author: KITCHENS, Justice,

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION (“USAA”) v. Admiral James LISANBY and Wife, Gladys Lisanby.
    No. 2009-CA-00529-SCT.
    Supreme Court of Mississippi.
    Nov. 18, 2010.

      Janet G. Arnold, Charles G. Copeland, W. Shan Thompson, James Dennis Boone, Ridgeland, attorneys for appellant.

      Don Barrett, David M. McMullan, Jr., attorneys for appellees.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. This case involves an alleged breach of contract and bad-faith denial of a homeowners’ insurance claim following Hurricane Katrina. The jury awarded the plaintiffs more than $900,000 in compensatory damages, but the trial judge directed a verdict in favor of the defendant on the issue of punitive damages. USAA appealed and the Lisanbys cross-appealed. Because the defendant demonstrated an arguable basis for its denial of claims, the trial judge erred in submitting the emotional damages claim to the jury and in awarding attorneys’ fees and litigation expenses to the plaintiffs. Accordingly, the plaintiffs’ cross-appeal regarding punitive damages and attorneys’ fees necessarily must be denied.

Facts

¶ 2. Retired Rear Admiral James Lisan-by and his wife, Gladys Lisanby, owned a two-story home and a cottage in Pascagou-la, Jackson County, Mississippi. Their property was located roughly one hundred feet from the Mississippi Sound. As Hurricane Katrina approached, the Lisanbys fled their home. When they returned a few days later, they found what remained. The bottom floor of their residence was almost completely gone, and the cottage and garage were no longer present. The second floor of their home sustained substantially less damage than the first floor; unlike the furniture that had been on the first floor, the Lisanbys were able to salvage all of the furniture from the second floor.

¶ 3. United Services Automobile Association (USAA) provided homeowners’ insurance for the Lisanbys, with coverage limits of $505,000 for the dwelling, appurtenant structure limits of $50,500, additional coverage for the cottage of $22,000, personal property limits of $378,750, and additional living expense limits of $101,000. The Li-sanbys also had $350,000 in flood insurance coverage and were paid the flood policy limits. However, the insurance carrier maintained that the majority of the damage was caused by storm surge, and thus was excluded; therefore, USAA paid only $46,354.21 pursuant to the homeowners’ policy.

¶4. The Lisanbys filed a complaint in the Jackson County Circuit Court against USAA, alleging breach of contract and bad-faith denial of their claims. They sued for damages for emotional distress, punitive damages, attorneys’ fees, and expenses.

¶ 5. After a ten-day trial, the jury returned a unanimous verdict awarding the Lisanbys a total of $909,641 in compensatory damages. The special verdict apportioned the damages as follows: $478,141 in additional wind damage to the house; $50,500 for wind damage to the garage; $197,000 in additional wind damage to the contents of all three buildings; $12,000 in additional living expenses; nothing in lost rent for the cottage; and $86,000 per plaintiff for emotional distress. The trial judge declined to submit the issue of punitive damages to the jury, but awarded the plaintiffs an additional $302,920.44 in attorneys’ fees and $211,069.47 in litigation expenses.

Issues

¶ 6. USAA raises numerous points of error on appeal, claiming: (1) the physical facts and photographic evidence demonstrate as a matter of law that storm surge caused the majority of the damages, warranting a directed verdict in USAA’s favor, or, in the alternative, requiring a new trial; (2) the evidence does not support an award for emotional distress; (3) the trial court erred in granting the Lisanbys’ motion for attorneys’ fees and expenses; (4) the trial court erred in denying USAA’s motions for a change of venue; (5) the trial court abused its discretion in admitting evidence of replacement costs; (6) the trial judge erred in denying USAA’s motions for mistrial; or, (7) in the alternative, cumulative errors warrant reversal. The Lisanbys cross-appeal, arguing that the trial court erred by failing to allow the jury to consider punitive damages and in capping attorneys’ fees at one-third of the verdict.

Discussion

I. The evidence of wind damage was sufficient to support the verdict, and the verdict was not against the overwhelming weight of the evidence.

¶ 7. USAA argues that the evidence established, as a matter of law, that storm surge, an excluded cause, caused the majority of the damage to the Lisanby home, and thus USAA was entitled to a judgment notwithstanding the verdict. Specifically, USAA argues that, because the second floor remained intact while the first floor was virtually destroyed, the damage to the first floor must have been caused by flooding. In the alternative, USAA argues that it is entitled to a new trial because the overwhelming weight of the evidence points to water damage.

¶ 8. The standard of review for the denial of a motion for a judgment notwithstanding the verdict (JNOV) is de novo. U.S. Fid. and Guar. Co. of Miss. v. Martin, 998 So.2d 956, 964 (Miss.2008) (citing Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 948 (Miss.2008)). “A motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a JNOV if there is substantial evidence to support the verdict.” Id. (quoting Adcock, 981 So.2d at 948). On appeal, we will “consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Id. (quoting Spotlite Skating Rink, Inc. v. Barnes, 988 So.2d 364, 368 (Miss.2008)). “In essence, judgments as a matter of law present both the trial court and the appellate court with the same question — whether the evidence, as applied to the elements of a party’s case, is eithpr so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” White v. Stewman, 932 So.2d 27, 32 (Miss.2006).

¶ 9. The standard of review for the grant or denial of a motion for a new trial is abuse of discretion. White v. Yellow Freight Sys., Inc., 905 So.2d 506, 510 (Miss.2004) (citing Green v. Grant, 641 So.2d 1203, 1207 (Miss.1994)). As with motions for JNOV, we review the evidence in the light most favorable to the nonmov-ing party and will reverse “only when, upon review of the entire record, we are left with a firm and definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice.” Id. at 510-11 (citing Green, 641 So.2d at 1207-08).

¶ 10. The Lisanbys’ key expert witness was Dr. Ralph Sinno, a structural engineer. Dr. Sinno testified that there was “overwhelming” evidence that wind damage had structurally destroyed the Lisan-by home long before water reached the first floor. Dr. Sinno explained in his trial testimony that the first floor exterior and interior walls were much weaker than those on the second floor. It was undisputed that hurricane-force winds reached the Lisanby house far in advance of the storm surge of seawater. Dr. Sinno testified that, once these winds breached the first floor, they caused a tunneling effect throughout the house, creating suction and pressure from the inside. According to Dr. Sinno, it was this internal pressure, and not the storm surge, that first caused significant damage to the house, especially to the ground floor.

¶ 11. To refute Dr. Sinno’s testimony, USAA offered its own engineering expert, Dr. Doug Smith. Dr. Smith opined that storm surge destroyed the garage and cottage and caused the damage to the first floor. It was Dr. Smith’s opinion that the force of the wind, alone, never exceeded the design load of the first floor walls; therefore, it was his conclusion that water and not wind had caused the devastating damage.

¶ 12. At trial and on appeal, the parties argued at length about the amount of water that had entered the house. The Li-sanbys claim that only two feet of water entered the home, while USAA claims that the storm surge would have resulted in water ten-and-a-half feet deep in the residential structure. Regardless, as the plaintiffs observe in their brief, the amount of water that eventually made its way into the house is irrelevant under Dr. Sinno’s theory that wind had severely damaged the house long before flood waters arrived.

¶ 13. USAA relies on Johnson v. City of Pass Christian, 475 So.2d 428 (Miss.1985) and Blossman Gas, Inc. v. Shelter Mutual General Insurance Company, 920 So.2d 422 (Miss.2006), for their position that a verdict contrary to physical and photographic evidence cannot stand. In Johnson, 475 So.2d at 429, the plaintiff sued the city for damages she sustained in a one-car accident. According to the plaintiff and other witnesses, a hole in the road caused her to lose control of the vehicle, but no hole was shown in photographs of the accident scene. Id. at 431. On appeal, this Court affirmed the trial court’s grant of a JNOV in favor of the defendant, noting that “where the photographs contradict the plaintiffs tenuous theory of an accident, the plaintiffs theory will not support a jury verdict.” Id.

¶ 14. We find that Johnson is readily distinguishable from the case before us. Unlike the witnesses in Johnson, here the plaintiffs’ key expert did not dispute the photographic evidence that showed the state of the house following the storm. Dr. Sinno did not disagree that the first floor of the house received substantially more damage than the second; rather, he testified that, in his expert opinion, wind had structurally destroyed the house before the storm surge arrived. Unlike Johnson, photographic evidence in this case does not contradict witness testimony, and we find that the trial judge properly denied USAA’s motion for a judgment notwithstanding the verdict.

¶ 15. Blossman, 920 So.2d 422, also is distinguishable. In Blossman, this Court affirmed the trial judge’s grant of a new trial to the plaintiff because the evidence was “overwhelmingly contrary” to the jury’s verdict in favor of the defendant. Id. at 422-23. At issue in that case was whether the negligent placement of gas lines had caused a house fire. Id. at 423. The plaintiff insurance company presented uncontradicted evidence that a gas leak had caused the fire, while the defendant gas company simply maintained that the cause of the fire was unknown. Id. at 424-25. After the jury returned a verdict in favor of the defendant, several of the jurors hugged the defendant’s counsel and its corporate representative. Id. at 425. The trial judge granted the plaintiffs motion for a new trial, finding that the verdict was the result of “bias, prejudice and passion.” Id. at 426. Noting that the “totality of the evidence [was] overwhelmingly in [the plaintiffs] favor,” and that “[t]his is not a case where the evidence presented at trial was in dispute and differing conelu-sions could be reached,” we held that the trial judge did not abuse his discretion by granting a new trial for the plaintiff. Id. at 426 (citing McKinzie v. Coon, 656 So.2d 134, 140 (Miss.1995)).

¶ 16. Unlike Blossman, there was no evidence of blatant juror bias in the present case, and both sides offered reasoned explanations for the damage to the home. The evidence presented at trial was very much “in dispute and differing conclusions could be reached,” based on this evidence. Id. at 426. Therefore, viewing the evidence in the light most favorable to the plaintiffs, we cannot say that the trial judge abused his discretion in denying USAA’s alternative motion for a new trial. The plaintiffs and the defendant were allowed to present their respective theories of the case fully, and the jury, under proper instructions, resolved the conflicting arguments of the parties in favor of the plaintiffs.

II. Because USAA had an arguable basis for denying the claim, emotional distress damages should not have been submitted to the jury, and the trial judge should not have awarded attorneys’ fees and litigation expenses.

¶ 17. The Lisanbys were awarded damages for emotional distress, attorneys’ fees, and litigation expenses based on their claim that USAA acted in bad faith when it denied their claim. USAA argues on appeal that the Lisanbys are not entitled to recover these extracontractual damages because USAA had an arguable.basis for denying the claim.

¶ 18. Extracontractual damages, such as awards for emotional distress and attorneys’ fees, are not warranted where the insurer can demonstrate “an arguable, good-faith basis for denial of a claim.” United Amer. Ins. Co. v. Merrill, 978 So.2d 613, 627 (citing State Farm Ins. Co. v. Grimes, 722 So.2d 637 (Miss.1998); Standard Life Ins. Co. v. Veal, 354 So.2d 239 (Miss.1977)). This Court has said that the “plaintiff bears a heavy burden” of proving that the denial of an insurance claim was in bad faith. Windmon v. Marshall, 926 So.2d 867, 872 (Miss.2006) (citing Blue Cross & Blue Shield v. Campbell, 466 So.2d 833, 844 (Miss.1984)). Moreover,

The plaintiffs burden in proving a claim for bad faith refusal goes beyond proving mere negligence in performing the investigation. The level of negligence in conducting the investigation must be such that a proper investigation by the insurer would easily adduce evidence showing its defenses to be without merit.

Id. (quoting Liberty Mut. Ins. Co. v. McKneely, 862 So.2d 530, 534 (Miss.2003)).

¶ 19. On appeal, the plaintiffs cite numerous instances of conduct that they contend support a finding that USAA acted in bad faith. However, most of these allegations are not supported by the record, and USAA persuasively disputes all of them without response from the plaintiffs.

¶20. For example, the plaintiffs claim that USAA concluded on August 29, 2005, that the damage was caused by flood. The record simply does not support this assertion. Based on a phone call from Admiral Lisanby to USAA shortly after the storm, the USAA representative opened both a homeowners’ insurance claim and a flood insurance claim for the Lisanby property. There is no indication that USAA attributed most of the loss to storm surge until after it had completed an investigation.

¶ 21. The plaintiffs also allege that Gary Taylor, USAA’s adjuster, prepared his wind damage estimate before receiving a report from their engineer. The Lisan-bys cite testimony from Taylor that he did not prepare his estimate until the day he received the report. Nothing in the record indicates that Taylor had prejudged the claim.

¶ 22. The plaintiffs further criticized USAA, arguing that, even before its engineering report was completed, it had “certified to the Federal Government that the cause of the damage to the Lisanbys’ home was flood.” This is a miseharacterization of the evidence; a flood claim was made by the Lisanbys, and they have never disputed that they were entitled to flood damages.

¶28. The plaintiffs also argued that USAA invented an “imaginary five-foot water line” and “demanded” that Mrs. Li-sanby create a list of personal property damaged above and below this line. Yet, the Lisanbys readily admitted at trial that the admiral was the source of the five-foot water line.

¶ 24. In sum, the record supports USAA’s claim that it had “an arguable basis” for denying the claim. Although the jury ultimately decided that it was wind, and not water, that initially caused the destruction, the evidence does not establish that USAA acted in bad faith in denying the majority of the homeowners’ claim. Because USAA had an arguable basis for its denial, the defendants are entitled to judgment as a matter of law on the issues of emotional distress damages, attorneys’ fees, and litigation expenses. Merrill, 978 So.2d at 627.

III. The trial judge did not abuse his discretion in allowing evidence of replacement costs.

¶ 25. “The standard of review regarding admission or exclusion of evidence is abuse of discretion. Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party.” Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)).

¶ 26. The parties stipulated to the amount of replacement costs as follows: $1,577,324 for the dwelling, $45,643 for the garage, and $88,746 for the cottage. Although USAA stipulated to these amounts, it argued that this evidence was erroneously admitted because, under the subject homeowners’ policy, the Lisanbys were not entitled to recover replacement costs. The policy provides that in the absence of replacement, the insured was entitled to the actual cash value of the damaged or destroyed property. The plaintiffs do not take issue with the policy language. Instead, they argue that evidence of replacement costs was necessary to a determination of actual cash value.

¶ 27. USAA admits that replacement costs are relevant to determining actual cash value, but argues that it was prejudiced because “plaintiffs were not required by the trial court to restrict their evidence to actual cash value of the loss.” USAA fails to point to any evidence in the record that the verdict was based on replacement costs alone, and the evidence adduced at trial included an actual cash value of $1.6 million. Therefore, we do not find that the trial judge abused his discretion in admitting evidence of replacement costs.

IV. The trial judge did not abuse his discretion by denying USAA’s motion for a change of venue.

¶ 28. USAA argues that the trial court erred by denying its motion for a change of venue because it contended that it could not receive a fair trial in Jackson County due to community bias. The Mississippi Constitution guarantees that “the right of trial by jury shall remain inviolate.” Miss. Const, art. 3, § 31. In addition, the guarantee of due process of law contemplates a verdict rendered by a fair and impartial jury. Hudson v. Taleff, 546 So.2d 359, 363 (Miss.1989) (citing Miss. Const. art. 3, § 14). Thus, trial courts have a duty to assure that an impaneled jury is “competent, fair and impartial.” Id. (citing Marshall Durbin, Inc. v. Tew, 381 So.2d 152, 154 (Miss.1980); Miss. Power Co. v. Stribling, 191 Miss. 832, 3 So.2d 807, 810 (1941)).

¶ 29. Mississippi Code Section 11-11-51 provides the mechanism whereby a party may seek to change venue if that party believes that because of “the undue influence of the adverse party, prejudice existing in the public mind, or for some other sufficient cause to be stated in the petition, he cannot obtain a fair and impartial trial in the county where the action is pending.” However, the decision to grant or deny a motion for a change of venue will not be disturbed on appeal absent an abuse of discretion. Bayer Corp. v. Reed, 932 So.2d 786, 788 (Miss.2006) (citing Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997)).

¶ 30. Months before trial, USAA filed a motion for a change of venue, arguing that it could not receive a fair trial in any of the Mississippi Gulf Coast counties because: (1) the majority of potential jurors were adversely affected by Hurricane Katrina; (2) there had been widespread negative publicity about insurance companies in general; (3) prominent coastal residents had filed suit against their homeowners’ insurance companies; and (4) there was potential for witness and juror intimidation.

¶ 31. In support of its motion, USAA attached documentation showing that 64% of the houses in Jackson County had sustained some type of damage from Hurricane Katrina. Also attached were four political cartoons that were critical of insurance companies’ handling of Katrina claims, but without any indication of whether or when these cartoons were published. Another exhibit was of an attorney advertisement soliciting clients who had potential claims against their homeowners’ insurance; the record does not indicate where this advertisement was published or how many times it may have circulated.

¶ 32. USAA provided twenty news reports regarding Hurricane Katrina and homeowners’ insurance, but did not provide circulation or viewer numbers for the news outlets. Only two of the articles specifically referred to USAA. One of them mentioned that Mississippi Attorney General Jim Hood was suing a number of insurance companies, including USAA; the other article mentioned that USAA was one of several insurance companies being sued by former-attorney Richard Scruggs.

¶ 33. Also attached to the motion were two complaints filed against State Farm in the United States District Court for the Southern District of Mississippi. One of the complaints was filed by United States Senator Trent Lott, and the other was filed by United States Representative Gene Taylor, in connection with their respective losses from Hurricane Katrina.

¶ 34. USAA also provided four photographs of homemade signs allegedly created and posted on Gulf Coast properties by disgruntled homeowners. Two of the signs criticized State Farm Insurance, one took aim at Farm Bureau Insurance, and the other read “Think Katrina was ‘Ruthless’? Wait Til U Meet Your Ins. Adjuster.”

¶ 35. Finally, USAA attached an affidavit from Dr. Craig New, a psychologist from Oregon described as a venue expert. Dr. New had hired an independent company to conduct a telephone survey of potential jurors in Jackson County and eleven other counties. Based on the responses given, Dr. New opined that USAA could not receive a fair trial in Jackson County.

¶ 36. The plaintiffs responded that the majority of the media attention was directed at State Farm, not USAA, and that no article mentioned the Lisanbys’ case specifically. The plaintiffs also cited a Fifth Circuit Court of Appeals opinion upholding the decision of a federal district court for the Southern District of Mississippi which had denied State Farm’s motion for a change of venue in a very similar, Katrina-related case. Broussard v. State Farm Fire and Cas. Co., 523 F.3d 618, 631-32 (5th Cir.2008). The plaintiffs also noted that USAA recently had tried another Katrina case to verdict in the same district court and had not requested a change of venue.

¶ 37. The plaintiffs also attached to their response an affidavit from Dr. W. Martin Wiseman, the director of the John C. Stennis Institute of Government at Mississippi State University. Dr. Wiseman questioned Dr. New’s methodology and opined that there was as great a risk of juror bias in the central and northern counties of Mississippi as in the Gulf Coast counties. Dr. Wiseman also expressed his opinion that voir dire would be “sufficient to insure that qualified, unbiased jurors are chosen to serve on this case.”

¶ 38. The trial judge held a hearing on the motion and heard testimony from USAA’s venue expert, Dr. New. The trial judge denied the request for a change of venue, reasoning that voir dire examination would be an adequate means to ensure that an impartial jury was impaneled.

¶ 39. USAA renewed its motion after the lengthy voir dire, citing its pretrial motion and a recent article in the Sun Herald newspaper reporting on the Lisan-bys’ case. Seven of the seventy-nine veniremen indicated that they had heard about the case or had read the Sun Herald article. Only one of the seven served on the jury, and that juror swore during voir dire that his prior knowledge would have no effect on his ability to render a verdict. The trial judge again denied USAA’s motion, noting that voir dire had confirmed his prior ruling that an impartial jury could be impaneled in Jackson County. The judge then struck three prospective jurors sua sponte, one of whom had expressed a religious aversion to jury duty, and two of whom had indicated that their personal experiences following Hurricane Katrina had rendered them biased against USAA. All twelve of the jurors that USAA challenged for cause were struck, three over the objection of the plaintiffs. In all, fourteen of the seventy-nine jurors, or approximately eighteen percent, were struck because the trial judge found them to be biased.

¶ 40. USAA raised the issue again in its posttrial motion for a new trial. The defendant cited articles about the case by the Sun Herald newspaper that had been published during trial and that USAA claimed were favorable to the plaintiffs. USAA also offered an affidavit from one of its attorneys who claimed that, during USAA’s closing arguments, an audience member “loudly expressed] negative comments” about the insurance company. USAA also offered an affidavit from Dr. Allen R. McConnell, a professor of psychology at Miami University. Dr. McConnell opined that, based on Dr. New’s pretrial study, the evidence attached to USAA’s motion for a change of venue, and the trial transcripts, “it seems virtually impossible to eliminate the biases ... if jurors are chosen from residents of Jackson County.” Finally, USAA argued that the admiral’s prominence in the community, and his testimony that he was largely responsible for bringing the Northrup Grumman shipyard to Pascagoula, improperly influenced the jury’s verdict.

¶ 41. USAA cites Beech, 691 So.2d at 450, to support its argument that the pervasiveness of the pretrial publicity and the large number of similar claims in Jackson County rendered voir dire ineffective at detecting juror bias. Beech involved one of many lawsuits against companies that allegedly had dumped pollutants into local rivers, causing the fish in those streams to be contaminated with dioxin. Id. at 447. On appeal, the plaintiffs had challenged the trial court’s decision to transfer venue out of George County. In affirming the transfer of venue, we rejected the plaintiffs’ claims that the trial court should have conducted voir dire before issuing its ruling instead of relying solely on the defendants’ petition. Id. at 450. We found it noteworthy that 750 of the 8,909 residents of George County eligible for jury duty were plaintiffs in dioxin cases against the same defendants, and even more were potential plaintiffs in a case against the same defendants in neighboring Jackson County. Id. In addition, the defendants had provided the trial court more than 800 news articles printed in local newspapers in the years leading up to trial. Id. The Court also noted that alternatives to a change of venue, such as an increase in the size of the venire or additional peremptory challenges, would not have made much of a difference in a county as small in population as George County. Id. (citing Hudson, 546 So.2d at 363).

¶ 42. We find that the present case is more akin to Bayer v. Reed, 932 So.2d 786 (Miss.2006). In Reed, the plaintiff sued the maker of the prescription drug Baycol, seeking to recover for damages that she allegedly had suffered from taking the drug. Id. at 788. On interlocutory appeal, this Court affirmed the trial court’s refusal to transfer venue out of Holmes County despite extensive pretrial publicity and a large number of similar cases also filed in Holmes County. Id. at 790-91. We noted that “Bayer has presented extensive evidence that there was pre-trial publicity regarding prescription medication in general; however, no evidence has been presented to link the publicity specifically with Bayer, Baycol or this particular lawsuit.” Id. at 790.

¶ 43. Likewise, with the exception of one article published just before trial, USAA did not present to the trial court any pretrial news coverage specific to the Lisanbys’ case. Out of the twenty articles attached to its motion for a change of venue, only two mentioned USAA, and most of the articles focused on State Farm. Moreover, the number of articles presented in this case pales in comparison to the nearly 300 articles that were presented to the trial court in Beech. As for the number of similar claims in Jackson County, USAA provided no such statistics, and none of the veniremen had filed a lawsuit against his or her homeowners’ insurance carrier.

¶44. USAA also cites King v. Kelly, 243 Miss. 160, 137 So.2d 808, 813 (1962), to support its argument that juror bias was so prevalent that it warranted a new trial. However, in King, sixty-eight percent of the venire had fixed opinions about the case. In the present case, only eighteen percent of the venire expressed preconceived bias against the insurance company. See also Hudson, 546 So.2d at 363 (reversal warranted where forty-eight percent of veniremen had connection with defendant); Seals v. State, 208 Miss. 236, 44 So.2d 61, 68 (1950) (reversal warranted where sixty-five percent of veniremen believed the defendant was guilty). We do not find the same sort of statistical lopsidedness in the case before us.

¶45. As for the opinions of USAA’s venue experts, the trial judge did not abuse his discretion in rejecting their findings. The judge heard live testimony from Dr. New, but apparently was more persuaded by Dr. Wiseman’s contrary conclusion that an impartial jury could be obtained through the voir dire process. Indeed, Dr. New’s study supports Dr. Wiseman’s conclusion that juror bias against insurance companies would be just as prevalent in the northern counties; the responses to many of the questions posed by Dr. New often did not differ significantly among residents of the several Mississippi counties he had studied. As Dr. McConnell’s opinions were largely based on Dr. New’s findings, the trial judge did not abuse his discretion in rejecting them as a basis for a new trial.

¶ 46. Regarding USAA’s claim that Admiral Lisanby’s prominence in the community somehow influenced the jury against the insurance company, only one potential juror indicated that he knew who the admiral was, and that venire member was struck for other reasons. In addition, defense counsel asked the venire during voir dire, “does the fact that [Admiral Lisanby], in some way, worked with or promoted, helped, assisted the shipyard, does that mean in any way to you whatsoever, I need to do something for the Admiral, I need to take care of them, I need to give them a little extra edge?” The record does not indicate that any of the venire members responded affirmatively, and the defendant did not move to strike any of them for cause on the basis of this inquiry. USAA did not ask the potential jurors about any other lawsuits filed by other prominent Gulf Coast citizens, such as Senator Lott or Representative Taylor.

¶ 47. Finally, USAA knew well in advance of trial that its motion for a change of venue had been denied; yet the record does not indicate that the defendant took any significant steps to ferret out its perceived juror bias beyond its extensive voir dire examination of the venire. USAA did not request pretrial juror questionnaires, through which it might have posed the same questions to the venire that Dr. New had asked in his survey. Neither did USAA ask for additional peremptory challenges or for an increase in the size of the venire. See Hudson, 546 So.2d at 363. Moreover, individual, sequestered voir dire examination was not requested by the defendant.

¶ 48. Based on the record before us, we cannot say that the trial judge abused his discretion in declining to transfer venue out of Jackson County. The pretrial publicity was not specific to the Lisanbys’ case, and only two of the twenty articles offered by USAA even mentioned the defendant by name. The record provides no indication that the trial court was unduly restrictive in the scope or the length of time allowed for voir dire, and the defendant makes no complaint in this regard. Furthermore, the trial judge struck all fourteen jurors who indicated that they might be biased against USAA. We find that the trial judge was correct in ruling that voir dire examination was an effective method of impaneling a fair and impartial jury.

Y. A mistrial was not warranted.

¶49. USAA argues that the trial judge should have granted a mistrial based on plaintiffs’ counsel’s “send a message” argument and based on the same attorney’s interview with local media. Our standard of review regarding the decision to grant or deny a motion for a mistrial is abuse of discretion. Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 18 (Miss.2002). In addition, “the trial judge is in the best position for determining the prejudicial effect of an objectionable remark.” Id. Absent “serious and irreparable damage ... the trial judge should admonish the jury then and there to disregard the impropriety.” Id. (quoting Roundtree v. State, 568 So.2d 1173, 1177-78 (Miss.1990)).

¶ 50. USAA cites the following portion of the plaintiffs’ closing arguments to demonstrate its view that the attorney improperly asked the jury to “send a message” to the defendant.

Plaintiffs’ Counsel: You know, sometimes we feel so powerless. There’s such an unequal situation between the little policyholder and' the big insurance company. The insurance company—
Defense Counsel: Improper argument, Your Honor.
The Court: I think so.
Plaintiffs’ Counsel: The insurance company has the exclusive control, dominion and power over the evaluation, processing and denying of a claim, and the people have no voice. But not today. In this one shining moment in our American system, the people can speak and respond in justice. Today, you are the voice of the people.
Defense Counsel: Your Honor, that’s totally improper argument.
Plaintiffs’ Counsel: It is not improper.
The Court: I’m going to overrule your objection. Let him get through.
Plaintiffs’ Counsel: Today, you are the voice of the people. Speak. Speak quickly and speak clearly. If you do today, the people of Jackson County will be heard.
Defense Counsel: May we approach, Your Honor.

The trial judge then held an off-the-record bench conference, at the conclusion of which he instructed the jury to “disregard that last statement made by [plaintiffs’ counsel]. Do not consider that in your deliberations.” USAA moved for a mistrial, which the trial court denied, reasoning that the jury would follow his instruction to disregard the statements.

¶ 51. On appeal, USAA likens these comments of counsel to those made in Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31 (Miss.2004). In Bailey, the plaintiffs sued the manufacturers of the prescription drug Propulsid. Id. at 35. After the defense rested, the trial court granted a directed verdict in favor of the defendants on the plaintiffs’ negligent misrepresentation claims. Id. at 61. Although the only issue remaining before the jury was the inadequate warning claim, the plaintiffs’ attorney “continuously argued throughout closing arguments that the campaign [the defendant] developed to promote Propulsid was false and misleading.” Id. at 62. In addition to the “countless references” to negligent misrepresentation, the plaintiffs’ attorney also “suggested that the jury should ‘send a message’ to [the defendants] by basing the amount of damages solely on [their] finances.” Id. This Court found that “[plaintiffs’ counsel was making a punitive damages argument for intentional fraud when the only issue before the jury was a compensatory damages claim for negligent failure to warn.” Id. This Court concluded that these continued “appeals to passion and prejudice” warranted reversal. Id. (quoting Shell Oil Co. v. Pou, 204 So.2d 155, 157 (Miss.1967)).

¶ 52. We do not find that the arguments in the present case rise to the level of those condemned in Bailey. The trial judge sustained USAA’s objection and properly instructed the jury to disregard the objectionable statements. We cannot say that the judge abused his discretion by refusing to grant a mistrial. The trial judge promptly and unequivocally instructed the jurors not to consider the remarks in question, and they are presumed to have done so. Parker v. Jones County Cmty. Hosp., 549 So.2d 443, 446 (Miss.1989) (citations omitted).

¶ 53. USAA also argues that a mistrial was warranted because one of the plaintiffs’ attorneys conducted an interview with a local television station in front of the courthouse and in view of the jurors as they were recessing between deliberations. When it was brought to the judge’s attention the following day, the judge individually polled the jurors about the interview. Every juror but one admitted having seen the interview in progress, but none of the jurors heard what was being said. The trial judge noted that he had viewed the interview and declined to grant the defendant’s motion for a mistrial.

¶ 54. USAA cites Mississippi Rule of Professional Conduct 3.6(a), which prohibits attorneys’ making “extrajudicial statements) that a reasonable person would expect to be disseminated ... [and] will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” The only statement to which USAA points is the plaintiffs’ attorney’s assertion to the reporter that the Lisanbys “should win.” We fail to see how such a statement, even if overheard by the jurors, would have had “a substantial likelihood of materially prejudicing” the verdict. Miss. R. Prof. Cond. 3.6(a). Therefore, the trial judge did not abuse his discretion by refusing to grant a mistrial based on the comments given by the plaintiffs’ attorney to the reporter.

VI. Absent bad faith, punitive damages are not warranted.

¶ 55. On cross-appeal, the plaintiffs argue that the trial judge erred by refusing to hold an evidentiary hearing before denying their request to move to a punitive damages phase of the trial. As discussed in Issue II above, the plaintiffs failed to demonstrate bad faith on the part of the defendant. Because bad-faith denial of their claim was the only basis the plaintiffs asserted to support punitive damages, this issue is moot.

Conclusion

¶ 56. For the foregoing reasons, we affirm the judgment in favor of the Lisanbys on their breach-of-contract claim. However, because the plaintiffs failed to demonstrate that the defendant acted in bad faith when it denied their claim, we reverse and render judgment in favor of the defendant regarding the award of extracontractual damages for the infliction of emotional distress, attorneys’ fees, and litigation expenses.

¶ 57. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND RENDERED IN PART. ON CROSS APPEAL: AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR AND CHANDLER, JJ., CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY. PIERCE J., NOT PARTICIPATING.

      . The parties dispute when this telephone call was made and exactly what information Admiral Lisanby relayed to USAA during this call. According to the USAA representative, the admiral called from his mobile telephone on August 29, 2005, and said that the roof was gone, all of the contents of the house were damaged, and the first floor was under six feet of water. Although telephone records demonstrated that a call was received on August 29, 2005, from the admiral’s mobile telephone, the admiral testified that he did not speak to a claims representative until the next morning, on August 30. He also denied telling the USAA claims representative that the roof had been blown off or that there was six feet of water in his home.

      . Five reports came from television station WLOX, twelve from the South Mississippi Sun Herald newspaper, one from the Jackson Clarion-Ledger newspaper, one from the Hatties-burg American newspaper, and one from a magazine entitled Mid-South Super Lawyers.

      . The interviewees were from Jackson, Hancock, Harrison, Pearl River, Stone, George, Calhoun, Lafayette, Marshall, Pontotoc, Union, and Yalobusha Counties.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Kenneth MOORE, Jr. and Carolyn M. Moore, Appellants v. Roy D. McDONALD, Donna R. McDonald, Harold Belton and Ruth Belton, Appellees.
    No. 2009-CA-01451-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2010.

      William L. Ducker, Purvis, attorney for appellants.
    Nathan S. Farmer, Picayune, attorney for appellees.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This is an appeal challenging the Pearl River County Chancery Court’s grant of Harold and Ruth Belton’s and Roy and Donna McDonald’s (collectively, the Beltons and McDonalds) motion for a judgment on the pleadings regarding a tract of real property. On appeal, Kenneth and Carolyn Moore (collectively, the Moores) argue that the chancellor erred by granting the Beltons’ and McDonalds’ motion and also by failing to allow the Moores to amend their complaint after the motion had been granted. The Moores also claim the chancellor erred in finding that the McDonalds and Beltons had title to the real property at issue superior to that of the Moores. Finding no error in the decision of the chancery court to grant the McDonalds’ and Beltons’ motion for a judgment on the pleadings and to quiet and confirm the title to their respective tracts of land against any claim of the Moores, we affirm.

FACTS

¶ 2. In 1995, Lamar Moore and his brother, Kenneth, approached William Garrett, now deceased, about buying and splitting a 20.6-acre tract of land on Tee Road in Pearl River County, Mississippi. Garrett sold the property to each of the brothers on a lease-purchase agreement until the purchase price was paid in full. Kenneth married and built a home on his side of the property, but he did not finish out the contract for sale and purchase until 2008. He received a special warranty deed from Garrett’s estate on August 28, 2008. However, Kenneth failed to record the contract for sale and purchase, executed by himself and Garrett, in the chancery clerk’s office.

¶ 3. On September 15, 1998, Lamar and Garrett executed a warranty deed conveying Lamar’s 10.34 acres to Roy McDonald and his wife, Donna McDonald. The conveyance reserved a twenty-five foot easement along the north boundary of the property. On March 20, 2007, the Mc-Donalds transferred title to a portion of the property to their son-in-law, Harold Belton, pursuant to a warranty deed. When Harold’s deed was recorded, Roy and Harold moved their driveway over by 8 feet on Tee Road, and by fifteen feet on the back or north end of the property. Kenneth now asserts that the McDonalds and Beltons encroached on his property when they moved the driveway. Kenneth also submits that he is the owner of the property lying east of the McDonalds’ and Beltons’ property. However, Kenneth does not appear in the chancery clerk’s record as the owner of the property. The record title owner is Garrett.

¶ 4. On June 17, 2008, the McDonalds and Beltons filed a complaint to quiet and confirm title and to remove the cloud on the title and for other relief. On September 2, 2008, Kenneth filed his answer with affirmative defenses, and he sought intervention for Carolyn Moore in this action pursuant to her motion to intervene as a party defendant. The Moores filed a cross-complaint on February 10, 2009.

¶ 5. On the morning of trial, the chancellor called the parties into his chambers to discuss the objections to the exhibits that would be presented. The McDonalds’ and Beltons’ attorney moved for a judgment on the pleadings pursuant to Rule 12(c) of the Mississippi Rules of Civil Procedure. The chancellor granted the motion, and no objections were made on the record. The chancellor held that Kenneth’s purchase contract did not appear on the Pearl River County chancery clerk’s record, and he stated that the law favors the settlement of titles based upon conveyances that are completed in accordance with the law. The chancellor advised the Moores that they could seek a remedy against Garrett’s estate to resolve the issue. As to the McDonalds and Beltons, the chancellor found that they were entitled to have title to their tract of property quieted and confirmed against any claims of the Moores. Aggrieved, the Moores now appeal to this Court.

STANDARD OF REVIEW

¶ 6. A motion for a judgment on the pleadings under Rule 12(c) is reviewed de novo. R.J. Reynolds Tobacco Co. v. King, 921 So.2d 268, 270 (¶ 10) (Miss.2005). The Mississippi Supreme Court has held that the denial of a party’s opportunity to amend their pleadings under Mississippi Rule of Civil Procedure 15(a) is reviewed under an abuse-of-diseretion standard. Fletcher v. Lyles, 999 So.2d 1271, 1277 (¶ 26) (Miss.2009).

DISCUSSION

I. Whether the cháncellor erred in granting the McDonalds’ and Bel-tons’ motion for a judgment on the pleadings pursuant to Rule 12(c).

¶ 7. The Moores argue that by granting the McDonalds’ and Beltons’ motion for a judgment on the pleadings without allowing the Moores to amend their complaint under Rule 15(a), the chancellor improperly applied Rule 12(c). The Moores specifically argue that there were genuine issues of material fact regarding the description of the land referred to in the deed, and the Moores submit that they had subpoenaed witnesses to testify as to such differences. Thus, the Moores argue that the chancellor prematurely granted the motion for a judgment on the pleadings, and they submit that since no matters outside the pleadings were presented by the motion, they should have been afforded leave to amend their complaints in accordance with Rule 15(a).

¶ 8. Mississippi Rule of Civil Procedure 15(a) states, in pertinent part, that:

On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.

¶ 9. Similarly, Rule 12(c) states that:

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56; however, if on such a motion matters outside the pleadings are not presented, and if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).

¶ 10. We note the record reflects that the Moores failed to object as to the form and timing of the McDonalds’ and Beltons’ motion for a judgment on the pleadings. Therefore, we find that the Moores have waived any objections they may have with regard to the form and timing of the motion. Brown v. Gen. Motors Corp., 4 So.3d 400, 402 (¶ 8) (Miss.Ct.App.2009). The failure to preserve these issues during the proceedings before the chancellor constitutes a waiver of those issues on appeal. Id. As a result, the Moores are procedurally barred from raising these issues for the first time on appeal before this Court.

¶ 11. However, in turning to the merits, we note in the present case, the chancellor held that the 1998 conveyance by Garrett and the McDonalds “is clear, concise, free of ambiguity, does not violate any record title with respect to any of the land involved.” The record reflects that Kenneth’s purchase contract was not recorded, and the language in the contract stated that the land needed to be surveyed and that adjustments might need to be made to the contract. The chancellor determined that if an error existed in the description of the land, the error existed in the dealings between Garrett and Kenneth. The chancellor stated that the remedy for such error was not to invalidate a deed which is correct on its face. The chancellor continued to explain that the appropriate remedy was against Garrett’s estate for violation of a contract to convey the land to Kenneth. As a result, the chancellor granted the judgment on the pleadings and validated the McDonalds’ title according to the deed.

¶ 12. The record reflects that the chancellor declined to allow the Moores’s witnesses to testify regarding the discrepancy in the description of the land in Kenneth’s deed. The Moores admit in their brief that no matters outside the pleadings were considered before the chancellor granted McDonalds’ motion for a judgment on the pleadings. Since amending a complaint is reviewed under an abuse-of-discretion standard, we find that the chancellor did not err in granting the motion for a judgment on the pleadings. Fletcher, 999 So.2d at 1277 (¶ 26). This issue is without merit.

II. Whether the McDonalds and Bel-tons were entitled to have the title to their respective tracts of property quieted and confirmed against any claims of the Moores.

¶ 13. The Moores assert that the chancellor erred by invoking the theory of “first in time, first in right,” concerning the filing of the deeds to the land at issue in the present case. Kenneth asserts that to strip him from ownership of an acre of his property merely because the Mc-Donalds’ and Beltons’ deed was recorded first is inequitable.

¶ 14. This Court has recognized the rule that “a plaintiffs deraignment must show: ‘title in himself from the government down, or he must show title by adverse possession ... or he must show title from the defendant, or that both derive their claim from a common source, and that his is the better title from that source.’ ” Crosswhite v. Golmon, 939 So.2d 831, 834 n. 1 (Miss.Ct.App.2006) (quoting Long v. Stanley, 79 Miss. 298, 300-01, 30 So. 823 (1901)). See also Miss. Code Ann. § 11-17-35 (Rev.2004) (requiring a plaintiff to deraign his title when attempting to confirm title or remove a cloud on title).

¶ 15. In the present case, the record reflects that the common source of title for the parties is Garrett. It is also uncontested that the first deed recorded was the deed from Garrett to the McDonalds, dated September 15, 1998, and this deed was recorded on September 16, 1998, in the office of the Pearl River County Chancery Clerk. In addition, as previously stated, the chancellor found that the September 15, 1998, warranty deed to the McDonalds was properly executed, unambiguous, and conveyed title to the real property described therein. However, as to the contract for the sale and purchase executed between Kenneth and Garrett on December 23, 1997, the chancellor found that the contract was not recorded, and it did not impart notice to the McDonalds. Miss. Code Ann. §§ 89-5-1 (Rev.1999), 89-5-3 (Rev.1999), 89-5-5 (Rev.1999), 89-5-7 (Rev.1999); Craig v. Osborn, 134 Miss. 323, 98 So. 598, 599-601 (1923). Thus, we agree the warranty deed gave the Mc-Donalds title superior to that of Moores, who did not acquire title to their real property until August 2008.

¶ 16. The McDonalds and Beltons also point out that on page five of the contract executed between Garrett and Kenneth, Garrett represented that the real property being sold had not been surveyed. Thus, the precise boundaries of Kenneth’s acreage had not been set at the time of the execution of this contract. Since the only parties to this contract for sale and purchase were Kenneth and Garrett, we find that the chancellor did not err in determining that the remedy for any deficiency in the contract leading to Kenneth receiving less acreage than what was contracted for pursuant to Kenneth and Garrett’s agreement lies against Garrett’s estate, rather than in any attempt to alter the September 15, 1998, warranty deed to the McDonalds. A & F Props., LLC v. Madison County Bd. of Supervis'rs., 933 So.2d 296, 301 (¶ 12) (Miss.2006). This issue is without merit.

¶ 17. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, PJJ, IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.

      . The contract for the sale and purchase of real property was dated July 25, 1995, but it was signed and executed on December 23, 1997.


author: ROBERTS, J.,

text:
    Mitchell Ryan MAHAFFEY, Appellant v. Shelby MANER and Bonnie Maner, Appellees.
    No. 2009-CA-00857-COA.
    Court of Appeals of Mississippi.
    Nov. 9, 2010.

      Wiley Johnson Barbour, Yazoo City, Ronald Henry Pierce, attorneys for appellant.
    P. Shawn Harris, Forest, attorney for appellees.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal involves a dispute over approximately four-tenths of an acre of undeveloped property in Scott County, Mississippi. On April 25, 2008, Mitchell Ryan Mahaffey filed a complaint for ejectment and “confirmation of common boundary” in the Scott County Chancery Court. Mahaffey named Shelby Maner and Bonnie Maner as defendants. After Mahaffey presented his case-in-chief, he moved to amend his complaint to conform with the evidence presented at trial. The chancellor denied Mahaffey’s motion. The Man-ers moved for a directed verdict. The chancellor characterized the Maners’ motion as a motion to dismiss. Finding that the Maners had adversely possessed the property at issue, the chancellor granted the Maners’ motion. Aggrieved, Mahaffey appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2009, Mahaffey sued the Maners, who owned property adjacent to his. Mahaffey claimed that the Maners had built a fence that encroached on portions of his property. According to his complaint, Mahaffey requested that the chancellor eject the Maners from his property and confirm his ownership of the disputed portions of land. The Maners filed a counterclaim and argued that they had adversely possessed the disputed property.

¶ 3. At trial, Mahaffey called Pat Martin, a registered land surveyor, to testify as an expert witness. Martin testified that he surveyed Mahaffey’s property. Martin also testified that he reviewed a 1969 survey conducted by Tatum Shirley. According to Martin, Shirley committed an error when he had surveyed the property in 1969. Specifically, Martin testified that Shirley did not begin his survey at the correct point of beginning. Martin thought that Shirley’s error had stemmed from an incorrect declination setting.

¶ 4. After Martin testified, Mahaffey’s mother, Miriam Mahaffey, testified. Miriam is Mahaffey’s predecessor-in-title. Miriam testified regarding the placement of a barbed-wire fence that once ran along the northern boundary of Mahaffey’s property. However, according to Miriam, she rarely visited the property after she acquired it.

¶ 5. Mahaffey testified after Miriam. He explained that he had acquired the property from his mother in May 1997. Mahaffey testified that he did not live on the property at issue. Likewise, he did not maintain any fences on the property. However, according to Mahaffey, he visited the property “quite a bit” to fish.

¶ 6. Mahaffey then called Joe Townsend as an adverse witness. Townsend testified that, in 1994, “Mr. Buster,” the Maners’ predecessor in title, asked him to survey the boundary between his property and what is now Mahaffey’s property. According to Townsend, Miriam told him that his survey was not correct.

¶ 7. Mahaffey rested after Townsend testified. Mahaffey then moved to amend his complaint to conform to the evidence. That is, Mahaffey sought to have the chancery court reform the legal description in his chain of title to correct any inconsistencies in the description. Mahaffey argued that the chancery court should modify the point of commencement so that it corresponded to the point of commencement in Martin’s survey.

¶ 8. The Maners opposed Mahaffey’s motion and argued that he was not entitled to amend his complaint or amend his deed. The chancery court ultimately determined that Mahaffey was not entitled to raise a collateral attack of the 1969 partition action unless that judgment was found to be void. The chancery court also noted that Mahaffey had expressly stated that he was not raising a collateral attack on the 1969 partition action. Furthermore, the chancery court held that Mahaffey was not entitled to amend his complaint to conform to the evidence. Finally, the chancery court held that the Maners had adversely possessed the disputed .4-acre section of property. Aggrieved, Mahaffey appeals.

ANALYSIS

¶ 9. Mahaffey claims the chancery court erred when it denied his motion to amend his complaint to conform to the evidence. Mahaffey raised his motion immediately after he had rested his case-in-chief. In his complaint, Mahaffey requested that the chancery court confirm that he owned the property as described in his deed. After he presented his evidence, Mahaffey moved to amend his complaint to include a claim to “alternatively ... reform the legal description in [his] chain of title and/or ... to correct inconsistencies in the legal descriptions between monuments and courses of distances.” In other words, Mahaffey originally sought to confirm his deed, and after presenting his evidence, he sought to completely abandon his initial theory and sought to adopt the opposite theory.

¶ 10. A motion for leave to amend a complaint is a matter left to the discretion of the trial court. Webb v. Braswell, 930 So.2d 387, 392 (¶ 8) (Miss.2006). We review the trial court’s decision according to the abuse-of-discretion standard. Id. That is, we do not have authority to reverse the trial court unless we first find that the trial court abused its discretion. Id.

¶ 11. Pursuant to Mississippi Rule of Civil Procedure 15(b):

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the maintaining of the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The court is to be liberal in granting permission to amend when justice so requires.

A party is not entitled to an absolute right to amend pleadings. Amendments are to be denied if allowing the amendment would prejudice the defendant. Hester v. Bandy, 627 So.2d 833, 839 (Miss.1993). Mahaffey originally sought to confirm his deed, and later he sought to amend his complaint so he could argue for reformation of his deed. It would have prejudiced the Maners to allow Mahaffey to completely abandon his initial argument and adopt the alternative argument when the Maners had been preparing to rebut Mahaffey’s claim for approximately one year. What is more, Mahaffey claimed that he was surprised by portions of Townsend’s testimony, but there was no indication at trial that Townsend had ever given Mahaffey any reason to believe that he would testify differently than he testified at trial. A motion to amend the pleadings should be prompt and not due to a lack of diligence. TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1011 (¶ 57) (Miss.1997).

¶ 12. Finally, it is noteworthy that even if the chancery court would have allowed Mahaffey to amend his pleadings, that would not have changed the outcome of the litigation. The facts are clear from Mahaf-fey’s own witnesses that the Maners met the standard of proof for adverse possession. Mahaffey’s mother, Miriam, was Mahaffey’s predecessor-in-title. There was evidence that, in 1994, Miriam had expressed that a fence line was not correctly placed onto portions of her property. Nevertheless, Miriam did nothing to correct the error. Mahaffey testified that he rarely visited the property, although he fished “quite a bit” in an undisputed area. Furthermore, Mahaffey’s argument on appeal is related to the chancery court’s decision to deny his motion to amend the pleadings. Mahaffey does not expressly claim that the chancery court erred when it found that the Maners had adversely possessed the .4-acre portion central to this controversy. Based on the analysis above, we do not find that the chancellor abused his discretion when he denied Ma-haffey’s motion to amend his complaint. It follows that we find no merit to Mahaffey’s argument on appeal.

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

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


author: LEE, P.J.,

text:
    John FORREST, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01729-COA.
    Court of Appeals of Mississippi.
    Nov. 16, 2010.
    Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. A jury in the Montgomery County Circuit Court found John Forrest guilty of Count I, aggravated assault, and Count II, possession of a weapon by a convicted felon. On Count I, Forrest was sentenced to twenty years in the custody of the Mississippi Department of Corrections. On Count II, Forrest was sentenced to ten years in the custody of the MDOC. Forrest was sentenced as a habitual offender for Counts I and II, and the sentence in Count II was ordered to run consecutively to the sentence imposed in Count I. Forrest filed post-trial motions, which were subsequently denied.

¶ 2. Forrest now appeals, asserting the following issues: (1) the trial court erred in not ordering a competency hearing sua sponte, and (2) he was denied effective assistance of counsel. Finding no error, we affirm.

FACTS

¶ 3. During the early morning hours of August 6, 2009, in Winona, Mississippi, Betty Jean Hardwick arrived home from work. Hardwick saw Forrest sitting on her porch. Hardwick and Forrest had recently ended a romantic relationship. Hardwick had seen Forrest the afternoon before, and she testified that he was acting normal. Hardwick testified that, as she was exiting her car, Forrest approached her while pointing a shotgun. Hardwick asked Forrest what he was doing with the shotgun. Forrest responded, “Goodbye,” and shot Hardwick. Forrest then left the scene. Hardwick was shot in the shoulder and hand.

¶ 4. Valerie, Hardwick’s daughter, lived with Hardwick at the time of the shooting. Valerie saw Forrest at Hardwick’s house the afternoon prior to the shooting carrying a long gun with a wooden handle. Valerie testified that Forrest went out on the porch and fired the weapon. Valerie stated that Forrest had been drinking alcohol. Valerie was inside the house at the time of the shooting and heard Forrest yell, “Goodbye, Betty” followed by the sound of a gunshot.

¶ 5. James Eskridge, Forrest’s son, lived near Hardwick. Eskridge testified that Forrest came to see him on the morning of the shooting and told him he had shot Hardwick. Eskridge told Forrest to leave. Eskridge then saw Forrest squat near the fence in Eskridge’s backyard. Policemen from the Winona Police Department later found a shotgun buried in that spot. Esk-ridge testified that Forrest had been drinking alcohol.

¶ 6. Captain Tommy Bibbs, with the Wi-nona Police Department, responded to the scene and eventually found Forrest at the home of Andrew Ratliff. Captain Bibbs testified that Forrest was drinking alcohol and had blood on one of his hands.

DISCUSSION

I. COMPETENCY ISSUE

¶ 7. In his first issue on appeal, Forrest argues that the trial court should have ordered a competency hearing sua sponte. According to Rule 9.06 of the Uniform Rules of Circuit and County Court:

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.

It is within the trial court’s discretion to determine what constitutes reasonable grounds. Richardson v. State, 722 So.2d 481, 486 (¶ 24) (Miss.1998). In Richardson, the Mississippi Supreme Court followed the Fifth Circuit Court of Appeals’ test for reviewing a trial court’s failure to inquire into a defendant’s competence, which states: “[D]id the trial judge receive information which, objectively considered, should reasonably have raised a doubt about defendant’s competency and alerted him to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense?” Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980); Richardson, 722 So.2d at 486 (¶ 24). The United States Supreme Court instructed that “evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required.” Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

¶ 8. Upon review of the record, there is nothing that would lead this Court to conclude that Forrest did not understand the proceedings against him or appreciate their significance. Forrest admitted he was drunk on the night of the shooting and denied his culpability, but Forrest’s theory of defense was that he had accidentally shot Hardwick. Although some of Forrest’s testimony was at odds with his trial counsel’s theory of the case, we do not find this constitutes a “reasonable ground” to substantiate Forrest’s incompetency claims. Furthermore, there was no evidence that Forrest had any relevant medical problems that would have affected his ability to stand trial. This issue is without merit.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 9. In his other issue on appeal, Forrest argues that his trial counsel was ineffective. To prove ineffective assistance of counsel, Forrest must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. Forrest must overcome the presumption that, under the circumstances, the conduct in question might be trial strategy. Burns v. State, 813 So.2d 668, 673 (¶14) (Miss. 2001). To overcome this presumption, Forrest “must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 10. Furthermore, the merits of an ineffective-assistance-of-counsel claim on direct appeal should be addressed only when: “(1) the record affirmatively show[s] ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss.Ct.App.1999). If the judgment is affirmed and we do not conclude that Forrest’s trial counsel was constitutionally ineffective, we will affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. Review on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record. Id. at 1102 (¶ 6).

¶ 11. After his attorney stated during opening arguments that Forrest had shot Hardwick accidentally, Forrest later denied culpability during his testimony. During closing arguments, Forrest’s trial counsel noted Forrest’s decision to deny guilt, but he stated that Forrest was drinking alcohol that night and could not remember what had happened. Upon our review of the record, we can safely say that there is no evidence of “ineffectiveness of constitutional dimensions.” As such, we deny Forrest’s ineffective-assistance-of-counsel claim without prejudice to his right to raise the issue via appropriate post-conviction proceedings if he so chooses.

¶ 12. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF TEN YEARS, ALL AS A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, WITH THE SENTENCE IMPOSED IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    James McCOY, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01871-COA.
    Court of Appeals of Mississippi.
    Nov. 16, 2010.

      James McCoy, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On November 14, 2007, James McCoy pleaded guilty in the Union County Circuit Court to two counts of armed robbery. McCoy was sentenced to thirty years on each count with five years of each count suspended and five years of post-release supervision. The trial court ordered the sentences to run concurrently.

¶ 2. On February 9, 2009, McCoy filed his motion for post-conviction relief. The trial court subsequently denied McCoy’s motion for relief. McCoy now appeals asserting several issues that are appropriately addressed as follows: (1) whether an evidentiary hearing was required and (2) whether McCoy’s counsel was ineffective.

¶ 3. Finding that an evidentiary hearing is necessary regarding McCoy’s reliance on incorrect information concerning his parole eligibility, we reverse the trial court’s judgment and remand this case for an evidentiary hearing on this issue.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. EVIDENTIARY HEARING

¶ 5. McCoy argues that he was entitled to an evidentiary hearing because he was misinformed about his eligibility for parole. McCoy’s signed guilty plea petition stated that he would be eligible for parole after serving ten years of his sentence. The trial court also informed McCoy twice during the plea colloquy that he could be eligible for parole after serving ten years. McCoy also included affidavits from two witnesses who heard McCoy’s counsel tell him that he could be eligible for parole in ten years.

¶ 6. A person convicted of armed robbery through the display of a firearm on or after January 1, 1977, who is sentenced to more than ten years must serve at least ten years prior to being eligible for parole. Miss.Code Ann. § 47 — 7—3(l)(d)(i) (Supp.2009). This provision does not apply to persons convicted on or after September 30, 1994. Id. Because McCoy pleaded guilty in 2007, the ten-year requirement for parole is inapplicable, and we look to Mississippi Code Annotated section 47-7-3(l)(d)(ii) (Supp.2009), which prohibits parole for persons convicted of armed robbery through the display of a deadly weapon on or after October 1, 1994. It is clear from the record that the information provided by the trial court and McCoy’s counsel regarding parole was incorrect.

¶ 7. Although the State concedes that these statements were incorrect, it contends that any error was harmless. However, in similar situations the Mississippi Supreme Court and this Court have reversed for evidentiary hearings to determine whether the defendants relied on improper information regarding parole eligibility. See Fairley v. State, 834 So.2d 704, 707 (¶ 8) (Miss.2003) (erroneous information concerning parole and sentencing at least entitles the petitioner to an evi-dentiary hearing on whether he relied on the erroneous information); Garner v. State, 928 So.2d 911, 914 (¶ 12) (Miss.Ct.App.2006). We find that McCoy is entitled to an evidentiary hearing to determine whether he, in fact, relied upon this erroneous information in pleading guilty.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 8. In regard to whether his trial counsel was ineffective, McCoy must allege facts showing his counsel’s performance was deficient, and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 9. McCoy contends that his trial counsel failed to conduct any pretrial investigation. However, from the record it is clear that his attorney did prepare for trial by conducting discovery, interviewing witnesses, filing several pretrial motions, and preparing McCoy himself for trial.

¶ 10. Most importantly, McCoy argues that his attorney erroneously advised him regarding his eligibility for parole. This advice constitutes deficient performance. See Garner, 928 So.2d at 915 (¶ 14); Thomas v. State, 881 So.2d 912, 916 (¶ 16) (Miss.Ct.App.2004). It is unclear from McCoy’s brief as to whether McCoy would have pleaded guilty but for the incorrect advice. This claim should be investigated during the evidentiary hearing.

¶ 11. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR AN EVIDENTIARY HEARING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

KING, C.J., MYERS, P.J., IRVING, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. GRIFFIS AND MAXWELL, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: BARNES, J., CARLTON, J.,

text:
    Delfenia RAINEY, Appellant v. GRAND CASINOS, INC., Caesars Entertainment, Inc. and Harrah’s Operating Company, Appellees.
    No. 2009-CA-01577-COA.
    Court of Appeals of Mississippi.
    Nov. 23, 2010.

      Ralph Stewart Guernsey, Thomas Upton Reynolds, II, attorneys for appellant.
    Robert Lewis Moore, attorney for appel-lees.
    Before LEE, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. The case originated from a “slip- and-fall” injury Delfenia Rainey allegedly sustained in 2004 while at what was formerly called the Grand Casino Tunica in Tunica, Mississippi. Rainey filed suit against Grand Casinos, Inc., Caesars Entertainment, Inc. and Harrah’s Operating Company (collectively the “Defendants”). This is an appeal from the grant of the Defendants’ motion for summary judgment finding that Rainey had not sued the proper defendant. This Court finds that the circuit court was correct in determining that the incorrect defendants had been sued but erred in failing to rule on the Plaintiffs motion to amend her complaint; therefore, the judgment must be remanded for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Rainey filed her original complaint for negligence on July 30, 2007, naming Grand Casinos, Inc., Caesars Entertainment, Inc., and Harrah’s Operating Company as defendants. In her complaint, she alleges that “at all times pertinent to the incident [Grand Casino in Tunica, Mississippi] was owned, operated and in the care, custody and control of the Defendants .... ” In their answer, the Defendants countered that they “are foreign corporations licensed to do business within the State of Mississippi, but who do not and never have done business as the Grand Casino and Hotel in Tunica, Mississippi.” Discovery then proceeded.

¶ 3. Nearly two years after Rainey had filed her complaint, the Defendants filed a motion for summary judgment on April 1, 2009, arguing that none of the Defendants owned or operated what was formerly called the Grand Casino Tunica at the time of the incident and that Rainey had sued the wrong entity; thus, the Defendants could not be liable.

¶ 4. In her response to the motion for summary judgment, Rainey maintained that she had sued the proper defendants and that she had provided “documentary evidence” to support this contention. Rai-ney attached to her response an article from the Internet site Wikipedia regarding “Harrah’s Casino Tunica” which stated that it was formerly “Grand Casino Tuni-ca” and gave an ownership history. Also attached was an affidavit from one of her attorneys, stating he performed an Internet search “to document” the information in the Wikipedia article. These documents were also attached as exhibits to the response, and they included various pages pertaining to the three Defendants from the web site of the Mississippi Secretary of State regarding its business-services office.

¶ 5. On July 8, 2009, a hearing on the motion was held. The circuit court held its ruling in abeyance, allowing the parties time to supplement their arguments with additional research and briefing. The Defendants filed their supplemental response, and they maintained Rainey had sued the wrong defendants. Attached to their response was a warranty deed conveying the casino property at issue to BL Development Corporation in 1993, and three gaming licenses from 2000 until 2009, all issued to BL Development Corporation. Also, the Defendants noted that BL Development Corporation holds itself out publically as the owner and operator of Grand Casino Tunica, and they listed numerous pending cases in which it is named as a party in the Tunica County Circuit Court. The Defendants discounted Rainey’s attempt to lead the circuit court to conclude that Grand Casinos, Inc. and Caesars Entertainment, Inc. were the “parent corporations” of Grand Casino Tunica, and they argued that even if they were the “parent corporation” of BL Development Corporation, this fact would not make the Defendants liable.

¶ 6. Soon thereafter, on July 22, 2009, Rainey filed her supplemental response, a motion to amend her complaint under Mississippi Rule of Civil Procedure 15(c), and an amended complaint, omitting the named defendants and naming “BL Development, Inc. D/B/A Grand Casino” as the sole defendant.

¶ 7. On August 20, 2009, the circuit court issued an order granting the Defendants’ motion for summary judgment, stating the Defendants had provided further documentation showing their lack of ownership and control over the casino at issue. Additionally, the circuit court stated it had not received any further evidence from Rainey showing the Defendants had any interest in Grand Casino Tunica at the time the alleged injury occurred. Rainey filed a motion to amend or vacate the summary judgment because, due to a clerical error, Rainey’s supplemental brief had only been sent to the Defendants, and not to the judge. On September 14, 2009, the circuit court issued a supplemental order, explaining that it had now considered Rainey’s supplemental brief, affirmed its grant of Defendants’ motion for summary judgment, and denied Rainey’s motion to alter or amend the judgment. The circuit court also found that the statute of limitations had expired; thus, the court could not allow the amended complaint to relate back under Rule 15(c); therefore, Rainey’s attempt to name a new defendant was procedurally barred. Additionally, the circuit court erroneously stated that Rainey had not filed a motion to amend the complaint. Finally, the circuit court found that Rainey did not use “reasonably diligent efforts, as required under Rule 9(h) and Rule 15 of the Mississippi Rules of Civil Procedure, to find the correct Defendant.” Rainey now appeals, raising two issues: whether the circuit court erred in (1) granting summary judgment and dismissing the case based on the failure to serve process on the proper party, BL Development Corporation and (2) denying Rainey’s motion to amend her complaint.

STANDARD OF REVIEW

¶ 8. The standard of review for the circuit court’s grant of summary judgment is de novo. Wilner v. White, 929 So.2d 315, 318-19 (¶ 3) (Miss.2006) (citing Satchfield v. R.R. Morrison & Son, Inc., 872 So.2d 661, 663 (¶ 5) (Miss.2004)). The evidence must be viewed in the light most favorable to the non-moving party. Id. If there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law, summary judgment should be granted to the moving party. Id. (citing Price v. Purdue Pharma Co., 920 So.2d 479, 483-84 (1110) (Miss.2006)). If the motion is made and supported under Mississippi Rule of Civil Procedure 56, the non-moving party cannot rest on mere allegations or denials of the pleadings, but must set forth specific facts showing there is a genuine issue for trial. Id. (citing Stuckey v. Provident Bank, 912 So.2d 859, 864 (¶ 8) (Miss.2005)). If any triable issues of fact exist, the circuit court’s grant of summary judgment will be reversed. Id. (citing Miller v. Meeks, 762 So.2d 302, 304 (¶ 3) (Miss.2000)).

ANALYSIS

¶ 9. The only question before this Court is whether the grant of the Defendants’ motion for summary judgment is proper. We note the motion for summary judgment was only based upon whether Rainey sued the proper Defendants, not upon whether her amended complaint was time-barred, which would entail an analysis of Rule 15(c). In its order, however, the circuit court discussed why the amended complaint cannot “relate back” to the original complaint under Rule 15(c) and is time-barred. Accordingly, we shall first discuss the propriety of the grant of summary judgment and then the circuit court’s statements about Rainey’s proposed amended complaint.

1. Motion for Summary Judgment

¶ 10. Rainey raises the issue of whether the circuit court improperly dismissed the case upon granting summary judgment, but he also relates this issue to the failure of service of process on the proper defendant, BL Development Corporation. However, failure of service of process is not at issue before this Court; the issue was not raised before the circuit court and was not a basis for summary judgment. Our discussion shall be limited accordingly.

¶ 11. In their motion for summary judgment, the Defendants argued that they did not own or operate what was formerly called the Grand Casino Tunica at the time of the incident; thus, Rainey had sued the wrong entity, and the Defendants could not be liable. Attached to their motion was an affidavit by a representative of Harrah’s Operating Company, stating that at no time have the three named corporate defendants owned or operated the casino property described in Ramey’s complaint.

¶ 12. Rainey responded to the motion by insisting that she had named the proper Defendants because Caesars Entertainment managed the casino when her injuries occurred. However, she claimed Caesars Entertainment merged with Harrah’s Operating Company before the lawsuit was filed; thus, both entities were properly sued under the doctrine of “transfer of liabilities” in corporate law. Rainey does not explain why she sued Grand Casino, Inc. Additionally, Rainey stated that she had provided “documentary evidence” in the form of a Wikipedia article on the corporate history of Harrah’s Casino Tuni-ca (which the article states was “formerly Grand Casino Tunica”). She contended that she had proved the Wikipedia article’s factual validity with various corporate documents on the three entities, using information from the Mississippi Secretary of State’s web site. Also, Rainey made the statement that her original complaint “amply meets the requirements” of Rule 9(h) and (i), dealing with fictitious or unknown parties, and that Rule 15(c) permits amendment of the complaint under Rule 9. However, at this point, Rainey made no attempt to amend her complaint.

¶ 13. A hearing was then held on the motion for summary judgment, and the circuit court requested supplemental briefing on the issue of the identity of the proper owner of what formerly was the Grand Casino Tunica. It was not until the Defendants filed their supplemental reply to Rainey’s response to the summary-judgment motion, providing the name of the proper defendant, BL Development Corporation, that Rainey filed a proposed amended complaint which excluded the original three defendants and named BL Development Corporation as sole defendant. Rainey argued in her supplemental response that since service of process was obtained on Grand Casino, Inc., BL Development Corporation had notice of the action and the complaint’s amendment should be allowed. Further, Rainey contended that amendment of the complaint should be allowed to relate back to the date of the original pleading under Rule 15(c) because she was merely correcting an error “made by counsel in reliance on public information” and was not substituting a party.

¶ 14. We find no genuine issue of material fact in the record regarding whether Rainey sued the wrong defendants. The Defendants met their burden of proof by providing sufficient evidence that they lacked ownership and control over the Grand Casino Tunica and that BL Development Corporation, and not the three named defendants, was “doing business as” the Grand Casino Tunica. Rainey did not set forth any facts to rebut this proof.

¶ 15. Rainey notes in her brief before this Court that it was to her detriment to rely on information from a Wikipedia article as “evidence” of the corporate history of the Defendants. We agree. Wikipedia defines itself as “the free encyclopedia that anyone can edit.” The articles written in Wikipedia are collaborative and authored anonymously; thus, any information found on Wikipedia may not be reliable and should be viewed with scepti-cism. See R. Jason Richards, Courting Wikipedia, 44 Trial 62 (Apr.2008) (“Since when' did a web site that any Internet surfer can edit become an authoritative source by which ... experts could provide credible testimony, lawyers could craft legal arguments, and judges could issue precedents?”).

¶ 16. We find no error in the circuit court’s grant of summary judgment in favor of the three originally named Defendants.

2. The Amended Complaint

¶ 17. The circuit court incorrectly stated that there was no motion to amend the complaint and thus it did not rule upon the motion in its order. However, the record shows Rainey did file a motion to amend her complaint under Rule 15(c) on July 22, 2009, along with a proposed amended complaint and a supplemental response to the Defendant’s motion for summary judgment. Rainey’s motion to amend the complaint was filed before the circuit court’s ruling on summary judgment was entered. As such, we find it necessary to remand this case for a ruling on Rainey’s motion to amend her complaint.

¶ 18. Rule 15(c) governs amended pleadings and states:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party’s defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Thus, when an amended complaint changes a named defendant, as is the case here, three requirements must be met:

(1) the claim in the amended complaint must arise out of the same conduct, transaction, or occurrence as that set forth in the original complaint; (2) the newly-named defendant must have received notice of the action within the 120 days [in Rule 4(h) ]; and, (B) the newly-named defendant must have or should have known that an action would be brought against him within the 120 days unless a mistake existed as to the parties’ identities.

Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 894-95 (¶ 6) (Miss.2006). Rainey makes several arguments regarding how these factors were met, such as the original and amended defendant corporations having the same officers, the same ownership of stock, and interlocking boards. However, none of this evidence is in the record before us. Thus, we find the record is insufficient to determine whether the motion to amend is proper under the factors of Rule 15(c).

¶ 19. Additionally, we find it necessary to remark upon two statements made by the circuit court in its supplemental order about Rainey’s amended complaint since we are remanding the case for further review on the motion to amend. First, the circuit court stated that if an amended complaint is filed after the statute of limitations has run, regardless of when the motion to amend is made, the statute of limitations bars the newly named defendants, and the circuit court cannot allow the amended complaint to “relate back.” This is incorrect, for this is exactly the situation Rule 15(c) was designed to prevent. If the factors under Rule 15(c) are met, then the amended complaint will “relate back” to the date of the original complaint and not be barred by the statute of limitations. See Bedford Health Props., LLC v. Estate of Williams, 946 So.2d 335, 354 (¶ 59) (Miss.2006) (Some of the newly named defendants in an amended complaint were allowed to relate back to original complaint under Rule 15(c); thus, the amended complaint is not barred by statute of limitations.); Estes v. Starnes, 732 So.2d 251, 253-54 (¶ 8) (Miss.1999) (Circuit court erred by not allowing the plaintiff to amend complaint where the wrong party was named when factors under Rule 15(c) were met.); Brown v. Winn-Dixie Montgomery, Inc., 669 So.2d 92, 96-97 (Miss.1996) (Complaint amended to name proper corporate entity and found to relate back under Rule 15(c) to the date of original complaint and, thus, were not time-barred under statute of limitations.); Mieger v. Pearl River County, 986 So.2d 1025, 1027-29 (¶ 11-13) (Miss.Ct.App.2008) (Circuit court found in error because the amended complaint related back to original complaint under Rule 15(c) and was not time-barred.).

¶ 20. Second, the circuit court stated that Rainey was not “reasonably diligent” in trying to ascertain the proper defendants “as required by Rule 9(h) and Rule 15.” We note at the outset that Rainey’s amended complaint does not fall under Rule 9(h), as the Defendants argue on appeal. Rule 9(h) is for “fictitious parties” and allows pleadings to be amended when a party “is ignorant of the name of an opposing party and so alleges in his pleading.” Wilner v. White, 929 So.2d 315, 322 (¶ 7) (Miss.2006) (quoting M.R.C.P. 9(h)) (emphasis added). Rule 9(h) allows for the opposing party to be designated “by any name, and when his true name is discovered the process and all pleadings ... may be amended by substituting the true name.... ” M.R.C.P. 9(h). A Rule 9(h) amendment does not change the name of a party against whom a claim is asserted; it provides the true name of the party already in the litigation. Price v. Clark, 21 So.3d 509, 525 (¶ 43) (Miss.2009). “In order for Rule 9(h) to apply, there must be a substitution of a true party name for a fictitious one.” Wilner, 929 So.2d at 322 (¶6).

¶ 21. That is not the case here. Rai-ney’s amended complaint does not fall under Rule 9(h) because she named no fictitious parties in her original complaint that she wished to substitute with BL Development Corporation. Additionally, we find no merit to Rainey’s argument that Rule 9(h) applies because she used the “fictitious name” of “such corporation” in a catch-all phrase found within the body of her complaint, which stated: “Plaintiff further names as Defendants, any and all such corporation or corporations, at the time of the filing of this Complaint....” (Emphasis added.) This statement is not sufficient for the naming of fictitious parties under Rule 9(h). Rainey sought to change the already named Defendants, which falls under Rule 15(c).

¶ 22. Moreover, the “reasonable-diligence” standard does not apply since this is a Rule 15(c) case where Rainey is changing a party, not substituting a fictitious party. “Reasonable diligence is a standard only for determining the efforts made to discover the true identity of a named fictitious party under Rule 9(h).” Wilner, 929 So.2d at 323 (¶ 7). However, we note that neither Rainey nor the Defendants was diligent in this case. Rainey did not take any action, or even acknowledge she had sued the wrong defendants for approximately two years, even after the Defendants advised Rainey in their answer that she had filed suit against the wrong defendants. On the other hand, it is perplexing why the Defendants waited to file their motion for summary judgment for nearly two years after the complaint had been filed.

¶ 23. Because the circuit court never ruled on Rainey’s motion to amend her complaint and the record before us is insufficient to determine whether it would be proper under Rule 15(c) to amend the complaint, we remand the case for the circuit court to rule on the motion to amend.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED IN PART, REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE AP-PELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

Concurring in Part and Dissenting in Part:

¶ 25. I would affirm the grant of summary judgment by the trial judge in this case.

      . In her response, Rainey explained the following corporate history, which is a part of the Wikipedia article. In 1998, Grand Casino Tunica’s original owner was Grand Casino, Inc., which sold its interest in Grand Casino to Park Place Entertainment. In January 2004, Park Place changed its name to Caesars Entertainment, Inc., which then merged with Harrah’s Operating Co., Inc., which became the management company for the enterprise.

      . These documents from the Mississippi Secretary of State's web site on the three Defendants include filing histories, a corporate annual report, a name change form, certificates of incorporation, and a registry history, all of which Rainey claim supported the information found in the Wikipedia article about Har-rah’s Casino Tunica.

      .Two of the three gaming licenses were issued to "BL Development Corp. D/B/A Grand Casino Tunica.” The other gaming license was issued to "BL Development Corp.”

      . We note there is no transcript of the hearing in the record.