author: KING, C.J.,

text:
    KNIGHT PROPERTIES, INCORPORATED and Chad Knight, Appellants v. STATE BANK & TRUST COMPANY, Appellee.
    No. 2009-CA-01429-COA.
    Court of Appeals of Mississippi.
    Feb. 22, 2011.
    Rehearing Denied Jan. 10, 2012.

      Drew McLemore Martin, Melissa Sel-man Martin, Jackson, attorneys for appellants.
    Ronald Keith Foreman, Annette Elise Bulger Mathis, attorneys for appellee.
   KING, C.J.,

for the Court:

¶ 1 Knight Properties, Inc. (KPI) and Chad Knight entered into a contract with State Bank & Trust Co. for a loan and offered six tracts of land as security. KPI and Knight defaulted on the loan, and State Bank pursued a monetary judgment. The Circuit Court of Madison County granted summary judgment to State Bank. KPI and Knight filed a post-trial motion to reconsider and to vacate the judgment, which was denied. KPI and Knight have appealed raising the following issues: (1) whether the doctrine of election of remedies prevents State Bank from seeking a monetary judgment instead of foreclosure; (2) whether equitable estoppel prevents State Bank from foregoing foreclosure, after notice was provided, and seeking monetary judgment; and (3) whether KPI or Knight waived the defenses of election of remedies or equitable estoppel by agreement. Finding no reversible error, we affirm.

FACTS

¶ 2 Knight is the principal owner of both North Place Seven Development, LLC (North Place) and KPI. On December 31, 2006, Knight purchased six tracts of land on behalf of North Place; and on February 7, 2006, the City of Madison (City) approved the final plat for development subject to specific restrictions. Those restrictions required Knight to replace the overhead power lines with underground facilities. The cost of compliance was approximately $130,024.62. Knight requested that the City waive the non-conforming restrictions on the specified tracts of land. On November 21, 2006, the City denied his request.

¶ 3 On November 30, 2006, North Place sold the six tracts of land to KPI for $300,000. On December 1, 2006, Knight appealed the denial of his request for a waiver to the circuit court alleging that the restrictions rendered the land “unmarketable.”

¶ 4 On January 16, 2007, KPI and Knight entered into a contract with State Bank for a loan and offered the six tracts of land as security. KPI was named as the promisor on the promissory notes, and Knight was named as a guarantor within the commercial guarantee. Knight represented to State Bank that the collateral property was valued at $300,000, but he failed to inform State Bank of the restrictions imposed on the land and that the cost of conforming to the imposed restrictions would decrease the value of the properties by nearly half. KPI and Knight defaulted on the promissory notes; as a result, on October 22, 2007, State Bank sent a notice of foreclosure. The foreclosure sale was to occur on November 26, 2007. State Bank procured an appraisal of the land in anticipation of the pending foreclosure, and only then, it was informed of the discrepancy in value.

¶ 5 Due to the discrepancy, State Bank opted to forego foreclosure and pursue a monetary judgment against KPI and Knight. On January 18, 2008, State Bank filed its complaint. On January 25, 2008, the appeal that Knight filed on behalf of North Place against the City was dismissed by the circuit court for failure to file timely a brief.

¶ 6 On November 7, 2008, after a period of discovery, State Bank filed a motion for summary judgment arguing that as a matter of undisputed fact, KPI and Knight were jointly and severally liable to State Bank on their promissory notes and guarantees. KPI and Knight filed a cross-motion for summary judgment claiming that State Bank was barred from enforcing the guarantees and notes based on the doctrine of equitable estoppel. Specifically, KPI and Knight alleged that reliance on the notice of foreclosure resulted in the dismissal of the appeal against the City. State Bank responded asserting that the elements of equitable estoppel were not met and that the contracts specifically waived the right to claim defenses against State Bank’s right to forego foreclosure and pursue a monetary judgment. On March 23, 2009, the circuit court granted summary judgment in favor of State Bank.

¶ 7 KPI and Knight subsequently filed a motion for reconsideration and to vacate the judgment arguing that State Bank’s election of the remedy of foreclosure barred it from changing that election and that KPI had detrimentally relied on State Bank’s notice of foreclosure. After a hearing on the merits, the circuit court denied the motion. On November 2, 2009, KPI and Knight timely filed a notice of appeal.

ANALYSIS

¶ 8 This Court will review issues of contract construction as well as a trial court’s grant of summary judgment de novo. Leitch v. Miss. Ins. Guar. Ass’n., 27 So.3d 396, 398 (¶ 6) (Miss.2010); Limbert v. Miss. Univ. For Women Alumnae, Ass’n., 998 So.2d 993, 998 (1110) (Miss.2008).

I. Election of Remedies

¶ 9 KPI and Knight argue that the doctrine of election of remedies applies to bar State Bank from pursuing a monetary judgment against them after State Bank provided notice of foreclosure. The defense of election of remedies is not properly before this Court; therefore, this claim is procedurally barred.

¶ 10 Election of remedies is an affirmative defense. O’Briant v. Hull, 208 So.2d 784, 785-86 (Miss.1968). Mississippi Rule of Civil Procedure 8(c), specifically requires that, in pleading to a preceding pleading, a party shall set forth affirmatively certain listed defenses and any other matter constituting an affirmative defense. M.R.C.P. 8(c). Generally, if the defense is not specifically pleaded in the original answer, the defense is deemed waived. Hutzel v. City of Jackson, 33 So.3d 1116, 1119 (¶ 12) (Miss.2010) (citation omitted).

¶ 11 KPI and Knight did not specifically plead election of remedies as a defense in their original answer. In fact, the first reference to the doctrine of election of remedies was within the supplemental memorandum in support of defendant’s motion for reconsideration and to vacate the judgment. The supplemental memorandum was filed more than one year after the filing of the original complaint and more than three months after the entry of the final judgment in favor of State Bank.

¶ 12 This Court has held that: “[A] defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Knox v. BancorpSouth Bank, 37 So.3d 1257, 1261 (¶ 11) (Miss.Ct.App.2010) (quoting Daughtrey v. Allred, 22 So.3d 1253, 1264 (¶ 26) (Miss.Ct.App.2009)). KPI and Knight failed to raise the affirmative defense of election of remedies in a timely and reasonable manner. Furthermore, KPI and Knight participated throughout the litigation process, including discovery and appearing for a hearing before the circuit court. The affirmative defense was only pleaded after the final judgment was entered. These facts are sufficient to find a waiver of the defense of election of remedies.

¶ 13 Procedural bar aside, in order for State Bank to be barred from pursuing a monetary judgment instead of foreclosure, Knight and KPI must satisfy the three necessary elements of the doctrine of election of remedies: (A) existence of two or more remedies, (B) inconsistency between such remedies, and (C) a choice of one of the remedies. O’Briant, 208 So.2d at 786.

A. Two or More Remedies

¶ 14 As for the first element, there is no dispute that there are two or more remedies in existence. State Bank could (1) foreclose on the secured property and pursue a legal judgment for deficiency or (2) seek a monetary judgment in total satisfaction of the debt. This element is satisfied.

B. Inconsistency Between Remedies

¶ 15 The Mississippi Supreme Court has specifically held that there is no inconsistency in a mortgagee’s legal and equitable rights, stating:

There is no inconsistency in the two remedies here available to [W.O.] Rea, receiver. He could pursue the foreclosure to conclusion, or, if he deemed it advantageous to himself, he could forego the foreclosure and proceed at law to collect his debt in the law forum.... There is no inconsistency between the legal and equitable remedial rights possessed by a mortgagee in case of a breach, and he may exercise them all at the same time, and resort to one is not a waiver of the other.

Rea v. O’Bannon, 171 Miss. 824, 832, 158 So. 916, 918 (1935). See also West Point Corp. v. New N. Miss. Fed. Sav. & Loan Ass’n., 506 So.2d 241, 243 (Miss.1986); Cooper v. Miss. Land Co., 220 So.2d 302, 308 (Miss.1969). This element is not satisfied.

C. Choice of Remedy

¶ 16 KPI and Knight argue that State Bank initiated foreclosure proceedings and, thus, elected their choice of remedy. The Mississippi Supreme Court has expressed its disfavor for the doctrine of election of remedies and held that the doctrine of election of remedies only applies once a cause of action is pursued to satisfaction. O’Briant, 208 So.2d at 786. A claim must be litigated to its conclusion in order to warrant the defense of election of remedies to bar a subsequent cause of action. Aetna Cas. and Surety Co. v. Berry, 669 So.2d 56, 72 (Miss.1996) (overruled on other grounds). State Bank did provide notice of foreclosure to KPI and Knight, but the cause of action was not pursued to satisfaction, and a foreclosure sale never occurred. See 25 Am.Jur.2d Election of Remedies § 15 (2004). Notification of a contemplated action, such as the filing of a notice of a claim, does not constitute an election that precludes the subsequent prosecution of an action or suit based upon an inconsistent remedial right. Id. Because notification or other such actions required by state law are generally not considered an election, this element is not satisfied.

¶ 17 KPI and Knight failed to satisfy the necessary elements for the doctrine of election of remedies to bar State Bank from pursuing a monetary judgment instead of foreclosure. This issue is without merit.

II. Equitable Estoppel

¶ 18 KPI and Knight argue that equitable estoppel applies to prevent State Bank from foregoing foreclosure and seeking a monetary judgment because KPI and Knight failed to participate in the appeal against the City in reliance on notice of foreclosure. In order to invoke the doctrine of equitable estoppel, KPI and Knight must prove by a preponderance of the evidence that the actions of State Bank induced Knight’s lack of participation in the pending appeal between North Place and the City and that KPI and Knight suffered a detriment in reliance on the notification of foreclosure. Harrison Enter., Inc. v. Trilogy Commc’n, Inc., 818 So.2d 1088, 1095 (¶ 31) (Miss.2002). Further, in order for equitable estoppel to apply, State Bank must have had reasonable foresight that such consequences may result. PMZ Oil Co. v. Lucroy, 449 So.2d 201, 206 (Miss.1984).

¶ 19 Knight alleges that once he received notice of foreclosure, he did not have time to prepare adequately for his appeal. The appeal against the City was filed on December 1, 2006, and the notice of foreclosure was issued ten months later. Detrimental reliance on the notice of foreclosure does not seem plausible when Knight had failed to participate in the litigation of the appeal during the ten months prior to the notice of foreclosure.

¶ 20 The Uniform Circuit and County Court Rule 5.06 states that:

Briefs filed in an appeal on the record must conform to the practice in the Supreme Court, including form, time of filing and service, except that the parties should file only an original and one copy of each brief. The consequences of failure to timely file a brief will be the same as in the Supreme Court.

¶ 21 Therefore, the Mississippi Rules of Appellate Procedure apply. Mississippi Rule of Appellate Procedure 31(b) specifically states: “The appellant shall serve and file the appellant’s brief within 40 days after the date on which the record is filed.... ” Furthermore, Mississippi Rule of Appellate Procedure 31(d) permits dismissal of the appeal for failure to file timely the appellant’s brief. The circuit court recognized Knight’s failure; and on January 4, 2007, the court entered an order of deficiency pursuant to Mississippi Rule of Appellate Procedure 2(a)(2) for the “obvious failure to prosecute the appeal and a failure to comply substantially with the Mississippi Rules of Appellate Procedure.”

¶ 22 Beyond the element of detrimental reliance,. the doctrine of equitable estoppel requires that State Bank must have had reasonable foresight that such consequences could result. PMZ Oil Co., 449 So.2d at 206. There is no evidence to support the claim that State Bank could have anticipated the dismissal of the appeal. The appeal referenced the appellant as North Place; neither KPI nor Knight were named as parties to the appeal. Knight, as the principal owner of both businesses, did not inform State Bank of the restrictions imposed on the land or the appeal regarding the collateral. Even after notification of the foreclosure, Knight failed to inform State Bank of the pending appeal regarding restrictions affecting the specified tracts of land.

¶ 23 KPI and Knight fail to provide evidence to support their alleged detrimental reliance on the foreclosure sale or that State Bank should have anticipated that the notice of foreclosure could result in detrimental reliance. Accordingly, this issue is without merit.

III. Waiver of Defenses

¶ 24 In response to the appellant’s cross-motion for summary judgment, State Bank argued that KPI and Knight had waived the defenses of election of remedies and equitable estoppel by executing the contract. KPI and Knight argued that no waiver exists within the documents.

¶ 25 Pursuant to Mississippi law, a “court is obligated to enforce a contract executed by legally competent parties where the terms of the contract are clear and unambiguous.” Union Planters Nat’l Bank v. Jetton, 856 So.2d 674, 678 (¶ 15) (Miss.Ct.App.2003) (quoting Merchants & Fanners Bank v. State ex rel. Moore, 651 So.2d 1060, 1061 (Miss.1995)).

¶ 26 The language of the promissory note states:

Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishon- or. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender’s security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone.

¶ 27 The pertinent language of the commercial guaranty specifically states:

Except as prohibited by applicable law, Guarantor waives any right to require Lender ... (B) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the indebtedness ...
Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or defenses arising by reason of (A) any “one action” or “anti-deficiency” law or any other law which may prevent Lender from bringing any action, including a claim for deficiency against Guarantor, before or after Lender’s commencement or completion of any foreclosure action, ... (D) any right to claim discharge of the indebtedness on the basis of unjustified impairment of any collateral for the indebtedness; ... (F) any defenses given to guarantors at law or in equity other than actual payment and performance of the indebtedness....

¶ 28 The language of the note and guarantee is clear and unambiguous. KPI and Knight waived the defenses of election of remedies and equitable estoppel in regard to State Bank’s decision to forgo foreclosure and pursue a monetary judgment. This issue is without merit.

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

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. BARNES, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Edna Mae SANDERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01925-COA.
    Court of Appeals of Mississippi.
    March 8, 2011.
    Rehearing Denied June 21, 2011.

      Brian B. Alexander, Bay St. Louis, Will Bardwell, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, Ladonna Holland, attorneys for appellee.
    LEE, C.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On or about July 28, 2006, Sherman Sanders (Sherman) instigated a physical altercation with his wife, Edna Mae Sanders (Sanders), that ultimately resulted in Sherman’s death. In January 2007, Sanders was charged with murder. Following a two-day trial held in Hancock County Circuit Court in April 2008, Sanders was convicted of murder and sentenced to life in prison in the custody of the Mississippi Department of Corrections (MDOC). She appeals, arguing that the trial court erred by allowing hearsay statements made by Sherman into evidence, by declining to instruct the jury that she was not under a duty to retreat from an assault made on her in her home, and by declining to admit evidence in support of her theory of self-defense and defense of others. We find that the trial court erred by failing to instruct the jury that Sanders was not required to retreat and by excluding evidence in support of her theory of self-defense and defense of others. Therefore, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. In July 2006, Sherman began a physical confrontation with Sanders in their home in Diamondhead, Mississippi, where the couple lived with Sanders’s two children. While the circumstances leading up to the confrontation were disputed, it is certain that Sanders poured a pot of hot cooking oil on Sherman, causing instantaneous severe injuries and, eventually, Sherman’s death.

¶ 3. When emergency responders arrived to assist Sherman, they found him alive and conscious. Before being taken to the hospital, Sherman made several statements to emergency responders regarding the incident in question, and, in doing so, implied that his wife had poured hot oil on him. Some time later, Sherman died in the hospital from his burn injuries.

¶ 4. Thereafter, Sanders was charged with murder. The trial was held before Judge Stephen B. Simpson. At the trial, counsel for the defense proceeded on a theory of self-defense and defense of others, as Sanders asserted that Sherman’s death was the result of her protecting the lives of herself and her children. In support of Sanders’s claim that she had a reasonable apprehension that she and her children were in imminent danger from Sherman, her counsel attempted to present testimony which would prove Sherman’s violent nature toward her and her children. However, the trial court excluded most of the testimony regarding Sherman’s violent character. Specifically, Sanders was prevented from discussing her discovery of Sherman raping her then thirteen-year-old daughter on the night of the incident and threats made by Sherman on her life. Likewise, Sanders’s daughter was prohibited from testifying as to the violent sexual assault made on her by Sherman, which was the immediate precursor to Sherman’s physical attack on Sanders.

¶ 5. Additionally, Sanders testified that she was aware Sherman possessed a gun. Although Sanders’s counsel attempted to question her regarding her knowledge that Sherman kept the gun hidden under the mattress in their bedroom, the trial court sustained an objection to the testimony on the ground that the information was irrelevant. However, Sanders was allowed to testify that toward the end of the altercation, Sherman let go of her and headed toward their bedroom in the back of the house. She attempted to testify as to a threat made by Sherman against her life upon his letting her go and walking to the bedroom, but she was again stopped by the court. Sanders then stated that she followed Sherman to the bedroom in fear of her life and the lives of her children and on the way, she reached for the nearest weapon she could find — a pot of hot oil that she had heated on the stove to cook a late-night snack. Upon reaching the bedroom, Sanders testified that she found Sherman reaching for his gun and then turning to her with it. It was then that she tossed the pot of oil on him and fled from the house with her children.

¶ 6. During cross-examination of Sanders, the prosecution made pointed references to Sanders’s location in the house before Sherman let her go and started toward the bedroom. The prosecution noted several exit doors in the home and asked Sanders to state her accessibility to the exit doors during the attack. In sum, the prosecution presented the jury with the possibility that Sanders was able to have escaped through an exit door in the house prior to Sherman threatening her with the gun and her tossing the hot oil on him.

¶ 7. At the close of the trial, Sanders’s counsel asked that jury instruction D-9 be included in the final list of jury instructions. D-9 outlined Mississippi statutory law providing that as long as Sanders was not the initial aggressor, was not engaged in unlawful activity, was in a place where she had a right to be, and was acting in defense of herself or others due to imminent danger, then she had no duty to retreat before using deadly force. However, the trial court denied the use of D-9 in the final jury instructions. The trial court did not allow any jury instruction informing the jurors that Sanders had no duty to retreat from her home during the attack.

¶ 8. Sanders was found guilty of murder and sentenced to life. Thereafter, Judge Simpson stepped down from the bench and was replaced by Judge Lawrence Paul Bourgeouis Jr. Sanders’s counsel filed a motion for a judgment notwithstanding the verdict (JNOV), which was denied by Judge Bourgeouis. Aggrieved, Sanders appeals. We reverse and remand for further proceedings consistent with our findings.

DISCUSSION

I. Admission of Sherman’s Statements

¶ 9. Sanders first challenges the trial court’s use of the hearsay exceptions “present sense impression” and “excited utterance” to admit hearsay statements made by Sherman to emergency responders. It is well settled that this Court reviews a trial court’s ruling on admissibility of evidence using an abuse-of-discretion standard of review. Peterson v. State, 37 So.3d 669, 673 (¶ 15) (Miss.Ct.App.2010) (citing Edwards v. State, 856 So.2d 587, 592 (¶ 12) (Miss.Ct.App.2003)).

¶ 10. The hearsay exception of present sense impression is found in Mississippi Rule of Evidence 803(1) and allows for out-of-court statements to be deemed admissible in court if the statements are “describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” M.R.E. 803(1). This exception is “based on the theory that the con-temporaneousness of the occurrence of the event and the statement render it unlikely that the declarant made a deliberate or conscious misrepresentation.” Clark v. State, 693 So.2d 927, 932 (Miss.1997).

¶ 11. The record indicates that after Sanders threw the hot oil on Sherman and fled from the premises, Sherman gained the attention of neighbors by honking his car horn and asking for help. Shortly thereafter, emergency responders arrived at the scene of the incident and asked Sherman a series of questions in order to determine the proper measures to investigate the crime and in order to treat his severe burn injuries. An officer with the Hancock County Sheriffs Office was one of the first responders at the scene. The officer testified that he immediately asked Sherman, “what happened.” The officer stated Sherman said, “his wife poured oil on him, or burned him rather.”

¶ 12. Sanders asserts that Sherman’s statements were made in response to an inquiry from the officer and not spontaneously. Sanders argues that all testimony from emergency responders should be barred as the responders elicited Sherman’s response as opposed to Sherman speaking without a prompt. Sanders further claims that too much time had passed between Sherman receiving the burn injuries and the emergency responders arriving on the scene for Sherman’s statements to be considered a “present sense impression” under Rule 803(1).

¶ 13. The record reflects that emergency responders arrived shortly after the incident had occurred and found Sherman alive and conscious. In speaking with him to determine criminal investigatory needs and medical diagnoses, the responders stated that Sherman’s voice was “shaky,” but understandable. While the responders did ask Sherman basic preliminary questions in order to provide proper medical care and help for Sherman, we find that it is feasible to interpret Sherman’s statements as spontaneous descriptions of what had just occurred. After receiving such severe burn injuries, it is indisputable that Sherman was in an excited condition, possibly shock, for some time after his injuries were inflicted. Accordingly, while simple questions may have been asked as to Sherman’s condition, it is legitimate to perceive Sherman’s response that his wife had burned him as Sherman’s general present sense impression of what was happening to him and not necessarily specific answers to the responders’ questions. It is reasonable to conclude that Sherman was in such a state of shock when speaking to responders that his statements were more likely the product of him reflecting on the circumstances than answering specific questions.

¶ 14. After reviewing the evidence, the trial judge opined that in considering “the consistency of the statements and the time in which they were made in conjunction with the time that [Sherman] clearly started seeking help ... he was in a sufficient excited condition and reaction to the event or condition that caused his injuries such as to make these statements reliable.” The trial judge further held that Sherman’s statement, “although while not perceiving the event ... were sufficiently immediately thereafter or close in time and proximity to be admissible.” We cannot find that the trial judge abused his discretion by applying the present-sense-impression exception to Sherman’s hearsay statements.

¶ 15. Nonetheless, even if the hearsay statements did not fall within the present-sense-impression exception, the trial judge further admitted them under the excited-utterance exception. The excited-utterance exception to hearsay is found under Mississippi Rule of Evidence 803(2) and allows for statements, “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” M.R.E. 803(2).

¶ 16. It has been established by the record that the statements in question were obtained by emergency responders who arrived at the scene shortly after Sherman had suffered his injuries. It is reasonable to determine that at the time Sherman spoke with responders, he was still under extreme stress caused by his severe burn wounds.

¶ 17. Here too, Sanders argues that the statements made by Sherman were not spontaneous enough to fall within the excited-utterance exception because they were preceded by questions from responders as to Sherman’s condition. However, this Court has held that “where the excited utterance is prompted by a simple question, even from an officer, such as ‘What happened?’ or ‘What’s wrong?’ it may still fall under the exception.” Eubanks v. State, 28 So.3d 607, 611 (¶ 18) (Miss.Ct. App.2009) (quoting Carter v. State, 722 So.2d 1258, 1261 (¶ 10) (Miss.1998)). Specifically, the Mississippi Supreme Court has held that the simple question of “What happened?” is “an example of a question that, while bearing upon the spontaneity requirement, does not necessarily preclude admission of the statement as an excited utterance.” Carter, 722 So.2d at 1261 (¶ 10).

¶ 18. Accordingly, we cannot find that the trial judge abused his discretion in admitting Sherman’s statements under either the present-sense-impression exception or the excited-utterance exception to hearsay. This issue is without merit.

II. Failure to Grant a Jury Instruction Negating a Duty to Retreat

¶ 19. Sanders next asserts that the trial court erred by failing to provide the jury with an instruction that she was not under a duty to retreat from an assault made on her in her home. “It is well settled that jury instructions generally are within the discretion of the trial court, so the standard of review for the denial of jury instructions is abuse of discretion.” Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010). Furthermore, “the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (quoting Rubenstein v. State, 941 So.2d 735, 785 (¶224) (Miss.2006)). Nonetheless, the Mississippi Supreme Court has held that “a defendant is entitled to have every legal defense he asserts to be submitted as a factual issue for determination by the jury under proper instruction of the court.” Giles v. State, 650 So.2d 846, 849 (Miss.1995).

¶ 20. Jury instruction D-9 states the following:

The court instructs the Jury that while the danger which will justify the taking of another’s life must be imminent, impending and present, such danger need not be unavoidable except by killing in self-defense. The Defendant, Edna Mae Sanders, need not have avoided the danger to her person presented by the victim by flight. So long as the Defendant was in a place where she had the right to be and was neither the immediate provoker nor aggressor, she may stand her ground without losing the right of self-defense.

Sanders asserts that the trial court, by declining to include this instruction, committed manifest error because failure to inform the jury of this pertinent law undermined her claim of self-defense.

¶ 21. The pertinent law in question was codified in Mississippi in 2006 and is commonly referred to as the “Castle Doctrine.” Miss.Code Ann. § 97-3-15(3), (4) (Rev.2006). The Castle Doctrine reads, in pertinent part, as follows:

(3) A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another ... and the person who used defensive force knew or had reason to believe that the ... unlawful and forcible act was occurring or had occurred.
(4) A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force ... if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.

Id.

¶ 22. Here, the record reflects that Sanders was not the initial aggressor. Both Sanders and her daughter testified that Sherman attacked Sanders first and without provocation. The record also shows that Sanders was not engaged in unlawful activity and, clearly, had a right to be in her own home. Additionally, the record reflects that Sanders feared great bodily harm and imminent death to herself and her children at the hands of Sherman. Not only did Sherman violently attack Sanders’s daughter and threaten Sanders’s life on numerous occasions, he drew his gun and pointed it directly at her immediately after telling her he would kill her. Accordingly, the Castle Doctrine is applicable to Sanders and directly relates to her self-defense theory.

¶ 23. At trial, the prosecution repeatedly attempted to elicit testimony from Sanders on cross-examination regarding her ability to exit the home during the attack. On at least one occasion, the prosecution blatantly said to Sanders: “There’s a door right there, a front door right there ... you could have went [sic] out that door, correct?” As such, the jury was completely unaware that Sanders did not have a duty to retreat from her home, but instead, she had the right to remain in her home and defend herself and her children to whatever degree necessary to avoid the great bodily harm and imminent death that Sanders testified she feared from Sherman. Furthermore, due to the prosecution’s pointed statements regarding Sanders’s ability to retreat, the jury was, in fact, directed to note that Sanders may have been able to escape through an exit door of the home.

¶ 24. Without being informed of the rights Sanders possessed under the Castle Doctrine, either through jury instruction D-9 or another informative instruction, the jury was improperly allowed to consider Sanders’s failure to retreat as evidence that her use of force was unnecessary, excessive, or unreasonable. We find that the trial judge’s refusal to grant a jury instruction regarding the Castle Doctrine constituted reversible error.

III. Exclusion of Evidence Supporting Sanders’s Defense

¶ 25. Finally, Sanders argues that the trial court committed manifest error by excluding testimony from defense witnesses that directly related to her self-defense theory. As stated previously, this Court reviews a trial court’s ruling on admissibility of evidence using an abuse-of-discretion standard of review. Peterson, 37 So.3d at 673 (¶ 15) (internal citation omitted). “Unless [a trial] judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Robinson v. State, 940 So.2d 235, 238 (¶ 7) (Miss.2006). With regard to testimony, generally, “when a party objects to the exclusion of evidence, he must make an offer of proof ... on the record for the benefit of the appellate court.” M.R.E. 103(a)(2) cmt. However, the Mississippi Supreme Court has also recognized that Mississippi Rule of Evidence 103(a)(2) provides an alternative to making a formal proffer of evidence and allows for appellate review of evidence that “was apparent from the context” of the testimony and questions asked. Heidel v. State, 587 So.2d 835, 844 (Miss.1991).

¶ 26. Sanders’s theory of the case rest-, ed upon self-defense and defense of her children. The applicable statute for self-defense reads, in pertinent part, as follows:

The killing of a human being by the act, procurement or omission of another shall be justifiable ... [w]hen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.

Miss.Code Ann. § 97 — 3—15(l)(f) (Rev.2006). Accordingly, Sanders’s counsel attempted to present testimony to further Sanders’s assertion that she reasonably apprehended imminent great personal injury or a felonious act committed by Sherman on herself and her children.

A. Sexual Assault of Sanders’s Daughter

¶ 27. Prior to the trial, Sanders’s counsel filed a motion for an overt-act hearing regarding Sherman’s violent nature and submitted testimony from Sanders’s daughter, K.K., with the motion. K.K. was thirteen years old at the time of the incident. Her testimony reflected that on the night in question, her mother left the home in order to run an errand and that she was in the house with her brother and Sherman. She said that she went to bed and later awoke to Sherman, with his pants off, on top of her pulling her clothes off. She further stated the following:

I was pushing him off of me[,] trying to push him off of me[,] but he was just so heavy I couldn’t move him. I was telling him to get off of me[,] screamingf,] and I hit the wall ... and ... my mom comes into the room and you know she opens the door and Mr. Sherman gets up and pulls up his pants and he immediately walks to her and punches her and she falls to the floor and when she falls ... he punches and knocks her into the hallway.

Later in her testimony, when asked whether Sherman had raped her during the incident described above, K.K. stated that he had.

¶ 28. At trial, Sanders’s counsel attempted to introduce testimony from K.K. reflecting the violent, felonious attack upon her by Sherman. Sanders’s counsel further attempted to allow Sanders to testify as to hearing K.K. screaming, “Stop it, leave me alone,” and to entering K.K.’s room to find Sherman attacking her daughter. K.K’s testimony and Sanders’s testimony were meant to support her claim of self-defense and defense of others, as it would help to establish Sanders’s “reasonable ground to apprehend a design to commit a felony, or to do some great personal injury” to Sanders and her daughter. Miss.Code Ann. § 97-3-15(l)(f). However, the trial judge prohibited all testimony regarding the sexual assault. The trial court held that while K.K. could testify as to seeing Sherman attack her mother, since it established that Sanders was not the initial aggressor, K.K’s testimony regarding the rape was irrelevant. Likewise, the trial court determined that Sanders’s testimony as to seeing Sherman attacking her daughter upon entering her daughter’s room was irrelevant.

¶ 29. We disagree. While Sanders’s counsel only discussed this error in passing in the appellate brief submitted to this Court, we address the issue under the plain-error-doctrine which allows for our analysis of plain errors that were not properly raised by the defendant. M.R.E. 108(d). This Court may review plain error which “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citations omitted). “Plain-error review is properly utilized for correcting obvious instances of injustice or misapplied law.” Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008) (quoting Newport v. Fact Concerts, 453 U.S. 247, 256, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)).

¶ 30. Mississippi Rules of Evidence 404 and 405 govern admissibility of testimony regarding a person’s character. Rule 404(a)(2) provides that evidence of a character trait of a person is not admissible except in circumstances including where “[ejvidence of a pertinent trait of character of the victim of the crime [is] offered by an accused.” Rule 405(b) then permits the following: “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.” A victim’s character trait of violence is made an essential element of a charge when an accused claims self-defense and defense of others. Heidel, 587 So.2d at 845. Furthermore, Rule 404(b) states that evidence of “other crimes, wrongs, or acts ... may ... be admissible [to show proof of] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

¶ 31. Accordingly, Rule 404(a)(2) provided Sanders with the requisite authority to introduce evidence of Sherman’s violent character. Rule 405(b) further allowed her to introduce evidence of specific instances of Sherman’s violence toward her and her children, given her claim of self-defense and defense of her children. These rules alone make K.K.’s testimony as to Sherman’s rape of her and Sanders’s testimony as to her sudden discovery of the rape both relevant and admissible.

¶ 32. Evidence regarding the sexual assault was also admissible under Rule 404(b) in order to prove Sherman’s intent and plan to harm Sanders and her children. K.K.’s testimony alone clearly explained the crucial incident that gave rise to Sanders’s reasonable apprehension of great harm to K.K. As such, evidence of Sherman’s rape of K.K. directly related to Sanders’s claim of self-defense and defense of others. Therefore, exclusion of K.K.’s testimony as to Sherman’s sexual assault of her and Sanders’s testimony as to Sherman attacking her daughter constituted reversible error.

B. Sherman’s Threats

¶ 33. At trial, Sanders took the stand in her own defense. During direct examination, her counsel asked her if Sherman had ever threatened her. Sanders responded that he had threatened her many times. Upon being asked to describe some of the threats she had received from Sherman, she stated that he had threatened to “make [her] disappear.” The prosecution objected to her testimony on the ground of hearsay. The objection was sustained.

¶ 34. Later, Sanders’s counsel asked her to describe in detail a portion of Sherman’s attack on her. She stated the following: “at one point Sherman had me on the back of the sofa, I’m on this side of it, and had me choking me, telling me.... ” Sanders, however, had been previously warned by the trial court that she was not allowed to testify as to anything Sherman had said to her, including threats he had made against her. Accordingly, Sanders stopped her testimony mid-sentence.

¶ 35. Sanders was periodically prevented from fully testifying throughout her time on the witness stand, as evidenced by the following:

Q. Did you say, I’m going to the police?
A. Yes, I did.
Q. Did he do anything when you started saying, “I’m going to the police”? What did he do?
A. What did he do, not what he said?
Q. Not what he said. What did he do?
A. Oh. By that time he headed back [toward the bedroom]. And I can’t say what he told me?
THE COURT: No ma’am.
Q. What did you at that time think he was going to do?
A. He told me what he was going to do.
Q. You can’t say it.
A. I thought he was going back there to get a gun and shoot me.
A. Could I say I was told I was going to be done harm?
Q. You can’t say what anybody else said. Did you think that your life was in danger?
A. Yes.
Q. Or the lives of your children?
A. Yes.
Q. Do you remember at some point breaking away from him?
A. Oh, he let me go.
Q. How did he let you go?
A. It wasn’t a break away. He let me go.
Q. How did he let you go?
A. He just let go of me and said what he was going to do.
Q. You can’t say it.
A. Oh, okay.

¶ 36. Additionally, earlier in Sanders’s testimony she was asked by her counsel if she had ever seen Sherman with a gun while they were living in Diamondhead, Mississippi. She began to answer affirmatively, but she was stopped by a sustained objection to relevancy. Likewise, when her counsel asked if she knew where Sherman had hidden his gun, she began to answer that she did, but she was halted by another sustained objection to relevancy.

¶ 37. When a criminal defendant relies on a theory of self-defense and defense of others, he or she is “of right entitled to offer evidence that [the victim] had previously and recently threatened [the defendant].... This evidence [is] relevant on the issue of [the defendant’s] state of mind.” Heidel, 587 So.2d at 844-45. Sherman’s threats to kill Sanders are certainly relevant under Mississippi Rule of Evidence 404(b) in order to show Sherman’s intent and plan to kill Sanders. Furthermore, as noted by the Mississippi Supreme Court in Heidel and pursuant to Mississippi Rule of Evidence 803(3), Sherman’s statements become admissible hearsay statements as they fall within Rule 803(3), which allows “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).”

¶ 38. It is apparent from the context of the testimony that Sherman had threatened Sanders’s life prior to this occasion and that he was threatening her life during the incident. It is also clear that Sanders knew Sherman possessed a gun that was hidden in their bedroom. Furthermore, Sanders’s testimony makes it apparent that upon letting her go, Sherman threatened to kill her and subsequently headed toward the bedroom where he ultimately retrieved his gun and began pointing it at her. The suppression of this evidence prevented the jury from fully understanding Sherman’s state of mind and intention to kill Sanders, Sanders’s state of mind during the attack, and the grounds for her reasonable apprehension that she and her children were in serious imminent danger. Accordingly, we hold that the trial court’s exclusion of this evidence constitutes reversible error.

CONCLUSION

¶ 39. We find that the trial court’s decision to allow into evidence Sherman’s statements made to emergency responders was not error. However, we find reversible error in the trial court’s exclusion of a jury instruction informing the jury that Sanders did not have a duty to retreat during the attack. We also find reversible error in the trial court’s suppression of evidence regarding Sherman’s sexual assault of K.K. and evidence regarding Sherman’s threats on Sanders’s life and evidence regarding Sanders’s knowledge of Sherman’s gun, including the location in their house where Sherman had hidden the gun. Therefore, we reverse the conviction and sentence and remand this case for further proceedings consistent with this opinion.

¶ 40. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT. IRVING, P.J., CONCURS IN RESULT ONLY.

      . The Court of Appeals declines to identify sexual assault victims. In the interest of the child's privacy, the minor's name has been substituted with initials.


author: ROBERTS, J.,

text:
    Jherashio Ramandes HOSEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00602-COA.
    Court of Appeals of Mississippi.
    June 14, 2011.
    Rehearing Denied Oct. 18, 2011.
    Certiorari Denied Jan. 12, 2012.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Harrison County Circuit Court found Jherashio Ra-mandes Hosey guilty of possession of cocaine with the intent to distribute it. During a bifurcated proceeding, the circuit court found that Hosey qualified for enhanced sentencing as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), and sentenced Hosey to thirteen years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Hosey appeals and raises the following seven issues: sufficiency of the evidence; weight of the evidence; whether the jury’s form of the verdict was ambiguous; exclusion of a defense witness who unexpectedly appeared during the second day of no-sey’s trial; admission of prior convictions in which Hosey was convicted for selling narcotics; admission of a law-enforcement officer’s lay opinion testimony; and cumulative effect of the errors. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In Spring 2009, the Gulfport Police Department had a “pole camera” installed on a utility pole at the intersection of 31st Avenue and 20th Street in Gulfport, Mississippi. The camera wirelessly streamed digital video images to a secure, limited-access web site. During the afternoon of April 28, 2009, Sergeant Rob Enochs of the Gulfport Police Department watched the camera feed from his office computer. The video feed depicted a man later identi-fled as Hosey conducting what Sergeant Enochs described as “hand to hand exchanges.”

¶ 3. Sergeant Enochs had Detectives Mark Joseph and Bradley Walker watch the video feed for a moment. Sergeant Enochs then asked the two detectives to make contact with Hosey to determine whether he was selling drugs. Detectives Joseph and Walker drove to the intersection in Detective Walker’s black, unmarked Dodge Durango sport utility vehicle. According to the detectives, Hosey began walking in the opposite direction when he saw the SUV approaching.

¶ 4. Detective Walker maneuvered the SUV so that Detective Joseph could exit the passenger side of the SUV near Hosey. When Detective Joseph announced that he was with the Gulfport Police Department, Hosey ran from him. According to Detective Joseph, just as he was able to grab Hosey, Hosey discarded what was later confirmed to be cocaine. Detective Joseph later testified that Hosey drew his fist back as if he was going to punch Detective Joseph. A physical altercation followed. Detective Bradley testified that he got out of the driver’s side of the SUV and helped Detective Joseph subdue Hosey. After Hosey was secured, Detective Walker found the substance Hosey has discarded. Subsequent testing revealed that the substance was .10 gram of cocaine.

¶ 5. On September 28, 2009, a Harrison County grand jury returned an indictment against Hosey charging him with possession of narcotics with the intent to distribute. Hosey waived arraignment and pled not guilty. Hosey subsequently filed a motion in limine, arguing that the prosecution should be prohibited from introducing evidence of the fact that he had prior felony convictions. On the same day that Hosey filed his motion in limine, the prosecution filed a motion to amend the indictment to include a charge that Hosey was a habitual offender pursuant to section 99-19-81.

¶ 6. Hosey’s trial began on March 16, 2010. The prosecution called Sergeant Enochs as its first witness. The circuit court adjourned for the day after Sergeant Enochs testified. The next day, the prosecution called Detective Joseph, Detective Walker, and Dr. Thomas Pittman, who testified that he analyzed the substance that Detective Joseph had recovered. According to Dr. Pittman, the substance was .10 gram of cocaine.

¶ 7. Following Dr. Pittman’s testimony, the circuit court ruled on Hosey’s motion in limine. The circuit court granted Ho-sey’s motion in part. That is, the circuit court held that the prosecution would not be allowed to introduce evidence of Ho-sey’s prior convictions that did not involve the transfer or sale of narcotics. However, the circuit court also held that the prosecution would be allowed to introduce evidence of Hosey’s prior convictions involving the transfer or sale of narcotics to demonstrate that Hosey intended to transfer or sell narcotics on April 28, 2009. The circuit court noted that it would give a limiting instruction.

¶ 8. At approximately noon on the second day of Hosey’s trial, Hosey’s attorney informed the circuit court that an unexpected witness had appeared at the trial. That witness, Cassie Moore, had not been subpoenaed because neither the prosecution nor Hosey’s attorney were aware that Moore was an eyewitness to the events that transpired on April 28, 2009. Outside of the presence of the jury, Hosey’s attorney proffered Moore’s testimony, which will be discussed in greater detail in the analysis portion of this opinion. In any event, the circuit court held that Moore would not be allowed to testify. Like Moore’s testimony, the circuit court’s rationale for its decision will be discussed in greater detail, below.

¶ 9. After Hosey’s proffer of Moore, the prosecution briefly re-called Detective Joseph. After Detective Joseph’s re-call testimony, the circuit court informed the jury that the prosecution and Hosey had stipulated that Hosey “was previously convicted in the Harrison County Circuit Court on two occasions for the felony of transfer of a controlled substance.” The prosecution rested its case-in-chief after the circuit court had read the stipulation to the jury.

¶ 10. Hosey then called Natasha Hands as his first witness. Hands worked at a nearby beauty salon. She testified that she was an eyewitness to the altercation between Hosey and Detectives Joseph and Walker. To summarize, Hands testified that a person who matched Detective Walker’s description got out of the driver’s side door of the unmarked SUV and “jumped on” Hosey. Hands’s testimony contrasted with that of Detective Joseph’s who testified that he — not Detective Walker — got out of the passenger-side door of the unmarked SUV before he became involved in the physical altercation with Ho-sey.

¶ 11. Hands also testified that Hosey did not throw or discard anything during the altercation. On cross-examination, Hands admitted that she did not know what Hosey was doing before she went outside of her beauty salon. She also admitted that Hosey’s hands were “balled” before Detective Joseph attempted to apprehend Hosey.

¶ 12. Hosey testified after Hands. Ho-sey denied that he had any cocaine in his possession. He further denied that he had been selling cocaine. According to Hosey, his mother had dropped him off at a carpentry trade school earlier on the morning that he was arrested, where he applied to take classes. Hosey testified that he left the carpentry trade school and got a ride from someone who dropped him off near the area where he was arrested. Regarding what he was doing in the area, Hosey’s testimony was somewhat inconsistent. When asked why he was wearing “house shoes,” Hosey testified that his brother had his other pair of shoes. Hosey further testified that his brother had had his shoes for three weeks, and he was waiting in the area because he thought that his brother might randomly drive through. However, Hosey testified that he did not know his brother’s phone number or where his brother lived.

¶ 13. Additionally, Hosey testified that he was looking for a ride to a temporary employment agency. Furthermore, Hosey testified that, contrary to all other testimony — including that of Hands, his own witness — he was arrested closer to noon than 2:30 p.m. Hosey also testified that neither Detective Joseph nor Detective Walker announced that they were law-enforcement officers before they “just start[ed] hitting [him] in the back of [his] head.” Additionally, Hosey testified that he could not have discarded cocaine in the grass because he was arrested on concrete. Hosey rested his case after he testified.

¶ 14. The prosecution called Detective Joseph again during rebuttal. Detective Joseph’s rebuttal testimony was in opposition to Hosey’s version of events. That is, Detective Joseph testified that Hosey ran from him, and when Detective Joseph caught him, Hosey raised his fist as though he was going to punch Detective Joseph. The prosecution finally rested after Detective Joseph testified.

¶ 15. The next morning, the jury began deliberating at approximately 9:40 a.m. Nearly one hour later, the jury announced that it had found Hosey guilty of possession “with intent.” During a bifurcated proceeding, the circuit court found that Hosey qualified for enhanced sentencing as a habitual offender pursuant to section 99-19-81 and sentenced Hosey to thirty years in the custody of MDOC. Hosey filed unsuccessful post-trial motions for a judgment notwithstanding the verdict or, alternatively, for a new trial. However, Hosey also filed a post-trial motion to reconsider his sentence. The circuit court granted Hosey’s motion to reconsider his sentence and sentenced Hosey, still described as a habitual offender to thirteen years in the custody of the MDOC, as opposed to thirty years. Aggrieved, Hosey appeals.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 16. Hosey claims that the evidence is insufficient to find him guilty of possession of cocaine with the intent to distribute. “In a criminal proceeding, motions for a directed verdict and [a JNOV] challenge the legal sufficiency of the evi-denee supporting the guilty verdict.” Croft v. State, 992 So.2d 1151, 1157 (¶ 24) (Miss.2008). Because a motion for a directed verdict and a motion for a JNOV both require consideration of the evidence before the trial court when the decision to grant or deny was made, this Court only reviews the ruling on the last occasion that the challenge was made. Id. (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶ 17. “A motion for a judgment notwithstanding the verdict is a challenge to the sufficiency of the evidence.” Gilbert v. State, 934 So.2d 330, 335 (¶ 9) (Miss.Ct.App.2006). As our Mississippi Supreme Court has stated:

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a] judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury’s verdict if the evidence was “of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (internal citations and quotations omitted).

¶ 18. Hosey argues that no one testified that he sold cocaine. Sergeant Enochs testified that he watched the video feed from the pole camera as Hosey made several hand-to-hand transactions with people. Specifically, Sergeant Enochs testified as follows:

I could see [Hosey] had his hand cupped all the time. Even when he was leaning up against the wall he had his hand cupped. I even took a picture of it that he was holding something in his hand. And when he would go up to someone, he would reach out with that hand, give them something, and would get the money with the other hand and put it in his pocket.

Detective Joseph testified that he watched the video feed from the pole camera, and he saw “several subjects walk up to [Ho-sey], make a transaction!,] and then quickly walk away.” Detective Joseph also testified that Hosey attempted to evade him and, in the process, Hosey discarded cocaine. Detective Joseph also testified that Hosey had approximately $60 when he arrested him.

¶ 19. Hosey argues that it was “just as likely that [he] was purchasing drugs or something else based on the testimony.” That might very well have been within the realm of possibilities, but resolution of that question was a matter for the jury. “Matters regarding the weight and credibility of the evidence are to be resolved by the jury.” Marbra v. State, 904 So.2d 1169, 1179 (¶ 42) (Miss.Ct.App.2004). We find no merit to this issue.

II. THE JURY’S VERDICT

¶ 20. In his second issue, Hosey claims the jury did not find him guilty of possession with intent to distribute, transfer, or sell it. Hosey’s argument is based on a constructive interpretation of the form of the jury’s verdict. The jury verdict reads as follows: “We, the jury, find the defendant, Jherashio Ramandes Ho-sey, guilty of possession of controlled substance with intent.” Hosey argues that the verdict is silent as to what that intent was.

¶ 21. During the conference on jury instructions, the prosecution and Hosey’s attorney both agreed to submit the instruction designated as instruction C-5A. That instruction reads as follows:

The Court instructs the jury that your verdict should be written on a separate piece of paper, need not be signed and may be in one of the following forms: If you find the defendant, JHERASHIO RAMANDES HOSEY, guilty of Possession of a Controlled Substance, with Intent, the form of your verdict shall be: “WE THE JURY FIND THE DEFENDANT ... GUILTY OF POSSESSION OF [A] CONTROLLED SUBSTANCE, WITH INTENT.” or
If you find the defendant ... guilty of Possession of a Controlled Substance, the form of your verdict shall be:
“WE, THE JURY FIND THE DEFENDANT ... GUILTY OF POSSESSION OF [A] CONTROLLED SUBSTANCE.” or
If you find the defendant not guilty, the form of your verdict shall be:
“WE, THE JURY FIND THE DEFENDANT ... NOT GUILTY.”

According to Hosey, because the instruction omitted the specific intent referenced within it, the jury’s verdict does not reflect what Hosey’s intent was. Hosey also argues that the jury’s verdict should be interpreted merely as a finding that he was guilty of mere possession. Furthermore, Hosey notes that the prosecution did not object to instruction C-5A.

¶ 22. A more important consideration is that Hosey did not object to instruction C-5A. In fact, both the prosecution and Ho-sey’s attorney agreed to submit instruction C-5A without objection. Because Hosey did not object to instruction C-5A, he is procedurally barred from arguing that the circuit court erred when it submitted that instruction. Boggan v. State, 894 So.2d 581, 585 (¶ 17) (Miss.Ct.App.2004).

III. WEIGHT OF THE EVIDENCE

¶ 23. Next, Hosey claims the jury’s verdict is contrary to the overwhelming weight of the evidence. We are mindful that, as we review the circuit court’s decision to deny a motion for a new trial, this Court “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, 895 So.2d at 844 (¶ 18). The supreme court has further instructed that, when reviewing a trial court’s decision to deny a motion for a new trial:

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. However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, ... the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Id. (footnote and internal citations and quotations omitted).

¶ 24. For the reasons expressed in our analysis of Hosey’s first issue, we do not find that it would sanction an unconscionable injustice to allow Hosey’s conviction to stand. Looking at the evidence in the light most favorable to the verdict, there was evidence that Hosey conducted transactions for money and that he had cocaine in his possession. We find no merit to this issue.

IV. EXCLUSION OF A DEFENSE WITNESS

¶ 25. Hosey’s fourth issue stems from the circuit court’s decision to prohibit Moore from testifying on Hosey’s behalf. Moore appeared unexpectedly at approximately noon during the second day of Ho-sey’s trial. During a proffer outside of the jury’s presence, Moore stated that “a couple of days” before that time, she had heard that her cousin, Hands, had been subpoenaed. According to Moore, that was the first time she learned that Hosey was going to trial.

¶ 26. Moore explained that, like Hands, she had been at the salon at the time Hosey was arrested. Moore stated that saw a black SUV approach Hosey. She further stated that two men got out of the SUV and “jump[ed] on Hosey” as Hosey was walking down the street. Moore said that she did not know whether Hosey had discarded anything during the altercation.

¶ 27. Hosey requested that the circuit court allow Moore to testify. The prosecution objected. The circuit court held as follows:

Moore, by admission of all parties, did not appear until today at some — right before twelve o’ clock. She was obviously not produced to the [Sjtate. Her name was never divulged to the jury during voir dire.
Furthermore, a proffer was made. Ms. Moore, even though she says she saw something, she could not tell us a date, she could not tell us a location, and she could not tell us a time.
This Court rules that not only is it a discovery violation, but it’s totally irrelevant. She has nothing to offer. Therefore, her testimony will be excluded.

After a discussion between Hosey’s attorney and the circuit court, the circuit judge added, “I am not going to let the [Sjtate or the defense come in with witnesses at this time after jury selection at a time when the [Sjtate is on the verge of resting [its case]. It’s a total surprise, not only to the State, but [also] to defense counsel.”

¶ 28. Hosey claims the circuit court erred. The well-settled standard of review regarding a circuit court’s decision to exclude evidence is the familiar abuse-of-discretion standard. Troupe v. McAuley, 955 So.2d 848, 855 (¶ 19) (Miss.2007) (citing Poole ex rel. Poole v. Avara, 908 So.2d 716, 721 (¶ 8) (Miss.2005)). “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, [this] Court will not reverse this ruling.” Shaw v. State, 915 So.2d 442, 445 (¶ 8) (Miss.2005).

¶ 29. The circuit court considered the matter of Moore’s testimony from a discovery standpoint, the ultimate facet of the circuit court’s decision to preclude the admissibility of Moore’s testimony was the circuit court’s view of Hosey’s testimony as irrelevant and cumulative. Unless Hosey’s proffer of Moore reveals that Moore’s testimony should have been admissible, there is no need to analyze the question of a discovery violation. Accordingly, we first analyze the matter of whether the circuit court erred when it held that Moore’s testimony was inadmissible because it was irrelevant.

¶ 30. “ ‘Relevant Evidence’ means evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.” M.R.E. 401. “Evidence which is not relevant is not admissible.” M.R.E. 402. If Moore was not able to testify to any matters that tended to “make the existence of a fact that is of consequence to the determination of the action [more or less] probable,” then her testimony was irrelevant.

¶ 31. Moore testified that she was an eyewitness to Hosey’s arrest. Her proffered testimony was as follows:

there was [sic] two guys jumped [sic] out the truck. And we seen [sic] Hosey walking down the street. So the guys jumped out the truck, and one of the guys jumped out and was like — just to me he just jumped on him. Hosey was like, [“]what are you hitting me for? What did I do? What did I do? [”] And he just kept hitting him, just kept hitting him, and just kept hitting him.
So the other guy got out of the truck, and I guess they think he had something. I don’t know. If he had anything, I’m not sure because I couldn’t, you know, see if he throwed [sic] anything.

During cross-examination, Moore testified that she was not paying attention to anything that Hosey was doing before she went outside. She also verified that while she was inside the salon, she was not paying attention to what was going on outside. In other words, Moore could neither verify nor deny that Hosey had been transferring narcotics before he was arrested. Furthermore, she stated that she could not see whether Hosey had discarded any narcotics while law-enforcement officers attempted to apprehend Hosey.

¶ 32. Whether Hosey possessed narcotics and whether he intended to distribute narcotics were matters that were of consequence to the determination of Ho-sey’s trial. The circuit court acted within its discretion when it concluded that Moore’s testimony did not make either one of those questions more or less probable. Consequently, the circuit court acted within its discretion when it concluded that Moore’s testimony was irrelevant. Furthermore, Hands later testified to essentially the same substantial matters after Hosey called her as a witness. Accordingly, through Hands, Hosey was able to bolster his theory of the case—which was that he neither possessed narcotics nor intended to distribute, transfer, or sell narcotics. It follows that Hosey was not unduly prejudiced by the circuit court’s decision that Moore’s testimony was irrelevant. Because the circuit court acted within its discretion, we find no merit to this assignment of error.

V. EVIDENCE OF PRIOR CONVICTIONS

¶ 83. Hosey argues that the circuit court erred when it allowed the prosecution to introduce evidence that Hosey had two prior convictions involving the transfer of a controlled substance. Hosey filed a motion in limine to exclude those prior convictions from the evidence. The circuit court found that Hosey’s prior convictions were admissible as evidence of Hosey’s intent. Specifically, the circuit court held as follows:

This court in weighing the probative value versus the prejudice, is going to rule that certainly evidence of a prior drug transaction is prejudicial to the defendant, and that prejudice, as in all cases which I have cited, does not outweigh the probative value as it relates to the issue of intent. Therefore, the Court is going to allow into evidence a conviction as it relates to [two prior convictions], both of which are dealing with transfer of a controlled substance, as to intent only provided a limiting instruction is given. The Court is going to sustain the defendant’s motion as it relates to a mere possession charge in [one prior conviction] as well as possession of a weapon after [sic] a convicted felon....

¶ 34. “It is settled in Mississippi jurisprudence that under [Mississippi Rule of Evidence] 404(b) evidence of prior sales is admissible to show or prove intent to distribute.” Mitchell v. State, 754 So.2d 519, 524 (¶ 16) (Miss.Ct.App.1999) (citing Swington v. State, 742 So.2d 1106, 1112 (¶ 16) (Miss.1999)). Furthermore, the circuit court instructed the jury pursuant to the jury instruction designated as instruction C-10A, which reads as follows:

The Court instructs the jury that evidence of prior convictions of Transfer of Controlled Substance by the defendant on previous occasions, is offered in an effort to show intent regarding the defendant. ... In other words, if you find beyond a reasonable doubt that [Hosey] possessed cocaine on the date alleged, then you may consider evidence of prior convictions of Transfer of Controlled Substance in determining whether [Ho-sey] possessed the cocaine with the intent to distribute or sell it, giving such evidence whatever weight, worth, and credibility, if any, you think it deserves for that purpose.

Accordingly, the circuit court acted within its discretion when it allowed the prosecution to introduce evidence of Hosey’s two prior convictions for possession of narcotics with the intent to distribute, transfer, or sell them. It follows that we find no merit to this assignment of error.

VI. OPINION TESTIMONY

¶ 35. Next, Hosey argues that the circuit court erred when it allowed Sergeant Enochs to testify that, based on his observation of the events depicted in the video feed from the pole camera, it was his opinion that Hosey was transferring or selling drugs. Noting that the prosecution did not qualify Sergeant Enochs as an expert witness, Hosey argues that the circuit court erred in allowing the prosecution to elicit inadmissible lay opinion testimony from Sergeant Enochs.

¶ 36. Mississippi Rule of Evidence 701 provides as follows:

If the witness is not testifying as an expert the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of [Mississippi Rule of Evidence] 702.

According to Hosey, “[i]nstead of limiting his testimony to what his observations were, however, [Sergeant] Enochs actually testified over objections, about his conclusions and opinion.” Hosey references three pages of the record in which he claims that Sergeant Enochs improperly testified to his opinions on matters that were outside the acceptable scope of lay witness opinion testimony. Within those three pages of the record, the only matter to which Sergeant Enochs offered an opinion was his opinion that, based on his observation of Hosey’s behavior via the video feed from the pole camera, it was necessary to send two detectives to contact Hosey. Sergeant Enochs did not testify that, in his opinion, Hosey was selling narcotics. More accurately, Sergeant Enochs testified that, in his opinion, it was necessary to send two detectives to determine whether Hosey was selling narcotics.

¶ 37. A lay witness may not express an opinion on an ultimate issue. Marbra, 904 So.2d at 1174 (¶ 15) (citing Jackson v. State, 551 So.2d 132, 144 (Miss. 1989)). Furthermore, a lay witness may testify regarding an opinion “that is based upon his personal perceptions, and that will help the jury fairly resolve a controverted, material fact.” Id. Sergeant En-ochs did not express an opinion on the ultimate issue. He did not opine that Ho-sey was selling narcotics. At best, he opined that, based on his observations, it was necessary to dispatch law-enforcement officers to further investigate behavior that he considered suspicious. Furthermore, Sergeant Enochs’s testimony was necessary to frame the narrative of events that led to the Gulfport Police Depart-merit’s interaction with Hosey. We find no merit to this assignment of error.

VII. CUMULATIVE EFFECT OF ERRORS

¶ 38. Hosey claims that this Court should grant him a new trial based on the cumulative effect of the errors. “[IJndivid-ual errors, not reversible in themselves, may combine with other errors to make up reversible error.” Wilburn v. State, 608 So.2d 702, 705 (Miss.1992) (citing Hansen v. State, 592 So.2d 114, 142 (Miss.1991)). However, we find no error present in this case, much less a cumulative effect of those non-existent errors. It follows that we find no merit to this issue.

¶ 39. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE AND SENTENCE AS A HABITUAL OFFENDER OF THIRTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.

      . On June 3, 1996, Hosey was convicted of possession of a controlled substance and sentenced to three years in the custody of the MDOC. That same day, Hosey was also convicted of two counts of transfer of a controlled substance and sentenced to ten years in the custody of the MDOC on both counts. Finally, on September 10, 2007, Hosey was convicted of possession of a firearm by a former convicted felon and sentenced to eighteen months in the custody of the MDOC.

      . Section 99-19-81 requires that a person who qualifies for enhanced sentencing as a habitual offender pursuant to that section must be sentenced to the maximum possible sentence for any subsequent crimes. The maximum possible sentence for possession of cocaine with intent to distribute is thirty years in the custody of the MDOC. Miss. Code Ann. § 41-29-139(b)(1) (Rev.2009). When the circuit court granted Hosey's motion to reconsider his sentence, the circuit court reduced Hosey’s sentence from thirty years to thirteen years in the custody of the MDOC. The circuit court did so without performing the proportionality analysis required by Solem v. Helm, 463 U.S. 777, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). However, the State has neither appealed nor cross-appealed the circuit court’s decision. Accordingly, the legality of Hosey’s sentence is not an issue that is presently before this Court.


text:
    Helen POWELS, Administratrix of the Estate of Kathryn M. Rich, Deceased, Appellant v. Betty T. ILES, as Executrix of the Estate of Jerry W. Iles, M.D., Appellee.
    No. 2010-CA-00337-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Rehearing Denied Oct. 25, 2011.
    Certiorari Denied Jan. 12, 2012.

      Joseph E. Roberts Jr., Jackson, attorney for appellant.
    Joseph Leray McNamara, Stephanie C. Edgar, attorneys for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 1994, a medical-malpractice action was tried against Jerry W. lies, M.D. (lies), and Jefferson Davis Memorial Hospital (the Hospital), in the Adams County Circuit Court, with regard to injuries received by Kathryn M. Rich (Rich) in 1986. After the jury returned a verdict in favor of the defendants, Rich’s daughter, Helen Powels (Powels), appealed on behalf of her mother’s estate. In 1997, this Court affirmed the jury’s verdict as to the Hospital but reversed and remanded the case as to lies. The record reflects that no action was taken thereafter until February 2003, when Powels’s attorney sent a letter to Iles’s attorneys inquiring into the possibility of a settlement. The next communication between the parties was in January 2009, when Powels’s attorney wrote Iles’s attorneys a letter to provide available trial dates. Iles’s attorneys then filed a motion to dismiss the case for lack of prosecution, which the trial court granted. Powels now appeals. Finding no error, we affirm.

FACTS

¶ 2. In 1989, Rich filed suit against lies and the Hospital, alleging that the irreversible partial paralysis she had sustained in 1986 was the result of Iles’s and the Hospital’s failure to provide a timely diagnosis of Rich’s spinal injury. The 1994 jury trial resulted in a verdict favoring lies and the Hospital. Thereafter, Powels appealed. This Court affirmed the verdict as to the Hospital, but we reversed and remanded Iles’s case due to an improper jury instruction. The case was sent back to the trial court on September 16, 1997, for a new trial on the matter.

¶ 3. Thereafter, the record reflects that no action was taken on the case until almost six years later, when, on February 25, 2008, Powels’s attorney sent a letter to Iles’s attorneys inquiring as to settlement possibilities. The record further indicates that the next action between the parties was not taken until another six years later, on January 13, 2009, when Powels’s attorney wrote another letter to Iles’s attorneys advising of specific dates the court had available for a new trial. On February 19, 2009, Iles’s attorneys filed the first action of record in the case in almost twelve years — a motion to dismiss for lack of prosecution under Mississippi Rule of Civil Procedure 41(b). The trial court granted Iles’s motion, after which Powels filed a motion to reconsider. The trial court denied the motion after conducting a hearing on the matter. A final judgment was entered dismissing the case in January 2010.

¶ 4. In February 2010, Powels appealed. Seven months later, lies passed away, and his wife became a party to this action. On appeal, Powels claims that the trial court erred in granting Iles’s dismissal. She also asserts that the trial court clerk failed to comply with Mississippi Rule of Civil Procedure 41(d), which requires the clerk to mail the parties a requisite notice that the case had been stagnant for a year and would be subject to dismissal under Rule 41(b) if no action were taken.

¶ 5. In response to Powels’s claims, Iles’s attorneys assert that his defense is greatly prejudiced by the delay in prosecution. In support thereof, Iles’s attorneys reference his death and the obvious disadvantage present in Iles’s not being able to testify in his own defense, as well as significant memory lapses and the unavailability of several key defense witnesses.

DISCUSSION

¶ 6. This Court has previously held that in reviewing a Rule 41(b) dismissal, “we apply the substantial evidence/manifest error standards.” Gulfport-Biloxi Regional Airport Auth. v. Montclair Travel Agency, Inc., 937 So.2d 1000, 1005 (¶ 13) (Miss.Ct.App.2006) (citation omitted); see also Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178 (Miss.1998). Rule 41(b) provides that in the event of “failure of the plaintiff to prosecute[,] ... a defendant may move for dismissal of an action or of any claim against him.”

¶ 7. We recognize that a trial court’s power to dismiss a case for failure to prosecute “is an inherent power in any court of law or equity and has been regarded as a means necessary to control the court’s docket and promote the orderly expedition of justice.” Hensarling v. Holly, 972 So.2d 716, 719 (¶ 7) (Miss.Ct.App. 2007) (citing Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986)). “What constitutes failure to prosecute depends on the facts of the particular case.” Id. at 720 (¶ 8) (citing Wallace v. Jones, 572 So.2d 371, 376 (Miss.1990)).

¶ 8. The Mississippi Supreme Court has set forth factors to be considered when analyzing a dismissal under Rule 41(b). Days Inn, 720 So.2d at 181 (¶ 13). In Days Inn, the supreme court held that a reviewing court must determine: (1) whether there was a clear record of delay or contumacious conduct by the plaintiff; (2) whether lesser sanctions might have better served the interests of justice; and (3) the existence of other “aggravating factors.” Id. (citing Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982)). However, the supreme court in Cox v. Cox, 976 So.2d 869 (Miss.2008), also dealt with a motion to dismiss for lack of prosecution. Therein, the supreme court stated:

Cases from both this Court and the [Mississippi] Court of Appeals indicate that factors other than delay typically are present when a dismissal with prejudice under Rule 41(b) is upheld.... Nevertheless, factors other than delay are not required. The standard is whether there is a clear record of delay or contumacious conduct by the plaintiff.

Cox, 976 So.2d at 874-75 (¶¶ 16-17) (internal citations and quotations omitted).

¶ 9. The instant case was remanded to the trial court in September 1997, but no action of record was taken until Iles’s attorney filed the motion to dismiss for lack of prosecution in February 2009. We hold that a stagnation of twelve years constitutes a clear record of delay, thus, providing ample support for the trial court’s dismissal, pursuant to the supreme court’s ruling in Cox.

¶ 10. Additionally, while the trial court did not specifically address the availability of lesser sanctions, as mentioned in the Cox analysis, the trial judge stated that the dismissal was not “a punitive action against the plaintiff.” We cannot say that the imposition of any lesser sanctions would have served as a more appropriate solution as opposed to dismissal. As noted by the trial judge, dismissal of the case was not ordered as a sanction against Pow-els or her counsel; rather, it was the proper procedural remedy to a case that had laid dormant for over a decade.

¶ 11. Finally, at the hearing on Powels’s motion to reconsider, the trial court referenced several “aggravating factors” which demonstrated prejudicial consequences of the lengthy delay. The age of the parties involved was a significant consideration in terms of memory loss and the availability of witnesses. lies was sixty-five years old at the time the case was remanded to the trial court, and he was seventy-seven years old when the case was dismissed. While memory loss was a valid concern, Iles’s death created a quandary in this case as introduction of his testimony would be limited to his trial transcript from 1994. Additionally, two of Iles’s trial experts are in their seventies and are both retired. One of the experts was also in a serious automobile accident, which led to brain injuries and allegedly significant memory impairment.

¶ 12. As mentioned previously, in Cox, the Mississippi Supreme Court reviewed a motion to dismiss for lack of prosecution after a nine-year stagnation. Cox, 976 So.2d at 872-72 (¶ 6). The supreme court specifically referenced the prejudice inherent in memory loss of parties and witnesses and found that such memory loss constitutes a “measure of presumed prejudice.” Id. at 879 (¶¶ 43-45).

¶ 13. Based on the supreme court’s ruling in Cox, the memory loss of Iles’s trial witnesses constitutes a measure of presumed prejudice, an aggravating factor that supports the trial court’s dismissal of the case. We are of the opinion that Iles’s recent death is also an aggravating factor which prejudices his defense. Had Powels not waited twelve years to resume action in this case, lies would have been able to testify in his own defense.

¶ 14. Furthermore, the trial court recognized its own partial error due to the clerk of court’s failure to comply with Rule 41(d), which required that notices be mailed to the parties around September 1998 informing them that their case was subject to dismissal because no action of record had occurred in one year. The notices should have also included advisory language that action was to be taken within thirty days of receipt of the notice or the case would be dismissed. However, the trial court concluded that failure of the clerk to mail such notices did not excuse Powels’s twelve-year delay. We agree.

¶ 15. Accordingly, having found that the trial court’s judgment is supported by substantial credible evidence, we affirm.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. RUSSELL, J., NOT PARTICIPATING.

      . lies died on September 1, 2010. His attorney subsequently filed a motion to substitute Iles’s wife, Betty T. lies, as a party to this action in her capacity as administratrix of Iles's estate. This Court granted the motion.


author: MYERS, J.,

text:
    KNIGHT PROPERTIES, INCORPORATED and Builders and Contractors Association of Mississippi, Appellants v. Kenny SANDERS, Individually; Kenny Sanders, a Sole Proprietorship and First Comp Insurance Company, Appellees.
    No. 2010-CA-00404-COA.
    Court of Appeals of Mississippi.
    Aug. 2, 2011.
    Rehearing Denied Oct. 11, 2011.
    Certiorari Dismissed Jan. 12, 2012.
    H. Wesley Williams, III, attorney for appellants.

      Alan M. Purdie, Grenada, Christopher Hailey Corkern, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   MYERS, J.,

for the Court:

¶ 1. This case arises from a dispute between two workers’ compensation insurance carriers over which is liable for compensation payments. Knight Properties, Inc. employed Kenny Sanders as a subcontractor. First Comp Insurance Company, Sanders’s insurer, purported to cancel his policy for nonpayment of premiums. One of Sanders’s employees was subsequently injured on the job. The employee sought compensation, contending that Sanders did not have workers’ compensation coverage and that Knight, the general contractor, was therefore his employer under the Mississippi Workers’ Compensation Act. See Miss.Code Ann. § 71-3-7 (Rev.2000). The Commission ultimately determined that First Comp had failed to follow the statutory notice requirements when it attempted to cancel Sanders’s policy. See Miss Code Ann. § 71-3-77 (Supp.2010). It thus found that Sanders did, in fact, have workers’ compensation coverage, and it ordered First Comp to assume responsibility for future payments to the injured employee.

¶ 2. During the course of the Commission’s proceedings, Knight paid more than $200,000 in compensation and medical benefits. Knight sought indemnity from First Comp, but the Commission held that it did not have jurisdiction to address that claim. Knight then brought suit in the Circuit Court of Madison County against First Comp to recover the benefits Knight had paid to the injured worker. The circuit court dismissed Knight’s indemnity suit, holding that Mississippi Code Annotated section 71-3-37(13) (Supp.2010) provides the Commission with exclusive jurisdiction to resolve issues of reimbursement between carriers. Knight appeals from that judgment.

STANDARD OF REVIEW

¶ 3. The facts are not disputed. At issue is a question of law, which we review de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

DISCUSSION

¶ 4. Mississippi law vests “full and complete jurisdiction to hear and determine claims for benefits under the workmen’s compensation law in the [Commission].” Everitt v. Lovitt, 192 So.2d 422, 425 (Miss.1966). The Commission has exclusive original jurisdiction over such matters, which precludes an original action in court. Id. at 426.

¶ 5. At issue in today’s case is whether the Commission’s exclusive jurisdiction extends to ordering reimbursement in a controversy between two workers’ compensation insurers. In United States Fidelity & Guaranty Company v. Collins, 231 Miss. 319, 95 So.2d 456 (1957), the Mississippi Supreme Court held that the Commission did not have this power. The court concluded:

[A] compensation commission is an administrative agency exercising only powers which are specifically granted to it by statute. That does not authorize a commission to try equitable and legal issues involved when a payment of money is made by one through a mistake of fact and law when such payment operates to discharge an obligation imposed upon another by statute.

Id. at 339, 95 So.2d at 463. The supreme court quoted 2 Larson’s Workmen’s Compensation Law § 92.40 (1952), stating:

[W]hen the rights of the employee in a pending claim are not at stake, many commissions disavow jurisdiction and send the parties to the courts for relief. This may occur when the question is purely one between two insurers, one of whom alleges that [it] has been made to pay an undue share of an award to a claimant, the award itself not being under attack.

Id. at 338-39, 95 So.2d at 462-63.

¶ 6. Thirty years after Collins, the Mississippi Legislature added subsection 71-3-37(13) to the Act, extending the powers of the Commission to some reimbursement claims between insurers. Subsection (13) reads:

Whenever a dispute arises between two (2) or more parties as to which party is liable for the payment of workers’ compensation benefits to an injured employee and there is no genuine issue of material fact as to the employee’s employment, his average weekly wage, the occurrence of an injury, the extent of the injury, and the fact that the injury arose out of and in the course of the employment, the commission may require the disputing parties involved to pay benefits immediately to the employee and to share equally in the payment of those benefits until it is determined which party is solely liable, at which time the liable party must reimburse all other parties for the benefits they have paid to the employee with interest at the legal rate.

Subsection (13) is similar to a Minnesota statute, which that state’s supreme court had relied on to extend the jurisdiction of its workers’ compensation commission to order reimbursement between earners. See Toenberg v. Harvey, 235 Minn. 61, 49 N.W.2d 578, 583 (1951). In Collins, our supreme court discussed Toenberg as an outlying decision, noting that Mississippi had no similar statute. Collins, 231 Miss. at 340, 95 So.2d at 463.

¶ 7. The circuit court found that subsection (13) had abrogated the supreme court’s decision in Collins and that the Commission now had exclusive jurisdiction over claims for reimbursement between insurers. Knight contends the Commission’s authority in that respect is limited to the specific circumstances outlined in subsection (13) and does not give the Commission exclusive jurisdiction over all reimbursement claims. We agree.

¶ 8. This issue arose in Mississippi Loggers Self Insured Fund, Inc. v. Andy Kaiser Logging, 992 So.2d 649 (Miss.Ct.App. 2008). There, we observed that the plain language of subsection (13) only allows the Commission to order reimbursement in very specific circumstances, i.e., to amounts paid after the Commission has ordered liability shared between carriers under the first clauses of subsection (13), pending the resolution of the dispute between them. Id. at 655 n. 5. The conditions “until” and “at which time” in the statute make this clear.

¶ 9. The Collins court discussed the Minnesota statute, which is very similar to subsection (13). It stated:

It should also be noted that the Minnesota statute referred to in the Toenberg case authorized that commission to order reimbursement to an insurer which, doubtful about its liability, makes payments under a prior commission order, and it is later determined that insurer is not liable. Perhaps a provision of that sort is desirable, but the Mississippi [a]ct contains none. At any rate, the Minnesota [c]ourt apparently felt warranted in implying from that provision the closely related power of directing reimbursement in the absence of an express order of its commission.

Collins, 231 Miss. at 340, 95 So.2d at 463 (citation omitted). Our supreme court appears to have been skeptical of the Minnesota court’s use of their statute to expand their commission’s powers. As the Collins court noted, the Toenberg decision was an outlier — “practically all of the cases” from other states reached the opposite conclusion. Id. at 338, 95 So.2d 462. At best, subsection (13) could allow a court to imply greater authority to the Commission than is expressly granted by the statute; it does not require that result. Instead, the Collins court emphasized that the Commission may exercise only those powers which are specifically granted to it by statute. Id. at 339, 95 So.2d at 463. Collins remains the controlling law in Mississippi.

¶ 10. As contrary authority, First Comp relies on two decisions where the United States District Court in the Northern District of Mississippi briefly commented on subsection (13). In one unpublished decision, the district court held that it did not have removal jurisdiction over a reimbursement action because it arose under Mississippi workers’ compensation law. See Eutaw Constr. Co., Inc. v. N. Ark. Wholesale Co., 1997 WL 560914 (N.D.Miss. 1997). The court stated that through subsection (13), the “Mississippi Legislature has granted the [CJommission with the authority to order reimbursement between carriers.... ” It did not elaborate further. In another case, the district court suggested the possibility that subsection (13) enlarged the Commission’s powers when it “agreed” with a party’s contention that a contribution action “should have been brought, if at all, before the Mississippi Workers Compensation Commission pursuant to [section] 71-3-37(13).” Travelers Prop. and Cas. Co. of Am. v. City of Greenwood Fire Dep’t, 441 F.Supp.2d 776, 779 (N.D.Miss.2006). Neither of these decisions directly addressed the scope of the authority extended to the Commission by subsection (13), and their cursory treatment of the issue provides little persuasive authority.

¶ 11. The reimbursement clause of subsection (13) provides the Commission with the power to order reimbursement under very specific and limited circumstances. The Commission exercises “only powers which are specifically granted to it by statute.” Collins, 231 Miss. at 339, 95 So.2d at 463. We will not imply a broader power over all claims for reimbursement between insurers. Thus, we find that the Commission does not have exclusive jurisdiction and that the circuit court erred in dismissing Knight’s indemnity suit for want of jurisdiction.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . For convenience we shall refer to Knight and its insurer, the Builders and Contractors Association of Mississippi, simply as ''Binight.”

      . Our decision in Kaiser was complicated by a prior appeal in that case. The circuit court had held that the Commission had authority to order reimbursement under subsection 13. That judgment was not appealed further. The case was then remanded to the Commission for further findings. In the second appeal, we observed that the circuit court’s holding in the first appeal was erroneous, but we held that it was the law of the case because a mandate had been issued. This Court ultimately affirmed the Commission's findings.

      . One carrier sought to apportion liability for workers' compensation benefits for an injury that allegedly resulted from multiple employments.