author: CARLTON, J.,

text:
    Justin JAMES a/k/a “Hurricane” a/k/a Justin Curtis Martell James and Detrius Roberson a/k/a “Lil D”, Appellants v. STATE of Mississippi, Appellee.
    No. 2011-KA-00210-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2014.
    Rehearing Denied June 17, 2014.
    Certiorari Denied Sept. 11, 2014.

      Imhotep Alkebu-Lan, Chokwe Lumum-ba, Jackson, attorneys for appellants.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On March 1, 2010, an Attala County grand jury indicted Justin James (James) and Detrius Roberson (Roberson) (collectively Defendants) on the following charges: Count I, armed robbery in violation of Mississippi Code Annotated section 97-3-79 (Rev.2006); Count II, manslaughter in violation of Mississippi Code Annotated section 97-3-47 (Rev.2006); Count III, aggravated assault in violation of Mississippi Code Annotated section 97-3-7(2)(a) (Rev.2006); Count IV, aggravated assault in violation of section 97-3-7(2)(a); and Count V, conspiracy to commit armed robbery in violation of Mississippi Code Annotated section 97-1-1 (Supp.2013). Defendants were both convicted on all five counts. On appeal, Defendants raise the following issues: (1) whether the trial court erred by refusing Roberson’s jury instruction as to the weight of the evidence; (2) whether the trial court erred by refusing Defendants’ jury instruction as to accomplice testimony; (3) whether the trial court erred by refusing James’s jury instruction as to his theory of the case; (4) whether the trial court’s form of the verdict was erroneously worded; and (5) whether juror misconduct denied Defendants a fair and impartial trial. Finding no error, we affirm.

FACTS

¶ 2. On November 14, 2008, a robbery occurred at the Hill Brothers Logging Shop (Logging Shop) in Kosciusko, Mississippi, where several people had gathered to play cards, drink beer, and socialize. Upon hearing a knock at the door around 11 p.m., Jimmy Cook (Cook) went to the door and asked who was outside, but no one answered. Around the same time, Keith Holt (Holt) parked his truck outside the Logging Shop and witnessed four masked men with guns run away from the Logging Shop’s front door. Holt saw the men hide behind a nearby truck.

¶ 3. Ricky Hill (Ricky) and Jim Hill (Jim) exited the Logging Shop to see who was outside. Holt relayed what he had seen to Ricky, and Ricky walked toward the truck where the men had hidden. As Ricky made his way to the truck, one of the masked men pointed a gun at Ricky’s face and instructed him to drop to his knees and crawl back into the Logging Shop. Another masked man chased Jim into the Logging Shop. Several shots were fired into the Logging Shop, and the masked men demanded money from the people inside the Logging Shop. The gunfire resulted in injuries to Cook and Donnie Elmore (Elmore) and in the death of Jessie Earl Hill (Jessie). During the robbery, one robber’s mask slipped, revealing the man’s face. Ricky identified the man as Barry Love (Love).

¶ 4. Following his arrest, Love admitted his involvement in the robbery and identified James, Roberson, and Robert Landfair (Landfair) as his fellow conspirators. The police arrested all three men, and James and Roberson, Defendants in this appeal, were jointly indicted and tried. Prior to Defendants’ trial, Landfair pleaded guilty. Two months after Defendants’ trial, Love was tried and convicted.

¶ 6. On March 1, 2010, a grand jury indicted Defendants on five counts: Count I, armed robbery in violation of section 97-3-79; Count II, manslaughter in violation of section 97-3-47; Count III, aggravated assault in violation of section 97-3-7(2)(a); Count IV, aggravated assault in violation of section 97-3-7(2)(a); and Count V, conspiracy to commit armed robbery in violation of section 97-1-1.

¶ 6. Defendants’ trial began on September 20, 2010. In addition to the testimony of several eyewitnesses who were at the Logging Shop on the night of the robbery, the State called Love to testify against Defendants. Love testified that Roberson called him the day of the shooting to enlist him in a plan to get money back from a person with whom Roberson had previously had an altercation. Roberson told Love that the person would be at the Logging Shop on the night in question. Around 9:30 p.m. or 10 p.m. that night, Roberson, James, and Landfair picked Love up in a white Cadillac driven by James, and the men proceeded to the Logging Shop.

¶ 7. According to Love’s testimony, James parked the white Cadillac on a dirt road near the Logging Shop, and the four men concealed their faces and grabbed firearms from the car trunk. The men then made their way to the Logging Shop, and James called Jimmy Fletcher (Fletcher), who was inside the Logging Shop. Love testified that James asked Fletcher whether any guns were inside the Logging Shop, and Fletcher responded that no guns were inside the building. Roberson then knocked on the locked front door. A voice from within the Logging Shop asked who was outside, but none of the men answered. At this point Holt pulled into the parking lot, and the four men hid.

¶ 8. Love testified that James was the robber who pointed his gun at Ricky’s head and forced Ricky to crawl back into the Logging Shop. Love further testified that James, Roberson, and Landfair all fired shots into the building but that he (Love) neither fired shots nor stepped fully through the building’s doorway. Following the shooting, Love claimed that Land-fair fled on foot while the other three men made their way back to the Cadillac. When Love returned home, his mother informed him that the police were looking for him. Love called the police and then went to the sheriffs department the next morning. He provided the police with a statement identifying himself, James, Roberson, and Landfair as the men involved in the robbery.

¶ 9. During the trial, Defendants’ attorneys impeached Love on the following points: (1) which gun Love carried with him to the Logging Shop; (2) where Love stood during the shooting; and (3) whether Love fired any shots into the building during the robbery. In a prior statement signed by Love, he stated that he had a 9-millimeter handgun with him during the robbery. A second signed statement to police said that Love carried a 12-gauge shotgun with him and fired into the Logging Shop three times. At trial, however, Love testified that he chose a ,.40-caliber handgun from the weapons in the car trunk and that he never fired shots into the Logging Shop.

¶ 10. Other witness testimony differed from Love’s as to which of the four shooters actually stood in the door and fired the first shots. According to Love’s testimony at trial, he never fired shots into the building and, at most, had one foot inside the building’s doorway. Ricky testified, however, that as he crawled back to the Logging Shop, he saw Love step into the building and fire three or four shots inside. Ricky further testified that Love appeared to be holding a shotgun or a rifle.

¶ 11. Despite the discrepancies between Love’s testimony at trial and his prior statements, as well as between Love’s testimony and that of other witnesses, the State argues in its brief that Love consistently maintained that he, James, Roberson, and Landfair committed the robbery. The State further argues that other evidence presented at trial substantially corroborated Love’s testimony. Both Holt and Regina Hill Coates (Regina), a daughter of the deceased victim, Jessie, testified that they saw a white Cadillac parked near the Logging Shop before the shooting. Regina stated that she saw a white Gad-iliac parked on a nearby road as she drove to the Logging Shop the night of the robbery and that she saw four heads in the parked car. Police also recovered an unspent 9-millimeter round when they searched James’s car, a white Cadillac. In both his signed statements to police and his trial testimony, Love consistently maintained that Roberson carried a Tec-9 handgun the night of the robbery. Although no 9~millimeter rounds were found at the Logging Shop, the State asserts that the discovery of the unspent round in James’s car “corroborates Love’s assertion that Roberson was armed with a Tec-9, which uses 9[-millimeter] ammunition.”

¶ 12. The State also argues that the subpoenaed phone records of the four men supports Love’s testimony. According to Love’s testimony, Roberson called him when he, James, and Landfair arrived outside Love’s house to pick Love up. The State contends that this was likely the phone call made from Roberson’s phone to Love’s phone at 10:17 p.m. The State also argues that a call made from James’s phone at 10:52 p.m., about ten minutes before the shooting, was likely the call made to Fletcher to see whether anyone inside the Logging Shop had a gun.

¶ 13. Love also testified that Landfair escaped on foot after the shooting while the other three men returned to the car. The subpoenaed phone records reflect that between 11:02 p.m. and 12:22 a.m. Roberson made fourteen calls to Landfair’s cell phone. Love further testified that he and James dropped Roberson off so that Roberson could get his mother’s vehicle. Then Love and James dropped off James’s vehicle, set out on foot, and met Roberson in front of a club. The State asserts that this part of Love’s testimony is also corroborated by the phone records, which show that James and Roberson called each other five times between 12:22 a.m. and 12:42 a.m.

¶ 14. At Defendants’ trial, Roberson and two of his friends testified that Roberson was at a bar when the shooting occurred. While on the witness stand, Roberson further claimed that he did not have his cell phone the night of the shooting. Despite the phone records showing that he called Love’s phone seven times before the shooting, Roberson also testified that he and Love had a bad history and that it would have been unusual for him to contact Love.

¶ 15. Another witness at Defendants’ trial, Keshia Windom (Windom), testified and provided an alibi for James. James is the father of one of Windom’s children, who was three months old at the time of the shooting. Windom testified that James came to see his three-month-old baby at 10 p.m. the night of the shooting and stayed until 11:30 p.m. However, in a statement made by Love to the police, which Defendants offered into evidence, Love said that James called Windom before the shooting and “said if anything went down for her to say she was with him.”

¶ 16. After hearing the testimony and considering the evidence presented, a jury found James and Roberson guilty of all five counts charged in their indictment. The trial judge ordered James to serve a term of twenty years in the custody of the Mississippi Department of Corrections (MDOC) for each of the first four counts charged in his indictment and to serve a term of five years in the custody of MDOC for Count V; with the sentence in Count I to run consecutively to the sentences in Counts II, III, and IV; with the sentence in Count III to run concurrently with the sentence in Count II; with the sentence in Count IV to run consecutively to the sentences in Counts II and III; and with the sentence in Count V to run concurrently with the sentences in Counts I, II, III, and IV. The trial judge ordered Roberson to serve a terna of twenty years in the custody of MDOC for each of the first four counts charged in his indictment and to serve a term of five years in the custody of MDOC for Count V; with the sentence in Count I to run consecutively to the sentences in Counts II, III, and IV; with the sentence in Count III to run consecutively to the sentence in Count II; with the sentence in Count IV to run concurrently with the sentences in Counts II and III; and with the sentence in Count V to run concurrently with the sentences in Counts I, II, III, and IV.

¶ 17. On October 29, 2010, James filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. On November 3, 2010, Roberson filed an amended motion for a JNOV or, in the alternative, a motion for a new trial, setting forth allegations that mirrored those in James’s motion. In their motions, Defendants alleged that the trial court denied their right to a fair trial by not removing Hattie Mae McLaurin (McLaurin) and other jurors who failed to acknowledge during voir dire that they knew the family of the deceased victim. Defendants asserted that their right to a fair trial was also denied by the State’s use of perjured testimony. In addition, Defendants claimed that the trial court erred by giving the State’s defective accomplice jury instruction and that the State failed to prove its case beyond a reasonable doubt.

¶ 18. The trial judge entered an order on January 10, 2011, denying Defendants’ motions. Defendants then filed a motion on January 28, 2011, for a rehearing and reconsideration of their motion for a JNOV or, in the alternative, a new trial. In the alternative, they filed a second motion for a new trial. Defendants based their motion on newly discovered evidence. An attached affidavit signed by Erica Barnes (Barnes), a juror in the case, stated that Barnes had worked at Wal-Mart with two daughters of Jessie, the victim killed in the armed robbery. The affidavit further stated that, upon recognizing the victim’s daughters, Barnes was unable to remain fair and impartial during the trial. Barnes’s affidavit also stated that she did not make the trial court aware of her inability to remain fair and impartial because she believed that it was too late to raise her concern once the trial began.

¶ 19. Defendants’ motion was also accompanied by an affidavit signed by Roberson’s attorney. This second affidavit stated that Barnes’s husband had contacted the attorney and informed him that his wife, Barnes, had realized during the early stages of the trial that she knew some of the victim’s family. Barnes’s husband further informed the attorney that, because of this realization, Barnes determined that she could not be a fair juror in the trial. Following this conversation, Roberson’s attorney sent his investigator to see Barnes around January 13, 2011, and to secure an affidavit from her.

¶ 20. On February 2, 2011, the trial judge entered an order denying Defendants’ motion for reconsideration and their second motion for a new trial. Regarding Barnes’s affidavit, the trial judge wrote the following:

Barnes testified at the [hearing on the] first motion for [a] new trial and was adamant that she had no more than a passing relationship with the Hills. She neglected to use that opportunity to inform the [c]ourt of her inability to be fair and impartial. The [c]ourt, having had the opportunity to observe Barnes’[s] testimony and review a transcript of the same, finds the present affidavit to be inconsistent with her pri- or testimony. In addition counsel for the Defendants!,] by obtaining the affidavit without notice to the [c]ourt or opposing counsel!,] failed to follow long-established procedure. To say that the present affidavit is suspect is a gross understatement.

The trial judge further determined that case law and Rule 606(b) of the Mississippi Rules of Evidence prohibited him from considering the affidavit. Because he found that Defendants had failed to present any new evidence that he could consider, the trial judge denied the motion.

¶ 21. Following the trial court’s ruling, Defendants appealed. In them briefs they assert the following issues: (1) whether the trial court erred by refusing Roberson’s jury instruction as to the weight of the evidence; (2) whether the trial court erred by refusing Defendants’ jury instruction as to accomplice testimony; (3) whether the trial court erred by refusing James’s jury instruction as to his theory of the case; (4) whether the trial court’s form of the verdict was erroneously worded; and (5) whether juror misconduct denied Defendants a fair and impartial trial.

DISCUSSION

¶ 22. Upon review, we have consolidated Defendants’ assignments of error for consideration. In their first three assignments of error, Defendants assert that the trial court erred by refusing certain jury instructions proposed by one or both Defendants. Relevant to Defendants’ assignments of error, the following jury instructions were given at trial:

Jury Instruction No. 1
You have heard all of the testimony and received the evidence and will hear the arguments of counsel shortly.... It is your exclusive province to determine the facts in this case and to consider and weigh the evidence for that purpose. The authority thus vested in you is not arbitrary power, but must be exercised with sincere judgment, sound discretion and in accordance with the rules of law. Both parties have a right to expect that you will conscientiously consider and weigh the evidence and apply the law of the case. It is your duty to determine the facts and to determine them from the evidence produced in open court. You are to apply the law to the facts and in this way decide the case. You should not be influenced by bias, sympathy, or prejudice. Your verdict should be based on the evidence and not upon speculation, guesswork, or conjecture. You are required and expected to use your good common sense and sound!,] honest judgment in considering and weighing the testimony of each witness who has testified in this case....
Jury Instruction No. 4
The [c]ourt instructs the [j]ury that Barry Love is an accomplice! ] in this case!,] and the .testimony of an accomplice is to be considered and weighed with great care and caution. You may give it such weight and credit as you deem it is entitled.
Jury Instruction No. 7
“Alibi” means elsewhere or in another place. In this case, the !D]efendant is asserting the defense of alibi by saying at the time of the alleged incidents at the [Hill Brothers] Shop the [Defendant was with Keshia Windom. “Alibi” is a legal and proper defense in law. The [Defendant is not required to establish the truth of the alibi to your satisfaction, but if the evidence or lack of evidence in this case raises in the minds of the jury a reasonable doubt as to whether the [D]e-fendant was present and committed the crime, then you must give the [Defendant the benefit of any reasonable doubt and find the [Defendant not guilty.

(Emphasis added).

I. Whether the trial court erred by refusing Roberson’s jury instruction as to the weight of the evidence.

¶ 23. Roberson claims that the trial court erred by refusing jury instruction 1, his requested jury instruction regarding the weight to be given to witness testimony, which mirrored the language provided in the model jury instruction. Roberson’s proposed jury instruction stated:

Each person testifying under oath is a witness. You have the duty to determine the believability of the witnesses. In performing this duty, you must consider each witnesses] intelligence, the witnesses] ability to observe and accurately remember, the [witness’s] sincerity, and the witnesses] demeanor while testifying. You must consider also the extent the witness is either supported or contradicted by other evidence, the relationship the witness may have with either side, and how the witness might be affected by the verdict. You must consider any evidence of the witnesses] character for truthfulness. In weighing a discrepancy by a witness or between witnesses, you should consider whether it resulted from an innocent mistake or a deliberate falsehood, and whether it pertains to a matter of importance or an unimportant detail. You may reject or accept all or any part of a witnesses] testimony!,] and you may reject part and accept other parts of a witnesses] testimony. After making your own judgment, you will give the testimony of each witness the credibility, if any, as you may think it deserves.

¶ 24. With regard to jury instructions, this Court has previously stated:

The failure of a court to give a requested instruction does not provide grounds for reversal if the jury was fairly, fully[,] and accurately instructed on the law governing the case. Smith v. State, 572 So.2d 847, 849 (Miss.1990). The standard requires reviewing jury instructions by reading all instructions together, rather than reading each instruction in isolation. Townsend v. State, 681 So.2d 497, 509 (Miss.1996).... Where one jury instruction adequately covers the defendant’s theory of self-defense, there is no error in refusal of a second or redundant instruction.” Higgins v. State, 725 So.2d 220[, 223] (¶ 19) (Miss. 1998); Cook v. State, 467 So.2d 203, 210 (Miss.1985); Evans v. State, 457 So.2d 957, 959 (Miss.1984); see also Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990) (holding that the trial court may refuse an instruction which is without foundation in the evidence, incorrectly states the law, or is provided in another instruction); Calhoun v. State, 526 So.2d 531, 533 (Miss.1988) (holding that a trial court is not obligated to instruct a jury over and over on the same concept of law despite variations in different instructions).

Holmes v. State, 754 So.2d 529, 537 (¶¶ 20-21) (Miss.Ct.App.1999).

¶ 25. The State argues that Roberson’s refused jury instruction only informed jurors of their duty “to assess witness credibility and resolve any conflicts [that] may have arisen in the testimony.” The State further asserts that the trial court properly refused Roberson’s instruction since the trial court gave jury instruction 1, which properly covered the issue by stating in pertinent part that “[i]t is your exclusive province to determine the facts in this case and to consider and weigh the evidence for that purpose.... You are required and expected to use your good common sense and sound[,] honest judgment in considering and weighing the testimony of each witness who has testified in this case.”

¶ 26. In addition, the State notes that the trial court gave jury instruction 8, which was requested by Defendants and stated that “[y]ou have heard evidence that a witness made a statement prior to trial that may be inconsistent with their [sic] testimony at this trial. If you believe that an inconsistent statement was made, you may consider the inconsistency in evaluating the believability of the witnesses] testimony.” Also, jury instruction 4 told the jurors to treat Love’s testimony with “such weight and credit as you deem it is entitled.” In light of jury instructions 1, 4, and 8, the State argues that Roberson’s proposed instruction was fully and fairly covered and that the jury received adequate instruction regarding its duty to assess witness credibility and to resolve any conflicts within the testimony. The State thus contends that the trial court properly refused Roberson’s instruction.

¶ 27. Reading all the given instructions together, we agree that the jury was fairly, fully, and accurately instructed regarding its duty to consider and weigh the credibility of witness testimony. Accordingly, we find that this issue lacks merit.

II. Whether the trial court erred by refusing Defendants’ jury instruction as to accomplice testimony.

¶ 28. At trial Defendants’ attorneys objected to jury instruction 4 regarding accomplice testimony. Defendants’ attorneys stated that their proposed instruction was more appropriate, and they thought that even the model jury instruction went further than the instruction approved by the trial court. However, the trial court refused Defendants’ proposed accomplice instruction, stating that the State’s proposed instruction was the one approved by the Mississippi Supreme Court. Defendants now argue on appeal that the trial court erred by giving the State’s proposed jury instruction rather than their own nearly three-page-long instruction.

¶ 29. Roberson argues that Love’s testimony was not only uncorroborated by other witness testimony but also inconsistent with other prior statements that Love made. Roberson cites the supreme court case Wheeler v. State, 560 So.2d 171 (Miss. 1990), in support of his argument that the trial court erred in refusing Defendants’ proposed jury instruction regarding accomplice testimony. Roberson argues that a primary concern in Wheeler was the failure of the lower courts to present juries with a clear instruction that accomplice testimony should be viewed with suspicion, particularly where the testimony was uncorroborated. Roberson contends that “Love’s contradictory statements as to his own role, and his uncorroborated testimony about ... Roberson, epitomize the concerns raised by the [Mississippi Supreme] Court in Wheeler.”

¶ 30. James’s argument rests upon his contention that Defendants’ jury instruction was a more complete and explanatory accomplice instruction. He argues that Defendants’ instruction provided more court-approved reasons on how the jury should view accomplice testimony and why it should view such testimony that way. James also alleged that Defendants’ instruction was the only one that alerted the jury as to an accomplice’s motive for testifying and that the State’s instruction proved inadequate because it simply defined an accomplice.

¶ 81. In response to Defendants’ arguments, the State asserts that Mississippi case law only requires a cautionary accomplice instruction where the State provides uncorroborated accomplice testimony. The State argues that, because it put forth other evidence to support and corroborate Love’s accomplice testimony, such as phone records and eyewitness testimony, then Defendants received more than they were entitled to by the trial court’s giving of any accomplice instruction at all. The State also argues that each of the ten paragraphs in Defendants’ accomplice instruction simply informed the jury that it should view accomplice testimony with great care and caution, which jury instruction 4 adequately stated in a few sentences.

¶ 32. The supreme court has stated:

Clear law in ... Mississippi is that the jury is to regard the testimony of co-conspirators with great caution and suspicion. When determining whether a defendant is entitled to such a cautionary instruction, the trial judge considers whether the witness was in fact an accomplice and whether the witness’s testimony was corroborated. Although [giving] a cautionary instruction regarding the testimony of an accomplice is within the trial judge’s discretion, such an instruction is required when the accomplice’s testimony is the sole basis for the conviction, and the defendant’s guilt is not clearly proven.

Williams v. State, 32 So.3d 486, 490 (¶ 12) (Miss.2010) (internal citations and quotation marks omitted). “The controlling principle is that the uncorroborated testimony of an accomplice may be sufficient to convict an accused. However, the general rule is inapplicable in those cases where the testimony is unreasonable, self[-]eon-tradictory[,] or substantially impeached.” Id. at (¶ 14) (citation and internal quotation marks omitted). “In such cases, the trial court must direct a verdict of not guilty.” Id. (citation omitted).

¶ 33. In Williams the supreme court emphasized the distinction between these two tests and stated that the “test for whether evidence is sufficient to support a conviction is more stringent than the test for whether the evidence warrants a cautionary jury instruction.” Id. at (¶ 15). “In the first instance, the case never reaches the jury, and the defendant is acquitted.” Id. (citation omitted). “In the second instance, the jury is permitted to find the defendant guilty or not guilty, but is instructed that the uncorroborated testimony of an accomplice should be regarded with great caution and suspicion.” Id. at 490-91 (¶ 15) (citation omitted). While recognizing that these two tests had previously been confused with one another, the supreme court clarified “that for a defendant to be entitled to a cautionary jury instruction, it is only necessary that the accomplice’s testimony be uncorroborated.” Id. at 491 (¶ 17) (citation omitted).

¶ 34. “In determining whether a cautionary jury instruction is required, the testimony that must be corroborated is the testimony tying the defendant on trial to the crime, and it is irrelevant whether other portions of the accomplice’s testimony are corroborated.” Id. at (¶ 19). As explained by Williams, the jury must be instructed to view the testimony of a co-conspirator with great caution and suspicion in cases where the co-conspirator testimony is the sole basis for the conviction. Id. at 490 (¶ 12). In the case before us, however, the record reflects that Defendants’ convictions are supported by more evidence than just the testimony of Love, the co-conspirator. As previously noted, the State argues that Love’s testimony tying Defendants to the robbery was corroborated by other evidence admitted during trial. Specifically, the State points to Defendants’ phone records, the eyewitness testimony of Holt and Regina asserting that they saw a white Cadillac parked on a nearby road prior to the shooting, and the discovery of an unspent 9-millimeter round in James’s car after the shooting. Since the record provides evidence corroborating Love’s testimony, we find that the trial court was not required to instruct the jury to regard Love’s testimony with great caution and suspicion. See id. Therefore, this issue lacks merit.

III. Whether the trial court erred by refusing James’s jury instruction as to his theory of the case.

¶35. In the next assignment of error, James argues that the trial court erred by refusing his theory-of-the-case instruction, which told the jury that James’s “theory of the case is that at the time of the incident in question he was with Keshia Windom[,] and if you so find[,] you must find ... James not guilty.” Instead of giving this instruction, the trial court gave James’s alibi instruction. James argues, however, that he was entitled to both instructions and that his theory-of-the-case instruction correctly stated the law and was not fairly covered elsewhere in the jury instructions. James further contends that his refused instruction had a foundation in the evidence presented at trial since Windom testified that James was with her and the couple’s son at the time of the robbery. In response, the State argues that jury instruction 7 fully covered James’s theory of the case and, therefore, the trial court did not err.

¶ 36. As previously noted, this Court will not reverse the trial court’s refusal of a requested instruction where the jury was fairly, fully, and accurately instructed as to the applicable law. See Holmes, 754 So.2d at 537 (¶¶ 20-21) (citation omitted). Reading all the given jury instructions together, we find that jury instruction 7 adequately covered James’s theory of his case. Because James’s proposed theory-of-the-case instruction was redundant, the trial court did not err by refusing it. Therefore, this issue lacks merit.

IV. Whether the trial court’s form of the verdict was erroneously worded.

¶37. Roberson next argues that the verdict form provided to the jury was erroneously worded. In Thames v. State, 5 So.3d 1178, 1189 (¶ 35) (Miss.Ct.App. 2009), this Court stated:

Where there has been substantial compliance with the law, a jury’s verdict will not be reversed for mere want of form. Case law instructs that if the jury’s intent can be understood in a reasonably clear manner, there has been substantial compliance and there is no error. The basic test with reference to whether or not a verdict is sufficient as to form is whether or not it is an intelligent answer to the issues submitted to the jury and expressed so that the intent of the jury can be understood by the court.

(Internal citations and quotation marks omitted).

¶ 38. In the present case, the form of the verdict provided the following options for each of the five counts charged in Defendants’ indictment:

We, the [j]ury, find the [Defendant, ..., guilty of [the corresponding crime charged in the indictment].
We, the [j]ury, find the [D]efendant, ..., not guilty of [the corresponding crime charged in the indictment].

To the left of each option, a place was provided where the jury could mark its decision as to the count charged. The jury found both James and Roberson guilty on all five counts.

¶ 39. In his brief, Roberson provides a one-sentence explanation to support his argument that the form of the verdict was erroneously worded. He merely states that “the trial court’s use of a verdict form ... that consistently placed the wording of finding the [Defendant guilty of each charge first, rather than wording that stated if the [Djefendant was to be found not guilty, created undue influence on the jury’s deliberations.”

¶40. We find that the form of the verdict constituted an “intelligent answer to the issues submitted to the jury” and allowed the “jury’s intent [to] be understood in a reasonably clear manner.” Id. Therefore, this issue lacks merit.

V. Whether juror misconduct denied Defendants a fair and impartial trial.

¶ 41. In their fifth assignment of error, Defendants argue that they failed to receive a fair and impartial trial due to juror misconduct. Defendants’ allegations of juror misconduct consist of the following actions: (1) a juror’s inappropriate eye contact during the trial with relatives of Jessie, the deceased victim; and (2) the failure of several jurors to disclose during voir dire a relationship with members of the victim’s family.

¶ 42. At the close of the State’s case and outside the jury’s presence, Defendants brought incidences of alleged juror misconduct to the trial court’s attention. Roberson’s mother (Mrs. Roberson) testified that she saw witnesses make eye contact with the Hill family and with the jurors while on the witness stand. She stated that she also saw members of the Hill family make eye contact with the State’s attorney, the witnesses, and the jurors. When the State’s attorney questioned Mrs. Roberson, she testified that she also saw him make eye contact with the witnesses on the witness stand. When asked by the State’s attorney what he was supposed to do and why she thought there was something wrong with “everybody looking at each other,” Mrs. Roberson replied, “Oh, I don’t know. I don’t know what’s the problem. I really don’t.”

¶43. In addition to Mrs. Roberson’s testimony, Defendants also questioned James’s brother, who testified that he saw a juror shaking her head and looking in the direction of where the Hill family sat as she walked to and from the jury box. Following this testimony, the State’s attorney noted the courtroom’s layout for the record:

The jury door actually faces toward the audience. And ... when they [ (the jurors) ] come out of the ... jury room, ... they face directly into the audience. And then the jury box is right here to their left, where they have to navigate upstairs. And there [are] two rows, and they have to go between the chairs to get to their seats while walking toward the — what they are claiming is where the Hill family was sitting, that you had to walk in that direction.

Defendants then moved to have the juror who shook her head and looked in the direction of the Hill family removed from the jury and replaced with an alternate, but the trial judge overruled the request, finding that no evidence of juror misconduct existed.

¶ 44. Defendants’ final argument regarding juror misconduct rests upon their allegation that several jurors failed to disclose during voir dire a relationship with members of the victim’s family. In Roberson’s brief, he specifically stated that the “juror in question!] in this case is Hattie Mae McLaurin.” The record reflects that during voir dire McLaurin was referred to as Juror 23. During voir dire the State asked the following question: “The next persons I am going to ask about are the Hill family. We have Ricky Hill, Jimmy Hill, Jessie Earl Hill. Does anybody know the Hill family or [is anybody] friends with the Hill family?” McLaurin responded that she was a friend of the Hill family but stated that there was nothing about the relationship that would cause her to be unfair or partial. The record reflects that Defendants failed to challenge McLaurin when she was tendered by the State during voir dire. At the hearing on Defendants’ motion for a JNOV or, in the alternative, a new trial, the trial judge noted that Defendants failed to ask any follow-up questions regarding McLaurin’s statement. The trial judge further stated that, “in relation to whether [McLaurin] responded to the questions on voir dire or gave you knowledge of her relationship to the Hill family, she has already done that.” As a result, the trial judge refused to let Defendants call McLaurin as a witness at the hearing.

¶ 45. In their remaining allegations of juror misconduct, Defendants reference other jurors who they claim failed to disclose a relationship with members of the Hill family. When the State asked during voir dire whether any of the potential jurors knew the Hill family or were friends with the Hill family, none of these jurors acknowledged a relationship with the Hill family. At the hearing the trial judge stated that Defendants’ attorneys could call the jurors they subpoenaed, but he limited the questioning to whether or not those jurors responded to questions that were asked of them during voir dire, and he refused to allow questions about the jurors’ deliberations. When questioned during the hearing, all of these jurors testified that they only knew of the Hill family but did not personally know a member of the family. Each juror also testified that he or she thought the question asked during voir dire was intended to find out which potential jurors personally knew the Hill family or had an actual relationship with the family.

¶ 46. One juror, Jeanell Jamison (Jami-son), testified that she worked at the same elementary school as the victim’s sister and one of the victim’s daughters. However, Jamison and the victim’s sister and daughter testified that they rarely, if ever, had any contact with each other since Ja-mison worked in the school’s cafeteria and the victim’s sister and daughter worked as teachers. Jamison testified that the teachers did not usually accompany their students into the cafeteria for lunch because that job belonged to their assistants.

¶ 47. Another juror, Barnes, testified that at some point she and two of the victim’s daughters had worked at the same Wal-Mart. However, Barnes testified at the hearing that she did not converse with members of the Hill family and did not know any of them personally. James Hughes and Betty Weatherby, two other jurors called by Defendants’ attorneys, also testified that they knew of the Hill family but did not know any of the family members personally.

¶ 48. Case law provides that if a potential juror fails to answer a question asked during voir dire, then the trial court should determine whether the question asked was “(1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited.” Odom v. State, 355 So.2d 1381, 1383 (Miss.1978). If the answers to these three questions are affirmative, then the trial court should determine if prejudice to the defendant could be inferred due to the juror’s failure to respond. Id. Where prejudice can be reasonably inferred, the trial court should order a new trial. Id. “It is, of course, a judicial question as to whether a jury is fair and impar-tíale,] and the [trial] court’s judgment will not be disturbed unless it appears clearly that it is wrong.” Id.

¶ 49. The question posed during voir dire in this case was ambiguous, and as evidenced by their testimony, none of the jurors questioned during the hearing possessed “substantial knowledge of the information sought to be elicited.” Id. As previously discussed, all four jurors who testified during the hearing stated that they believed the voir dire question was intended to discover who might personally know the Hill family or have an actual relationship with the family. Furthermore, as each of the jurors stated, they did not personally know a member of the Hill family but merely knew of the Hill family.

Therefore, after reviewing the evidence in the record, we find that this assignment of error lacks merit.

CONCLUSION

¶ 50. Accordingly, we affirm the trial court’s judgment.

¶ 51. JAMES: THE JUDGMENT OF THE ATTALA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY; COUNT II, MANSLAUGHTER; COUNTS III AND IV, AGGRAVATED ASSAULT; AND COUNT V, CONSPIRACY TO COMMIT ARMED ROBBERY; AND SENTENCES OF TWENTY YEARS EACH ON COUNTS I, II, III, AND IV, AND FIVE YEARS ON COUNT V; WITH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS II, III, AND IV; WITH THE SENTENCE IN COUNT III TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT II; WITH THE SENTENCE IN COUNT IV TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS II AND III; AND WITH THE SENTENCE IN COUNT V TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS I, II, III, AND IV; ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; IS AFFIRMED. ROBERSON: THE JUDGMENT OF THE ATTALA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ARMED ROBBERY; COUNT II, MANSLAUGHTER; COUNTS III AND IV, AGGRAVATED ASSAULT; AND COUNT V, CONSPIRACY TO COMMIT ARMED ROBBERY; AND SENTENCES OF TWENTY YEARS EACH ON COUNTS I, II, III, AND IV, AND FIVE YEARS ON COUNT V; WITH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS II, III, AND IV; WITH THE SENTENCE IN COUNT III TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II; WITH THE SENTENCE IN COUNT IV TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS II AND III; AND WITH THE SENTENCE IN COUNT V TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS I, II, III, AND IV; ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Defendants' motions refer to a juror named Hattie Mae Lewis, but in his order denying Defendants' motions, the trial judge noted that "no one named Hattie Mae Lewis served on the jury, but ... a lady named Hattie McLaurin did."

      . See Bolden v. State, 23 So.3d 491, 500 (¶ 29) (Miss.Ct.App.2009) ("[J]ury instructions should be taken as a whole with all jury instructions being read together and not taking a single instruction out of context.”) (citation omitted).

      . See Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010) ("It is well settled that jury instructions generally are within the discretion of the trial court, so the standard of review for the [refusal] of jury instructions is abuse of discretion.”) (citation omitted).

      . Defendants' attorneys raised no peremptory challenges or challenges for cause as to McLaurin.

      . See Burton v. State, 875 So.2d 1120, 1122 (¶ 6) (Miss.Ct.App.2004) (“The standard of review in examining the conduct of voir dire ... is abuse of discretion.”) (citations omitted).


source: Caselaw Access Project

license: Public Domain

text:
    Greg NETHERY, Administrator of the Estate of Wilbur Glen Nethery, Deceased, and Greg Nethery, Individually Appellants v. The ESTATE OF Doris NETHERY, Deceased, and William W. Dreher, Executor of the Estate of Doris Nethery, Deceased, Appellee.
    No. 2013-CA-00013-COA.
    Court of Appeals of Mississippi.
    May 13, 2014.
    Rehearing Denied Sept. 9, 2014.

      Wynn E. Clark, Pascagoula, attorney for appellants.
    Frank P. Wittmann III, William W. Dre-her Jr., Gulfport, attorneys for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. This appeal stems from the Hancock County Chancery Court’s order granting the motion to dismiss a probate claim against the Estate of Doris Nethery for attorney’s fees. The chancellor set aside the divorce between Wilbur Glen Nethery and his wife, Doris, upon a motion by Greg Nethery, Glen’s son and guardian at the time. Greg and Glen’s Estate (Appellants) argue that the chancellor erred in granting the motion to dismiss, claiming that the chancellor granted relief based on a ground Doris’s Estate failed to raise or argue in the motion to dismiss. Upon review, we find the probate claim for attorney’s fees barred by the ordinary principles of res judicata. We therefore find no error in the chancellor’s dismissal of that claim, and we affirm.

¶ 2. After the perfection of the instant appeal of the denial of the disputed probate claim, the chancellor appointed Greg as administrator of Glen’s Estate, relieving the previously appointed chancery clerk from those duties. Then, consistent with the chancellor’s appointment, this court granted the motion to substitute Greg as administrator on appeal.

¶ 3. Also, during the appeal of this case, Appellants filed a motion requesting this Court to strike a September 18, 2013 letter from Doris’s Estate to this Court. We passed this motion for consideration of the merits. In their motion, Appellants claimed that the letter from Doris’s Estate constituted an improper argument and also a violation of Mississippi Rules of Appellate Procedure 28(k), 28(c), and 2(b). In the motion to strike, Appellants also requested an award of attorney’s fees as a sanction against Doris’s Estate and its attorney for violating the rules of appellate procedure. See M.R.A.P. 2(b). Upon due consideration of this motion, we grant Appellants’ motion to strike this letter from the record and from any consideration on appeal of this matter. However, we deny the requested relief and sanction of attorney’s fees.

FACTS

¶ 4. Glen and Doris married on October 7, 1987. On May 4, 2006, Doris brought Glen to Attorney William Dreher Jr.’s law offices. At the time, Glen was seventy-four years old and suffering from Alzheimer’s disease. Dreher testified that Doris expressed concern over shielding her assets against a claim by Social Security in the event Glen was placed in a nursing home. After meeting with Doris and Glen, Dreher telephoned another attorney, Cecil Woods, and informed Woods that he was sending Doris and Glen to meet with Woods to obtain a divorce. Dreher also explained to Woods that a question arose as to Glen’s mental capacity. Doris brought Glen to Woods’s office on May 4, 2006, and later that same afternoon they signed a joint complaint for divorce. Doris obtained a judgment of divorce on July 24, 2006, with an attached “Property[-]Settlement Agreement.”

¶ 5. In November 2006, the chancery court appointed Greg, Glen’s son, as guardian of Glen after determining that Glen failed to possess the mental and emotional capacity to handle his own affairs. Subsequent to the chancery court entering the judgment of divorce, Doris sold the marital home and placed the joint accounts in her name alone. While visiting with Glen’s children during Christmas in 2006, Doris informed them for the first time that she and Glen obtained a divorce.

¶ 6. On January 22, 2007, Greg moved the chancery court for authority to begin legal action to set aside the divorce and file suit against Doris for fraud, negligent misrepresentation, imposition of a constructive trust, conversion, and a temporary restraining order. The chancellor granted Greg the authority to take such action.

¶ 7. On January 23, 2007, Greg moved to vacate the judgment of divorce, claiming that Glen suffered from dementia caused by Alzheimer’s disease; that Doris engaged in risky investment transactions using marital funds without Glen’s consent or knowledge; that Doris obtained a no-fault divorce and turned Glen over to his children with no money or property; and that Doris obtained the divorce and property settlement as a result of fraudulent conduct. Greg also filed suit against Doris in chancery court, claiming that Doris obtained the 2006 divorce and property-settlement agreement by fraud and inequitable conduct.

¶ 8. The chancellor consolidated the cases and granted a temporary restraining order, prohibiting Doris from disposing of property other than for reasonable necessaries. The chancellor conducted a telephone hearing on November 16, 2007, after a contested hearing on the motion to set aside the divorce. The chancellor determined that the divorce and property-settlement agreement resulted from overreaching and inequitable conduct, and set aside the divorce judgment and property-settlement agreement.

¶ 9. On January 30, 2008, the chancellor entered an order granting the motion to set aside judgment of divorce. On February 8, 2008, the Greg filed a complaint to set aside a deed from Doris to third parties by which Doris conveyed the Hancock County marital home without Glen’s signature, in violation of Mississippi Code Annotated section 89-1-29 (Rev.2011). Greg also moved to recover legal fees from the divorce proceedings. However, Greg failed to obtain a ruling from the court on his motion for legal fees prior to Glen’s death.

¶ 10. Glen died on August 13, 2008. Greg petitioned to be appointed administrator of Glen’s Estate, but the chancellor appointed Hancock County Chancery Clerk Tim Kellar as administrator of Glen’s Estate. The chancellor explained that due to “extreme antipathy and distrust” between Doris and Greg, the chan-eellor appointed a neutral party to serve as administrator.

¶ 11. On September 30, 2008, the chancellor entered an order denying the motion for legal fees, acknowledging Greg’s lack of standing to file the motion, since Glen died on August 13, 2008, and Greg was not the administrator of Glen’s Estate. The chancellor stated that $30,000 would constitute a sufficient sum for the fees necessary for the legal work to set aside the divorce and property settlement, and explained that the claim for attorney’s fees could be sought by Glen’s Estate. The record reflects that Greg appealed this order; however, the appeal was later dismissed by agreement of the parties. The record contains nothing to show Glen’s Estate ever pursued a judgment for these legal fees. Therefore, the chancellor entered no judgment allowing these attorney’s fees.

¶ 12. Doris died on January 9, 2009. Four days later, on January 13, 2009, Attorney Dreher filed a petition to probate Doris’s Last Will and Testament, dated September 17, 2008. The will nominated Dreher as executor, and also listed Dreher as a beneficiary with a one-half interest in Doris’s Estate under the residuary clause. Dreher published a notice to creditors and filed a proof of publication with the chancery clerk. Glen’s Estate filed a claim against Doris’s Estate for $30,000 in attorney’s fees (stemming from setting aside the divorce and property-settlement agreement) on April 20, 2009.

¶ 13. On May 3, 2009, Doris’s Estate moved to dismiss the probate claim, asserting the ground of “failure to prosecute.” After oral argument, the chancery court entered an order dismissing the claim on September 10, 2012. The chancellor ruled.that Glen’s Estate failed to take action to pursue claims for attorney’s fees in the divorce action, “there being no motion before this court in any cause for attorney’s fees.” On September 17, 2012, the chancery court entered an order sua sponte vacating the September 10, 2012 order, with respect to the probated claim of Glen’s Estate.

¶ 14. On September 26, 2012, the chancellor entered an order granting the motion to dismiss based on a finding that Greg failed to substitute Glen’s Estate as a party in the divorce action in order to pursue the attorney’s fees. The chancellor explained that an award of attorney’s fees was never ... made by this court since Greg, as guardian of [Glen], appealed the court’s ruling then dismissed the appeal, and [Glen’s Estate] did not pursue attorney’s fees in the divorce action. Thus, attorney’s fees were never awarded or reduced to a judgment against Doris Nethery, and therefore the claim for attorney’s fees based upon the court’s ruling on September 30, 2008[,] ... is not a valid claim against her estate.

¶ 15. Glen’s Estate moved to alter or amend, for a new trial, or for reconsideration. After a hearing on the motion, the chancellor entered an order on October 24, 2012, denying the motion to alter or amend, for new trial, or for reconsideration, and addressed Greg’s lack of standing to raise the claim on behalf of his father’s Estate. Glen’s Estate then filed this appeal.

STANDARD OF REVIEW

¶ 16. This Court will not reverse a chancellor’s findings of fact unless they are manifestly wrong or not supported by substantial credible evidence, or the chancellor applied an erroneous legal standard. Columbia Land Dev., LLC v. Sec’y of State, 868 So.2d 1006, 1011 (¶14) (Miss.2004). “While we give deference to a chancellor’s determination of fact, we review the chancellor’s determinations of law de novo.” City of Picayune v. S. Reg’l Corp., 916 So.2d 510, 519 (¶23) (Miss.2005). This Court also employs a de novo standard of review when reviewing a trial court’s grant or denial of a motion to dismiss. Farmer v. State of Miss. Dep’t of Pub. Safety, 907 So.2d 981, 984 (¶ 8) (Miss.Ct.App.2005) (citing Spencer v. State, 880 So.2d 1044,1045 (¶ 6) (Miss.2004)).

¶ 17. Additionally, “[t]he standard of review for considering a trial court’s decision denying a motion for a new trial is whether the trial court abused it[s] discretion.” Smith v. Crawford, 937 So.2d 446, 447 (¶ 5) (Miss.2006) (citations omitted).

DISCUSSION

¶ 18. On appeal, Appellants assert that the chancellor erred in expanding the motion to dismiss from the sole ground pleaded, failure to prosecute, to include other grounds that Doris’s Estate failed to raise in the motion to dismiss. Appellants argue that Glen’s Estate failed to receive fair notice from an appropriate rule-compliant motion or pleading of a legal argument or other grounds. Appellants cite to Mississippi Rule of Civil Procedure 7(b)(1), which requires a written motion to state the grounds “with particularity.” Appellants further assert that once Doris died, the claim for attorney’s fees became a probatable claim after Doris’s Estate was open, and that Mississippi Rule of Civil Procedure 41(b), which allows involuntary dismissals for failure to prosecute, does not apply in an estate proceeding for a probated claim. Rather, probated claims are governed by Mississippi Code Annotated sections 91-7-145 to -155 and section 91-7-165 (Rev.2013).

¶ 19. Appellants also argue that in the September 30, 2008 judgment finding that Greg lacked standing to assert the claim for attorney’s fees after Glen’s death, the chancellor failed to rule on the merits of the claim. Appellants illustrate their argument by comparing the chancellor’s finding that Greg, as guardian, lacked standing to sue, to that of a chancellor determining that the chancery court lacked jurisdiction to rule on a claim. See Pruitt v. Hancock Med. Ctr., 942 So.2d 797, 801 (¶ 14) (Miss.2006) (“A lack of standing ‘robs the court of jurisdiction to hear the case.’ ”).

¶ 20. Alternatively, Doris’s Estate submits that Appellants failed to substitute Glen’s Estate as a party in the place of the Guardianship of Glen, pursuant to Mississippi Rule of Civil Procedure 25, in the prior divorce action. Doris’s Estate further argues that Mississippi Rule of Civil Procedure 59 provided Glen’s Estate with ten days after the judgment rendered September 30, 1998, in the prior divorce case to file and assert a claim against Doris for attorney’s fees in that prior matter. Glen’s Estate failed to file such a claim against Doris within ten days of the judgment or during the litigation of that prior action, and the final judgment in that cause contained no award or judgment for attorney’s fees to be assessed against Doris. Therefore, Doris’s Estate argues that since the final judgment issued with no award of attorney’s fees and the Estate raised no appeal of that matter, res judica-ta bars the current probate claim.

¶ 21. In response, Appellants argue that the claim for attorney’s fees constitutes a probatable claim, arguing that Glen’s Estate did not to have to reduce the claim to a judgment before the claim could be probated. However, Appellants’ argument overlooks the application of the principles of res judicata that bar all issues that could have been raised and decided in the initial suit, plus all issues that were actually decided in the first cause. See Estate of Anderson v. Deposit Guar. Nat’l Bank, 674 So.2d 1254, 1256 (Miss.1996). The chancellor denied Greg’s motion for attorney’s fees in the prior matter, and the Estate then failed to appeal. The final judgment rendered bars the relitigation of the claim for attorney’s fees asserted in the probate claim on appeal herein.

¶ 22. The supreme court has explained: For the bar of res judicata to apply ... there are four identities which must be 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 the claim is made.... [T]he absence of any one of the elements is fatal to the defense of res judicata.

Doris’s Estate asserts that the facts and circumstances relied on by Appellants in both suits are identical, and the parties are identical, although since both Glen and Doris are deceased, they are now each represented by their Estates. Doris’s Estate also argues that the prior judgment serves as a final judgment and adjudication on the merits of all issues that could have been raised therein. Doris’s Estate also argues that Greg, as guardian for Glen, voluntarily dismissed his appeal in the prior domestic litigation of the chancellor’s order that denied his claim and that stated that Greg failed to possess standing to make a claim for attorney’s fees in that prior matter. Therefore, Doris’s Estate correctly argues that due to the final judgment determining all issues in the prior domestic matter on the merits, res judicata bars the current probate claim seeking to litigate a claim for attorney’s fees from that prior action between Glen and Doris. See Dunaway v. W.H. Hopper & Assocs., 422 So.2d 749, 751 (Miss.1982).

¶ 23. Appellants argue that the chancellor granted Doris’s Estate’s motion to dismiss on a ground not asserted. However, the record shows that this motion to dismiss the probate claim also asserted the ground of failure to prosecute the claim for attorney’s fees. A review of the record shows that the chancellor indeed found that Glen’s Estate and Greg failed to prosecute and pursue that claim while the prior litigation was pending. The chancellor determined that the claim was barred by the final judgment in the prior case. In the chancellor’s September 26, 2012 order, the chancellor stated the following when explaining that Greg lacked standing to raise the claim for attorney’s fees since he was not the administrator of the Estate:

[Sjince [Glen] has passed away, the [$30,000 in] attorney’s fees sought would be the interest of his estate, and his guardian, [Greg], no longer had standing to bring the action. The court stated that the fees could, however, be sought by [Glen’s] estate.
On October 30, 2009, [Greg] filed an appeal with the Mississippi Supreme Court, appealing, among other issues, the Order denying the amended motion for attorney fees. The appeal was dismissed by agreement on July 3, 2009.
[Greg] made a claim in the present matter to recover $30,000 in attorney’s fees arising from the divorce action on April 20, 2009. On May 3, 2011, the Estate of Doris Nethery filed a motion to dismiss the claim for attorney’s fees.

¶ 24. In keeping mindful of our standard of review, we cannot find that the chancellor’s findings of fact herein are manifestly wrong or not supported by substantial credible evidence, or that an erroneous legal standard was applied. Columbia Land, 868 So.2d at 1011 (¶ 14). Additionally, after our review of the record herein and the applicable law, we find no error in the chancellor’s dismissal of Appellants’ claim. See City of Picayune, 916 So.2d at 519 (¶ 23).

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

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

      . See Estate of Anderson v. Deposit Guar. Nat’l Bank, 674 So.2d 1254, 1256 (Miss.1996) (res judicata bars all issues that might have been or could have been raised and decided in the initial suit, plus issues actually decided in the first cause of action).

      . The record shows that at the time of the prior litigation of the divorce between Glen and Doris, the chancery clerk served as administrator, and not Greg. During that prior litigation, the record reflects that Glen's Estate raised no claim for attorney's fees.

      . After perfection of this appeal, Timothy Rel-iar, the court-appointed administrator of Glen’s Estate, and Michael Hass Jr., attorney for Glen’s Estate, filed a motion for leave to resign as administrator and withdraw as attorney. After a hearing on the matter, the chancellor entered an order granting the motion. The chancellor sua sponte appointed Greg, Glen’s son, as administrator of Glen's Estate.
      Kellar, Hass, and Greg then filed in this Court a motion to substitute Greg as administrator of Glen's Estate and to allow the withdrawal of Haas as counsel on appeal. In an order entered on August 27, 2013, this Court granted the motion, allowing Greg to be substituted as administrator of Glen’s Estate, and allowing Haas to withdraw as counsel for Appellants and Wynn E. Clark tó be substituted as new counsel for the Estate.

      . We recognize that " ‘[standing' is a jurisdictional issue which may be raised by any party or the [c]ourt at any time.” City of Madison v. Bryan, 763 So.2d 162, 166 (¶ 20) (Miss.2000) (quoting Williams v. Stevens, 390 So.2d 1012, 1014 (Miss.1980)) (finding that to possess standing, there must be a present, existent actionable title or interest that must already be completed at the time the cause of action is filed). Moreover, ”[w]hen a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction." State v. Property at 2018 Rainbow Drive known as Oasis, 740 So.2d 1025, 1028 (Ala. 1999).

      . As acknowledged, the chancellor appointed Greg to be Glen’s guardian after determining Glen lacked the mental capacity to handle his own affairs.

      . The record reflects no motion by Greg to substitute the proper parties. See M.R.C.P. 25.

      . Rule 59(e) states: "A motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.”

      . Appellants cite Williams v. Mason, 556 So.2d 1045, 1049-51 (Miss. 1990), Estate of McKellar v. Brown, 404 So.2d 550, 551-53 (Miss. 1981), and Thornhill v. Thornhill, 905 So.2d 747, 750-51 (¶¶ 6-9) (Miss.Ct.App. 2004), in support of their argument that a probated claim may be based on various claims that have not been previously reduced to a judgment.

      . Appellants’ argument also fails to address that after Glen’s death, his Estate filed no Rule 25 motion for substitution on the claim for attorney’s fees against Doris during litigation of the prior cause of action. Glen’s Estate also failed to meet the ninety-day requirement for filing the motion as mandated by this rule. As a result, no award or judgment was ever entered against Doris for attorney's fees stemming from the divorce.

        .See Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 232 (1(22) (Miss.2005). Specifically, Doris’s Estate submits that the claim for attorney's fees in the divorce action is not separate and apart from the claim against Doris’s Estate for the same attorney’s fees.

      . Regarding the issue of standing, see City of Madison v. Bryan, 763 So.2d 162, 166 (¶ 20) (Miss.2000) (citing Williams v. Stevens, 390 So.2d 1012, 1014 (Miss. 1980)) (" 'Standing' is a jurisdictional issue which may be raised by any party or the [c]ourt at any time.”). See also State v. Property, 740 So.2d at 1028 (regarding standing and jurisdiction).


author: ROBERTS, J.,

text:
    Robert Gene JONES a/k/a Robert G. Jones a/k/a Robert Jones, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01795-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.
    Robert Gene Jones, appellant, pro se.
    Office of the Attorney General by Melanie Dotson Thomas, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Robert Gene Jones appeals the Pontotoc County Circuit Court’s summary dismissal of his motion for post-conviction relief (PCR). On appeal, he asks this Court to determine whether the circuit court erred in dismissing his PCR motion that requested a clarification of his sentence and a determination of whether there was a sufficient factual basis for the circuit court to accept his guilty plea. We detect no error; therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2006, Jones was indicted for possession of cocaine with the intent to distribute, felony eluding a law-enforcement officer, and felony child endangerment. Jones appeared before the circuit court on July 28, 2010, to enter guilty pleas to all three counts. The circuit court questioned Jones on whether his pleas were voluntarily and freely given, whether he understood the charges and the minimum and maximum sentences for each charge, and whether he understood the constitutional rights he was waiving by pleading guilty. Jones confirmed that he did understand. The circuit court then read Jones each count contained in the indictment. After each count was read, Jones stated that he was pleading guilty. Jones also acknowledged that his plea was freely and voluntarily given, and he was satisfied with his attorney’s representation.

¶ 3. In exchange for his agreement to the plea bargain, the State agreed to dismiss the habitual-offender status charged in his indictment, and the circuit court granted the amendment deleting his habitual-offender status. Additionally, the State made the following recommendation as to Jones’s sentence: for possession of cocaine with the intent to distribute, twenty years with ten years suspended, five years of post-release supervision, and a $5,000 fine with $4,000 suspended; for eluding a law-enforcement officer, five years; and for child endangerment, five years.

¶ 4. The circuit court accepted the State’s recommendations, and Jones was ordered to serve the above sentences concurrently in the custody of the Mississippi Department of Corrections. The circuit court stated that all of Jones’s sentences were to run concurrently with the other sentences imposed “and with [the] sentences previously imposed in Franklin County, Texas.”

¶ 5. Jones filed a PCR motion on September 13, 2012, to clarify his sentence and/or to vacate and set aside his guilty pleas due to a lack of a factual basis. The circuit court summarily denied Jones’s PCR motion, and Jones now appeals. He raises two issues for review:

I. [Whether] the [circuit] court ... erred in denying [Jones’s PCR motion] to clarify sentences.
II. [Whether] the [circuit] court ... erred in denying [Jones’s PCR motion] to vacate and set aside [Jones’s] guilty plea[s], due to [a] lack of factual basis.

STANDARD OF REVIEW

¶ 6. “A trial court’s dismissal of a motion for post-conviction relief is reviewed by this Court under an abuse of discretion standard and will only be disturbed in cases ‘where the trial court’s decision was clearly erroneous.’ ... The appropriate standard of review for questions of law, however, is de novo.” Crosby v. State, 16 So.3d 74, 77-78 (¶ 5) (Miss.Ct. App.2009) (quoting Moore v. State, 985 So.2d 365, 368 (¶9) (Miss.Ct.App.2008)).

ANALYSIS

I. SENTENCE CLARIFICATION

¶7. Jones first argues that his sentencing order fails to give him credit for time he had previously served while he was in prison in Texas; thus, he is entitled to have his sentence clarified via a PCR motion. According to Jones, he should receive a credit for four years, two months, and twenty-eight days he served in Texas on unrelated charges before he entered his guilty plea in Mississippi.

¶ 8. Although the record is limited in this case, it appears that Jones may be confused about concurrent sentences. The record shows that Jones committed three felonies on October 27, 2004, while in Franklin, Texas. Two were felony possession of controlled substances, and the other was felony evading arrest. It is unclear if Jones was on bond or a fugitive when he committed the crimes on February 8, 2006, in Pontotoc County, Mississippi. After his arrest for his Mississippi crimes, he was returned to Franklin, Texas, where he was sentenced for the 2004 Texas crimes he committed. The record is silent on whether Jones was extradited or waived extradition to Texas. He served close to four years in the custody of the Texas Department of Criminal Justice (TDCJ) before he was “released from TDCJ custody on [April 20, 2010,] on parole[.]” The record is also silent regarding whether Mississippi placed a detainer on Jones while he was in Texas custody. We note it appears highly unlikely a detainer was lodged against Jones while in Texas custody, since the record does reflect Texas released Jones on “parole” to return to Oxford, Lafayette County, Mississippi, and the plea colloquy indicates Jones spent a short period of time at liberty in Lafayette County from April 22, 2010, until May 19, 2010, before he was re-arrested on a capias and returned to the Pontotoc County jail on the still-pending indictment in this case. While serving his sentence in Texas, Jones was indicted in Mississippi on June 10, 2006, as a habitual offender, for possession of cocaine with intent to distribute, felony eluding a law-enforcement officer, and child endangerment. The violent-habitual-offender status was based on four prior felony convictions before the Lafayette County Circuit Court for two uttering forgeries, possession of cocaine with intent, and simple assault on a law-enforcement officer. Following his release from the TDCJ, Jones returned to Mississippi, where he then pled guilty to the charges.

¶ 9. As best as we can ascertain from the record, it appears Jones had completed his Texas sentence when he pled in Ponto-toc County. His concurrent sentences he received in Mississippi are concurrent from the day of his sentencing forward. Jones is entitled to pretrial jail credit for the time he served in the Pontotoc County jail on the three charges he pled to in this case, but he is not entitled to pretrial jail credit for the time he previously served on his unrelated Texas felony convictions.

¶ 10. Further, while it is true that the circuit court ordered that Jones’s sentences in the current case be run concurrently with each other and with Jones’s sentences in Franklin, Texas, there is absolutely no mention in the record by Jones’s counsel, the assistant district attorney, or the trial judge that the plea agreement provided that Jones would receive credit on his Mississippi sentences for any time he previously served in Texas. Any such discussion is conspicuously absent. Jones’s sentencing order reflects what was announced as his sentence at his guilty-plea hearing, and we must conclude the circuit court was not clearly erroneous in summarily dismissing Jones’s PCR motion.

¶ 11. Therefore, we find this issue to be without merit.

II. FACTUAL BASIS

¶ 12. Jones submits that the circuit court should have granted his PCR motion because there was a lack of a factual basis for the circuit court to accept his guilty pleas. Jones claims that because the circuit court judge did not question him “on the factual circumstances surrounding his pleas ... nor inquired of the prosecution as to what it would be able to prove if [the case] went to trial ... [,]” there is an insufficient factual basis.

¶ 13. Mississippi Uniform Rule of Circuit and County Court 8.04(a)(3), in pertinent part, states: “Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” In Williams v. State, 110 So.3d 840, 843 (¶ 17) (Miss.Ct. App.2013), this Court stated:

Just as there is more than one way to skin the proverbial cat, there are numerous ways to establish a factual basis for a guilty plea. We have previously noted that a guilty plea may be factually un-dergirded by a statement of the prosecutor, the testimony of live witnesses, and prior proceedings, as well as an actual admission by the defendant. And if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for a guilty plea.

(Emphasis added and internal citations omitted).

¶ 14. At the guilty-plea hearing, the circuit court read each count of Jones’s indictment aloud in Jones’s presence. As to the possession with intent to distribute, the indictment charged that on or about February 8, 2006, in Pontotoc County, Mississippi, Jones “did willfully, unlawfully[,] and feloniously have in [his] possession a quantity of cocaine, a Schedule II controlled substance, said quantity being equal to 107.56 grams[,] with intent to sell, transfer[,] or distribute same, in violation of the Uniform Controlled Substance Act of the State of Mississippi.” His indictment for eluding a law-enforcement officer read that on or about February 8, 2006, in Pontotoc County, Mississippi, Jones did willfully, unlawfully[,] and felo-niously, after having been given a visible or audible signal by a law[-]enforcement officer, by hand, voice, emergency light[,] or siren directing [Jones] to bring [his] vehicle to a stop by a law[-]enforcement officer, acting within the lawful performance of duty and who had reasonable suspicion to believe that [Jones] had committed a crime, ... fail to obey such direction and did operate a motor vehicle in such matter as to indicate reckless or willful disregard to the safety of persons or property and/or did manifest extreme indifference to the value of human life.

The final charge was as follows: that on or about February 8, 2006, in Pontotoc County, Mississippi, Jones “did willfully, unlawfully[,] and feloniously endanger the person or health of Kayla Corrothers by knowingly causing or permitting a child to be present where other persons — any person — was selling, manufacturing^] or possessing immediate precursors or chemical substances, with the intent to manufacture^] sell[,] transferí,] or distribute.... ” After the circuit court read each count, Jones indicated that he understood the charge. Then, when questioned by the circuit court as to whether he wished to plead guilty to each count, Jones stated:

Guilty, sir. Jones went on to say: I m sorry for committing these crimes.”

¶ 15. From this, we find the record contains an adequate factual basis to support Jones’s guilty pleas. This issue is without merit.

¶ 16. THE JUDGMENT OF THE PONTOTOC COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PONTO-TOC COUNTY.

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

      . Mississippi Code Annotated section 99-19-23 (Rev. 2007) provides:
      The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are exhausted.


author: MAXWELL, J.,

text:
    Marilyn DEDEAUX and Russell Guymon, Appellants v. LAKE CAROLINE OWNERS ASSOCIATION, INC., Appellee.
    No. 2013-CA-00671-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.

      J. Peyton Randolph II, Sherrie Lynn DeWolf, Ridgeland, attorneys for appellants.
    James Scott Rogers, James Leroy Banks IV, Jackson, attorneys for appellee.
    Before CARLTON, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Eugune Owen crashed his speed boat into Russell Guymon’s pontoon boat, injuring Guymon as well as fellow passenger Marilyn Dedeaux. Dedeaux and Guy-mon blame their injuries not just on Owen, but also their neighborhood association, which owns the private lake where the boat wreck occurred. But the neighborhood association was not the insurer of Dedeaux and Guymon’s safety and cannot be held strictly liable simply because an injury occurred on the lake. Instead, the association only had a duty to protect De-deaux and Guymon from reasonably foreseeable injuries at the hand of a third party.

¶ 2. To be reasonably foreseeable, the association must have had “cause to anticipate” Owen’s actions because Owen had a specific history of careless boating or because the lake had a general history of negligence among its boaters. Here, De-deaux and Guymon failed to present any evidence of either. While they point to another boat wreck that occurred on the lake six years before theirs, considering the lake had more than 700 registered boats, we find this single incident, removed in time, was not enough to establish the incident with Owen was reasonably foreseeable.

¶ 3. Thus, Dedeaux and Guymon failed to establish their neighborhood association had a duty to protect them from Owen’s negligent act. We therefore affirm the grant of summary judgment in favor of the association.

Background

¶ 4. Dedeaux, Guymon, and Owen were all residents of Lake Caroline neighborhood in Madison County, Mississippi. In the middle of Lake Caroline sits an 800-acre lake, owned and operated by the Lake Caroline Owners Association (LCOA).

¶ 5. On a summer night in 2011, after sunset, Dedeaux and Guymon, along with their respective spouses, were sitting in Guymon’s pontoon boat, anchored in the middle of the lake. Owen was speeding across the water when he took a hard turn and crashed into Guymon’s boat. Dedeaux and Guymon were tossed into the water, sustaining injuries for which they claim that LCOA is at least partially liable.

¶ 6. They sued LCOA for negligent failure to maintain a safe premises. LCOA responded with a motion for summary judgment, arguing it had no reason to anticipate the boating accident and, thus, no duty to protect Dedeaux and Guymon from the boating accident. Lake Caroline did not have a history of boating accidents, especially accidents at night involving a high rate of speed. And Owen did not have a history of operating his boat recklessly. Further, LCOA has never guaranteed the safety of the residents using the lake. Instead, the LCOA’s lake rules and regulations make clear that lake activities are inherently dangerous and that residents swim, fish, ski, and boat at their own risk.

¶ 7. Dedeaux and Guymon countered that the boating accident had been reasonably foreseeable. As support, they referenced one accident that had occurred six years before theirs. And they cited deposition testimony by LCOA’s vice president that, before the 2005 accident, the association had considered implementing a “lake marshal” program to regulate fishing. But after the 2005 accident, LCOA was concerned that the program would give the false impression that fishing marshals were there to ensure the safety of swimmers and boaters. So it scrapped the idea.

¶ 8. Dedeaux and Guymon also submitted an affidavit by a boating-safety expert. According to the expert, the 2011 accident was reasonably foreseeable based on the 2005 accident and the fact LCOA did not implement any new policies following the 2005 accident. Guymon too submitted an affidavit — along with an affidavit by his neighbor that matched his verbatim. Guy-mon attested that before his accident he had observed an unspecified number of boats traveling at some rate of high speed.

¶ 9. The circuit court found Dedeaux and Guymon’s evidence insufficient to establish that Lake Caroline had cause to anticipate the accident, which would have triggered a duty to take safety measures to try to prevent the accident. And because Dedeaux and Guymon failed to establish that LCOA owed them a duty, the circuit court dismissed their claim on summary judgment.

¶ 10. Dedeaux and Guymon immediately appealed.

Discussion

¶ 11. On appeal, Dedeaux and Guymon insist the injuries they sustained were partly caused by LCOA’s negligence. The first element of any negligence claim is duty. See, e.g., Doe v. Hunter Oaks Apartments, L.P., 105 So.3d 422, 425 (¶ 10) & n. 4 (Miss.Ct.App.2013). So for them to have a claim against LCOA for failing to protect them from Owen that night, they must first establish that LCOA had a duty to protect them from Owen. See id. Because Dedeaux and Guymon cannot do this, the trial court was right to dismiss their claim against the LCOA on summary judgment.

I. Duty to Protect Invitees

¶ 12. Duty is a question of law. Rein v. Benchmark Constr. Co., 865 So.2d 1134,1143 (¶ 29) (Miss.2004). As the owner and operator of Lake Caroline, LCOA did owe those who used the lake certain duties. The extent of those duties depends on the lake user’s status — trespasser, licensee, or business invitee. Corley v. Evans, 835 So.2d 30, 37 (¶ 21) (Miss.2003). A business invitee is owed a greater duty than trespassers and licensees. Id. at 37 (¶ 21), 39 (¶ 28). And for purposes of summary judgment only, LCOA has conceded Dedeaux and Guymon’s status as business invitees. But even as business invitees, LCOA did not owe them the duty to protect them against Owen’s allegedly negligent boat operating.

¶ 13. “The landowner is not an insurer of the invitee’s safety[.]” Id. at 37 (¶ 22). But the landowner “does owe to an invitee the duty ‘to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.’ ” Id. (quoting Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992)).

¶ 14. Traditionally, keeping the premises reasonably safe has referred to the physical condition of the property. A business owner has a duty “to maintain the premises in a reasonably secure or safe condition” to prevent some type of “slip and fall.” Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991). But starting in the 1980s, the Mississippi Supreme Court began expanding the duty to keep the premises reasonably safe to “encompass negligent or wrongful attacks on the invitee by other patrons.” Id. (citing May v. V.F.W. Post # 2539, 577 So.2d 372 (Miss.1991); Grisham v. John Q. Long V.F.W. Post, 519 So.2d 413, 417 (Miss.1988); Kelly v. Retzer & Retzer, Inc., 417 So.2d 556 (Miss.1982)); see also Kroger Co. v. Knox, 98 So.3d 441, 443 (¶ 14) (Miss.2012) (addressing when “the alleged dangerous condition is the threat of an assault”). Now, to maintain a reasonably safe premises, a business owner must also protect its invitees from injuries at the hand of others that are reasonably foreseeable. Kroger Co., 98 So.3d at 444 (¶ 16); Corley, 835 So.2d at 38 (¶ 22); Lyle, 584 So.2d at 399.

¶ 15. But in this context, a third-party-inflicted injury is only deemed reasonably foreseeable when there is “cause to anticipate the wrongful or negligent act” of that third party. Corley, 835 So.2d at 38 (¶ 23) (quoting Grisham, 519 So.2d at 416). See also 65A C.J.S. § 519 (2010) (qualifying that the “duty of an owner of premises to interfere to prevent probable injury to an invitee does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent person on notice of [the] probability of danger”). The supreme court has dealt multiple times with when a property owner has “cause to anticipate” one of its patrons will be criminally assaulted on the premises. If the property owner had “(1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists,” the property owner had “cause to anticipate the assault.” E.g., Kroger Co., 98 So.3d at 443 (¶ 14); Double Quick, Inc. v. Lymas, 50 So.3d 292, 298 (¶30) (Miss.2010); Corley, 835 So.2d at 38-39; Gate-wood v. Sampson, 812 So.2d 212, 220 (¶ 14) (Miss.2002); Lyle, 584 So.2d at 399; see also Simpson v. Boyd, 880 So.2d 1047, 1051 (¶ 14) (Miss.2004). Adapting this foreseeability test to the circumstances in this case, we find that for LCOA to have had a “cause to anticipate” Owen’s negligent actions — and thus a duty to protect Dedeaux and Guymon from injuries at Owen’s hand — LCOA had to have either (1) actual or constructive knowledge that Owen had been negligently operating his boat on the lake or (2) actual or constructive knowledge of a general history of negligent boating on the lake.

II. Lack of Evidence to Establish Duty

¶ 16. Guymon and Dedeaux have neither claimed nor tried to prove that LCOA had actual or constructive knowledge that Owen had a history of operating his boat negligently on Lake Caroline. Instead, they have argued that LCOA knew the lake had a history of dangerous boat drivers — a problem they claim should have been addressed through better rules and a safety patrol. But the only evidence they cite of this supposed history is that there had been another boat wreck on Lake Caroline six years before their crash.

¶ 17. In Corley, the supreme court found one “prior altercation three years before the current situation was not adequate notice to [the property owner] that an intoxicated friend would accidently shoot another friend at the [owner’s] craw-fish boil.” Corley, 835 So.2d at 38 (¶ 24). Likewise, in Kroger Co., the supreme court found “as a matter of law that — in the context of Kroger’s more than three million customer visits over the course of three years — four incidences of criminal activity [were] wholly insufficient to establish an atmosphere of violence on Kroger’s parking lot.” Kroger Co., 98 So.3d at 444 (¶ 16). While we are certainly not dealing with one incident per one million visits as in that case, considering there are more than 700 boats registered to use the lake, we find one boat wreck in six years is similarly insufficient as a matter of law to establish LCOA had cause to anticipate the 2011 accident. Cf. Corley, 835 So.2d at 38 (¶ 24).

¶ 18. Guymon had also submitted his affidavit, as well as an affidavit by another Lake Caroline resident, both of which attested the two residents had “observed boats traveling at what appealed] to be excessive speeds during daylight hours and at night on and before June 4, 2011.” But neither affidavit gave details about the number of speeding boats, the time frame, or, more important, whether other boats were in the vicinity. Thus, we find these affidavits were insufficient to establish there had been a pattern of reckless boating, making Owen’s accident reasonably foreseeable. Cf. Lyle, 584 So.2d at 399 (“reifying] on such factors as the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises” to determine if an “atmosphere of violence” existed on the premises).

¶ 19. We also reject Dedeaux and Guymon’s argument that LCOA’s mere consideration of implementing a lake-marshal program before the 2005 boat accident somehow created a legal duty to patrol the lake. Just as “merchants are not required to carry out the duties of the police force,” neither are homeowners’ associations. Kroger Co., 98 So.3d at 445 (¶ 22). Also, the stated reason why LCOA ditched the idea — which had only been raised to address the issue of fish poachers — was because it did not want to give lake users the impression the patrol was there to ensure their safety. Since “a property owner is not an insurer of an invitee’s safety,” we cannot fault LCOA for wanting to avoid the possible appearance it had assumed a duty that Mississippi law has never imposed. Id. at 444 (¶ 16) (internal quotations omitted).

¶ 20. As the supreme court said in Kroger Co., “imposing liability without notice of an atmosphere of violence would be nothing short of strict liability for injuries caused by the criminal activity of third parties.” So too here, imposing liability on LCOA without any notice of an unreasonably dangerous atmosphere on the lake would be to hold LCOA strictly liable for Owen’s negligent act. See Randol v. Atkinson, 965 S.W.2d 338, 342 (Mo.Ct.App. 1998) (holding condominium-owners associations did not have the duty “to protect the owners from all potential sources of harm, particularly those caused by the negligence of third parties”). Dedeaux and Guymon have failed to establish as a matter of law that LCOA owed a duty to protect them from Owen. And without a duty owed, there can be no negligence. We thus affirm the judgment dismissing their negligence claim against LCOA.

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

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

      . In addition to LCOA, they also sued Owen and the man with whom he co-owned the boat, John Kaiser. By agreed order, Owen and Kaiser were dismissed with prejudice. Also, Dedeaux’s husband and Guymon’s wife were among the original plaintiffs. But their claims were dismissed without prejudice.