author: DICKINSON, Justice,

text:
    DR. K.B. and Dr. R.M. v. J.G.
    No. 2008-CA-00472-SCT.
    Supreme Court of Mississippi.
    May 28, 2009.

      Daniel J. Davis, attorney for appellant.
    Bennie Le Nard Richard, Greenville, attorney for appellee.
    Before CARLSON, P.J., DICKINSON and PIERCE, JJ. DICKINSON.
   DICKINSON, Justice,

for the Court.

¶ 1. A married couple adopted twins born out of wedlock to J.G. and K.A.B. J.G., who was unaware of the adoption, filed suit to set it aside. The chancellor set aside the adoption and awarded the twins to J.G. We are unable to find that the chancellor abused her discretion, and we affirm.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On July 3, 2006, K.A.B., a Caucasian female, learned from her doctor that she was pregnant with twins. During the period she could have conceived, she had approximately ten different sexual partners of various races, including J.G., an African-American. K.A.B. believed (during most of her pregnancy) that the father of her twins was her long-term boyfriend, who is a white male.

¶ 3. K.A.B. testified that she had informed J.G. — who was at her home the morning of her doctor’s appointment — that she had taken a home pregnancy test, and that it was positive. K.A.B. initially informed J.G. her boyfriend was the father, which she believed because she had been in a more long-term and consistent sexual relationship with her boyfriend than she had been in with J.G. Furthermore, she testified that she did not believe J.G. could be the father because he had told her he was “fixed” (had a vasectomy). J.G. testified that he believed K.A.B. when she told him that the boyfriend was the father of the children. However, J.G. admitted that “maybe a week” after K.A.B. had told him she was pregnant by her boyfriend, she told him that it was possible J.G. was the father instead of her boyfriend.

¶ 4. During K.A.B.’s pregnancy, her relationship with J.G. became tumultuous. She threatened to file phone harassment charges against him if he continued to call her. J.G. testified he did not visit K.A.B. at her home or at the hospital at the time of the children’s birth, because he believed K.A.B.’s parents would not be happy about her involvement with an African-American.

¶ 5. The twin children at issue here were born on January 17, 2007. J.G. testified he had no reason to think the twins were his children when they were born, and therefore made no effort to contact or assume responsibility for them until he learned from a coworker two or three weeks after the children were born that the children were biracial.

¶ 6. K.A.B. told J.G. on January 18, 2007, that her boyfriend could not be the twins’ father because they appeared to be biracial. She also notified J.G. of her decision to place the children for adoption on January 24, 2007. J.G. asked K.A.B. to test their DNA before she placed them for adoption. He told her that, if the twins were in fact his, he would “keep them.” She invited J.G. to come to her home to visit the twins that same day, but J.G. refused because he feared K.A.B.’s parents would not approve of his being there.

¶ 7. He further testified that, because of K.A.B.’s promiscuous reputation, he wanted to wait until the DNA test confirmed he was the twins’ father before he began supporting them. For the same reason, he testified he told some of his coworkers he was not the twins’ father.

¶8. K.A.B. testified she did not notify J.G. of the adoption process, and she did not give the adoption attorney J.G.’s name or contact information. Dr. K.B. and Dr. R.M., a married couple, took custody of the twins on January 28, 2007, four days after they came home from the hospital. On February 6, 2007, the adoption was approved.

¶ 9. On the eighth or ninth of February, 2007, J.G. had his sister prepare a letter to send to Dr. K.B. and Dr. R.M. The letter, which was postmarked February 21 and delivered February 22, stated, in part:

I am the alleged father of [the twins] and have not relinquished my rights as their biological father and have no intentions of doing so.... I would like to resume custody of my children ... my inte[t]ions are not to be mean to you, (as I appreciate you both wanting the babies) I only want the opportunity to love and raise my own children.

Dr. K.B. signed for the letter on February 22, 2007, and K.A.B. received a copy the same day.

¶ 10. As of April 2, 2007, the twins had not been turned over to J.G., so he hired an attorney to file a Petition for Filiation, Determination of Rights and to Reopen and Unseal Adoption Proceedings (If Necessary) in the Chancery Court of Sunflower County. He sought to set aside the adoption or have the matter set as a contested adoption.

¶ 11. On June 15, 2007, a paternity test conclusively identified J.G. as the biological father of the twins. At trial, J.G. testified that the first time he purchased anything for the twins was in October 2007, which was also the first time he had visitation with the children. J.G. further testified that he was willing to assume legal and physical care of the twins, was financially able to assume the financial responsibilities of raising them, and had a family support system in place to help nurture them. Because his work often took him out of tow on business, J.G. testified he and his family members would have to make a joint effort to care for the young children.

¶ 12. At the time of trial, J.G. had two other minor children who were born out of wedlock to different mothers. He was paying child support of $56.50 per week per child, and he was visiting them regularly. J.G. testified that if K.A.B. had wanted to keep the children, he would have been happy for her to do so, and he would have been willing to pay child support and would actively have been part of the twins’ lives.

¶ 13. After trial, the chancellor issued her Findings of Fact and Conclusions of Law, concluding that the controlling statutes were Mississippi Code Section 93-17-5 and 93-17-6. Relying on a Mississippi Court of Appeals case, In re B.N.N., 928 So.2d 197 (Miss.Ct.App.2006), the chancellor ordered the adoptions to be set aside on February 19, 2008, and ordered the twins placed in J.G.’s custody on February 22, 2008.

¶ 14. The chancellor noted that “when considering the best interest of the child in termination of parental right and adoption cases, the law creates the presumption that the best interest of the child will be served by remaining in the custody of his natural parents.” Furthermore, the chancellor considered the following facts pertinent in her decision to set the adoption aside: (1) the mother had had multiple sexual partners during the time period in which the twins were conceived; (2) the biological father had kept his relationship with the mother a secret, at the mother’s request; (3) the putative father had taken the affirmative actions of filing a petition to determine heirship and challenging the adoption, and he had contacted Dr. K.B. and Dr. R.M. by letter; (4) circumstances created by the mother and/or her agents had thwarted the efforts of the biological father to demonstrate a full parental commitment; and (5) paternity was unknown until paternity testing had occurred.

¶ 15. The chancellor did not consider J.G.’s lack of support after the twins’ birth as a negative factor because of the “complicated deterrents” which J.G. encountered: (1) He initially had no reason to believe he could be the father where K.A.B. initially had told him another man was the father and she had been sexually active with at least ten men at the time of conception; (2) K.A.B. repeatedly had instructed J.G. to keep their relationship a secret because of her parents’ negative view of interracial dating; and (3) K.A.B. repeatedly had threatened J.G. with phone harassment charges if he called her.

¶ 16. Dr. K.B. and Dr. R.M., aggrieved by the trial court’s decision, filed them notice of appeal on February 22, 2008, raising two issues: (1) whether the chancellor erred by failing to terminate the parental rights of J.G., and (2) whether the chancellor erred by failing to act in the best interests of the children.

ANALYSIS

¶ 17. This Court “will not overturn a Chancellor’s findings of fact when supported by substantial evidence unless an erroneous legal standard is applied or is manifestly wrong.” Crafe v. Olds, 556 So.2d 690, 692 (Miss.1990).

¶ 18. Dr. K.B. and Dr. R.M. first argue that the burden was on J.G. to prove he had taken affirmative action to prevent the loss of his parental rights. They contend that a putative father must prove by clear and convincing evidence that he has provided financial support or will provide such support in order to prevent loss of his parental rights under Mississippi Code Sections 93-17-5 and 93-17-6. Miss.Code Ann. §§ 93-17-5, 93-17-6 (Rev.2004).

¶ 19. Dr. K.B. and Dr. R.M. further argue that the chancellor was manifestly wrong in failing to terminate J.G.’s parental rights because J.G. did not fulfill his parental responsibilities as required by the aforementioned statutes. They contend that the chancellor was incorrect in her assumption that J.G. was on notice of his duties as a father only after he was informed the twins were biracial. They argue that having sexual intercourse with K.A.B. put J.G. on notice that he possibly was the father of the twins and, and since J.G. did not support K.A.B. during her pregnancy, he did not meet the requirements of the statute.

¶ 20. Dr. K.B. and Dr. R.M. cite numerous cases and statutes from our sister states which place a heavy burden on men who father children out of wedlock to take affirmative and immediate steps toward the responsibilities of parenthood. They contend that Mississippi Code Section 93-17-6(4) does not limit a man’s responsibility to support his illegitimate children to cases in which he has notice or proof that he is, in fact, the children’s father. Miss. Code Ann. § 93-17-6(4) (Rev.2004).

¶ 21. The absence of such limitation, Dr. K.B. and Dr. R.M. argue, indicates that the Mississippi Legislature has placed a high burden on men who have had sexual intercourse with women who are not their wives, including the duty immediately to accept and shoulder the responsibilities of parenthood in order to preserve their parental rights with respect to any resulting children. Dr. K.B. and Dr. R.M. contend that the only proof of fatherhood required by the Mississippi statute is sexual intercourse with the pregnant woman during the period of conception.

¶ 22. They further contend that the statute allows for three exceptions to the requirement of immediate action: (1) having no financial means to support the children, (2) having no knowledge of the mother’s pregnancy (as distinguished from knowledge or proof that he is the father of the pregnancy), and (3) being thwarted in his attempts to support the children by the mother or her agents. Dr. K.B. and Dr. R.M. contend that J.G. does not meet the requirements for any of these exceptions.

¶ 23. Finally, they argue that the chancellor’s decision to place the children in J.G.’s care was clearly not in the children’s best interests. They further claim the children were damaged by removing them from the home of their adoptive parents, and that because J.G. plans to utilize an extended family support system to raise the children, and because J.G. has less financial means than the two physicians, the children’s best interest would be served by affirming the adoption. Finally, Dr. K.B. and Dr. R.M. argue that J.G.’s statements that he would be comfortable with K.A.B. raising the children, despite his knowledge of her reputation, evidences a lack of parental insight.

¶ 24. In response to these arguments, J.G. states that he has demonstrated a parental commitment to the children to the degree possible under the extraordinary circumstances of this case. Relying on In re B.N.N. and K.D.F. v. J.L.H., 933 So.2d 971 (Miss.2006), he argues that, because of K.A.B.’s promiscuity (particularly at the time of conception), her threats to file phone harassment charges against him, and his fear of a hostile encounter with her parents, his desire to establish paternity before supporting K.A.B. and the twins was reasonable under the circumstances, as was his minimal contact with the twins after their birth.

¶ 25. He further contends that the Mississippi adoption statute, Mississippi Code Section 93-17-5, specifies that the father to a child born out of wedlock “shall not have a right to object to an adoption unless he has demonstrated within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood.” Miss. Code Ann. § 93-17-5(3) (Rev.2004). He argues that the adoptions were invalid because they were finalized fewer than thirty days after the children’s birth. This, he argues, served to terminate his parental rights prior to the thirty days allowed him by the statute to demonstrate parental commitment.

¶ 26. Finally, J.G. contends that it is in the twins’ best interest to be with them natural father. He states that, under the law, financial means of the prospective parents is not determinative as to what is in a child’s best interest. Furthermore, he contends his testimony at trial demonstrates parental commitment and, like many single parents, he will utilize an extended family support network to help care for the children. J.G. argues that “there is no measure of the importance of children to know, be raised by, and share a close bond with them natural parents and them immediate and extended relatives.” He points out that the twins have been under his care for approximately one year, that they are doing well and they have bonded with him and his family, and that disruption of them family life would cause the twins great trauma.

¶ 27. Sections 93-17-5 and 93-17-6 of the Mississippi Code provide, in relevant part:

(1) There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before seventy-two (72) hours after the birth of said child: (a) the parents, or parent, if only one (1) parent, though either be under age of twenty-one (21) years....
(3) In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a petition for determination of rights as provided in Section 93-17-6.

Miss.Code Ann. § 93-17-5 (Rev.2004).

(1) Any person who would be a necessary party to an adoption proceeding under this chapter and any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption or who has been determined to be such by any administrative or judicial procedure (the “alleged father”) may file a petition for determination of rights as a preliminary pleading to a petition for adoption in any court which would have jurisdiction and venue of an adoption proceeding. A petition for determination of rights may be filed at any time after the period ending thirty (30) days after the birth of the child....
(3) The sole matter for determination under a petition for determination of rights is whether the alleged father has a right to object to an adoption as set out in Section 93-17-5(3).
(4) Proof of an alleged father’s full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother’s pregnancy or the child’s birth, that he either:
(a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child; or
(b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
(5) If the court determines that the alleged father has not met his full responsibilities of parenthood, it shall enter an order terminating his parental rights and he shall have no right to object to an adoption under Section 93-17-7.

Miss.Code Ann. § 93-17-6 (Rev.2004).

¶ 28. The trial court relied on In re B.N.N., 928 So.2d 197 (Miss.Ct.App.2006), a case in which the mother of the child in question was deceased and the father of the child was a married man who had been having an extramarital affair with the mother. Because of their circumstances, the couple agreed to keep their relationship a secret and agreed to allow the mother’s husband to raise the child as his own. However, upon the mother’s death, the maternal aunt and uncle adopted the child. The father filed a petition to establish paternity and contested the adoption.

¶ 29. The trial court in In re B.N.N. found that the father’s efforts to prove paternity and secure custody of the child sufficiently evidenced his willingness to assume full parental responsibility. Furthermore, the chancellor found that the agreement to keep the relationship secret at the mother’s request excused the father from supporting her during the pregnancy and supporting the child after birth. In fact, the father tried to purchase gifts for the child, which the mother refused. The Court of Appeals found no error in the chancellor’s ruling and affirmed his decision.

¶ 30. The chancellor in the present matter did not abuse her discretion or commit manifest error in relying on this case. The factual circumstances are similar in that the parents were attempting to keep their relationship secret. Furthermore, the father in In re B.N.N. took substantial steps through the legal process to establish paternity and obtain custody of the child. The same can be said of J.G., who presented evidence that, within thirty days of the children’s birth, he was fully committed to parenthood and therefore had standing to object to the adoption pursuant to Section 93-17-5(3).

¶ 31. Furthermore, the chancellor reasoned that, based on the facts and circumstances, J.G. was reasonable in his fear of confrontation with K.A.B.’s parents. He also was reasonable in his limited contact with K.A.B. due to her threats to file harassment charges against him. Accordingly, the chancellor found that J.G. had been thwarted by the mother and her agents from financially supporting and visiting the twins, and that he was willing and able to assume legal and physical care of the children, as provided by Section 93-17-6(4)(b).

¶ 32. Finally, in an Order of Clarification, the trial court stated:

No evidence has been presented which would cause the Court to find [J.G.] unfit, or terminat[e] his parental rights. Therefore, the Court fails to see how [Dr. R.M. and Dr. K.B.] could prevail if the matter is heard as a contested adoption. Thus, the Court foresees the children being awarded to [J.G.] in any event. The longer the exchange of custody is put off, the more difficult it will be for all concerned.

¶ 33. Mississippi Code Section 93-17-7(2) allows for an adoption over the objection of a parent where: the parent has abused the child; the parent has not provided reasonably necessary food, clothing, shelter and treatment for the child; the parent suffers from a medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse or chemical dependency; viewed in its entirety, the parent’s past or present conduct would pose a risk of substantial physical, mental or emotional harm to the child; or the parent’s rights would be terminated under Miss.Code Ann. § 93-15-103. Miss.Code Ann. § 93-17-7-7(2) (Rev.2004).

¶ 34. Section 93-15-103(3) provides, in relevant part, the following as criteria for involuntary termination of parental rights:

(a)A parent has deserted without means of identification or abandoned a child as defined in Section 97-5-1, or
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
(c) A parent has been responsible for a series of abusive incidents concerning one or more children; or....
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child; or....
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment; or
(g) When a parent has been convicted of any of the following offenses against any child:
(i) rape of a child under the provisions of Section 97-3-65,
(ii) sexual battery of a child under the provisions of Section 97-3-95(c),
(iii) touching a child for lustful purposes under the provisions of Section 97-5-23,
(iv) exploitation of a child under the provisions of Section 97-5-31,
(v) felonious abuse or battery of a child under the provisions of Section 97-5-39(2),
(vi) carnal knowledge of a step or adopted child or a child of a coha-bitating partner under the provisions of Section 97-5-41, or
(vii) murder of another child of such parent, voluntary manslaughter of another child of such parent, aided or abetted, attempted, conspired or solicited to commit such murder or voluntary manslaughter, or a felony assault that results in the serious bodily injury to the surviving child or another child of such parent; or
(h) The child has been adjudicated to have been abused or neglected and custody has been transferred from the child’s parent(s) for placement pursuant to Section 43-15-13, and a court of competent jurisdiction has determined that reunification shall not be in the child’s best interest.

Miss.Code Ann. § 93-15-103(3) (Rev.2004).

¶ 35. We are unable to say that the chancellor committed manifest error in her findings, including that Dr. K.B. and Dr. R.M. failed to present facts meeting the statutory requirements for termination of J.G.’s parental rights. Therefore, we must affirm the chancellor’s decision to set aside the adoptions, and return the twins to the custody and care of their natural father.

CONCLUSION

¶ 36. The chancellor did not commit reversible error in setting aside the adoptions and returning custody of the minor twins to their natural father, J.G. The trial court’s ruling is therefore affirmed.

¶ 37. AFFIRMED.

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

      . Because this is an adoption matter, the identities of the parties are being protected.


source: Caselaw Access Project

author: PIERCE, Justice, KITCHENS, Justice, WALLER, Chief Justice,

license: Public Domain

text:
    Keith Duran SANDERS v. STATE of Mississippi.
    No. 2004-KA-00625-SCT.
    Supreme Court of Mississippi.
    May 28, 2009.

      Edmund J. Phillips, Jr., attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   PIERCE, Justice,

for the Court.

¶ 1. Keith Duran Sanders was convicted of murder in the shooting death of Darryl Baxstrum and sentenced to life imprisonment. After due consideration, we find that Sanders was entitled to a competency hearing and reverse the conviction and sentence and remand for a new trial in accordance with this opinion.

FACTS AND PROCEEDINGS

¶ 2. On August 5, 2001, Sanders suffered a gunshot wound to the head. As a result of the shooting, Sanders suffered brain damage and experienced temporary paralysis on the right side of his body. Sanders ultimately regained use of his right leg, but continued to walk with a limp, experienced trouble speaking, and suffered from anxiety, depression, and paranoia. At the time of his release from treatment, Sanders was taking three prescription medications: Zoloft, Nerantin, and Zyprexa. Sanders continued to take these medications until approximately August 2002, when he lost his Medicaid benefits and could not afford the medications.

¶ 3. On April 19, 2003, Sanders shot Daryl Baxstrum. At least two individuals, Parrish Anderson and Trenell Edwards, witnessed the incident. According to both Anderson and Edwards, Sanders approached Baxstrum, pulled a handgun out of his pocket, and began shooting. As Baxstrum ran away, Sanders continued shooting, ultimately emptying his gun before getting into a truck and leaving the scene.

¶ 4. Numerous officers were dispatched to the scene. Officer Charles Swain, the first officer to arrive, found Baxstrum unresponsive. Officer Barry Truhett found seven .45-caliber shell casings, which were recovered by another officer and later turned over to Richard Sistrunk, Chief Investigator for the City of Philadelphia Police Department.

¶ 5. A short time after the incident, Officer Sistrunk received a call from the dispatcher advising him that Sanders, along with his mother, was at the jail turning himself over to authorities. As Officer Sistrunk was getting out of his car at the jail, Sanders, who was still outside the jail, stated “I shot him.” Officer Sistrunk advised Sanders not to say anything else until he had advised him of his rights. When he had finished advising Sanders of his rights, Officer Sistrunk asked him if he understood, and Sanders responded that he did understand them. As they walked inside the jail, Sanders made another comment-“I have been shot before. I wasn’t going to let Darryl shoot me first.”

¶ 6. Baxstrum died as a result of the shooting, and Sanders was indicted for the murder in violation of Mississippi Code Section 97 — 3—19(1)(a). Sanders pleaded not guilty.

¶ 7. On July 3, 2003, Sanders filed a motion for psychiatric evaluation pursuant to Rule 9.06 of the Uniform Rules of Circuit and County Court Practice (URCCC), claiming that he was “of insufficient soundness of mind” such that he was “not capable of making a rational defense.” Attached to and in support of this motion was the affidavit of Sanders’s attorney, Robert Brooks. The motion further stated that Sanders “has exhibited self-destructive behavior, toward himself and others, subsequent to having been shot in the head,” “has been treated with numerous psychotropic drugs,” and “has been previously committed to a psychiatric ward.”

¶ 8. On July 9, 2003, the trial judge granted Sanders’s motion for psychiatric evaluation. The judge’s order instructed Dr. Mark C. Webb, a qualified psychiatrist, to examine Sanders “to determine his present ability to stand trial and assist his attorney in his defense; and further examine him to determine his ability to know the difference between right and wrong and to understand the nature and quality of his actions at the time of the alleged offense.” Upon completion of the examination, Dr. Webb was to make a written report of his findings and provide copies to the trial judge, the district attorney, the circuit clerk, and Sanders’s attorney.

¶ 9. A trial was held on November 10-11, 2003. On the first day of trial, Sanders filed a notice that he would rely on the defense of insanity at the time of the alleged crime. On November 11, 2003, following a juiy trial, Sanders was found guilty of murder and sentenced to life imprisonment.

¶ 10. Sanders’s post-trial motion for a new trial or other relief was denied by the trial court. Sanders’s petition for appeal, in forma pauperis, was granted, as was Sanders’s motion to file an out-of-time appeal. Sanders now appeals to this Court.

DISCUSSION

¶ 11. Sanders raises three issues on appeal: (1) whether he received effective assistance of counsel; (2) whether the trial court erred in failing to conduct a competency hearing; and (3) whether the trial court erred in refusing jury instruction D-8. This Court considers Sanders’s second issue, the competency hearing, to be dis-positive in this case. Since we reverse and remand for a new trial based on the competency issue, this Court need not address the other two issues on appeal.

Whether the Trial Court Erred in Failing to Conduct a Competency Hearing.

¶ 12. Sanders asserts that he should have been provided an on-the-record competency hearing pursuant to Rule 9.06.

¶ 13. This Court has stated:

The United States Supreme Court defines the standard for competency to stand trial as being “whether [a defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States., 362 U.S. 402, 80 S.Ct. 788, 788-89, 4 L.Ed.2d 824, 825 (1960) (per cu-riam).

Hearn v. State, 3 So.3d 722, 728 (Miss.2008). In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the United States Supreme Court held that when the evidence raises a sufficient doubt as to a defendant’s mental ability to stand trial, that defendant is deprived of due process of law when the trial court does not, on its own, conduct a separate competency hearing. In other words, “trial courts are obligated to conduct a competency hearing, either on the defendant’s motion or sua sponte, if there is sufficient doubt about a defendant’s competence.” House v. State, 754 So.2d 1147, 1151 (Miss.1999) (emphasis added) (citing Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975); Pate, 383 U.S. 375, 86 S.Ct. 836).

¶ 14. In Pate, Robinson was convicted of murder and sentenced to life in prison. Pate, 383 U.S. at 376, 86 S.Ct. 836. At trial, Robinson’s attorney had argued that his client was insane and that he was mentally incompetent to stand trial. Id. Although Robinson’s attorney did not request a competency hearing, the United States Supreme Court reversed his conviction, finding that he was constitutionally entitled to such a hearing. Id. at 376-77, 86 S.Ct. 836. The Supreme Court explicitly rejected the State’s argument that the defendant had waived the defense of his competence to stand trial by failing to ask for a hearing on the issue. Id. at 384, 86 S.Ct. 836. The Supreme Court unambiguously stated that “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.” Id.

¶ 15. In Mississippi, when a defendant’s present mental competency is in question, Rule 9.06 applies and states in pertinent part:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

URCCC 9.06 (emphasis added).

¶ 16. Rule 9.06 requires an on-the-record hearing to determine competency once the court has reasonable ground to believe that the defendant is incompetent. The rule clearly uses the directive “shall” and not the permissive “may” language. The rule requires that the trial court first, “shall conduct a hearing to determine if the defendant is competent” and, second, “shall make the finding a matter of record.” URCCC 9.06. In the face of this plain language, it is evident that it would be error not to hold a competency hearing once a trial court orders a psychiatric evaluation to determine competency to stand trial.

¶ 17. In the instant case, Sanders moved for a psychiatric examination, and the trial court granted the motion and ordered the report to be provided to the defense, the State, and the trial court. Sanders was examined by Dr, Webb, a psychiatrist, who prepared a written report which was filed with the court on September 23, 2003, according to the docket. Thereafter, the record does not reflects that an on-the-record hearing regarding Sanders’s competency was ever held by the trial court. Further, the record does not contain an explicit finding by the trial court that Sanders was competent to stand trial for murder.

¶ 18. By finding that Sanders’s motion for psychiatric examination was well taken and granting it, the trial court necessarily determined that some, if not all, of the assertions in Sanders’s motion were sufficient to order a psychiatric examination of Sanders. In the motion, counsel for Sanders asserted that Sanders “is at this time of insufficient soundness of mind, and because thereof not capable of making a rational defense.” The motion also asserted that Sanders “has exhibited self destructive behavior, toward himself and others, subsequent to having been shot in the head. The Defendant has been treated with numerous psychotropic drugs. Further he has been previously committed to a psychiatric ward.” The motion was accompanied by an affidavit asserting that trial counsel believed Sanders “is of insufficient soundness of mind to make a rational defense.”

¶ 19. This Court’s recent decision in Heam addressed the issue of competency and Rule 9.06. Heam, 3 So.3d at 728-32. There this Court found that “the trial court failed to comply in the strictest technical sense with Rule 9.06 which mandates that a competency hearing be conducted following a court-ordered mental examination.” Id. at 730 (citing Rule 9.06). This Court, however, determined that strict compliance with Rule 9.06 was not required in order for Hearn to be heard regarding claims of mental incompeteney. Id.

¶ 20. While instructive, Heam is distinguishable from our case today. In Heam, a court-appointed psychiatrist “testified at trial as to Hearn’s competency and was subjected to cross-examination.” Heam, 3 So.3d at 730. Specifically, during trial testimony, one of the examining physicians testified that he and two other medical experts “unanimously concluded that Hearn was competent to stand trial.” Id. at 729. Since “Hearn was afforded the opportunity to present competing evidence” this Court determined that the purpose of Rule 9.06 was satisfied by this Court. Id. at 730.

¶ 21. Here, Dr. Webb testified regarding Sanders’s sanity at the time of the offense. However, competency to stand tiial is an entirely different issue from an insanity defense because the latter concerns the defendant’s present mental capacity while the former relates to a past mental state. Martin v. State, 871 So.2d 693, 697-98 (Miss.2004).

¶ 22. The record reveals that Dr. Webb knew the parameters of what was required by the court-ordered psychiatric evaluation. At trial, the State questioned Dr. Webb, as follows:

Q. As it applies to this particular case, what were you asked to do?
A. I was asked to evaluate Mr. Sanders, which I did, and then to along in the course of my evaluation find if there is an illness or not, and also to ask or ansiver two other questions about his ability to stand trial, can he cooperate with his attorney, and then what they call the McNaghten Rule, looking to see if he knew the difference between right and wrong, and knew the nature and quality of his actions at the time of the incident.

(Emphasis added). Based on his description of the purpose of Sanders’s evaluation, Dr. Webb knew that a component of the evaluation was to give his opinion on whether Sanders was competent to stand trial.

¶23. Further, Dr. Webb was questioned three times on direct examination and one time on rebuttal concerning Sanders’s mental state. However, the testimony elicited gave an opinion as to Sanders’s mental state at the time of the murder, it did not address Sanders’s competence to stand trial. The record contains the following excerpts on direct examination:

Q. Now, based upon that evaluation on September the 8th, did you reach an opinion as to Mr. Sanders’ mental state as the time he is said to have committed the act that resulted in the death of Mr. Baxstrum?
A. He was very evasive in talking about what happened, so I really couldn’t gather what was going on at the time, but in my evaluation of him at my visit, he knew the nature and quality of his actions, knew the difference between right and wrong, and was not criminally insane.
Now, you have been able to sit out in the audience during the course of the trial here today; have you not? <©
I have. <!
Heard the testimony of witnesses who described how this happened? Cf
I have. <¡
Has that helped you, you know, further your opinion about Mr. Sanders’ mental state at the time surrounding the shooting which resulted in the death of Mr. Bax-strum? &
It has. It’s greatly cleared it up, and I felt agreed with my impression that I saw in September, which is that Mr. Sanders was functioning normally. The investigator said he was acting normally, just as he had known him for years. That night he was at a club doing something. We heard from one person, Tren- <! nell, who said he was talking to Mr. Sanders prior to the shooting, and everything appeared normal. This was not a crazy person wandering around town or something like that. This was a person just like you and me. He was going through normal actions, purposeful actions we will call it, going through his life, and these witnesses have all described that, have talked about he was acting normally. Nobody saw any abnormal behavior.
* * *
Q. Finally, Dr. Webb, based upon your evaluation on September the 8th and the things you have learned today about the case and watching the testimony, can you give us an opinion as to the Defendant’s mental state at the time this act was committed?
A. That he ivas not criminally insane. He knew the nature and quality of his actions at the time and also knew the difference between right and wrong at the time of the incident.

(Emphasis added).

¶ 24. On rebuttal, the State questioned Dr. Webb as follows:

Q. Dr. Webb, you testified yesterday in the case?
A. Sure did.
Q. And yesterday you gave the jury your opinion at the time that the Defendant shot and killed Dan-yl Baxstrum, it was your opinion that he knew the difference between right and wrong.
A. He did. That is correct.
Q. And also understood the nature and quality of his acts.
A. That is correct.

(Emphasis added).

¶ 25. The record excerpts reveal that Dr. Webb’s testimony concerned Sanders’s state of mind at the time of the April 19, 2003, shooting. While this information is relevant, it did not answer the question of whether Sanders was competent to stand trial on November 11-12, 2003. The record lacks any testimony that relates to Sanders’s competency to stand trial. The docket indicates that Dr. Webb did file a report with the tidal court. However, the report was not entered into evidence and was not part of the record on appeal. Therefore, this Court is unable to review the report and Dr. Webb’s opinion, if any, as to Sanders’s competency to stand trial. One may argue or speculate that the appellate record before us today was sufficient to assume that Sanders was competent to stand trial. However, we reiterate the fact that the appellate record before us contains no evidence that Sanders was found to be competent to stand trial. At a minimum, there was no definitive testimony or report that determined Sanders competent to stand trial. Thus, we are bound by the record before us. Without any evidence concerning Sanders’s competency to stand trial, to hold that testimony regarding sanity at the time of the offense is sufficient to demonstrate competency to stand trial would disregard and blur the well-established distinction between the two legal concepts. Accordingly, this Court reverses and remands for a new trial.

CONCLUSION

¶ 26. For the above reasons, we reverse Sanders’s conviction and sentence, and we remand this case for a new trial consistent •with this opinion.

¶ 27. REVERSED AND REMANDED.

CARLSON, P.J., DICKINSON AND LAMAR, JJ., CONCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, J. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH AND CHANDLER, JJ. GRAVES, P.J, NOT PARTICIPATING.

KITCHENS, Justice,

Concurring in Result Only.

¶ 28. While I agree that Sanders was entitled to a competency hearing, I respectfully disagree with this Court’s recent holding in Hearn v. State, 3 So.3d 722 (Miss.2008), that a defendant’s mental competency to stand trial may be decided during the trial on the merits when the trial court, before trial, had reasonable ground to believe the accused lacked the requisite mental competence to go to trial.

¶ 29. Over four decades ago, the United States Supreme Court held in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), that when the evidence raises sufficient doubt as to a defendant’s mental ability to stand trial, that defendant is deprived of due process of law when the trial court does not conduct a separate competency hearing. This rule is no less viable today, and this Court has attempted to safeguard this right in the form of Rule 9.06 of the Uniform Rules of Circuit and County Court Practice. Rule 9.06 sets forth a clear procedure to be followed when a defendant’s present mental competency is in question:

If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.
After the examination the court shall conduct a hearing to determine if the defendant is competent to stand trial. After hearing all the evidence, the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial. If the court finds that the defendant is competent to stand trial, then the court shall make the finding a matter of record and the case will then proceed to trial.

(Emphasis added.)

¶ 30. This concept is hardly new. Long before Pate was decided, this Court recognized the need for a separate pretrial hearing on the issue of competency. In Williams v. State, 205 Miss. 515, 524-25, 39 So.2d 3, 4 (1949), this Court held

The trial of a defendant, when his mind is so clouded that he cannot remember and intelligently relate what occurred at the time of the commission of the alleged offense, is a denial of due process and contrary to public policy, and when it appears to the trial court that there is a probability that defendant is incapable of making a rational defense, the trial should not proceed until defendant’s mental condition has been investigated and it appears he is sufficiently rational to make defense. We urge upon the trial courts to observe this constitutional right of defendants, with meticulous care, and submit to the jury, preliminarily, the issue of the defendant’s sanity in all cases where there is a probability that defendant is incapable of making a rational defense.

(Emphasis added.) (Internal citations omitted.) See also Jaquith v. Beckwith, 248 Miss. 491, 500, 157 So.2d 403, 407 (1963) (“Assuming a properly authorized psychiatric examination has been made under the statute, the court and the jury may then consider the doctors’ findings in determining, as a question prior to trial on the merits, the issue of present insanity.”) (emphasis added) (citing Robinson v. State, 223 Miss. 70, 81, 77 So.2d 265 (1955)). As indicated in Jaquith v. Beckwith, competency to stand trial, or the lack thereof, was determined by juries, in separate competency trials, prior to our providing by rule that such determinations be made by trial judges.

¶ 31. In Hearn v. State, 3 So.3d 722, this Court abandoned our longstanding practice that mental competency be decided in advance of trial on the merits. Instead, the Court found that the trial court’s finding of competency to stand trial was proper when evidence on this subject was elicited during the trial. Had I been a member of this Court, I would have disagreed and dissented. The procedures of Rule 9.06 are in place to protect the due process rights of defendants whose competency to stand trial is in doubt. They are not technical requirements that may be sidestepped. By requiring a pretrial evi-dentiary hearing on the issue of competency, outside the presence of the jury, the accused is given a fair opportunity to be heard that is not otherwise available if the issue is presented during trial, as was approved in Hearn.

¶ 32. For example, the defendant’s own testimony may be relevant, perhaps indispensable, to the question of whether he is competent to stand trial. In a separate, pretrial hearing devoted solely to the issue of competency, the defense attorney could call his or her client as a witness without dread of cross-examination on issues of guilt or innocence. However, if the issue of competency is tried during the a jury trial on the merits, the defendant would be less likely to take the stand for various reasons, including a reticence about being subjected to cross-examination. In such case, a chilling effect at best, and an outright denial at worst, would be placed upon the defendant’s opportunity of personally presenting testimony on the issue of his own competency. Such a result offends basic tenets of due process.

¶ 33. In addition, evidence that would be relevant to an accused’s competency to stand trial could be highly prejudicial if presented to a jury assigned the task of determining guilt or innocence. It is not at all unlikely that if a defendant lacks the mental competency to stand trial and assist his counsel in presenting a rational defense, his mental impairment will have caused him to have engaged in bizarre, socially unacceptable, and even criminal conduct. For example, a mentally incompetent person might enter a retail store, see something he likes and place it in his pocket without understanding the necessity of paying for the item. For a sane person, such conduct would constitute the crime of shoplifting. Though relevant and probative of mental incompetency, such evidence could be quite harmful to a defendant if adduced before a jury charged with judging whether he or she was guilty of the charge being tried. This is one of the reasons that a separate competency hearing mandated by URGCC 9.06 is the wise and fair way to proceed, and is consistent with state and federal due process requirements.

¶ 34. Trying the issue of competency before the trial jury is also problematic because competency to stand trial is decided by the trial judge, under the Mississippi procedure now prescribed by Rule 9.06, while issues of guilt or innocence are, in most cases, decided by a jury. Rule 9.06 provides that “the court shall weigh the evidence and make a determination of whether the defendant is competent to stand trial.” There is simply no need to expose the trial jury to evidence of a defendant’s competency to stand trial and risk confusing the issues as well as prejudicing the defendant when our rules provide a just and rational procedure for resolving such matters.

¶ 35. It is readily foreseeable that the most knowledgeable witness on the question of whether an accused person is mentally competent to confer with his or her attorney and meaningfully assist in asserting a rational defense could be the defense attorney. This attorney’s testimony could be easily adduced during a separate competency hearing, but not during the trial on the merits, with the jury present. By logical deduction, Hearn seems to contemplate that it could.

¶ 36. Of course, Rule 9.06 does make provision for a competency hearing during trial, should the need arise. Clearly, though, such a proceeding should be conducted outside the presence of the jury.

¶ 37. Because I would explicitly overrule Hearn, and the majority, though reaching the correct result, stops short of doing so, I respectfully concur in result only.

DICKINSON, J., JOINS THIS OPINION.

WALLER, Chief Justice,

Dissenting.

¶ 38. Because I find the assignment of error was not properly preserved for appeal and that Sanders has advanced nothing to support an inference of incompetence, I respectfully dissent.

¶ 39. The trial court granted a psychiatric evaluation on motion of Sanders’s counsel pursuant to Rule 9.06 of the Uniform Rules of Circuit and County Court Practice. The exam was performed and a report was filed with the clerk’s office. According to the docket, copies were provided to the trial court and counsel for Sanders and the District attorney. The report was never offered into evidence or even marked for identification and its contents are unknown to this Court. The case proceeded to trial with no one requesting the required hearing. Sanders himself took the stand and was subject to cross-examination on his insanity defense. Still, no motion or request to set a hearing date for a competency hearing.

¶ 40. The affirmative duty is upon the party seeking action by the court upon any motion or pleading to pursue that relief to a hearing and decision:

Rule 2.04. Duties of Movant It is the duty of the movant, when a motion or other pleading is filed, including motions for a new trial, to pursue said motion to hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision before trial is deemed an abandonment of that motion; however, said motion may be heard after the commencement of trial in the discretion of the court.

See, e.g., for non-binding persuasive discussion of movant’s obligation to pursue relief, Potts v. State, 755 So.2d 521, 524 (Miss.Ct.App.1999).

¶41. Sanders initiated matters by requesting a psychiatric examination but did not fulfill the remaining affirmative obligations by pursuing the matter through hearing and conclusion. Rather, he raises the issue of a competency hearing for the first time on appeal. We have consistently held that issues raised for the first time on appeal will not be addressed:

Under Mississippi law, if an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for new trial. Miss.Code Ann. § 9-13-31; Jackson v. State, 423 So.2d 129, 131-32 (Miss.1982) citing Colson v. Sims, 220 So.2d 345, 346 n. 1 (Miss.1969) ... The rationale for this rule is based on the policy of giving the trial judge, prior to appellate review, the opportunity to consider the alleged error.

Ross v. State, 603 So.2d 857, 860-61 (Miss.1992). The issue of whether an error occurred in the trial court in failing to hold a competency hearing has not been preserved for appellate review.

¶ 42. Additionally, I respectfully submit the majority’s reliance upon Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) is not apropos of the case at bar. In Pate, the defendant, Robinson, was denied any psychiatric examination to determine either his competency to stand trial or his sanity at the time he committed murder. At the time of his trial and conviction, Illinois had a statute which required the State to conduct a sanity hearing if there existed a “bona fide doubt” as to the defendant’s mental status. Id. at 385, 86 S.Ct. 836. Here, Sanders was not denied access to professional evaluation. Sanders got his requested evaluation and left the matter there. Under these facts, Pate does not apply.

¶ 43. Similarly, I do not find House v. State, 754 So.2d 1147 (Miss.1999), to be on point. The decision in House occurred before the current amendment to Rule 9.06. In the wake of Pate and Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), this Court recognized the necessity to impose an obligation upon trial courts to hold such hearings “where there is sufficient doubt about a defen- daut’s competence.” House, 754 So.2d at 1151. Sufficient doubt in the court’s mind was the cornerstone of the rule we then created. In the absence of such doubt, the obligation to sua sponte order a competency hearing simply does not arise. There is nothing in the record to support a finding that Sanders was incompetent, not even his own assertion. On these facts, I find no obligation for the trial court to have ordered a competency hearing.

¶ 44. For these reasons, I respectfully dissent.

RANDOLPH AND CHANDLER, JJ., JOIN THIS OPINION.

      . Though identified in the transcript as "Ner-antin,” no such medication exists. See Physician's Desk Reference (62nd ed.2008). Based on the uses described by Dr. Mark C. Webb in his testimony, the more probable identification of the medication is "Neurontin," a well-known medication commonly used for the purposes described. Id. at 2462-64.

      . Baxstrum had an affair with Sanders’s wife, Rhoda Sanders, and this affair led to the birth of a child. At the time of the shooting, Sanders had separated from his wife and had moved in with his mother.

      . Dr. Stephen Hayne, who performed the autopsy on Baxstrum, concluded that Baxstrum suffered three gunshot wounds, only one of which was lethal. According to Dr. Hayne, the shot that killed Baxstrum struck the left buttock and went through the left femoral artery.

      . "(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cascs: (a) When done with deliberate design to effect the death of the person killed, or of any human being....” Miss.Code Ann. § 97-3 — 19(l)(a) (Rev.2004).

      .The order directing Sanders to undergo a psychiatric examination lists the District Attorney as the moving party. This is apparently a scrivener’s error as the record clearly shows the motion seeking the mental evaluation was signed and filed by counsel for Sanders, the defendant, and no issue is made of this on appeal.

      . Dr. Webb testified at trial.

      . The dissent correctly notes that House was a pre-Rule 9.06 case. Rule 9.06 was adopted effective May 1, 1995. See Rule 9.06. House pled guilty to murder in 1989. House, 754 So.2d at 1149. However, the facts in House show that, before accepting his guilty plea, the trial court ordered a medical examination to determine his competence and competence to stand trial. Id. at 1151. Dr. Margie Lancaster stated in her report, in part, that “In our opinion, [House] has a rational as well as factual understanding of the charges against him and is capable of assisting his attorney in preparing a defense.” Id. Furthermore, the trial court thoroughly questioned House concerning whether he understood his guilty plea. Id. at 1152. The point being, that in House, unlike here, at a minimum, there was a medical report in the record on appeal concerning House’s competency.

      . The Neshoba County Circuit Court docket pages, contained in the appellate court papers, indicate that a "medical report filed by Dr. Mark Webb (marked private & confidential)” was entered on September 23, 2003. While the docket indicates receipt of the report, there is nothing in the record to demonstrate that "copies” of the report were provided to the trial court, defense counsel, or the district attorney's office, as die dissent asserts.

      . Dr. Webb's report was never transmitted to this Court as part of the appellate record. Thus, this Court did not have the benefit of the report for our appellate review.

      . I note that unlike Hearn, in Sanders's case, there was never an on-the-record finding by the trial court that the defendant was mentally competent to stand trial, as Rule 9.06 mandates.


author: CARLTON, J-,

text:
    Wade David LAFONT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02038-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2008.
    Rehearing Denied Jan. 27, 2009.
    Certiorari Denied May 28, 2009.
    Randall Harris, Leslie S. Lee, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J-,

for the Court.

¶ 1. Wade David Lafont was convicted by a jury in the Circuit Court of Rankin County of the crime of armed robbery in violation of Mississippi Code Annotated section 97-3-79 (Rev.2006). He was sentenced to serve a term of forty-five years in the custody of the Mississippi Department of Corrections, with thirty years to serve, followed by five years of post-release supervision. Aggrieved, Lafont appeals and argues that the trial court erred in denying his motion for a new trial because the verdict was against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On February 18, 2006, Kelly Pitts went to the Dollar Tree in Richland with her one-year-old son, her six-year-old son, and one of the six-year-old’s friends. Pitts purchased some toys for the children, and they exited the store at approximately 8:00 p.m. As Pitts and the children walked across the parking lot, she noticed a man approaching, who was later identified as Lafont. The six-year-old and his friend got in the car; however, before Pitts could get herself and her one-year-old in the car, Lafont rushed toward Pitts and cornered her in her car door. He had his hand in his pocket and demanded that Pitts give him her purse or he would kill her and the children. Pitts begged Lafont not to do this in front of her children, but Lafont then pulled a hunting knife from his pocket and attempted to stab Pitts while she was holding her one-year-old child. According to Pitts, Lafont lunged at her with the knife three or four times and continued to threaten her.

¶ 3. In the meantime, several Dollar Tree patrons exited the store and looked in Pitts’s direction, but never stopped. Lafont knelt down behind Pitts’s car and ordered Pitts to keep quiet. Pitts then told Lafont that she would give him twenty dollars to go away. She searched through her purse, found three dollars, and threw it at Lafont. According to Pitts, Lafont took the money, put the knife away, and walked to an adjacent parking lot, where he climbed into a silver Ford Focus and drove away. Pitts then returned to the store, and a store clerk called the police.

¶ 4. Officer John King with the Richland Police Department responded to the scene. Upon his arrival, Pitts told him that a white male with sandy brown hair and a beard robbed her in the parking lot. Pitts further described Lafont as wearing a beanie cap, gray sweat pants, and a hooded sweat shirt with a Mississippi State logo. Pitts also described Lafont’s vehicle. A silver Ford Focus was later found less than two miles from the store; the vehicle was registered to Andre Beaudreaux and Melissa Lafont, the defendant’s sister. Pitts identified Lafont as her assailant from a photo lineup, which was conducted several days after the incident.

¶ 5. At trial, Officer King testified that from his initial conversation with Pitts, he was under the impression that Lafont did not take any money from her. However, he stated that he spoke with Pitts at a later date and learned that Lafont had taken three dollars from her. The jury returned a verdict of guilty. Lafont filed a motion for a new trial, which the trial court denied. Lafont now appeals to this Court.

DISCUSSION

Whether the trial court erred in denying Lafont’s motion for a new trial.

¶ 6. We review the trial court’s denial of a motion for a new trial under the abuse of discretion standard of review. Dunn v. State, 891 So.2d 822, 826(24) (Miss.2005) (citing Sheffield v. State, 749 So.2d 123, 127(16) (Miss.1999)). “Amotion for new trial challenges the weight of the evidence.” Id. We accept as true the evidence supporting the verdict. Montana v. State, 822 So.2d 954, 967(61) (Miss.2002) (citing Dudley v. State, 719 So.2d 180, 182(8) (Miss.1998)). On appeal, “We mil only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

¶ 7. Lafont argues that the verdict was against the overwhelming weight of the evidence. He points to the testimony of Officer King and claims that there was evidence that he did not take any money from Pitts. Lafont also claims that no physical or scientific evidence was presented to show that Lafont was present at the scene of the robbery. In support of this contention, he asserts that: (1) the clothes Pitts described Lafont as wearing at the time were not recovered; (2) the knife used during the incident was not recovered; and (3) no fingerprints were taken from the Silver Ford Focus.

¶ 8. Questions regarding the credibility of a victim’s identification are questions to be resolved by the jury. Brorni v. State, 724 So.2d 480, 481(8) (Miss.Ct.App. 1998) (citing Kimbrough v. State, 379 So.2d 934, 936 (Miss.1980)). Although Pitts testified that it was dark outside at the time of the robbery, she also stated that the Dollar Tree parking lot was “very well lit.” Also Pitts had a lengthy eneoun-ter in close quarters with her assailant, and she positively identified Lafont from a photo lineup within a week of the incident, and again at trial. Additionally, a silver Ford Focus registered to Lafont’s sister was located near the scene of the incident. Viewing the evidence in the light most favorable to the verdict, we do not find that allowing the jury’s verdict to stand would sanction an unconscionable injustice.

¶ 9. We likewise reject Lafont’s contention that a jury finding that he took money from Pitts is against the overwhelming evidence. While Officer King did state that after he interviewed Pitts at the scene he believed that no money had been taken, he went on to testify that he learned from later discussions with Pitts that Lafont had taken three dollars from her during the incident. This, coupled with Pitts’s account of the incident, leads us to conclude that a finding that Lafont took the three dollars from Pitts was not against the overwhelming weight of the evidence. Moreover, “Mississippi Code Annotated [sjection 97-3-79 punishes attempted armed robbery the same as armed robbery.” Calhoun v. State, 881 So.2d 308, 311(12) (Miss.Ct.App.2004) (citing Miss. Code Ann. § 9T-3-79). Thus, Lafont’s conviction would have been proper even if the State were unable to prove that he actually took money from Pitts. See id. (“[T]he crime of armed robbery is complete at the attempt”).

¶ 10. Taking the evidence that supports the jury’s verdict as true, we find that allowing the verdict to stand would not sanction an unconscionable injustice. We find that the trial court did not abuse its discretion in denying Lafont’s motion for a new trial. This issue is without merit.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THIRTY YEARS TO SERVE, FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . Pitts testified that "[she went to the Dollar Tree] between 7:30 and 8:45. It was — it was dark outside.” However, she went on to describe the lighting conditions in the parking lot as follows:
      They were — they were fine. There was— there was light not only from the streetlights, but from the parking lot lights, from the lights inside the Dollar Tree, because the parking lot where I was at was right in front of the Dollar Tree. I mean, you know, it was very lit up, very well lit.

      . Mississippi Code Annotated section 97-3-79 provides:
      Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiaiy for any term not less than three (3) years.
      Miss.Code Ann. § 97-3-79 (emphasis added).


author: BARNES, J.,

text:
    Michael S. HENRY, James N. Henry, William Henry, Larry H. Henry and David N. Henry, Appellants, v. John S. MOORE and Karen J. Moore, Appellees.
    No. 2007-CA-00402-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2008.
    Rehearing Denied Feb. 3, 2009.
    Certiorari Denied May 28, 2009.

      T. Jackson Lyons, Jackson, attorney for appellants.
    Dolton W. McAlpin, Starkville, attorney for appellees.
    Before MYERS, P.J., CHANDLER and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. In this appeal we are called upon to determine if the chancellor was correct when he interpreted the language in a lease/option to purchase contract in favor of the lessees John Stuart Moore and Karen J. Moore (collectively, the Moores). The appellants, Michael S. Henry, James N. Henry, William Henry, Larry H. Henry, and David N. Henry (collectively, the Henrys), are the nephews of the lessor, George F. Henry, Jr. (George). The Hen-rys argue that ambiguous language in the lease/purchase contract regarding maintenance of certain structures on the property should be constructed in their favor, thus voiding the agreement with the Moores and allowing a quitclaim deed to the property to them from their uncle to become effective. The Moores filed suit for specific performance of the lease/purchase contract and to cancel the quitclaim deed to the Henrys as a cloud upon the Moores’ title. The chancellor interpreted the contract in favor of the Moores. He ordered specific performance requiring title to the property to be conveyed to the Moores in exchange for their payment of the $15,000 contract purchase price to the Henrys. From this decision, the Henrys appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. John Moore, a Starkville attorney, sought to buy some land in the Bradley community in the western part of Oktib-beha County. After researching the land records, he found that George Henry of Cookeville, Tennessee was the owner of an eighty-acre plot of land in the area where Moore wanted to buy. In January 1989, Moore wrote George about a possible purchaser of George’s Mississippi property. George responded that Moore had not supplied him with the name of the potential purchaser and that he did not want to sell the whole tree farm, but only a strip off the west side, “not even half the acreage.” George addressed the correspondence to “Cousin Stuart” as the two were distantly related. In October 1989, Moore decided he was interested in the land and called George about it. As it turned out, George was also a lawyer, but of advanced years. Moore testified that the two agreed to a ten-year lease of the land with an option to buy the land for $15,000 at the end of the term. The agreed lease price was $4 an acre for a total of $320 per year. Moore testified that $4 an acre was the “going rate” at the time for a hunting lease. The two also agreed that Moore would pay George’s property tax on the leased property each year. Moore said that George told him that he (George) would prepare a proposal on “what he would be willing to do on the rest of the terms and send it to me, which he did.” Moore and his wife signed the document changing only Moore’s name, which George had typed as “John Paul Moore” who was Moore’s father. In its place he wrote his name “John Stuart Moore” and returned it to George for his and his wife’s signatures. Moore also sent the first payment of $320 with the document. George returned the executed document to Moore who recorded it on November 15, 1990, in the Oktibbeha County Chancery Clerk’s office. Moore testified that prior to the agreement he had never been on the land.

¶ 3. The agreement, styled “LAND LEASE FOR HUNTING, FISHING & RENTALS ALONG WITH AN OPTION TO PURCHASE,” read as follows:

For and in consideration of the price of Four Dollars per acre, a total of 80 acres totaling $320.00 per year; and the Vendees assuming the responsibility of one (1) log cabin, one (1) law office, and one (1) bam lying on the herein after described land-, we the undersigned Vendors do hereby and by these evidences lease the following described land situation in Bradley, Oktibbeha County, Mississippi to wit:
[A legal description of the 80 acres] to attorney, John Stuart Moore, and wife, Karen J. Moore.
This lease of the land, tenements, and hereditaments of the above described land is restricted as follows:
1. Vendees have full hunting and. fishing rights thereon.
2. Vendees have full use of the natural resources of said land to make improvements thereon to grow and market, or use for their personal benefits any game, fish, or domestic stock. They can sell no timber or trees to the open market.
3. Vendees shall pay advalorem taxes on said land for the duration of the lease.
4. Growing and standing timber and all mineral rights shall remain as the property of the Vendors.
5. John Stuart Moore and wife, Karen J. Moore, are here granted an option to purchase said land via a warranty deed on or after October 1, 1999 at a price of Fifteen thousand and no/100 dollars ($15,000.00). (Tax assessor’s true value of said tract of land was $14, 904.00 on vendor’s tax receipt for 1988 advalorem taxes); and vendors here agree that they will sell said property to no other entity or persons before October 1,1999.
6. This contract shall be [ejnforceable against vendors’ executor or administrator of their respective estates and all rights hereunder extend to the legal heirs of the vendees under the Descent and Distribution Laws of the State of Mississippi, of the United States of America.
This document is made in duplicate, each deemed to be an original.
This the 1st Day of October, 1989.

(Emphasis added.)

¶ 4. The relationship between the Moores and George was uneventful from November 1990 to 1996, with Moore paying his annual rental fee of $320 and the ad valorem taxes on the property. In the summer of 1996, Moore was called by Michael Henry of Greenville, one of George’s nephews, telling Moore that he was handling a timber sale on the land for his uncle. He also told Moore that he and his other brothers, James, William, Larry, and David Henry, wanted to buy Moore’s option on the property or trade Moore some land they owned. Moore did not agree to either offer and testified that Michael told him “they were going to get that land, and if I didn’t do one or the other, I wasn’t going to get anything.” Michael’s brother, David, testified that he was on the other line during this telephone call and that Michael did not make such a statement. After the timber was cut, Moore received a letter from George on June 11, 1997, dealing with another tax matter but which ended by saying that he was still bedridden with a spinal cord injury and had large expenses which the timber sale helped to pay. Moore testified that he responded by letter on June 17, 1997, offering to pay the $15,000 option price early to assist George with his expenses. Three months later, by a letter dated September 30, 1997, George wrote Moore a letter revoking the lease and option. George stated in the letter that the reason for the revocation was, “The lease stated that you assumed the responsibility of one log cabin, one law office, and one barn lying on the described land of the lease.” George related that he had received five photographs of his law office on the property which showed that the door was unlocked and wide open. “The pictures taken inside the law office showed a big hole in the roof and it ha[d] completely collapsed.” George said his law books had been damaged from rain and moisture and his filing cabinet was opened and folders were damp. George said he was unable to tell the condition of the cabin as it was locked. He concluded the letter by stating that he hoped Moore would send him a release from the lease/purchase contract, and if he did not, he would hire a Mississippi attorney to gain a release. Moore did not give a release, and George hired Greenville attorney Ernest Lane III to represent him in the matter.

¶ 5. Moore did not agree to end the agreement and continued to make the monthly payments, which were returned to him by George’s attorney Lane. Moore called George to try to straighten out the problem but talked to his wife who told him that George’s nephew, Michael, was handling the matter. Moore did not try to call Michael. Moore prepared a check for $15,000 to purchase the land, but he testified that he did not try to give it to George because both George and his attorney had told him that “the deal was off.”

¶ 6. On February 2, 2000, George and his wife filed a quitclaim deed with the Okitibbeha County Chancery Clerk, conveying the property to his nephews, James N., William S., Larry H., David M., and Michael S. Henry, as tenants in common.

¶ 7. On May 18, 2000, Moore and his wife filed a complaint against George, his wife, and the five Henry nephews seeking specific performance of the contract he had with George and an order to convey the property to the Moores and to remove as a cloud on his title the quitclaim deed from George to his nephews, as well as alleging tortious interference with the performance of a contract.

¶ 8. Because Moore was a practicing attorney in the Fourteenth Chancery Court District, the three chancellors of that district recused themselves and requested the appointment of a special chancellor pursuant to Mississippi Code Annotated section 9-1-105 (Rev.2002). By order of the Mississippi Supreme Court dated November 13, 2002, attorney Michael Malski of Amo-ry was appointed as the special chancellor to hear the action.

¶ 9. On the day of trial, November 15, 2002, the parties entered into a stipulation which stated that the sole issue to be resolved by the court was the meaning of the language in the contract which states, “For and in consideration of ... and the Vendees assuming the responsibility of one (1) log cabin, one (1) law office, and one (1) barn.... ” The Moores contended that the provision meant that George did not want to be responsible for repairing and maintaining the structures; thus, the fact that the structures were in disrepair was of no effect. The Henrys contended that the provision meant that the Moores were to maintain and repair the structures as part of the agreement with George and that the deterioration of the structures was a material breach that voided the contract.

¶ 10. At the trial, three of the Henry nephews — James, David, and William— testified. Michael, who had been a major actor in the proceedings, was not able to testify due to serious medical problems. Their testimony centered upon the condition of the land, the meaning of the land to the family, and the conditions of the three structures on the property.

¶ 11. David testified that when he visited the property in September 1997, the roof of the law office had caved in and the law books George had promised David’s son were ruined. David took photographs of what he found and gave them to his brothers, who sent them to George. David said that George was very upset by what the pictures showed. David said that over the years, the Henry family would visit the land on Memorial Day and walk to the law office. James testified that he lived near the land between 1989 and 1992 and rode horses on it and would take visitors to see the law office. He said that the condition of the law office in 1992 was very good; by that he meant there was an intact door on the law office which was locked, and the office contained windows. He said he saw no roof or water damage at that time. Both nephews testified that there were family portraits of their ancestors on the walls of the law office. William testified that after he married in May 1995, he took his new wife to the property to show her the “neat place” where he visited as a child, and he said they walked the property and went inside the law office and found it to be in good condition.

¶ 12. Moore called only one witness other than himself, Dr. Terry Lee Ambur-gey, who was a professor at Mississippi State University. Dr. Amburgey was an expert in wood deterioration; he was called to testify about the damage he observed at the property. He visited the property on March 23, 2002, and took photographs of the law office. It was Dr. Amburgey’s opinion that the decay to the building had been ongoing for at least two decades. Moore testified that after the agreement, but prior to receiving the contract from George, he went on the property for the first time in September 1989. Moore testified that the three structures on the property were an old log cabin with a tin roof that had a chain and a lock on it, which he never entered; an old barn with a tin top, which he also said was locked up and did not enter; and the law office. He said the law office was a twelve by twelve or twelve by fourteen one-room structure. Moore said the law office was rotted, and the shingles had some “green stuff’ growing on them. When he looked inside he saw water stains on the ceiling, the books had mildew on them, and the metal file cabinet had rusted. He described the law office as “dilapidated.”

¶ 13. After the one-day hearing, with testimony from five witnesses and the entry of fifteen exhibits, the court issued a memorandum opinion filed on December 16, 2002, determining the meaning of the contract language. The special chancellor ruled that the drafter of the contract, George, was trying to relieve himself of further responsibility for the repairs of the structures without placing any further restriction on the Moores. “In other words, the drafter did not want to be burdened with repair issues concerning the three structures. The drafter’s intent was that the Moores would purchase the property.” The chancellor noted that the drafter, George, was an attorney, and if he had wanted the Moores to maintain the three structures in a desirable condition, it would have been “a simple matter” for George to have included clear language in the agreement to obligate the Moores to do so. “Rather, [George] chose to have the Moores provide for the structures in an abstract manner, thereby relieving himself of further responsibility for the structures.” The court also noted that George used the term “vendees” to designate the Moores in the contract, a term which is used to describe a purchaser of real estate. The special chancellor concluded that his interpretation of the contract was that “the Moores were to have responsibility for the buildings. If they chose to repair them, they could. If they chose not to repair them, they did not have to. George F. Henry no longer had any responsibility with regard to the buildings on the land he intended to sell to the Moores.”

¶ 14. Some questions arose after the entry of the memorandum opinion, and the special chancellor made additional findings. On August 31, 2004, Special Judge Malski entered a final judgment in which he incorporated his earlier finding that the language in the contract meant that George was trying to free himself from any obligation to repair the three structures, and he ordered the Moores to tender a check in the amount of $15,000 to the Henrys. In return, the Henrys were to deliver a quitclaim deed to the property to the Moores. After losing their case, the Hen-rys retained new counsel, who moved for additional findings of fact and conclusions of law. He also moved for a motion to amend or alter the judgment or, in the alternative, for a new trial. Both motions were denied. The Henrys now appeal the August 2004 judgment.

STANDARD OF REVIEW

¶ 15. This Court has a limited standard of review when examining a chancellor’s findings on appeal. McNeil v. Hester, 753 So.2d 1057, 1063(¶21) (Miss. 2000). The findings of a chancellor will not be disturbed on review unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. Id. Therefore, we will not disturb the chancellor’s conclusions when supported by substantial evidence. Murphy v. Murphy, 631 So.2d 812, 815 (Miss.1994). Questions concerning construction of contracts are questions of law. Parkerson v. Smith, 817 So.2d 529, 532(117) (Miss.2002). The standard of review for questions of law is de novo. Id.

ANALYSIS

1. Whether the chancellor erred as a matter of law in ruling the contract was ambiguous.

¶ 16. Contract construction and interpretation requires that the court first consider whether the contract is ambiguous. Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 751(¶ 7) (Miss.2003). If the contract is determined to be ambiguous, the subsequent interpretation of the contract presents a question of fact and is reviewed on appeal under the deferential substantial evidence/manifest error standard. Id. at 752(¶ 8). Alternatively, if the contract is unambiguous, this Court must accept the plain meaning of a contract as the intent of the parties. Fer-rara, v. Walters, 919 So.2d 876, 882(¶ 13) (Miss.2005).

¶ 17. The Mississippi Supreme Court has set out a three-tiered approach to contract interpretation. Royer Homes, 857 So.2d at 752(¶ 10) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351-53 (Miss.1990)). First, the familiar four-corners test is applied where the court examines the language that the parties used in expressing their agreement, looking within the “four corners” of the agreement whenever possible to determine how to interpret it. Id. (citing McKee v. McKee, 568 So.2d 262, 266 (Miss.1990)). We read the contract as a whole in order to give effect to all of its clauses. Id. (citing Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992)). Particular words or phrases should not control, but rather, the entire document should be examined. Pursue Energy, 558 So.2d at 352 (quoting Mounger v. Pittman, 235 Miss. 85, 88, 108 So.2d 565, 567 (1959)). However, the four-corners analysis is only feasible when the contract is clear and unambiguous. McKee, 568 So.2d at 266 (citing Pursue Energy, 558 So.2d at 352).

¶ 18. Second, if the court is unable to clearly determine the parties’ intent, then the court should apply the discretionary canons of contract construction. Roy-er Homes, 857 So.2d at 753(¶ 11) (citing Pursue Energy, 558 So.2d at 352). Foremost among these canons is that when the language of an otherwise enforceable contract is subject to more than one fair reading, the reading applied will be the one most favorable to the non-drafting party. Id. Stated differently, any ambiguities in the contract will be construed against the party who drafted it. Wade v. Selby, 722 So.2d 698, 701(¶ 9) (Miss.1998) (citing Estate of Parker v. Dorchak, 673 So.2d 1379, 1382 (Miss.1996)).

¶ 19. Finally, after applying the above steps, “if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. It is only when the review of a contract reaches this point that prior negotiation, agreements, and conversations might be considered in determining the parties’ intentions in the construction of the contract.” Royer Homes, 857 So.2d at 753(¶ 11) (internal citations omitted).

¶ 20. The Henrys argue that the chancellor erred as a matter of law when he ruled that the phrase in the contract as related to the three structures on the property was ambiguous. They claim that the language “the Vendees assuming the responsibility of’ was unambiguous. The Henrys claim that the phrase “assume the responsibility of’ is commonly understood to mean that one promises to undertake an obligation or task. Therefore, they argue that the Moores breached the contract by failing to assume responsibility for the maintenance of the three structures on the property which resulted in damage to one of the structures—the law office. The Henrys contend this lack of maintenance was “a material repudiation of the contract’s terms” that should void the contract. They also note that the phrase “assuming the responsibility of’ appears in the consideration section of the agreement. Because of this placement, the Henrys conclude that the Moores’ performance of maintenance of the structures is implied.

¶ 21. We find the special chancellor did not err in finding the contractual phrase “assuming the responsibility of’ ambiguous; therefore, it was necessary for the court to determine the intent of the parties outside of the four corners of the document. Throughout their brief, the Henrys infer the “responsibility” stated in the contract is for “maintenance” and “care of’ the property’s structures, when in fact, these words are not present in the contract. The contractual ambiguity arises from the fact that it is unclear from the way the contract is written what the Moores have assumed the responsibility of doing.

¶ 22. Because the contract was found to be ambiguous, the chancellor was also correct in applying the discretionary canons of contract construction. Specifically, the contract may be construed against the drafter, George, who had training as an attorney. We find no error in the special chancellor’s determination that the intent of the phrase “assuming the responsibility of’ meant that George was freeing himself from any obligation to make repairs to the structures. Relatedly, the special chancellor also properly found that the Moores could choose to repair the structures or not, because George had little doubt that the Moores would ultimately purchase the property. The special chancellor notes, and we agree, that one indication of this intent is the fact George, in drafting the contract, chose to refer to the parties as the “vendors/vendees” and not as the “lessors/lessees.” The term “ven-doi'” denotes “a person who transfers property or goods by sale.” Black’s Law Dictionary, 1555 (6th ed.1990) (emphasis added). We find that the foregoing determinations by the chancellor are supported by substantial evidence in the record.

¶ 23. Furthermore, we are not persuaded by the Henrys argument that because the phrase is located near the consideration section of the agreement, this means the drafter intended for the Moores to maintain the property’s structures. Again, the Henrys are inferring that the phrase “assuming the responsibility of’ is for maintenance of the structures, but we find no such language within the contract and no such intent outside of the contract. Re-latedly, the Henrys argue that the special chancellor’s interpretation of the contractual language that Moore could choose to repair the property’s structures or not creates inadequate consideration, as the Moores’ failure to maintain the structures provides neither a benefit to the Henrys or a detriment to the Moores. We disagree, as George would have the benefit of not having to maintain the structures while he owned the property, and the Moores would have the detriment of either having to repair the structures while leasing the property or having dilapidated structures on property they would purchase in the future.

¶ 24. In support of their position that the phrase — “assuming the responsibility of’ — is unambiguous, the Henrys cite to Owen v. Gerity, 422 So.2d 284 (Miss.1982) and Benchmark Health, Care Center, Inc. v. Cain, 912 So.2d 175 (Miss.Ct.App.2005), where they claim similar language has been construed in contractual agreements. We find neither determinative. In Owen, a divorce case, the court found that the term “bills” in the parties’ separation agreement did not include a promissory note executed by the parties because the contract did not specifically state the ap-pellee was responsible for it. Owen, 422 So.2d at 288. We find that Owen is not on point with the instant case because the ambiguity at issue was not with regard to what the parties were “responsible” for generally, but whether the appellee was “responsible” specifically for paying the promissory note, which was not mentioned with the other bills in the agreement. Id. In the instant case, it is ambiguous what the Moores were generally responsible for doing. Additionally, this case supports the Moores’ position that any ambiguity or vagueness should be construed more strictly against the preparer of the document, which in Owen was the appellee. Id.

¶ 25. In Benchmark, this Court held that a contract was unambiguous as it clearly stated that one party would be “responsible for billing for services, [and] collecting payment from third party payors and/or patients.” Benchmark, 912 So.2d at 182(¶ 18). We found that the clear language of the contract stated what the party was “responsible for”; therefore, the lower court was correct in not allowing parol evidence to vary or alter the agreement. Id. Again, this case is not on point. In Benchmark, there was clear and unambiguous language in the contract stating what the party would be “responsible for.” In the instant case, unlike Benchmark, the contract contained no such clear statement of what the Moores were responsible for doing.

¶ 26. We find the special chancellor did not err as a matter of law or fact, respectively, in finding that the contract was ambiguous and that the Moores were not obligated by the language of the contract to maintain the structures on the property.

2. Whether the Moores’ failure to maintain the structures on the property equates to failure to provide consideration and, therefore, a material breach of the contract that justifies the Henrys’ termination of the contract.

¶ 27. The Henrys next argue that if the contract is interpreted to mean the Moores had the responsibility to maintain the structures on the property, the Moores’ failure to maintain the structures amounted to a failure of consideration justifying George’s termination of the lease/purchase contract. Since we hold the special chancellor was correct in finding that the Moores did not have responsibility for maintaining the structures on the property, this issue is moot.

3. Whether the final judgment must be reversed or vacated because it provides a remedy neither party requested.

¶ 28. The Henrys final argument is that the special chancellor granted relief which neither party requested. The ruling of the court was that the Henrys were to execute a quitclaim deed to the Moores for the property, and the Moores were ordered to pay them the $15,000 purchase price for which George had contracted. The Henrys contend that specific performance cannot be enforced against anyone but George and his wife, both of whom are deceased, and since this is a “personal action” against George and his wife that has survived their deaths, the chancellor’s judgment must be vacated or reversed and the case remanded to inquire into their heirship. The Henrys also claim that the chancery court’s order effectively voids the quitclaim deed from George and his wife to the Henrys.

¶ 29. This issue was not raised in the chancery court proceedings; therefore, it cannot be raised on appeal. Failure to raise an issue in a trial court procedurally bars the issue on appeal. Daniels v. Bains, 967 So.2d 77, 81(¶ 13) (Miss.Ct.App. 2007). Procedural bar notwithstanding, this issue is without merit. George and his wife, Geraldine, quitclaimed the property to the Henrys prior to their deaths; therefore, it is questionable under what circumstance any of the other Henry heirs could have an interest in the property. While the deed was voidable by the Moores due to their previously recorded option, there is no indication in the record that the quitclaim deed was void so as to bring the property back into George’s and Geraldine’s estates. See generally John M. Cartwright, Glossary of Real Estate Law 995 (The Lawyers Co-operative Publishing Co. 1972) (distinction between void and voidable instruments). In the event that it is claimed at a later date that the heirs of George and Geraldine have an interest in the property at issue, the Moores may have to enter proceedings to quiet title. However, as between the parties before us, we find the execution of the quitclaim deed between the Henrys and the Moores proper. We find that the special chancellor’s final judgment provides an equitable remedy which the Moores sought. It was supported by substantial evidence and was reasonable in light of the unusual facts and circumstances of the case.

¶ 30. THE JUDGMENT OF THE CHANCERY COURT OF OKTIBBEHA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . At the time of the trial, November 15, 2002, George F. Henry, Jr., was eighty-nine years old, paralyzed from an automobile accident and living in a Tennessee nursing home. His wife, Geraldine P. Henry, died on April 11, 2000. George passed away on November 4, 2004. Both Geraldine and George were removed as defendants/appellants by a supreme court order entered on October 11, 2007, following a motion to dismiss deceased parties filed by the appellants.