author:
MAXWELL, J.,
      RUSSELL, J.,

text:
    Dr. Bertin C. CHEVIS, Appellant v. MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
    No. 2010-CA-00861-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      John F. Ketcherside, attorney for appellant.
    John A. Banahan, Ryan Anthony Frederic, attorneys for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. This case involves a dispute between Dr. Bertin C. Chevis and his insurance companies. Chevis purchased two separate policies to cover his office building: (1) a named-perils policy from Mississippi Farm Bureau (Farm Bureau) that excluded windstorm damage and (2) a windstorm and hail damage policy from Mississippi Windstorm Underwriting Association (MWUA). Believing he was under-compensated for his building’s total loss caused by wind damage from Hurricane Katrina, Chevis sued Farm Bureau and MWUA, along with the agents who sold him the two policies and the companies that adjusted his loss.

¶ 2. The circuit court granted Farm Bureau’s motion for summary judgment, finding its policy did not cover Chevis’s wind damage. The circuit court then granted Farm Bureau’s motion to certify the judgment as final against Farm Bureau under Mississippi Rule of Civil Procedure 54(b). We find the circuit court’s dismissal of Farm Bureau under Rule 54(b) made the grant of summary judgment final and ap-pealable. Upon de novo review, we affirm the circuit court’s grant of summary judgment because Farm Bureau’s policy clearly did not cover Chevis’s wind damage.

FACTS AND PROCEDURAL HISTORY

¶ 3. In February 2005, Chevis purchased a “Business Package of Insurance” from Farm Bureau Insurance agents Keath Ladner and Theodore Bilbo. Chevis purchased two separate policies to cover his medical office building: (1) a named-perils policy from Farm Bureau that excluded flood damage and contained an endorsement excluding windstorm and hail damage and (2) a windstorm and hail damage policy from MWUA. Attached to the Farm Bureau endorsement was a notice that the Farm Bureau policy Chevis was purchasing excluded windstorm and hail damage and that MWUA “provides windstorm and hail policies to match with property policies where windstorm and hail perils have been excluded.” Chevis wrote two separate premium checks — one to Farm Bureau for “Hazard Ins.” and one to MWUA for “Wind & Hail Ins.”

¶ 4. On August 29, 2005, Hurricane Katrina’s violent winds damaged Chevis’s building and its contents. Audubon Insurance Group, a subsidy of AIG Claim Services, Inc., adjusted Chevis’s claim of loss’. MWUA compensated Chevis for damage to his building and contents but paid less than full policy limits.

¶ 5. Believing the extent of his damages entitled him to full policy limits, Chevis sued Farm Bureau, MWUA, Audubon, AIG Claim Services, and agents Ladner and Bilbo. He alleged both (1) breach of contract and (2) negligent adjustment by AIG Claim Service.

¶6. Farm Bureau filed a motion for summary judgment, arguing Chevis’s damages were caused by wind, which is clearly excluded under Farm Bureau’s policy. The circuit court granted Farm Bureau’s motion, finding “the Farm Bureau policy clearly and unambiguously excluded damage caused by wind.” Because Chevis’s claims against MWUA, Audubon, and AIG Claim Services were still pending, Farm Bureau moved to amend the circuit court’s judgment and reissue a final judgment under Mississippi Rule of Civil Procedure 54(b). By agreed order, the circuit court granted this motion and entered a final judgment dismissing Chevis’s action against Farm Bureau “pursuant to Rule 54(b).”

STANDARD OF REVIEW

¶ 7. We employ the familiar de novo standard of review to the circuit court’s grant of summary judgment, viewing the facts in the light most favorable to the nonmovant. Fulkerson v. Odom, 58 So.3d 849, 851(7) (Miss.Ct.App.2011) (citing Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999)). “Summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting M.R.C.P. 56(c)). Summary judgment must be granted when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citing Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988)).

DISCUSSION

I. Finality of the Judgment Under Rule 54(b)

¶ 8. Before delving into why we find the circuit court correctly granted summary judgment in favor of Farm Bureau, we address the dissent’s concern that Farm Bureau did not receive a final judgment.

¶ 9. The circuit court’s grant of summary judgment only affected Farm Bureau and was not directed at the other remaining defendants — MWUA, Audubon, and AIG Claim Services. Under Rule 54(b), a judgment affecting less than all the defendants in a multi-defendant lawsuit is not final except “upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” M.R.C.P. 54(b). Here, the dissent would take a purely mechanical approach to find the circuit court did not expressly determine there was no just reason for delay. But taking a commonsense, substance-over-form approach, we find the circuit court, by granting Farm Bureau’s Rule 54(b) motion and entering an agreed order finally dismissing Farm Bureau “pursuant to Rule 54(b),” entered a final judgment in a “definite, unmistakable manner.” M.R.C.P. 54(b) cmt.

¶ 10. In Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 900-01 (Miss.1987), the Mississippi Supreme Court — guided by the interpretation by the United States Court of Appeals for the Fifth Circuit of the federal version of Rule 54(b) — rejected a Rule 54(b) certification that satisfied the “purely mechanical test of Rule 54(b) ... by a statement in the judgment that there is no just reason for delay and the expressed direction that final judgment be entered[.]” While the supreme court declared it best practice for the trial court to explain its reason for certification, it did not make an explicit statement necessary, so long as the reason for finalizing the partial summary judgment was clear from the record. Id. at 901.

¶ 11. In Cox, the supreme court could not readily discern from the record why the circuit court finalized the dismissal of one claim against a defendant when the plaintiff still had other pending claims against the same defendant with intertwining facts. Id. at 900. Thus, it vacated the appeal. Id. at 901. See also Reeves Constr. & Supply v. Corrigan, 24 So.3d 1077, 1083-84 (¶¶ 14-19) (Miss.Ct.App.2010) (finding it “unclear how the circuit court’s final judgment serves the interests of efficient judicial administration ... [and] unclear why there is no just reason for delay in approving the final judgment” when other factually related claims were still pending against the same defendant); Myatt v. Peco Foods of Miss., Inc., 22 So.3d 334, 338-40 (¶¶ 9-12) (Miss.Ct.App.2009) (rejecting Rule 54(b) certification despite use of rule’s language because addressing the merits of appeal “would result in piecemeal litigation”); Walters v. Walters, 956 So.2d 1050, 1053-54 (¶¶9-12) (Miss.Ct.App.2007) (rejecting appeal of divorce judgment because unsettled property issues remained and because there was no determination by the chancellor why no just reason to delay appeal until divorce became final). Citing Cox, this court in Walters noted: “If there is nothing about a case that merits a Rule 54(b) judgment, this Court will dismiss the appeal despite a trial court’s mechanical use of the ‘no just reason for delay1 language.” Walters, 956 So.2d at 1054(13).

¶ 12. Here, we are faced with the other side of the coin. If our appellate courts do not rely on the mechanical satisfaction of Rule 54(b)’s requirements when there is no apparent reason to grant a final partial summary judgment, the converse must also be true — that we do not require the mechanical satisfaction of Rule 54(b) when the reason for granting the final partial summary judgment is unmistakably evident from the record.

¶ 13. This is the exact approach taken by the Fifth Circuit, which our supreme court has looked to when interpreting Rule 54(b). E.g., Cox, 512 So.2d at 900-01. In Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1219-21 (5th Cir.1990), the Fifth Circuit applied a “practical, common sense interpretation of Rule 54(b)” to determine that a district court had entered a final partial judgment under Federal Rule 54(b), even though its order failed to state explicitly “no just reason for delay” existed for its entry. Id. After granting partial summary judgment to the defendant, the district court asked the defendant to draft a “54(b) judgment.” Id. at 1219. The judgment was captioned “F.R.C.P. 54(b) JUDGMENT” and directed “that there be final judgment entered pursuant to Federal Rule of Civil Procedure 54(b).” Id. The Fifth Circuit found the order satisfied Rule 54(b)’s requirements and conferred appellate jurisdiction. “When the court recites Rule 54(b) in the order or grants a motion requesting entry of judgment under Rule 54(b), the court expressly incorporates the entire rule by reference and signals its conclusion that the requirements of the rule have been met and entry of partial final judgment is proper.” Id. at 1220. See also id. (discussing Crowley Maritime Corp. v. Panama Canal Comm’n, 849 F.2d 951, 953 (5th Cir.1988), which rejected a “form-over-substance” approach and found sufficient. 54(b) certification despite the district court’s failure to “expressly include the magical language”); EEOC v. Delta Air Lines, 578 F.2d 115, 116 (5th Cir.1978) (concluding, “although the order does not literally track the requirements of the rule, the district court’s wording is sufficiently clear to permit us to be sure the required determination and direction was intended”).

¶ 14. The Fifth Circuit relied on Kelly to find a district court had entered a final partial summary judgment order, despite the plaintiff’s argument that the order failed to contain the formalistic language of Rule 54(b). Ackerman v. Fed. Deposit Ins. Corp., 973 F.2d 1221, 1225 (5th Cir.1992). The Fifth Circuit found “the district court’s order leaves no doubt that it intended to enter a final, appealable, partial judgment under Rule 54(b)” because, not only did the order state it was a “final judgment,” but also because the order “was in response to the [defendant’s] Motion for Entry of Final Judgment under Rule 54(b).” Id.

¶ 15. Applying this practical, commonsense approach, we find circuit court’s intent in issuing the agreed final judgment dismissing Farm Bureau from the case under Rule 54(b) unmistakable. In contrast to Cox, Reeves Construction, Myatt, and Walters, the circuit court entered summary judgment in Farm Bureau’s favor on all claims brought against it based on language in a contract unique to Farm Bureau. As in Ackerman, Farm Bureau specifically requested the circuit court finalize the dismissal under Rule 54(b). Chevis did not object. And the circuit court entered an agreed order stating it was dismissing Farm Bureau “pursuant to Rule 54(b).” Though this order did not contain the magic words “there was no just reason for delay,” the circuit court’s “wording is sufficiently clear to permit us to be sure the required determination and direction was intended.” Kelly, 908 F.2d at 1220 (quoting Delta Air Lines, 578 F.2d at 116).

¶ 16. “The basic purpose of Rule 54(b) is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.” M.R.C.P. 54(b) cmt. The circuit court unmistakably granted Farm Bureau a final judgment under Rule 54(b), conferring this court with appellate jurisdiction. Because the circuit court’s reasons for granting the final judgment are obvious from the record, we see no justice in delaying Chevis’s appeal against Farm Bureau until his claims against other defendants are resolved. Thus, we reach the merits of his appeal.

II. Grant of Summary Judgment in Favor of Farm Bureau

¶ 17. Chevis’s multiple issues raised on appeal boil down to two arguments: (1) the circuit court erred by finding, as a matter of law, Farm Bureau’s policy excluded Chevis’s damage; and (2) Farm Bureau’s liability to Chevis extends outside the coverage of the policy because it sold Chevis a “Business Package of Insurance.” But we find the unambiguous endorsement to the Farm Bureau policy excluded wind damage, which is the only peril Chevis claims damaged his building. We also find Chevis failed to produce any evidence that Farm Bureau is liable under an agency theory for the policy issued by MWUA, a disclosed principal.

A. The Scope of Farm Bureau’s Policy

¶ 18. Because Farm Bureau un-disputably showed its policy did not cover any of Chevis’s alleged uncompensated Katrina damages, Chevis’s breach-of-contract claim fails as a matter of law.

¶ 19. The only cause of damage relevant to this Katrina lawsuit is wind. “Hurricane Katrina unleashed both wind and water forces.” Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 625 (5th Cir.2008). But this is not a wind-versus-water case. In discovery, Chevis only described the damage to his building for which he is seeking compensation in terms of wind, stating: “Hurricane Katrina blew out windows and blew off much of the roof. The building just started to crumble....” He also objected to an interrogatory about flood insurance as outside the scope of discovery because “the property was not destroyed by flood.”

¶ 20. The circuit court correctly held Farm Bureau’s policy “clearly and unambiguously excluded damage caused by wind.” The policy contained the following endorsement:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
WINDSTORM OR HAIL EXCLUSION
For a premium credit the following is added to the EXCLUSIONS section and is therefore not a Peril Insured Against:
WINDSTORM OR HAIL
We will not pay for loss or damage:
A. Caused directly or indirectly by Windstorm or Hail, regardless of any other cause or event that contributes concurrently or in any sequence to the loss or damage; or
B. Caused by rain, snow, sand or dust, whether driven by wind or not, if that loss or damage would not have occurred but for the Windstorm or Hail.
But if the Windstorm or Hail results in a cause of loss other than rain, snow, sand or dust, and that resulting cause of loss is a Peril Insured Against, we will pay for the loss or damage caused by such Peril Insured Against. For example, if the Windstorm or Hail damages a heating system and fire results, the loss or damage attributable to the fire is covered subject to any other applicable policy provisions.

¶ 21. Attached to the endorsement was the following notice:

IMPORTANT NOTICE
WINDSTORM OR HAIL EXCLUSION
(ALL PROPERTY POLICIES)
PLEASE READ CAREFULLY. The enclosed Windstorm or Hail Exclusion Endorsement is being added to your policy. This means your property policy through Mississippi Farm Bureau Casualty Insurance Company or Southern Farm Bureau Casualty Insurance Company will not provide windstorm or hail coverage.
The Mississippi Windstorm Underwriting Association provides windstorm, and hail policies to match with property policies where windstorm and hail perils have been excluded.... Your local Farm Bureau agent can procure a Mississippi Underwriting Association Windstorm and Hail Policy for you to insure you against these perils that are being excluded from your Mississippi Farm Bureau Casualty Insurance Company or Southern Farm Bureau Casualty property policy.
Effective the date the Windstorm or Hail Exclusion Endorsement is added to your property policy, we will no longer pay for loss caused directly or indirectly by windstorm or hail regardless of any other cause or event that contributes concurrently or in any sequence to the loss. Direct loss by fire or explosion resulting from windstorm or hail is covered.

¶ 22. Under Mississippi law, Chevis, as policyholder, was legally responsible for knowing his policy excluded windstorm damage. Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987) (citations omitted) (finding knowledge of contents of insurance policy is imputed to policyholder as a matter of law). And the evidence shows Chevis heeded Farm Bureau’s notice and purchased a separate windstorm and hail damage policy from MWUA, writing a separate check to MWUA that noted in the memo line: “For Wind & Hail Ins.”

¶ 23. On appeal, Chevis argues the endorsement excluding windstorm and hail damage was vague because it did not define “windstorm.” “The initial question of whether the contract is ambiguous is a matter of law.” Benchmark Health Care Ctr., Inc. v. Cain, 912 So.2d 175, 182(17) (Miss.Ct.App.2005) (quoting Lamb Constr. Co. v. Renova, 573 So.2d 1378, 1383 (Miss.1990)). “The fact that a term is not defined in the policy itself does not alone make that term ambiguous.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 207 (5th Cir.2007) (applying Louisiana law). And “[t]he mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Cherry, 501 So.2d at 419 (citing Union Planters Leasing v. Woods, 687 F.2d 117, 119 (5th Cir.1982)). Instead, a term is ambiguous if it has multiple reasonable interpretations, either based on the term itself or due to internal conflict within the policy. Miss. Farm Bureau Mut. Ins. Co. v. Walters, 908 So.2d 765, 769 (¶¶ 11-12) (Miss.2005). If a policy is not ambiguous, the court gives effect to its clear and unambiguous meaning. Jackson v. Daley, 739 So.2d 1031, 1041 (¶ 38) (Miss.1999).

¶ 24. “In absence of a definition or limitation of the subject, a “windstorm’ must be taken to be a wind of sufficient violence to be capable of damaging insured property either by impact of its own force or by projecting some object against the property....” Kemp v. Am. Universal Ins. Co., 391 F.2d 533, 534 (5th Cir.1968); see also N.H. Fire Ins. Co. v. Kochton Plywood & Veneer Co., 242 Miss. 169, 176, 134 So.2d 735, 737 (1961) (finding insurer liable for windstorm damage caused by “wind ... of unusual violence”). Through critical of the circuit court’s application of Kemp’s definition of “windstorm,” Chevis offers no other reasonable alternative interpretation of the term. And we find, as a matter of law, there is no reasonable interpretation of “windstorm” that would exclude what Chevis claims caused the damage to his building — hurricane-produced winds. Thus, the circuit court correctly found Chevis failed to make a sufficient showing that his alleged Katrina damages were caused by a named peril other than the expressly excluded windstorm peril.

¶ 25. Chevis also argues the Farm Bureau policy covered wind damage from Hurricane Katrina because the policy covered “named storms.” But there is nothing in the Farm Bureau policy that lists “named storms” among its named perils. Instead, the policy, through the endorsement, expressly stated windstorm damage was not a named peril. It appears Chevis derives the “named storm” language from correspondence from agent Bilbo. Farm Bureau correctly points out this letter, while apparently marked for identification at the summary-judgment hearing, was not made part of the record. Consequently, is outside of our appellate review. Miller v. R.B. Wall Oil Co., Inc., 970 So.2d 127, 130 (¶ 6) (Miss.2007) (quoting Pulphus v. State, 782 So.2d 1220, 1224(15) (Miss.2001)) (confining appellate “review to what appears in the record”). But even were this letter part of the record, apparently the “named storm” language was in specific reference to the MWUA premium, not the terms of the Farm Bureau policy. More important, this type of parol evidence could not be used to alter Farm Bureau’s clear endorsement excluding all windstorms. See Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., Inc., 584 So.2d 1254, 1257 (Miss.1991) (“[A] written contract cannot be varied by prior oral agreements.”).

¶ 26. We agree with the circuit court’s finding that the Farm Bureau policy clearly excluded Chevis’s alleged wind damage.

B. The Scope of Farm Bureau’s Liability

¶ 27. Additionally, contrary to Chevis’s allegations, Farm Bureau had no contractual obligations outside of its policy with Chevis. Chevis argues, because he bought a “Business Package of Insurance” from Farm Bureau, Farm Bureau is responsible for all coverage he purchased from agents Bilbo and Ladner—including the MWUA policy. But Farm Bureau clearly disclosed that it was not providing Chevis coverage for windstorm and hail damage and that such coverage would have to be purchased from MWUA.

¶ 28. It is a longstanding tenant of agency law that an agent who discloses its principal cannot be held liable for the contract entered into with the principal. Kelly v. Guess, 157 Miss. 157, 161-62, 127 So. 274, 276 (1929). Here, Chevis failed to create a factual dispute that he thought he was purchasing windstorm coverage from Farm Bureau. Attached to his complaint was (1) Farm Bureau’s windstorm and hail exclusion, (2) the notice of the exclusion, which highlighted windstorm coverage would have to be purchased through a separate entity, MWUA, and (3) a copy of the separate premium check he wrote to MWUA “For Wind & Hail Ins.” While the notice of the windstorm-exclusion endorsement did offer the assistance of a Farm Bureau agent in procuring windstorm and hail damage coverage, the notice unambiguously stated the coverage would not be purchased from Farm Bureau but instead from MWUA. Id. Because Chevis clearly contracted with MWUA, not Farm Bureau, for windstorm coverage, he cannot claim Farm Bureau, under the guise of an agency theory, breached the MWUA policy.

¶29. Nor can he bring a claim against Farm Bureau for the negligent adjustment of his claims covered by the MWUA policy. Unlike the defendant Audubon Insurance Company in Fonte v. Audubon Ins. Co., 8 So.3d 161, 165-66 (Miss. 2009), the case Chevis relies on to argue Farm Bureau’s agency liability, Chevis presented no evidence that Farm Bureau agreed to take on any of the adjustment or oversight of MWUA’s claims. Cf. id. at 165 (¶ 9) (describing Audubon’s contracted services to MWUA, which included “issuing policies on behalf of MWUA, adjusting claims, and providing full claim supervision”). Neither did Chevis present any evidence AIG Claim Service negligently adjusted a claim covered by Farm Bureau’s policy. Because Chevis failed to establish Farm Bureau had a duty to adjust claims for losses that are covered by the MWUA policy, his negligence claim, like his breach-of-contract claim, fails to survive Farm Bureau’s motion for summary judgment.

¶ 30. For these reasons, we affirm.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J., AND MYERS, J.

RUSSELL, J.,

dissenting:

¶ 32. I respectfully dissent because I would find that the circuit court’s judgment was not a final, appealable judgment under Mississippi Rule of Civil Procedure 54(b). Therefore, the appeal should be dismissed for lack of jurisdiction.

¶ 33. Although neither party raised the issue of appellate jurisdiction, “we must address on our own initiative whether the summary-judgment order is final and ap-pealable.” Anderson v. Britton & Koontz Bank, N.A., 55 So.3d 1130, 1131 (¶ 5) (Miss.Ct.App.2011) (citing Miller v. Cont’l Mineral Processing, 39 So.3d 998, 1000-01 (¶ 8) (Miss.Ct.App.2010)). Because this case involved multiple parties and claims in the circuit court, we look to Rule 54(b), which provides as follows:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

M.R.C.P. 54(b) (emphasis added). The comment to Rule 54 explains the court must “take two separate steps before an appeal can be perfected. The court must make ‘an express determination that there is no just reason for delay[,]’ and it must make ‘an express direction for the entry of judgment.’ ” M.R.C.P. 54 cmt. (emphasis added). This two-step process is known as “certification.” Anderson, 55 So.3d at 1132 (¶ 7) (citing Ind. Lumbermen’s Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So.2d 750, 753 (Miss.1984)). Absent such certification, “any order in a multiple[-]party or multiple[-]claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54 cmt. Therefore, if a court determines to enter a final and appealable judgment, “it must do so in a definite and unmistakable manner.” M.R.C.P. 54 cmt. (emphasis added).

¶ 34. “Although a court may issue a specific Rule 54(b) order, certification does not require a separate order.” Anderson, 55 So.3d at 1132 (¶ 8) (citing Ind. Lumbermen’s, 456 So.2d at 753). That is, “[a] trial court may certify the finality of its order by including in the order ‘an expressed determination that there is no just reason for delay1 and ‘an expressed direction for the entry of the judgment.’ ” Id. In a 2006 decision, a chancery court’s order contained a discussion of the appeal, but “it [did] not use the specific and express language required by [Rule] 54(b).” M.W.F. v. D.D.F., 926 So.2d 897, 900 (¶ 5) (Miss.2006) (emphasis added). Therefore, the Mississippi Supreme Court held that the order was not final and appealable because it was not stated as such in a definitive and unmistakable manner. Id.

¶ 35. Other cases have held that merely reciting the specific language of Rule 54(b) within a judgment does not, by itself, meet the requirements of the rule. See, e.g., Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 900 (Miss.1987) (noting that “the purely mechanical test of Rule 54(b) [was] met by a statement in the judgment that there is no just reason for delay and the expressed direction that final judgment be entered,” but nothing in the case warranted a Rule 54(b) judgment; therefore, dismissal was proper); Reeves Constr. & Supply, Inc. v. Corrigan, 24 So.3d 1077, 1083 (¶ 14) (Miss.Ct.App.2010) (Although the judgment used the exact language of Rule 54(b), it was “unclear why there [was] no just reason for delay” and “unclear how the circuit court’s final judgment serve[d] the interests of efficient judicial administration”; therefore, dismissal was proper.); Miller, 39 So.3d at 1001 (¶ 11) (noting that “the trial court’s use of the operative language from Rule 54(b) does not ensure that the dictates of Rule 54(b) have been met”); Myatt v. Peco Foods of Miss., Inc., 22 So.3d 334, 339 (¶ 10) (Miss.Ct.App.2009) (Although the judgment used the exact language of Rule 54(b), the “failure [of] the trial court to include a reasoned explanation makes any review by this Court, as to whether there was an abuse of discretion in the entry of the Rule 54(b) judgment, merely speculative”; therefore, dismissal was proper.).

¶ 36. In Walters v. Walters, 956 So.2d 1050, 1054 (¶ 11) (Miss.Ct.App.2007), “the chancellor announced his intention to allow [a party] to appeal from the judgment ... pursuant to Rule 54(b) and directed that ... counsel prepare an order to that effect for the chancellor’s signature.” This Court noted “the chancellor expressly directed the entry of a final judgment, satisfying the first requirement^] [h]owever, the chancellor never determined that there was no just reason for delay.” Id. at 1054 (¶ 12). Therefore, we held that “[b]ecause the chancellor failed to make the requisite determination that there was no just reason for delay pursuant to Rule 54(b), the ... judgment was not a final, appealable order.” Id. (citing M.R.C.P. 54(b); M.W.F., 926 So.2d at 900 (¶ 5)). We concluded by stating: “If there is nothing about a case that merits a Rule 54(b) judgment, this Court will dismiss the appeal despite a trial court’s mechanical use of the ‘no just reason for delay’ language.” Id. at 1054 (¶ 13) (citing Cox, 512 So.2d at 900-01).

¶ 37. The supreme court has stated that the entry of a Rule 54(b) judgment “should be exercised cautiously in the interest of sound judicial administration in order to preserve the established judicial policy against piecemeal appeals in cases which should be reviewed only as single units.” Cox, 512 So.2d at 900 (citing Curtiss-Wright Corp. v. Gen. Elec. Corp., 446 U.S. 1, 10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)). Additionally, a Rule 54(b) judgment “should never even be considered by the trial court unless the remainder of the case is going to be inordinately delayed, and it would be especially inequitable to require a party to wait until the entire case is tried before permitting him to appeal.” Id. Further, “[a] [Rule] 54(b) certificate should be reserved for a case where a delay in the appeal might result in prejudice to a party” and to avoid injustice. Id. (quoting Page v. Gulf Oil Corp., 775 F.2d 1311, 1313 n. 2 (5th Cir.1985)). As such, “[i]t is incumbent on trial attorneys and trial judges to recognize that Rule 54(b) judgments must be reserved for rare and special occasions.” Id. “A 54(b) certificate is not, therefore, to be granted routinely.” Id.

¶ 38. Our supreme court has urged trial attorneys to “review Wright and Miller, Moore’s Federal Practice and [f]ederal case law before they propose a Rule 54(b) judgment to a trial court.” Id. “In turn, trial judges should require such research and preparation before they even consider the propriety of granting it.” Id. Importantly, our supreme court has declared:

While we will not require a trial court to set forth specific reasons and findings prefatory to entering a Rule 54(b) judgment, we will look with disfavor on such judgment. Indeed, unless the reason the judgment was granted is clear from the record, we will not search for a justification, but will vacate the appeal.

Id. at 901.

¶ 39. Turning to the instant case, the circuit court entered a judgment granting Farm Bureau’s motion for summary judgment, which included findings of fact and conclusions of law. However, the circuit court failed to direct the entry of a final judgment or expressly determine that there was no just reason for delay within this first judgment. Subsequently, the circuit court entered an agreed final judgment, which reads:

AGREED FINAL JUDGMENT OF DISMISSAL AS TO THE DEFENDANT, MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY
CAME ON for consideration this day the Motion by the Defendant, MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY (hereinafter “Farm Bureau”), to amend the judgment previously entered on behalf of Farm Bureau on March 8, 2009, in order to reflect the dismissal of the case is final pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, and the Court being duly advised in the premises, and further finding that counsel for Plaintiff has no objection to the granting of said motion regarding that the dismissal of this case is pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure.
IT IS THEREFORE ORDERED and ADJUDGED that this cause be and same is hereby dismissed pursuant to Rule 54(b) as to the Defendant, MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY!,] only.

¶ 40. It is apparent the circuit court directed the entry of a final judgment in the agreed final judgment, thus satisfying the first requirement of Rule 54(b). However, the circuit court never determined there was “no just reason for delay” as required under Rule 54(b). In fact, there is nothing in the record that would indicate the circuit court even considered this requirement. In accordance with Cox, “unless the reason the judgment was granted is clear from the record, we will not search for a justification, but will vacate the appeal.” Cox, 512 So.2d at 901. As such, I would find that the circuit court failed to determine expressly that there was no just reason for delay.

¶ 41. I have reviewed the cases from the United States Court of Appeals for the Fifth Circuit cited in the majority opinion. While those cases are well-reasoned and highly persuasive, the rule in the Fifth Circuit does not square with the precedent of our supreme court which, of course, this Court is bound to follow. Accordingly, I would dismiss this appeal for lack of jurisdiction.

IRVING, P.J., AND MYERS, J., JOIN THIS OPINION.

      . Prior to granting Farm Bureau’s motion for summary judgment, the circuit court entered an agreed order dismissing Ladner and Bilbo.

      . Although this court must consider issues concerning its jurisdiction, even when the parties do not raise them, Anderson v. Britton & Koontz Bank, N.A., 55 So.3d 1130, 1131(5) (Miss.Ct.App.2011), we note neither party challenges the finality and appealability of the circuit court's grant of summary judgment to Farm Bureau.

      . "In any suit for a breach of contract, the plaintiff has the burden of proving by a preponderance of the evidence: 1. the existence of a valid and binding contract; and 2. that the defendant has broken, or breached it; and 3. that he has been thereby damaged monetarily.” Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992).


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Tyrone GORDON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01974-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      George T. Holmes, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Tyrone Gordon was convicted in the Holmes County Circuit Court of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections. Gordon was also indicted for murder; but the jury was split six to six, and a mistrial was declared as to the murder charge.

¶ 2. Gordon now appeals, asserting the following issues: (1) the verdict is against the overwhelming weight and sufficiency of the evidence, and (2) he was prejudiced by incompetent hearsay. Finding no error, we affirm the conviction and sentence.

FACTS

¶ 3. In September 2009, Jonathan Tillman and Gordon were at a club in Tchula, Mississippi, known as the Yellow Tree. An argument broke out over a girl. The testimony was conflicting whether it was Tillman and Kerry Head or Gordon and Head who were involved in the argument. The argument became heated, and the owner of the club asked the men to leave. They left without incident.

¶ 4. The next night, Gordon, Tillman, and LeMarie Smith went to a club in Thornton, Mississippi. Smith drove his car, which had an assault rifle in the back. Tillman carried a handgun with him. When they arrived at the club, Smith stayed in the car while Gordon and Tillman got out. Head and another man, Thomas Hall, were at the same club. When Head and Hall left the club, Gordon and Tillman got into Smith’s car and told Smith to follow Hall’s car. Smith followed, and Gordon grabbed the assault rifle from the back. When they caught up to Hall’s car, Gordon rolled down the front passenger’s side window and shot at Hall’s car. Hall’s car left the road and flipped several times. Hall died as a result. Head suffered gunshot wounds but survived.

DISCUSSION

I. SUFFICIENCY AND WEIGHT OF THE EVIDENCE

¶ 5. Gordon argues that the evidence did not support the verdict because the testimony against him was contradictory and came from accessories with motives to lie.

A. Sufficiency of the Evidence

¶ 6. A motion for a directed verdict challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The Court reviews the trial court’s finding regarding the sufficiency of the evidence at the time the motion for a directed verdict is overruled. Holloman v. State, 656 So.2d 1134, 1142 (Miss.1995). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005).

¶ 7. “A person is guilty of aggravated assault if he ... (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.... ” Miss.Code Ann. § 97-3-7(2)(b) (Supp.2011). Gordon asserts that the State failed to prove he was the shooter and, thus, failed to prove he committed aggravated assault. He argues that he did not shoot at Hall’s car; rather, two of the State’s witnesses — Smith and Tillman — implicated him in the shooting in exchange for favorable sentences.

¶ 8. Smith was the first witness called by the State to testify. When the police came to his house on the evening following the shooting, Smith denied knowledge of the shooting. He told the police he was with his girlfriend in Jackson, Mississippi. A few days later, however, he was called to the police station and confessed his involvement. He pleaded guilty to being an accessory after the fact and was sentenced to a suspended five-year sentence. He testified that in exchange for his plea bargain he was required to testify at Gordon’s trial. At trial, Smith stated that Gordon had forced him at gunpoint to follow Hall’s ear. Later in his testimony, he retracted this statement and said that he was scared, but Gordon did not threaten him or point a gun at him. Smith also testified that he tried to talk Gordon out of shooting at Hall’s car. Smith stated he told Gordon, “man, let ‘em go, don’t kill 'em,” but Gordon responded, “f — k that, I ain’t letting s — t go.”

¶ 9. Tillman testified that he was with Gordon at the Yellow Tree and witnessed Gordon and Head exchange “some words.” He testified that the next night when they went to the club in Thornton, he had a .40-caliber gun with him, and there was a rifle in the trunk. He testified that as they were driving on Highway 49, chasing Hall’s car, he shot the .40-caliber gun out of the window twice at the woods in order to scare Hall. He stated that he wanted Hall “to go on down the road” because he was afraid of what Gordon might do. Tillman stated that after he shot the gun, Gordon reached across him into the trunk, picked up the rifle, and shot at Hall’s car. Tillman explained that there was access to the trunk because the back seat of the car had no back. He admitted at trial that he had initially lied to the police when asked for a statement. He told the police he was at Gordon’s house playing a game. He testified that this was the story Gordon had fabricated. A few days later, the police asked him to come in for further questioning. He went to the police station and confessed. When asked why he confessed, he said: “It was eating me up inside.” He pleaded guilty to conspiracy and was sentenced to five years with one year suspended.

¶ 10. Rickettia Washington, Hall’s distant cousin, testified that she witnessed the shooting. She stated that she was driving on Highway 49 from Tchula toward Yazoo City, Mississippi, around midnight when she saw a black Honda Accord and a red Chevrolet Caprice, which she recognized as Hall’s car, coming toward her on Highway 49. It looked to her like the two cars were racing. The black car was behind the red car and had its headlights off. Washington pulled off the road to avoid a head-on collision when the black car came alongside the red car. She heard approximately three gunshots and saw “a little light” coming from the passenger’s side window of the black car. The red car then went off the road. She testified that she did not see who was shooting the gun. On cross-examination, Washington was asked to read from her statement to the police, which stated: “Whoever was on the passenger’s side, they eased out. They shot. And it was like he lost control of the car.”

¶ 11. Gordon asserts that the inconsistencies in these three witnesses’ testimonies when compared with their prior statements to the police were enough to grant a directed verdict in his favor. We disagree. Smith, Tillman, and Washington were cross-examined on the discrepancies in their testimonies. The jury was made well aware that Smith and Tillman admitted that they had initially lied about their involvement. The jury was also made aware that Smith and Tillman had received favorable sentences partly in exchange for their testimonies against Gordon.

¶ 12. It is well settled that “[i]t is the jury [that] determines the weight of the testimony and the credibility of the witnesses at trial....” Teasley v. Buford, 876 So.2d 1070, 1075 (¶ 8) (Miss.Ct.App.2004). Gordon’s theory of defense was that Tillman and Head had a disagreement, and it was only Tillman who had shot at Head and Hall. The jury was made aware of this defense. The jury chose to believe Gordon was a participant in the shooting. Viewing the evidence in the light most favorable to the State, we find that the jury could have found the elements of aggravated assault beyond a reasonable doubt. This issue is without merit.

B. Weight of the Evidence

¶ 13. A motion for a new trial challenges the weight of the evidence. Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003). When reviewing a denial of a motion for a new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). “We will not set aside a guilty verdict for the reason that it is against the weight of the evidence, unless it is clear that the verdict is the result of bias, prejudice^] or is manifestly against the overwhelming weight of the evidence.” Flanagan v. State, 605 So.2d 753, 757 (Miss.1992). “Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged, short of a conclusion on our part that the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.” Id. (quoting Dickerson v. State, 441 So.2d 536, 538 (Miss.1983)).

¶ 14. While Gordon is correct that the only incriminating evidence against him was the testimonies of Smith and Tillman, that is enough to sustain a conviction. The general rule regarding accomplice testimony is that “the uncorroborated testimony of an accomplice may be sufficient to convict an accused. However, the general rule is inapplicable in those cases where the testimony is unreasonable, self[-]contradictory[,] or substantially impeached.” Williams v. State, 32 So.3d 486, 490 (¶ 14) (Miss.2010) (quoting Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995)). “Clear law in the State of Mississippi is that the jury is to regard the testimony of co-conspirators with great caution and suspicion.” Id. at (¶ 12) (quoting Derden v. State, 522 So.2d 752, 754 (Miss.1988)). “Although granting a cautionary instruction regarding the testimony of an accomplice is within the trial judge’s discretion, such an instruction is required when the accomplice’s testimony is the sole basis for the conviction, and the defendant’s guilt is not clearly proven.” Id. (citing Wheeler v. State, 560 So.2d 171, 173 (Miss.1990)).

¶ 15. The jury was instructed by the trial court to weigh the accomplices’ testimonies “with great care and caution and look upon it with distrust and suspicion.” No other eyewitness testimony was given as to the events of that night. Gordon presented one witness — his brother, Matt Gordon, an employee at the Yellow Tree— who testified as to the events at the Yellow Tree on the night before the shooting. Viewing the evidence in the light most favorable to the verdict, we find the verdict is not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. This issue is without merit.

II. HEARSAY

¶ 16. Gordon argues that the testimony of Captain Sam Chambers of the Holmes County Sheriffs Department was unnecessary and inadmissible hearsay. Gordon also argues that Captain Chambers’s testimony violated the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 17. Captain Chambers interviewed Tillman and Smith concerning the shooting. At trial, Captain Chambers was asked to summarize their statements. Gordon’s counsel objected each time Captain Chambers was asked to give a summary, but the objections were overruled. Captain Chambers recounted that according to Tillman, the altercation started at the Yellow Tree and continued the next night when the men saw Head at a club in Thornton. Gordon and Tillman approached Head at the club and “had some words.” When Head and Hall left the club, Gordon, Tillman, and Smith chased the men down in Smith’s car. Captain Chambers stated that according to Tillman, “[Gordon] was shooting out the front right passenger window with a rifle, and [Tillman] was on the back seat[,] and [Tillman] ... shot twice with a 40[-]caliber [firearm] out the window.”

¶ 18. As for Smith’s statement, Captain Chambers testified as follows:

[Smith] stated that he — when they was [sic] in Thornton, he was sitting outside in the car. [Gordon] and Tillman ran over there and jumped in the car and told him catch that Chevy that was going down the road. He said once he caught up with it, turned the lights off and shot — then they started shooting. And when he seen [sic] the car was leaving the road, he just turned around in the highway and headed back toward Thornton....

¶ 19. On appeal, Gordon argues that the trial court’s reason for overruling the objection was pretextual. He argues that the trial court allowed Captain Chambers’s testimony in order to bolster the otherwise weak testimonies of Tillman and Smith.

¶ 20. We cannot find that Captain Chambers’s testimony violated the Confrontation Clause because both Smith and Tillman were available for cross-examination. We also do not find the trial court overruled the objections for pretextual reasons. Mississippi Rule of Evidence 801(d)(1)(B) states that a statement is not hearsay if the “declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.... ” The supreme court has held that “admission of a prior consistent statement of a witness where the veracity of the witness has been attacked is proper but should be received by the court with great caution and only for the purpose of rebuttal so as to enable the jury to make a correct appraisal of the credibility of the witness.” Caston v. State, 823 So.2d 478, 489 (¶ 43) (Miss.2002) (quoting White v. State, 616 So.2d 304, 308 (Miss.1993)). Such a statement should not be elicited by the State prior to an attack on the witness’s credibility. Id. (citing Clemons v. State, 732 So.2d 883, 891 (¶ 32) (Miss.1999)).

¶ 21. At trial, Gordon’s attorney objected to Captain Chambers’s testimony on the basis that it was hearsay, cumulative, and irrelevant. The prosecutor countered that the statements were not hearsay because they were statements made by a co-conspirator. See M.R.E. 801(d)(2)(E). The trial court then overruled the objection. The trial court did not specifically state why Gordon’s objection was overruled. Captain Chambers’s testimony does not fall under Mississippi Rule of Evidence 801(d)(2)(E) as a statement made by a co-conspirator because this section requires the statement to have been made “during the course and in furtherance of the conspiracy.” Captain Chambers gave a summary of what happened the night of the crime; he did not testify as to specific statements made by Tillman and Smith in furtherance of the conspiracy. Regardless of the trial court’s reason for overruling the objection, “[a]n appellate court may affirm a trial court if the correct result is reached, even if the trial court reached the result for the wrong reasons.” Methodist Hosp. of Hattiesburg, Inc. v. Richardson, 909 So.2d 1066, 1070 (¶ 7) (Miss.2005).

¶ 22. Captain Chambers’s testimony was consistent with Smith’s and Tillman’s testimonies at trial, and it rebutted previous fabrications made by both witnesses. Both Smith and Tillman had already testified, and their credibility was attacked on cross-examination. We find that Captain Chambers’s testimony was properly admitted as it was not hearsay or a violation of the Confrontation Clause. This issue is without merit.

¶ 23. THE JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ„ CONCUR. BARNES AND MAXWELL, JJ„ CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MYERS, J., NOT PARTICIPATING.


author: IRVING, P.J.,

text:
    Thomas J. GARDNER III, Appellant v. CITY OF TUPELO, Mississippi, Ed Neely, Dick Hill, Smith Heavner, Doyce Deas, Carolyn Mauldin, Bill Martin, Mike Bryan, Thomas Bonds, Berdell Jones, as The City Council of the City of Tupelo, Mississippi, and Wilson Coleman, Appellees.
    No. 2010-CA-01733-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      R. Shane McLaughlin, attorney for appellant.
    Pope S. Mallette, Oxford, Paul B. Watkins Jr., attorneys for appellees.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On April 15, 2008, the Tupelo City Council voted to rezone forty-five acres of land from Rl-L (large-lot residential) to PUD (Planned Unit Development). Thomas J. Gardner III owns property adjacent to the property rezoned by the City Council and opposes the rezoning. On April 24, 2008, Gardner filed a bill of exceptions challenging the City Council’s decision to rezone the property. The Lee County Circuit Court affirmed the City Council’s decision. Feeling aggrieved, Gardner appeals and asserts that the circuit court erred in affirming the rezoning of the property because there was insufficient evidence of a change in the neighborhood’s character or a public need.

¶ 2. Because there was not clear and convincing evidence of a change in the neighborhood’s character or a public need, the City Council erred in rezoning the property. Likewise, the circuit court erred in affirming the City Council’s decision. Therefore, we reverse and render the decision of the City Council rezoning the forty-five-acre tract, and the judgment of the circuit court affirming the decision.

FACTS

¶ 3. On January 1, 2007, Wilson Coleman filed a “Request for Rezoning” with the City of Tupelo’s Department of Planning and Community Development (Planning Department). Coleman sought to have forty-five acres of his property rezoned from large-lot residential to PUD. Coleman intended to develop a residential neighborhood, consisting of single-family homes and a retirement community, on the property.

¶ 4. The Planning Department reviewed the request and issued a report recommending that Coleman’s request for rezoning be approved. On April 15, 2008, the City Council held a public hearing regarding the rezoning request. Gardner appeared at the hearing and opposed the rezoning. However, the City Council voted to approve Coleman’s request to rezone the forty-five acres from large-lot residential to PUD.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. A city council’s decision regarding zoning will “not be set aside unless it is clearly shown to be arbitrary, capricious, discriminatory, or is illegal, or without a substantial evidentiary basis.” Thomas v. Bd. of Supervisors, 45 So.3d 1173, 1180 (¶ 22) (Miss.2010) (quoting Faircloth v. Lyles, 592 So.2d 941, 943 (Miss.1991)). Furthermore, “[t]he action of the zoning authority must not be disturbed where the issue is ‘fairly debatable.’ ” Id. at 1181 (¶ 23) (quoting Childs v. Hancock County Bd. of Supervisors, 1 So.3d 855, 859 (¶ 12) (Miss.2009)). An issue is “fairly debatable” where “there is substantial evidence supporting both sides of a rezoning application....” Id. (quoting Edwards v. Harrison County Bd. of Supervisors, 22 So.3d 268, 274 (¶ 18) (Miss.2009)).

¶ 7. Gardner argues that the circuit court erred in affirming the City Council’s decision to rezone the property from large-lot residential to PUD. Specifically, Gardner asserts that there is insufficient evidence that the character of the neighborhood has changed or that public need calls for rezoning. Before a zoning board may reclassify property from one zone to another, there must be proof that “(1) a mistake in the original zoning occurred; or (2) a change in the character of the neighborhood occurred that justified rezoning, and a public need existed for the rezoning.” Thomas, 45 So.3d at 1181 (¶ 24). The applicant seeking rezoning must prove the existence of either the first or second prong, set out above, by clear and convincing evidence. Id.

¶ 8. At the outset, we note that the City of Tupelo contends that the City Council’s decision to approve Coleman’s request for a PUD does not constitute rezoning, and, therefore, its decision should not be evaluated under the “change or mistake” rule discussed above. The City asserts that PUDs do not eliminate the existing zoning ordinances; instead, PUDs supplement the ordinances with “additional regulations and development restrictions.” However, the City cites no Mississippi case law in support of its argument, and we are aware of none. In fact, the Mississippi Supreme Court has consistently categorized PUD designations as rezoning and has evaluated such designations using the “change or mistake” rule. See Fondren N. Renaissance v. City of Jackson, 749 So.2d 974 (Miss.1999); Old Canton Hills Homeowners Ass’n v. City of Jackson, 749 So.2d 54 (Miss.1999). This issue is without merit.

¶ 9. The City does not claim error in the original zoning; therefore, this Court’s analysis will focus on whether there was sufficient evidence that the character of the neighborhood had changed and that rezoning satisfied a public need. There is no bright-line rule as to what constitutes sufficient evidence of change in a neighborhood’s character or public need. Thomas, 45 So.3d at 1182 (¶ 30). However, there must be enough evidence for the zoning board to reach an informed decision. Id.

¶ 10. The City argues that the rezoning is justified based on the changing character of the area. Specifically, the City points out that Toyota plans to build a plant near the rezoned property and that a private school had recently been built in the area. However, the record contains no evidence as to how either the Toyota plant, which will be located seven miles from the property, or the school has changed the character of the neighborhood. Furthermore, this Court has held that the potential for future development does not constitute evidence of a change in a neighborhood’s character. Cockrell v. Panola County Bd. of Supervisors, 950 So.2d 1086, 1095 (¶ 20) (Miss.Ct.App.2007).

¶ 11. In Cockrell, Sheryll and Linda Martin sought to rezone their property from agricultural to industrial and to relocate their scrap-metal business to the rezoned property. Id. at 1088 (¶2). J.M. and Lisa Cockrell owned 105 acres adjacent to the Martins’ proposed location for their scrap-metal business and had begun construction on a $1,000,000 home. Id. The Panola County Board of Supervisors approved the rezoning request over the Cockrells’ objection. Id. at (¶ 1). The Board concluded that the character of the neighborhood had changed because a culvert-manufacturing business, located adjacent to the Martins’ property, had recently expanded its operations, and a manufacturer of storage buildings had opened a warehouse half a mile from the Martins’ property. Id. at 1092-93 (¶ 15). Additionally, the county’s industrial development authority sought to develop and market property near the Martins’ property as a “major industrial site,” and the Board believed that the rezoning would aid such efforts. Id. at 1093 (¶ 15).

¶ 12. This Court held that the Martins had not presented clear and convincing evidence that the character of the neighborhood had changed. Id. at (¶ 16). The Court noted that there was no concrete evidence of the culvert manufacturer’s expansion such as evidence of increased traffic near the facility, increased production at the facility, or increased hiring of employees for the facility. Id. Instead, the Martins’ attorney offered only “vague references” that the facility was expanding. Id. at 1094 (¶ 17). Additionally, this Court rejected the Board’s argument that the character of the neighborhood had changed based on the storage-building business, which was located half a mile away from the Martins’ property. Id. at (¶ 19). Finally, this Court rejected the Board’s argument that rezoning the Martins’ property would improve the area’s potential for “future industrial development.” Id. at 1095 (¶ 20).

¶ 13. In this case, the City’s rationale for its decision to rezone the property is based on speculative future changes in the neighborhood’s character. However, in Cockrell, this Court rejected the notion that future potential development constitutes a substantial change in the character of a neighborhood warranting rezoning. Id. The City argues that the character of the neighborhood has changed because a Toyota plant will be built seven miles from the property and because a school has been built near the property. This Court concluded in Cockrell that the existence of a business one-half mile away from the rezoned property did not constitute a change in the neighborhood’s character, and we see no basis for holding differently in this case where the business is located seven miles from the rezoned property. Additionally, like Cockrell, there is no quantification of how the Toyota plant will impact the rezoned property. Instead, Coleman merely alluded to anticipated future growth in the area following the plant’s completion. Likewise, there was no evidence as to how the recently built private school had changed the neighborhood.

¶ 14. Finally, we note that the report issued by the City’s Planning Department describes the area as “rural in character with hayfields, pastures, and large[-]house lots.” Also, in the report’s analysis of whether the changes in the neighborhood warranted the rezoning, the Planning Department concluded that such changes were “not applicable.” Based on the report’s description of the area, we can only interpret this to mean that such changes did not exist.

¶ 15. The record before this Court simply does not support a change in the neighborhood’s character that warrants rezoning. Insufficient proof of such a change leads this Court to conclude that the City Council’s decision was arbitrary and capricious. Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1227 (¶ 23) (Miss.2000).

¶ 16. While an inquiry into public need is unnecessary given our holding that Coleman failed to present the City Council with clear and convincing evidence of a change in the neighborhood’s character, we pause briefly to note that even the evidence presented to the City Council regarding public need was insufficient to justify rezoning. At the April 15, 2008 hearing, the City Council heard testimony that the proposed residential development would assist in attracting retirees to Tupe-lo, which promotes itself as a certified retirement community. However, there was no evidence of an existing public need for a new retirement community. The City Council also heard testimony that demographic trends indicate that people prefer living in higher-density neighborhoods, like Coleman’s proposed development. However, there was no presentation of empirical data supporting the existence of such trends. The only concrete evidence presented to the City Council regarding public need consisted of testimony from Pat Falkner, the city planner. Falkner opined that based on projected population growth, future housing needs would require the construction of approximately 450 houses each year and that currently only 120 to 130 houses are being built annually. However, Falkner provided no estimate of when the City’s increased housing needs would occur.

¶ 17. Based on our review of the record, we are unable to find any evidence upon which the City Council could rely upon to justify rezoning the property. Without a change in the neighborhood’s character or an existing public need, this Court must conclude that the City Council’s decision was arbitrary and capricious. Accordingly, we reverse and render the decision of the City Council rezoning the forty-five-acre tract, and the judgment of the circuit affirming the decision.

¶ 18. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MYERS AND BARNES, JJ., NOT PARTICIPATING.

      . The City cites several cases from foreign jurisdictions, which explain that the overarching purpose of PUDs is to provide zoning boards with greater flexibility in zoning decisions than that which is available through traditional zoning. See Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670 (Colo.1982); Levitt Homes, Inc. v. Old Farm Homeowner’s Ass'n, 111 Ill.App.3d 300, 67 Ill.Dec. 155, 444 N.E.2d 194, 202 (1982). However, as the Colorado Supreme Court noted in Tri-State, "the same flexibility which is the primary virtue of a PUD ordinance also results in a loss of certainty and a concomitant concern with the misuse or abuse of discretionary authority.” Tri-State, 647 P.2d at 678. Accordingly, the Colorado Supreme Court explained that "courts have generally required that standards be incorporated into a planned development ordinance in order to protect against arbitrary state action. ..." Id. The court further noted that the Thornton PUD ordinance required the city’s planning commission to consider the following criteria: (1) "[c]ompatibility with the surrounding area,” (2) "[hjarmony with the character of the neighborhood,” and (3) "[n]eed for the proposed development.” Id. Notably, these criteria are nearly identical to those found in the "change or mistake” rule. Furthermore, the standards that the Colorado Supreme Court reasoned would prevent arbitrary state action, are not found in Tupelo’s PUD ordinance. Tupelo Dev.Code § 5.5.5(2)(a)-(m). Tupelo's ordinance requires only "[a] description of the relationship of the planned unit development to the surrounding land uses...." Id. at (f).

      . While there is no test to determine what constitutes sufficient evidence of a change in a neighborhood’s character or a public need, our supreme court has provided some guidance stating that, at a minimum, a zoning board should consider evidence such as "maps showing a change [in a neighborhood’s character] or recent rezoning in the area, statistics or other evidence of growth in the neighborhood, and charts showing the quantity of construction [in the area],” or other comparable evidence. Thomas, 45 So.3d at 1182-83 (¶ 30).


author: IRVING, P. J.,

text:
    Jeremy COOLEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01501-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      Jeanine M. Carafello, M. Judith Barnett, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   IRVING, P. J.,

for the Court:

¶ 1. On July 27, 2010, Jeremy Cooley was convicted of felonious child abuse. The Copiah County Circuit Court sentenced Cooley to thirty years’ imprisonment to be served in the custody of the Mississippi Department of Corrections. Cooley filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, Cooley appeals and argues that the circuit court erred in (1) admitting the testimony of the school nurse, (2) commenting on the availability of a witness during closing arguments, and (3) allowing testimony regarding a stun gun “test” performed by the police.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Cooley lived in a trailer with his ex-wife, Lindsay Cooley, and his roommate, Norman Odom. J.D., Lindsay’s seven-year-old son from a previous relationship, also lived in the home. J.D. was developmentally delayed and mildly autistic. On November 9, 2009, J.D.’s teacher took him to the principal’s office because she was concerned about injuries that she had noticed on J.D.’s face, head, and neck. The principal asked the school nurse, Michelle Berch, to evaluate J.D.’s injuries. Nurse Berch testified that upon seeing J.D., she immediately noticed a quarter-sized bruise on his forehead, bruising on his left cheek and left ear, and a two-inch laceration on the top of his head. Nurse Berch then lifted J.D.’s shirt and found numerous burns on his stomach and back. Nurse Berch testified that when she asked J.D. what had happened he replied, “Jeremy did this” and “Click, click, burn him.”

¶ 4. Lindsay testified that when Cooley returned home from work on November 8, 2009, he asked to speak to J.D. privately regarding an incident at school the previous week where J.D. had soiled his pants. According to Lindsay, Cooley sent her to the back bedroom and instructed her not to come out until he called for her. Lindsay testified that Cooley and J.D. were alone for approximately thirty minutes and that she did not hear J.D. scream or make any noise during that time. She testified that when she later saw J.D., she could tell that “something was wrong with him.” Additionally, she testified that she saw marks on J.D.’s face and a cut on his head. When she asked J.D. what had happened, he “shut down.” When she questioned Cooley, he told her it was “none of [her] business.” Lindsay testified that she had never seen Cooley as angry as he was that day.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. School Nurse’s Testimony

¶ 6. Cooley alleges that the circuit court erred in admitting Nurse Berch’s hearsay testimony regarding J.D.’s injuries. A circuit court’s decision regarding the admissibility of evidence is reviewed for abuse of discretion. Valmain v. State, 5 So.3d 1079, 1082 (¶ 9) (Miss.2009). However, we will not reverse a circuit court’s decision “unless the error adversely affects a substantial right of a party.” Hargett v. State, 62 So.3d 950, 953 (¶ 7) (Miss.2011) (citing Ladnier v. State, 878 So.2d 926, 933 (¶ 27) (Miss.2004)).

¶ 7. The Mississippi Supreme Court has held that statements identifying the perpetrator in a child-abuse case may be admitted under Rule 803(4) of the Mississippi Rules of Evidence. Branch v. State, 998 So.2d 411, 414 (¶ 10) (Miss.2008). However, before a victim’s statement regarding fault will be deemed admissible under Rule 803(4), it must satisfy a two-part test. Id. “First, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment.” Id. (quoting Jones v. State, 606 So.2d 1051, 1056 (Miss.1992)). Our supreme court has further explained that statements “made by a child[-]abuse victim that the abuser is a member of the immediate household are reasonably pertinent to treatment, as treatment encompasses treating emotional and psychological injuries and is relevant to prevention.” Id. (quoting Jones, 606 So.2d at 1056-57).

¶ 8. We hold that Nurse Berch’s testimony, which included J.D.’s statement identifying Cooley as his abuser, was properly admitted under Rule 803(4). After observing injuries on J.D.’s face, head, and neck, the school principal asked Nurse Berch to examine J.D. Nurse Berch performed further examination of J.D.’s back and stomach and noted numerous burn marks. After examining J.D., Nurse Berch asked him what had happened to him, and J.D. replied, “Jeremy did this.” J.D.’s statement was certainly consistent with the purpose of promoting treatment.

¶ 9. As for the second part of the test, our supreme court has held that “a child[-]abuse victim’s statement, which identifies an abuser as an immediate household member, is reasonably pertinent to treatment.” Branch, 998 So.2d at 415(¶ 12) (citing Jones, 606 So.2d at 1056-57). Our supreme court has further explained that the overriding concern when treating victims of child abuse is “ensuring] that a child is not returned to the environment that fostered, allowed, or permitted the abuse.” Valmain, 5 So.3d at 1084 (¶ 20) (quoting Hennington v. State, 702 So.2d 403, 414-15 (¶48) (Miss.1997)). Cooley was a member of J.D.’s immediate household; therefore, his statement to Nurse Berch was reasonably pertinent to his treatment and admissible under Rule 803(4). Consequently, the circuit court did not err in allowing Nurse Berch’s testimony. This issue is without merit.

2. Court’s Comments During Closing Argument

¶ 10. Cooley also alleges that the circuit court erred in commenting, during defense counsel’s closing argument, on a witness’s availability. During closing argument, the following exchange occurred:

[DEFENSE COUNSEL]: Now, if this child had been able to honestly tell you, [“]hey, that man did it, he’s guilty and you should punish him,[”] don’t you think that he would have been here? Do you realize that what we don’t have here is the victim?
[THE STATE]: Your honor, the victim can be called by either side.
[THE COURT]: That’s true, Counsel.
[DEFENSE COUNSEL]: He’s not here because-
[THE STATE]: Once again, they could have called the victim if they wanted to.
[THE COURT]: This was a witness that was equally available to either side, Counsel.
[DEFENSE COUNSEL]: The bottom line is we don’t have any motive here. She can’t show any motive....

Cooley’s defense counsel failed to object to the circuit court’s comment regarding J.D.’s availability as a witness. Our supreme court has consistently held that “failure to make a contemporaneous objection constitutes waiver of an issue on appeal.” Derouen v. State, 994 So.2d 748, 751 (¶ 7) (Miss.2008). As such, this issue is procedurally barred. Id.

¶ 11. Procedural bar notwithstanding, Cooley’s assignment of error lacks merit. Notably, it was Cooley’s defense counsel who initially commented on the State’s failure to call the victim as a witness. Defense counsel’s comment during closing arguments invited a response from the State, and when defense counsel commented a second time on the State’s failure to call J.D. as a witness, the circuit court responded by pointing out that the victim was available to both parties as a witness. “A defendant cannot complain on appeal of alleged errors invited or induced by himself.” Spicer v. State, 921 So.2d 292, 307 (¶ 28) (Miss.2006) (quoting Caston v. State, 823 So.2d 473, 502 (¶ 101) (Miss.2002)). Accordingly, this issue lacks merit.

3. Admission of Stun Gun “Test”

¶ 12. Cooley argues that the circuit court erred in admitting the testimony of Chad Sills, an investigator with the Co-piah County Sheriffs Department. Prior to trial, Investigator Sills volunteered to be stunned by a stun gun similar to the one Cooley may have used to inflict J.D.’s injuries. Investigator Jerry Spell then photographed the marks left by the stun gun on Investigator Sills’s arm. At trial, Investigator Sills testified that he was stunned twice on his arm — once over his clothes and once on his bare skin.

¶ 13. Cooley admitted that he owned a stun gun; however, there was no evidence that J.D.’s injuries were inflicted by a stun gun. Dr. Scott Benton, an expert in pediatric forensics, testified that the injuries on J.D.’s chest, buttocks, neck, and thighs consisted of a repetitious pattern of discrete circular marks. Dr. Benton further opined that the circular marks were caused by “an object that contacted the body.” However, Dr. Benton never offered an opinion that J.D.’s injuries were caused by a stun gun.

¶ 14. We hold that the admission of Investigator Sills’s testimony regarding the stun gun “test” was error. Given the lack of evidence that J.D.’s injuries were caused by a stun gun, Investigator Sills’s testimony was irrelevant. However, “[w]here error involves the admission or exclusion of evidence, [an appellate court] ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Hargett, 62 So.3d at 953 (¶ 7) (quoting Ladnier, 878 So.2d at 933 (¶ 27)). We fail to see how admission of Investigator Sills’s testimony prejudiced Cooley, especially in light of the substantial evidence against him. Nurse Berch testified that when she asked J.D. what had happened to him, J.D. replied, “Jeremy did this.” Additionally, Lindsay testified that after she left J.D. with Cooley so that they could “talk privately,” she saw marks on J.D.’s face and a cut on his head. As such, we hold that the admission of Investigator Sills’s testimony was harmless error.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF FELONIOUS CHILD ABUSE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . In the interest of the victim’s privacy, the minor’s name has been substituted with fictitious initials.

      . Lindsay was indicted along with Cooley for felonious child abuse; however, she pleaded guilty to a lesser charge that is not indicated in the record.

      .Rule 803(4) provides that the following statements are exempted from the hearsay rule:
      Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term "medical” refers to emotional and mental health as well as physical health.


text:
    Brandon L. BROOKS, Appellant v. Dawn Jackson BROOKS, Appellee.
    No. 2010-CA-00416-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      William Matthew Thompson, Jackson, attorney for appellant.
    Renee M. Porter, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Brandon Brooks and Dawn Jackson Brooks were married for approximately seven years before being granted a divorce in February 2010 in the Jones County Chancery Court on the ground of adultery. Dawn was awarded custody of the couple’s four children, and Brandon was awarded visitation. Dawn was also awarded the exclusive use of the marital residence until the youngest child turns eighteen years old. Brandon was ordered to pay the mortgage on the house, rehabilitative alimony, child support, and the outstanding medical bills associated with the births of the children.

¶ 2. Brandon now appeals, asserting the chancellor erred in the following findings: (1) the award of child support, (2) the division of property, (3) the award of alimony, (4) the award of attorney’s fees, and (5) the visitation schedule. Finding the chancellor made a clerical error in awarding child support, we affirm the chancellor’s judgment with a modification to the child support based on the correct percentage provided by statute. All other issues are affirmed without change.

FACTS

¶ 8. Brandon and Dawn were married for approximately five years before separating. The couple married while in college. After Brandon finished college, he attended law school while Dawn completed a bachelor’s degree in Mass Communications. Brandon opened a law practice in Jones County, Mississippi, and Dawn worked in his law office. Dawn helped set up the office by making phone calls to line up contract work, designing the letterhead, and decorating the office.

¶ 4. When Dawn was required to be at home more with the children, Dawn’s cousin, Ashley Friend, was hired to work part time at Brandon’s office. Brandon began an affair with Ashley, which ultimately led to Brandon and Dawn’s separation. Brandon and Ashley were expecting a child together when his and Dawn’s divorce was finalized. Brandon and Dawn’s four children were all under the age of five at the time of the divorce.

STANDARD OF REVIEW

¶ 5. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 628, 625-26 (¶8) (Miss.2002) (citations and internal quotations omitted). Furthermore, we “will affirm the [child-custody] decree if the record shows any ground upon which the decision may be justified.... We will not arbitrarily substitute our judgment for that of the chancellor who is in the best position to evaluate all factors relating to the best interest ] of the child.” Mosley v. Mosley, 784 So.2d 901, 905-06 (¶ 15) (Miss.2001) (quoting Yates v. Yates, 284 So.2d 46, 47 (Miss.1973)).

DISCUSSION

I. CHILD SUPPORT

¶ 6. The chancellor ordered Brandon to pay $958 per month in child support based on his monthly adjusted gross income of $3,686.84. In doing so, the chancellor stated: “Neither party has rebutted the presumption that the statutory child support guidelines are applicable in this case. The percentage of statutory guideline child support for four children is 26%.” The percentage stated by the chancellor is incorrect. The statutorily recommended child support for four children is 24% of adjusted gross income. Miss.Code Ann. § 43-19-101(1) (Rev.2009). The guideline for five or more children is 26%.

¶ 7. Mississippi Code Annotated section 43-19-101(2) (Rev.2009) states:

The guidelines provided for in subsection (1) of this section apply unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.

It is apparent from the record that the child-support award of 26% was a clerical error. The chancellor did not make a finding that the statutory guidelines were inappropriate. Instead, the chancellor specifically found that “[n]either party has rebutted the presumption that the statutory child support guidelines are applicable....”

¶ 8. Since the chancellor clearly stated that neither party had overcome the rebut-table presumption that the statutory guidelines applied, we affirm but modify this aspect of the chancellor’s judgment. Applying the statutorily recommended amount of 24% for four children to Brandon’s adjusted gross income of $3,686.84, the correct amount of child support is $885.

¶ 9. In addition to the incorrect percentage being applied, Brandon argues that the chancellor based child support on an incorrect amount of income. The chancellor found Brandon’s monthly adjusted gross income to be $3,686.84. Brandon argues that he correctly reported his adjusted gross income of $3,320 on his Rule 8.05 financial statement. Miss. Unif. Ch. Ct. R. 8.05. Brandon asserts that the chancellor erred in using his income from 2007 because it was an unusually good year for his law practice. In 2007, Brandon’s reported income was $71,583. After considering the evidence, the chancellor found Brandon had understated his income in 2007 by approximately $30,000. As for Brandon’s argument that the chancellor weighed his 2007 income too heavily, Brandon failed to provide income tax returns for 2008 and 2009. The chancellor noted that without proper information, it was “reasonable to base [his] conclusions about Brandon’s current income on the most recent documentation in evidence, which consists of the 2007 income tax returns and Exhibit 4, along with both Dawn’s and Brandon’s own testimony.” Exhibit 4 is a handwritten itemization of expenses. We find this argument without merit as the chancellor properly relied on the evidence presented.

¶ 10. Finally, Brandon argues that the chancellor converted the mortgage payments into additional child support by ordering that he pay the mortgage until the youngest child turned eighteen years old. He cites Pierce v. Pierce, 42 So.3d 658 (Miss.Ct.App.2010) in support of his argument. In Pierce, Martin Pierce was ordered to pay the mortgage on the marital home until his ex-wife, Star, remarried or until Star’s child graduated from high school or left home. Id. at 663 (¶ 23). The couple had no children together, but Star had a daughter from a previous relationship. Id. Martin argued that the award was not logical because Star’s daughter might not finish high school and could remain in the house past the time she should have graduated. Id. at (¶ 26). Also, the award may result in unintended tax consequences because alimony is tax deductible and child support is not. Id. On appeal, this Court found that Martin had waived these issues by failing to raise them before the chancellor. Id. Although the case was remanded on another issue, this Court instructed: “On remand, the chancellor should avoid triggering any alimony award on a life event of Star’s daughter, since Martin has no legal duty to provide for [Star’s daughter’s] support.” Id. at 664 (¶ 26). This case is distinguishable from the case at hand since Brandon does not dispute that he is the father of the children.

¶ 11. We cannot find that the mortgage payment was a form of additional child support. The award in the chancellor’s order was given under the heading, “Equitable Distribution,” and it was ordered after a discussion of the Ferguson factors. The chancellor ordered that when the house is sold, Brandon should receive 60% of the equity, and Dawn should receive 40%. The chancellor reasoned that “Brandon’s larger percentage will reflect his payment of debt, taxes[,] and hazard insurance over the next sixteen or so years.... ” The upkeep and maintenance of the property are Dawn’s responsibility, except for repairs in excess of $1,000, which are the equal responsibility of both parties. Since the mortgage payment was part of the equitable distribution of the assets and Brandon will receive a portion of the equity back when the house is sold, the house payment is not the equivalent of child support. This issue is without merit.

¶ 12. As we find the chancellor made a clerical error in awarding the child support, we affirm but modify the child-support award of $958 and order Brandon to pay child support in the amount of $885 per month. We find that the other arguments raised under this issue are without merit.

II. EQUITABLE DIVISION

¶ 13. Brandon argues the chancellor failed to take the couple’s liabilities into account when dividing the marital property. Brandon also argues the chancellor sought to punish him through the property division for having an affair. ¶ 14. When dividing property, the chancellor should consider the factors set out in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994):

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties[,] and duration of the marriage; and
c. Contribution to the education, training^] or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn[,] or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decreet,] or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income[,] and earning capacity; and,
8. Any other factor which in equity should be considered.

¶ 15. Brandon takes contention with the chancellor’s findings in four of the above factors—one, five, six, and seven. He argues the chancellor weighed factor one—contribution to the stability and harmony of the marital and family relationships—too heavily against him because of his affair. The chancellor found that although both parties contributed to the marital and family relationships, Brandon ultimately destabilized the marital and family relationships through his affair and attempts to place blame on Dawn. We find the chancellor appropriately considered the affair, and we find no evidence that the chancellor weighed it too heavily in dividing the property.

¶ 16. As to factor five—tax and other economic consequences, Brandon argues he will suffer severe tax consequences if the mortgage payments are deemed to be child support. This issue is without merit as we have found the mortgage payments not to be part of child support.

¶ 17. As to factors six and seven— the extent to which property division may eliminate periodic payments and other potential sources of future friction between the parties and the needs of the parties for financial security, Brandon argues the chancellor’s findings left him with insufficient funds to support himself. He argues Dawn does not need to rely heavily on him for financial support because she has a college degree and can work. He suggests Dawn should work because she “enjoys waitressing, washing airplanes[,] and working part-time.” The parties agree it is not feasible for Dawn to return to her part-time job in Brandon’s law office given the divorce and the presence of his paramour in the office. The chancellor found Dawn was afforded great flexibility while working in Brandon’s law office, and it is unlikely she would find another job that allows such flexibility.

¶ 18. Brandon contends that his mother could keep the children while Dawn works. However, there was no testimony that Brandon’s mother was willing or able to do so. Brandon asserts his testimony was sufficient to show that his mother could care for the children. The testimony he cites for this proposition is as follows:

Q. Before you and Mrs. Brooks separated, who provided the baby-sitting services for the children?
A. My mother.
Q. And how often would your mother keep the children for y’all?
A. She would keep them a minimum of four days a week, a lot of weeks five, and I would say a good—at least one night overnight, maybe two—
Q. Okay.
A. —some weeks.

¶ 19. We find Brandon’s testimony as to his mother’s willingness to care for the children prior to the separation falls short of providing proof of available childcare after the divorce. We find all of Brandon’s arguments regarding the equitable distribution of property are without merit.

III. ALIMONY

¶ 20. The chancellor ordered Brandon to pay $325 per month in rehabilitative alimony from March 1, 2010, until December 31, 2013. Brandon argues that he is unable to pay this amount. He also argues rehabilitative alimony is unnecessary as Dawn is able to work. Brandon cites to Dawn’s past work experience as an intern with Governor Haley Barbour’s office, a marketing employee at Howard Industries, a waitress, and an airplane washer as evidence of her ability to find employment.

¶ 21. “ ‘Rehabilitative periodic alimony’ is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995). When awarding alimony, the chancellor should consider the Armstrong factors. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). The chancellor should also consider “the reasonable needs of the wife and the right of the husband to lead as normal a life as possible with a decent standard of living.” Gray v. Gray, 562 So.2d 79, 83 (Miss.1990).

¶ 22. Brandon takes issue with factor one from Armstrong — the income and expenses of the parties. Armstrong, 618 So.2d at 1280. Brandon argues that rather than considering the evidence, the chancellor instead awarded alimony as a means of punishing him for the adultery. The chancellor found that Dawn could not meet her expenses without assistance from Brandon. Even working part time, she would not be able to meet her obligations. Further, we agree with the chancellor’s finding that Brandon failed to show evidence that he was unable to pay alimony. In awarding the alimony, the chancellor noted:

... Brandon, who has been paying the court-ordered support since June 22, 2009, has been able to pay support to Dawn in the amount of $250 per week, plus the house note, plus household expenses, without any increase in debt. Exhibit 2 shows debt only for the home mortgage, a car note for a vehicle Brandon purchased after the separation, and a student loan. Since neither party has reported any sizeable cash on hand, it is obvious that Brandon could manage to pay Dawn’s support from either of only two sources: current income; or newly-acquired debt. Since he reports no new debt the conclusion is inescapable that Brandon has been paying Dawn from current income, and that he is managing to pay his other expenses in like manner. In addition, Brandon testified at trial that he would be willing to pay the house note for Dawn and the children’s benefit if he could have extra visitation, which the court finds to be a curious position for a person who claims to be unable to meet his expenses with the amount of income he has.

¶ 23. We find the chancellor’s decision was supported by the evidence. This issue is without merit.

IV. ATTORNEY’S FEES

¶ 24. Brandon was ordered to pay Dawn’s attorney’s fees of $3,498 plus interest of 6% per annum, payable at $150 per month.

¶ 25. When awarding attorney’s fees, the chancellor must consider the following:

The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

McKee v. McKee, 418 So.2d 764, 766 (Miss.1982).

¶ 26. Brandon argues that he is unable to pay Dawn’s attorney’s fees. And, again, he argues the award was a punishment for his adultery. He argues Dawn was capable of paying her own attorney’s fees. As discussed above, we cannot find that the chancellor abused his discretion in determining the parties’ income and expenses. The chancellor found Brandon was able to pay Dawn’s attorney’s fees. At the time of the hearing, Dawn had been unable to make any payments toward her attorney’s fees. We find this issue is without merit.

V. VISITATION

¶27. Brandon and Dawn agreed that Dawn would have custody of the children; however, Brandon argues the visitation schedule set by the chancellor unnecessarily restricts his visitation with the children. He argues that he should have “extensive visitation.” The chancellor’s opinion adopts the temporary order setting visitation, which states that Brandon should have the children the first, second, and third weekends of each month. He also has visitation on alternating holidays, half of the summer and spring breaks, and any other reasonable time agreed to by the parties. Brandon argues the chancellor set the schedule as punishment for his affair and based on Dawn’s false testimony about him.

¶ 28. Dawn and her mother testified Brandon was a good father. However, several incidents occurred during the marriage that raised concerns. Dawn testified Brandon kicked in the door of the marital home on several occasions. She testified that she had called the police three or four times when he kicked in the door, but there were additional times she did not call. She testified that on one occasion after kicking in the door, he pulled out a gun. Brandon alleges it was Dawn’s mother who pulled out the gun, and he took it from her to gain control of the situation. Dawn’s mother testified she had the gun in her possession in a holster with a zipper on it, and Brandon took the gun from her and took it out of the holster. Brandon was in possession of the gun when the sheriffs department arrived.

¶ 29. Brandon was charged with driving under the influence in 2009. Dawn testified that Brandon drove with the children in the car while his driver’s license was suspended. Brandon testified that he was unaware his license was suspended and that this incident brought no harm to the children. Dawn testified Brandon left the children with others to take trips to the Mississippi Gulf Coast and to go to a Halloween party. Also, Brandon admitted he had allowed his girlfriend to be present while he had visitation with the children. He admitted this was inappropriate. Brandon has complained that Dawn denied him some of his visitation with the children; however, Dawn also cited occasions where Brandon had failed to return the children to her in a timely manner.

¶ 30. Brandon called Dr. Carl Dickerson to testify regarding visitation. Dawn objected based on marital privilege because Dr. Dickerson was their marriage counselor before the divorce. The chancellor sustained the objection. By way of proffer, Dr. Dickerson testified that during the couple’s eight to ten sessions, Dawn did not complain about Brandon’s parenting skills. Brandon asserts the chancellor should have considered this and granted him more liberal visitation.

¶ 31. “Visitation is a matter within the chancellor’s sound discretion.” Gilliland v. Gilliland, 969 So.2d 56, 72 (¶ 59) (Miss.Ct.App.2007) (citing Mixon v. Mixon, 724 So.2d 956, 961 (¶15) (Miss.Ct.App.1998)). “The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children, and the chancellor’s visitation decision is afforded great deference by this Court.” Id. We cannot find the visitation schedule set by the chancellor to be unnecessarily restrictive. The chancellor considered the best interests of the children in setting visitation. We can find no abuse of discretion. This issue is without merit.

CONCLUSION

¶ 32. The chancellor made a clerical error in awarding child support based on the statutory guidelines in the amount of 26% of Brandon’s adjusted gross income. The correct amount, however, for four children according to the statutory guidelines is 24%. We affirm the child-support award, but we modify the judgment to correct the percentage used by the chancellor. The chancellor determined that Brandon’s adjusted monthly gross income was $3,686.84. The award of $958 in child support to be paid by Brandon is changed to $885 per month, which represents 24% of Brandon’s adjusted monthly gross income of $3,686.84. All other issues are affirmed without change.

¶ 33. THE JUDGMENT OF THE JONES COUNTY CHANCERY COURT IS AFFIRMED AS MODIFIED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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