes arising out of the subcontract should be mediated, and if mediation was unsuccessful, the dispute was to be settled by binding arbitration. The matter was heard on March 18, 2011, and the trial court granted S & P’s | (¡exception on March 29, 2011, dismissing all of A & A’s claims without prejudice and referring the entire matter to arbitration. This appeal followed.

STANDARD OF REVIEW

A determination regarding whether to stay or to compel arbitration is a question of law. Saavedra v. Dealmaker Developments, LLC, 2008-1239, p. 6 (La.App. 4 Cir. 3/18/09), 8 So.3d 758, 762, writ denied, 2009-0875 (La.6/5/09), 9 So.3d 871 (citing Billieson v. City of New Orleans, 02-1993, p. 3 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 560). Accordingly, an appellate court reviews questions of law to determine whether the trial court was legally correct or incorrect. Id. Specifically, an appellate court “should consider de novo issues of law concerning whether the dispute was within the scope of the arbitration agreement, unless the parties also clearly agreed that the issue of whether a dispute was arbitrable was subject to arbitration.” Collins v. Prudential Ins. Co. of Am., 1999-1423, p. 7, n. 11 (La.1/19/00), 752 So.2d 825, 830; see also Hoffman, Siegel, Seydel, Bienvenu & Centola, APLC v. Lee, 2005-1491, pp. 4-5 (La.App. 4 Cir. 7/12/06), 936 So.2d 853, 856, writ denied, 2006-1995 (La.11/3/06), 940 So.2d 671 (recognizing that “[i]f the trial court’s decision was based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such [an] incorrect decision is not entitled to deference by the reviewing court”)(quoting Dufrene v. HBOS Mfg., LP, 2003-2201, p. 2 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206, 1209).

DISCUSSION

At the outset, S & P argues that A & A has no right to directly appeal the trial court’s dismissal without prejudice of A & A’s claims, asserting that such judgment is interlocutory and not appealable. In this case, the trial court did not stay the proceedings pending arbitration; the court dismissed the matter in its entirety, |4leaving the trial court with nothing to decide. Therefore, the trial court’s judgment dismissing all of A & A’s claims was a determination of the merits and constitutes a final appealable judgment pursuant to La. C.C.P. art. 1841.

A & A asserts three assignments of error for our review. First, A & A argues that the trial court erred in compelling arbitration when there was no evidence of a written agreement wherein A & A and Head agreed to arbitrate any disputes between them. A & A further submits that the trial court erred in compelling arbitration of A & A’s tortious conduct claims against S & P because the tort actions fall outside the scope of the arbitration agreement contained within the subcontract. In the third and final assignment of error, A & A argues that the trial court erred in compelling arbitration of A & A’s vicarious liability claim because S & P is solidarily liable with Head’s for his tortious conduct and A & A has only one joint cause of action against Head and S & P.

The relevant portion of the subcontract between A & A and S & P provided, under the heading “Settlement Disputes” in Section 11, Paragraph (d):

In the event any controversy or dispute arises between Subcontractor [A & A] and Contractor [S & P] relating to this subcontract (or breach thereof), which dispute or controversy does not involve the correlative rights and duties of owner, Subcontractor shall request mediation of the dispute with Contractor and the parties shall attempt in good faith to mediate the dispute. Mediation shall be a condition precedent to any further rights that the Subcontractor has to the resolution of the dispute.

The subcontract further provides, in subsection (i) under Paragraph (d):

Islf the mediation is unsuccessful, then Subcontractor [A & A] agrees that Contractor [S & P] shall make the determination (in its sole discretion) as to whether the dispute shall be settled by binding arbitration in accordance with the Construction Industry Arbitration Rules (then applicable) of the American Arbitration Association (in which case Subcontractor [A & A] agrees that it will submit its disputes to such arbitration statutes including the Federal Arbitration Act). Any arbitration held under this provision shall be held in Harris County, Texas.

Generally, any doubt should be resolved in favor of arbitration. Aguillard v. Auction Management Corp., 04-2804, 04-2857, p. 6 (La.6/29/05), 908 So.2d 1, 7; Dufrene v. HBOS Mfg., LP, 2003-2201, pp. 7-8 (La.App. 4 Cir. 4/7/04), 872 So.2d 1206, 1212-14 (per curiam). Additionally, “[w]hether a claim is brought in state court or federal court, and whether a claim is based on state or federal law, courts must enforce arbitration agreements in contracts covered by the FAA, notwithstanding any state statutory or jurisprudential rules to the contrary.” Collins, 1999-1423, p. 2, 752 So.2d at 827 (citing Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)). However, the Louisiana Supreme Court has recognized that “[i]n a case where the trial judge has committed a clear error in ordering arbitration, supervisory relief might be appropriate based upon the facts and circumstances of a particular case.” Collins, 1999-1423, p. 9, 752 So.2d at 831. Likewise, to be consistent with the policy favoring arbitration, “such relief should be granted only sparingly.” Id.

Before referring claims to arbitration, however, it is well-settled that a trial court must first determine whether a dispute falls within the scope of the arbitration agreement:

| fiBefore a district court may compel arbitration, the trial judge must make two preliminary determinations. First, the trial judge must ensure that a valid arbitration agreement between the parties exists. Second, the judge must decide whether the dispute at issue falls within the scope of the agreement.

Bolden v. FedEx Ground Package Sys., Inc., 2010-0940, p. 12 (La.App. 4 Cir. 2/16/11), 60 So.3d 679, 686 (quoting Breaux v. Stewart Enterprises, Inc., 2004-1706, p. 1 (La.10/8/04), 883 So.2d 983, 983; Collins, 99-1423, pp. 9-10, 752 So.2d at 831)(emphasis in original).

Thus, “[o]n review, a trial court’s judgment which compels arbitration is reviewed under the same two-prong test: 1) whether there is a valid arbitration agreement and 2) whether the dispute falls “within the scope’ of the agreement.” Bolden, 2010-0940, p. 12, 60 So.3d at 686 (quoting Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 2003-1662, p. 9 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 387, writ denied, 2004-0969 (La.6/25/04), 876 So.2d 834 and writ denied, 2004-0972 (La.6/25/04), 876 So.2d 834).

In this case, the record does not evidence whether the trial court made these preliminary determinations. No reasons for judgment were issued, and the record does not contain a transcript of the proceedings. Nevertheless, we find that the trial court committed legal error in dismissing A <& A’s suit in its entirety and referring the matter to arbitration, effectively failing to allow A & A’s claims against Chris Head individually and A & A’s tort claims against S & P to proceed in state court.

With regard to the breach of contract claims, A & A concedes in its appellate brief that those claims will properly proceed to arbitration because those are claims |7arising specifically out of the subcontract. A & A contends, however, that A & As additional claims regarding the demand of kickbacks and accompanying threats by Chris Head and A & A’s tort claims against S & P fall outside the scope of the arbitration agreement because those claims did not “arise out of’ the subcontract and should not have been referred to arbitration by the trial court. Specifically, A & A submits that although the subcontract provides that issues between A & A and S & P shall be submitted to arbitration, there is no written agreement whereby A & A and Chris Head agreed to arbitrate disputes between them. Likewise, A & A argues that the trial court erred in compelling arbitration of A & A’s tortious conduct claims against S & P, because those tort actions also fall outside the scope of the arbitration agreement.

“[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, Inc. v. Communications Workers of America., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986)(quoting United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 570-571, 80 S.Ct. 1363, 1364-1365, 4 L.Ed.2d 1432 (1960) (Brennan, J., concurring); see also Billieson v. City of New Orleans, 2002-1993, p. 6 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 561, writ denied, 2004-0563 (La.4/23/04), 870 So.2d 303. Likewise, “the duty to arbitrate is one assumed by contract.” Anthony G. Buzbee, When Arbitrable Claims Are Mixed with Nonarbitrable Ones: What’s A Court to Do?, 39 S. Tex. L.Rev. 663, n. 47 (1998)(citing AT & T Technologies, Inc., 475 U.S. at 648, 106 S.Ct. at 1418 (1986)); see also Kroll v. Doctor’s Associates, Inc., 3 F.3d 1167, 1169 (7th Cir.1993)(agreement to arbitrate between franchisor and plaintiff did not extend to franchisor’s employees who were not parties to the agreement). Accordingly, “parties who do not choose to participate in an arbitration agreement are not bound by the agreement.” Buzbee, supra, at 673. Similarly, because the record does not evidence an agreement whereby A & A and Chris Head agreed to arbitrate issues between them, A & A cannot be forced to arbitrate its claims against Chris Head individually.

Furthermore, A & A contends that the arbitration provision was narrowly defined and did not provide that A & A and S & P agreed to litigate tort claims. A & A further submits that nothing in the subcontract bestows a right of action upon A & A to pursue an unfair trade practice claim. In Saavedra v. Dealmaker Developments, LLC, this Court recognized a broadly defined arbitration provision as one that encompassed “any and all claims, issues or disputes of any nature arising out of this contract in anyway [sic], to include claims under tort law, contract law, statutory law, or common law.” Saavedra v. Dealmaker Developments, LLC, 2008-1239, p. 8 (La.App. 4 Cir. 3/18/09), 8 So.3d 758, 764, writ denied, 2009-0875 (La.6/5/09), 9 So.3d 871 (emphasis added). In contrast, the arbitration provision in this case is narrowly defined as governing any | ^controversy or dispute “relating to this Subcontract.” A & A’s tort claims at issue arise out of Chris Head’s alleged demands for kickbacks and unfair trade practices, as well as S & P’s alleged vicarious liability. Therefore, we agree that the arbitration provision is narrow in scope, and that A & A’s tort claims against Chris Head and S & P, as well as A & A’s vicarious liability claim against S & P, are not disputes “relating to th[e] subcontract” such that they are encompassed by the arbitration clause. See Saavedra v. Dealmaker Developments, LLC, 2008-1239, p. 8, 8 So.3d at 764; Snyder v. Belmont Homes, Inc., 2004-0445, p. 6, 899 So.2d at 62.

For the foregoing reasons, we find that the trial court committed legal error in compelling A & A to arbitrate its claims against Chris Head individually and its tort claims against S & P. While A & A’s breach of contract claims may properly proceed to arbitration, the remaining claims must be submitted to the trial court for a determination of those issues. The trial court’s judgment on S & P’s exception of prematurity is hereby reversed and the matter is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED

      . A review of the record evidences that the subcontract provided that A & A would be paid $5,381,824.00. A & A submits that during the course of construction, A & A was also directed to perform over $500,000.00 in extra work, and that certain portions of these amounts are in dispute. However, A & A notes that the resolution of those claims is not at issue in this appeal and that the claims regarding these disputed amounts will proceed to arbitration.

      . This case is procedurally distinguishable from Bolden v. FedEx Ground Package Sys., Inc., 2010-940 (La.App. 4 Cir. 2/16/11), 60 So.3d 679. In Bolden, a trial court’s judgment which granted the defendants' exception of prematurity and motion to stay and ordered the plaintiffs' claims to arbitration without dismissing the suit was determined to not be an appealable judgment. In concluding that tire judgment was interlocutory, this Court recognized that "[t]he judgment did not dismiss any party” and "[t]he judgment d[id] not even purport to dismiss some, much less all, of the claims of the plaintiffs.” Bolden, 2010-940, p. 3, 60 So.3d at 682 (emphasis in original). This case is also procedurally distinguishable from Collins v. Prudential Ins. Co. of Am., 1999-1423, p. 6 (La.1/19/00), 752 So.2d 825, 829, wherein the Louisiana Supreme Court found that an order staying the proceedings and compelling arbitration was not an appealable judgment because the trial court’s judgment "did not dispose of the merits of the case in whole or in part.”

      . The following section, (ii), provides that "[i]n the event that Contractor determines that the dispute shall not be resolved through arbitration, then Subcontractor agrees that the disputes will be resolved by courts of competent jurisdiction in Harris County, Texas.”

      . Similarly, in Snyder v. Belmont Homes, the First Circuit concluded that an arbitration provision which encompassed "any dispute, controversy or claim of any kind or nature that may arise” and "all past, present, and future disputes, whether in tort, contract or otherwise, concerning or related to the manufactured home” was broad in scope; therefore, the dispute fell within the arbitration clause:
      If the court finds that the [arbitration] clause is broad, then any dispute between the parties falls within the scope of the clause if it is connected with or related to the contract. [See Hornbeck Offshore Corp. v. Coastal Carriers Corp., 981 F.2d 752, 754-55 (5th Cir.1993).] A narrow clause restricts and requires that the dispute literally "arise out of the contract” and relate to the parties’ performance of the contract. Pennzoil [Exploration & Prod. Co. v. Ramco Energy Ltd.], 139 F.3d [1061,] 1067 [(5th Cir.1998)].

        Snyder v. Belmont Homes, Inc., 2004-0445, p. 6 (La.App. 1 Cir. 2/16/05), 899 So.2d 57, 62, writ denied, 2005-1075 (La.6/17/05), 904 So.2d 699 (emphasis added).


author: KING, Justice,

text:
    Jermell VICTORY v. STATE of Mississippi.
    No. 2010-KA-02073-SCT.
    Supreme Court of Mississippi.
    March 1, 2012.
    Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before WALLER, C.J., KITCHENS and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. Jermell Victory was convicted in the Circuit Court of Coahoma County of the murder of Darron Sykes and of possession of a firearm by a convicted felon. The circuit court sentenced Victory, respectively, to life and ten years in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run consecutively. Victory raises one issue on appeal: “Whether the trial court erred in refusing to grant appellant Jermell Victory’s proposed jury instruction on eyewitness identification where said instruction embodied his theory of the case.” We find that the circuit court did not err by denying Victory’s proposed jury instruction.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 26, 2010, Victory was indicted for Sykes’s murder and possession of a firearm by a convicted felon. The murder occurred on November 16, 2009, in Jones-town, Mississippi. Terrance Ewing and Mario Brunt were in the vehicle with Sykes at the time of the shooting. Brunt was driving, Sykes was in the front passenger seat, and Ewing was in the back seat. According to Ewing and Brunt, the trio had just left the liquor store. Brunt had exited on Jones Street and turned onto Mosley Street, where he had stopped at a stop sign. According to Brunt, Victory emerged from behind a tree, walked around to the passenger’s side of the vehicle, and began shooting into the car. Ewing also testified that Victory emerged from behind a tree and began shooting on the passenger side of the car.

¶ 3. During the shooting, Officers Otha Hunter, III, and Derrell Washington of the Jonestown Police Department were patrolling the area when they heard the gunshots. They proceeded toward the gunfire. When they arrived on Mosley Street, Officer Hunter saw a black male on the passenger side of the car, firing into the vehicle. Officer Hunter recognized the suspect immediately as Victory. Officer Washington testified that he did not see the suspect’s face because he was activating the police siren. Upon seeing the police officers, the suspect fled on foot.

¶ 4. After the suspect fled, the police officers approached the vehicle, ordered Brunt and Ewing out of the car, handcuffed them, and placed them in the back of the patrol car. The police officers notified the Coahoma County Sheriffs Office of the incident and requested an ambulance. Sykes was pronounced dead at the scene. The police officers searched Sykes and found an unloaded weapon in a holster on his body. No other weapons were found at the scene.

¶ 5. While at the scene of the shooting, the police officers questioned Brunt and Ewing about the shooter and, at the time, neither Brunt nor Ewing identified the shooter. Officer Hunter pulled Officer Washington aside, stated that he had recognized the shooter, and identified the shooter as Victory. After Ewing and Brunt were taken into custody, they confessed that they had seen the shooter’s face and identified the shooter as Victory. During the trial, the two explained that they initially did not identify Victory as the shooter because they were afraid that Victory would harm them.

¶ 6. Sisters Latrice Wright and Ebony Coleman were walking toward Mosley Street before the shooting occurred. Wright testified that she heard someone yell Victory’s name, and then she heard gunshots. Upon hearing the gunshots, both sisters ran for cover. Wright stated that she saw Victory shooting into the passenger’s side of a car. Coleman also testified that she saw Victory shooting into Brunt’s car. In their statements to police, the sisters both claimed that they had seen a champagne-colored or silver car pull up next to Brunt’s car. At trial, Coleman recalled seeing the second car. Wright initially did not recall the second car, but, after reviewing her statement, she remembered seeing a champagne-colored car. Contrary to the sisters’ testimony, Brunt and Officer Washington testified that they did not see any other vehicles.

¶ 7. Collar Lumpkin, a Jonestown resident who had known Victory for approximately eight years, testified for the State as follows. On the night of the shooting, Lumpkin was at his grandmother’s house on Jones Street. Lumpkin stated that Victory walked past his grandmother’s house between 7:00 p.m. and 8:00 p.m., carrying a weapon by his side. Twenty to thirty minutes later, Victory walked past the house again. This time, Victory stopped, greeted Lumpkin, and asked Lumpkin to come over. Lumpkin refused to see what Victory wanted. When asked if he had heard any gunshots that night, Lumpkin answered “no” and stated that someone had informed about the shooting later that evening.

¶ 8. Two alibi witnesses — Dalcour Matthews and Keith Johnson — testified on Victory’s behalf. Matthews, a friend of Victory’s for six years, testified that he and Victory had helped push a car out of the mud earlier that day, after which they went their separate ways to change clothes. At the time of the shooting, Matthews stated that he was headed to the store, where he saw Victory at the corner of Main Street and Church Street. Matthews also saw Johnson at the store. Johnson testified that, at the time of the shooting, he was also headed to Bryant Grocery on Main Street. According to Johnson, Victory was waiting for him at the stop sign on Main Street and Church Street. Johnson testified that when they heard the gunfire, he and Victory left the store and headed in the opposite direction, toward Victory’s sister’s home.

¶ 9. The police department searched the town for Victory and later found him at a girlfriend’s house. Officer Washington apprehended Victory as he tried to escape through the back door of the home. According to Officer Washington, Victory pleaded “Come on, man. Let me make it.” Officer Washington informed Victory that he was suspected of murder and then placed him under arrest. Deputy Herbert Thomas testified that a gunshot-residue test performed on Victory was negative.

Eyewitness-Identification Jury Instruction

¶ 10. Victory proposed the following jury instruction regarding eyewitness identification:

The Court instructs the jury that in reaching your verdict you are to consider all of the evidence concerning the entire case and the circumstances surrounding the crime. One of the issues in this case is the identification of JER-MELL VICTORY as the perpetrator of the crime. As with each element of the crime charged, the State has the burden of proving identity beyond a reasonable doubt, and before you may convict JER-MELL VICTORY you must be satisfied beyond a reasonable doubt of the accuracy of the identification of JERMELL VICTORY. If, after considering all of the evidence concerning the crime and the witness’ [sic] identification of JER-MELL VICTORY as the person who committed the crime, you are not convinced beyond a reasonable doubt he is the person who committed the crime, then you must find him not guilty. Identification testimony is an expression of belief or impression by the witness. You must judge its value and reliability from the totality of the circumstances surrounding the crime and the subsequent identification. In appraising the identification testimony of a witness, you should consider the following:
1) Did the witness have an adequate opportunity to observe the offender?
2) Did the witness observe the offender with an adequate degree of attention?
3) Did the witness provide an accurate description of the offender after the crime?
4) How certain is the witness of the identification?
5) How much timed [sic] passed between the crime and the identification?
If, after examining all of the testimony and the evidence, you have a reasonable doubt that JERMELL VICTORY was the person who committed the crime, then you must find JERMELL VICTORY not guilty.

The State objected to the instruction, arguing that an identification instruction is appropriate only when there is only one eyewitness. The circuit court agreed and denied Victory’s proposed instruction.

Conviction & Sentence

¶ 11. On November 17, 2010, Victory was found guilty of murder and possession of a firearm by a convicted felon. He was sentenced to life and ten years in the custody of the MDOC, respectively, with those sentences to run consecutively. On November 23, 2010, Victory filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The same day, the circuit court entered an order denying Victory’s motion. Aggrieved, Victory timely filed his notice of appeal with this Court.

STANDARD OF REVIEW

¶ 12. Whether to grant or deny proposed jury instructions is within the sole discretion of the circuit court. Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010). Thus, this Court reviews the grant or denial of jury instructions for an abuse of discretion. Id. No one instruction should be singled out. Id. Accordingly, the Court reviews the jury instructions as a whole to determine whether an error has occurred. Id. “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. at 74 (¶ 20) (quoting Hearn v. State, 3 So.3d 722, 738 (¶ 45) (Miss.2008)). “[I]f the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. at 73 (¶ 20) (quoting Rubenstein v. State, 941 So.2d 735, 785 (¶ 224) (Miss.2006)).

ANALYSIS

¶ 13. Victory contends that the circuit court erred by denying his eyewitness-identification jury instruction, maintaining that the jury instruction was necessary to inform the jurors how to weigh inconsistent testimony. Victory lists the alleged inconsistencies: (1) Brunt and Ewing initially did not identify the shooter; (2) Officer Hunter somehow identified Victory as the shooter, but Officer Washington did not see the assailant’s face, and (3) the sisters’ testimony was unreliable. According to the State, an identification instruction is necessary when there is only one eyewitness. Because there were multiple eyewitnesses in Victory’s case, the State maintains that the instruction was not warranted. The State also adds that the jury instruction would have been an improper comment on the evidence.

¶ 14. To support his argument, Victory cites two Mississippi Court of Appeals cases: Grayer v. State, 928 So.2d 905 (Miss.Ct.App.2006), and Brunner v. State, 37 So.3d 645 (Miss.Ct.App.2009). In Grayer, the defendant was charged with burglary of a dwelling. Grayer, 928 So.2d at 906 (¶ 1). The victim caught the burglar in the act and gave the police a description of the suspect. Id. at 906-907 (¶¶ 2-3). Later that night, a suspect matching the description was apprehended by police, and the victim confirmed the suspect as the burglar. Id. at 907-908 (¶ 5). After being identified, the defendant apologized to the victim, essentially confessing to the crime. Id. In addition, the police recovered the victim’s personal items from the defendant’s person. Id. at 908 (¶ 6). At trial, the defendant requested an identification jury instruction, and the circuit court denied the jury instruction. Id. at 906 (¶ 1). The defendant appealed, and the Court of Appeals affirmed. Id.

¶ 15. Citing Francis v. State, 791 So.2d 904 (Miss.Ct.App.2001), the Court of Appeals held that:

Grayer’s identification did not rest solely on the testimony of a single witness. Grayer was in possession of property stolen from the crime scene and apologized to the victim for his actions. As in Francis, the trial court committed no error in refusing to give the identification instruction.

Grayer, 928 So.2d at 909 (¶ 11). Because corroborating evidence identified the defendant as the burglar, the Court of Appeals held there was no error.

¶ 16. In Brunner, the defendant was charged with several crimes against an elderly woman: burglary, aggravated assault, armed robbery, and auto theft. Brunner, 37 So.3d at 646 (¶¶ 1-2). The victim told police that the perpetrator had once worked for her husband. Id. at 647 (¶4). The victim’s husband told police that he had recently fired Brunner for stealing on the job. Id. Independently, the victim identified Brunner in a police line-up. Id. at (¶ 5). At trial, Brunner admitted that he had possession of the victim’s car but claimed that he had received the car from another employee. Id. at (¶¶ 8-9).

¶ 17. On appeal, Brunner argued that the circuit court erred by denying his identification jury instruction. Id. at 648 (¶ 12). Considering the jury instructions given as a whole, the Court of Appeals held that the jury instructions clearly articulated that “the State bore the burden of proving each element of each offense charged beyond a reasonable doubt, which included the identity of the perpetrator.” Id. at 648-649 (¶¶ 13-15). Specifically, the Court of Appeals noted the “State’s burden of proof instruction ... warned the jury to also ‘consider the witness’s ability to observe the matters as to which he or she has testified....’” Id. at 649 (¶ 15). As a result, the Court of Appeals held that the jury instructions given encompassed the issue of misidentification, and the circuit court did not err by denying Brun-ner’s identification jury instruction. Id. at 649-650 (¶¶ 16-19).

¶ 18. The State cites Warren v. State, 709 So.2d 415 (Miss.1998), to support its position. In Warren, the defendant was convicted of voyeurism based on his identification by a single eyewitness. Warren offered an identification jury instruction, and the State objected, arguing that the jury instruction was repetitive and an improper comment on the weight of the evidence. Id. at 420 (¶ 27). The instruction was denied. On appeal, this Court found reversible error, stating: “[The] failure to instruct the jury on the law of identification was error as this case turned on the identification of Warren by a single person.” Id. at 421 (¶ 28) (emphasis added).

¶ 19. Relying on this Court’s decision in Warren, the Court of Appeals has rejected defendants’ argument that they were entitled to an identification instruction. See Tugle v. State, 68 So.3d 691 (Miss.Ct.App.2010) (“a defendant is only entitled to such an instruction if requested and if he is identified as the guilty party by, at most, one witness to his alleged crime”), cert. denied, 69 So.3d 767 (Miss.2011); Powell v. State, 925 So.2d 878 (Miss.Ct.App.2005) (“Unlike the defendant in Warren, Powell’s identification and subsequent conviction did not rest entirely upon the testimony of a single witness.”), cert. denied, 927 So.2d 750 (Miss.2006).

¶ 20. Victory maintains that he is entitled to the identification jury instruction because (1) there is no corroborating evidence in his case, as in Grayer, and (2) no instruction was given in his case which encompassed the issue of misidentification, as in Brunner. But Grayer and Brunner are distinguishable from today’s case.

¶ 21. Grayer and Brunner hinged on the suspect’s identification by one witness. Under Warren, the identification jury instruction is necessary only when the identification of the suspect hinges on one witness. Even still, the Court of Appeals found no error in Grayer where there was other corroborating evidence. In Victory’s case, multiple witnesses identified him as the shooter. Thus, the identification jury instruction was not necessary. It was within the circuit court’s discretion to grant or deny the jury instruction, and the circuit court did not abuse its discretion by denying the jury instruction.

¶ 22. Essentially, Victory’s argument centers around alleged inconsistencies in the witnesses’ testimonies. The law is clear that the weight and credibility to give to the evidence are within the province of the jury. Ewing v. State, 45 So.3d 652, 655 (¶ 15) (Miss.2010). And the circuit court charged the jury with that duty in jury instruction C-l. Additionally, allowing the instruction would have amounted to an improper comment on the evidence. See Miss.Code Ann. § 99-17-35 (Rev.2007) (“The judge in any criminal cause, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence; but at the request of either party he shall instruct the jury upon the principles of law applicable to the case.”)

CONCLUSION

¶ 23. An identification jury instruction is necessary only when the identification of the suspect hinges on one witness. The jury instruction is not necessary where multiple witnesses identify the suspect or there is other corroborating evidence linking the suspect to the crime. Because multiple witnesses identified Victory as the shooter, the eyewitness-identification jury instruction was not necessary. Additionally, the instruction would have been an improper comment on the weight of the evidence. It was within the jury’s province to determine the weight and credibility to give to the evidence. Accordingly, we find that the circuit court did not abuse its discretion by denying Victory’s requested jury instruction.

¶ 24. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN COUNT I.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . At trial, the defense presented evidence that Sykes, Brant’s former supervisor, possibly had fired Brant, indicating a motive for Brant to kill Sykes. Brant testified that he was hired to work at a casino through a temporary agency and he was laid off, but that Sykes did not control that decision.

      . Although Officer Washington did not see a champagne-colored car at the scene of the shooting, he testified that the police department had received calls that Victory was around town in a champagne-colored car.

      . On cross-examination, Deputy Thomas also testified that he had found marijuana at Victory’s home. The defense offered this as Victory's motive for fleeing the home.


author: CHANDLER, Justice,

text:
    Joshua KING v. STATE of Mississippi.
    No. 2011-KA-00137-SCT.
    Supreme Court of Mississippi.
    March 1, 2012.
    Office of Indigent Appeals by Mollie M. McMillin, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of Attorney General by Stephanie Breland Wood, attorney for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. On September 17, 2008, Joshua King and Terrance Stanton were indicted for two counts of capital murder. King’s first trial ended in a mistrial in July 2009. On December 14-16, 2010, King was retried in the Circuit Court of Bolivar County for the deaths of Alfred Quong and So Ha Jung during the commission of a robbery. The jury found King guilty on both counts of murder. The trial court sentenced King to life in the custody of the Mississippi Department of Corrections (MDOC) and ordered that his sentences run concurrently. King now appeals this conviction. Finding no error, we find that the jury verdict and life sentence in the custody of the MDOC should be affirmed.

FACTS

¶ 2. On the night of September 19, 2007, Ulysses Brown and his girlfriend Mary Phillips heard two gunshots fired from outside. The shots occurred around 10:00 p.m. The couple went outside to find out what had happened and saw two men running out of the front door of Leadway Grocery Store. Officer Keith Johnson of the Shaw Police Department, along with another officer, responded to Brown’s 911 call. When the officers arrived at the store, the front doors of the building were open and two bodies were lying on the floor. Both victims, Alfred Quong and So Ha Jung, had been shot. Quong, the owner of the store, was found lying on his back, and was pronounced dead at the hospital. Jung, an employee of the store, was found dead, lying on top of Quong in a kneeling position. Both victims died from gunshot wounds to the head.

¶ 3. Officer Charles Gilmer of the Bolivar County Sheriff’s Office also reported to the scene that night and recovered some .380 caliber shell casings, along with a live round of ammunition. Officer Gilmer collected from the checkout counter a palm print that matched King’s print. An investigation led to the arrest of Joshua King and Terrance Stanton. Investigator Tim Pyles of the Mississippi Bureau of Investigation interviewed Stanton the night after the shootings. Stanton also gave a revised statement the next morning. Pyles tape-recorded the first statement and took notes during the second statement. Stanton admitted killing Quong and Jung in his second statement. Both Stanton and King assisted officers and Investigator Charlie Griffin in recovering the two sets of cash taken from Leadway Grocery Store. Investigator Griffin also testified that King admitted to being in the store when the second victim was shot.

¶ 4. Stanton and King each were charged with two counts of capital murder. Stanton pleaded guilty and testified for the State against King. At trial, Stanton testified that he, King, and Jontarious Moody discussed robbing the store the night before the shootings. Moody did not participate, but he did provide the gun used in the robbery. Stanton testified that, on the night of the robbery, King went into the store alone and asked Quong for some cold medication. King returned, and Stanton told him to remain outside while he went in the store. Stanton went inside, asked Quong for some cold medication, and placed a soda on the counter. Then Stanton shot Quong as he turned his back to get the cold medication. King ran into the store, and Stanton handed King the gun while he took the money from the register. Jung was kneeling next to Quong, who had fallen down after the shot. Stanton testified that after King handed back the gun, he asked, “Are you gonna kill her? Ain’t you gonna shoot her?” Then, Stanton shot Jung. Stanton also testified that King asked him to shoot Quong again because he was still breathing, but Stanton shot the floor instead. Stanton and King fled the store and ran to Promise Land Apartments. After Stanton changed clothes at his girlfriend’s house, he and King went to another house and then separated.

¶5. Stanton agreed to testify against King in exchange for the State not seeking the death penalty. Stanton admitted on cross-examination that he had pleaded guilty to two counts of capital murder. Stanton also admitted that the State had promised not to seek the death penalty if he agreed to testify against King. King did not testify. At trial, the State admitted several photographs depicting the crime scene. King objected to one photograph in particular (Exhibit 3e) that showed Quong after Jung’s body had been moved away from his body. The trial court overruled the defense’s objection. Ultimately, the jury found King guilty on both counts of capital murder, and he was sentenced to life imprisonment in the MDOC. The trial court denied King’s motion for a new trial.

¶ 6. King raises two issues on appeal: 1) whether the trial court erred by allowing the introduction of Exhibit 3e; and 2) whether the trial court erred in denying King’s motion for a new trial because the verdict was against the overwhelming weight of the evidence.

DISCUSSION

I. Whether the trial court abused its discretion in allowing Exhibit 3e into evidence.

¶ 7. We find that the trial court did not abuse its discretion in allowing Exhibit 3e into evidence. “Admission of photographs by the trial court is reviewed for abuse of discretion.” Chamberlin v. State, 989 So.2d 320, 340 (Miss.2008) (citations omitted). The trial judge’s discretion is nearly unlimited, no matter the gruesomeness or extent of probative value. Id. (citations omitted). Only some probative value is needed to support a judge’s admission of a gruesome photograph. Id. (citations omitted) (emphasis added).

¶8. King argues that Exhibit 3e should have been excluded because it is gruesome, unnecessary, and prejudicial. This Court’s longstanding precedent weighs in favor of admission as long as there is some probative value. See Jordan v. State, 728 So.2d 1088, 1094 (Miss.1998); McIntosh v. State, 917 So.2d 78, 84 (Miss.2005); Dampier v. State, 973 So.2d 221, 230 (Miss.2008). “A photograph has a meaningful evidentiary purpose when it: (1) aids in describing the circumstances of the killing; (2) describes the location of the body or cause of death; or (3) supplements or clarifies witness testimony.” Chamberlin, 989 So.2d at 340 (Miss.2008) (citations omitted). The trial court admitted four photographs into evidence. Exhibit 3d showed Quong lying face down on the ground with Jung on top of his body. Exhibits 3g and 3h showed Jung after she had been removed from Quong’s body. Exhibit 3e showed Quong’s face after Jung had been removed from his body. Exhibit 3e, as did the other photographs, described the circumstances of the killing. These photographs were used to supplement the officers’ testimony and the testimony of Stanton. We find that Exhibit 3e served an evidentiary purpose and was properly admitted by the trial court.

¶ 9. King uses Sudduth v. State, 562 So.2d 67, 70 (Miss.1990), for his position that certain photographs should not be admitted into evidence when the killing is not contradicted and the victim has been identified. However, “[p]hotographs of bodies may nevertheless be admitted into evidence in criminal cases where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory.” Sud- duth, 562 So.2d at 70 (citations omitted). This Court has found photographs “to be so gruesome and inflammatory as to be prejudicial in only one circumstance, a close-up photograph of a partly decomposed, maggot-infested skull.” Holly v. State, 671 So.2d 32, 41 (Miss.1996) (citations omitted). But see Welch v. State, 566 So.2d 680, 685 (Miss.1990) (where autopsy photographs of dissected victim were unpleasant and used in a way that was overly prejudicial).

¶ 10. Exhibit 3e is a face shot of Quong after Jung was removed from his body. The photograph was used to show the position of Quong’s body after he was shot, prior to Jung falling on him. The pictures were not so gruesome as to inflame the jury. Therefore, this Court finds the trial court did not abuse its discretion by allowing Exhibit 3e into evidence.

II. Whether the verdict was against the overwhelming weight of the evidence.

¶ 11. The trial court properly denied King’s motion for a new trial. This Court reviews a trial court’s denial of a motion for a new trial under an abuse-of-discretion standard. Massey v. State, 992 So.2d 1161, 1164 (Miss.2008) (citations omitted). “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005). Further, when there is a motion for a new trial, “the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id.

¶ 12. At trial, Stanton’s testimony and King’s palm print found on the counter of the store connected King to the crime. Investigator Griffin also testified that King had led him to some of the stolen money and that King had admitted he was in the store when the second shot was fired. King argues that, because a majority of the evidence implicating him at trial came from Stanton’s testimony, the jury verdict is against the overwhelming weight of the evidence. King’s basis for his argument is that Stanton’s testimony is not reliable, because he admitted to killing the two victims and agreed to testify against King for a plea deal with the State.

¶ 13. The palm print found on the store counter, in conjunction with Investigator Griffin’s testimony regarding King’s presence in the store when the second shot was fired, corroborates Stanton’s testimony. In addition, this Court consistently has held that “[t]he uncorroborated testimony of an accomplice may be sufficient to sustain a guilty verdict.” Catchings v. State, 394 So.2d 869, 870 (Miss.1981) (citations omitted). However, such testimony should be viewed with caution and “must be reasonable, not improbable, self-contradictory or substantially impeached.” Id. at 870 (citations omitted). At trial, the jury was provided with Instruction S-10:

The Court instructs the jury that although the testimony of an accomplice should be received by the jury with great caution and suspicion, yet if you believe that such testimony is reasonable and is neither improbable, self contradictory, or substantially impeached, then it is your duty to take such testimony into consideration in determining your verdict and give it such weight, faith, and credit as you believe it deserves.

Although, based on the corroborated evidence pertaining to the palm print, the precautionary jury instruction was not required, the trial court did instruct the jury as found in Instruction S-10. The more appropriate statement for this type of cautionary jury instruction is in the following form:

The Court instructs the jury that John Doe is an accomplice in this case. The Court has already instructed you that you, as jurors, are the sole judges of the weight and credit to be assigned the testimony and supporting evidence of each witness who has testified in this case. However, since John Doe is an accomplice in this case, any testimony of John Doe which you find to be uncorroborated by other evidence should be viewed with great caution and suspicion if you find such uncorroborated testimony to be unreasonable, self contradictory, or substantially impeached.

Williams v. State, 32 So.3d 486, 494 (Miss.2010) (Carlson, P.J., specially concurring). Although Instruction S-10 is not a correct statement of the law, it in no way prejudiced the defendant. Instead, it imposed a more stringent standard on the State than what is legally required. King also was allowed to cross-examine Stanton regarding his plea deal and motive for testifying. None of Stanton’s testimony was self-contradictory or substantially impeached. The jury verdict was not against the overwhelming weight of the evidence, and therefore, the trial court properly denied King’s motion for a new trial.

CONCLUSION

¶ 14. This Court finds that the trial court did not abuse its discretion in allowing Exhibit 3e into evidence. Also, we find that the trial court properly denied King’s motion for a new trial. Therefore, we affirm King’s conviction and sentence.

¶ 15. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITION, AFFIRMED. COUNT II: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCE IN COUNT I SHALL RUN CONCURRENTLY WITH THE SENTENCE IN COUNT II. SENTENCES IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, PIERCE AND KING, JJ., CONCUR.

      . Stanton led officers to $134. King led officers to $310.


author: PIERCE, Justice,

text:
    WAYNE COUNTY SCHOOL DISTRICT v. Ernestine WORSHAM, Individually and on behalf of Ze’metrice Denison, a Minor.
    No. 2011-CA-00328-SCT.
    Supreme Court of Mississippi.
    March 22, 2012.

      Lonnie D. Bailey, F. Ewin Henson, III, Greenwood, Richard D. Norton, Brad A. Touchstone, attorneys for appellant.
    Larry Stamps, Jackson, attorney for ap-pellee.
    Before DICKINSON, P.J., RANDOLPH and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. This Mississippi Tort Claims Act (MTCA) case arises out of an accident that occurred in Wayne County, Mississippi, between a school bus and a four-door passenger car. Following the accident, the driver of the car, Ernestine Worsham, brought suit alleging negligence and negligence per se on behalf of the driver of the school bus, and negligence, negligence per se, and gross negligence on behalf of Wayne County School District. After a bench trial, the driver of the school bus, Natasha Middleton, was dismissed from the suit. And despite evidence that a local county supervisor unilaterally had placed the speed-limit signs on County Farm Road, without a traffic investigation, approval by the Board, or passage of an ordinance, the trial court found Middleton’s actions constituted negligence per se, and thus awarded judgment in favor of Worsham in the amount of $800,000. Worsham was apportioned seventy-five percent fault, reducing the judgment against Wayne County School District to $200,000. Wayne County timely appealed. Because Mississippi Code Section 63-3-511 (Rev.2004) requires that “[wjhenever local authorities, including boards of supervisors ... determine and declare, by ordinance, a reasonable and safe speed limit,” that such determinations be made “upon the basis of an engineering and traffic investigation,” we reverse and remand for proceedings consistent with this opinion.

FACTS AND LEGAL PROCEEDINGS

¶ 2. On February 12, 2008, Middleton was en route to a Wayne County school to pick up school children and take them home. She was traveling west on County Farm Road. County Farm Road is a short, two-lane road that runs east and west and connects two major highways. The posted speed limit on the road at the time of the accident was thirty miles per hour.

¶ 8. While Middleton was traveling west on County Farm Road, Worsham attempted to exit a private driveway that connected to the northernmost lane of County Farm Road. Worsham was attempting to exit the driveway by making a left turn onto County Farm Road, which if successful, would have put her traveling east, the opposite direction of Middleton.

¶ 4. There is conflicting testimony as to exactly what transpired next, but a collision occurred. Worsham contends that Middleton was a safe distance away to ensure that Worsham could complete her left-hand turn, but because Middleton was speeding, the accident occurred. To the contrary, Middleton claims she was within ninety feet of Worsham when Worsham began to exit the driveway, and that she was not speeding. After hearing the conflicting testimony, the trial court found that Middleton was likely 100-to-200 feet away from Worsham when Worsham entered County Farm Road; also, the court found that Middleton was traveling between thirty-five and forty-five miles per hour prior to the accident. As a result of the accident, Worsham’s injuries totaled $120,210.45 in medical costs, and her minor child’s total medical costs were $753.

¶ 5. Worsham filed suit in Wayne County Circuit Court on February 11, 2009, alleging negligence and negligence per se against Middleton, and negligence, negligence per se, and gross negligence against Wayne County School District (“Wayne County”). Worsham also sought punitive damages against Wayne County. Wayne County denied any liability and admitted that Middleton, its employee, was acting in the course and scope of her employment when the accident occurred.

¶ 6. After discovering that Wayne County Supervisor Fred Andrews unilaterally had placed the speed-limit signs on County Farm Road in violation of section 63-3-511, Wayne County filed a motion for partial summary judgment on the issue of negligence per se. Subsequent to the motion for partial summary judgment, Wayne County filed a motion to amend its answer to reflect the statutory defense. The trial court denied Wayne County’s motion to amend, finding that Worsham was unduly prejudiced by the motion and that Wors-ham did not have adequate time to conduct discovery, even though Wayne County maintained that Worsham had the relevant information for more than five months pri- or to its filing the motion for partial summary judgment. Additionally, the trial court denied the motion to amend because Wayne County failed to specifically plead the statutory defense under Rule 9(d) of the Mississippi Rules of Civil Procedure. The trial court noted that Wayne County should have filed a motion to amend its answer prior to filing a motion for partial summary judgment.

¶ 7. On October 26, 2010, the trial court conducted a bench trial and later issued an order finding both Middleton and Wors-ham negligent, but failed to find evidence of gross negligence on behalf of either defendant. The trial court substantively-addressed Wayne County’s statutory defense, despite its pretrial ruling, and found that, while the erection of the speedlimit signs was improper, the Board of Supervisors effectively had adopted the signs by allowing them to remain on County Farm Road since 2001. The trial court issued an order/judgment in favor of Worsham. Wayne County filed its post-trial motions on December 8, 2010. Wayne County filed a timely appeal, and raises the following issues:

I. Whether the trial court erred in finding, as a matter of law, that a single member of a county board of supervisors can unilaterally post reduced speed limit signs on a county road without following the statutory requirements for establishing reduced speed limits.
II. Whether the trial court erred in finding that Middleton, the bus driver for Wayne County, was negligent per se for driving at a speed greater than the illegally posted speed limit of thirty miles per hour.
III. Whether the trial court erred in finding that Middleton’s speed was the proximate cause of the accident at issue.
IV. Whether the damage award to plaintiffs was supported by substantial, credible and reasonable evidence.
V.Whether the trial court erred in denying defendants’ motion for a new trial.

¶ 8. We find that only issues one and two have merit, and we will address both together.

DISCUSSION

A. Standard of review

¶ 9. This case was brought under the Mississippi Tort Claims Act, and, therefore, was subject to a hearing and determination without a jury. Accordingly, the trial judge’s findings of fact must be supported by substantial, credible evidence. This Court reviews questions of law, de novo.

B. Whether the trial court erred in finding that the speed-limit signs were valid and that Middleton was negligent per se.

¶ 10. Wayne County contends that the trial court erred when it ruled that a single member of the Board of Supervisors unilaterally can reduce the speed limit on a county road without complying with the mandatory requirements found in Section 63-3-511. Worsham avers that Wayne County is procedurally barred from raising this issue on appeal, because it was not properly raised according to Mississippi Rule of Civil Procedure 9(d). The trial court agreed with Worsham, and held that Wayne County should have sought leave to amend its answer prior to its filing a motion for partial summary judgment.

¶ 11. In denying Wayne County’s motion to amend its answer, the trial court relied on the following specific language found in Rule 9(d), which requires, in pertinent part, that:

In pleading an ordinance of a municipality or a county, or a special, local, or private statute or any right derived therefrom, it is sufficient to identify specifically the ordinance or statute by its title or by the date of its approval, or otherwise.

This Court finds this procedural rule to be inapplicable to the instant facts. Wayne County is not relying on a specific “ordinance” or a “special, local, or private statute” as its defense. Rather, Wayne County relies on a state statute and evidence of noncompliance with that statute to contend that, as a matter of law, it was not negligent per se. But even so, Worsham failed to object at trial to the testimony of Andrews. And the trial court specifically addressed the merits of Wayne County’s statutory defense in its final order. Thus, Wayne County is not procedurally barred from raising this issue on appeal.

¶ 12. Section 63-3-511 provides that “local authorities, including boards of supervisors ... determine and declare, by ordinance, a reasonable and safe speed limit,” and that such determinations be made “upon the basis of an engineering and traffic investigation.” At trial, Andrews testified that, in 2001, he had erected two thirty-mile-per-hour speed-limit signs on County Farm Road without authority from the Board or any other basis to do so. But the trial court held that, at the time of the accident, the thirty-mile-per-hour signs were controlling, because the Board of Supervisors effectively had adopted the signs through “implied dedication” and “prescription.” We disagree with the trial court’s application of the theories of prescription and dedication to the present circumstances.

¶ 13. Implied dedication is the donation of land or creation of an easement for public use by reasonable inference from the owner’s conduct. The trial court found that the Wayne County Board of Supervisors accepted the speed-limit signs as valid when they allowed the signs to remain in place since 2001 without any attempt to have the signs removed. We cannot follow the trial court’s logic, and fail to make the connection between the unilateral act by Andrews and “implied dedication.” Moreover, the trial court’s reliance on the doctrine of prescription to validate the speed-limit signs is a stretch. The trial court cites Armstrong v. Itawamba County to support its findings. In Armstrong, the Court found that the board of supervisors never had adopted a road for public use in its official minutes, however its continued use by the public for more than ten years, along with a supervisor’s direction to maintain the road, made it a public road by prescription. Armstrong provides little instruction to the present facts, and its application is misplaced.

¶ 14. Even if this Court applied the theory of prescription to the present circumstances, the facts would not support the trial court’s findings. In Myers v. Blair, this Court laid out the necessary elements to establish prescription, which are: “(1) open, notorious and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years.” Despite the fact that the signs had been in place for a period of less than ten years, the trial court found the signs to be controlling under the aforementioned theory, because no member of the public or the Board of Supervisors made any attempt to have the signs removed. We cannot agree with the trial court’s holding, and find the doctrine of prescription to have no bearing on whether a county supervisor can unilaterally change the speed limit on a county road.

¶ 15. What is controlling over the present facts is the statutory requirement laid out in Section 63-3-511, which requires that “local authorities, including boards of supervisors ... determine and declare, by ordinance, a reasonable and safe speed limit,” and that such determinations be made “upon the basis of an engineering and traffic investigation.” The foregoing statute is plain on its face, and leaves no room for statutory construction. The statute requires two criteria: (1) that determinations be made on the basis of an engineering and traffic report; and (2) that the board of supervisors determine and declare a safe speed limit by ordinance based upon said engineering and traffic report. It is quite clear from the record that Andrews did not follow the law when he unilaterally placed the speed-limit signs on County Farm Road, without first having conducted an engineering and traffic investigation, and then seeking approval through an ordinance by the Wayne County Board of Supervisors.

¶ 16. Accordingly, the speed-limit signs in place at the time of the accident between Middleton and Worsham were not valid. And it naturally follows that, if Worsham failed to show that Middleton violated any statute or ordinance, then Worsham cannot prevail on a claim for negligence per se.

¶ 17. That said, we decline to render a judgment in favor of Wayne County at this juncture. The trial court addressed only negligence per se in its final judgment, while the plaintiffs also had averred negligence and gross negligence. We remand for the trial court to address these additional claims in light of the record already before it. We do not intend for the plaintiffs to have a second try at proving their case, only that the trial court should rule on these additional claims based on the evidence already before it. Accordingly, we remand this case to the trial court for further proceedings consistent with this opinion

CONCLUSION

¶ 18. We reverse and remand this case for further proceedings consistent with this opinion.

¶ 19. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND KING, JJ., CONCUR.

      . Middleton testified that she was heading toward the junior high school. However, the trial-court order says she was en route to the elementary school.

      . Ze'metrice, Worsham's minor child, was a passenger in the car.

      ."[L]ocal authorities, including boards of supervisors ... [may] determine and declare, by ordinance, a reasonable and safe speed limit,” but such determinations must be made "upon the basis of an engineering and traffic investigation.” Miss.Code Ann. § 63-3-511(Rev.2004).

      . The trial court assessed twenty-five percent fault to Middleton and seventy-five percent fault to Worsham, which resulted in a judgment against Wayne County for $200,000.

      . Miss.Code Ann. § 11-46-13(1) (Rev.2002).

      . Donaldson v. Covington County, 846 So.2d 219, 222 (Miss.2003) (citing Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000)).

      . Id. (citing City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)).

      . Black’s Law Dictionary 185 (3d pocket ed. 2001).

      . Armstrong v. Itawamba County, 195 Miss. 802, 16 So.2d 752, 753-58 (Miss.1944).

        . Myers v. Blair, 611 So.2d 969, 971 (Miss.1992) (citations omitted). This case dealt with the establishment, by prescription, of a private road for public use.

      . Camp v. Stokes, 41 So.3d 685, 686 (Miss.2010).

      . "Mississippi recognizes the doctrine of negligence per se, which in essence provides that breach of a statute or ordinance renders the offender liable in tort without proof of a lack of due care.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 796 (Miss.1995). To prevail on a claim for negligence per se, a party must prove by a preponderance of the evidence that he or she was a member of the class sought to be protected under a statute, and that the injuries suffered were the type sought to be prevented. Further, the violation of the statute must be the proximate cause of the injuries. See Snapp v. Harrison, 699 So.2d 567, 571 (Miss.1997).