author: ROBERTS, J.,

text:
    Norma Slater MOORE, Appellant v. Robert M. BAILEY, DeSoto Land Corporation and Annice Kyle, Appellees.
    No. 2008-CA-01853-COA.
    Court of Appeals of Mississippi.
    April 6, 2010.
    Rehearing Denied Aug. 10, 2010.
    Certiorari Denied Oct. 28, 2010.

      Christian T. Goeldner, Paige Ann McDowell, Southaven, attorneys for appellant.
    William P. Myers, Jamie Monsour Hall, Hernando, Richard Glassman, Todd Mur-rah, Southaven, attorneys for appellees.
    Before LEE, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Norma Slater Moore sued Annice Kyle, Robert M. Bailey, and the DeSoto Land Corporation (DLC) and raised numerous causes of action based on the underlying concept of misrepresentation incident to Moore’s purchase of a home. Kyle, Bailey, and DLC all successfully moved for summary judgment. Aggrieved, Kyle appeals and raises seven issues. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. This appeal evolves from the construction and subsequent sale of a home in DeSoto County, Mississippi. In January 2004, licensed builder Steve Hooker began construction of the home at issue as part of his larger speculative housing subdivision venture. As construction progressed, the home passed the first two inspections required by the DeSoto County Planning Commission (DCPC). However, later that year, Hooker filed for bankruptcy and surrendered the partially-completed home and the underlying property to the mortgage holder. At the time, there was no further progress on construction of the home. It remained partially finished for the remainder of 2004.

¶ 3. In February 2005, DLC purchased the still partially-finished home. Bailey, acting for DLC in his capacity as president of the company, retained real estate broker Kyle to act as the listing agent for the home. DLC hired Richard Brewer to complete the construction of the home, although Brewer was not a licensed builder at that time.

¶4. The next month, DLC discovered that it was necessary to secure further building permits to complete construction of the home. However, because Brewer was not a licensed builder at that time, he could not obtain the necessary permit. Bailey, acting for DLC, asked licensed builder Witt Long to acquire the permit. As requested, Long obtained the permit despite his never having actively participated in the construction. Brewer, still unlicensed, completed the construction. Similarly, at Bailey’s request, Hale Electric acquired the necessary electrical permits. No one on Brewer’s construction crew was a licensed electrician. As with Long, Hale Electric acquired the permits, although no one from Hale Electric participated in the installation of the home’s electrical services.

¶5. On May 4, 2006, the home passed the DCPC’s final inspection. Later that month, Moore first expressed an interest in the home. Kyle drafted an initial disclosure statement on behalf of DLC and presented it to Moore. Kyle’s initial disclosure statement indicated that: (1) the home was a new construction; (2) the roof was new; (8) the home contained new appliances; (4) a one-year builder’s warranty accompanied the purchase of the home; (5) the home had been built in compliance with relevant building codes; (6) there was no evidence of rot, mildew, vermin infestation, or rodent infestation; (7) the home had never been treated for infestation; and (8) no additions, remodeling, structural changes, or other alterations had occurred during DLC’s ownership of the home.

¶ 6. On the recommendation of her real estate agent, Joel “Duck” Hawkins, on June 8, 2006, Moore had the home inspected by Randy Brassfield of Brassfield Appraisal and Inspection Services. Hawkins also recommended that Brassfield inspect Moore’s home. Brassfield’s inspection report indicated that the property was one year old. Hawkins reported that he had the same impression regarding the age of the home.

¶ 7. Brassfield found no structural problems or concerns. He listed numerous “areas of concern” and suggested the following remedial measures: (1) removal of trees with exposed root balls; (2) “re-mortar[ing]” of a small hole and two cracks in the external mortar of the home; (3) removal of a fire ant mound near the gas meter; (4) tightening of two light fixtures; (5) straightening of the mailbox; (6) clearing the back lot of debris and logs; (7) touch-up paint in certain specified areas; (8) replacement of some weatherstripping; (9) adjustment of a dead bolt; (10) placement of splash blocks under downspouts; (11) adjustment of an electrical-switch plate to make it flush with an internal wall; (12) covering of an exposed thermostat wire; (18) having an air-conditioning technician review a small, vibrating air-conditioning unit; (14) sealing the attic furnaces with tape; (15) caulking and painting of specified crown moulding and caulking of the fireplace mantle; (16) removal of dead bugs from a light fixture; and (17) treatment for insects. Additionally, Brassfield included a statement that “[t]he buyer requests professional cleaning due to pets and insects.” Although she expressed no dissatisfaction at the time, Moore later complained that Brassfield failed to properly inspect the home. She did not include him as a defendant to this litigation.

¶ 8. On June 20, 2006, at Moore’s request, Hawkins informed Kyle that Moore was no longer interested in purchasing the home. However, a few days later, Hawkins contacted Kyle again and stated that Moore “has decided to take the last offer your seller made. She has had a change of heart[,] and the decision to reject the last offer was done [sic] in hast[e].”

¶ 9. Kyle amended the disclosure statement. The amended disclosure statement no longer listed the home as “new.” Instead, the amended disclosure statement indicated that the home was nine to twelve months old. Kyle made a similar amendment to the disclosed age of the appliances, but she did not amend the age of the roof. Furthermore, the amended disclosure statement omitted any reference to the one-year builder’s warranty, which DLC reportedly could not provide because it was not a builder.

¶ 10. On June 26, 2006, Moore executed a purchase agreement. Acting in his capacity for DLC, Bailey reviewed, initialed, and signed the purchase agreement. Bailey also executed addendums to the purchase agreement and the buyer/seller certification agreement. Four days later, Moore closed on the home and purchased it for $258,000.

¶ 11. The record contains a letter that Moore wrote to the Mississippi Real Estate Commission (MREC) on February 24, 2007. Within that letter, Moore stated that, on July 1, 2006, just days after closing, she told Kyle that she would be pursuing fraud charges against her. Moore also indicated that the home was infested with fleas. According to Moore, on July 4, 2006, a “cleaning crew” treated the home for fleas. Moore claimed that the cleaning crew professed to have used a poison that had been banned by the Environmental Protection Agency. Moore did not move into the home until July 8, 2006.

¶ 12. According to Moore, she “began to immediately notice major flaws.” She claimed that Kyle and DLC refused to make any repairs. In October 2006, she discovered that Long and Hale Electric had obtained permits for Brewer, who had actually performed the work. Tom Hud-gens, an estimator with Armil Construction Company, Inc., concluded that Moore would need to spend approximately $78,000 to address Hudgens’s findings and recommendations. On July 2, 2008, which was after Moore initiated this litigation, engineer Robert B. Aymett inspected the home. Among other things, Aymett stated that “[t]here are a number of defects in the construction of this building. While most of these defects in workmanship do not threaten the structural integrity or stability of the building, they are below the expected quality for a home of this size and price.”

¶ 13. On June 26, 2007, Moore filed a complaint in the DeSoto County Circuit Court and sued DLC, Bailey, and Kyle. Moore filed causes of action for breach of contract, tortious breach of contract, breach of implied warranty, breach of the implied covenants of good faith and fair dealing, negligent misrepresentation, grossly negligent misrepresentation, and fraud. Moore requested that the circuit court rescind the purchase agreement or award her damages.

¶ 14. Bailey and DLC filed a motion for partial summary judgment. Kyle later filed her own motion for summary judgment. The circuit court heard both motions and subsequently took them under advisement. On October 2, 2008, the circuit court granted both motions. Other matters will be discussed in greater detail as necessary. Aggrieved, Moore appeals.

STANDARD OF REVIEW

¶ 15. This Court conducts a de novo review of orders granting or denying summary judgment. Mantachie Natural Gas Dist. v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992). According to Rule 56(c) of the Mississippi Rules of Civil Procedure, a circuit court may grant summary judgment “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.” “A fact is material if it ‘tends to resolve any of the issues, properly raised by the parties.’” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991) (quoting Mink v. Andrew Jackson Cas. Ins. Co., 587 So.2d 481, 433 (Miss.1988)).

¶ 16. The moving party bears the burden of showing that no genuine issue of material fact exists. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). Additionally, the circuit court must view the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997). Furthermore, the circuit court must consider motions for summary judgment with a skeptical eye. Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986). It is better for the circuit court to err on the side of denying the motion. Id.

ANALYSIS

I. TIMELINESS OF KYLE’S MOTION FOR SUMMARY JUDGMENT

¶ 17. This issue pertains to the agreed scheduling order by which the parties were obligated to file any dispositive motions on or before August 22, 2008. The agreed scheduling order also stated that a hearing on any such motion must occur no later than September 5, 2008, or that motion would be deemed abandoned. Kyle filed her motion for summary judgment on August 22, 2008; therefore, she filed her motion within the deadline set forth by the agreed scheduling order.

¶ 18. Moore argues that Kyle failed to provide adequate notice of the hearing on her motion for summary judgment. Pursuant to Mississippi Rule of Civil Procedure 56(c), Kyle was required to provide Moore with at least ten days’ notice in advance of a hearing on her motion. Accordingly, to meet the September 5, 2008, deadline for scheduling a hearing, as set forth in the agreed scheduling order, Kyle would have had to provide Moore with a notice of hearing on or before August 26, 2008. In this issue, Moore complains that Kyle did not provide her with notice of a hearing by that date. We are mindful that “[tjrial courts have inherent authority and duty to control their dockets for orderly disposal of business.” Mallet v. Carter, 803 So.2d 504, 508 (¶ 9) (Miss.Ct.App.2002).

¶ 19. On August 29, 2008, all of the parties were before the circuit court incident to a hearing on a motion to bifurcate the proceedings. During that hearing, Kyle’s attorney requested that the circuit court hear Kyle’s motion for summary judgment on September 4, 2008, which was the same date that the circuit court was scheduled to hear Bailey and DLC’s motion for summary judgment. Moore’s attorney objected to the hearing date. Moore’s attorney argued that “[tjhere [was] no reason that [Kyle’s attorney] couldn’t have put [the motion for summary judgment] on the docket before September 5th as opposed to cram [sic] a special setting in and cram something on us.”

¶ 20. The circuit court then asked Moore’s attorney whether she was “fine with a hearing before September 5th.” Moore’s attorney responded and said, “I’m fine with hearing it before September 5th if we have time to respond. Obviously, we haven’t been noticed for any hearing.” Kyle’s attorney noted that Moore had not responded to Kyle’s motion for summary judgment, but Kyle had allowed Moore an extension of time in which to respond. The circuit court then asked all parties whether their schedules would allow for a hearing to occur on September 4, 2008. All parties agreed to that date. To be specific, Moore’s attorney stated, “[wje’re clear.”

¶ 21. On September 2, 2008, Moore filed her response to Kyle’s motion for summary judgment. Within her response, Moore stated that she was not waiving her right to receive ten days’ notice of a hearing on a motion for summary judgment, as set forth by Mississippi Rule of Civil Procedure 56(c). Moore also stated that she intended to retain her right to argue that Kyle’s motion for summary judgment should be deemed abandoned pursuant to the agreed scheduling order. However, Moore’s attorney did not specifically raise either issue during the actual hearing. The circuit court did not address Moore’s abandonment argument in its order, except to note that Moore did not raise her abandonment arguments during the hearing on Kyle’s motion for summary judgment.

¶ 22. Moore argues that the circuit court erred when it allowed Kyle to schedule a hearing on her motion for summary judgment when Moore did not comply with the ten-day notice requirement of Rule 56(c). According to Moore, it was pointless to reiterate her abandonment argument at the actual summary judgment hearing. We find that Moore did not necessarily waive her abandonment argument, because she presented it during the hearing on the motion to bifurcate. She also advanced her argument in her response to Kyle’s motion for summary judgment. However, we find no error in the circuit court’s decision to allow Kyle to schedule the hearing on her motion for summary judgment.

¶ 23. Kyle filed her motion for summary judgment within the agreed scheduling order’s deadline. Moore never claimed that she received untimely notice of Kyle’s motion for summary judgment. She was not ambushed by the motion.

¶24. Moore cites Pope v. Schroeder, 512 So.2d 905, 908 (Miss.1987), in which the Mississippi Supreme Court held that a circuit court erred when it granted a motion for summary judgment where the movant failed to provide ten days’ notice of the hearing on the motion. However, the movant in Pope merely raised an ore tenus motion for summary judgment during a hearing on a co-defendant’s motion for summary judgment incident to the worker’s compensation litigation. Id. at 907. The movant in Pope failed to even raise the motion prior to the co-defendant’s motion hearing. Id. Here, Moore raised her motion for summary judgment within the time prescribed by the agreed scheduling order. The only issue is whether she timely scheduled her hearing. Additionally, the hearing on Kyle’s motion took place thirteen days after Kyle had filed her motion. In Pope, the Mississippi Supreme Court noted that in some circumstances, procedural error in granting a summary judgment may be harmless, such as under circumstances in which the ten-day notice is impractical, and it is absolutely clear that the non-moving party suffered no prejudice from a shortening of the time period. Id. at 908. Here, Moore suffered no prejudice due to the shortened period of time between the time she received notice of a hearing date and the actual hearing date. Combined with the circuit court’s inherent authority to manage its docket, we find no reversible error in this issue.

II. STANDARD TO OVERCOME SUMMARY JUDGMENT

¶ 25. In its order, the circuit court stated that “Moore has put on no affidavits of anyone with fírst[-]hand knowledge that Kyle knew of any facts that she did not disclose about the home.” The circuit court went on to state the following:

Moore asserted that Kyle had personal knowledge of defects with the property which would materially affect the value of the home and Kyle had a duty to disclose the defects. Although she submitted her own affidavit, Moore's allegations in her affidavit are not supported by affidavit or deposition testimony. The affidavit mentions what others will testify about but not actual affidavits of those who will testify.

Finally, the circuit court stated that: “Personal knowledge of what others will say is not personal knowledge at all.” Accordingly, the circuit court concluded that “Moore’s affidavit [was] not based on personal knowledge” and held that Moore had, therefore, failed to demonstrate the existence of any genuine issues of material fact. Consequently, the circuit court granted Kyle’s motion for summary judgment.

¶ 26. Moore claims the circuit court erred. Moore’s argument under this heading applies broadly to each of her numerous allegations regarding negligent misrepresentation and fraud. However, for clarity’s sake, rather than addressing these concepts in conceptual generalities, it is more appropriate to address this relatively broad issue in conjunction with each of Moore’s individual claims of misrepresentation. Accordingly, we will address the arguments raised under this heading as we analyze Moore’s specific arguments in Issue VII.

III. STATUTORY CAUSE OF ACTION

1127. In her complaint, Moore claimed that she was entitled to recover damages from Kyle pursuant to the Real Estate Brokers License Law of 1954 set forth in Mississippi Code Annotated section 73-35-1 through -37 (Rev.2008). The circuit court held that Moore was not qualified to recover damages from Kyle pursuant to any statutory provision within the Real Estate Brokers License Law of 1954. Moore claims the circuit court erred.

¶28. Moore claims that she was entitled to recover damages from Kyle based on language from Mississippi Code Annotated section 73-35-21 (Rev.2008). Additionally, Moore argues that Mississippi Code Annotated section 73-35-31 (Rev. 2008) also provides her with an actionable private cause of action against Kyle. We disagree.

¶29. Based on the plain language of the statute, section 73-35-21(1) lists the grounds by which the MREC may justify refusing an applicant’s request for a real estate broker’s license. Section 73-35-21(1) also addresses the circumstances under which the MREC may revoke or suspend an existing real estate broker’s license. There is no provision in section 73-35-21 that operates as a private cause of action that a disgruntled purchaser may bring against a real estate broker.

¶ 30. Section 73-35-31(1) sets forth punitive measures in the form of potential penalties or imprisonment for violations of the Real Estate Brokers License Law of 1954. Section 73-35-31(2) states as follows:

In case any person ... shall have received any sum of money ... as commission, compensation or profit by or in consequence of his violation of any provision of this chapter, such person ... shall also be liable to a penalty of not less than the amount of the sum of money so received and not more than four (4) times the sum so received, as may be determined by the court, which penalty may be sued for and recovered by any person aggrieved and for his use and benefit, in any court of competent jurisdiction.

The cornerstone of this issue is whether Moore qualifies as a “person aggrieved,” within the context of section 73-35-31(2). We addressed the meaning of a “person aggrieved” as contemplated by section 73-35-31(2) in Leary v. Stockman, 937 So.2d 964, 974 (¶ 50) (Miss.Ct.App.2006). In Leary, this Court stated that “[w]e interpret the statute to apply to situations in which a foreign broker or agent receives a commission from either the buyer or the seller; so that the foreign broker or agent is penalized for his unlicensed transaction.” Id. Accordingly, while we disagree with the trial court’s characterization that section 73-35-31 fails to provide for a civil remedy, we find that section 73-35-31 does not provide a civil cause of action that Moore may utilize against Kyle. Our interpretation does not mean that Moore or any other similarly-suited party is prohibited from seeking recovery against a licensed real estate broker. Instead, we merely conclude that, under the precise circumstances of this case, section 73-35-31(2) is not a statutory mechanism that Moore may use to pursue a civil remedy against Kyle. Accordingly, we find no reversible error.

IV.DISCLAIMER

¶ 31. In its order granting summary judgment, the circuit court noted that “Moore also signed a contract [that] contained a disclaimer which absolved Kyle of all liability.” The disclaimer at issue appeared in the purchase agreement. Moore claims the circuit court erred. However, based on our resolution of Moore’s other assignments of error, this issue is moot. That is, even if we were to find that the disclaimer language was void, in Issue VII, we find that Moore failed to demonstrate the existence of any genuine issues of material fact regarding her fraud claims.

V. BAILEY’S PERSONAL LIABILITY

¶32. Kyle claims that Bailey should have been found personally liable for torts he committed while acting on DLC’s behalf. However, in Issue VII, we find no error in the circuit court’s decision to grant Bailey and DLC’s motion for summary judgment. Accordingly, whether Bailey should be held personally liable is irrelevant.

VI. RESCISSION

¶ 33. In this issue, Kyle claims that the circuit court erred when it held that rescission was not an appropriate remedy for fraud. However, we find that the circuit court did not err when it granted the Appellees’ motions for summary judgment. It follows that it is premature to determine whether rescission would or would not be an appropriate remedy.

VII. GENUINE ISSUES OF MATERIAL FACT

¶34. Moore claims the circuit court erred when it granted Kyle’s motion for summary judgment and Bailey and DLC’s motion for partial summary judgment. According to Moore, the circuit court failed to recognize the existence of any genuine issues of material fact. Moore claims there were genuine issues of material fact incident to all six of her causes of action for fraud.

¶ 35. To demonstrate a prima facie case of fraud, otherwise known as intentional misrepresentation, a plaintiff must demonstrate by clear and convincing evidence the following nine elements:

(1) a representation (2) that is false (3) and material (4) that the speaker knew was false or was ignorant of the truth (5) combined with the speaker’s intent that the listener act on the representation in a manner reasonably contemplated (6) combined with the listener’s ignorance of the statement’s falsity (7) and the listener’s reliance on the statement as true (8) with a right to rely on the statement, and (9) the listener’s proximate injury as a consequence.

Moran v. Fairley, 919 So.2d 969, 975 (¶ 28) (Miss.Ct.App.2005). Clear and convincing evidence is defined as follows:

that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.

Johnson v. Bay City South Mortgage Co., 928 So.2d 888, 892 (¶ 14) (Miss.Ct.App. 2005). The clear and convincing standard of proof “is such a high standard [of proof] that even the overwhelming weight of the evidence does not rise to the same level.” Id. However, we are not concerned with whether Moore met her burden of proof. Instead, we merely determine whether there were genuine issues of material fact sufficient to defeat the Appellees’ motions for summary judgment.

¶ 36. Moore attached an “itemization of misrepresentations to her complaint.” Within that document, Moore listed eighteen matters that she considered to be misrepresentations by Kyle, Bailey, and DLC. The circuit court addressed all eighteen alleged misrepresentations in its order granting summary judgment. On appeal, however, Moore claims the circuit court erred in finding no genuine issue of material fact regarding only five alleged misrepresentations. We address each alleged misrepresentation separately.

1. The Age of the House

¶ 37. Moore claims she was fraudulently told that “the home had been completed by Hooker prior to DLC purchasing it[,] but [the home] had not sold in over a year.” According to Moore, there was a genuine issue of material fact regarding whether that representation was false. Moore claims the following matters demonstrate the presence of genuine issues of material fact: (1) according to Kyle’s affidavit, the home had some structural features when DLC purchased it, but it was not completely finished; (2) DLC spent approximately $75,000 to complete the home; (3) DLC was required to obtain additional building permits to complete the home; and (4) the home passed its final inspection on May 4, 2006, which was more than a year after DLC had purchased the home.

¶ 38. Moore claims that Kyle knew that she falsely represented the age of the home. Moore draws our attention to Kyle’s testimony that she was familiar with the condition of the property when Hooker owned it. Moore also notes that Kyle testified regarding the condition of the property when DLC purchased it in 2005. Additionally, Moore points out that Kyle testified regarding why she changed the age of the property in the amended property-disclosure document in June 2006. As for Bailey/DLC, Moore claims Bailey knew that the property was not “new” because DLC: (1) hired Brewer to finish the home, (2) invested money toward the completion of the home, and (3) obtained additional building permits to complete the construction of the home.

¶ 39. The initial property-disclosure statement indicated that the property was “new.” However, the amended property-disclosure statement indicated that the property was nine to twelve months old. Accordingly, Moore was correctly informed about the age of the construction. At best, the alteration was an attempt to correctly classify the age of the home, which was ambiguous in that it had been partially completed, abandoned, sold, and completely finished. Many of Moore’s arguments regarding DLC’s knowledge of the age of the home could be used as reasoning to conclude that the home was “new.” That is, one could argue that the home was correctly classified as “new” in that: (1) it had not been purchased by anyone who had lived in the home; (2) it had been necessary for DLC to contract with builders to finish the construction; and (3) it had been necessary for those builders to secure permits and a final inspection of the home. Although the presence of that ambiguity suggests that there was a genuine issue of material fact regarding whether the representation of the home’s age was false, there is no evidence that Moore suffered proximate injury as a result. Consequently, we find no merit to this assignment of error.

2. Bailey and/or DLC’s Involvement in Construction

¶ 40. Next, Moore claims that she was fraudulently told that “DLC/Bailey had nothing to do with the construction of the home and merely held it as investment property.” Among other things, the circuit court held that Moore “put forth no proof [that] she was injured by any representation that Bailey was or was not the ‘builder.’” We agree.

¶41. First and foremost, there is no evidence that Bailey or DLC was or had ever been a licensed builder. Second, we agree with the circuit court that Moore put forth no evidence that she somehow suffered damages simply because she was told that Bailey or DLC was not a builder. Having found no genuine issue of material fact, we find no merit to this portion of Moore’s assignment of error.

3. Additions, Renovations, or Alterations During DLC’s Ownership

¶ 42. Next, Moore claims she was fraudulently told that “no additions, renovations, or alterations had been made to the home during DLC’s ownership.” A statement somewhat to that effect appeared in the amended property-disclosure statement. However, the precise statement was that there had not been any “additions, remodeling, structural changes, or other alterations to the property.”

¶43. On appeal, Moore states that “[t]hese misrepresentations are so interrelated with the first [representation regarding the age of the home] that the evidence showing knowledge of falsity or ignorance of truth would be the same; thus, Moore does not discuss them again here.” We agree that the representation regarding the age of the home is interrelated to Moore’s allegation that she was misled regarding whether there had been any additions, structural changes, or modifications to the home during the time that DLC owned it. Because there was no evidence that Moore suffered a proximate injury based on any representation to that effect, there was no genuine issue of material fact regarding that element of a prima facie case of fraud. Moore had the property inspected before she purchased the home. Moore’s own real estate agent recommended the inspector. Although we do not hold that the pre-purchase inspection, in and of itself, absolved Kyle, Bailey, or DLC of liability, under the precise circumstances of this case, there is no evidence that Moore suffered a proximate injury based on that alleged misrepresentation. Consequently, we find no merit to this portion of Moore’s assignment of error under this heading.

4. Compliance with Relevant Building Codes and State Laws

¶ 44. Next, Moore claims she was fraudulently told that “all work on the home had been done by licensed professionals in compliance with the building code and state law.” The amended property-disclosure statement reflects that Moore was told that the “residence [was] built in conformity with an approved building code.” It is undisputed that the home passed all inspections required by the DCPC. There is no merit to this portion of Moore’s argument.

5. Presence of Mold, Mildew, or Vermin

¶45. Finally, Moore claims that she was fraudulently told that “there was not, nor had there ever been, mold, mildew or rot present in the home.” The initial property-disclosure statement and the amended property-disclosure statement both included a statement that there was no “evidence of rot, mildew, vermin, rodents, termites, carpenter ants, or other infestations.” On appeal, Moore focuses solely on whether she was misled regarding the presence of mold and mildew. In that regard, the circuit court found that there was no genuine issue of material fact regarding whether Moore was misled because Moore only submitted her own affidavit to support her allegation, and she admitted that she did not have any personal knowledge of the matters she advanced. That is, the circuit court noted that, within Moore’s affidavit, Moore swore that unspecified neighbors would testify that the shell of the house was open to the elements for more than fourteen months.

¶ 46. We agree with the circuit court’s resolution. Moore’s affidavit did not include any evidence within her personal knowledge that created a genuine issue of material fact. Instead, Moore’s affidavit merely stated that unspecified neighbors would testify that the home was open to the elements for some time. In effect, Moore swore that someone or some others would swear to certain evidence. Moore’s affidavit in which she swears to matters that were outside of her personal knowledge is insufficient to defeat a motion for summary judgment.

¶ 47. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Brewer obtained his license after he finished working on the home at issue.

      . In her responses to interrogatories, Moore expressed dissatisfaction with Hawkins's services. She accused him of numerous things, including dishonest conduct and unethical behavior. Moore never named Hawkins as a defendant.

      . The home was occupied by renters at the time Moore was considering purchasing it. Those renters had one or more unspecified pets.

      .In her responses to interrogatories, Moore stated that: “Brassfield’s promise to be thorough and to protect my financial interest was deceptive!,] and his inspection revealed that he is possibly incompetent. However, this does not supercede the ‘initial’ deception by the seller, his agent and his builder.”


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF George H. KENDRICK, Sr., Deceased, George H. Kendrick, Jr., Individually and as Administrator of the Estate of George H. Kendrick, Sr., Cheryl K. Rankin and Cynthia K. Coleman, Appellants v. Sonja S. GORDEN, Appellee.
    No. 2009-CA-00456-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.

      Anita M. Stamps, attorney for appellants.
    Ottowa E. Carter Jr., attorney for ap-pellee.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. In December 2006, Sonja S. Gorden petitioned the Hinds County Chancery Court for a determination of the heirs at law of George H. Kendrick Sr. (Kendrick) who had died intestate in September 2006. Following an heirship hearing, the chancery court determined that Sonja had established by elear-and-convineing evidence that she is the biological daughter of Kendrick. Aggrieved, George H. Kendrick Jr., Cheryl K. Rankin, and Cynthia K. Coleman appeal and argue that the chancery court’s ruling is not supported by clear-and-convincing evidence. Finding that the chancery court’s ruling is supported by sufficient evidence, we affirm.

FACTS

¶2. The appellants are all the children of Kendrick and Bennie Noble, who married in 1956 and later divorced in 1976. Sonja, who was born out of wedlock in May 1956, is the biological daughter of Flossie Phungbun.

¶ 3. Flossie testified at the hearing that she and Kendrick met in the summer of 1955, when the two of them were working at a hospital in Jackson, Mississippi. They became romantically involved and engaged in sexual relations. Flossie said that she had heard “through the grapevine” that Kendrick was also courting Bennie during this period of time. In the fall of 1955, Flossie moved to Chicago, Illinois. She and Kendrick continued to see each other, with Kendrick making at least two trips to Chicago to visit her. Sometime in October or November 1955, Flossie learned that she was pregnant with Sonja. Flossie told the chancery court that Kendrick was the father, and she stated that she did not have sexual relations with anyone other than Kendrick while she and Kendrick were seeing each other. At the behest of Flossie’s mother, who lived in Jackson, Flossie moved back from Chicago in the winter of 1956 to have her baby in Jackson. Flossie did not inform Kendrick of her pregnancy until after she had moved back to Jackson. At this point, Kendrick and Bennie had married.

¶ 4. Sonja testified that she learned Kendrick was her father when she was approximately five years old. She met Kendrick for the first time at the home of Flossie’s parents in the presence of Flossie and Flossie’s mother; according to Sonja, they introduced Kendrick as her father. Sonja and Flossie both testified that Kendrick remained actively involved in Sonja’s life from that point forward until his death in 2006. Sonja said that as a child, she saw Kendrick at least every other weekend. Sonja, who lived with her grandparents in Jackson while Flossie lived in Chicago, stated that Kendrick often would stop by her grandparents’ house to check on her and to give her grandmother money. Sonja said that as she grew older, Kendrick often gave her advice on things such as education and boys. Sonja told the court that when she became engaged to her first husband at the age of seventeen, her grandmother asked Kendrick to talk her out of it. Sonja said Kendrick counseled her, and he told her that her fiancé was not the right man for her, but she did not listen. When her first husband began abusing her, Sonja called Kendrick, who came and got her and let her stay with him for a few weeks. Against Kendrick’s advice, she went back to her husband. A couple of months later, Sonja’s husband threw Sonja off a balcony, which put her in the hospital. Sonja said that while there, Kendrick came to see her and he asked her to leave her husband. Sonja complied, and she stayed with Kendrick for a brief period of time thereafter. With Kendrick’s assistance, Sonja eventually moved to Chicago where Flossie was living.

¶ 5. In 1990, Kendrick and Bennie’s youngest son, Darrell Keith Kendrick, died in a house fire at Kendrick’s house. According to Sonja, Darrell’s death caused Kendrick to go into a deep depression. Out of concern for Kendrick’s well-being, Sonja moved in with Kendrick for another brief period of time afterwards to take care of him.

¶ 6. In 2003, when Sonja married her current husband, Lester Gorden, Kendrick helped pay for the wedding, and he walked Sonja down the aisle. Sonja submitted the wedding program into evidence; the program listed both Kendrick and Flossie as Sonja’s parents.

¶ 7. Lester and his mother, Mattie Gor-den, provided testimony that when they first met Kendrick, Sonja introduced him as her father. According to Lester, when he sought Sonja’s hand in marriage, he asked Kendrick for his permission. Kendrick gave his blessing, and he told Lester to be good to his daughter. According to Mattie, Kendrick told her that he was Sonja’s “daddy.”

¶ 8. Charles Richardson, the pastor who had performed Lester and Sonja’s marriage ceremony, testified that when he met Kendrick for the first time prior to the marriage ceremony, Sonja introduced Kendrick as her father. Richardson said Kendrick gave him no reason to believe that Sonja was not his daughter.

¶ 9. Daniel Lee Hawthorne, a friend and work associate of Kendrick’s, testified that Kendrick told him that Sonja was his daughter. Hawthorne said he grew up in the same neighborhood with Kendrick’s other children, and he told the court that he and Darrell were good friends. According to Hawthorne, he and Darrell often visited Sonja at her residence, and he said that Darrell often referred to Sonja as his sister.

¶ 10. George Jr., Cheryl, and Cynthia were the only witnesses to testify in dispute of Sonja’s claim. Their testimonies were consistent in that each testified that they had heard rumors over the years that Sonja was their sister, but Kendrick never expressly stated to them that Sonja was his daughter. None of them indicated that Kendrick had ever expressly disclaimed any such relationship. They each acknowledged that Sonja and Kendrick were close, and that Sonja had spent time at Kendrick’s house, but they insisted that Sonja was merely a close friend of his. Each testified about family reunions and other family gatherings they had attended where Sonja was not present. They told the court that Kendrick had an illegitimate son by the name of Gregory Poindexter, who had predeceased Kendrick, but he was the only illegitimate child that Kendrick and Bennie had ever told them about. Each testified that they attended Sonja and Lester’s wedding at Kendrick’s request. Each claimed that they did not notice the wedding program which listed Kendrick as Sonja’s parent. And each indicated that it was not their place to ask Kendrick why he had walked Sonja down the aisle.

¶ 11. The appellants introduced Sonja’s birth certificate into evidence, which contained a blank space where the identity of the father would normally appear. They also introduced Kendrick’s funeral program into evidence, which contained no mention of Sonja. The program contained no mention of Poindexter either.

¶ 12. Prior to the hearing, the parties agreed amongst themselves to have a DNA test conducted, and they jointly made an ore tenus motion with the chancery court requesting an allowance for one, which the chancery court granted. Specimen samples were taken from Sonja, Flossie, and Dayton Kendrick, the brother of Kendrick, at MedScreens, Inc., in Flo-wood, Mississippi. The samples were sent to Genquest DNA Laboratory in Sparks, Nevada, where they were analyzed by Dr. Elmer Otteson. Dr. Otteson’s testimony was thereafter taken by deposition and later submitted into evidence. Based on his analyses of the three samples, Dr. Otteson concluded, on what he indicated was a reasonable degree of scientific certainty, that Sonja and Dayton were “unlikely to be related as uncle [and] niece, with a .7 likelihood.” This outcome was referred to as a “combined kinship index,” and according to Dr. Otteson, it meant that based on the results obtained from the analysis of the DNA profiles from Sonja, Flossie, and Dayton, Sonja’s DNA profile “is 0.7276 times more likely if the alleged uncle [Dayton,] is the true biological uncle as compared to unrelated persons of the Black population (prior probability = 0.5).” Dr. Otteson explained that a combined index of “one,” reveals no genetic evidence for or against kinship; therefore, the weight of the genetic evidence is stronger the further away the combined kinship index is from “one.”

¶ 13. Taking the above testimony and exhibits into consideration under the clear- and-convincing standard required by Mississippi Code Annotated section 91-1-15(3)(c) (Rev.2004), the chancery court concluded that Sonja is Kendrick’s biological daughter. Accordingly, the chancery court found Sonja was entitled to a twenty-five-percent intestate share of Kendrick’s estate.

STANDARD OF REVIEW

¶ 14. We will not disturb the factual findings of a chancellor unless such find-tags are manifestly wrong or clearly erroneous. Estate of Thomas v. Thomas, 883 So.2d 1173, 1176 (¶ 9) (Miss.2004). “If there is substantial evidence to support the chancellor’s findings of fact, those findings must be affirmed.” Id.

DISCUSSION

¶ 15. As the appellants correctly point out, Sonja had the burden in this case of proving that Kendrick was her natural father by clear-and-convincing evidence. Estate of Robinson v. Gusta, 540 So.2d 30, 33 (Miss.1989) (citing Miss.Code Ann. § 91 — 1—15(3)(c) (Supp.1988)). “Where the putative father is deceased at the time of an action to establish paternity, the claimant must offer clear and convincing proof of paternity.” In re Estate of Grubbs, 753 So.2d 1043, 1048 (¶ 14) (Miss. 2000). This standard reflects the high degree of confidence society demands in such adjudications. Id. And it “serves the interests of legitimate heirs, and of society as a whole, in averting fraudulent claims.” Id. (internal quotations omitted).

¶ 16. The appellants contend that Sonja failed to meet her burden; thus, the chancery court erred in its decision. Citing Woods, 753 So.2d at 1049 (¶ 19), the appellants submit that Sonja’s claim is supported merely by “rumor and gossip.” And they argue that when Sonja’s evidence is taken into consideration along with the compelling DNA results submitted in this case, it cannot be said that Sonja established by clear-and-convincing proof that Kendrick was her natural father.

¶ 17. We disagree. Based on our review of the record, Sonja presented evidence beyond mere rumor and gossip, if believed by the chancellor to be credible, to establish that Kendrick was her natural father. Distinguishable from Woods, the chancellor in this case had before him a witness with personal knowledge of the circumstances surrounding Sonja’s birth. Sonja’s mother, Flossie, provided uncon-troverted testimony that she had engaged in sexual relations exclusively with Kendrick at the time Sonja was conceived. Flossie did not list Kendrick, or anyone else, as the father on Sonja’s birth certificate, but she testified that she told Kendrick that he was Sonja’s father. The evidence further revealed that Kendrick thereafter openly acknowledged and treated Sonja as his natural daughter, as exhibited by the declarations he made to others outside the family and by the fatherly conduct he bestowed on Sonja from the time she was a young girl. No evidence was presented that Kendrick had ever expressly disclaimed Sonja as his daughter. Cf. Thomas v. Thomas, 200 Miss. 96, 102, 25 So.2d 710, 711 (1946).

¶ 18. In Gusta, the supreme court affirmed the chancery court’s ruling in favor of an illegitimate child’s claim that he was the natural son of the decedent, based on similar factual findings. There, the claimant presented evidence of an “intimate, sexual relationship” between the decedent and the claimant’s mother during the nine-month period of time before the claimant’s birth, and there was no indication that the claimant’s mother had sexual relations with any other male during that period of time. Gusta, 540 So.2d at 34. The claimant also presented evidence of “implied acknowledgments” by the decedent of the fact of paternity, such as the decedent’s income-tax returns and food-stamp applications. Id. According to the Gusta court, this limited evidence was “of sufficient quantity and quality that a rational trier of fact could have concluded that [the claimant] had proved by clear[-]and[-]eonvincing evidence that [the decedent] was his natural father.” Id.

¶ 19. Likewise, we find that the evidence presented by Sonja provided a substantial basis upon which the chancellor could have based his decision.

¶ 20. With regard to the DNA results, the record reveals that the chancellor took this information into consideration, but ultimately found the results inconclusive on the issue of paternity. We find no error with the chancellor’s findings.

¶ 21. In his deposition, Dr. Otteson acknowledged that there are problems with the type of test that was conducted in this case. He stated that the test was conducted on the premise that Dayton and Kendrick, as “full-blooded brothers,” shared a lot of the same genes. But he also explained that such a probability can vary, and there was no way of knowing to what extent in this instance. In short, Dr. Otte-son indicated that while the test results revealed that it was unlikely that Sonja and Dayton are related as uncle and niece, the results were nonetheless inconclusive as to whether Sonja is Kendrick’s biological daughter.

¶ 22. In Woods, the chancery court permitted genetic test results into evidence in a heirship proceeding for its consideration on the question of paternity involving a putative father who was deceased. By agreement of the parties in that case, the deceased’s body had been exhumed, and DNA samples were collected and then tested along with the DNA samples taken from the petitioners, who were fraternal twins. Woods, 753 So.2d at 1048 (¶ 16). Two independent DNA laboratories conducted the tests. Id. at 1048-49 (¶ 17). One of the labs determined that the test results were inconclusive. Id. at 1049 (¶ 18). The other lab determined that the probability of paternity with regard to the male twin was 83.7%, and the probability of paternity with regard to the female twin was 71.97%. Id. at 1048-49 (¶17). The chancery court found the results inconclusive. Id. at 1052 (¶35). On appeal, the supreme court held that the weight to be given to such evidence was for the chancellor sitting as trier of fact to determine and, thus, found no error. Id. at 1056 (¶ 55). Citing to Chisolm v. Eakes, 573 So.2d 764, 767 (Miss.1990), a case which involved a paternity action against an alleged putative father who was still living, the Woods court opined as follows:

Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive. [Chisolm, 573 So.2d at 767]. This Court has stated that the fact finder may consider the expert testimony for what it feels the testimony is worth, and may even discard it entirely. Id.

Woods, at 1052 (¶ 37).

¶ 23. Here, the appellants have failed to show any error on the part of the chancery court in its determination that Sonja is the natural daughter of Kendrick. Therefore, we affirm the court’s judgment.

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

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


author: KING, C.J.,

text:
    Sarah MANNING, Appellant v. Frank GRUICH, Jr. d/b/a Gruich Pharmacy Shoppe and Estate of Frank Gruich, Sr., Appellees.
    No. 2009-CA-00933-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.
    Robert W. Smith, Biloxi, attorney for Appellant.
    Brett K. Williams, Thomas L. Mussel-man, Joshua Wesley Danos, Pascagoula, attorneys for Appellees.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court:

¶ 1. Sarah Manning sued Frank Gruich Jr. (Gruich), Gruich Pharmacy Shoppe, and the Estate of Frank Gruich Sr. in the Circuit Court of Harrison County to recover for an injury she sustained by falling at the pharmacy. The jury returned a verdict in favor of Gruich. On appeal, Manning argues that the trial court erred by excluding a set of photographs depicting subsequent remedial measures. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Gruich owns Gruich Pharmacy Shoppe in Biloxi, Mississippi. Upon entering the pharmacy, patrons must step from the parking lot onto the sidewalk, which is three-and-a-half-inches high. For years, there was a green indoor/outdoor carpet that led from the parking lot to the front door of the pharmacy. The carpet was glued to the cement, and the edge of the carpet was folded over the curb.

¶ 3. On April 2, 2003, Manning went to the pharmacy to fill a prescription. Manning attempted to step onto the sidewalk, fell, and broke her left leg. Manning was rushed to the hospital. She waited there for hours before she received medical care. Then, she was transported to an out-of-state hospital for surgery. During this ordeal, Manning almost lost her leg. There is also evidence that she acquired further complications with her leg, which occurred in a subsequent surgery. Ultimately, the damage caused to Manning’s leg left her physically disabled.

¶ 4. On January 5, 2004, Manning filed a lawsuit in the Circuit Court of Harrison County against Gruich, alleging that her injury was caused by his negligence in maintaining his premises. Specifically, Manning argued that because the carpet was folded over the curb, she could not determine the height necessary to step onto the sidewalk. Manning also argued that the cement underneath the carpet was lumpy and that the carpet was not level.

¶5. In preparation for trial, Manning took three sets of photographs of the area of her fall. The first set of photographs was taken within a few weeks of the incident and showed the carpet as it existed at the time of her fall. The photographs also showed that the curb to the left of the carpet was painted blue, indicating a handicap-accessible area; and the curb to the right of the carpet was painted yellow. The second set of photographs was taken approximately three months after the incident and showed changes that had been made to the carpet. At that time, the lip of the carpet had been removed, and the part of the curb that was once covered by the carpet was painted yellow. The third set of photographs was taken after Hurricane Katrina. Because of the hurricane, Gruich completely removed the carpet, which exposed the concrete that once lay underneath the carpet.

¶ 6. Before trial, Gruich filed a motion in limine to exclude any evidence of subsequent remedial measures, specifically the second set of photographs. Manning argued that the photographs were admissible (1) for purposes of impeachment, (2) to show the feasibility of precautionary measures, and (3) to show the condition of the carpet at the time of the incident. The trial court ruled that: (1) there was no testimony to impeach; (2) Manning could present her theory regarding precautionary measures without questioning Gruich about subsequent remedial measures; and (3) the second set of photographs did not show the carpet as it existed at the time of Manning’s fall. Accordingly, the trial court granted Gruich’s motion to exclude the second set of photographs. All other photographs were admitted into evidence.

¶ 7. After hearing the evidence, the jury returned a verdict in favor of Gruich. Thereafter, Manning filed a motion for a new trial, and the trial court denied her motion. Aggrieved, Manning appeals and argues that the trial court erred by excluding the second set of photographs.

STANDARD OF REVIEW

¶8. The admission or exclusion of evidence is left to the sound discretion of the trial court. Tunica County v. Matthews, 926 So.2d 209, 217 (¶18) (Miss.2006). Thus, we will not disturb the trial court’s ruling absent a finding of abuse of discretion. Id.

ANALYSIS

¶ 9. In regard to subsequent remedial measures, Mississippi Rule of Evidence 407 provides that:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Manning argues that the second set of photographs was offered (1) for the purposes of impeachment, (2) to show the feasibility of precautionary measures, and (3) to show the condition of the carpet at the time of the incident.

I. Impeachment

¶ 10. Manning maintains that when asked about changes to the carpet, Gruich testified falsely in his answer to interrogatories and in his deposition. Thus, Manning contends that she should have been allowed to impeach Gruich during the trial. Gruich argues that he has always given truthful responses; thus, he could not be impeached.

¶ 11. In pertinent part, impeachment is defined as “[t]he act of discrediting a witness, as by catching the witness in a lie.... ” Black’s Law Dictionary (8th ed.2004). This Court recognized the impeachment exception to Rule 407 in Alexander v. Greer, 959 So.2d 586 (Miss.Ct. App.2007). In Alexander, a driver hit a pedestrian. Id. at 587 (¶ 2). Shortly after the accident, the driver went to an eye doctor and complained that he had trouble focusing. Id. at 588 (¶ 7). The trial court granted the driver’s motion in limine to exclude this evidence because it was a subsequent remedial measure. Id. During the trial, the driver testified that he did not have any vision problems. Id. at 591 (¶21). This Court found that the trial court should have allowed the evidence of the doctor’s visit in for impeachment purposes. Id. at (¶ 22). Unlike the defendant in Alexander, Gruich did not testify falsely on the stand.

¶ 12. Manning propounded requests for interrogatories to Gruich in 2004. In the interrogatories, Manning asked Gruich to provide dates and descriptions of any changes made to the building and/or sidewalk. Gruich responded that a handicap ramp had been installed ten years ago. Gruich alleges that at the time of his response, he did not know that Manning was complaining about the carpet.

¶ 13.- During the deposition, Gruich was asked whether any changes had been made to the building since 1994. He responded that a handicap ramp was installed. Manning’s counsel inquired whether any other changes had been made to the outside of the building, and Gruich responded that four posts were installed in front of the windows. Then, Manning’s counsel specifically asked: “Have you made any changes to the green carpet since April of 2003?” Gruich responded that the lip of the carpet was removed in the summer of 2003 and explained as follows:

If you notice, [the carpet] folds over and went down. That part every now and then wouldn’t stay glued too good but it wasn’t bulging out where somebody could trip. But we couldn’t get it to stay there glued because it would keep coming up a little bit. So when I had my friends paint the parking lot yellow and the blue and all that, we ended up cutting that off of there, just cut it off and got rid of it.

Gruich admitted in his deposition that the carpet had been altered.

¶ 14. Manning was not allowed to question Gruich about the subsequent remedial measures. However, our review of the record does not show that Gruich gave any false testimony related to this matter during the trial. Thus, we find that the impeachment exception to Rule 407 does not apply in this case. This issue lacks merit.

II. Feasibility of Precautionary Measures

¶ 15. Manning’s theory of the case was that there should have been a color transition between the curb and the carpet, making it easier to gauge the height of the curb. Manning argues that the second set of photographs was necessary to show the effectiveness of such a warning. Gruich argues that this exclusion only applies if the defendant disputes the feasibility of precautionary measures. In response, Manning claims that Gruich did state that a warning was not necessary.

¶ 16. Rule 407 provides that evidence of subsequent remedial measures does not require exclusion when offered to show the “feasibility of precautionary measures, if controverted....” M.R.E. 407. During the trial, Gruich testified that he always thought that the carpet was safe. However, at no time did Gruich controvert the feasibility of precautionary measures.

¶ 17. Manning complains that she was not allowed to present her theory of the case concerning the effectiveness of a color transition. Manning did not provide an expert on this matter. However, Manning’s counsel was allowed to question Gruich about the painted curb during cross-examination.

¶ 18. Gruich testified that the left side of the curb was painted blue to indicate handicap accessibility. He testified that there was no specific reason why the right side of the curb was painted yellow; it had been painted yellow for years. Manning’s counsel asked Gruich whether he thought that painting the curb yellow would make it easier for a patron to gauge the height of the step. Gruich responded: “Not necessarily, no.” Manning’s counsel asked Gruich whether he agreed that removing the carpet would make it easier to gauge the height of the curb, and Gruich disagreed. Gruich did agree that if the carpet had been bulging, it would be a dangerous situation. In addition, the first set of photographs, which were admitted into evidence, clearly showed that the curb to the left of the carpet was blue, and the curb to the right of the carpet was yellow.

¶ 19. Gruich disagreed that either painting the curb or removing the carpet would make it easier for patrons to gauge the height of the step. However, this does not equate to a dispute of the feasibility of precautionary measures. Gruich simply did not believe that these measures would help; he did not dispute the fact that they could be done. Because Gruich did not dispute whether precautionary measures could be taken and Manning was allowed to question Gruich about her theory of the case, we find that this exception to Rule 407 does not apply. This argument is without merit.

III. The Condition of the Carpet

¶ 20. Manning claims that the second set of photographs was necessary to show the condition of the carpet at the time of her fall. Manning also argues that she should have been allowed to ask Gruich why he removed the lip of the carpet.

¶ 21. Manning’s claims have nothing to do with the condition of the carpet at the time of her fall. The trial court allowed the first set of photographs into evidence, and these photographs accurately depicted the condition of the carpet at the time of the incident. The trial court also allowed the third set of photographs into evidence, and these photographs showed the condition of the concrete that lay directly beneath the carpet.

¶ 22. The second set of photographs showed that the lip of the carpet had been removed. The second set of photographs do not accurately depict the condition of the carpet at the time of Manning’s fall. Instead, these photographs depict a subsequent remedial measure, which we find the trial court properly excluded. This issue is also without merit.

CONCLUSION

¶ 28. The trial court did not abuse its discretion by excluding the second set of photographs because the photographs depicted subsequent remedial measures. None of the exclusions to Rule 407 apply in this case because:

I. Gruieh’s testimony did not require impeachment;
II. Gruich did not dispute the feasibility of precautionary measures, and Manning was allowed to present her theory of the case; and
III. The second set of photographs depicted subsequent remedial measures and did not depict the condition of the carpet at the time of Manning’s fall.

Therefore, we affirm the judgment in favor of Gruich.

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

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


author: MAXWELL, J.,

text:
    James D. FULGHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01171-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.

      W. Daniel Hinchcliff, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. A jury in the Webster County Circuit Court found James D. Fulgham guilty of sexual battery and touching a child for lustful purposes. On appeal, Fulgham claims the circuit judge erred in (1) failing to provide sua sponte a limiting instruction when admitting a transcript of a recorded conversation and (2) limiting his defense by cutting short his cross-examination of the victim’s mother. We find no reversible error in admitting the transcript since Fulgham neither requested a limiting instruction nor points to any prejudicial inaccuracies in the transcript. Further, because Fulgham neglected to make a proffer of the testimony he sought to elicit from the victim’s mother, this issue was not preserved for appellate review. Therefore, we affirm.

FACTS

¶2. C.W. was fourteen years old in December 2009 when he spent several nights at his grandmother’s Webster County residence. On December 19, 2008, while C.W. was watching television at his grandmother’s house, Fulgham, who was in his mid-fifties at the time, entered the room and sat next to C.W. on a couch. According to C.W., he became “uncomfortable” when Fulgham moved closer to him and rubbed C.W.’s head and stomach. C.W. recalled that Fulgham told him he loved him and grabbed C.W.’s hand and placed it on his penis. Fulgham then opened C.W.’s mouth and forced it down onto his penis. C.W. testified that he pulled away and told Fulgham to leave him alone.

¶ 3. Early the next morning, C.W. called his father several times asking him to pick him up. When his father arrived at C.W.’s grandmother’s house at 7:00 a.m., he found C.W. standing outside in the cold with his bag packed ready to leave.

¶4. At trial, C.W.’s mother testified about a later phone conversation with Fulgham, during which Fulgham claimed C.W. had unzipped Fulgham’s pants and performed fellatio on him. Fulgham maintained that C.W. then began masturbating in his presence. Some time later, Fulg-ham called C.W.’s mother back and requested to speak to C.W. She asked why Fulgham had allowed this to happen, and Fulgham allegedly told her, “[h]e just wanted to see how far [C.W.] would go.” In June 2009, C.W.’s mother recorded a telephone conversation with Fulgham. At trial, the State offered the recording into evidence and played it for the jury during its case-in-chief.

¶ 5. Fulgham testified in his own defense and blamed C.W. for initiating the sexual encounter. He testified that while he was sleeping on the couch C.W. pounced on him, pulled down Fulgham’s pajamas, and grabbed Fulgham’s penis. Fulgham claimed C.W. then began masturbating. Fulgham contended this happened in the span of “possibly ten seconds.” Fulgham explained that when he came to his senses, he immediately called C.W.’s mother and voiced concerns that C.W.’s father had been molesting the young boy. Fulgham denied gratuitously touching C.W. in any manner.

¶ 6. The jury convicted Fulgham on both counts. And the circuit judge sentenced Fulgham to twenty years’ imprisonment for sexual-battery count and ten years’ imprisonment on the unlawful-touching-for-lustful-purposes charge, with the sentences to run concurrently. The circuit judge denied Fulgham’s post-trial motion for judgment notwithstanding the verdict or, alternatively, a new trial. Fulgham now appeals.

DISCUSSION

I. Admission of the Transcript

¶ 7. At trial, the State offered an audiotape and transcript that it claimed depicted a June 2009 telephone conversation between Fulgham and C.W.’s mother. Fulgham objected to the admission of both the tape and transcript. He argued neither the tape nor transcript memorialized a conversation between C.W.’s mother and grandmother that took place earlier during the phone call. C.W.’s mother explained the tape contained her entire conversation with Fulgham and that she did not record her earlier conversation with C.W.’s grandmother. The circuit court admitted the tape over Fulgham’s objection.

A. Limiting Instruction

¶ 8. At trial Fulgham did not request a limiting instruction regarding the use of the transcript. Now on appeal, he claims error in the circuit court’s failure to instruct the jury sua sponte that the audio recording, not the transcript, is the primary evidence of the conversation. Fulg-ham does not contest admission of the recording.

¶ 9. Though he claims reversible error in the circuit court’s failure to provide the unrequested cautionary instruction, he fails to point to any inaccuracies in the transcript. Nor does he assert any resulting prejudice. Further, at trial, he discovered what he deemed to be an error in the transcript, which the circuit judge corrected to Fulgham’s satisfaction. Then, Fulg-ham used the transcript, not the recording, to cross-examine C.W.’s mother.

¶ 10. The cases he cites in his appellate brief do not address whether a cautionary instruction concerning the permissible use of the transcript must be requested by counsel or raised sua sponte by the court. Coleman v. State, 697 So.2d 777, 784-85 (Miss.1997) (approved cautioning jury that tape is primary evidence and advising the jury that transcript is merely for jury’s convenience in following tape); Dye v. State, 498 So.2d 343, 344 (Miss.1986) (approved limiting instruction that tape is primary evidence and transcript is furnished for convenience in following tape); Denson v. State, 858 So.2d 209, 211-12 (¶ ¶ 9-12) (Miss.Ct.App.2003) (permitted use of transcript where trial judge instructed jury that tape is primary evidence and any conflicts between the tape and transcript should favor recording).

¶ 11. Though Mississippi appellate courts have approved the use of transcripts when limiting instructions are given, neither the supreme court nor this court have addressed whether a trial court must provide, sua sponte, a cautionary instruction. The supreme court in Coleman and Dye favorably recognized the United States Fifth Circuit Court of Appeals’ decision in United States v. Onori, 535 F.2d 938, 946-49 (5th Cir.1976), which analyzed procedures for dealing with alleged inaccuracies in transcripts of recordings. Coleman, 697 So.2d at 785; Dye, 498 So.2d at 344. Thus, we too turn to Onori for guidance.

B. Onori

¶ 12. In addressing various methods for handling contested transcripts, the Fifth Circuit reasoned that district judges “need not necessarily listen to the tapes or pass on the accuracy of any transcript.” Onori, 535 F.2d at 948. The Onori court explained if no “official transcript” can be developed, a transcript may be prepared containing both versions of disputed portions. Id. at 948-49 (citing United States v. Carson, 464 F.2d 424, 437 (2d Cir.1972)). Or the jurors can be given two transcripts, provided the reasons for the disputed portions, and then instructed to determine for themselves which, if either, accurately reflects particular recorded portions. Id. at 949 (citing United States v. Chiarizio, 525 F.2d 289, 293 (2d Cir.1975)). Yet another possibility calls for judges to first explain the alleged inaccuracies in the government’s transcript and then allow the recording, or disputed portions of the recording, to be played twice, once with each transcript. Id.

¶ 13. But regardless of the method employed, “[ujpon request by a defendant, the jury should be instructed that a transcript is just another piece of evidence subject to objections, that it may have to be evaluated for accuracy, and that the jury need not accept any proffered transcript as accurate.” Id. (emphasis added). The Fifth Circuit further reasoned, “[a]s with other forms of potentially prejudicial evidence, the key to protecting a defendant’s rights in this situation lies in seeking limiting instructions.” Id. (emphasis added).

¶ 14. Onori’s rationale — that defendants must request a transcript-based cautionary instruction — comports with our own evidentiary rules. Mississippi Rule of Evidence 105 instructs: “When evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Emphasis added). Indeed, even when seeking to temper prejudice in admitting prior felony convictions under M.R.E. 404(b), the burden to request a limiting instruction remains with trial counsel. Brown v. State, 890 So.2d 901, 913 (¶ 35) (Miss.2004).

¶ 15. It is undisputed Fulgham failed to request a limiting instruction concerning the jurors’ use of the transcript. It is certainly best practice for trial courts to fashion appropriate cautionary instructions, when admitting recordings and purported transcripts. But drawing from Onori and Rule 105, we find the burden falls on the trial counsel to request the-limiting instruction. Based on Fulgham’s failure to seek a cautioning instruction, we find no error in admission of the transcript.

II. Cross-Examination

¶ 16. Fulgham next argues the circuit judge prevented development of his theory of the case. While cross-examining C.W.’s mother, Fulgham asked about C.W.’s friendships. The circuit judge sustained the State’s objection to the relevance of this line of questioning. In his appellate brief, Fulgham suggests his proposed inquiry aimed at fleshing out “[wjhether [C.W.] had previously shown predatory, or sexual aggressive tendencies, or acted inappropriately in some other way[.]” The State argues Fulgham waived this issue by failing to make a proffer on the record after the circuit judge sustained the objection.

¶ 17. Cross-examination is limited to relevant matters. Mitchell v. State, 792 So.2d 192, 217 (¶97) (Miss.2001). A trial court’s ruling will not be disturbed unless there is abuse of discretion. Adams v. State, 851 So.2d 366, 376 (¶28) (Miss.Ct.App.2002). “When a trial court rules so as to prevent certain testimony from being introduced, it is incumbent on the party to make a proffer of what the witness would have testified to or the point is waived for appellate review.” Turner v. State, 732 So.2d 937, 951 (¶ 55) (Miss.1999) (citing Evans v. State, 725 So.2d 613, 669 (¶ 239) (Miss.1997)).

¶ 18. Because Fulgham made no on-the-record proffer of C.W.’s mother’s proposed testimony, he waived his opportunity to challenge the circuit judge’s ruling.

¶ 19. THE JUDGMENT OF THE WEBSTER COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS AND COUNT II, TOUCHING A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF TEN YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WEBSTER COUNTY.

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

      . We use initials to protect the identity of minors.

      . We use the terms grandmother, mother, and father to represent C.W.'s adoptive grandmother, mother, and father.

      .C.W.’s grandmother was previously married to Fulgham’s father. Upon his death, she dated and eventually married Fulgham, her stepson.


author: GRIFFIS, J.,

text:
    Michael KELLY, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01653-COA.
    Court of Appeals of Mississippi.
    Oct. 26, 2010.

      Michael Kelly, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Michael Kelly appeals the Rankin County Circuit Court’s denial of his motion for post-conviction collateral relief. He argues that his motion raises the issue of subject-matter jurisdiction; thus, the motion should not have been denied as time-barred. We find no error and affirm the circuit court’s denial of post-conviction relief.

FACTS

¶2. Kelly pleaded guilty to charges of motor-vehicle theft and house burglary, and he was sentenced to fifteen years in the custody of the Mississippi Department of Corrections with eight years suspended pursuant to five years of post-release supervision. The date that appears above the circuit judge’s signature on the judgment of conviction and sentence is May 10, 2004; however, the circuit court’s certified docket sheet shows that Kelly had entered his guilty plea and was sentenced on May 11, 2004. The judgment of conviction and sentence was stamped filed on May 21, 2004, and it was entered on the docket sheet on May 24, 2004.

¶ 3. The two bills of information charging Kelly were signed by the district attorney and entered on the docket on May 11, 2004. The docket sheet shows that there was a waiver of indictment and an order allowing the State to proceed by bill of information entered on May 11, 2004.

¶ 4. On March 6, 2009, the suspension of Kelly’s sentence was revoked. Kelly filed a motion for post-conviction collateral relief on September 18, 2009. The circuit court denied Kelly’s motion as it was filed more than three years after Kelly had entered his guilty plea.

STANDARD OF REVIEW

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

ANALYSIS

¶ 6. Kelly argues that the circuit court lacked subject-matter jurisdiction to accept his guilty plea and impose his sentence because the sentencing order was signed by the circuit judge the day before the district attorney signed the bills of information. Specifically, Kelly claims that his motion cannot be time-barred because it questions the subject-matter jurisdiction of the circuit court in his criminal proceedings.

¶ 7. Kelly’s motion for post-conviction collateral relief was filed outside of the three-year statute of limitations provided in Mississippi Code Annotated section 99-39-5(2) (Rev.2007). He fails to assert that any statutory exception to the time bar is applicable to his claims. Therefore, in order to obtain our review of his appeal, he asserts a claim pertaining to the subject-matter jurisdiction of the circuit court. We find this claim has no merit; thus, the circuit court correctly denied Kelly’s motion as time-barred.

¶ 8. The record refutes Kelly’s claim that he was sentenced before the bills of information were entered. While it is true that the date above the circuit judge’s signature on the sentencing order is May 10, 2004, the docket sheet shows that Kelly, in fact, entered his petition to enter a guilty plea and was sentenced on May 11, 2004. The docket sheet also states that the following were filed on May 11: a waiver of indictment, an order allowing the State to proceed by bill of information, and the bills of information.

¶ 9. The docket sheet is clear that Kelly entered his guilty plea and received his sentence on the same day that the bills of information were filed by the district attorney. Accordingly, his claim that the circuit court lacked subject-matter jurisdiction to sentence him is without merit.

¶ 10. Kelly further asks that this Court review as plain error his claim that he was improperly charged by bills of information instead of an indictment. We find that this issue is time-barred and without merit. The docket sheet shows that Kelly entered a waiver of indictment, and the circuit court entered an order allowing the State to proceed by bill of information. The State was then free to charge Kelly by bill of information instead of an indictment. See McCullen v. State, 786 So.2d 1069, 1073 (¶ 5) (Miss.Ct.App.2001).

¶ 11. Because Kelly fails to assert a valid exception to the time bar, his claims are procedurally barred. We affirm the circuit court’s denial of Kelly’s motion for post-conviction collateral relief.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . Neither of those documents are contained in the record before this Court.