author: BARNES, J.,

text:
    Michael STRAIT and Betty Strait, Appellants v. Jackie McPHAIL and American Heritage Life Insurance Company, Appellees.
    No. 2012-CA-00075-COA.
    Court of Appeals of Mississippi.
    Nov. 12, 2013.
    Rehearing Denied March 11, 2014.

      Michael T. Jaques, Ridgeland, attorney for appellants.
    J. Stephen Kennedy, Jackson, Clifford Allen McDaniel II, George Clanton Gunn IV, Michael Jeffrey Wolf, Jackson, attorneys for appellees.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. This appeal concerns a lawsuit where Michael and Betty Strait sued insurance agent Jackie McPhail and American Heritage Life Insurance Company (American Heritage). The Straits alleged that McPhail negligently failed to effectuate the instructions of the insured, Joseph Bagley, to change the beneficiary of a cancer/dread-disease insurance policy from Bagley’s estate to the Straits.

¶ 2. The Straits, a married couple, were close friends of Bagley and cared for him during his final illness. Bagley died of cancer in Jackson, Mississippi, on August 22, 2008. Days earlier, McPhail met with Bagley to have the benefits of his cancer policy paid to the Straits. McPhail attempted to follow Bagley’s wishes by having Bagley sign a “change of beneficiary” form. But while Bagley signed the form, McPhail never completed the form or gave it to the insurer. Therefore, the cancer-policy benefits were paid to Bagley’s estate. In their complaint, the Straits claimed they sustained damages equivalent to the proceeds payable under the policy, or $44,973.50.

¶ 3. McPhail filed a motion to dismiss, which the Circuit Court of Hinds County granted, finding that the Chancery Court of Hinds County had determined that the proper beneficiary of the insurance policy was Bagley’s estate. Based on that finding, the circuit court found the Straits’ claim against McPhail and American Heritage had already been adjudicated. The circuit court also granted American Heritage’s motion for summary judgment. The Straits timely appealed, raising three issues: (1) whether the circuit court erred in applying res judicata and/or collateral estoppel in granting McPhail’s motion to dismiss; (2) whether the circuit court erred in granting American Heritage’s motion for summary judgment; and (3) whether American Heritage is liable for the negligent acts of McPhail. We find the circuit court erred in applying res judi-cata and collateral estoppel to dismiss the Straits’ claims, and in granting summary judgment to American Heritage. Accordingly, we reverse and remand the circuit court’s judgments, allowing the action to proceed in the circuit court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

1Í 4. In July 1987, Bagley purchased a cancer and dread-disease policy that provided repayment of medical services rendered for cancer treatment. McPhail, an independent insurance broker and close friend of Bagley, sold the policy to Bagley while acting as a licensed agent for American Heritage. Bagley designated his estate as the beneficiary of the policy proceeds.

¶ 5. McPhail had served as Bagley’s insurance agent for many years. Although McPhail ceased to be an authorized agent for American Heritage policies sometime before 2008, she often assisted Bagley ■with various insurance forms because he “was not a paperwork person.” McPhail testified that, even though no longer an agent of American Heritage, she still had the ability to “service” every policy that she ever sold. This ability included sending documents to American Heritage and expecting American Heritage to act upon them.

¶ 6. In June 2008, Bagley was diagnosed with head, neck, and throat cancer. Two weeks before his death, Bagley asked McPhail to help him complete a claim form for the policy. McPhail testified she agreed to “help him with his service work.” The claim form allowed the insured to assign policy benefits to a third party. Bagley told McPhail to mark “not applicable” in the section of the form entitled “assignment of benefits” because, as McPhail testified, she thought this would assign the benefits to a physician or a hospital. She later added that, at that time, Bagley did not want the benefits going to any physician, hospital, or “anyone else.”

¶ 7. McPhail testified that Betty had contacted her and said Bagley realized he had not signed a change-of-beneficiary form for the cancer policy, and he wanted to change the beneficiaries to the Straits. On August 19, 2008, Bagley entered the hospital due to his worsening condition from cancer. On August 21, McPhail traveled to the hospital because of Bagley’s request to change the beneficiary on the cancer policy from his estate to the Straits. She brought with her a generic change-of-beneficiary form she had received from American Heritage. In his hospital room, Bagley again orally affirmed that he wanted the policy proceeds to go to the Straits. He signed the form, which was witnessed by McPhail, a nurse, and Bagley’s treating physician, Dr. Keith Robbins. The Straits were not present during the execution of the form. McPhail took the executed form and went into another room with the Straits to obtain their correct legal names to put on the form. Betty testified that McPhail was unsure how to fill out the paperwork and wanted everything listed properly; so she was going to put their proper legal names on the form later. At the time, McPhail stated she was not aware that the policy did not allow for “a change of beneficiary.” Additionally, McPhail testified that the Straits did not know she was no longer an agent for American Heritage.

¶ 8. Dr. Robbins, also friends with Bag-ley, spoke with his attorney immediately after witnessing the execution of the form. He told Betty that the form was improper because the Straits’ names were not on the form when Bagley signed it. Betty relayed this information to McPhail, who tried to contact American Heritage’s legal department for advice on whether she could still use the form. She twice left voice-mail messages in the legal department; however, at the time, the home offices of American Heritage were closed due to Hurricane Fay. McPhail never received a return phone call. Bagley passed away the next day, and it is undisputed that the change-of-beneficiary form was never completed. McPhail then assisted the estate in obtaining the information to file a claim on the policy. McPhail testified she eventually either shredded or threw away the executed form after Bag-ley’s estate was settled.

¶ 9. The executor of Bagley’s will, William Kinstley, opened the estate and probated the will in the Hinds County Chancery Court. The Straits were both beneficiaries in the will — Michael was left a diamond ring, and Betty and Michael were both left other personal property at Bagley’s residence from which they could choose. Michael and Kinstley negotiated a trade of the ring for a vehicle, as Kinstley, according to Betty, “really wanted the ring.”

¶ 10. In January 2009, Betty sent a letter to Clay Pedigo, Bagley’s estate lawyer, requesting information about the insurance policy and indicating that the proceeds were being paid to the estate. She did not, however, make any claim to the proceeds, but simply wanted to make sure she would not be responsible for any “final expenses to come out of that policy.” In February 2009, American Heritage issued a check to Bagley’s estate for $44,973.50 in policy benefits. In March 2009, a petition for approval of the estate’s final accounting was entered. It listed among the assets the personal property swapped by the Straits and the policy proceeds. Also, the petitioner, Kinstley, requested reimbursement from the estate for prepaid estate expenses of $13,624.17, and asked that the remainder of the estate be distributed to him as the residual beneficiary. The Straits did not join in the petition, and the record does not reflect whether service of process was made upon them at that time. The chancery court, in its order closing the estate, granted the executor’s requests and specifically listed proceeds of the policy as an asset of the estate. There is no indication that the chancellor was made aware of any issue concerning the insurance proceeds.

¶ 11. In July 2009, the Straits filed their complaint against McPhail and American Heritage in the Hinds County Circuit Court. Their claims included: breach of contract for the failure of American Heritage to pay the Straits the proceeds against Bagley’s desire, tortious breach of contract, negligence and gross negligence, breach of fiduciary duty, bad faith refusal to pay benefits and investigate the claim, misrepresentation and/or failure to procure the change in benefits, and promissory and/or equitable estoppel. In August 2010, McPhail filed a motion to dismiss or, alternatively, a motion for summary judgment, claiming that the Straits’ claim was barred by collateral estoppel and res judicata, among other theories. In November 2010, American Heritage filed a motion for summary judgment, arguing it was not vicariously liable because it made proper payment to Bagley’s estate, because the policy did not allow for a change of beneficiary, and because McPhail was not an American Heritage agent at the time of the incident, and she had no express or apparent authority to bind American Heritage. In its motion, American Heritage also adopted McPhail’s argument in her motion to dismiss. The circuit court granted McPhail’s motion to dismiss, because the issue of the proper recipient of the cancer-policy benefits had been previously “litigated and resolved” by the chancery court. The circuit court also granted American Heritage’s motion for summary judgment without articulating a specific rationale. The Straits timely appealed.

STANDARD OF REVIEW

¶ 12. When reviewing a circuit court’s grant or denial of a motion to dismiss, the appellate court applies a de novo standard of review. Scaggs v. GPCH-GP Inc., 931 So.2d 1274,1275 (¶ 6) (Miss.2006).

¶ 13. The appellate court reviews the grant of summary judgment de novo as well. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss.2009). The evidence will be “viewed in the light most favorable to the party against whom the motion has been made.” Id. 174-75 (¶ 14) (quoting Daniels v. GNB Inc., 629 So.2d 595, 599 (Miss.1993)). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The mov-ant bears the burden of proving that no genuine issue of material fact exists. Bucket v. Chaney, 47 So.3d 148, 153 (¶ 10) (Miss.2010).

ANALYSIS

I. Motion to Dismiss

¶ 14. The circuit court order granting McPhail’s motion to dismiss merely held that “the issue of the proper recipient of the benefits of the cancer policy was litigated and resol[ved]” in the chancery court. The Straits argue that the finding was improper, as there was no determination in the chancery court as to whether McPhail or American Heritage was liable to the Straits for damages in failing to effectuate the change of the beneficiary under Bagley’s cancer policy. Additionally, the Straits argue that the chancery court’s entry of an order in Bagley’s estate proceedings disbursing the funds of the estate does not bar litigation of the Straits’ claims in the circuit court, under res judi-cata or collateral estoppel. We agree.

¶ 15. For either res judicata or collateral estoppel to apply, there must be identity of the parties. Channel v. Loyacono, 954 So.2d 415, 424 (¶ 31) (Miss.2007) (res judicata); Johnson v. Bagby, 252 Miss. 125, 133, 171 So.2d 327, 330 (1965) (collateral estoppel). “Res judicata reflects the refusal of the law to tolerate a multiplicity of litigation.” Hill v. Carroll Cnty., 17 So.3d 1081, 1084 (¶ 8) (Miss.2009) (quoting Little v. V. & G Welding Supply Inc., 704 So.2d 1336, 1337 (Miss.1997)). In Mississippi, the doctrine of res judicata will bar a claim if four identities are present: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom a claim is made.” Channel, 954 So.2d at 424 (¶ 31) (quoting Harrison v. Chandler-Sampson Ins. Inc., 891 So.2d 224, 232 (¶ 24) (Miss.2005)). “The absence of any one of these four identities % fatal to the defense of res judicata.’ ” Id.

¶ 16. The Mississippi Supreme Court has stated collateral estoppel is “an unusual exception to the general rule that all fact questions should be litigated fully in each case.” Marcum v. Miss. Valley Gas Co., 672 So.2d 730, 733 (Miss.1996) (quoting Miss. Emp’t Sec. Comm’n v. Philadelphia Mun. Separate School Dist., 437 So.2d 388, 397 (Miss.1983)). While the doctrine is permitted, it is “neither mandatory nor mechanically applied.” Id. (quoting Jordan v. McKenna, 573 So.2d 1371, 1375 (Miss.1990)). Although similar to res judicata,

under the doctrine of collateral estoppel, “[a]n appellant is precluded from relit-igating in the present suit specific questions actually litigated and determined by and essential to the judgment in the prior suit, even though a different cause of action is the subject of the present suit,” and “collateral estoppel, unlike the broader question of res judicata, applies only to questions actually litigated in a prior suit, and not to questions which might have been litigated.”

Channel, 954 So.2d at 425 (¶ 34) (quoting Mayor & Bd. of Aldermen v. Homebuilders Ass’n of Miss., 932 So.2d 44, 59 (¶ 64) (Miss.2006)). “[T]he parties to an action will be precluded from relitigating a specific issue, which was: (1) actually litigated in the former action; (2) determined by the former action; and (3) essential to the judgment in the former action.” In re Estate of Stutts v. Stutts, 529 So.2d 177, 179 (Miss.1988) (citing Dunaway v. W.H. Hopper & Assocs., 422 So.2d 749, 751 (Miss.1982)). The most basic requirement of collateral estoppel is that the parties in the original action are the same as in the subsequent action. Johnson, 252 Miss, at 133,171 So.2d at 330.

¶ 17. Here, there is no identity of the parties between this action and the chancery court proceedings. While “strict identity of the parties is not necessary,” a non-party can assert res judicata “so long as it is in ‘privity’ with a named defendant.” Hill, 17 So.3d at 1086 (¶ 17) (quoting Harrison, 891 So.2d at 236-37 (¶ 37)). Regarding the last identity of the quality or character of the person, this Court has stated if someone is appearing in a limited or representative capacity in one case and personally in another, that party’s “quality or character” is not the same in the two actions. In re Estate of Bell, 976 So.2d 965, 968 (¶ 8) (Miss.Ct.App.2008) (citing McCorkle v. Loumiss Timber Co., 760 So.2d 845, 856 (¶ 47) (Miss.Ct.App.2000)). Even though the Straits were named in Bagley’s will to receive specific personal items, there is nothing in the record to indicate they were actual parties to the estate proceedings. McPhail does not claim otherwise.

¶ 18. In her motion to dismiss, McPhail argued that there is identity of the parties through privity, because in estate proceedings, the “executor is a trustee for both the creditors and the heirs.” This contention misses the mark. In this case, the Straits are not suing in the circuit court as heirs of the estate but as individuals with an interest in conflict with that of the estate and the executor, Kinstley, who ultimately received the policy benefits. Michael testified that he only learned that McPhail had not completed the paperwork a day or two before he called American Heritage on March 11, 2009. He was transferred to an individual named Deanna, and informed her that there was a problem and requested her to stop payment on the check to the estate. She stated that the check had already been mailed and “we won’t do that.” The Straits were not in “privity” with the executor of the estate for the purposes of res judicata or collateral estoppel.

¶ 19. Further, neither McPhail nor American Heritage was a party to the estate proceedings. Citing In re Armistead’s Estate, 4 F.Supp. 606, 608 (S.D.Miss.1933), for the proposition that “all persons who have any interest in the [probate] proceeding are deemed parties,” McPhail claims that she and American Heritage were parties to the chancery proceedings. McPhail’s argument is attenuated at best. Armistead’s Estate dealt with a will contest, and whether the proceeding could be removed to federal court, or should be remanded to chancery court. Id. at 608. Armistead’s Estate does not stand for the proposition that any entity merely concerned with the estate proceedings is an actual party to those proceedings for purposes of res judicata. The statement of law cited by McPhail reads in full: “The proceeding to probate a will ‘partakes, in some degree, of the nature of a proceeding in rent, in which all persons in the world who have any interest are deemed parties, and are concluded as upon res judicata by the decision of the court having jurisdiction.’ ” Id. (quoting In re Broderick’s Will, 88 U.S. 503, 504, 21 Wall. 503, 22 L.Ed. 599 (1874)). Broderick’s Will had held that probate courts have ample power to give full and adequate relief to parties attempting to contest a will as forgery; accordingly, where the parties had not contested the will in the probate proceeding, they could not do so eight years later in a different court. Bro-derick’s Will, 88 U.S. at 509, 517-19. This result was based upon the proposition that the probate of the will was “of the nature of a proceeding in rem” and that to allow the contestants to challenge the will in a different court “would unsettle all proceeds in rem.” Id. at 518. Broderick would prevent the Straits from suing the estate in a different proceeding to recover the insurance proceeds (in rem), but we do not see how it precludes them from suing the insurance agent and company for negligent payment of the proceeds to the estate, an in personam action.

¶ 20. In this case, there is simply no identity of the parties; accordingly, res judicata and collateral estoppel are inapplicable defenses in the case before us. The circuit court’s grant of the motion to dismiss was therefore error.

II. Motion for Summary Judgment

¶ 21. The Straits argue that the circuit court also erred in granting summary judgment to American Heritage. American Heritage made the following arguments in its motion: the policy does not allow for a change of beneficiary, and American Heritage cannot be liable for McPhail’s alleged conduct. Regarding the latter argument, American Heritage specifies that McPhail was not an agent of American Heritage at the relevant time, McPhail had neither express nor apparent authority to change the beneficiary of the policy, and American Heritage did not act in bad faith in paying Bagley’s estate and owed no fiduciary duty to the Straits. Additionally, American Heritage states the Straits’ claims are barred by estoppel, and the Straits lack standing. We agree with the Straits that there are genuine issues of material fact related to these issues, and summary judgment is improper.

A. Direct Liability of American Heritage

¶ 22. The Straits argue that there is a genuine issue of material fact that American Heritage is independently and directly liable to them. Specifically, the Straits allege American Heritage was negligent in failing to train McPhail on how to complete the necessary forms properly to change the recipient of the policy proceeds. Additionally, it is undisputed that American Heritage’s legal department never returned McPhail’s telephone calls when she sought advice about changing the payee.

¶ 23. Alternatively, American Heritage claims dismissal was proper because it owed no direct duty to the Straits, as third parties or insureds, as a matter of law; so, it could not be negligent. Additionally, American Heritage argues it owed no duty to train McPhail, who was an independent insurance agent licensed in Mississippi. Further, it claims the policy language regarding the payee or assignment of benefits is clear; so there could be no actionable duty or breach. We disagree.

¶ 24. “To prove negligence, the plaintiff must show, by a preponderance of the evidence: duty, breach of duty, proximate cause, and damages. The duty owed by a defendant to a plaintiff depends upon their relation to one another.” Skelton v. Twin Cnty. Rural Elec. Ass’n, 611 So.2d 931, 936 (Miss.1992) (internal citations omitted).

¶ 25. The record shows a genuine issue of material fact about McPhail’s confusion over how to change the payee of the indemnity insurance policy, which could show American Heritage’s negligence in instructing and training her. See Gamble ex. rel. Gamble v. Dollar General Corp., 852 So.2d 5, 14 (¶¶ 29-32) (Miss.2003) (holding the existence of a breach of the duty to train employees properly was a fact question for the jury). For example, in her deposition, McPhail stated she did not know she could not change the beneficiary of the cancer policy, like one would for a life-insurance policy, but instead had to change the assignment of benefits. This misunderstanding thwarted her efforts to carry out Bagley’s wishes. Nor did she know whether the form was valid if Bagley signed it before the form was complete, which precipitated McPhail’s unanswered calls to American Heritage’s legal department, and resulted in the form not being properly completed before Bagley’s death. Accordingly, there are genuine issues of material fact regarding American Heritage’s direct liability.

B. Vicarious Liability of American Heritage

¶ 26. The Straits claim the record shows an agency relationship existed between McPhail and American Heritage, and American Heritage was bound by McPhail’s actions through her apparent authority. The Straits point to evidence in the record that shows McPhail initially took the application for the policy and countersigned the policy on behalf of the insurer, and then later submitted various documents to American Heritage that were acted upon.

¶ 27. American Heritage argues it cannot be vicariously liable for McPhail’s alleged misconduct because McPhail was no longer a registered American Heritage agent with either express or apparent authority to act on its behalf since August 2008; rather, McPhail was solely Bagle/s agent.

¶ 28. The burden of proving whether an agency relationship exists is on the party asserting it. McFarland v. Entergy Miss. Inc., 919 So.2d 894, 902 (¶ 25) (Miss.2005) (citing Highlands Ins. Co. v. McLaughlin, 387 So.2d 118, 120 (Miss.1980)). An express agency is created when the principal authorizes someone to act on its behalf. Id. Implied agency requires that the principal give the agent actual authorization to perform acts that reasonably lead third parties to believe that an agency relationship exists. Capital Assocs. v. Sally Southland Inc., 529 So.2d 640, 644 (Miss.1988).

¶ 29. Regarding apparent authority, the Mississippi Supreme Court has held that “insurers [can] be bound by the actions of their agents acting within the course and scope of apparent authority regardless of the policy’s actual terms.” United Am. Ins. v. Merrill, 978 So.2d 613, 629 (¶ 81) (Miss.2007) (quoting Am. Income Life Ins. v. Hollins, 830 So.2d 1230, 1237 (¶ 18) (Miss.2002) (overruled on other grounds)). Apparent authority of an agent only binds the principal when the plaintiff can show “acts or conduct of [the] principal indicating [the] agent’s authority, reasonable reliance upon those acts by [a] third person, and [a] detrimental change in position by [the] third person as result of that reliance.” McFarland, 919 So.2d at 902 (¶ 26) (quoting Eaton v. Porter, 645 So.2d 1323, 1325 (Miss.1994)). Whether the evidence is sufficient to meet the test for the apparent authority of agents is an issue for the fact-finder. Hollins, 830 So.2d at 1238 (¶ 24) (citing Baxter Porter & Sons Well Servicing Co. v. Venture Oil Corp., 488 So.2d 793, 796 (Miss.1986)). The existence of an implied agency is proved by “facts and circumstances of the particular case, including words and conduct of the parties.” 3 Am.Jur.2d Agency § 16 (2004). The focus is on “whether the agent reasonably believes, because of the principal’s conduct, that the principal desired the agent so to act.” Id. at § 72.

¶30. Generally, revocation of authority does not become effective between the principal and a third person dealing with the agent until the third person receives notice. 2A C.J.S. Agency § 107 (2010). “The termination of an agency relationship does not prevent the agent from having apparent authority to those who have no notice of the termination of the agent’s authority.” Id. Thus, “in the absence of notice of revocation, third persons subsequently dealing with the agent may hold the principal responsible for acts done by the agent within the apparent scope of his or her previous authority.” Id.

¶ 31. We cannot say that there is no genuine issue of material fact as to whether American Heritage would be vicariously liable to the Straits. There are numerous unresolved factual issues regarding the scope of McPhail’s actual or apparent authority with regard to American Heritage, and her ability to bind the company. McPhail’s deposition testimony evinces many of the factual issues about the extent of her authority. She began selling insurance policies in 1975, and began writing coverage for American Heritage prior to 1987. She quit selling American Heritage policies “a few years” before Bagley died because the coverage became too expensive, and “most of the people dropped the coverage.” During her deposition, McPhail stated she was not an active American Heritage agent in January 2008, when Bagley had to sign a document authorizing American Heritage to disclose his confidential personal and medical information to McPhail when she helped him with a matter. But, even if she had been an active agent, McPhail stated she “probably” would have had to fill out this form anyway. Thus, the execution of the form would not necessarily have notified Bagley that McPhail was no longer an American Heritage agent. Further, McPhail testified that even though she is not a registered agent, she can “still service” all policies she has ever written and “can do routine service work,” which includes such tasks as “[b]eneficiary changes, ownerships, bank drafts.” She has never been told by American Heritage to stop submitting or servicing forms for her policy holders.

¶ 32. Even though McPhail was no longer a registered agent of American Heritage when she met Bagley in the hospital to execute the form, McPhail had verbally ascertained that Bagley wanted the beneficiaries changed to the Straits and attempted to complete this task. After questions arose and she called American Heritage, the company never called her back, even after the untimely hurricane. Once McPhail received no response from the American Heritage legal department, she admits she assisted in filing the claim for Bagley’s estate rather than for the Straits. She never completed the form or submitted it for the Straits and later admitted to shredding it after the estate closed.

¶ 33. It is undisputed that the Straits were not informed of the revocation of McPhail’s agency relationship with the insurance company, either through actual or apparent authority, to act on behalf of American Heritage. Moreover, there is a fact question about whether Bagley knew that McPhail was no longer an American Heritage agent, regardless of McPhail’s intent to help him with the change of payees. A genuine issue of material fact remains as to whether American Heritage could be held responsible for McPhail’s activities in “servicing” the Bagley policy. Accordingly, summary judgment at this point is improper.

C. Waiver/Estoppel

¶ 34. Additionally, American Heritage argues the Straits’ claims are barred by estoppel because they waived the right to assert them. Waiver is the voluntary surrender of a right. Titan Indem. Co. v. Hood, 895 So.2d 138, 150 (¶ 60) (Miss.2004). “To establish a waiver, there must be shown an act or omission ... fairly evidencing an intention permanently to surrender the right alleged to have been waived.” Id. at 150-51 (¶ 60) (citing Ewing v. Adams, 573 So.2d 1364, 1369 (Miss.1990)). The elements of equitable estoppel are: “(1) belief and reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position.” B.C. Rogers Poultry Inc. v. Wedgeworth, 911 So.2d 483, 492 (¶ 32) (Miss.2005) (citing Cothem v. Vickers, Inc., 759 So.2d 1241, 1249 (¶ 19) (Miss.2000)).

¶ 35. It is unclear from the record why the Straits did not choose to assert their right to the cancer-policy funds sooner following Bagley’s death, by following up with McPhail and/or notifying American Heritage of their claim. Michael testified that he only learned that McPhail had not completed the change of beneficiary a few days before March 11, 2009. He tried to stop payment on the check to the estate but was unsuccessful. This testimony is somewhat contradicted by other evidence, such as Betty’s letter to Pedigo, which indicated her knowledge that the policy proceeds would go to the estate. It is also unclear why McPhail did not continue to follow through with Bagley’s wishes after he passed away, either with American Heritage’s legal department or the estate. The extent to which American Heritage is bound by McPhail’s knowledge may well determine whether American Heritage can claim reliance on the inaction of the Straits. Further, whether American Heritage had the ability to stop payment on the check to the estate when Michael spoke with Deanna may also be an issue. American Heritage has not proved entitlement to equitable estoppel as a matter of law.

D. Standing and Statute of Frauds

¶ 36. On appeal, American Heritage no longer argues the Straits lack standing to assert a claim against them, as it did in its motion for summary judgment, but McPhail does argue lack of standing. She claims the Straits were not proper parties to this claim because they were not parties to the “contract” between Bagley and American Heritage, based on the chancery court’s ruling. “Parties have standing to sue or intervene when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law.” Dunn v. Miss. State Dep’t of Health, 708 So.2d 67, 70 (¶ 9) (Miss.1998) (quoting Fordice v. Bryan, 651 So.2d 998, 1003 (Miss.1995)) (quotation marks omitted).

¶ 37. We find this argument without merit, as the Straits were intended third-party beneficiaries of the policy, and not unrelated third parties with no interest in the litigation or adverse effect from the actions of the defendants.

¶ 38. McPhail also argues that the statute of frauds bars the Straits’ claims. Mississippi Code Annotated section 15-3-1 (Rev.2012) provides that a contract to answer for the debt of another must be in writing. McPhail claims the cancer policy specifically states no agent can change the policy, but it must be done in writing and approved by an executive officer. McPhail claims she had no authority to modify the contract or change the beneficiary. Further, she states the Straits were not listed as beneficiaries under the policy, and the policy was never modified to allow for such.

¶ 39. This argument is without merit, however, because the statute of frauds only affects matters prior to executing a contract. Here, the issue is the change of beneficiaries after the original execution of the contract/policy. Accordingly, the statute of frauds is inapplicable.

CONCLUSION

¶ 40. The circuit court’s grant of both McPhail’s motion to dismiss and American Heritage’s motion for summary judgment was in error. Accordingly, we reverse and remand the two judgments for further proceedings consistent with this opinion.

¶ 41. THE JUDGMENTS OF THE CIRCUIT COURT OF HINDS COUNTY ARE REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. LEE, C.J., AND CARLTON, J., NOT PARTICIPATING.

      . It is disputed whether Betty contacted McPhail, or whether McPhail sought out Bag-ley on her own because she "needed to finish up and do her job.”

      . The insurance application had a “Beneficiary Designation” section, under which Bagley had designated "Estate” as the “Name of Beneficiary.” It is unclear, however, whether this section of the application actually referred to life insurance or cancer insurance, since the application was for both. Regardless, the general provisions of the cancer policy explained: "All indemnity payable under this policy will be paid to the insured. Any accrued indemnities unpaid at your death will be paid to your estate.” We note that the policy did allow for an assignment of benefits to a third party on its claim form.

      . McPhail stopped writing American Heritage policies because they became too expensive.

      . In January 2008, Bagley asked McPhail to help him with an unknown issue related to the cancer policy. Bagley was required to sign a document authorizing American Heritage to disclose his confidential personal and medical information to McPhail. McPhail testified, however, that he "probably” would have been required to execute the consent even if she had still been an authorized agent of American Heritage.

      . As previously mentioned, Betty disputes this fact.

      . McPhail had called American Heritage to request a change-of-beneficiary form. She had not specified the type of policy for which she was requesting the form.

      . The record is unclear as to how much Bag-ley knew about McPhail's agency authority at the time.

      . In Armistead’s Estate, the petitioner properly probated the will in chancery court, and on the same day, a petition contesting the validity of the will was filed. Annistead's Estate, 4 F.Supp. at 607. The probate petitioner moved to remove the will contest from chancery to federal court, and the contestant filed a motion to remand the proceeding to chancery court. Id. The district court determined that a "contest is a mere continuation of those [probate] proceedings,” and "all interested persons must be made ’parties; and on the trial the order of probate is only prima facie evidence of the validity of the will.” Id. at 608 (internal citations omitted). Accordingly, the district court ruled the motion to remand the action to chancery court should be granted. Id.

      . Again, the circuit court did not elaborate on a rationale in granting American Heritage's motion. The Straits note that since the court did not specify precise grounds for summary judgment, they assumed it was granted based on the circuit court's finding that res judicata or collateral estoppel bars the Straits’ claims for damages. We agree with this assessment, but shall briefly discuss the other arguments raised by American Heritage in its motion, as the Straits did in their brief, and why summary judgment is improper.

      . Regarding this argument, in its appellate brief American Heritage acknowledges that while the policy did not provide for a change of beneficiary, it did contain a procedure for changing the recipient of the policy benefits, which the “Assignment of Benefits” section of the claim for Bagley executed demonstrates.
      Both Appellees fail to specifically discuss this argument in their appellate briefs in support of summary judgment, except in relation to their other arguments, such as standing.

      . The policy itself is silent as to how to effectuate the change.

      . In Betty's deposition, she stated McPhail came to Bagley's hospital room because “she needed to finish up and do her job”; Bagley had not called her to come there, nor had Betty prompted her to come. McPhail assured Betty changing the form would be no problem after Dr. Robbins raised his concerns. In Michael’s deposition, he testified McPhail assured him she would get the job done.

      . The Straits cite Sun Life Assurance of Canada (U.S.) v. Barnard, 652 So.2d 681 (La.Ct.App.1995), which is instructive. Sun Life involved life insurance policy claims by an insured's wife and the insured’s friend. Id. at 682. The trial court concluded that the insured effectively changed his beneficiary from his wife and friend to another individual, and dismissed the friend’s lawsuit against the insurance agent, who prepared and improperly dated the change-of-beneficiary form. Id. at 683. The wife and friend appealed. The appellate court reversed and rendered the trial court's decision, holding that the insurance agent was liable to the friend, as the intended beneficiary, for damages in the amount she would have received under the policy. Id. at 685. The appellate court’s finding that the change-of-beneficiary form was invalid did not bar the intended beneficiary’s claims against the agent. Id.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Robert W. DeYARMETT a/k/a Robert, Wayne Deyarmett a/k/a Robert, Deyarmett a/k/a Robert Deymarett, Appellant. v. STATE of Mississippi, Appellee.
    No. 2012-KA-01802-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.
    Rehearing Denied May 6, 2014.

      Office of State Public Defender by Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Robert DeYarmett was charged with two counts of touching a child for lustful purposes. The victim was a five-year-old female, “Sandy,” the granddaughter of DeYarmett’s longtime girlfriend. In addition to the victim’s statements, DeYarmett’s semen was found on the crotch of the girl’s pajamas. DeYar-mett was convicted on both counts, and he appeals, arguing that the evidence does not support guilty verdicts. We affirm.

FACTS

¶2. Sandy’s grandmother and DeYar-mett had been in a relationship for approximately sixteen years. They lived together in the grandmother’s mobile home. DeY-armett had an established, friendly relationship with Sandy; the day of the incident, DeYarmett and the grandmother had attended Sandy and her older sister’s tee-ball games. The children then went- to spend the night at the grandmother’s home.

¶ 3. The grandmother testified that Sandy and her sister slept between her and DeYarmett, with Sandy and DeYar-mett sleeping next to each other. The grandmother woke up several times to find DeYarmett and Sandy still awake and watching television, but otherwise the grandmother saw nothing out of the ordinary. The final time she awoke, around 1:30 a.m., the grandmother found everyone asleep. The grandmother took Sandy and her sister home early the next morning. Sandy’s mother testified that Sandy went back to sleep after they got home, but when Sandy awoke she went into her mother’s bedroom and “wanted to snuggle.” Sandy “loved on” her mother, then buried her head and said, “Do you know what [DeYarmett] did to me? ... He licked my pee-pee.” Sandy’s mother testified that “pee-pee” was how Sandy referred to her genitals.

¶ 4. Later that day, Sandy was taken to the Hancock Medical Center, where she told a nurse DeYarmett had “licked her pee-pee and her butt” and that he “stuck ... his tail in her pee-pee.” The exam found no evidence of penetration, but semen was later discovered on the crotch of Sandy’s shorts. A DNA analysis matched the semen to DeYarmett.

¶ 5. DeYarmett’s theory of the case was that Sandy’s mother and grandmother were angry with him because DeYarmett had been planning to end his relationship with Sandy’s grandmother. He also attempted to establish that he was going to inherit a substantial amount of money and that he had been in a sexual relationship with the grandmother’s son’s wife.

DISCUSSION

¶ 6. Relevant to his arguments on appeal, DeYarmett’s indictment specifically alleged on Count I that he “did ... handle, touch[,] or rub with his tongue the vagina of [Sandy].” Count II alleged that DeYar-mett did the same with his penis. On appeal DeYarmett challenges the sufficiency of the evidence supporting Count II and the weight of the evidence on both counts.

1. Sufficiency of the Evidence— Count II

¶ 7. For sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “[W]here the evidence fails to meet this test it is insufficient to support a conviction.” Id.

¶ 8. DeYarmett’s argument on appeal focuses on Sandy’s testimony at trial, which he describes as “labored” and reliant on “cues from the State.” With regard to Count II, Sandy testified (in part):

Q. [Sandy], did [DeYarmett] touch you with any other of his body parts?
A. Yes.
Q. Where on his body? What did he touch you with besides his hand and his tongue?
A. The front.
Q. The front of his body. What on the front of his body?
A. Down low.
Q. [Y]ou just said that [DeYarmett] touched you with his front on your private. Did you just feel it and not see it or what happened?
A. Felt it.
Q. It what?
A. I felt it.
Q. You felt it. Okay. What did it feel like? You shrugged your shoulders, is that a I don’t know? Now you’re nodding your head yes. Okay. When you felt it, [Sandy], was it on top of your clothes or was it up underneath?
A. Underneath.
Q. Underneath. Was his skin touching your skin? Is that a yes or a no?
A. A yes.
Q. When he put his front private on you did he keep it still or did he move it around?
A. Kept it still.

¶ 9. Thus it is true that Sandy, six years of age at the time of trial, never clearly identified the body part DeYarmett touched her with as his penis. But she did testify that DeYarmett touched her with the “down low” part of his “front,” which was not his hand or his tongue, and which he was able to get under her clothes. Moreover, the nurse testified, in what was admitted as substantive evidence under a hearsay exception, that Sandy told her DeYarmett had “stuck ... his tail in her pee-pee.”

¶ 10. In a challenge to the sufficiency of the evidence, “all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be drawn from the evidence.” Sowers v. State, 101 So.3d 1156, 1158 (¶ 12) (Miss.2012). Given the testimony we have discussed and the fact that DeYarmett’s semen was found in the crotch of Sandy’s shorts, we conclude a reasonable juror could find beyond a reasonable doubt that DeYarmett touched Sandy’s vagina with his penis, as specified in the indictment. This issue is without merit.

2. Weight of the Evidence — Both Counts

¶ 11. DeYarmett’s final issue challenges the weight of the evidence, which is distinct from the sufficiency argument addressed above. A challenge to the weight of the evidence will be successful only when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). The evidence must be viewed in the light most favorable to the verdict, and a new trial should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. The motion for a new trial is entrusted to the trial judge, who had a first-hand view of the trial. “[Reversal] is warranted only if the trial court abused its discretion.... ” Ivy v. State, 949 So.2d 748, 753 (¶ 21) (Miss.2007).

¶ 12. DeYarmett’s argument on this issue is largely based on what he alleges are inconsistencies in Sandy’s account as relayed to various people. DeYarmett notes that Sandy did not mention being touched with DeYarmett’s “tail” to her mother, yet she told the nurse she had. She also told the doctor DeYarmett had “showed” her the “tail,” yet at trial she testified she had never seen a man’s genitals and that she only felt DeYarmett touching her with his “lower front.” DeYarmett also notes that the doctor testified Sandy said DeYarmett forced her to undress, while at trial Sandy testified DeYarmett touched her under her clothes. Finally, DeYarmett contends the absence of penetration contradicted Sandy’s statement that DeYarmett put his “tail into her pee-pee.”

¶ 13. DeYarmett also argues that the other circumstances surrounding the alleged molestation do not add up. He argues the grandmother would have noticed something amiss while sleeping in the same bed as DeYarmett and Sandy. And he contends that the presence of his semen on Sandy’s clothes does not prove he touched her, given that no semen was found on her body.

¶ 14. “Conflicting testimony does not evince overwhelming evidence; where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.” Brown v. State, 995 So.2d 698, 702 (¶ 13) (Miss.2008) (citation and quotation omitted). Given the evidence we have already discussed, this issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY OF CONVICTION OF COUNT COUNT I, TOUCHING OF A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF FIFTEEN YEARS; AND COUNT II, TOUCHING OF A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF FIFTEEN YEARS, WITH FIFTEEN YEARS SUSPENDED AND FIVE YEARS OF REPORTING PROBATION, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE, AND TO PAY A $2,000 FINE AND $300 TO THE CRIME VICTIMS’ COMPENSATION FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

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

      . This Court uses pseudonyms to protect the confidentiality of minor victims of sexual abuse.

      . See M.R.E. 803(4).


author: MAXWELL, J.,

text:
    Arthur H. NOBLE, Individually and Noble Real Estate, Inc., Appellants v. WELLINGTON ASSOCIATES, INC., William D. Horne, and the Ohio Casualty Insurance Company, Appellees.
    No. 2012-CA-01269-COA.
    Court of Appeals of Mississippi.
    Nov. 19, 2013.
    Rehearing Denied April 15, 2014.

      Donald A. McGraw Jr., Canton, John Prince Martin, attorneys for appellants.
    Patrick M. Tatum, Ridgeland, David A. Barfield, Kimberly Paige Mangum, Madison, Steven Cavitt Cookston, Greenwood, William Lock Morton III, Ridgeland, attorneys for appellees.
    Before LEE, C.J., ROBERTS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Noble Real Estate (Noble) hired subcontractor Harris Construction Company (Harris) to perform dirt work and site preparation for a new home Noble was building. As part of Noble and Harris’s agreement, Harris obtained an additional-insured endorsement to its commercial general liability (CGL) insurance policy with Ohio Casualty Insurance and named Noble as an additional insured. But the insurance provided under the endorsement was “limited.” The coverage “only” applied to “liability ... caused in whole or in part by [Harris’s] ongoing operations performed for [Noble].”

¶2. Harris’s “ongoing operations” performed for Noble ended in March 2006. Afterwards, Noble built a house on the site, which it sold in September 2007. Before closing, the homeowners noticed cracks in the home, but purchased it anyway. When the cracks got worse, they sued Noble. As part of their claim, they alleged foundation issues related to faulty dirt work.

¶ 3. Noble now claims Ohio Casualty owed it a duty to defend the homeowners’ lawsuit and indemnify Noble for any liability, based on the additional-insured endorsement. But the endorsement protected Noble against lawsuits arising out of accidents occurring during the time Harris performed dirt work — it was not a performance bond guaranteeing Harris’s dirt work. Because the endorsement was clear that it only covered liability that arose from “ongoing operations,” and because the homeowners’ damage did not arise until well after Harris had completed its operations, the homeowners’ claims against Noble did not trigger coverage under the additional-insured endorsement.

¶ 4. For these reasons, the circuit court properly granted Ohio Casualty summary judgment on Noble’s coverage-based claims. We also find summary judgment was properly granted in favor of all three defendants for the remainder of Noble’s claims. Thus, we affirm.

Background Facts and Procedural History

I. Certificate of Insurance

¶ 5. For years, Noble had used Harris as a subcontractor for its dirt work and site preparation. Noble asked Harris to list it as an additional insured on Harris’s CGL policy. So Harris worked with its insurance agent, William D. Horne of Wellington Associates, Inc., to obtain an additional-insured endorsement.

¶ 6. The endorsement limited the insurance provided to the additional insured to “liability ... [c]aused in whole or in part by [Harris’s] ongoing operations performed for that insured.” The endorsement further limited coverage, expressly excluding “ ‘property damage’ occurring after”:

(1) All work ... on the project ... [was] performed by or on behalf of the additional insured[s] at the site where the covered operations have been completed; or
(2) That portion of “your [ (Harris’s) ] work” out of which the ... damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as part of the same project.

¶ 7. Wellington Associates sent Noble a certifícate of insurance. The certificate informed Noble that it, as “certificate holder,” was a “named Additional Insured in regard to General Liability required by written contract.” The certificate explicitly stated it was being issued for Noble’s information only, did not confer on Noble any rights, and did not alter coverage under Harris’s general liability policy. Neither Horne nor anyone else at Wellington Associates had any other contact with Noble.

II. Salyers’ House

¶ 8. In the spring of 2006, Harris prepared a site for Noble to build a home in Madison, Mississippi. Harris completed the work by March 9, 2006. After Noble had an engineer inspect Harris’s dirt work to ensure it met or exceeded industry standards, Noble then built a house on the site. Once the house was completed, the City of Madison inspected the home and issued a certificate of occupancy. Noble then marketed the home for sale.

¶ 9. More than a year and a half after Harris had completed its work, on September 14, 2007, the Salyers entered a contract to purchase the home. But the Sal-yers noticed cracks in the home, so they had an engineer perform a structural analysis. Because the engineer concluded the home had no foundation problems — despite trim separation, cracks in the mortar, and uneven doors — the Salyers went through with the purchase.

¶ 10. But after they moved in, they noticed the problems were worse. A second engineer determined there were foundation problems, partially linked to the fill dirt beneath the slab. After having to pay another contractor to shore up the foundation, the Salyers sued Noble for economic and emotional-distress damages.

III. Noble’s Lawsuits

¶ 11. Noble sought a defense and indemnity under its own CGL policy. But Noble’s insurer denied coverage and filed a declaratory action in federal court. Noble countersued and included its own insurance agent and agency as third-party defendants. Noble then filed a separate lawsuit in Madison County Circuit Court against Harris’s insurance agent and agency, Horne and Wellington Associates. Noble claimed, based on the certificate of insurance, it reasonably and detrimentally relied on the fact the additional-insured endorsement provided coverage for the Salyers’ claim.

1112. After the federal suit ended with summary judgment being granted in favor of all three of Noble’s adversaries, Noble then amended his state-court complaint to add Harris’s insurance company, Ohio Casualty. In addition to claiming breach of contract and bad faith, Noble took the alternative position that Ohio Casualty was bound to provide coverage — even if there was no coverage under the additional-insured endorsement — because Noble reasonably believed there was coverage based on Ohio Casualty’s previous actions connected to a lawsuit against Harris and Noble concerning another Noble-built house.

¶ 13. The Madison County Circuit Court granted all three defendants summary judgment on all of Noble’s claims. The circuit judge found, based on the undisputed facts, that there was no coverage under the additional-insured endorsement for the Salyers’ property-damage claim against Noble. The endorsement only covered liability for property damage caused by Harris’s “ongoing operations.” So when Harris completed its dirt work in March 2006, Noble’s coverage under the endorsement also ended. As the Salyers’ damage did not arise until much later— after Noble built and sold the house — it was not covered.

¶ 14. And because there was no coverage, the circuit judge found all of Noble’s remaining claims also failed. Having disposed of all claims against all parties, the circuit judge entered a final, appealable judgment in July 2012. Noble timely appealed.

Discussion

¶ 15. We review the grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Bradley v. Kelley Bros. Contractors, Inc., 117 So.3d 331, 336 (¶ 21) (Miss.Ct.App.2013) (citation omitted). In doing so, we ask the same question as the circuit judge — did the moving parties show that there are no material factual disputes and that they are entitled to judgments as a matter of law. Id.

¶ 16. Our de novo review leads us to the same conclusions as the circuit judge. As a matter of law, the additional-insured endorsement does not cover the Salyers’ claims against Noble because the Salyers’ alleged property damage was not caused by Harris’s “ongoing operations.” Further, Noble has failed to meet his burden of production for any other claim against Ohio Casualty, Horne, or Wellington Associates. See Karpinsky v. Am. Nat’l Ins., 109 So.3d 84, 88-89 (¶ 11) (Miss.2013) (holding that party who bears the burden of proof at trial bears the burden of production at the summary-judgment stage).

I. No Coverage Under the Additional-Insured Endorsement

¶ 17. Noble brought a claim of breach of contract against Ohio Casualty, as well as derivative claims of breach of the duty of good faith and fair dealing and bad faith. Interestingly, it is the “certificate of insurance” that Noble asserts Ohio Casualty breached. But this cannot be so. The certificate clearly stated it was being issued for Noble’s information only and neither conferred nor altered any rights in and of itself. So if Ohio Casualty owed Noble any contractual duty, such a duty would be found in the additional-insured endorsement. Because the additional-insured endorsement did not cover Noble’s liability connected to the Salyers’ lawsuit, we agree with the circuit judge that all of Noble’s contract-based claims against Ohio Casualty fail.

A. Interpreting “Ongoing Operations

¶ 18. Both Noble and Ohio Casualty agree that Noble was “only an additional insured with respect to liability ... caused in whole or in part by [Harris’s] ongoing operations[.]” But they disagree on the meaning of “ongoing operations” as a limitation to coverage.

¶ 19. The scope of coverage of an insurance policy is a question of law, not of fact, so this issue was appropriate for summary judgment. See Shelter Mut. Ins. v. Simmons, 543 F.Supp.2d 582, 585 (S.D.Miss.2008) (citing Noxubee Cnty. Sch. Dist. v. United Nat’l Ins., 883 So.2d 1159, 1165 (¶ 13) (Miss.2004)). “[I]f a contract is clear and unambiguous, then it must be interpreted as written.” Architex Ass’n, Inc. v. Scottsdale Ins., 27 So.3d 1148, 1157 (¶ 21) (Miss.2010) (quoting U.S. Fid. & Guar. Co. v. Martin, 998 So.2d 956, 963 (¶ 13) (Miss.2008)). And just because the parties disagree over how to interpret policy language does not mean the language is ambiguous. Id.

¶ 20. Harris’s CGL policy does not define “ongoing operations.” And neither our supreme court nor this court has had occasion to interpret this phrase as it is used in an additional-insured endorsement to a CGL policy. But other jurisdictions have interpreted “ongoing operations” in similarly worded endorsements. After reviewing these precedents, we are persuaded by the courts that have found that, in order for “ongoing operations” to have any meaning, it cannot encompass liability arising after the subcontractor’s work was completed. E.g., United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 633 F.3d 951, 958-59 (10th Cir.2011); Weitz Co., LLC v. Mid-Century Ins. Co., 181 P.3d 309, 313-15 (Colo.Ct.App.2007); Hartford Ins. v. Ohio Cas. Ins., 145 Wash.App. 765, 189 P.3d 195, 201-02 (2008).

¶21. Giving “ongoing operations” its plain and ordinary meaning, the Colorado Court of Appeals found this phrase referred to an action “actually in process.” Weitz, 181 P.3d at 313 (quoting Webster’s Third New International Dictionary 1576 (2002)). Thus, this phrase, by definition, could not encompass “completed operations.” Id. at 313-14. Because in Weitz the contractor had been sued for damage that was caused by the subcontractor’s completed work, the insurer had no duty to defend or indemnify the general contractor. Id. at 315.

¶ 22. The Tenth Circuit, applying Weitz, further explained, because “[clover-age for ‘ongoing operations’ is distinct from coverage for ‘completed operations’ or ‘completed work,’ ” when a policy “only’ covers “Ongoing operations,” the “result [is a] more limited coverage for the additional insured general contractor vis-vis the insured contractor.” Boulder Plaza, 633 F.3d at 958-59 (quoting Weitz, 181 P.3d at 313). And to reach back to “the date of the earliest beginning of any prior event which might be regarded as having a causal relation to the unlooked for mishap would introduce ambiguity where none now exists.” Boulder Plaza, 633 F.3d at 959. By limiting coverage to property damage caused by “ongoing operations,” the policy is clear that once a subcontractor completes its work, coverage ends. Id.

¶ 23. The Tenth Circuit found that to hold otherwise — and agree with the contractor’s suggested interpretation that the damage merely has to be causally linked to operations that were once ongoing — would “transform [the] commercial general liability policy into a performance bond.” Id. But CGL policies are not meant to cover the business risk that the subcontractor’s performance may be inadequate. Id. Rather, the purpose of a CGL policy is to protect businesses from liability to third parties for bodily injury or property damage resulting from accidents.

B. Noble’s Argument

¶ 24. When Harris completed its operations for Noble in March 2006, there was no liability — because there was no house yet that could have been damaged. So the damage for which the Salyers sought to hold Noble accountable could in no way have been caused by Harris’s operations “actually in process.” Weitz, 181 P.3d at 313. Instead, it was caused by Harris’s completed work.

¶ 25. Noble tries to argue that the phrase “caused ... by [Harris’s] ongoing operations” is a “causal” limitation, not a “temporal” limitation on coverage. Noble insists the only time limit the endorsement places on coverage is the express exclusion of property damage “occurring after” all work on the project has been completed or that portion of Harris’s work had been put to its intended use. And it suggests that time had not passed when the cracks in the Salyers’ house began to form.

¶ 26. As Noble sees it, if the damage can be traced back to Harris’s active operations, the endorsement covers it. But to accept Noble’s argument, we would have to read the word “ongoing” out of the endorsement and find that Noble is covered for liability caused by Harris’s operations — active or completed. And “a court must refrain from altering or changing a policy where terms are unambiguous[.]” Architex, 27 So.3d at 1157 (¶ 21) (quoting Martin, 998 So.2d at 963 (¶ 13)). So we will not manipulate the endorsement to expand coverage that is clearly and unambiguously limited to liability caused by “ongoing operations.”

¶ 27. Further, Noble’s same argument was rejected by the Tenth Circuit in Boulder Plaza. See Boulder Plaza, 633 F.3d at 959. Were we to interpret the endorsement without giving effect to the unambiguous phrase “ongoing operations,” we would be changing Harris’s CGL policy to a performance bond, covering any and all liability in connection with Harris’s performance as subcontractor. See id. Not only does this interpretation contradict the plain and unambiguous language of the endorsement — that Noble’s status as an additional insured is “limited” to “only” liability caused by “ongoing operations”— but Noble has conceded that the endorsement is not a performance bond.

¶ 28. Here, it is clear from the language of the endorsement that Noble was only an additional insured for liability caused by Harris’s active work on the site. What this means is Noble was protected against lawsuits arising from accidents occurring during the time Harris performed dirt work. Had Harris accidentally knocked over a neighbor’s tree with a bulldozer or cut a gas line while performing dirt work, Noble would be covered for any resulting liability.

¶ 29. It is equally clear the endorsement did not cover property damage manifesting itself after Harris stopped working on the site. Noble does not dispute that Harris ceased its “ongoing operations” in March 2006. The Salyers did not form a contract to buy the later-built house until September 2007. So if Harris’s performance caused, even in part, the property damage for which Noble was liable, the cause was Harris’s completed work, not its ongoing operations.

¶ 30. Because the Salyers did not allege any property damage caused by Harris’s “ongoing operations,” Ohio Casualty owed Noble no duty to defend and/or indemnify the Salyers’ lawsuit. Therefore, Noble failed to show Ohio Casualty breached any contractual obligation owed to Noble. See Architex, 27 So.3d at 1157 (¶ 21) (citing S. Life & Health Ins. v. Kemp, 300 So.2d 782, 785 (Miss.1974)) (“The burden of proving coverage rests with the insured.”). Consequently, the circuit court properly dismissed on summary judgment Noble’s claims of breach of contract, breach of the duty of good faith and fair dealing, and bad faith denial of insurance benefits.

II. No Additional Claims Against Ohio Casualty, Horne, or Wellington Associates

¶ 31. Noble keeps characterizing this case as being about more than coverage under the endorsement, asserting that resolving the coverage issue in Ohio Casualty’s favor does not necessarily resolve its other claims. But we agree with the circuit judge that Noble has no other viable claims against any of the defendants.

A. Waiver and Estoppel

¶ 32. Noble raises the quasi-contractual theories of waiver and estop-pel for why Ohio Casualty still had a duty to defend and indemnify Noble even if the Salyers’ claim was not covered by the additional-insured endorsement. But the longstanding law in Mississippi is that “[w]aiver or estoppel cannot operate so as to bring -within the coverage of the policy property, or a loss, or a risk, which by the terms of the policy is expressly excepted or otherwise excluded.” Emp’rs Fire Ins. v. Speed, 242 Miss. 341, 346,133 So.2d 627, 629 (1961). Because “coverage or restrictions on the coverage cannot be extended by the doctrines of waiver or estoppel,” the circuit judge correctly held that Noble’s waiver and estoppel arguments against Ohio Casualty fail as a matter of law. Id.

B. Detrimental Reliance

¶ 33. Noble also lodges contract-based and quasi-contract claims against Horne and Wellington Associates. But Noble cannot point to any contractual obligation Horne and/or Wellington Associates owed it. The agreement to name Noble as an additional insured on Harris’s CGL policy was between Noble and Harris. Horne merely acted at Harris’s request. So any claim Noble did not get the coverage it bargained for would be against Harris — which Noble neither sued in its federal lawsuit nor the present state-court action.

¶ 34. Instead, Noble has sued Horne and Wellington Associates for “detrimental reliance.” “Detrimental reliance” is an element of both promissory estoppel and equitable estoppel. Weible v. Univ. of S. Miss., 89 So.3d 51, 67 (¶ 52) (Miss.Ct.App.2011) (citation omitted). Promissory estoppel legally enforces a promise made without consideration — so no contract was formed — because three things happened: (1) the promise was made with the intent it would be relied upon; (2) the promise was indeed relied upon; and (3) it would be unjust not to enforce the promise. Id. Equitable estoppel enforces an otherwise unenforceable contract because one party has received a benefit under the contract, and it would be unjust to allow that party to avoid the contract’s obligations due to some issue with the contract’s enforcement. Id.

¶ 35. Here, Noble has produced no evidence to create a jury question for either form of estoppel. It neither points to any promises that Horne or Wellington Associates made to Noble nor any unenforceable contract it entered into with Horne and Wellington Associates, from which they have unjustly received a benefit. The only interaction these defendants had with Noble was mailing it the certifícate of insurance. And the certificate was not a contract, as it clearly stated it conferred no rights on Noble. All the certifícate did was notify Noble it had been added as a named insured to Harris’s CGL policy, subject to the terms of that policy.

¶ 36. Noble has not alleged — and has not offered any proof — that Horne or anyone else at Wellington Associates promised any additional or different coverage than what was clearly stated in the terms of the policy and additional-insured endorsement. So without a promise or an otherwise-unenforceable contract, Noble has no “detrimental reliance” claim against Horne and Wellington Associates.

C. Negligent Misrepresentation

¶ 37. Noble’s final claim against Horne and Wellington Associates was for negligent misrepresentation. However, for there to be negligent misrepresentation, it must first be shown there was a misrepresentation of fact. See Spragins v. Sunburst Bank, 605 So.2d 777, 780 (Miss.1992) (citations omitted). And neither Horne nor anyone at Wellington Associates falsely represented anything to Noble. They merely mailed Noble the certificate of insurance. The certificate represented that Noble, as “certificate holder,” had been named as an additional insured. Nothing about this statement was false. As the cover sheet of Harris’s CGL policy indicates, Noble was listed as a named additional insured. Further, the certificate of insurance was clear that Noble, as an additional insured, was subject to the policy’s terms, conditions, and exclusions— including the endorsement’s “ongoing operations” limitation. Noble has neither alleged nor offered evidence of representations by Horne or other employees of Wellington Associates that the endorsement’s coverage deviated from its express terms.

¶ 38. Based on the undisputed facts, Ohio Casualty, Horne, and Wellington Associates were entitled to a judgment as a matter of law on every claim Noble brought against them. We thus affirm the circuit court’s order granting summary judgment in their favor.

¶ 39. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ„ CONCUR. JAMES, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., NOT PARTICIPATING.

      . The Salyers also sued the engineer who performed the initial inspection and Noble Real Estate’s principal Arthur Noble, individually, based on Arthur's personal representations that he would pay for any necessary repairs made on the home.

      . Arthur Noble, individually, joined his company in filing suit. While Arthur was sued by the Salyers individually, the separate claims against him have nothing to do with Harris’s dirt work, but instead relate to alleged misrepresentations by Arthur, which in no way can be argued were covered by additional-insured endorsement to Harris’s CGL policy. As Arthur has no claims separate and district from Noble Real Estate, this opinion will refer to both plaintiffs, now appellants, as "Noble.”

      . While Noble asserted "detrimental reliance” as a separate claim, detrimental reliance is merely an element of estoppel. Weible v. Univ. of S. Miss., 89 So.3d 51, 67 (¶ 52) (Miss.Ct.App.2011) (citation omitted).

      . We note that Noble also brought a claim of negligent infliction of emotional distress against Horne and Wellington Associates. But this claim is so lacking in substance, that we affirm the dismissal of this claim by summary judgment without any further discussion.


text:
    Jerica EVANS, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01067-COA.
    Court of Appeals of Mississippi.
    March 4, 2014.
    Rehearing Denied June 10, 2014.
    Vicki L. Gilliam, Clinton, attorney for appellant.

      Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., BARNES, ROBERTS and JAMES, JJ.
   BARNES, J.,

for the Court:

¶ 1. A Yazoo County Circuit Court jury found Jerica Evans guilty of accessory before the fact to the sexual battery of her cousin, Glenda Hall. The trial judge sentenced Evans to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years of supervised probation. Evans now appeals her conviction and sentence, raising issues regarding the sufficiency and weight of the evidence, and whether the trial court erred in limiting the defense’s closing argument. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In 2009, Evans, who was seventeen years old, and her younger brother were living with their grandmother, Debra Dil-lan, in Yazoo City, Mississippi. They were placed in Dillan’s home by the Department of Human Services, and had been living there approximately two years. Also living with Dillan were two of her grandchildren (Evans’s first cousins), Glenda and Antoine Hall, who were eight and six years old, respectively. They had been living with Dillan for about six years while their mother, Gina Hall, was living in Jackson, Mississippi, trying to “get on her feet.” Additionally, a twenty-eight-year-old man named Tommie Lee Jones had recently moved into Dillan’s house and was sleeping on the couch. Dillan, however, did not know Jones’s true age at the time because Jones presented himself to Dillan as a seventeen-year-old student.

¶ 3. Around the date of April 17, 2009, Dillan called her daughter, Gina, to come get her two children because “Jerica was causing trouble.” Gina drove to Yazoo City and picked up her children. Upon returning home, she smelled a foul odor coming from Glenda’s “vagina area.” She told Glenda to bathe, and noticed an abnormal discharge in Glenda’s underwear. Gina immediately took Glenda to the emergency room at St. Dominic’s Hospital in Jackson, Mississippi, fearing Glenda had been “messed with.”

¶ 4. Dr. James Aaron examined Glenda and found her to have trichomonas, a sexually transmitted disease. Dr. Aaron testified the symptoms “started one week ago” and were “in the context of the patient’s older first cousin’s 27-year-old boyfriend did oral sex on her and had her do oral sex on him in front of his girlfriend at the children’s grandmother’s house.” Dr. Aaron found Glenda’s history reliable. His primary diagnosis was that Glenda had been sexually assaulted.

¶ 5. Glenda’s mother testified that while at the hospital, when she asked Glenda what happened, Glenda stated that “she was being licked by Tommie Lee while Jerica was instructing her what to do.... Jerica made her perform oral sex on Tommie Lee.... ” and Jerica made threats to Glenda if she told anyone what happened. Additionally, Lisa Caddie, the “on-call” social worker at St. Dominic’s, testified that when she spoke with Glenda, it was her understanding Glenda’s “cousin’s boyfriend sexually abused her”; Evans “was present when it occurred”; and Evans threatened Glenda if she told anyone what happened. Glenda told her the incidents occurred approximately one week before April 17.

¶ 6. The next day, Glenda’s mother went to the Yazoo City Police Department to press charges. First, she spoke briefly with Captain Andre Lloyd, and then Investigator Larry Davis. Investigator Davis testified that Glenda stated Evans told her “to go into the bedroom where Tommie Lee Jones was and to do whatever he wanted to do.” According to his interview and report, Glenda told Investigator Davis that Jones performed oral sex on her, and she on him, under Evans’s instructions. Investigator Davis arranged for a forensic interview of Glenda in Tupe-lo, Mississippi, with an individual who specializes in interviewing children.

¶ 7. After the interview, Jones was arrested for sexual battery. Evans was initially arrested for witness tampering because she had told Gina that if she went “down for something [she] didn’t do, [she] was going to kick [Gina’s] ass.” In December 2009, Jones was indicted for sexual battery, and Evans was indicted for accessory before the fact to sexual battery.

¶ 8. In May 2009, Glenda began seeing a licensed certified social worker, Ms. Kel-so, in Jackson. Kelso testified that during her treatment of Glenda, the child had described two instances of sexual battery. On one occasion, Evans brought Glenda into the living room where Jones was waiting with his genitals exposed. Evans instructed Glenda to perform oral sex on Jones, and Glenda complied, while Evans watched. During another occasion, Glenda was getting out of the bathtub when Evans took Glenda’s clothes and told her to come into a bedroom. There, Jones held her down while he performed oral sex on her, and Evans watched.

¶ 9. Kelso also testified that Glenda told her Evans and Jones had driven her and her brother out into the woods in a deserted area at night. They shut off the car, made the children get out of the car, and told them “now you’re gonna die.” Kelso also relayed that whenever Dillan would leave the home, Evans was “in charge,” and would often yell or hit Glenda. Kelso opined that Glenda was truly fearful of Evans, Glenda had not been coached, and she was a credible witness.

¶ 10. At trial, Glenda’s brother, Antoine, corroborated the incident in the woods and Evans’s threats. Antoine was six years old at the time. He testified about waking up in the middle of the night and seeing Jones “on top of’ Glenda. Antoine told Jones “to get off’ of his sister, but Jones merely told Antoine to go back to bed. Antoine stated Evans was watching what Jones was doing to his sister.

¶ 11. Glenda testified at trial about two separate occurrences of sexual battery. In one occurrence, Glenda came out of the bathroom and asked Evans for her clothes. Evans told Glenda to go to Evans’s bedroom, but Evans never brought Glenda her clothes. Instead, Evans and Jones came into the room. Evans stood at the foot of the bed and told Jones “what to do” while Evans watched. Jones put his tongue on her “privates.” Glenda asked Jones to stop, but Evans told Jones he did not have to stop. Glenda tried to push Jones off of her, but he was too heavy.

¶ 12. During the second incident, Glenda testified that she was outside playing when Evans called her inside Dillaris house. Jones was on the couch with his pants pulled down. Evans told Glenda to put her mouth on Jones’s “private parts.” Glenda complied after Evans threatened to kill her and her mother. Glenda also testified that Evans whipped and beat her and Antoine.

¶ 13. Evans testified in her own defense. She denied taking part in Glenda’s sexual battery, and that Glenda told her Jones was “licking on” her, but then Glenda recanted and stated she was “just playing.” Evans claimed Jones forced her to have sexual intercourse with him. Evans claimed Gina was forcing Glenda to accuse Evans of the crime because there were “family problems.” Evans admitted to threatening Gina, and tapes were played of the threatening voice-mail recordings.

¶ 14. Also testifying for the defense was Carla Brown, Glenda’s and Evans’s cousin. She heard about Jones’s “molesting” Glenda from her aunts, but Brown did not think Evans was involved. But when she asked Evans what happened, all Evans would say is, “I didn’t touch the child.”

¶ 15. After the jury convicted Evans of accessory before the fact to sexual battery, Evans was sentenced to twenty-five years in the custody of the MDOC, with five years suspended and five years of supervised probation. Evans filed a motion for a judgment notwithstanding the verdict or a new trial, which was denied. Evans now appeals.

ANALYSIS

I. Sufficiency and Weight of the Evidence

¶ 16. Evans claims the jury verdict was against the sufficiency and weight of the evidence. In reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Nolan v. State, 61 So.3d 887, 893 (¶ 24) (Miss.2011) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). “The evidence will be deemed sufficient if, bearing in mind the reasonable-doubt standard, ‘reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense.’ ” Id. All credible evidence consistent with the defendant’s guilt will be accepted as true, together with all favorable inferences that may be reasonably drawn from the evidence. Robinson v. State, 940 So.2d 235, 239-40 (¶ 13) (Miss.2006) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶ 17. Regarding a challenge to the weight of the evidence, the reviewing court will not disturb the verdict unless allowing “it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence will be viewed in the light most favorable to the verdict. Id. It is the jury’s role to assess the weight and credibility of the evidence and to resolve any conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73 (¶ 12) (Miss.2005). Reversal of a conviction is warranted only upon finding that the trial court abused its discretion in denying the motion for a new trial. Dilworth v. State, 909 So.2d 731, 737 (¶ 20) (Miss.2005) (quoting Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss.2003)).

¶ 18. Evans argues that the testimony of Glenda is contradictory and thus insufficient. She also claims that it is unclear from the evidence whether Evans participated in Jones’s sexual battery of Glenda.

¶ 19. Evans was indicted under Mississippi Code Annotated section 97-1-3 (Rev.2006), which provides: “Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.” “The concept of an accessory before the fact involves some participation in the criminal act.” Clemons v. State, 482 So.2d 1102, 1105 (Miss.1985) (citing West v. State, 233 Miss. 730, 733, 103 So.2d 437, 439 (1958)). The Mississippi Supreme Court has affirmed numerous convictions of defendants as accessories “where the evidence reflected some conduct on the part of the accused which facilitated the consummation of the principal crime.” Id. (citations omitted). Lack of presence when the crime is committed “avails [the defendant] of nothing.” Id. (citing Kennard v. State, 242 Miss. 691, 695, 128 So.2d 572, 574 (1961)). But “mere presence at the time another suggests the possibility of future criminal conduct[,] without more[,] does not render one guilty as an accessory before the fact.” Clemons, 482 So.2d at 1106. “One who is an accessory before the fact or one who aids and abets necessarily enters into an agreement that an unlawful act will be done. [The individual] participates in the design of the felony.” Malone v. State, 486 So.2d 360, 364 (Miss.1986). Also, “evidence of the acts of the principal are admissible against the accessory before the fact.” State v. Peoples, 481 So.2d 1069, 1070 (Miss.1986) (citing Blackwell v. State, 231 So.2d 790, 792 (Miss.1970)).

¶ 20. There was sufficient evidence presented to the jury to find Evans an accessory before the fact to sexual battery. That Glenda had been sexually battered by Jones was not in dispute at Evans’s trial. There was ample evidence, as recounted above, that Evans was not only present, but participated in the sexual battery by facilitating Jones, and instructing and encouraging Glenda.

¶ 21. The jury was instructed on the necessary elements of accessory before the fact. Viewing the evidence in the light most favorable to the State, a rational trier of fact could find all essential elements of the crime beyond a reasonable doubt. Additionally, the jury rejected Evans’s version of the events. While there were minor inconsistencies in the various versions of the incidents, it is the province of the jury to resolve contradictions in the evidence. See Latiker, 918 So.2d at 73 (¶ 12). The weight of the evidence supports the verdict.

II. Closing Argument

¶ 22. Evans claims a new trial is warranted because her rights to due process were violated when the trial judge told defense counsel to “take his seat” during his closing argument, preventing him from completing it. The trial judge’s command was precipitated by instances during defense counsel’s closing argument where he repeatedly referenced information not in evidence. The trial judge warned him approximately five times during his closing argument, and once before it, to avoid these references, but he continued to make them.

¶ 23. While attorneys are allowed wide latitude in arguing their cases before a jury, they are limited to the facts presented in evidence, as well as any “deductions and conclusions ... reasonably draw[n] therefrom, and the application of the law to the facts.” Wells v. State, 698 So.2d 497, 506 (Miss.1997) (citing Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991)). The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Sheppard v. State, 777 So.2d 659, 661 (¶7) (Miss.2000) (citing Ormond v. State, 599 So.2d 951, 961 (Miss.1992)). Further, “[t]he purpose of a closing argument is to fairly sum up the evidence .... Counsel cannot, however, ... ‘appeal to the prejudice of men by injecting prejudices not contained in some source of the evidence.’ ” Id. (quoting Williams v. State, 445 So.2d 798, 808-09 (Miss.1984)).

¶ 24. Before defense counsel began his closing argument, the trial judge, in a bench conference out of the hearing of the jurors, warned defense counsel not to tell the jury “the things that we discussed at the bench,” because, as she later explained, he had a habit of making reference to such information that was not in evidence. Shortly after he began his closing, defense counsel proceeded to tell the jury: “I think perhaps young [Glenda] resented [Evans].... And it didn’t come out on the stand so I can’t really talk about it ... but Dillan said [Evans] once told her, ‘you don’t really know anything about [Glenda].’ I’m not gonna elaborate.” The prosecution objected to this negative suggestion about Glenda. The trial judge sustained the objection, and told defense counsel to “move on.” Soon after, defense counsel made the comment to the jury that there were not more exhibits for the jury to review because the State did not call all of its listed witnesses. Again, the State objected to this negative suggestion that evidence was being withheld from the jury.

The trial judge again admonished defense counsel that if information was not in evidence, it could not be discussed in closing argument. The trial judge also warned defense counsel that if he continued this tactic, she would “sit [him] down.” Shortly thereafter, the State objected after Evans’s counsel again made reference to documents not entered into evidence by the State, that “Jones was bound over to the grand jury....” A bit later in closing, defense counsel then made the comment that “Jones was never prosecuted for forcible sex on [Evans]. No, nobody from the State did a doggone thing.” Again, a bench conference ensued, and the trial judge warned that if he referenced information not in evidence one more time, she would “sit [him] down.” Defense counsel then told the jury that the “State of Mississippi” was responsible for having two victims (Evans and Glenda) where Jones “could get at them” (at Dillan’s house), and Evans was being unjustly prosecuted for incidents while living at Dillan’s home, “where the State put them.” The trial judge then instructed defense counsel to sit down. The State requested the judge instruct the jury to disregard the last statement made by defense counsel, and she complied. Defense counsel moved for a mistrial, which was denied.

¶ 25. It is elementary that trial counsel cannot inject “prejudices ... not contained in some source of the evidence” into closing argument. See Sheppard, 777 So.2d at 661 (¶ 7). Evans complained of the trial judge’s stopping her closing argument, yet neither at trial nor in her brief was there a proffer or explanation of the points which were “incomplete and untold,” and which she claimed would prejudice her to such a degree to warrant a new trial. The trial judge noted that defense counsel’s total closing-argument time was thirty minutes, and counsel was told to “sit down” with approximately three minutes of time remaining. Defense counsel had numerous warnings, which he chose to disregard. We cannot say that Evans was unjustly prejudiced by the trial judge’s limiting closing argument by a few minutes. This issue is without merit.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION OF ACCESSORY BEFORE THE FACT TO SEXUAL BATTERY, AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . The names of the victim and the victim's relatives have been changed to protect the victim’s identity.

      . During this time, Evans was pregnant with Jones’s child.

      .Evans had trichomonas around this time as well, when she was having sexual intercourse with Jones. It is not specified in the record whether Jones definitely had the disease, but he took Evans’s medicine to treat himself.

      . On cross-examination, Investigator Davis admitted that, in the police report taken by Captain Lloyd, Gina did not mention Evans’s participating in the incidents. Instead, Gina reported to Captain Lloyd that Jones had sexual intercourse with Glenda: Jones had woken Glenda up one night, pulled her underwear down, and put his penis inside of her. Gina, however, maintained at trial that she told law enforcement Jones had oral sex with her daughter, not intercourse.

      . This Court affirmed the conviction of Jones for the sexual battery of "Glenda” in August 2013. See Jones v. State,—So.3d—,— (¶ 22) (Miss.Ct.App.2013). The Mississippi Supreme Court granted a petition for a writ of certiorari to hear the case.


author: IRVING, P.J.,

text:
    CITY OF NATCHEZ, Mississippi, Appellant v. Andre DE LA BARRE, Appellee.
    No. 2012-CA-00984-COA.
    Court of Appeals of Mississippi.
    March 25, 2014.
    Rehearing Denied May 20, 2014.

      L. Clark Hicks Jr., Hattiesburg, attorney for appellant.
    John T. Ball, Natchez, attorney for ap-pellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. At the conclusion of a bench trial, the Adams County Circuit Court found that Andre De la Barre had sustained $80,000 in damages as a result of his fall on a sidewalk in Natchez, Mississippi. The circuit court apportioned fifty percent of the damages to De la Barre and fifty percent to the City of Natchez (City). Feeling aggrieved, the City appeals and argues that the circuit court erred by failing to find that it was immune from liability under the Mississippi Tort Claims Act (MTCA), and erred in applying the comparative-negligence doctrine instead of finding that De la Barre’s own negligence was an absolute bar to his recovery.

¶ 2. Finding that the circuit court erred in failing to find that the City is immune under the discretionary-function-exemption provision of the MTCA, we reverse and render the circuit court’s judgment.

FACTS

¶ 3. In September 2008, a hurricane hit Natchez, Mississippi, and caused a building’s brick fagade to fall. The fagade caused damage to the sidewalk in front of the building. The City claims that it immediately put barricades, warning tape, and warning barrels in the area.

¶ 4. De la Barre lived in the area where the fagade had fallen and was aware of the damage to the sidewalk. The sidewalk in that area consists of two tiers: a concrete tier immediately in front of the building, and a lower, bricked tier, between the concrete tier and the street. The bricked tier of the sidewalk is lower than the concrete tier of the sidewalk, but higher than the street level. De la Barre testified that he knew of the danger in the area and that he never tried to step up onto the concrete tier of the sidewalk, which was “clearly damaged.” When he parked on that street, he would regularly step on the lower, bricked tier of the sidewalk because there was never a visible problem with that tier. De la Barre claims that there were no barrels, warning tape, or any other warning signs indicating that the bricked portion of the sidewalk was damaged. He testified that, on March 30, 2009, when he stepped onto the bricked portion of the sidewalk, the bricks collapsed beneath him, causing him to fall and break his wrist.

¶ 5. Louise Peabody, who lived on the same street as De la Barre, testified that there were no barriers or warning signs on the bricked portion of the sidewalk around the time that De la Barre fell. She also stated that she did not recall seeing any warning devices in that area at any time before De la Barre fell. Peabody admitted that she would always walk on the bricked portion of the sidewalk when she parked in that area.

¶ 6. David Gardner, the superintendent of Natchez Water Works and a city engineer, testified that the day after the hurricane, the entire side of the street where the damage had occurred was blocked off with barriers. He stated that the City inspected the damage to the sidewalk that day and several times afterwards, with the safety of pedestrians being the City’s top priority. Gardner stated that the concrete portion of the sidewalk was crushed, and that the bricked portion was crushed in several places. Officials had to rearrange warning barrels every time they visited the site of the damage. He added that the City was inspecting the area in order to send information to insurance companies so that the City could get the sidewalk repaired. Gardner testified that when the fagade fell, it made a “depression” in the bricked portion of the sidewalk. He claimed that De la Barre would be “absolutely incorrect” to say that the bricks where he stepped looked stable because there was a hole already there, and the tier was not level and was pushed inward.

¶ 7. Gardner admitted that he did not recall how many barrels were initially put out to warn citizens about the damaged area, but believed that there were sufficient warnings surrounding the concrete portion of the sidewalk. He further stated that, prior to the damage, the bricks would naturally allow water to infiltrate the cracks. The fallen fagade’s damage caused the cracks to open even more, weakening the foundation beneath the bricks. Gardner conceded that the City knew of the hazard, which is why it made “every attempt” to warn citizens and get the situation rectified.

¶ 8. In its order and final judgment, the circuit court found that, although the City was “diligent in trying to deal with the situation[,] ... the warning[s] and restriction[s] were not legally sufficient for the area in question[.]” The circuit court also found that “[although [De la Barre] was not able to see the precise danger of the specific point of the collapse, he was certainly aware or should have been aware of the general danger of the area [and] that a reasonably prudent person, having the information that [De la Barre] did, would have exercised a higher degree of care and caution in stepping [up on] the area in question[.]”

¶ 9. Additional facts, as necessary, will be related in the analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. The City claims that it is entitled to immunity under Mississippi Code Annotated section 11-46—9(1)(d) (Rev.2012) because “the selection and placement of warning devices is a discretionary function involving choice and judgment grounded upon social, economic!,] and political policy considerations.” De la Barre argues that the issue is not whether the City was negligent in warning of the dangerous condition, but whether the City was negligent for failing to inspect and maintain its sidewalks.

¶ 11. “The MTCA is the exclusive remedy for filing a lawsuit against governmental entities and [their] employees.” S. Cent. Reg’l Med. Ctr. v. Guffy, 980 So.2d 1252, 1255 (¶ 7) (Miss.2006) (quoting City of Jackson v. Brister, 888 So.2d 274, 278 (¶ 13) (Miss.2003)). Therefore, a proper resolution of the issue presented requires an application of the relevant portions of the MTCA to the facts of the case. In making this application, an appellate court applies a de novo standard of review. Brister, 838 So.2d at 278 (¶ 13).

¶ 12. The Mississippi Supreme Court has established that “a duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.” Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 795 (¶ 19) (Miss.2012) (citing Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 924-25 (¶ 17) (Miss.2006)). “A duty is ministerial if it is positively imposed by law and required to be performed at a specific time and place, removing an officer’s or entity’s choice or judgment.” Id. (citing Covington Cnty. Sch. Dist. v. Magee, 29 So.3d 1, 5 (¶ 8) (Miss.2010)). “[Wjhere a statute mandates the government or its employees to act, all acts fulfilling that duty are considered mandated as well, and neither the government nor its employees enjoys immunity.” Id. at 798 (¶ 31). Therefore, even if an act fulfilling a ministerial duty involves choice or judgment, the duty itself is still ministerial, as are the acts fulfilling that duty. Little v. Miss. Dep’t of Tramp., 129 So.3d 132, 136 (¶ 8) (Miss. 2013).

¶ 13. Mississippi Code Annotated section 21-37-3 (Rev.2007), upon which De la Barre relies, provides that “the governing authorities of municipalities shall have the power to exercise full jurisdiction in the matter of streets, sidewalks, sewers, and parks; to open and lay out and construct the same; and to repair, maintain, pave, sprinkle, adorn, and light the same.” We have interpreted section 21-37-3 as not imposing a duty on a city to repair its streets and sidewalks. Hankins v. City of Cleveland,, 90 So.3d 88, 95 (¶ 12) (Miss.Ct.App.2011). “Instead, we [have] interpreted] [section 21-37-3] [as] only [giving] the City the power to exercise jurisdiction over the streets[,] and not [imposing] a ... duty to maintain them.” Id. Because there is no statute imposing a duty upon the City to repair and maintain sidewalks, the duty is a discretionary one.

¶ 14. Section 11 — 46—9(l)(d) provides:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]

Accordingly, regardless of whether the issue is the placement of warning signs or the failure to inspect and maintain the sidewalk, the City is immune from De la Barre’s claim pursuant to section 11-46-9(l)(d). Having determined that the City is immune, we need not address the City’s remaining assertion that De la Barre’s negligence should be an absolute bar from recovery, as this issue is now moot.

¶ 15. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.