author: CARLSON, Presiding Justice,

text:
    Jeffrey Keith HAVARD v. STATE of Mississippi.
    No. 2011-DR-00539-SCT.
    Supreme Court of Mississippi.
    March 8, 2012.
    As Modified on Denial of Rehearing May 10, 2012.

      Graham P. Carner, attorney for appellant.
    Office of The Attorney General by Lisa Colonias McGovern Marvin L. White, Jr., attorneys for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Jeffrey Keith Havard (Havard) was found guilty of capital murder (murder during the commission of sexual battery) of six-month-old Chloe Britt. The jury also found that Havard’s sentence should be death, and the Adams County Circuit Court imposed the death sentence upon Havard. This Court affirmed Havard’s conviction and sentence on direct appeal. Havard v. State, 928 So.2d 771 (Miss.2006). His motion for rehearing was subsequently denied, as was his motion for post-conviction relief filed May 25, 2007. Havard v. State, 988 So.2d 322 (Miss.2008). Havard is currently seeking habeas relief in the United States District Court for the Southern District of Mississippi; however, that case has been stayed pending the outcome of Havard’s second motion for post-conviction relief now before this Court. Finding no merit in Havard’s successive motion for post-conviction relief, the Court denies his successive petition.

STATEMENT OF THE FACTS

¶ 2. Havard was living in Adams County with his girlfriend, Rebecca Britt, the mother of the victim, six-month-old Chloe Britt. Havard was not Chloe’s father. Havard and Britt had been dating for a few months when Britt and Chloe moved in with Havard. On February 21, 2002, at approximately 8:00 p.m., Havard gave Britt some money and asked her to get supper from the grocery store. When Britt returned home, she found that Chloe had been bathed and was asleep. Havard told Britt he had given Chloe her bath and put her to bed. Havard had also stripped the sheets off the bed and told Britt he was washing them. Britt testified that, before that night, Havard had never bathed Chloe or changed her diaper.

¶ 3. Britt testified that she checked on Chloe and she seemed fine. Havard then insisted that Britt go back out to the video store to rent some movies. Britt further testified that when she returned, Havard was in the bathroom with the door shut. She then went to check on Chloe and found the baby was blue and no longer breathing. Britt attempted to resuscitate Chloe by CPR before Britt and Havard drove Chloe to Natchez Community Hospital, where Britt’s mother worked. The child was pronounced dead at the hospital later that night.

¶ 4. The pathologist who prepared Chloe’s autopsy report testified that some of Chloe’s injuries were consistent with penetration of the rectum with an object. Chloe’s other injuries included abrasions and bruises inside her mouth. The baby also had internal bleeding inside her skull that was consistent with shaken-baby syndrome. Chloe had anal injuries that were observed by both the hospital staff and the sheriff. No one at Chloe’s day care had ever noticed bruises or marks on'Chloe. No anal injuries or anything unusual about the child’s rectum was noticed by the daycare staff earlier on the day of February 21, 2002.

¶ 5. Havard was later charged with capital murder with sexual battery being the underlying felony. Two days after Chloe’s death, Havard gave a videotaped statement, in which he denied committing sexual battery on Chloe. He claimed that he accidentally dropped her against the commode after giving her a bath, shook her in a panic, and then rubbed her down with lavender lotion before putting her to bed.

¶ 6. DNA evidence collected from the bed sheets matched the DNA of both Ha-vard and Chloe. A sexual assault kit testing for any of Havard’s DNA in Chloe’s rectum or vagina produced negative results. The only explanation offered by Havard regarding Chloe’s injuries was that he possibly wiped her down too vigorously when preparing her for bed. Ha-vard was indigent at trial and had appointed counsel at trial and on direct appeal.

ISSUES

¶ 7. We set out here the five issues as presented in Havard’s Motion for Relief From Judgment or for Leave to File Successive Petition for Post-Conviction Relief:

(1) The State violated Petitioner’s constitutional rights to a fair trial and due process of law as governed by Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and related authority;
(2) The State withheld exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny;
(3) Alternatively to the immediately preceding issue, Petitioner’s trial counsel were ineffective for failing to utilize the videotaped statement at issue if it was disclosed or produced prior to trial;
(4) Newly-discovered evidence demonstrates that Petitioner is innocent of the underlying felony of sexual battery-which alone made Petitioner’s case a capital murder case and Petitioner eligible for the death sentence that was imposed; and
(5) Newly discovered evidence further demonstrates that Petitioner’s trial counsel were ineffective in failing to challenge the underlying felony of sexual battery.

DISCUSSION

¶ 8. Before advancing directly to Ha-vard’s claims, we state here our standard of review when confronted with successive motions for post-conviction relief:

When this Court is presented with an application to file a motion for post-conviction relief, the Court shall deny relief unless the claims are not procedurally barred and they make a substantial showing of the denial of a state or federal right. Miss.Code Ann. § 99-39-27 (Supp.2011). Absent an applicable exception, a successive motion for post-conviction relief is procedurally barred. Miss.Code Ann. § 99-39-23(6) (Supp. 2011); Rowland v. State, 42 So.3d 503, 507 (Miss.2010).

Knox v. State, 75 So.3d 1030, 1036 (Miss.2011).

¶ 9. Additionally, filings for post-conviction relief in capital cases are to be made within one year after conviction. Miss. Code Ann. § 99-39-5(2)(b) (Rev.2007). Again, absent an applicable exception, an untimely filed motion for post-conviction relief is procedurally time-barred.

¶ 10. For the sake of discussion, we will restate and reorder the issues presented to us for consideration in today’s case.

I. WHETHER THE STATE WITHHELD EXCULPATORY INFORMATION IN VIOLATION OF BRADY v. MARYLAND AND ITS PROGENY.

¶ 11. Prior to trial, Rebecca Britt gave a videotaped statement to law enforcement officials. Havard claims that the video was uncovered during the discovery phase of his federal habeas corpus proceedings. Havard alleges that, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution withheld the videotape at trial despite his trial counsels’ request for all exculpatory evidence.

¶ 12. In Brady, the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. In King v. State, 656 So.2d 1168, 1174 (Miss.1995), this Court articulated a four-part test to assess whether a Brady violation had occurred. Under the test, it is the defendant’s burden to prove: “(a) that the State possessed evidence favorable to the defendant (including impeachment evidence); (b) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (c) that the prosecution suppressed the favorable evidence; and (d) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.” Manning v. State, 929 So.2d 885, 891 (Miss.2006).

¶ 13. Despite the State’s argument that Havard fails all four prongs of this test, the Court need only look to the third prong to determine that this issue must fail. In its response, the State has provided an affidavit from Gus Sermos, Havard’s lead trial counsel, in which he states that, prior to trial, he did watch the videotaped interview of Rebecca Britt that was conducted the day after Chloe’s murder at the Adams County Sheriffs Office. Sermos also states that Tom Rosenblatt, the Assistant District Attorney who prosecuted Ha-vard, along with Lt. Manley, were present at the time he watched Britt’s videotaped interview.

¶ 14. Corroborating Sermos’s affidavit is the affidavit of Tom Rosenblatt, in which Rosenblatt states that he viewed the videotaped interview of Rebecca Britt conducted by the Adams County Sheriffs office while in the presence of Gus Sermos and Lt. Manley. Given the sworn affidavits from Havard’s trial counsel and the prosecutor in his case, we find no merit in Havard’s claim of a Brady violation, because he has not shown that the evidence was suppressed.

II. WHETHER THE STATE VIOLATED HAVARD’S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW AS GOVERNED BY NA-PUE v. ILLINOIS AND RELATED AUTHORITY.

¶ 15. Havard asserts that the State solicited testimony from Rebecca Britt at trial that it knew to be false. His contention is based on Britt’s videotaped statement given the day after Chloe’s murder at the Adam’s County Sheriffs Office. Havard maintains that Britt’s videotaped statement and her trial testimony differed and that the State allowed the disparity to go uncorrected.

¶ 16. It is Havard’s contention in this successive motion for post-conviction relief that Britt’s videotaped statement is “newly-discovered evidence.” As discussed above, trial counsel was aware of Britt’s videotaped statement and viewed it prior to trial. Therefore, the videotaped statement is not newly discovered evidence. This claim would have been procedurally barred from consideration even if it had been raised in Havard’s original motion for post-conviction relief because it was capable of being raised at trial and/or on direct appeal. Miss.Code Ann. § 99-39-21(1) (Rev.2007). Likewise, because the videotaped statement is not newly discovered evidence, this issue is procedurally barred from consideration in Havard’s successive motion for post-conviction relief. Miss. Code Ann. § 99-39-27(9) (Rev.2007).

¶ 17. Assuming arguendo that Britt’s videotaped statement was newly discovered evidence not reasonably discoverable at the time of trial, it would have to be “of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.” Id. Britt’s videotaped statement does not meet that threshold.

¶ 18. This Court has held that

“[a] new trial is required if the false testimony could have ... in any reasonable likelihood affected the judgment of the jury.” Manning v. State, 884 So.2d 717, 726 (Miss.2004) (quoting Barrientes v. Johnson, 221 F.3d 741, 756 (5th Cir.2000) (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959))).

Rubenstein v. State, 941 So.2d 735, 768 (Miss.2006). To prevail on the merits, Ha-vard must first demonstrate that Britt did, in fact, give false testimony. Only then can this Court determine the reasonable likelihood that the false testimony affected the jury’s judgment.

¶ 19. Havard claims that, in her videotaped statement to law enforcement officials, Britt expressed that Havard “was actively involved in the care of Chloe Britt before the night of her death; that Mr. Havard had changed Chloe’s diapers on prior occasions; and that Mr. Havard loved Chloe.” He maintains that Britt’s videotaped statement is in “stark contrast” to Britt’s trial testimony, in which she testified as follows:

Q [By the State]: What was the relationship between Jeffrey and your baby?
A: It was — it was, I guess, your typical relationship. He didn’t spend too much time with her. I mean, other than her being at the house after day care, he didn’t really go out of his way to do things with her or things like that but—
Q: To your knowledge, did he ever bath [sic] the baby?
A: He never did except for the night in question. He said he had given her a bath.
Q: He never bathed her before that, did he?
A: No, sir.
Q: Did he ever change the baby?
A: No, sir.
Q: Did he ever have any extensive interaction, playing with her, that sort of thing, for that length of time?
A: No, sir.

Britt further testified:

Q: What was your reaction to Jeff giving the baby a bath?
A: At first, you know, I thought it was nice, you know. Trying — you know — he was trying to help me out, and then it was surprising because he hadn’t done anything like that before.

Havard attempts to contrast the above trial testimony by quoting from Britt’s videotaped statement, in which she stated:

Q: Becky, you know, I asked you last night. Do you know who may have done anything to your daughter?
A: Jeff is the only one I can think of. He was the only one with her.
Q: Is that — is that the only three — you can only think of Jeff, is — is that he was the only one that was with her. Is that what you’re talking about?
A: He was — he was the only one there. I can’t think of anybody else that would do that to her.
Q: Okay. Do you ever suspect that anything may have happened in the past by someone?
A: No.
Q: Is there anything else that you can tell me, Becky?
A: No. The only thing I can tell you is yesterday and the day before, she was irritable whenever he would want to hold her. And yesterday he was insistent on holding her when she was screaming, and she just screamed even more when he held her.
Q: Is there anything else that you would like to add that would help us in our investigation?
A: I don’t know.
Q: I’m sorry?
A: I know he’s got a violent temper. That’s all I know.
Q: You’re talking about Jeff?
A: Yes.
Q: How do you know he’s got a violent temper?
A: The way he argues with his grandfather, and I know he’s had simple assault on his record.
Q: How often did Jeff usually bathe the baby?
A: Never.
Q: He’s never bathed her?
A: Never.
Q: Would you say that’s kind of strange that he took it upon himself to bathe the child while you were gone?
A: Not really. I mean, he’s always doing bottles for me or cleaning up while I’m taking care of her.
Q: Did he change diapers?
A: Sometimes.
Q: Sometimes. But he never bathed her before?
A: No.
Q: Well, how did he act towards the child when he was around? Did he ever get angry with the child or anything?
A: No. He loved her. Just whenever she would be really fussy, he would just act aggravated. I mean, nothing physical or anything. He would just sigh or turn away or walk away.

¶ 20. When comparing Britt’s videotaped statement with the portion of her trial testimony Havard claims is conflicting, the only discernable disparities are her responses regarding whether Havard had ever changed Chloe’s diaper and whether she was surprised that Havard had bathed Chloe. In her videotaped statement, she told law enforcement officials that Havard sometimes had changed Chloe’s diaper. Britt also responded “[n]ot really” to whether she found it strange Havard had bathed Chloe. At trial she testified that he had never changed Chloe’s diaper and that she was surprised he had bathed Chloe. In all other aspects, the statement and the testimony appear consistent.

¶ 21. Havard asserts that Britt also testified differently regarding his interactions with Chloe. At trial, Britt was asked if Havard had “extensive interaction, playing with [Chloe], that sort of thing, for that length of time” to which Britt respond that he had not. Although not entirely clear from the record, from the context of the questioning, it appears that what the prosecutor meant by "... for that length of time” was a reference to the length of time that Britt was away running errands while Havard was home alone with Chloe the night she died. Nowhere in her videotaped statement was Britt asked about the length of time Havard had spent with the baby.

¶22. All indications from her videotaped statement are, however, that Havard did not spend great lengths of time with Chloe. Britt portrayed Havard as someone who was unemployed and slept most of the day while she was out job hunting. Chloe went to daycare during the day, which was paid for by Chloe’s grandmother. In her videotaped statement, Britt told law enforcement officials that Havard was “always doing bottles for me or cleaning up while I’m taking care of her.” She also told law enforcement that Havard would sigh or turn and walk away when Chloe was “fussy.”

¶ 23. Other than Britt’s trial testimony regarding whether Havard had ever changed Chloe’s diapers and her reaction to Havard bathing Chloe, there is no disparity between Britt’s videotaped statement to law enforcement and her testimony at trial. Regardless of her reaction and assuming her trial testimony that Havard did not change diapers was false, given all the evidence in this case, there is no reasonable likelihood that it affected the judgment of the jury.

¶ 24. This issue is proeedurally barred by time and the successive-writ bar. Miss. Code Ann. §§ 99-39-5(2)(b), 99-39-27(9) (Rev.2007). Notwithstanding the procedural bars, this issue has no merit.

III. WHETHER HAVARD’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO UTILIZE REBECCA BRITT’S VIDEOTAPED STATEMENT.

¶ 25. As an alternative to Ha-vard’s Brady violation claim discussed first supra, Havard claims that his trial counsel were ineffective by failing to utilize the videotaped statement if the State did disclose or produce it. Specifically, Havard asserts that his “trial counsel were ineffective for (a) not informing Petitioner of the existence of the statement, (b) not utilizing the statement to support [Havard]’s defense to the charge of capital murder and the underlying felony of sexual battery, and (c) not utilizing the statement to cross-examine or impeach Rebecca Britt’s trial testimony where it differed from what she told the investigators in the statement. ...”

“The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The test is two pronged: The defendant must demonstrate that his counsel’s performance was deficient, and that the deficiency prejudiced the defense of the case. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Washington v. State, 620 So.2d 966 (Miss.1993). “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984), citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2065; State v. Tokman, 564 So.2d 1339, 1343 (Miss.1990).

Foster v. State, 687 So.2d 1124, 1129-30 (Miss.1996) (emphasis removed).

¶ 26. This issue is procedurally barred because it fails to meet an exception to the time bar and the successive-writ bar. Miss.Code Ann. §§ 99-39-5(2)(b), 99-39-27(9). Notwithstanding the procedural bars, Havard’s claim also fails to pass the standard set forth in Strickland.

¶ 27. Havard has failed to present any argument on this matter other than bare assertions. In his motion for post-conviction relief, Havard merely asserts that counsel were deficient and then claims that “[f]or the same reasons set forth in Claim 2, Petitioner was prejudiced by this ineffective assistance of counsel and there is a reasonable probability that, but for this ineffectiveness, the result of the proceedings would have been different.” Referring again to the affidavit of Gus Sermos, he states that, to the best of his knowledge, belief, and memory, Britt’s videotaped statement contained nothing exculpatory in nature and that Britt’s trial testimony was consistent with her videotaped statement.

[W]e must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. In other words, defense counsel is presumed competent. Id. at 690, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Bennett v. State, 990 So.2d 155, 158 (Miss.2008). Trial counsel’s decision not to use the videotaped statement clearly falls within the realm of trial strategy. However, even if we assume, for the sake of argument, that Sermos was deficient in failing to use the statement, Havard does not explain how the statement could have been used to support his defense. Further, the only discrepancy between Britt’s videotaped statement and her trial testimony was whether Havard ever had changed Chloe’s diaper before the night Chloe died. As discussed supra, there is no reasonable likelihood that Britt’s testimony, if false, affected the judgment of the jury. Havard cannot demonstrate how he was prejudiced.

¶ 28. This issue is procedurally barred. Miss.Code Ann. §§ 99-39-5(2)(b), 99-39-27(9) (Rev.2007). Not withstanding the procedural bars, the issue also is without merit.

IV. WHETHER NEWLY DISCOVERED EVIDENCE DEMONSTRATES THAT HAVARD IS INNOCENT OF THE UNDERLYING FELONY.

¶ 29. Pursuant to a discovery order entered in Havard’s federal habeas corpus proceedings, Dr. Steven Hayne was deposed to explore his opinions regarding sexual battery in Havard’s case. Havard contends that the deposition was ordered in light of concerns that were raised in the habeas petition regarding the sufficiency of the evidence supporting the State’s allegation of sexual battery and the effectiveness of counsel in preparing a defense to the sexual-battery allegation. The latter of these two concerns will be discussed in Havard’s next issue. Havard also contends that the deposition was ordered so that Dr. Hayne could elaborate on his signed declaration. It is Havard’s claim that the declaration and deposition of Dr. Hayne demonstrate his innocence of the underlying felony, thus meaning that Ha-vard cannot be guilty of capital murder.

A. The Declaration of Dr. Hayne

¶ 30. In a document with the heading “Declaration of Dr. Steven T. Hayne” signed by Dr. Hayne and submitted in the federal court proceedings, Dr. Hayne stated that “[b]ased upon the autopsy evidence available regarding the death of Chloe Britt, I cannot include or exclude to a reasonable degree of medical certainty that she was sexually assaulted.” He also stated that the contusion found on Chloe’s anus “could have a variety of causes, and is not sufficient in and of itself to determine that a sexual assault occurred.” Dr. Hayne also stated that he found no tearing of Chloe’s rectum, anus, anal sphincter, or perineum.

¶31. Havard puts the most emphasis, however, on Dr. Hayne’s statement that “[djilated anal sphincters may be seen on persons who have died, as well as on a person prior to death without significant brain function. My experience as well as the medical literature recognizes that a dilated anal sphincter is not, on its own, evidence of anal sexual abuse, but must be supported by other evidence.”

B. The Deposition of Dr. Hayne

¶ 32. In his deposition, Dr. Hayne acknowledged that, prior to conducting the autopsy of Chloe, he was specifically asked to determine whether a sexual assault had occurred. There is no mention of sexual battery in the Final Report of Autopsy, because Dr. Hayne “could not come to final conclusion as to that.” Dr. Hayne stated: “There was one injury that I indicated would be consistent with the penetration of the anal area, but that, in and of itself, I didn’t feel was enough to come to a conclusion that there was a sexual assault in this particular death.” Dr. Hayne confirmed that he found no tearing of the rectum, anus, anal sphincter, or perineum and that he would have noted such tearing if it had been present. He also opined that such tearing could not have healed between the time Chloe was in the emergency room and her autopsy one day later.

¶ 33. Dr. Hayne testified about the single contusion he found on Chloe’s rectum, and the absence of abrasions and lacerations. He testified that the contusion was found in an area that is easily injured and that a rectal thermometer like that used in the emergency room to check Chloe’s temperature could cause such a contusion, but he did not think it was likely. He also stated that he could not exclude that possibility.

¶ 34. Havard asserts that his expert, Dr. James Lauridson, and Dr. Hayne both have opined that it is possible that a dilated anus can occur in a person who is dead or even a person who is clinically alive but lacks significant brain function. Dr. Hayne testified that signs of brain death include flaccidness, unconsciousness, muscle relaxation, lack of breathing, dilated and fixed pupils, lack of muscle tone, and an asystole heart. Havard points out that medical records, testimony from emergency-room treaters, and Dr. Hayne’s autopsy findings found those conditions in Chloe leading up to and following her death.

¶ 35. Some specific deposition testimony of Dr. Hayne on which Havard relies is as follows:

Q: Based upon the information available to you, Dr. Hayne, was Chloe Britt brain dead or lacked significant brain function at the time her anal dilation was first noted?
A: It was.
Q: And that was after she was successfully intubated; is that correct?
A: That’s correct.
Q: And is this an opinion within a reasonable degree of medical certainty?
A: As reflected in the medical record, yes.

¶ 36. Dr. Hayne testified that a dilated anus is a recognized post-mortem finding, and an increased likelihood of such a finding is possible in children who die of brain injuries. He stated that flaccid or limp muscle condition can contribute to anal dilation. Dr. Hayne also testified that a dilated anal sphincter was not, standing alone, evidence of sexual abuse.

Q: And, Dr. Hayne, can you say from your autopsy evidence, and from the coroner’s inquest, the medical records that you reviewed, the photographs, and the laboratory findings, that this child, Miss Britt, was sexually assaulted?
A: I could not come to that final conclusion, Counselor. As I remember in trial testimony, I said that the contusion would be consistent with a sexual abuse, but I couldn’t say that there was sexual abuse, and, basically, I deferred to the clinical examination conducted at the hospital.
Q: And so from your standpoint and from your expertise, you cannot say that this child was sexually abused, to a reasonable degree of medical certainty; is that correct?
A: I could not now and I could not then, either; at the trial, or when I wrote the report, or discussed the case with the coroner.

¶ 37. The issue before this Court is whether Havard has newly discovered evidence that would exempt him from the procedural time-bar and the successive-writ bar. The new evidence must be “evidence, not reasonably discoverable at the time of trial, that is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.” Miss.Code Ann. § 99-39-27(9) (Rev.2007). In this task, Havard fails.

¶ 38. First, Dr. Hayne testified at Ha-vard’s trial, and he was subjected to cross-examination. In his recent deposition testimony, Dr. Hayne testified that his deposition testimony was consistent with his trial testimony. Although Dr. Hayne’s trial testimony was limited regarding sexual battery, nothing in his deposition testimony was inconsistent with his trial testimony. Additionally, at his deposition, Dr. Hayne testified that he had seen no new facts that would cause him to change his testimony at trial.

¶ 39. There is no indication that the deposition testimony provided by Dr. Hayne was undiscoverable at the time of trial. The fact that Havard’s counsel now asks questions in more detail than did Havard’s trial counsel on cross-examination does not qualify the answers as newly discovered evidence within the meaning of Mississippi Code Section 99-39-27(9).

¶ 40. Havard tries to compare his case to that of Williams v. State, 35 So.3d 480 (Miss.2010), in which the defendant was convicted on two counts of sexual battery, one against each of his two daughters. Williams challenged the sufficiency of the evidence supporting the sexual-battery charge in Count II against his younger, ten-month-old daughter. This Court reversed Count II because the only evidence against the defendant on that count was the testimony of the doctor who examined the children. With regard to Count I, the older child, the doctor testified that the “injuries were ‘definitely consistent’ with someone who had been sexually abused ‘to a reasonable degree of medical certainty.’ ” Id. at 486. As to the younger daughter, the doctor’s testimony was that the child’s injuries were “very consistent with anal penetration.” Id. The Court stated: “[tjhis physician couched his opinion in terms of suspicion of probability, which, standing alone, absent additional corroborating evidence, is insufficient in a criminal case.” Id. at 486-87.

¶41. Havard relies on the following deposition testimony of Dr. Hayne:

Q: And Dr. Hayne, can you say from your autopsy evidence, and from the coroner’s inquest, the medical records that you reviewed, the photographs, and the laboratory findings, that this child, Miss Chloe Britt, was sexually assaulted?
A: I could not come to that final conclusion, Counselor. As I remember in trial testimony, I said that the contusion would be consistent with a sexual abuse, but I couldn’t say that there was sexual abuse, and, basically, I deferred to the clinical examination conducted at the hospital.

With regard to Havard’s assertion that the rectal thermometer used to take Chloe’s temperature in the emergency room could have been the object that caused the contusion, Dr. Hayne testified:

A: I did not think that was an insertion injury from a rectal thermometer by medical personnel. I could not exclude it, but I think it was unlikely, Counselor.

¶42. Havard’s case is distinguishable from Williams, most significantly because Dr. Hayne’s testimony was not the only evidence supporting the sexual-battery allegation. Unlike William s, numerous emergency-room personnel witnessed Chloe’s physical condition and gave testimony at Havard’s trial. See Havard, 988 So.2d 322, 332. Additionally, Williams denied sexually abusing his daughters. Although Havard denies that he sexually assaulted Chloe, he gave the following statement to the police:

Q: And you said you had wiped her down in her private area. Okay. Can you tell us how you wiped her down and what you done [sic],
A: I just took a normal wipe, just wiped her down between her legs like normal. Inside of her — inside of her buttocks, inside of buttocks [sic] to clean her out.
Q: And you said earlier that your finger may have slipped or you may have wiped her a little bit too hard?
A: It’s possible. I was still upset and nervous and shaky.
Q: Okay. What do you mean by wiping her too hard?
A: Maybe I was too rough with her. Maybe I shook her too hard. I don’t know.
Q: You say you wiped her too hard. What do you mean by that?
A: Maybe I went too far in on her when I was wiping her out, inside of her butt.

¶ 43. There is no merit to Havard’s claim that newly discovered evidence exists that supports his innocence. This issue is procedurally barred by time and as a successive writ. Miss.Code Ann §§ 99-39-5(2)(b), 99-39-27(9) (Rev.2007).

V. WHETHER NEWLY DISCOVERED EVIDENCE DEMONSTRATES THAT HAVARD’S TRIAL COUNSEL WERE INEFFECTIVE IN CHALLENGING THE UNDERLYING FELONY OF SEXUAL BATTERY.

¶ 44. Havard claims that the deposition testimony of Dr. Hayne, taken during discovery on federal habeas review, constitutes newly discovered evidence that supports his claim of ineffective assistance of counsel. Specifically, Havard claims that this newly discovered evidence “supports [his] prior claims of ineffective assistance of counsel with respect to trial counsel’s efforts (or lack thereof) in challenging the underlying felony of sexual battery.” He contends that those claims were central to the original post-conviction challenge.

¶ 45. This claim is an attempt to rehabilitate failed claims that already have been addressed by this Court. On direct appeal, Havard claimed that his trial counsel were ineffective for failing to secure a pathologist to investigate the case and develop a defense strategy. Havard, 928 So.2d at 788. Havard’s counsel did request an independent review of the autopsy report, but the trial court denied the motion, because no basis for need was shown when Dr. Hayne was available. Id. Havard argued that it was his attorneys’ failure to present the trial court with a basis for the request that constituted ineffective assistance. Id. To support this claim, Havard relied on the affidavit of Dr. Lauridson and a medical journal article in an attempt to show the substantial need that he claimed his attorneys failed to show. Id. at 789. The Court refused to consider the documentation on direct appeal, because it was outside of the record. Id. Ultimately, the Court found that Ha-vard’s counsels’ actions were not ineffective and that the trial court did not abuse its discretion by denying Havard’s motion for an independent evaluation. Id.

¶ 46. Subsequently, in his original post-conviction-relief motion, Havard again raised the issue that his counsel were ineffective ih failing to secure an expert witness to aid in research and the development of a defense strategy. The Court reconsidered the issue, in light of Dr. Lau-ridson’s affidavit. Havard also submitted the affidavit of an attorney unrelated to Havard’s case, who opined Havard’s trial counsel were ineffective.

¶ 47. The Court considered, for the sake of argument, that even if Havard’s counsel performed deficiently, meeting the first prong under Strickland, Havard could not show prejudice. Havard, 988 So.2d at 331. Although the Court’s reasoning is more fully explained in that opinion, suffice it to state here that this Court found Dr. Lauridson’s affidavit and reports did not contain evidence that would create a reasonable probability that the outcome of Havard’s trial would have been different. Id. at 333.

¶ 48. In our discussion, we quoted Dr. Lauridson as follows:

[experienced medical examiners commonly encounter dilated anal sphincter’s [sic] during post-mortem examinations. Experience as well as the medical literature recognizes that this finding does not imply anal sexual abuse. Studies of this phenomenon, in fact have shown that children who have died of brain injuries have an increased likelihood of having a dilated anus.
Dr. Lauridson concluded his report stating, “Postmortem anal dilation in infants is a commonly recognized artifact that does not signify sexual abuse.” However, as the state points out, Chloe’s dilated anal sphincter was discovered while Chloe was in the emergency room and still alive.
Further, Dr. Lauridson’s conclusion was not only contrary to that of Dr. Hayne, it was contrary to the sworn testimony from experienced emergency-room doctors and nurses.

Id. at 332.

¶ 49. Havard pits the Court’s aforementioned statement against Dr. Hayne’s deposition testimony. He asserts that Dr. Hayne opined that a dilated anus is a recognized post-mortem finding and that such a finding has an increased incidence in children who have suffered a brain injury and significant loss of brain function. A review of the deposition transcript reveals that Dr. Hayne may have conceded the point to a “possibility” but that was as far as he was willing to go with his opinion.

Q: Do you commonly encounter dilated anal sphincters during a postmortem examination?
A: It can occur, but it’s not as common as I think people think.
Q: Is it a recognized finding in the postmortem period.
A: It can be, yes.
Q: And do children who have died of brain injuries have an increased likelihood of having a dilated anus postmortem?
A: It’s possible. I think you supplied me with one article from Orange Journal, '97, “American Journal of Forensic Medicine and Pathology.” In that particular article, there were 65 cases of which only a handful were involving children of less than one year of age, and of those—
[objection made by the State]
Q: Go ahead, sir.
A: And of all those, only one had suffered a traumatic death. In that particular case, the anus was described as slit-like. So in that case, there was no dilation in a violent death that Dr. Lau-ridson is referring to in his opinion of 65 cases published in the Orange Journal.

¶ 50. Havard contends that Dr. Hayne’s deposition testimony negates this Court’s previous rejection of Dr. Lauridson’s opinions concerning post-mortem anal dilation. Without conceding Havard’s argument, even if true, the Court was addressing his claim that counsel were ineffective. The Court’s statement about Chloe still being alive when the dilation of her anus was first observed was not the only basis for denying Havard’s ineffective-assistance-of-counsel claim. The Court noted and summarized the testimony of the numerous experienced emergency-room doctors and nurses describing the baby’s injuries as indicative of sexual penetration. The Court held that Havard could not show prejudice, even it were to assume, for the sake of argument, that Havard’s counsel was deficient in failing to secure an independent pathologist.

¶ 51. Havard now asserts that his attorneys were ineffective because, after failing to secure an independent pathologist, they failed to have any pretrial interaction with Dr. Hayne. He relies on Dr. Hayne’s deposition testimony that follows:

Q: Did you ever meet with Gus Sermos or Robert Clark, Mr. Havard’s attorneys about this case?
A: I don’t remember that, Counselor, but I—
[Objection made by the State]
Q: If requested by them, would you have met with the attorneys for Mr. Havard in this case?
A: I always honored those requests, either prosecution or defense.
Q: And would you have answered their questions in a meeting the same way you have today, if asked?
A: If they were asking the same questions, I would respond the same way.

¶ 52. This new line of questioning is not “newly discovered evidence” within the meaning of Mississippi Code Section 99-39-27(9). The newly discovered evidence must be “practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.” Havard is trying to revitalize his previously raised ineffective-assistance-of-counsel claim by asserting that, if he had known this new information, he would have prevailed on his original post-conviction-relief proceedings.

¶ 53. Havard now offers the deposition testimony of Dr. Hayne to show: a) that Dr. Hayne has an opinion in line with Dr. Lauridson’s and b) that Havard’s trial attorneys never interviewed Dr. Hayne prior to trial to learn of his opinion. In the original post-conviction-relief proceedings, Havard presented Dr. Lauridson’s report and documentation in an attempt to show that his trial counsel were ineffective in their failure to secure an independent pathologist. This Court considered Dr. Lau-ridson’s report and what it had to offer had it been introduced at trial. Havard’s ineffective-assistance-of-counsel claim did not pass the standard set forth in Strickland. Havard, 988 So.2d at 333. Dr. Hayne’s deposition testimony is that he does not remember meeting with Havard’s trial counsel. However, even assuming that Dr. Hayne was not interviewed by Havard’s trial counsel, the remainder of his deposition testimony that Havard seeks to have this Court consider is duplicative of Dr. Lauridson’s report, which was considered and rejected in the original post-conviction proceeding. Furthermore, Ha-vard offers no explanation as to why this information could not have been discovered prior to filing his original motion for post-conviction relief. This issue is procedurally barred. Notwithstanding the procedural bars, the issue is without merit.

CONCLUSION

¶ 54. Havard has failed to demonstrate an exception to the procedural bars. Accordingly, for the reasons discussed, Ha-vard’s Motion for Relief From Judgment or For Leave to File Successive Petition for Post-Conviction Relief is denied as time-barred and as a successive writ. Miss.Code Ann. §§ 99-39-5(2)(b), 99-39-27(9) (Rev.2007).

¶ 55. POST-CONVICTION RELIEF IS DENIED.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ„ CONCUR.

      . The State has provided a transcript of Britt’s videotaped statement bearing a notarized certificate from a certified transcrip-tionist, attesting to the accuracy of the transcription. Havard, on the other hand, has provided an uncertified transcription prepared by a paralegal working for Havard's PCR counsel. There are some subtle differences in the two transcriptions. For purposes of comparing Britt's videotaped statement to her trial testimony, the certified transcript provided by the State is used.


source: Caselaw Access Project

author: WALLER, Chief Justice,

license: Public Domain

text:
    VENTURE SALES, LLC, Gary Fordham and David E. Thompson v. Walter Ray PERKINS.
    No. 2010-CA-01552-SCT.
    Supreme Court of Mississippi.
    April 26, 2012.

      Thomas E. Schwartz, S. Robert Hammond, Jr., Hattiesburg, attorneys for appellants.
    Paul H. Holmes, Moselle, Marcus A. McLelland, attorneys for appellee.

      Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Gary Fordham, David Thompson, and Venture Sales, LLC, appeal from the order of the Forrest County Chancery Court dissolving Venture Sales pursuant to Mississippi Code Section 79-29-802 (Rev. 2009). Because substantial evidence exists to support the chancellor’s determination, we affirm the judgment. Because the chancellor did not address winding up the company following dissolution, we remand the case to the chancery court to wind up the affairs of Venture Sales pursuant to Mississippi Code Sections 79-29-803 through 79-29-807 (Rev.2009).

FACTS AND PROCEDURAL HISTORY

¶ 2. Walter Ray Perkins owned 27.7 acres of land on Highway 42 in Petal, Mississippi. Sometime in the late 90s, Perkins was approached by Fordham and Thompson about a potential business venture involving this land. Perkins, Ford-ham, and Thompson eventually agreed that Fordham and Thompson would acquire the 438 acres of land that adjoined Perkins’s land to the south; then, the parties would combine their respective land, along with some cash, and form a venture to develop the land.

¶ 3. After Fordham and Thompson purchased the 438 acres, Perkins contributed his land as well as $155,378.59 in cash to Venture Sales, an already-existing company in which Fordham and Thompson were partners. Fordham and Thompson contributed their land to Venture Sales, along with $1,459.12 in cash, each. The cash and land contributions were structured such that Perkins, Fordham, and Thompson each would own one-third of the company.

¶ 4. Following the contributions, the operating agreement of Venture Sales was revised to reflect the arrangement. The Restated Purpose of Venture Sales, set forth in Section 1.02 of the Restated Limited Liability Company Agreement for Venture Sales, LLC (“the operating agreement”), was stated as follows:

The purpose of the Company is to initially acquire, develop and sale [sic] commercial and residential properties near Petal, Forrest County, Mississippi and subsequently at other locations to be decided by the Company and to conduct any other lawful business, purpose, or activity as decided by the Members.

The language, “acquire, develop and sale [sic] ...” is the main issue in this dispute.

¶ 5. The parties signed the new operating agreement on February 18, 2000, and gave the agreement an effective date of January 1, 2000. At the time the company was formed, Perkins was working as an assistant coach for the Cleveland Browns, a professional football team, and was living in Ohio. Perkins stated at trial that he relied on Fordham and Thompson, who had experience in the mobile-home business, to devote their time and energy to the development of the Venture Sales property.

¶ 6. As of the beginning of this litigation, the property remained undeveloped and virtually unchanged. According to Ford-ham and Thompson, there are several causes, outside the members’ control, for the delay in development. However, during this time, Fordham and Thompson have successfully developed at least two other subdivisions with approximately 200 collective houses within twenty-five miles of the Venture Sales property.

¶ 7. In early 2009, Venture Sales negotiated an option contract for the sale of a portion of its land, however the contract expired before it closed. Also in 2009, Venture Sales listed its entire property for sale for $5.2 million, but the listing expired without a deal. Fordham requested the members’ approval to list the property for $3.5 million, but Perkins did not agree.

¶ 8. In February 2010, Perkins filed an application for judicial dissolution of Venture Sales. Following a trial, the chancellor found that, based on the property’s history, the company’s inability to get the required funding for development, and the uncertainty regarding the economic climate in the area, it was not reasonably practicable to carry on the business of Venture Sales. The chancellor therefore ordered the company dissolved. Fordham, Thompson, and Venture Sales now appeal.

ISSUES

¶ 9. Fordham and Thompson raise three issues on appeal:

I.Whether the chancellor erred as a matter of law in ordering the dissolution of a solvent limited liability company based on the application of one dissatisfied member.
II. Whether the chancellor erred by ordering the dissolution of Venture Sales because his judgment was not supported by substantial evidence, he abused his discretion, he was manifestly wrong, and his findings were clearly erroneous.
III. If the chancellor is affirmed in ordering the dissolution of Venture Sales, whether the chancellor erred in failing to order that a winding up of Venture Sales proceed pursuant to Mississippi Code Sections 79-29-803 through 79-29-807, with the Manager of Venture Sales being directed to proceed with winding up Venture Sales pursuant to these statutes.

¶ 10. While Fordham and Thompson present three issues for appeal, issues I and II address the same question — whether the chancellor erred in ordering the dissolution of Venture Sales. Accordingly, issues I and II will be analyzed together.

STANDARD OF REVIEW

¶ 11. On appeals from chancery court, this Court employs a limited standard of review. Corp. Mgmt. v. Greene County, 23 So.3d 454, 459 (Miss.2009). We review a chancellor’s decision for abuse of discretion. Estate of Davis v. O’Neill, 42 So.3d 520, 524 (Miss.2010). We will not disturb a chancellor’s factual findings “when supported by substantial evidence unless ... the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Id. (quoting Greene County, 23 So.3d at 459). This Court will affirm a chancellor’s decision when it is supported by substantial credible evidence. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). Questions of law are reviewed de novo. Biglane v. Under the Hill Corp., 949 So.2d 9, 14 (Miss.2007).

DISCUSSION

I. The chancellor’s judgment dissolving Venture Sales was supported by substantial evidence and was not an abuse of discretion.

¶ 12. Mississippi Code Section 79-29-802 (Rev.2009) allows a member of a limited liability company to apply to the chancery court for an order of dissolution of the company in certain circumstances. The chancellor may order dissolution of a limited liability company when:

(a) It is not reasonably practicable to carry on the business in conformity with the certifícate of formation or the limited liability company agreement; or
(b) The managers or the members in control of the limited liability company have been guilty of or have knowingly countenanced persistent and pervasive fraud or abuse of authority or persistent unfairness toward any member, or the property of the limited liability company is being misapplied or wasted by such persons.

Miss.Code Ann. § 79-29-802 (Rev.2009).

¶ 13. The chancellor determined that there was no fraud, abuse of authority, persistent unfairness, or waste of company property by any Venture Sales members. Accordingly, the chancellor’s decision to dissolve Venture Sales was solely because he determined it was “not reasonably practicable” for Venture Sales to carry on its business in conformity with its operating agreement. Miss.Code Ann. § 79-29-802(a) (Rev.2009).

¶ 14. The Mississippi Limited Liability Company Act (“MLLCA”) does not define “not reasonably practicable.” Furthermore, no Mississippi cases to date interpret what constitutes “not reasonably practicable” or “reasonable practicability.” In such a situation, we look to other jurisdictions that have considered the matter. Hood v. State, 17 So.3d 548, 555 (Miss.2009); Byrd v. The Miss. Bar, 826 So.2d 1249, 1252 (Miss.2002).

¶ 15. Several courts have addressed what constitutes “not reasonably practicable” in the context of judicial dissolution of a company. Judicial dissolution has been described as a remedy extreme in nature, and one that is to be granted sparingly. See In the Matter of the Dissolution of 151¡,5 Ocean Ave., LLC, 72 A.D.3d 121,129-130, 893 N.Y.S.2d 590 (N.Y.App.Div.2010); In re Arrow Inv. Advisors, LLC, 2009 WL 1101682, at *2 (Del.Ch.2009). In some cases, finding that it is “not reasonably practicable” for a company to continue operating requires a showing that the business “cannot continue ‘in accord with its ... operating agreement.’ ” 1545 Ocean Ave., 72 A.D.3d at 130, 893 N.Y.S.2d 590 (quoting Dunbar Group, LLC v. Tignor, 267 Va. 361, 593 S.E.2d 216, 219 (2004)); but see Kirksey v. Grohmann, 754 N.W.2d 825, 830 (S.D.2008) (ordering dissolution even though the business could continue despite the deadlock). Generally, dissolution under this standard does not require that a company’s purpose has been “completely frustrated.” PC Tower, Inc. v. Tower Ctr. Dev. Assoc., L.P., Civ. A. No. 10788, 1989 WL 63901, at *5 (Del.Ch. June 8,1989); Fisk Ventures, LLC v. Segal, Civ. A. No. 3017-CC, 2009 WL 73957, at *4 (Del. Ch. Jan. 13, 2009). Dissolution generally has been deemed appropriate when a company’s economic purpose is not being met, or when the company is failing financially. 1545 Ocean Ave., 72 A.D.3d at 130, 893 N.Y.S.2d 590; PC Tower, 1989 WL 63901, at *6; Fisk Ventures, 2009 WL 73957, at *5-6. At least one court has ordered the dissolution of a company that, while financially stable and with assets that exceeded its liabilities, was functioning simply as a “residual, inertial status quo.” Haley v. Talcott, 864 A.2d 86, 96 (Del.Ch.2004). When a company “cannot effectively operate under the operating agreement to meet and achieve the purpose for which it was created,” dissolution has been allowed. 1545 Ocean Ave., 72 A.D.3d at 130, 893 N.Y.S.2d 590.

¶ 16. While no definitive, widely accepted test or standard exists for determining “reasonable practicability,” it is clear that when a limited liability company is not meeting the economic purpose for which it was established, dissolution is appropriate. See 1545 Ocean Ave., 72 A.D.3d at 130, 893 N.Y.S.2d 590; Kirksey, 754 N.W.2d at 828; Percontino v. Camporeale, No. BER-C-5-05, 2005 WL 730234, at *3 (N.J.Sup.Ct. March 24, 2005). In making this determination, we must first look to the company’s operating agreement to determine the purpose for which the company was formed. See 1545 Ocean Ave., 72 A.D.3d at 130, 893 N.Y.S.2d 590.

¶ 17. Venture Sales’ operating agreement states that the company’s purpose is “to initially acquire, develop and sale [sic] commercial and residential properties near Petal, Forrest County, Mississippi.” (Emphasis added.) At trial, Fordham admitted that the company was formed for the purpose of acquiring and developing property. Yet, more than ten years after Venture Sales was formed with Perkins as a member, the property remains completely undeveloped. Fordham and Thompson have offered a number of reasons why development has been delayed to this point.

¶ 18. In 2003, the Venture Sales property was annexed to the City of Petal, and in 2005 the property was rezoned to “planned unit development,” the zoning needed for development. Also in 2005, Hurricane Katrina struck the coast of Mississippi, which affected the Petal area and specifically delayed Venture Sales’ engineer of record from working on the Venture Sales property. In 2006, the City of Petal provided the property access to sewage, which the appellants claim had theretofore been cost-prohibitive. Fordham and Thompson also point to the 2007 national housing market decline and the plummeting of the stock market in 2008, causing the financial markets to freeze. Fordham said he believed that, if Venture Sales would have begun development in 2008 or 2009, the company would now be bankrupt. Finally, Fordham and Thompson contend that the new subdivision regulations passed by the City of Petal in 2007, increasing the required thickness of asphalt, substantially increased the cost of development.

¶ 19. Despite these alleged hindrances, Fordham and Thompson have, during this ten-year period, successfully formed two other LLCs and have developed at least two other subdivisions with around 200 houses, collectively, within twenty-five miles of the subject property. More importantly, though, Fordham and Thompson presented no evidence that Venture Sales would be able to develop the land as intended within the foreseeable future. When asked by the trial court when Venture Sales might be able to begin developing as it had planned, Fordham could not say. Fordham and Thompson admitted that it would take around $8 million to “kick off” construction of the subdivision as planned, and the chancellor found that Venture Sales was currently unable to get additional bank loans or other funding needed to begin development.

¶20. Fordham and Thompson claim that it is reasonably practicable for Venture Sales to continue operating. They argue that Venture Sales’ assets exceed its liabilities, that there has been development along the Highway 42 corridor that runs in front of the Venture Sales property, and that the economy in the City of Petal is improving. In essence, their argument is that the company has the financial means to “weather the storm” and that the economy is improving. However, while Venture Sales currently may be solvent, and while the economy may be improving overall, Fordham and Thompson have not shown that Venture Sales can meet the purpose for which it was formed — developing and selling its property.

¶21. Fordham and Thompson claim that Perkins has blocked Venture Sales from taking advantage of certain “business opportunities,” such as selling the property at a reduced price of $3.5 million, or offering six lots located on the back side of the property for $30,000 each. However, these “business opportunities” were merely ideas from Fordham about how to make use of the property. Fordham and Thompson presented no evidence that individuals were ready to purchase the property, or portions of it, at these prices. Furthermore, as discussed above, they presented no evidence that Venture Sales could develop the property, which is the purpose for which the company was formed.

¶22. In support of their argument, Fordham and Thompson point to two cases, 1545 Ocean Avenue and Arrow, where courts refused to dissolve limited liability companies. However, each of these cases is easily distinguishable from today’s.

¶ 23. In 1545 Ocean Avenue, a limited liability company was formed to purchase a piece of property, rehabilitate an existing building, and build a second building for commercial rental. 1545 Ocean Ave., 72 A.D.3d at 123, 893 N.Y.S.2d 590. One member’s independent construction company unilaterally began working on the construction project, despite protests from the other member. Id at 123-124, 893 N.Y.S.2d 590. However, the protesting member took no other action to stop the work being done on the project. Id at 124, 893 N.Y.S.2d 590. Tension between the members mounted, but work continued on the buildings. Id When the project was only a few weeks away from completion, the protesting member filed a petition for dissolution in the Supreme Court of Suffolk County, New York. Id at 124-125, 893 N.Y.S.2d 590. The lower court granted the petition, but the New York Supreme Court, Appellate Division, reversed. Id at 123, 893 N.Y.S.2d 590.

¶ 24. The appellate court recognized that the dispute between the members had not frustrated the purpose of the LLC. Id at 132, 893 N.Y.S.2d 590. Because the work was all but completed, and because the protesting member tacitly had ratified the continued construction on the project, the court reversed the order of dissolution and dismissed the petition. Id at 132-33, 893 N.Y.S.2d 590.

¶ 25. Unlike the company in 154-5 Ocean Avenue, Venture Sales is not fulfilling the purpose stated in its operating agreement. The company was formed for the purpose of developing and selling its property, and no development has taken place during the more than ten years since the company’s formation. Unlike the project at issue in 1545 Ocean Avenue, there is no evidence that Venture Sales has any plans or the financial wherewithal for any development in the near future, if ever. The only “business opportunities” that the appellants offer are merely their own offers to sell the property. The situation in 1545 Ocean Avenue was substantially different than that of Venture Sales.

¶ 26. In Arrow, the Delaware Chancery Court refused to order the dissolution of a limited liability company based on the petition of a member who was dissatisfied with the direction of the company. Arrow, 2009 WL 1101682. The company, Arrow Investment Advisors, LLC, had been formed only two years prior to the filing of the petition for dissolution. Id. at *1. The petitioning member had been ousted as the company’s CEO. Id. In his petition, the member complained that the company was pursuing strategies that were not aimed toward performing its original business plan. Id. at *3.

¶ 27. The court noted that the company had not enjoyed immediate profitability and had decided to pursue strategies that were not part of its original business plan. Id. at *2. However, the court found that these strategies were still within the confines of the company’s purpose. Id. at *3. The court held that dissolution was improper for “a two-year old LLC with a broad purpose clause [that] has experienced some adversity.” Id.

¶28. Unlike Arrow, Venture Sales is not a relatively new entity. Perkins became a member of Venture Sales in 2000 and has been awaiting development of the property ever since. Furthermore, Perkins does not simply disagree with the strategic choices taken by management. See id. at *3. Perkins petitioned for dissolution because Venture Sales’ purpose— development and sale of commercial and residential property-has never come into fruition and apparently will not in the foreseeable future. Venture Sales is not a “start-up” that has “merely ... not experienced a smooth glide to profitability.” See id. at *2-3. Rather, Venture Sales has existed for more than ten years and has yet to achieve, or even begin fulfilling, its stated purpose.

¶ 29. For the above-stated reasons, we hold that the chancellor did not abuse his discretion by granting the petition for dissolution of Venture Sales. Accordingly, we affirm the chancellor’s judgment.

II. The winding up of Venture Sales

¶ 30. In his order, the chancellor did not make provisions for winding up Venture Sales. Fordham and Thompson argue that the chancellor should have ordered Fordham, as manager of Venture Sales, to proceed with winding up the company in accordance with the MLLCA. Perkins agrees that the MLLCA provides the process for winding up a limited liability company, and does not object to a remand on this issue. Since this issue has not yet been addressed at the chancery court, and since the parties are in agreement that remand is necessary, we remand to the chancery court for winding up the affairs of Venture Sales.

CONCLUSION

¶ 31. The chancellor’s decision to order the dissolution of Venture Sales was not an abuse of discretion. More than ten years after its formation, Venture Sales has not met, and will not meet in the near future, its economic purpose. Substantial evidence exists supporting the chancellor’s determination that it was not reasonably practicable for Venture Sales to carry on business in conformity with its operating agreement. We therefore affirm the chancellor’s order of dissolution and remand for the winding up of Venture Sales.

¶ 32. AFFIRMED AND REMANDED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . Title 79, Chapter 29 of the Mississippi Code constitutes the Mississippi Limited Liability Company Act. This chapter was substantially revised in 2010. The revisions, which took effect on January 1, 2011, dealt in part with the process of judicial dissolution of an LLC. Section 79-29-802 was repealed, and Section 79-29-803 was revised and now provides the process for judicial dissolution. However, because this action was filed in 2010, it is governed by the prior version of the statutes. See Miss.Code Ann. § 79-29-1317 (Supp.2011) (stating that revisions do not apply to actions commenced before mandatory application date).

      . Perkins originally became acquainted with Fordham when Fordham's church, First Baptist Church of Petal, purchased land from Perkins.


author: GRIFFIS, P.J.,

text:
    Lori Lynn WALLEY and Christopher Blake Walley, Appellants v. Kathy Lynn PIERCE and Tony Curtis Pierce, Appellees.
    No. 2010-CA-00409-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Jan. 10, 2012.
    Certiorari Denied April 26, 2012.

      Christopher Douglas Hennis, attorney for appellants.
    Joseph Edgar Fillingane, attorney for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Lori Lynn Walley and Christopher Blake Walley appeal the chancellor’s award of grandparent-visitation rights to Lori’s parents, Kathy Lynn Pierce and Tony Curtis Pierce. The Walleys claim that the chancellor: (1) committed manifest error by finding that they had unreasonably denied visitation to the Pierces, (2) failed to accord special weight to their wishes as to the amount and type of visitation awarded, and (3) applied the Mississippi grandparent-visitation statute in a way that violates their due-process rights. Finding no error, we affirm.

FACTS

¶ 2. The Walleys have three children— ages six, four, and nine months at the time of trial. The Pierces are the children’s maternal grandparents. The Walleys had been married for approximately eight years at the time of trial. From the time they were married until about a year before trial, the Walleys lived in a mobile home located on the Pierces’ property. Due to their close proximity, the Pierces shared a close relationship with the children and saw them on an almost daily basis.

¶ 3. In 2008, there was a physical altercation between Lori and Blake’s mother and sister. Lori was injured in the fight, and she later told her parents what had happened. Lori’s mother, Kathy, became upset with Blake’s mother and sister. Eventually, Lori was able to mend her relationship with Blake’s family, but the relationship between Kathy and Blake’s mother and sister did not improve.

¶ 4. In October 2008, the Walleys moved from the Pierces’ property and into a rental home because of tension within the family. After the move, the Walleys only allowed the Pierces to have visitation with the children at their home or while in their presence. On February 11, 2009, the Pierces filed a petition for grandparent-visitation rights in the Chancery Court of Greene County. The Pierces alleged that the Walleys had unreasonably denied them visitation with their grandchildren.

¶ 5. An agreed temporary order was entered that allowed the Pierces supervised visitation. At trial, the Walleys testified that they did not want the Pierces to have unsupervised visitation with the children because of the animosity between the Pierces and Blake’s family. They also feared that the children would be exposed to the dangers of the Pierces’ unfenced swimming pool.

¶ 6. The Pierces testified that, even though the Walleys said they were welcome to visit the children, they did not feel comfortable in the Walleys’ home. The Pierces believed that unsupervised visitation was required for them to maintain their close relationship with the children.

¶ 7. The chancellor agreed and awarded unsupervised visitation to the Pierces. The visitation included the first weekend of each month — from Friday night to Saturday night, one week during the summer, two days between Christmas and New Year’s Day, and the Monday following Easter. The Walleys now appeal.

STANDARD OF REVIEW

¶ 8. This Court employs a limited standard of review in reviewing a chancellor’s decision. Stacy v. Ross, 798 So.2d 1275, 1278 (¶ 13) (Miss.2001). “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002) (quoting Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (¶ 13) (Miss.1999)). “However, the Court will not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the court applied an erroneous legal standard.” Owen v. Owen, 928 So.2d 156, 160 (¶ 11) (Miss.2006). “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000). Questions of law are reviewed de novo. Chesney v. Chesney, 910 So.2d 1057, 1060 (¶5) (Miss.2005) (citing Southerland v. Southerland, 875 So.2d 204, 206 (¶ 5) (Miss.2004)).

ANALYSIS

1. Whether the chancellor committed manifest error by finding that the Walleys had unreasonably denied visitation to the Pierces.

¶ 9. The grandparent-visitation rights requested in this case is governed by Mississippi Code Annotated section 93-16-3(2) (Supp.2010). To award visitation to the Pierces, the chancellor was required to find that: (1) the Pierces had established a viable relationship with the children, and the Walleys had unreasonably denied the Pierces’ visitation rights with the children; and (2) the visitation rights of the Pierces would be in the best interests of the children. Id.

¶ 10. The Walleys argue that the chancellor showed little regard for their wishes, despite finding that they were fit parents. They rely on Stacy v. Ross, 798 So.2d at 1275. There, the Mississippi Supreme Court found that the chancellor erred in awarding unsupervised visitation rights to grandparents over the objection of fit parents. Id. The Walleys contend that the chancellor here, as in Stacy, did not consider their wishes in reaching his decision to award unsupervised visitation to the Pierces.

¶ 11. The record, however, reflects that the chancellor gave due consideration to the Walleys’ wishes. The chancellor weighed the concerns of the Walleys, and he found that their main reason for denying visitation was their spite resulting from tensions between Blake’s family and the Pierces. The chancellor noted that: it was agreed by all parties that the Pierces and the minor children loved one another; the Walleys complained of no failings on the part of the Pierces in regard to the children; and the Walleys’ concerns resulted from the presence of an unfenced swimming pool on the Pierces’ property and Kathy’s propensity to make derogatory comments that might be harmful to the children.

¶ 12. Ultimately, the chancellor found that limited and supervised visitation would not be in the best interests of the children because mandating close proximity between parties that have had altercations outside of the presence of the children would increase the likelihood of such an altercation while in the presence of the children. Further, the chancellor noted that there were no grounds for permitting parents to deny visitation to grandparents out of spite, which would be incompatible with the purpose of section 93-16-3.

¶ 13. The Walleys also argue that where there are tensions between parents and grandparents, the parents of minor children are not unreasonable in limiting visitation, citing Hillman v. Vance, 910 So.2d 43, 47 (¶ 11) (Miss.Ct.App.2005). Vance can be distinguished because, in Vance, this Court found that the grandmother did not meet her burden of showing a viable relationship as defined by section 93-16-3(3) because she had only cared for the children for three months. Id. It is clear that no such issue exists here, as the Walleys stipulated that the Pierces had a viable relationship with the children. Further, in Vance, this Court found that the Vances’ refusal of visitation was reasonable based not only on tensions between the Vances and the grandparents, but also on the legitimate concerns of the Vances with regard to the grandmother’s boyfriend and the best interests of the children. Id.

¶ 14. Here, the record reflects no issue that represents a danger to the children similar to that of a potentially harmful third party, and the chancellor found that the best interests of the children were served by unsupervised visitation with the Pierces. The chancellor also found that supervised visitation in which the Walleys constantly followed the Pierces at all times sent an undesirable message to the children with regard to grandparents they hold in high esteem.

¶ 15. The chancellor applied the factors set forth in Martin v. Coop, 693 So.2d 912, 916 (Miss.1997) to evaluate the impact on the children. In doing so, the chancellor found that: (1) extensive visitation would have no negative impact on the children with the exceptions of Sundays because the Walleys were very involved in their church; (2) the Pierces’ home was suitable for the presence of the children and that adequate supervision was provided while the children were present; (3) the older two children are able to communicate effectively with family members and are familiar with the Pierces’ home; (4) there is a loving and strong relationship between the Pierces and the children; (5) the Pierces are morally fit; (6) travel associated with visitation would be minimal; (7) there was no indication of attempts by the Pierces to undermine the general discipline of the children by the Walleys; (8) the Pierces’ employment would not impede visitation; and (9) Kathy had, at times, exhibited tendencies to interfere with the child-rearing methods employed by the Walleys. After reaching these factual conclusions, the chancellor found that the Pierces were entitled to unsupervised visitation.

¶ 16. We find no manifest error in the chancellor’s finding that the Walleys had unreasonably denied visitation to the Pierces and that such visitation was in the best interests of the children. Accordingly, this issue has no merit.

2. Whether the chancellor committed manifest error by failing to accord special weight to the Walleys’ determination of how much visitation the Pierces should have with the children.

¶ 17. The Walleys argue that the United States Supreme Court has recognized a “presumption that fit parents act in the best interests of their children.” Troxel v. Granville, 530 U.S. 57, 63, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). They also point out that “[p]arents with custody have a paramount right to control the environment, physical, social, and emotional, to which their children are exposed.” Stacy, 798 So.2d at 1280 (IT 23). They further argue that “[¿Interference with that right based upon anything less than compelling circumstances is not the intent of the visitation statute.” Id. As noted above, there has been no allegation that the Walleys are unfit parents.

¶ 18. In Troxel, the United States Supreme Court addressed a statute that permitted any person, regardless of relation to the minor child, to be granted visitation at any time, weighing only the best interests of the child as a deciding factor. Troxel, 580 U.S. at 71, 120 S.Ct. 2054. The Supreme Court struck down the law because it was too broad, allowing any person to claim visitation rights regardless of the parents’ wishes. Id. at 73, 120 S.Ct. 2054.

¶ 19. As noted above, the record reflects that the chancellor gave significant consideration and deference to the Wal-leys’ wishes, and he noted their concerns. Their allegation that the chancellor totally disregarded their preferences is not supported by the record. The chancellor clearly considered their arguments that visitation should be limited and supervised, and he found those arguments wanting. This issue is without merit.

3. Whether the chancellor’s application of the grandparent-visitation statute violates the Walleys’ right to due process.

¶ 20. The Walleys predicate their due-process argument on the fact that there was no finding that the Walleys are unfit parents and that the chancellor gave no weight to their determinations concerning visitation. The Walleys contend that, as a result, their fundamental right to make decisions as to the care, custody, and control of their children under the Fourteenth Amendment to the United States Constitution has been violated.

¶21. Because the contentions upon which this claim is based are dispensed with above, they will not be repeated here. Due deference and consideration were given to the wishes of the Walleys. Section 98-16-8 does not permit the Walleys to deny visitation unreasonably where the Pierces have a viable relationship with the minor children and where visitation is in the best interests of the children. Accordingly, this issue is without merit.

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

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

      . The Walleys stipulated that the Pierces had established a viable relationship with the children.