author: CHANDLER, Justice, for the Court: DICKINSON, Presiding Justice, LAMAR, Justice,

text:
    Narjess GHANE, Individually and on Behalf of the Wrongful Death Beneficiaries of Shapoor Alexander (“Alex”) Ghane, Jr. v. MID-SOUTH INSTITUTE OF SELF DEFENSE SHOOTING, INC., A Tennessee Corporation; JFS, LLC, A Mississippi Limited Liability Company; John Fred Shaw; Donald Ross Sanders, Jr. and Jim Cowan.
    No. 2012-CA-00125-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2014.
    Rehearing Denied May 8, 2014.
    Dickinson, P.J., filed opinion concurring in part and in result.
    Lamar, J., filed dissenting opinion in which Waller, C.J., and Coleman, J., joined.

      Benjamin Louis Taylor, attorney for appellant.
    Jay Marshall Atkins, Oxford, Thomas P. Cassidy, Jr., Jeffrey Edward Nicoson, Robert Q. Whitwell, Oxford, attorneys for appellees.
   CHANDLER, Justice, for the Court:

¶ 1. This wrongful death action was brought against a private military contractor by Narjess Ghane, the mother of a deceased member of the Navy’s Sea, Air, and Land Force (SEAL) Team Five. Along with other members of SEAL Team Five, S02 Shapoor Alexander (Alex) Ghane Jr. was engaged in a live-fee, close-quarters combat training exercise at Mid-South Institute of Self Defense (“Mid-South”) when a bullet allegedly penetrated a ballistic wall, striking S02 Ghane above his protective vest and killing him. Mid-South successfully moved for summary judgment on the ground that Mrs. Ghane’s claim would require the trial court to question military policy and operational decisions, thus raising a nonjusticiable political question. The defendants had previously unsuccessfully moved for summary judgment on the ground that S02 Ghane had signed a valid waiver of liability.

¶ 2. We reverse the trial court’s grant of summary judgment pertaining to the political-question doctrine, and affirm the trial court’s previous denial of summary judgment pertaining to the liability waiver. On the record before us, the defendants have failed to demonstrate that adjudication of this claim will require reexamination of matters inextricable from military policy and operational decisions. This tort action is based on the failure of the ballistic walla wall independently designed, constructed, and maintained by the defendants. The defendants have failed to demonstrate that military policy and operational decisions are essential to a determination of causation.

FACTS AND PROCEEDINGS BELOW

¶ 3. Mid-South is a privately owned live-fee training facility that the Navy SEALS have frequently rented for training exercises since the mid-1980s. John Shaw, the former owner of Mid-South and fifty-percent owner of JFS, LLC, the entity that now owns the property on which Mid-South is located, testified that, in the late 1980s, the SEALS who were training at Mid-South requested that Mid-South build shoothouses with ballistic walls. Shaw constructed the initial shoothouse walls with eight-inch railroad ties on both sides filled with eight-inches of sand.

¶ 4. The current general manager of Mid-South, Donald Sanders, testified that he was informally asked by the SEALS in the early 2000s to construct a shoothouse that more realistically represented structures the SEALS would encounter in the real world. Sanders and Shaw then designed and built thinner ballistic walls made of six-inch galvanized steel studs on each side, covered in an approximately three-eighths-inch-thick plastic, filled with limestone gravel. When designing and constructing the walls, they did not look to any other ranges, specifications, or guidebooks; nor did they consult an engineer. They tested the wall with multiple types of ammunition including rounds of 5.56mm “green-tip” bullets and regular .308 caliber ammunition. According to Sanders, no rounds breached the walls, and the green tip bullets penetrated only one-third of the way through the walls. The tops of the walls were left open so that gravel levels could be observed and refilled as needed.

¶ 5. On January 30, 2008, SEAL Team 5 was training at Mid-South under direct orders from the U.S. Navy. The SEALS brought their own equipment, weapons, and ammunition. Navy range safety officers (RSOs) oversaw the close-quarter combat (CQC) training. The SEALS were using the twenty-eight room ballistic shoothouse to practice room clearing. As part of the training exercise, the RSO placed a hostile paper target on a ballistic wall while the SEALS were “stacked” immediately on the opposite side of the wall. During the course of the exercise, S02 Ghane was struck by a .223 caliber round (5.56mm NATO) of “green-tip” ammunition above his protective vest. Despite receiving immediate medical attention, he died from the wound shortly after being struck.

¶ 6. After the incident, both the Navy Criminal Investigative Services (NCIS) and Naval Special Warfare Group One (NSWG-1) conducted an investigation. A redacted copy of the subsequent NSWG-1 report was obtained by Mrs. Ghane through the Freedom of Information Act. The report includes extensive findings of fact, opinions, and conclusions. The following are excerpts from that report:

Findings of Fact

19. On or about October 18, 2007, the ST-5 Command master Chief (CMC) expressed some concern to Training Detachment (TRADET) personnel about the training tactics of [redacted].
20. TRADET personnel responded that [said training tactics] could be practiced at Mid South because the shoot house walls were ballistic.
47. [On the day S02 Ghane died], At approximately 1400, [name redacted] entered a room followed by a number of [redacted] members including [name redacted] and S02 Ghane.
50. SEAL team 5 members heard two snaps consistent with rounds exiting the wall at a high velocity and entering the first room.
51. As a result, SEAL Team 5 members- on the other side of the wall were hit by debris and saw debris coming in the first room.
52. S02 Ghane’s teammates heard him exclaim, and then saw S02 Ghane fall to the ground.

Opinions

1. S02 Ghane’s death occurred in the line of duty and not due to his own misconduct.
2. The cause of S02 Ghane’s death was a defective Shoot House wall that did not provide the ballistic protection advertised by Mid South and paid for by the Navy.
3. Despite the omission of SEAL Team FIVE’S statement of work from the NSWG-1 contract, Mid South knew that NSW units required ballistic protection sufficient for [green tip ammunition]. This opinion is supported by Mid South General Manager’s statement acknowledging testing with [green tip ammunition], the website representation that the shoot house walls were ballistic, and years of instruction for NSW trainees using [redacted].
5. Mid South comments concerning [redacted] training included representations that all walls in both shoot houses were ballistic, that paper targets were sufficient without bullet traps, and that target placement was unrestricted.
6. The design and construction of Mid South’s current shoot house walls occurred ad hoc six years ago by the Mid South General Manager, who did not have any formal training, certification, or license in range engineering.
8. Possible design factors contributing to wall failure in this case include an insufficiently thick gravel wall, exposure of the interior gravel to changing weather conditions, and the lack of a ballistic steel plate within the wall.
9. The maintenance routine of randomly detecting and replacing worn plastic sheets and refilling low gravel levels was inadequate. This system focused more on the appearance of the wall exterior and tops than the condition of the contents inside the walls that stop bullet penetration. As such, that inspection regime was not able to adequately determine interior wall ballistic properties and degradation. Physical samples taken from the target area where the penetration occurred were clearly different from the gravel at the tops of the walls.
10. The testing that was the basis for proclaiming the shoot house walls ballistic was inadequate. The tests consisted of two repetitions, conducted six years ago, on the same wall, on the same day, under the same weather conditions, with new materials, and no objective criteria for measuring failure rates over time.
16. The effectiveness of any [military] inspection of Mid South shoot house walls is limited by the walls’ original design. Mid South’s current maintenance system is based on the appearance of non-ballistic exterior plastic retaining walls and the height of gravel levels at the top. Under the current design, it is impossible to check for interior wall degradation throughout the shoot house without cutting open every wall. Walls using ballistic steel allow inspectors to temporarily peel back the exterior material to inspect for interior degradation.

Recommendation

11.Recommend that no charges be brought against the TRADET safety officers on the scene. The ultimate cause of S02 Ghane’s tragic death stems from defective walls that were not ballistic as advertised and paid for in this case. While multiple factors, including the weather, ammunition, and tactics may have played a role, Naval Special Warfare’s inability to detect that the ballistic shoot house was not designed, built, maintained, or tested based on formal objective standards was a systematic and critical failure. This oversight began the first time any naval Special Warfare unit used the current shoot house walls approximately six years ago and continued until January 30, 2008. As such, Naval Special Warfare shares a collective responsibility in this case. Therefore, we, as a community, owe the memory of Alex Ghane our best efforts to ensure that such a tragic loss never happens again.

(Emphasis added.)

¶ 7. Mrs. Ghane filed suit against the defendants on January 30, 2009, specifically asserting that there were no allegations of comparative fault against any party not named as a defendant. The defendants’ answer asserted several affirmative defenses, including the comparative negli-genee of “the United States Navy, members of the United States Navy SEAL Team # 5, and other members, officers or employees of the United States Navy.”

¶ 8. The defendants first moved for summary judgment on the ground that S02 Ghane had signed an unconditional release and hold-harmless agreement prior to training. The plaintiff argued that S02 Ghane was not a student at Mid-South at the time of his death, but rather was there under orders from the military and therefore did not fall within the scope of the release. The trial court denied the defendants’ motion for summary judgment, finding that questions of fact remained as to whether S02 Ghane had released the defendants from “liability for the walls the Defendants claimed could not be penetrated by the ammunition being used by the [SEALS] that day, whether those representations were made, whether the walls were penetrated by said ammunition and [S02 Ghane] killed as a result of the alleged misrepresentations and reckless disregard of the Defendants.”

¶ 9. The defendants moved again for summary judgment on September 23, 2011, arguing that the plaintiffs claims raised a nonjusticiable political question because adjudication of the claim would require the trial court to question military training decisions and strategies. The trial court granted summary judgment to the defendants as to the political question doctrine. Mrs. Ghane appealed.

DISCUSSION

I. THE POLITICAL-QUESTION DOCTRINE

¶ 10. Our standard of review of summary judgment and jurisdictional issues is de novo. Stringer v. Trapp, 30 So.3d 339, 341 (Miss.2010); Jones v. Billy, 798 So.2d 1238, 1239 (Miss.2001).

¶ 11. The political-question doctrine is a function of the constitutional separation of powers and was famously first articulated by Chief Justice Marshall in Marburg v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803):

The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.

“The political question' doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). Mississippi adopted the political question doctrine in In re Hooker, 87 So.3d 401 (Miss. 2012).

¶ 12. In Baker v. Carr, the United States Supreme Court provided six independent factors, any of which, if present, indicate the existence of a nonjusticiable political question:

1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
2) a lack of judicially discoverable and manageable standards for resolving it; or
3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
5) an unusual need for unquestionable adherence to a political decision already made; or
6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). “Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.” Id. at 217, 82 S.Ct. 691 (emphasis added). In order to determine whether a case will implicate a political question, a court “must analyze appellant’s claim as it would be tried, to determine whether a political question will emerge.” Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker Dauntless Colocotronis, 577 F.2d 1196, 1202 (5th Cir.1978). “The Constitution emphatically confers authority over the military upon the executive and legislative branches of government.” Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640 (1981). However, “not all cases involving the military are automatically foreclosed by the political-question doctrine.” Carmichael v. Kellogg, Brown & Root Services, Inc., 572 F.3d 1271, 1281 (11th Cir. 2009).

¶ 13. Private contractors are a significant step removed from the separation-of-powers concerns targeted by the political-question doctrine and the Baker factors. They “do not have independent constitutional authority and are not coordinate branches of government to which we owe deference.” Taylor v. Kellogg, Brown & Root Servs., Inc., 658 F.3d 402, 409 (4th Cir.2011). Private contractors therefore must meet a “double burden” in order to receive the protection of the political-question doctrine. McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1359 (11th Cir.2007). “First, [they] must demonstrate that the claims against [them] will require reexamination of a decision by the military .... [t]hen, [they] must demonstrate that the military decision at issue is .... insulated from judicial review.” Id. at 1359-1360. In negligence actions against private contractors, the question of causation is particularly relevant in evaluating whether a political question will be implicated: “[i]f we must examine the [military’s] contribution to causation, ‘political question’ will loom large.” Lane v. Halliburton, 529 F.3d 548, 561 (5th Cir.2008).

¶ 14. Here, we find that the defendants have failed to demonstrate that adjudication of thé ballistic wall’s failure would implicate a political question. On the facts before us, this case does not require reexamination of decisions made by the military and can be tried under the “judicially discoverable and manageable standards” of well-established state tort law.

¶ 15. The question of causation comes down to the design, construction, and maintenance of a ballistic wall at a rented training facility — conditions which were in place before the military took “operational control” of the facility. Before the training exercise occurred, Mid-South independently had designed, constructed, and tested the shoothouse walls, representing them to be capable of -withstanding the ammunition used and the training tactics employed. The Navy investigation found:

5. Mid South comments concerning [redacted] training included representations that all walls in both shoot houses were ballistic, that paper targets were sufficient without bullet traps, and that target placement was unrestricted.

(Emphasis added.) Based on these representations, the “military operational control” that provides the context for this case is irrelevant to adjudication of the claim against Mid-South.

¶ 16. In McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir.2007), the Eleventh Circuit found no political question implicated where the plaintiff alleged that the defendant contractor “negligently staffed, equipped, and otherwise operated [a flight transporting three soldiers that crashed into a mountain]. These allegations relate to areas of responsibility reserved to [the defendant contractor] by [the defendant’s contract with the military].” Id. at 1360. Here, the allegations relate to Mid-South’s contractual obligation to provide a training facility that would perform as represented. Again from the Navy report:

3. ... Mid South knew that NSW. units required ballistic protection sufficient for [green-tip ammunition]. This opinion is supported by Mid South General Manager’s statement acknowledging testing with [green tip ammunition], the website representation that the shoot house walls were ballistic, and years of instruction for NSW trainees using [redacted].

(Emphasis added.)

¶ 17. This case is distinguishable from Aktepe v. United States, 105 F.3d 1400 (11th Cir.1997), where a political question was implicated in a suit against the military where, during a joint training exercise, a U.S. ship accidentally fired a live missile at a Turkish ship. The court accurately stated that “[t]he Supreme Court has generally declined to reach the merits of cases requiring review of military decisions, particularly when those cases challenged the institutional functioning of the military in areas such as personnel, discipline, and training.” Id. at 1403. Unlike the case at hand, Aktepe was brought directly against a coordinate branch of government and directly challenged a military decision. Further, while S02 Ghane’s death occurred during the course of a training exercise, there is no claim that negligent military execution of the exercise caused his death.

¶ 18. This same logic distinguishes this case from several recent circuit cases Mid-South cites for the proposition that military operational control over contractors implicates a political question. “Military control over a contractor’s actions is one common way that evaluation of military decisions becomes necessary.” Harris v. Kellogg, Brown & Root Servs., Inc., 724 F.3d 458, 458 (3rd Cir.2013). In Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271 (11th Cir.2009), the Eleventh Circuit dismissed a case against a military contractor where a vehicle driven by a KBR employee rolled over while transporting fuel on a dangerous route in a military convoy. There, “military judgments governed the planning and execution of virtually every aspect of the convoy in which [the sergeant] was injured.” Id. at 1281. But there is no logical parallel between military control of a live convoy mission and the condition of a ballistic wall at a rented facility.

¶ 19. A district court in Pennsylvania recently concluded that “[adjudicating whether [defendant contractors] were required to warn of the dangers of asbestos in connection with the supply of propulsion turbines to the Navy for use in Navy warships does not implicate a political question:”

Defendants contend that the court will necessarily have to rule on the prudence of the Navy’s use of asbestos ... [but] [plaintiff’s claims do not challenge the Navy’s wisdom in deciding to use asbestos, nor do they seek to second guess the Navy’s judgment as to the wisdom or propriety of its warning policy. Moreover, if successful, the claims will not make the Navy liable for any injury .... To be sure, a judicial inquiry into what Navy policy was ... at the time Plaintiff served on a Navy vessel may be required. Yet, this inquiry does not implicate the wisdom and soundness of the Navy’s policies or procedures. The issue here is what the policy was with respect to warnings, not what it might (or should) have been ....

Donn v. A.W. Chesterton Co., Inc., 842 F.Supp.2d 803, 815-16 (E.D.Pa.2012) (emphasis added). The court went on to distinguish Carmichael and related cases the way we distinguish them here:

These cases .... traverse a common thread different from this case. They require the courts to second guess military operational judgment, whether that be the speed and timing by which to send a military convoy through Iraq, or the wisdom of the military’s procedures for electrical repairs .... Indeed, adjudicating the claims in Carmichael and Taylor would require the Court to determine in hindsight whether the military policy was correct .... Thus, those cases present the type of claims the political question doctrine seeks to preclude from judicial review — claims that require courts to determine the wisdom of military policy.

Id. at 817-18 (emphasis added). Mrs. Ghane does not ask the trial court to question the wisdom of the training tactics used by the military on the day S02 Ghane died. Rather, the focus of this case is on the “defendants’ performance of its contractual obligations to the government ... rather than the advisability of any governmental policy-related decision.” Bixby v. KBR, Inc., 748 F.Supp.2d 1224 (D.Or.2010) (refusing dismissal of negligence suit against contractor). The Navy’s extremely thorough internal report demonstrates that the Navy felt free to “practice like we will fight” because Mid-South had first represented that its training facility was designed to handle such practice safely.

¶ 20. The defendants also fail to demonstrate that they will put forward a viable contributory negligence defense. Mississippi tort law allows for determination of percentage of fault in civil cases. A jury would inevitably be required to reexamine military decisions if tasked with apportioning percentage of fault between the Navy and the defendants. But Mrs. Ghane’s claim that the ballistic wall failed can “stand alone without implicating any decision committed to the discretion of the military.” McMahon v. Gen. Dynamics Corp., et al., 933 F.Supp.2d 682, 695 (D.N.J.2013). A New Jersey district court rejected a contractor’s argument that the manner in which it intended to defend itself would implicate a political question:

[The defendant] states that it will defend itself in a manner that will drag the Court into exacting evaluations of the Army’s policies and the actions of its soldiers.... That argument is too broad; it would give defendants too much power to define the issues. Indeed, it would bar virtually any claim in which the contractor posited that the military, not itself, was at fault. In the great majority of cases dismissing claims on political question grounds, the allegedly faulty exercise of military judgment was the basis of the complaint, not of a hypothetical defense. [The plaintiff] does not challenge any order he was given, or indeed anything that occurred in Afghanistan. His allegation of a manufacturing defect could stand alone without implicating any decision committed to the discretion of the military.

Id. (emphasis added).

¶ 21. Sufficient evidence has been presented to allow this wrongful death action to proceed based on the allegation that the bullet penetrated the shoothouse wall because the wall’s design, construction, and maintenance was other than what it was represented to be by the defendant — ballistic — without contributory negligence by the Navy. Mid-South was acting independent of military control when it responded to the SEALS’ informal request for a more realistic ballistic wall by designing a wall “ad hoc,” without consulting an engineer or following any established specifications, military or otherwise. The defendants have failed to demonstrate that the military’s training tactics — such as S02 Ghane’s position in the shoothouse, the placement of targets, and the choice of ammunition — exceeded the scope of what Mid-South represented its facility could handle. Military policy and training tactics are therefore irrelevant for purposes of causation.

¶ 22. Mid-South’s liability for the defective wall would not be lessened by the Navy’s conclusion that different Navy oversight policies could have prevented this tragedy. The “collective responsibility” assumed by the Navy does not translate into apportioned tort liability. That “admission” addresses additional safety policies beyond and distinct from Mid-South’s liability for failing to provide a facility that performed as represented to the Navy. On the record before us, adjudication of the claim under state tort law will not implicate a political question. We therefore reverse the trial court’s grant of summary to the defendants.

II. THE RELEASE S02 GHANE SIGNED DID NOT RELIEVE MID-SOUTH FROM LIABILITY.

¶ 23. We affirm the trial court’s denial of the defendant’s first motion for summary judgment arguing that S02 Ghane signed a release prior to training exculpating defendants from liability. Mississippi law “does not look with favor on contracts intended to exculpate a party from the liability of his or her own negligence although, with some exceptions, they are enforceable.” Tumbough v. Ladner, 754 So.2d 467, 469 (Miss.1999) (citations omitted). “[W]e do not sanction broad, general ‘waiver of negligence’ provisions, and strictly construe them against the party asserting them as a defense.” Id. In Tumbough, a scuba diving student brought suit against his instructor after he because ill with decompression sickness after participating in her scuba certification classes, alleging that the instructor was negligent in planning the depths of the dives and in failing to make necessary-safety stops during the dive. Id. at 468. We reversed the trial court’s grant of summary judgment to the defendant (based on the plaintiffs signing a waiver of liability):

Assuming [the student] was aware of the inherent risks in scuba diving, it does not reasonably follow that he, a student, intended to waive his right to recover from [the instructor] for failing to follow ... basic industry safety standards.

We found that the student “did not knowingly waive his right to seek recovery for injuries caused by the instructor’s failure to follow basic safety guidelines that should be common knowledge to any instructor of novice students.” Id. at 470. We further found that “contracts attempting to limit the liabilities of one of the parties would not ‘be enforced unless the limitation is fairly and honestly negotiated and understood by both parties’ ” and that, because the contract was preprinted and not negotiated, the terms should be “strictly construed against the party seeking to enforce such a provision.” Id. (citations omitted).

¶ 24. We find that the trial court correctly denied the defendants’ motion for summary judgment at this stage. The release S02 Ghane signed was a preprint-ed, general release. As in Tumbough, it is not reasonable that S02 Ghane, an experienced Navy SEAL, intended to release the defendants from following even basic safety standards in the design of the ballistic wall or the failure of the wall to perform as advertised. We further find merit to the plaintiffs argument that S02 Ghane does not fall within the scope of the release because he was not a “student” being taught or instructed by Mid-South at the time of his death, as he was under orders from the military to train at the facility.

CONCLUSION

¶ 25. The political-question doctrine rarely operates to bar a plaintiffs claim and does not operate to do so here. On the facts before us, the defendants have not met their burden to show that Mrs. Ghane’s wrongful death claim is inextricable from the formulations established by the Baker factors and cannot be adjudicated without impheating a political question. We therefore reverse the trial court’s grant of summary judgment as pertains to the political-question doctrine. We affirm the trial court’s denial of summary judgment as to the liability waiver.

¶ 26. AFFIRMED IN PART; REVERSED IN PART; REMANDED.

RANDOLPH, P.J., KITCHENS, pierce And king, jj. concur. DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION. LAMAR, J. DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND COLEMAN, J.

DICKINSON, Presiding Justice,

concurring in part and in result:

¶ 27. My disagreement with the majority is minor. I agree that the trial court properly denied summary judgment as to liability. And I agree that we should reverse the trial court’s grant of summary judgment on the political-question doctrine, but not because it does not apply in this case. We do not know whether it does. The Navy has neither raised it nor intervened in this case to assert it.

¶ 28. The defendant, Mid-South, attempts to raise it on behalf of the Navy, claiming the doctrine will somehow prevent it from fully defending the claims filed against it. But no person from the Navy has refused to testify or respond to a subpoena. And Mid-South has made no showing that the Navy’s redactions from the NSWG-1 report materially affected its ability to defend itself. For these reasons, I would reverse the trial court’s grant of summary judgment on the political-question doctrine because it is not ripe for review.

LAMAR, Justice,

dissenting:

¶29. I agree with the majority that Plaintiffs liability theories are based on simple negligence by Mid-South in the construction of the ballistic wall. And I agree that the resolution of that issue would not require an evaluation of military decisions. But, although Plaintiff does not challenge military decisions, Mid-South has raised defenses concerning proximate causation and comparative negligence that will require the fact-finder to evaluate decisions and training strategies of the military, thus presenting a nonjusticiable issue. Questions of justiciability must be resolved before one reaches the merits of the case. The issue we must decide is whether Defendants have presented enough evidence to present a jury question as to whether the military decisions contributed to S02 Ghane’s death.

¶ 30. I include some additional facts that I believe are helpful to understanding this case. Although the Navy had regulations covering the design of ballistic walls at the time the current walls were designed and constructed, the SEALS never instructed Mid-South on how it should construct the walls, nor did they inform Mid-South of any standards the walls should meet. When the SEALS trained at Mid-South, they were under the control of their training cadre, and the Mid-South instructors had no oversight, except for shooting and weapons-handling instructions at the outdoor ranges. The SEALS brought their own equipment, weapons, and ammunition. They also had their own armorer to repair weapons and select ammunition. Navy range safety officers (RSOs) oversaw the close-quarter combat (CQC) training, determined target placement, and controlled the manner in which the SEALS entered the shoothouses. Sanders testified that the RSOs were required to inspect the shoothouses every day and determine that the conditions were safe for the SEALS to train.

¶ 31. In January 2008, SEALS Team 5, including S02 Ghane, traveled to Mid-South to conduct a training cycle. During the January 2008 training cycle, the SEALS armorer selected 5.56 mm “green-tip” rounds to be used for training exercises instead of less powerful “black-tip” or “blue tip” rounds normally used for training. On January 30, 2008, the SEALS were training in the shoothouses, practicing room-clearing. The RSO placed a hostile target on one side of an interior ballistic wall, while the SEALS were “stacked” on the other side.of the wall. This resulted in the SEALS who had moved around the wall shooting back at a target on the wall directly in front of the SEALS waiting to enter the room. According to Shaw, this was not standard Navy practice, and a Navy Master Chief expressly had instructed the RSO a few days before January 30 not to put any SEALS behind walls that were being shot at.

¶ 32. The Investigating Officer also included the following conclusion and recommendation in his report summary:

Recommend that no charges be brought against the TRADET safety officers on the scene. The ultimate cause of S02 Ghane’s tragic death stems from defective walls that were not ballistic as advertised and paid for in this case. While multiple factors, including the weather, ammunition, and tactics may have played a role, Navy Special Warfare’s inability to detect that the ballistic shoot house was not designed, built, maintained, or tested based on formal objective standards was a systemic and critical failure. This oversight began the first time any Naval Special Warfare unit used the current shoot house walls approximately six years ago and continued until January 80, 2008. As such, the Naval Special Warfare shares a collective responsibility in this case.

(Emphasis added.)

¶ 33. The commanding officer of NSWC, G.J. Bonelli, transmitted the report via letter dated June 26, 2008, to the Commander, Naval Special Warfare Group One. In that letter, Bonelli endorsed and approved the report, subject to certain comments. Bonelli’s comments included the following:

a. An unfortunate combination of events, to include the misplaced reliance on the integrity of what was thought to be a ballistic wall, the practice of [redacted] and the use of [redacted] ammunition were variables in this fatal mishap. The exercise of stronger Operational Risk Management (ORM) procedures may have identified a weakness in the risk mitigation that could have been further addressed on the spot on the date of the mishap.
b. Recommendation 6 seeks a study of the use of [redacted] ammunition in [redacted] both in training and in combat. My staff and I have looked at this recommendation and I decline to impose an absolute bar on its use. We need to train how we will fight. I accord deference to the combatant commanders in the types of ammunition they believe the war-fighters need in theater. That said, we need to carefully evaluate each and every occasion where we train with the [redacted] ammunition.

(Emphasis added.) In other words, Bonel-li’s recommendation was to allow combatant commanders discretion in choosing which ammunition to train with because the SEALS need to “train how they will fight,” even if some ammunition and/or training tactics are more dangerous than others.

¶ 34. While complaints against government contractors rarely implicate a political question directly, “military decisions that are textually committed to the executive sometimes lie just beneath the surface of the case.” It is critical that the court consider not only a plaintiffs claim, but also the defenses that will be presented. The Third Circuit Court of Appeals has explained a court’s task in such a case as follows:

In these situations, the political question appears not from the plaintiffs complaint, but from the broader context made relevant by a contractor’s defenses. As such, to avoid infringing on other branches’ prerogatives in war-time defense-contractor cases, courts must apply a particularly discriminating inquiry into the facts and legal theories making up the plaintiffs claims as well as the defendant’s defenses.

¶ 35. The Third Circuit Court of Appeals recently addressed the political-question doctrine in a case involving claims against a government contractor in Harris v. Kellogg, Brown & Root Servs., Inc. The court recognized that, while “military control over a contractor’s actions is one common way that evaluation of military decisions becomes necessary,” the court’s inquiry does not end there, because “[pjlaintiff s claims might still present un-reviewable military decisions if proving those claims or ... defenses necessarily requires evaluating such [military] decisions.”

¶ 36. In such cases, when “analyzing whether a proposed defense implicates a nonjusticable political question ... courts must first decide whether the defendant has ‘presented sufficient evidence to permit a jury to conclude that he established the [elements of the] defense by a preponderance of the evidence.’ ” If there is sufficient evidence to support the defense, and the defense introduces a nonjusticiable issue, then the case must be dismissed. As the court explained in regard to proximate cause:

If a jurisdiction uses a proportional-liability system which assigns liability by the degree of fault, then a proximate-cause defense introduces a nonjusticia-ble issue. In such a system, there is simply no way to determine damages without evaluating military decisions. The fact finder cannot decide the respective degrees of fault as between a military contractor like KBR and the military without evaluating the decisions made by each ....

¶ 37. The Fifth Circuit Court of Appeals also addressed the political-question doctrine in the context of claims against a private government contractor in Lane v. Halliburton, On appeal, the court explained that, “[w]e must look beyond the complaint, considering how the [Plaintiffs might prove their claims and how [defendant] would defend. Nonetheless, a court must satisfy itself that political question will certainly and inextricably present itself.”

¶38. The Fifth Circuit explained that “[t]he central issue will be causation. If we must examine the Army’s contribution to causation, ‘political question’ -will loom large.” In Lane, the court determined that it could not “say that all plausible facts that would permit the recovery from [defendant] would also raise a political question” and remanded the ease for further proceedings. The court concluded, “the case needs further factual development before it can be known whether the doctrine is actually an impediment,” and made clear that “[p]ermitting this matter to proceed now does not preclude the possibility that the district court will again need to decide whether a political question inextricably arises in this suit.”

¶ 39. In this case, the trial court found that causation would be an issue for each of Plaintiffs causes of action and that the “fact finder will be required to evaluate decisions made by the Navy such as the placement of targets, how the soldiers would conduct their exercises, the ammunition, the orders of the Navy as to the building and maintenance and building of the walls of the shoothouse, and continuing the training after allegations that the walls had been breached earlier in making a determination of causation and comparative fault.” The trial court further found that it “has a lack of judicially discoverable and manageable standards for resolving this case at least as to the fault of the military.” I agree.

¶ 40. It is well-settled that an accident can have more than one proximate cause. In this case, each of Plaintiffs claims involves a question of causation. Defendants asserted the affirmative defense of comparative negligence in their answer and have made very clear that they intend to defend on the basis that the Navy SEALS’ negligence contributed at least in part to S02 Ghane’s death, as they are entitled to do under' Mississippi law, whether Plaintiff has alleged that Navy practices contributed to his death or not. I would find that Mid-South has presented sufficient evidence to support its defense, as the SEALS’ own investigation into S02 Ghane’s death concluded that the SEALS bore at least some responsibility.

¶ 41. The issue we must decide in this case is not whether Defendants have proven that military decisions actually did cause or contribute to S02 Ghane’s death; rather, the issue is whether Defendants have presented enough evidence to present a jury question regarding whether military decisions contributed to S02 Ghane’s death. The majority finds that Defendants “have failed to demonstrate that the military’s training tactics — such as S02 Ghane’s position in the shoothouse, the placement of targets, and the choice of ammunition — exceeded the scope of what Mid-South represented its facility could handle. Military policy and training tactics are therefore irrelevant for purposes of causation.” Maj. Op. at ¶ 21. On the record before us, there are questions of fact regarding the extent of Mid-South’s representations concerning the ballistic capacity of the wall, whether the failure of the wall was the sole cause of S02 Ghane’s death, and whether the training decisions made by the Navy contributed to S02 Ghane’s death. In other words, there are jury questions present in this case regarding causation. Although the presence of a jury question prevents a grant of summary judgment in the vast majority of cases, in this case, as the majority recognizes, if a jury is “tasked with apportioning percentage of fault between the Navy and defendants,” the jury would “inevitably be required to reexamine military decisions ....” Maj. Op. at ¶20. It is this reexamination that is prohibited by the political question doctrine and requires dismissal of Plaintiffs claims.

¶ 42. In a proportional-liability jurisdiction such as Mississippi, there “is simply no way” for a fact-finder to determine liability and percentages of comparative fault between the Navy and Mid-South without analyzing decisions made by each — specifically, the Navy’s decisions with respect to training tactics, ammunition used, and inspection of training facilities. For these reasons, I would affirm the trial court’s order granting Defendants’ motion for summary judgment based on the political-question doctrine.

WALLER, C.J., AND COLEMAN, J., JOIN THIS OPINION.

      .Special Warfare Operator (Second Class). "In May 2006 the U.S. Navy authorized the establishment of the Special Warfare Operator (SO) general rating to allow Enlisted Sailors to focus on rating-specific technology, skill sets, and training systems .... As of October 1, 2006, the Enlisted SEAL Warfare Designation (NSW Rating) became "Special Warfare Operator” (SO), representing its own specialized navy career path.” http:// navyseals.com/nsw/learn-about-the-us-navy-seals/ (last visited January 3, 2014).

      . Bullet-proof.

      . "Green-tip” bullets contain a tungsten core designed to penetrate farther than a standard bullet. The 5.56mm military designation is comparable to a .223 caliber bullet.

      . We note that the court found no political question implicated on the record before it, and left open the possibility that further development of the case might implicate a political question. Presidential Airways, Inc., 502 F.3d at 1360.

      . See Miss.Code Ann. § 85-5-7 (Rev.2011); Miss.Code Ann. § 11-7-15 (Rev.2004); Fielder v. Magnolia Beverage Co., 757 So.2d 925, 933 (Miss.1999). A jury can apportion a percentage of fault even to an immune nonparty.

      . See Harris v. Kellogg, Brown & Root Servs., Inc., 724 F.3d 458 (3rd Cir.2013).

      . This distinguishes this case from Boyle v. United Technologies, 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), where a claim against a private jet manufacturer was non-justiciable where the military had particularly requested a certain type of jet engine.

      . The defense's argument may be analogized to a mother saying that, if she had not asked her son to go to the store, he would not have been killed by a drunk driver.

      . Harris v. Kellogg, Brown & Root Servs., Inc., 724 F.3d 458, 465 (3d Cir.2013).

      . Id. at 466 (citing Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir.2008)).

      . Harris, 724 F.3d 458.

      . Id. at 467.

      . Id. at 469 (citing United States v. Stewart, 185 F.3d 112, 125 (3rd Cir.1999)).

      . Harris, 724 F.3d at 469.

      . Id. at 474.

      . Lane, 529 F.3d 548.

      . Id. at 565 (citation omitted) (emphasis in original).

      . Id. at 561.

      . Id. at 566-687, 568.

        .Id. at 554, 568.

      . On January 28, 2008, Mid-South was notified about a bullet possibly penetrating one of the shoothouse walls. Sanders testified that he and the RSO inspected the wall, but could not find any evidence of penetration. However, out of an abundance of caution, the wall was taken out of service.

      . Hill v. Columbus Ice Cream & Creamery Co., 230 Miss. 634, 93 So.2d 634, 641-42 (1957) ("there may be more than one proximate cause of an accident”).

      . See Mladineo v. Schmidt, 52 So.3d 1154, 1162 (Miss.2010) ("elements of a negligence claim are duty, breach of duty, proximate cause, and damages”); Huynh v. Phillips, 95 So.3d 1259, 1262 (Miss.2012) (plaintiff must show that the defendant exclusively controlled the instrumentality causing damage); Waggoner v. Williamson, 8 So.3d 147, 155 (Miss.2009) (negligent-misrepresentation claim requires proof of damages as a "direct and proximate result” of reliance on a misrepresentation of material fact); Double Quick, Inc. v. Moore, 73 So.3d 1162, 1166 (Miss.2011) (to recover in a premises-liability action, plaintiff must show damages, breach of duty, and that the breach was a proximate cause of the damages); Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 796 (Miss.1995) (negligence per se requires plaintiff to prove proximate causation); J.R. ex rel. R.R. v. Malley, 62 So.3d 902, 906-07 (Miss.2011) (negligent infliction of emotional distress requires proof that plaintiff suffered distress as a direct result of defendant’s actions); Koury v. Ready, 911 So.2d 441, 445 (Miss.2005) (fraud requires proof of proximate causation); Miss. Code Ann. § 11 — 1—63(a)(iii) (Rev.2002) (products liability claim requires proof of causation); Davis v. McGuigan, 325 S.W.3d 149, 161-162 (Tenn.2010) (claim under the Tennessee Consumer Protection Act requires proof of a loss of money or property as the result of an unfair or deceptive practice).

        .See Miss.Code Ann. § 85-5-7 (Rev.2011); Miss.Code Ann. § 11-7-15 (Rev.2004); Fielder v. Magnolia Beverage Co., 757 So.2d 925, 933 (Miss. 1999) (Mississippi law allows for determination of percentage of fault in a civil case).

      . Many of the facts related in our opinion come from the Navy’s investigative report and the depositions of Defendants. I note that the facts recited and conclusions reached by the Navy and Defendants have not been stipulated to, and a jury must consider and is free to give whatever weight it deems appropriate to the evidence presented. In re Extension, Enlarging of Boundaries of City of Laurel, 922 So.2d 791, 796 (Miss.2006) (“It is the sole responsibility of jurors to consider and weigh the evidence presented.”). I stress that my conclusion that this case must be dismissed due to the political-question doctrine is not a conclusion that military decisions did in fact contribute to S02 Ghane’s death, but is instead a conclusion that Defendants have presented enough evidence to raise a jury question regarding whether military decisions contributed to S02 Ghane’s death. Indeed, a jury might very well conclude that military practices played no part in S02 Ghane’s death. However, the political-question doctrine prohibits jury consideration of military decisions.

      . Harris, 724 F.3d at 474.


source: Caselaw Access Project

author: PIERCE, Justice, for the Court: DICKINSON, Presiding Justice,

license: Public Domain

text:
    Rosemary FINCH v. Stewart FINCH.
    No. 2011-CT-00306-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2014.
    Rehearing Denied May 15, 2014.

      Randolph, P.J., concurred in part and in result.
    Dickinson, P.J., filed opinion concurring in part and dissenting in part, in which Waller, C.J., and King and Coleman, JJ., joined and Chandler, J., joined in part.

      James L. Robertson, Jr., Alfred J. Lech-ner, Jr., attorneys for appellant.
    S. Christopher Farris, attorney for ap-pellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice, for the Court:

¶ 1. Rosemary Finch filed a complaint for separate maintenance, and her husband Stewart Finch responded with a counterclaim for divorce. In the course of their divorce proceedings, Rosemary and Stewart were required by Mississippi Chancery Court Rule 8.05 to provide a comprehensive financial ■ statement listing their individual incomes and expenses and their marital and nonmarital assets and liabilities.. Miss. Unif. Ch. Ct. R. 8.05.

¶ 2. The divorce trial was conducted before the Honorable James H.C. Thomas. At trial, it was established that Rosemary had been primarily responsible for handling the parties’ financial obligations and paying the bills. Stewart worked away from home as a tugboat captain in New York while Rosemary worked as a stay-at-home mom. In the judgment of divorce, the chancellor awarded Rosemary periodic alimony in the amount of $4,000 for thirty-six months, followed by $3,700 for forty-eight months, and finally $3,400 to be paid indefinitely. Stewart also was required to pay $7,000 for Rosemary’s attorneys’ fees.

¶ 3. Four months later, Rosemary filed a contempt petition claiming that Stewart had failed to pay alimony and child support, failed to obtain life insurance, failed to make COBRA payments, and failed to disclose his present address and telephone number. Stewart filed an answer and counter-petition for contempt, alleging that Rosemary had failed to pay the balance on a vehicle and failed to provide him with personal property from their marital home pursuant to the divorce judgment. Stewart also asserted that Rosemary must submit to a medical examination before he could obtain the life insurance. Later, Stewart filed an amended counter-petition for contempt and modification alleging that Rosemary had fraudulently represented to the chancery court that she had continued to pay all of the marital debts, just as she had through the marriage, but in reality, she had failed to make payments on an American Express credit card that was in his name. Based on this, Stewart asked the chancellor for a reduction in alimony from $4,000 to $2,500 to offset the increased costs resulting from her failure to pay. He additionally requested that the court declare his minor child emancipated because the child had refused to communicate with Stewart and had legally removed “Stewart” as his middle name.

¶ 4. In August 2010, a hearing was conducted before a specially appointed second chancellor, the Honorable Billy Bridges, in which Stewart asserted that Rosemary had incurred debts in his name of which he was unaware, and that those debts were not listed on Rosemary’s 8.05 financial statement. Testimony of the parties also revealed that Rosemary had been late in making payments on her vehicle; thus Stewart had paid the remainder of the debt on the car to keep his credit from becoming further damaged and to convey title to Rosemary pursuant to the divorce judgment. Stewart explained his attempts to communicate with his son and his son’s refusal to have a relationship with him. The child also provided testimony indicating his desire not to have a relationship with Stewart. At the close of the hearing, the chancellor requested both parties submit findings of facts and conclusions of law to further support their claims. However, a judgment was not entered by the chancellor prior to the expiration of his appointment.

¶ 5. Oral argument was held before the newly appointed third chancellor, the Honorable Deborah J. Gambrell, in January 2011, on a motion for enforcement of the prior judgment related to the August hearing and on a motion to strike. Based on the oral arguments presented, and on the record from the August hearing, the chancellor issued an opinion and judgment. The chancellor found that there had been a material change in circumstances since the original divorce decree had been entered. First, Stewart was ordered to convey title to the Camaro to his daughter, but the title could not be transferred until the debt was fully satisfied by his daughter. Stewart’s daughter ceased making payments on the vehicle, therefore, Stewart paid the $9,211.95 debt in order to protect his credit and to convey title. Second, the unpaid American Express debt and the undisclosed debts resulted in Stewart borrowing $38,000 to satisfy those debts. Third, Stewart suffered a reduction in income from $8,190.47 per month to $5,691.75 per month. Fourth, Rosemary now receives $728.00 per month in social security payments. Fifth, Sean. Finch displayed animosity toward his father, graduated from high school, was able to work a part-time job, and enrolled at a local junior college.

¶ 6. In the judgment, the chancellor sua sponte raised a Rule 60(b) motion finding Rosemary had committed a fraud upon the court. Miss. R. Civ. P. 60(b). Thus, no time limit existed to inhibit the court from modifying the divorce judgment.

¶ 7. The chancellor retroactively reduced alimony from $4,000 to $2,000 per month based on Rosemary’s failure adequately to disclose social security payments, additional debts, and a joint account with her mother, and Stewart having to pay for both Rosemary’s and his daughter’s vehicles in order to transfer title pursuant to the divorce judgment. In addition, Stewart was paying more than $800 per month to satisfy the additional marital debts. The chancellor retroactively reduced child support from $1,300 to $900 per month and further relieved Stewart of the obligation to pay any of his son’s educational expenses.

¶8. Rosemary appealed this judgment, and the Court of Appeals affirmed the chancery court. Rosemary then petitioned for writ of certiorari, which we granted, seeking review of the following issues:

I. Whether Rosemary was given proper notice that she committed fraud on the court.
II. Whether the third chancery judge used the clear and convincing evidence standard when finding Rosemary committed fraud.
III. Whether an appellate court should give deference to credibility findings made by a third chancery judge who neither saw nor heard the witnesses testify.
IV. Whether the third chancery judge’s findings were unsupported by the evidence, contrary to law, and deprived Rosemary of a fair trial.

¶ 9. Finding this case should be reversed and remanded for further factual findings regarding Stewart’s income and for a recalculation of alimony and child support under issue IV, it is not necessary for us to discuss Issue III.

STANDARD OF REVIEW

¶ 10. Factual findings made by the chancery court will not be disturbed if they are “supported by substantial evidence unless [we] can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Biglane v. Under the Hill Corp., 949 So.2d 9, 14 (Miss.2007) (quoting Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)). It is well settled that “[chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters.... ” Henderson v. Henderson, 757 So.2d 285, 289 (Miss.2000) (citing Hammett v. Woods, 602 So.2d 825, 827 (Miss.1992)).

¶ 11. Additionally, when this Court reviews motions for relief pursuant to Rule 60(b), reversal is warranted only when an abuse of discretion is found, because these motions are to be addressed at the sound discretion of the trial court. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984) (citing Clarke v. Burkle, 570 F.2d 824, 830 (8th Cir.1978)).

ANALYSIS

¶ 12. Mississippi Rule of Civil Procedure 60(b) states in part: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding. ...” Miss. R. Civ. P. 60(b). The rule further provides that “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.” Id.

¶ 13. This Court has not spoken to whether a judge may sua sponte raise a Rule 60(b) motion, but the United States Court of Appeals for the Fifth Circuit has held that “the motion requirement of Rule 60(b) can be satisfied on the district court’s own motion.” Baum v. Blue Moon Ventures, LLC 513 F.3d 181, 190 (5th Cir.2008); see McDowell v. Celebrezze, 310 F.2d 43, 44 (5th Cir.1962) (“The court could initiate [a Rule 60(b)(1) motion] on its own motion”); In re Jack Kline Co., 440 B.R. 712, 729 (S.D.Tex.2010) (“The Fifth Circuit has consistently held that the motion requirements of Rule 60(b) may be satisfied by the Court’s own motion”). The Fifth Circuit also has held that the court must provide to the parties adequate notice and an opportunity for a hearing on the matter. Baum, 513 F.Bd at 189. We agree with the Fifth Circuit.

I. Whether Rosemary was given proper notice that she committed fraud on the court.

¶ 14. Rosemary argues that she was blind sided by the judgment because she did not receive fair notice that the chancellor would consider issues not listed in Stewart’s counter-petitions, and as a result, she was unable to take discovery to defend against the allegations. However, the record reflects that, even though the alleged undisclosed debts were not brought forth in the initial petitions, they were brought forth during the August 2010 hearing, in Stewart’s subsequent proposed findings of facts and conclusions of law, and during the January 2011 oral arguments. In addition, Rosemary’s counsel made arguments during the January hearing as to why Rosemary’s actions were not fraud on the court.

¶ 15. Stewart did, in fact, raise the additional debts during the August 2010 hearing by entering as exhibits a credit report and statements from the creditors showing the amounts owed. Stewart testified that he was completely unaware of the debts at the time the parties completed their 8.05 financial statements.

¶ 16. Further, Rosemary’s claim that she was unaware that the newly appointed third chancellor would consider allegations outside what was stated in the petitions is without merit. The chancellor made the following statement after hearing the parties’ oral arguments:

You all have given me so much information prior to this oral argument this morning that I am astutely familiar with everything you are saying. I have read the entire file; I have gone to sleep reading transcripts at night, every iota of everything. I feel confident that I can go ahead and proceed, but I accorded you an oral argument. I want you all to be able to argue your motion, your proposed findings of fact. I am going to allow you all of the time you need, but I have read everything to the point that I think I know everybody’s position as it relates to the August hearing, as well as the Motion to Enforce, but if you feel that I am not fully up to speed with everything, you can go as long as you want.

The chancellor went on to explain that, in order to understand the situation before her, she had read everything thoroughly because of the cumbersome task of trailing previous orders and transcripts, which were issued under two different chancellors who previously had presided over the matter. The chancellor’s statements made clear that she considered the parties’ positions related to the arguments and testimony presented during the August hearing, which included the allegation of fraud. Further, the dissent argues that the hearing before the chancellor made no mention of the allegations of fraud upon the court, however, Rosemary’s attorney made arguments as to why Rosemary’s failed disclosures should not equate to a fraud upon the court. Rosemary’s attorney’s arguments, combined with the chancellor’s statements, as referenced above, make clear that all allegations from the August 2010 hearing were being considered and all parties were aware of this fact.

¶ 17. Rosemary also argues that Stewart became aware of the additional debts months before he filed his amended counter-petition for contempt; thus he was responsible for raising that issue in his petition. The facts support that Stewart did raise in his petition the issue of fraudulent misrepresentation to the court regarding the payment of one credit card debt, and that Rosemary was given ample time to prepare for her defense and did present a defense to those claims in her findings of facts and conclusions of law and during oral argument five months after the August hearing. Accordingly, we find this issue to be without merit, and the chancellor did not abuse her discretion in addressing the fraud sua sponte pursuant to Rule 60(b). Miss. R. Civ. P. 60(b).

II. Whether the third chancery judge used the clear and convincing evidence standard when finding Rosemary committed fraud.

¶ 18. In Trim v. Trim, this Court held that any party found to have deliberately filed a “substantially false” financial statement pursuant to Rule 8.05 will have committed a fraud on the court; thus no time constraints will limit the court’s ability to remedy such fraud. Trim v. Trim, 33 So.3d 471, 473 (Miss.2010). Here, the chancellor found that Rosemary dealt with all of the finances and “... was acutely aware of the lingering undisclosed indebtedness that would plague Defendant due to her failure to disclose the same.... ” The chancellor relied upon Trim v. Trim to conclude that Rosemary had committed a fraud upon the court, therefore the divorce judgment was modifiable in order to correct the fraud. Trim, 33 So.3d 471 (Miss. 2010).

■¶ 19. Rosemary asserted that the chancellor failed to apply the clear and convincing standard when determining that the facts supported a finding of fraud on the court. Further, Rosemary contended that this Court’s ruling in Trim does not mean that every incorrect Rule 8.05 financial statement filed equated to a fraud upon the court, and regardless, no credible evidence existed to support that Rosemary intended to commit fraud.

¶ 20. We find no merit to Rosemary’s claim that the chancellor failed to apply the clear and convincing standard. Rosemary provided that the chancellor never specifically stated the standard of proof, which is correct, but the judgment clearly reflects the chancellor’s application of the clear and convincing standard. Further, the record before us supports that evidence existed to support the chancellor’s ruling. Biglane, 949 So.2d at 14 (citing Cummings, 681 So.2d at 100). The chancellor determined that it was clear that Rosemary knew of the existence of the additional debts, her access to additional bank accounts, and her entitlement to social security benefits, and that those disclosures prevented the court from equitably dividing the assets and liabilities of the marriage.

¶ 21. Before the divorce trial, a temporary order was entered requiring Stewart to pay $4,500 per month to Rosemary for alimony and child support. The order stated that both parties could make credit card payments on the cards issued in their own name but that no further charges should be made to the cards. Rosemary stopped paying the American Express bill and all of the purported undisclosed debts at that time. Stewart admitted to being aware of the American Express debt but stated that such debt was paid through Regions Bank. The divorce judgment stated that Rosemary’s alimony took into consideration the payoff of the Wells Fargo and Regions debts by the plaintiff. Stewart stated that his interpretation of the judgment meant that Rosemary was to pay all of the debts through Regions, including the American Express credit card debt. The record shows that Rosemary had individual debt through Regions, but other than Stewart’s testimony, no verification can be found that the American Express debt was through Regions as well.

¶22. However, nothing in the record undermines that Stewart was unaware of the remaining debts. Rosemary claimed to be unaware of an address to send the debt collection notices to, but stated she informed the credit companies to send the statements to his work address. However, the parties did communicate via email. Exhibits were submitted showing the following additional debts totaling $18,438.59: (1) Oreck $948, (2) Sam’s Club $6,447.62, (8) Chase $6,331, (4) Best Buy $4,711.97. Stewart also submitted his own statement of expenses and debts which included all of the above debts as undisclosed with an additional Citi debt of $8,503. Stewart marked the Citi debt as recently discovered but submitted no supporting documentation.

¶ 23. It was never an issue whether Rosemary was aware of these debts. Rosemary’s testimony supports that she knew of the debts and chose to list only some of the debts that were listed solely in Stewart’s name. Although mere nondisclosures alone do not rise to the level of fraud on the court, Rosemary’s actions rise to the level of fraud by encompassing more than just mere nondisclo-sures. The ruling in Trim clearly states that simply failing to disclose essential facts to the proceedings to the adverse party or the court does not rise to the level of fraud. Id. at 477-78 (citing Kerwit Med. Prods., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n. 8 (5th Cir.1980)). There must be a finding that the disclosure was intentional. Trim, 33 So.3d at 478. Additionally, Rule 8.05 states that a violation of the rule results in contempt of court if no just cause exists to support the violation. Miss. Unif. Ch. R. 8.05. The elements of intentional or fraudulent representation are as follows:

(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

Trim, 33 So.3d at 478 (citing McCord v. Healthcare Recoveries, Inc., 960 So.2d 399, 406 (Miss.2007)).

¶ 24. Here, testimony by Rosemary states that she paid the bills since Stewart worked away from home. Both of the parties’ 8.05 financial statements list Rosemary as the person who paid for the debts that are listed. Rosemary’s financial statement listed debts that are in her name alone, in Stewart’s name alone, and in both their names. Clearly, Rosemary chose to list only some of the debts that were solely in Stewart’s name. Stewart’s testimony supports that he was unaware of these debts, had moved from the marital home where the notices were being mailed, and was promptly approved for a loan to pay all of the debts when he became aware of their existence. As a result, Stewart was injured by the chancellor’s inability to equitably divide the marital assets and liabilities during the divorce judgment and was forced to incur additional debt to pay for the newly discovered debt. For these reasons, the dissenting opinion is farfetched by concluding that no evidence exists to support a finding of fraud.

¶ 25. It is important to note that the chancellor also concluded that it was clear that Rosemary had failed to disclose two additional bank accounts and her entitlement to receive social security benefits. Rosemary argues that the chancellor disregarded her testimony that she was unaware of being named on her mother’s account, that she neither withdrew from nor deposited into the account, and that she did not begin receiving social security until six months after the divorce trial. However, nothing from the record indicates that the chancellor disregarded Rosemary’s testimony when considering those issues, thus we will not disturb the chancellor’s findings.

¶ 26. Under the facts of this case, we find the chancellor’s decision was based on clear and convincing evidence, and substantial credible evidence exists to support that Rosemary committed a fraud upon the court by not revealing to the court or Stewart the existence of the additional debt. As a result, Stewart’s monthly expenses have substantially increased. Although the chancellor failed to list specifically the elements of intentional or fraudulent representation in her judgment, the chancellor, as the finder of fact, exercised her discretionary powers to consider the credibility of differing testimony and conflicting evidence, and ample evidence existed to support that the elements were met. Trim, 33 so.3d at 479. Accordingly, there is no support for this issue.

III. Whether the third chancery judge’s findings were unsupported by the evidence, contrary to law, and deprived Rosemary of a fair trial.

A. Stewart’s Income

¶ 27. Rosemary argues that the first chancellor entered the divorce judgment based on Stewart’s income being $120,000, when his actual reported income was $150,000. Further, testimony before the second chancellor revealed that Stewart’s income in 2010 was already significantly higher during the first six months of that year based on Stewart working longer hours.

¶ 28. The evidence of Stewart’s income presented at the August 2010 hearing included Stewart’s 2009 tax return, bank statements for the end of 2009 through the beginning of 2010, and direct deposit sheets for May, June, and July of 2010. The chancellor relied upon the decrease in monthly income reflected on the May, June, and July direct deposit sheets, but failed to consider the year to date income, which reflected an increase in payments during the earlier part of the year. Stewart did testify that his income was greater during the beginning of 2010 due to working more hours. A review of the record shows that Stewart’s income fluctuates from year-to-year. Accordingly, this case requires reversal for a further factual determination regarding whether Stewart’s income had declined so that the court can properly determine the appropriate amount of child support and alimony to be awarded.

B. Child Support

¶ 29. The chancellor retroactively reduced Stewart’s child support back to the month when Sean testified indicating his desire not to have a relationship with his father.

¶ 30. “In child support modification proceedings ... the chancellor is accorded substantial discretion and is charged to consider all relevant facts and equities, to the end that a decree serving the best interests of the children may be fashioned....” A.M.L. v. J.W.L., 98 So.3d 1001, 1016 (Miss.2012) (quoting Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983)). Each time child support payments become payable, those payments vest in the child. A.M.L., 98 So.3d at 1017. Further, “[a]ny order for support of minor children ... shall not be subject to a downward retroactive modification.” Miss.Code Ann. § 43-19-34(4) (Rev.2009). If downward modification is warranted, reductions become effective on the date of the judgment ordering modification. A.M.L., 98 So.3d at 1017 (citing Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990) (citations omitted)).

¶ 31. Therefore, the chancellor erred in allowing a retroactive downward modification to Stewart’s child-support obligation dating back to the August 2010 hearing. Thus, Stewart was required to continue $l,300-per-month payments until the judgment ordering modification was entered in February of 2011. See Cumberland, 564 So.2d at 847; Thurman v. Thurman, 559 So.2d 1014, 1016-1018 (Miss.1990); Brand v. Brand, 482 So.2d 236, 237 (Miss.1986); Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984); Hambrick v. Prestwood, 382 So.2d 474, 476 (Miss.1980).

¶ 32. Rosemary also argued that Stewart ceased making child-support payments in August 2010; thus he should be required to pay interest on those months that he did not pay. We agree. This Court consistently has held that interest accrues on unpaid child-support payments at the time each payment becomes due. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992) (citing Brand, 482 So.2d at 238); see also Rubisoff v. Rubisoff, 242 Miss. 225, 235, 133 So.2d 534, 537 (Miss. 1961).

¶ 33. The chancellor determined that it was in Sean’s best interest not to render him emancipated, thus requiring Stewart to continue paying child support, because of the clear adult influences seeking to encourage the demise of Stewart’s and Sean’s relationship. Additionally, the $l,300-per-month child support was ordered pursuant to an agreement of the parties in their consent to adjudicate, and cannot be modified without a finding of a material change in circumstances, which were not foreseeable prior to the time of the agreement. Varner v. Varner, 666 So.2d 493, 497 (Miss.1995); Thurman, 559 So.2d at 1017; Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990). This Court has said that modification is not warranted based on the diminishing financial ability of the parent if his position has been worsened voluntarily. Varner, 666 So.2d at 497 (citing Parker v. Parker, 645 So.2d 1327, 1331 (Miss.1994)).

¶ 34. Here, the chancellor seemingly based the continuance of child support on Sean’s attendance in school and on a minimum GPA requirement, because Sean, now age 18, would be rendered emancipated without remaining in school. Miss.Code Ann. § 93-ll-65(8)(b)(i). The judgment further stated that child-support obligations also will terminate when any other elements are met, rendering Sean emancipated, and that Stewart was relieved of any obligations to pay college expenses. Rather than ruling Sean emancipated, the chancellor eliminated Stewart’s requirements to pay college expenses based on the deterioration of the father-son relationship and Sean’s desire not to have any relationship with Stewart, but required the continuance of child support.

¶ 35. This Court has provided that a parent’s obligation to pay for his or her child’s college education is not absolute, because the court must consider whether the extra financial obligation is warranted based on the child’s “aptitude and qualifications for college,” and the child’s attitude toward and relationship with the parent. Hambrick v. Prestwood, 382 So.2d 474, 477 (Miss.1980); see Caldwell v. Caldwell, 579 So.2d 543, 548 (Miss.1991) (a child may forfeit receiving support from a noncustodial parent when the child’s actions are clear and extreme). Therefore, the chancellor did not err in finding that Stewart was no longer required to pay for Sean’s college expenses.

¶ 36. However, the chancellor erred in requiring Sean to maintain a “C” average to continue receiving child support, because child-support modifications are to be considered in light of the best interest of the child, including a determination of the parent’s ability to provide for those needs, not the child’s ability to prove worthy of support. Wallace v. Wallace, 965 So.2d 737, 742 (Miss.Ct.App.2007) (citing Tedford, 437 So.2d at 417; Caldwell, 579 So.2d at 548 (emphasis added)). Further, both parents are to be held responsible for the “care, custody, and maintenance of the child of the marriage.” 4 Miss. Practice, Encyclopedia of Miss. Law § 28:17 (2001). For these reasons, this judgment is reversed and the case remanded for the chancellor to determine the appropriate amount of child support to be awarded until Sean is ruled emancipated.

C. Alimony

¶ 37. Rosemary argues that the chancellor did not have the authority to reduce her alimony retroactively to the date of the August 2010 hearing. This Court has held that alimony may be reduced retroactively at the discretion of the chancellor to the date the petition to modify was filed. Shearer v. Shearer, 540 So.2d 9, 12 (Miss.1989) (citing McHann v. McHann, 383 So.2d 823, 826 (Miss.1980)); see also Austin v. Austin, 981 So.2d 1000, 1006-1007 (Miss.Ct.App.2007). Accordingly, we find this issue to be without merit, because Stewart first requested that the court modify Rosemary’s alimony in June 2010.

CONCLUSION

¶ 38. This Court finds that the chancellor did not abuse her discretion by modifying the judgment of divorce sua sponte pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure. Further, substantial credible evidence existed to support that Rosemary committed a fraud upon the court by clear and convincing evidence; therefore, the chancellor did not err in determining the same. However, this judgment is reversed and the case remanded to the Chancery Court of Lamar County, Mississippi, for further factual determinations concerning Stewart’s income and the amounts that should be ordered for child support and alimony consistent with this opinion.

¶ 39. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., KING AND COLEMAN, JJ.; CHANDLER, J., JOINS IN PART.

DICKINSON, Presiding Justice,

concurring in part and dissenting in part:

¶ 40. The chancellor — after reading a transcript of a hearing that took place before a previous chancellor, and that had nothing to do with fraud — decided that Rosemary Finch previously had committed a fraud upon the court by failing to report on her Rule 8.05 financial disclosure form that her husband, Stewart Finch, had some credit card debt. Never mind that Stewart also failed to disclose it. In my judgment, the chancellor’s finding of fraud and the order of sanctions were erroneous. Accordingly, I concur in part and dissent in part with the plurality opinion.

Violation of due process and simple fairness

¶ 41. First, this issue came out of left field. No party ever filed a motion asking the chancellor to find that Rosemary had committed fraud on the court. No party ever argued that Rosemary had committed a fraud upon the court. And the chancellor gave no notice — ever—that she would, for the first time, take the issue up in her final order. Never has any chancellor— with no notice to the parties and no opportunity to submit evidence on the issue— been allowed by this Court to find that a party committed fraud upon the court, and to issue sanctions.

¶ 42. At the beginning of the last hearing held in this litigation, the chancellor— after stating the purpose of the hearing— stated that “no additional claims or allegations are being made at this time.” The parties agreed, specifying that the only matters to be taken up were Rosemary’s Motion for Enforcement of a Judgment and Stewart’s Motion to Strike. No one mentioned any issue related to Rule 60(b) relief for fraud upon the court.

¶ 43. The truth is, Stewart never filed any motion or other pleading alleging Rosemary had committed fraud upon the court; and prior to blindsiding Rosemary at oral argument, he never made any argument that Rosemary’s failure to report his credit card debt on her Rule 8.05 financial statement amounted to fraud on the court. And, as stated above, the chancellor — with agreement of all parties — specifically limited the issues to be argued, and those issues did not include anything to do with fraud or the Rule 8.05 issue.

¶ 44. No witnesses testified at the oral argument, and Rosemary was never put on notice that the Rule 8.05 issue would even be considered. This comports neither with due process nor my view of simple fairness in the judicial process.

¶ 45. With respect, I cannot agree with the plurality’s conclusion that Stewart’s mere mention in his proposed findings of fact and conclusions of law (which, by the way, was not filed until after the evidentia-ry hearing, and which was completely unrelated to any claim of fraud upon the court) was sufficient to relieve him of the obligation to file a motion, or to relieve the chancellor of the obligation to provide notice and a hearing on the matter, before awarding sanctions. And I certainly cannot join the plurality’s unreasonable expectation that Rosemary — with no notice whatsoever, and no opportunity to defend herself — simply should have assumed the chancellor would find she had committed fraud upon the court.

¶ 46. While I respect and appreciate our chancellors and the difficult work they are required to do, the day will not come when I will agree to affirm a finding of fraud against a party who was never put on notice of any fraud allegation and never given an opportunity to defend it. A chancellor’s discretion does not, in my view, reach that far.

No evidence to support fraud

¶ 47. There is no such thing as accidental fraud, that is to say, for an act to be fraudulent, it must be intentional. The chancellor who found that Rosemary committed fraud for failing to disclose Stewart’s credit card debt, has no evidence from the record to suggest why she did so. She took no evidence on the issue.

¶ 48. Not every failure to disclose information on a Rule 8.05 disclosure statement results in fraud. This Court has recognized that “mere nondisclosures to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Instead,

relief based on “fraud upon the court” is reserved for only the most egregious misconduct, and requires a showing of “an unconscionable plan or scheme which is designed to improperly influence the court in its decision.”

¶ 49. Where is the evidence of a “plan or scheme”? It is not in the record, nor will you find it discussed in the plurality opinion. To the contrary, the record clearly discloses that, rather than attempting to gain an advantage by misleading the chancellor about financial matters, Rosemary chose not to pursue the chancellor’s clearly erroneous finding that Stewart’s income was $121,000, when it actually was $150,000. Both the record and the majority opinion are void of any hint of evidence to support fraud. And all of this is in the context of almost $800,000 in liabilities.

¶ 50. One final point concerning the plurality’s statement that “nothing in the record undermines that Stewart was unaware of the remaining debt.” This provides the only example I have seen where a finding of fraud has been predicated upon the accused’s failure to submit evidence that he or she did not commit fraud.

¶ 51. A finding that a party has committed fraud upon the court is not a trivial matter, and Rosemary should have been afforded notice of this serious claim against her, and an opportunity to defend against it. Because the chancery court failed to do so here, and because the plurality fails to correct the error, I would also reverse both the chancellor’s finding that Rosemary committed a fraud upon the court, and the award of sanctions.

WALLER, C.J., KING AND COLEMAN, JJ., JOIN THIS OPINION. CHANDLER, J„ JOINS THIS OPINION IN PART.

      . Mississippi Code Section 93—11—65(8)(b)(i) states: "Unless otherwise provided for in the underlying child support judgment, the court may determine that emancipation has occurred and no other support obligation exists when the child discontinues full-time enrollment in school having attained the age of eighteen (18) years....”

      . Trim v. Trim, 33 So.3d 471, 477-78 (Miss.2010) (quoting Kerwit Med. Prods. v. N & H Instruments, Inc., 616 F.2d 833, 836 n. 8 (5th Cir.1980)).

      . Trim, 33 So.3d at 477-78 (quoting Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir.1989) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.1978))).


author: DICKINSON, Presiding Justice,

text:
    James Marco FERGUSON a/k/a James Ferguson a/k/a James M. Ferguson v. STATE of Mississippi.
    No. 2013-KA-00114-SCT.
    Supreme Court of Mississippi.
    Feb. 6, 2014.
    Rehearing Denied April 10, 2014.

      Office of State Public Defender by Benjamin Allen Súber, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. In this aggravated-assault conviction, James Marco Ferguson challenges the sufficiency of the State’s evidence that he used a knife during the assault, the trial court’s denial of a proposed jury instruction on his competence to testify, and the trial court’s refusal to admit evidence of the victim’s drug use. Ferguson also raises ineffective assistance of counsel. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Katrina Barnes and Ferguson met in October 2010 and became friends. On March 22, 2011, Ferguson took Barnes and her son Jacob to McDonald’s, where Ferguson gave Barnes twenty dollars to pay for food, telling her to keep the change of approximately three dollars. Ferguson then took Barnes and Jacob home, informing them that he had to leave but would return shortly, which he did some time before 9:00 p.m.

113. Around midnight, as Barnes and Ferguson watched television, the doorbell rang. Ferguson refused to let Barnes answer the door, and then accused her of stealing his money and pushed her into a walk-in closet, demanding that she give him back his money. Ferguson then stabbed her in the head and face three times before the knife finally broke and fell to the floor. Ferguson hit Barnes in the head with her radio, then her blow dryer, and then her curling iron — all of which broke from impact.

¶4. Although Ferguson did not deny that he assaulted Barnes that night, he did deny that he stabbed her with a knife or that he hit her with any of the aforementioned objects. He admitted punching Barnes in the face with his fist, and he claimed the lacerations resulted from her broken glasses. Barnes testified that she lost consciousness during the attack. Her son found her the next morning and phoned the police.

¶ 5. The grand jury indicted Ferguson for aggravated assault, and the jury found him guilty. Ferguson, through appellate counsel, raises the following issues: (1) that the trial court erred in denying Ferguson’s motions for directed verdict and judgment notwithstanding the verdict; (2) that the trial court erred in refusing to grant one of his proposed jury instructions; and (3) that the trial court erred by refusing to admit into evidence drug paraphernalia found in Barnes’s apartment. Ferguson also has filed a pro se supplemental brief, alleging ineffective assistance of counsel.

ANALYSIS

The trial court did not err by denying Ferguson’s motions for a directed verdict or JNOV.

¶ 6. We review both the denial of a judgment notwithstanding the verdict (JNOV) and the denial of a directed verdict de novo. Both implicate the sufficiency of the evidence, and this Court will reverse a conviction “only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” This Court must “consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict.”

¶ 7. The grand jury indicted Ferguson for aggravated assault under Section 97-3-7(2)(a), which provides, in pertinent part, that:

[a] person is guilty of aggravated assault if he ... (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 8. Ferguson claims that the State presented insufficient evidence to support a finding that he assaulted Barnes with a deadly weapon. He concedes that Barnes testified that he assaulted her with a knife, and a police detective testified that he found a knife at the crime scene. But Ferguson argues that the State needed more than the victim’s testimony to establish that he used the knife, and that the lack of his fingerprints or DNA on the knife undermines Barnes’s testimony.

¶ 9. In Goff v. State, we held that “[a] lack of biological and fingerprint evidence does not preponderate against the verdict so as to sanction an unconscionable injustice.” And in Withers v. State, the appellant argued that a lack of conclusive physical evidence precluded his conviction for statutory rape, and therefore, the trial court committed reversible error by denying his motion for JNOV. We rejected Withers’s argument and stated:

Withers’[s] argument about a lack of conclusive physical evidence or eye witness testimony to the actual crime is based upon [an] incorrect assumption that the prosecution needed conclusive evidence in support, of a conviction. Withers is not entitled to give himself the benefit of inferences from alleged conflicts or gaps in evidence.

Likewise, we conclude that the State was not required to provide Ferguson’s DNA or fingerprints on the knife in order to present sufficient evidence to support his conviction for aggravated assault.

¶ 10. Also, it is well established that a person may be found guilty based on nothing more than the uncorroborated testimony of a single witness. Here, the State introduced more evidence than the uncorroborated testimony of a single witness. A police detective testified that he found a knife on the floor of the closet during his investigation. Dr. Couvillon, who performed Barnes’s initial medical evaluation, further corroborated Barnes’s testimony, opining that the lacerations on Barnes’s face were consistent with knife wounds.

¶ 11. Reviewing the evidence in the light most favorable to the jury’s verdict, we must conclude that the evidence presented at trial sufficiently supported a finding that Ferguson assaulted Barnes with a knife.

The trial court did not err by refusing to grant jury instruction D-3.

¶ 12. The trial judge denied jury instruction D-3, which read as follows:

The Court instructs the jury that the accused, is competent to testify as a witness on his own behalf, and that the testimony of James Marco Ferguson, should be considered as that of any other witness you have heard in this case and given such weight, faith, and credit you think proper.

Our well-settled standard of review of a trial judge’s decision to refuse certain jury instructions is abuse of discretion, and

jury instructions are to be read as a whole, with no one instruction to be read alone or taken out of context. When read together, if the jury instructions state the law of the case and create no injustice, then no reversible error will be found.”

¶ 13. Also, we have held that a defendant is

entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

¶ 14. Ferguson merely asserts without explanation that jury instruction D-3 was relevant, did not incorrectly state the law, was not covered elsewhere in the instructions, and was not without foundation in the evidence. This Court once held that, under certain circumstances, defendants were entitled to have juries instructed that they were competent to testify on their own behalf; but we have since overruled these cases. Indeed, we have stated that “defendants are not entitled to an instruction which informs the jury that the defendant is a competent witness in his own behalf.”

¶ 15. The defendant in Baker v. State argued that he was entitled to an instruction that he was a competent witness in his own behalf. We reasoned that:

competency as a witness [is] evident by [the defendant’s] appearance on the witness stand. If he had not been competent, he would not have been permitted to testify. There is no sound reason for a trial court to instruct a jury that any witness, including a defendant, is a competent witness. The jury, in its search for truth, is the sole judge of the worth and weight of the testimony of any witness, and should be free to make this judgment without instructions singling out or pointing to any particular witness stating such witness is competent.

¶ 16. The trial judge did not err by denying jury instruction D-3, which focused exclusively on Ferguson’s competency as a witness.

The trial court did not err by refusing to admit into evidence drug paraphernalia found in Barnes’s apartment.

¶ 17. We review the admission or exclusion of evidence at trial for an abuse of discretion, and “[a] trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, [this] Court will not reverse [the] ruling.”

¶ 18. In excluding from evidence a smoking pipe found in Barnes’s apartment, the trial judge concluded that the pipe was neither relevant nor probative and that it would only confuse the jury. Ferguson argues that the probative value of the pipe outweighed the possibility of confusing and/or misleading the jury, and he maintains that the pipe points to Barnes’s credibility and state of mind on the night of the attack.

¶ 19. Rule 401 of the Mississippi Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In other words, “[e]vidence is relevant if it has any tendency to prove a consequential fact.”

¶ 20. In Shields v. State, the Court of Appeals addressed whether the trial court properly excluded from evidence a chemical blood analysis indicating the amount of cocaine in the victim’s blood on the night of the attack. The court maintained, as Ferguson does here, that “the only possible relevance of [the victim’s] cocaine use would have been to support the contention that he was so impaired that his ability to accurately recall and relate the events of [the] shooting was cast in serious doubt.” Notably, however, the Court of Appeals agreed with the trial court and held that:

Absent some accompanying expert interpretive testimony, [evidence of such] is, to the average layman, essentially meaningless insofar as it touches on [the victim’s] observation and recall abilities. It, therefore, fails the test for “relevant evidence” set out in [Rule] 401 and is, therefore, rendered inadmissable by Rule 402.

¶ 21. While we find such evidence does pass the relevance test, we also find that, absent some measure of the effect of the cocaine (or, as here, the drug allegedly smoked in the pipe), the probative value of the evidence is minuscule. Also affecting the court’s assessment of the evidence was the fact that “[t]here was already substantial evidence before the jury of [the victim’s] abuse of cocaine on the day of the [attack]....” Consequently, the court determined that “[t]o the extent that the defense wanted to impeach [the victim’s] trustworthiness by this means ... it already had enough proof to make the attempt....”

¶22. In attempting to cast doubt on Barnes’s ability to accurately recall and relate the events that transpired on the night of the assault, Ferguson testified that he and Barnes had used drugs on the night in question, and his attorney repeated that point in his closing argument. As did the trial judge in Shields, the trial judge here permitted Ferguson to address the victim’s intoxication on the night in question by other means. In the context of the evidence, we find little probative value in a photo of the pipe. Accordingly, the trial judge did not err by excluding the pipe from evidence.

Ferguson’s claim of effective assistance of counsel must be addressed, if at all, in post-conviction-relief proceedings.

¶ 23. Ferguson also filed, pro se, a supplemental brief with this Court, alleging ineffective assistance of counsel. He argues that his attorney failed to call certain witnesses and make certain objections. This Court has stated that:

[I]neffective assistance of counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief.

Accordingly, we deny relief at this time on this issue.

CONCLUSION

¶ 24. The trial judge did not err by denying the Ferguson’s motions for JNOV or directed verdict, did not err by denying proposed jury instruction D-3, and did not err by refusing to admit into evidence the drug paraphernalia found in Barnes’s apartment. We also find that Ferguson’s ineffective-assistance-of-counsel claim should be denied without prejudice. Accordingly, we affirm.

¶ 25. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF LIFE, WITHOUT THE OPPORTUNITY FOR PAROLE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

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

      . Williams v. State, 971 So.2d 581, 586 (Miss.2007); White v. Stewman, 932 So.2d 27, 32 (Miss.2006).

      . Franklin v. State, 676 So.2d 287, 288 (Miss.1996) (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

      . Wetz, 503 So.2d at 808.

      . Miss.Code. Ann. § 97-3-7(2) (Rev.2006).

      . Goff v. State, 14 So.3d 625, 649 (Miss.2009).

      . Withers v. State, 907 So.2d 342, 352 (Miss.2005).

      . Id.

      . Doby v. State, 532 So.2d 584, 591 (Miss.1988); Brown v. State, 42 So.3d 540, 543 (Miss.2010).

      . Watkins v. State, 101 So.3d 628, 633 (Miss.2012) (citing Bailey v. State, 78 So.3d 308, 315 (Miss.2012) (internal quotations omitted)).

      . Smith v. State, 802 So.2d 82, 88 (Miss.2001).

      . Baker v. State, 391 So.2d 1010, 1012 (Miss.1980).

      . Outlaw v. State, 797 So.2d 918, 921 (Miss.2001) (citing Baker, 391 So.2d at 1012) (emphasis added); see also Johnson v. State, 452 So.2d 850, 854—55 (Miss.1984) (maintaining that defendants are not entitled to an instruction informing the jury that the defendant is a competent witness in his own behalf); Coleman v. State, 697 So.2d 777, 784 (Miss.1997),
        disagreed with on other grounds by Gates v. State, 936 So.2d 335, 338 (Miss.2006).

      . Baker, 391 So.2d at 1010 (Miss.1980).

      . Williams v. State, 991 So.2d 593, 597 (Miss.2008) (citing Brown v. State, 969 So.2d 855, 860 (Miss.2007)).

      . Shaw v. State, 915 So.2d 442, 445 (Miss.2005) (citing Jefferson v. State, 818 So.2d 1099, 1104 (Miss.2002) (quoting Fisher v. State, 690 So.2d 268, 274 (Miss. 1996))).

      . Miss. R. Evid. 401.

      . Hobbs Auto., Inc. v. Dorsey, 914 So.2d 148, 151 (Miss.2005) (citing Whitten v. Cox, 799 So.2d 1, 15 (Miss.2000)).

      . Shields v. State, 751 So.2d 476, 479-80 (Miss.Ct.App.1999).

      . Id. at 479.

      . Id. at 480.

      . Id. at 479.

        .Id.

      . Archer v. State, 986 So.2d 951, 955 (Miss.2008) (internal citations omitted).