source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    CITY OF MERIDIAN, Mississippi, Appellant v. Adam MEADORS, Appellee
    NO. 2015-CC-00767-COA
    Court of Appeals of Mississippi.
    12/06/2016
    Rehearing Denied May 2, 2017
    Certiorari Denied July 20, 2017

      WILLIAM WYATT SIMMONS, MATTHEW RICHARD WATSON, ATTORNEY FOR APPELLANT.
    DAVID H. LINDER, ATTORNEY FOR APPELLEE. •
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. This appeal results' from the Gity of Meridian’s termination of one of its police officers, Adam Meadors, for an inappropriate photo he posted on his Facebook account while on duty, which was found to be in violation of the City’s rules and regulations. The Meridian Civil Service Commission affirmed Meadors’s termination on appeal, but the Lauderdale County Circuit Court subsequently reversed the Commission’s findings and ordered the City to reinstate Meadors. Finding Meadors’s termination was made in good faith for cause and supported by the evidence, we reverse and render the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 5, 2013, Meadors, a police officer for the Meridian Police Department (MPD) since 2006, posted to his public Facebook page a photo depicting two chimpanzees laughing with the following caption: “Earlier today[,] the mayor and the chief of police had a meeting.” He commented on the photo, saying: “Something will probably be said, but I couldn’t resist.” After a few minutes, however, he removed the photo. Meadors was on duty at the time he posted the photo, even though he was at home on a meal break.

¶ 3. Meadors’s Facebook post was brought to the City’s attention) and the MPD conducted an internal-affairs investigation to determine whether the picture violated the City’s or MPD’s regulations. Meadors provided a statement on October 9,2013, acknowledging he “knew that posting the picture might offend some people,” but he explained that it was “meant to be a joke and not meant to be taken serious[ly] by anyone.” When later questioned by the investigator whether he was “thinking of” Meridian’s Mayor Percy Bland and Chief of Police James Lee, both African American, when he posted the photo, Meadors answered: “Yeah, that’s true, but I have friends on Facebook at other agencies] that might assume I was talking about other mayors and chiefs where they work.” He also admitted that he knew his friends in Meridian would assume he was referring to Mayor Bland and Chief Lee.

¶ 4. Meadors received a written notice of MPD’s intent to terminate him on October 14, 2013, signed by Chief Lee and Chief Administrative Officer Curt Goldacker, and he was placed on administrative leave. The notice charged Meadors with violating numerous sections of the MPD Code of Conduct, along with Civil Service Code Rule- 10.01(a)(B) and (C) (detrimental conduct). Although there was a line for Mayor Bland to sign the notice of termination, his signature was not on the document. Mea-dors responded on October 15, 2013, claiming that the posting on social media was done “on [his] own time” and “constitute^] free speech ... protected by the First Amendment to the United States Constitution.” Meadors was officially terminated on October 16, 2013: his termination letter was signed by Chief Lee.

¶ 5. Meadors filed an appeal with the Commission, requesting full reinstatement and back pay. At the appeal hearing, Mea-dors argued there was nothing in the photo to indicate that he was referring- to Mayor Bland and Chief Lee, and his termination violated his right to free speech. Meadors additionally argued that Mayor Bland, the appointing authority, did not sign his termination notice; which Meadors argued was a violation of Mississippi Code Annotated section 21-31-23 (Rev. ■ 2007). Mayor Bland, however, testified that he had verbally designated Chief Lee with the authority to proceed with Meadors’s termination.

Q. [D]id you properly authorize Chief Lee to issue a final notice of termination to Adam Meadors on October 16th, 2013?
A. Yes, I did designate Chief Lee.
Q. Were all the disciplinary actions that were taken in regard to Adam Meadors in regard to these .violations of October 2013 taken with your- full knowledge and consent as Mayor and appointing authority for the City of Meridian?
A. Yes. .

¶6. The Commission upheld the City’s firing of Meadors. Regarding his First Amendment claim, • the Commission concluded that there was no. “public concern interest in this speech or expression” and that Meadors’s Facebook post, “at best, ,.. was an expression ridiculing the May- or and Chief of Police’s humanity and[,] at worst[,] it was an expression of racial prejudice.” The Commission also determined that “[t]he law does not require that desig-nees be recognized in writing.” It did, however, admonish the City that, if the Mayor was going to continue, to delegate the.authority to sign such forms, he should “designate individuals with the authority he wishes them to possess in writing and that the forms used eliminate the Mayor’s name unless he intends to start signing them.”

¶7. On July 2, 2014, Meadors filed an appeal with the circuit court. Concluding that “there was no indication in the record that Mayor Bland was aware of or approved Meadors’s termination, other than the mayor’s testimony” at the Commission hearing, the circuit court reversed the Commission’s order and directed the City to reinstate Meadors on May 5, 2015. As this issue was dispositive of Meadors’s appeal, the circuit court did not address Mea-dors’s First Amendment argument.

¶ 8. The City appeals the circuit court’s judgment, arguing the circuit court “failed to apply the proper standard of review,” erroneously re-adjudicated the Commission’s “factual and credibility determinations,” and failed to address caselaw “factually analogous” to the instant case. Meador also brings an alternative claim on appeal, reasserting his First Amendment argument and requesting a remand on this issue if this Court finds the circuit court’s judgment warrants reversal.

¶ 9. Concluding that the circuit court erred in its findings, and that Meadors’s claim—that his right to free speech was violated—is without merit, we reverse and render the circuit court’s judgment.

ANALYSIS

I. Whether the circuit court failed to apply the proper standard of review.

¶10. The City argues that the circuit court failed to employ the appropriate standard of review and, instead, “improperly weighed and evaluated evidence and testimony that was previously determined by the Commission.” Section 21-31-23 governs the disciplinary process for persons employed in civil service and specifically provides that an appeal hearing “shall be confined to the determination of whether the judgment or order of removal, discharge, demotion, suspension!,] or combination thereof made by the commission, was or was not made in good faith for cause, and no appeal to [the circuit] court shall be taken except upon such ground or grounds.” Therefore, when reviewing a decision by the Commission on appeal, the standard of review is “whether or not the action of the Civil Service Commission was in good faith for cause.” Necaise v. City of Waveland, 170 So.3d 616, 618 (¶ 9) (Miss. Ct. App. 2015) (quoting City of Vicksburg v. Lane, 11 So.3d 162, 165 (¶ 10) (Miss. Ct. App. 2009)). “Intertwined with this question is whether or not there was substantial evidence before the Civil Service Commission to support its order[,] and whether the decision is arbitrary, unreasonable, confiscatory, and capricious.” Id.

¶ 11. The Commission deemed Mayor Bland’s testimony—that he verbally designated Chief Lee with appointing authority—to be credible and sufficient to uphold Meadors’s termination. But in reversing the Commission’s decision, the circuit court determined that “the evidence [was] conflicting as to whether the Mayor ever gave the proper designation to Chief Lee to terminate Meadors,” and it concluded there was no “proper designation by the Mayor to Chief Lee to effectuate the termination of [Meadors].”

¶ 12. We agree with the City that the circuit court did not employ the proper standard of review. As this Court observed in Renfro v. City of Moss Point, 156 So.3d 913, 917 (¶ 19) (Miss. Ct. App. 2014):

Courts are not empowered to supervise the intelligence, wisdom, or fairness of the governing authorities. [City of Jackson v. Froshour, 530 So.2d 1348, 1355 (Miss. 1988) ]. Similarly, we are prohibited from making credibility determinations of the evidence or testimony that was presented to the Commission. City of Laurel v. Brewer, 919 So.2d 217, 221 (¶ 15) (Miss. Ct. App. 2005). Substantial evidence has been defined as such evidence as a reasonable mind might accept as adequate to support a conclusion. Id.

Here, the circuit court made a “credibility determination” regarding the evidence it found “conflicting,” likely referring to the Mayor’s testimony that he designated authority to terminate Meadors, countered with the evidence presented by Meadors that the Mayor made a statement to a local news reporter that terminations have to go through the Mayor for his signature. The Commission expressly noted that “statements of public officials or political figures in news conferences are not law.” Further, the Commission heard the testimony, reviewed the evidence, and determined that there was cause for Meadors’s termination and “a good faith application of the disciplinary procedures.” While it advised the Mayor that future designations of authority should be in writing, the Commission evidently found the Mayor’s testimony that he gave verbal designation to Chief Lee credible.

¶ 13. Accordingly, we find merit to the City’s claim the circuit court did not employ the proper standard of review in this instance.

II. Whether the circuit court misinterpreted Eidt v. City of Natchez, 382 So.2d 1093 (Miss. 1980) in its findings.

¶ 14. Citing Eidt v. City of Natchez, 382 So.2d 1093 (Miss. 1980), the circuit court found the Mayor’s failure to sign Mea-dors’s termination notice to be dispositive in its decision to reverse the Commission’s order. In Eidt, the Mississippi Supreme Court held that section 21-31-23 “specifically allows for discharge ‘upon the written accusation of the appointing power,’ ” which was the City of Natchez’s mayor or board of aldermen. Id. at 1095 (quoting Miss. Code Ann. § 21-31-23). Since the city’s fire-department chief was the one who discharged the employee in Eidt, “without any authority or confirmation from Natchez’s appointing power under the statute,” the supreme court determined the employee should be reinstated. Id.

¶ 15. The City argues the circuit court misinterpreted Eidt, and failed to address the supreme court’s subsequent holding in Beasley v. City of Gulfport, 724 So.2d 883 (Miss. 1998), which distinguished Eidt. In Beasley, the supreme court considered the firing of the chief building official for the City of Gulfport. Id. at 884 (¶ 2). Louis Beasley received a termination notice on July 25, 1995, but although the original, hand-delivered letter of termination was not signed by Gulfport’s mayor, a copy of the letter later produced at the Commission hearing showed the mayor subsequently signed the document on July 27, 1995. Id. at 885 (¶ 11). Despite Beasley’s claim this signed notice was never mailed or received by him, the supreme court upheld the termination since the mayor, the appointing authority, had “confirmed” the termination. Id. at 886 (¶¶ 13, 16). The Beasley court expressly distinguished Eidt, noting the fire chief in that case had signed the discharge “without any authority or confirmation from the mayor[.]” Id. at (¶ 15) (emphasis added).

¶ 16. We find the City’s claim is supported by the caselaw and evidence. It is undisputed that Mayor Bland did not sign Meadors’s termination documents: thus, unlike Beasley, there is no written “confirmation” of the termination. However, May- or Bland testified during the Commission hearing that he “gave [Chief Lee] verbal authority to terminate Adam Meadors.”

Q. Okay. The notices that are already introduced into evidence are not signed by you. Did you discuss those notices with Chief Lee prior to them being delivered to Officer Adam Meadors?
A. Yes, I did.
Q. Specifically, did you discuss this matter with Chief Lee on or prior to October 13, 2013?
A. Yes, I did.
Q .... Did you properly authorize Chief Lee to issue the notice of intent to terminate to Officer Adam Meadors on October 13, 2013?
A. Yes, I did.
Q. And after reviewing [Meadors’s response,] did you properly authorize Chief Lee to issue a final notice of termination to Adam Meadors on October 16, 2013?
A. Yes, I did designate Chief Lee.[]

As in Beasley, although Meadors was given a notice that was not signed by the Mayor, there was evidence at the hearing, which the Commission credited, that Chief Lee had “both the authority from and confirmation of his actions by the appointing authority.” Therefore, the circuit court’s judgment should be reversed and rendered.

III. Whether Meadors’s termination violated his First Amendment rights.

¶ 17. As the First Amendment issue was not addressed by the circuit court, Meadors alternatively submits that the case should be remanded to address his claim that his termination violated his First Amendment right to free speech. The City responds that this issue is not ripe for review since the circuit court did not rule on the issue. However, as the Commission addressed this issue in its order, we will consider the claim on the merits.

¶ 18. “[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Therefore, the first inquiry in addressing this issue is “whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Id. at 418, 126 S.Ct. 1951.

¶ 19. The Commission determined “Failing to show any public concern interest in this speech or expression^] the First Amendment protection is not available to Meadors under these facts.” We find nothing erroneous in the Commission’s findings, as there was no evidence that Mea-dors’s posting of the photo addressed a public concern. In fact, Meadors testified that the reason he posted the photo was because he “thought it was funny.” Furthermore, although he denied the photo was racist, he admitted that he knew it would “ruffle some feathers.” As the Commission observed, the photo, at the very least, “ridicul[ed] the Mayor and Chief of Police’s humanity and[,] at worst[,] it was an expression of racial prejudice.” In an analogous scenario, the United States Court of Appeals for the Eighth Circuit rejected a police officer’s argument that his First Amendment right to free speech was violated when he received a thirty-day suspension for wearing “blackface” to a Halloween party attended by other off-duty officers. Tindle v. Caudell, 56 F.3d 966, 968-73 (8th Cir. 1995).

While [Kevin] Tindle argues generally that his appearance at the party in blackface is “speech on a matter of public concern,” he does not explain why or specify any particular matter of public concern. Whether an employee’s speech addresses a matter of public concern is “determined by the content, form, and context of a given statement, as revealed by the record as a whole.” Tindle does not claim he intended to comment on any issue of interest to the public. He instead intended simply to entertain the other officers and their guests at the party by wearing an amusing costume. Amusing other guests at a private party with no showing of any intended message is not speech on a matter of public concern.

Id. at 970. Moreover, as the United States Court of Appeals for the Second Circuit has observed:

[T]he [government may, in some circumstances, legitimately regard as “disruptive” expressive activities that instantiate or perpetuate a widespread public perception of police officers ... as racist .... Police officers ... are quintessentially public servants. As such, part of their job is to safeguard the public’s opinion of them, particularly with regard to a community’s view of the respect that police officers ... accord the members of that community. ... Where a [g]overnment employee’s job quintessentially involves public contact, the [government may take into account the public’s perception of that employee’s expressive acts in determining whether those acts are disruptive to the [government’s operations.

Locurto v. Giuliani, 447 F.3d 159, 178-79 (2d Cir. 2006).

¶ 20. While Meadors disclaims racial intent, “[t]o suggest that a human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the mere unflattering: it is degrading and humiliating in the extreme. The use of the term ‘monkey and other similar words have been part of actionable racial harassment claims across the country.” Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006) (citing Jeffries v. Metro-Mark Inc., 45 F.3d 258, 260 (8th Cir. 1995) (plaintiff was called a “monkey”): Webb v. Worldwide Flight Serv. Inc., 407 F.3d 1192, 1193 (11th Cir. 2005) (same): Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182 (4th Cir. 2001) (same: also “dumb monkey”): Daniels v. Pipefitters’ Ass’n Local Union No. 597, 945 F.2d 906, 910 (7th Cir. 1991) (plaintiffs were called “porch monkeys” and “baboons”). Further, in Williams v. Phillips 66 Co., 72 F.Supp.3d 938, 953 (S.D. Ill. 2014), the district court found that the posting of a “picture of a monkey with the names of two African-Americans written on it” was “without a doubt, motivated by racial animus.”

¶21. No matter his intent, Meadors’s posting was inherently racially insensitive and/or demonstrated insubordination toward his superiors. The MPD’s Code of Conduct expressly provides that an employee “shall not express any prejudice concerning ... race” and “shall not publicly criticize or ridicule the Police Department ... by speech, writing ... or other expression, where such speech, writing ... or other expression is defamatory[.]” Moreover, the Civil Service Code Rule Section 10.04(a)(5) states an employee may be dismissed for “being offensive or antagonistic towards supervisors!!.]”

¶22. We agree with the Commission’s finding that Meadors’s termination oyer his Facebook post did not constitute a violation of his right to free speech. Mea-dors was' not speaking on a matter of public concern, and his Facebook post could well have been viewed by the public as racist and by his superiors as “offensive or antagonistic.”

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT ' WITHOUT SEPARATE WRITTEN OPINION.

      . The City also filed a motion to stay the execution of judgment pending an appeal, which the circuit court granted on June 15, 2015,

      . Counsel for Meadors objected to this questioning on the basis that the authorization was not in writing. The Commission overruled Meadors’s objections.


author: WILSON, J.,

text:
    Marci Sklar TEAL, Appellant v. Elaine JONES, Appellee
    NO. 2015-CA-00259-COA
    Court of Appeals of Mississippi.
    01/03/2017
    Rehearing Denied May 2, 2017
    Certiorari Denied August 3, 2017

      CHUCK MCRAE, GALE NELSON WALKER, SETH CLAYTON LITTLE, Jackson, CHRISTOPHER ANTHONY BAMBACH, ATTORNEYS FOR APPELLANT
    MICHAEL JAMES MALOUF JR., Jackson, LYNEILLE COUNTISS WILLIAMS, Madison, WILLIAM EDWARD BALLARD, Jackson, JAMES MATTHEW LENDERMAN, ATTORNEYS FOR APPELLEE
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. John Teal and Marci Sklar Teal were married on December 26, 2005. The couple divorced on June 2, 2008, on the ground of irreconcilable differences. After their divorce, Marci learned that John had a romantic relationship with Elaine Jones (Lainey) during their marriage. As a result, she filed a complaint for alienation of affections against Lainey in the Circuit Court of Warren County. At the close of trial, the jury found in favor of Marci on her claim for alienation of affections but awarded her no damages. Thereafter, Marci filed a motion for a new trial, judgment notwithstanding the verdict (JNOV), and additur, which the circuit court denied.

¶2. On appeal, Marci argues that the trial court erred by instructing the jury that she had destroyed evidence and that the jury should presume that the missing evidence was unfavorable to her. She also challenges a series of evidentiary rulings concerning post-separation and post-divorce events and her subsequent bankruptcy. We find no abuse of discretion in the trial court’s decisions to admit or exclude evidence, but we hold that the spoliation instruction was erroneous and that a new trial is required. Accordingly, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 8. John met Marci in 2001. Marci was working as a bartender at the Cypress Cove Marina in Venice, Louisiana, and John was the captain of a charter fishing boat. They began dating and eventually lived together. Marci had a son, Hunter, from a previous marriage. Hunter was three years old when Marci and John began dating.

¶ 4. In 2004, John, Marci, and Hunter moved to Texas for John to captain Dan Murphy’s fishing yacht. As the captain of Murphy’s yacht, John spent most of the year traveling to various fishing tournaments in places such as Bermuda and the Bahamas. As a result, John was home only three or four months out of the year. John and Marci married on December 26, 2005. After they married, John, Marci, and Hunter moved to Rolling Fork, Mississippi, and John continued to captain Murphy’s yacht. In January 2007, John and Marci purchased the Onward Store, a historic country store in Rolling Fork. Marci operated the store, and John assisted when he was home.

¶ 5. In April 2006, John met Lainey at a fishing tournament in the Bahamas. The next day, John, speaking in Italian, told Lainey that he had fallen in love with her at first sight. Lainey testified that John “chased” her as they continued to see each other at fishing tournaments, while John testified that Lainey pursued him. In any event, Lainey knew that John was married, but she admitted that the two became romantically involved in July 2006 and that their relationship continued until 2009.

¶ 6. In mid-2007, Marci “felt something was off’ in her marriage and accused John of having an affair, but John denied that he was having an affair and made her think that she was “crazy” for even suggesting the idea. Marci began seeing a psychiatrist in the latter part of 2007, at least in part because of her concerns about her marriage.

¶ 7. On January 14, 2008, John was on a hunting trip with Lainey and others when Marci called him because she needed to discuss issues related to the Onward Store. The two argued, and John told her that he did not love her and wanted a divorce. John did not return home after the conversation. John and Marci filed for an irreconcilable differences divorce on or about April 1, 2008, and a final judgment of divorce was entered on June 2, 2008. As part of their property settlement agreement, John agreed to pay Marci $25,000. Lainey ultimately provided John with $25,000 so that he could make the payment.

¶ 8. After John asked for a divorce, Marci began dating and communicating with other men via Facebook, email, phone, and text messages. Days before her divorce was final, Marci went on her first date with Gene Barnett. Gene and Marci continued to date after her divorce was final.

¶ 9. On May 27, 2008, Lainey purchased approximately 200 acres of property near Edwards, Mississippi. Lainey and John referred to the property as “Wildwood.” Lai-ney purchased the property “for John to be closer to Hunter and also as a hurricane hiding hole for [her] and [her] friends and family.” According to Lainey, she and John first discussed buying land together when John visited her in Kiln, Mississippi, in early 2008. During the trip, Lainey told John that she did not “need a piece of paper to be married,” but John insisted that he would “make an honest woman out of’ her.

¶ 10. Beginning in September 2008, John and Marci reconciled for a few months, although, unbeknownst to Marci, John was also still in a relationship with Lainey. During their reconciliation, Marci discovered that John had a romantic relationship with Lainey while they were married. Marci testified that in the spring of 2009, John left his email account open on her computer at the Onward Store, and she found emails that made clear that he had been having an affair with Lainey. After she learned of the affair, Marci ended her reconciliation with John. On June 9, 2010, Marci filed a complaint against Lainey in circuit court for alienation of affections.

¶ 11. On September 2, 2011, Marci filed for chapter 7 bankruptcy. As part of her bankruptcy filings, Marci listed her complaint against Lainey in her Statement of Financial Affairs, but she did not list the claim as an asset in her Summary of Schedules. As a result, the bankruptcy was administered as a “no asset” case, and an order discharging Marci’s debts and closing her bankruptcy was entered on December 21, 2011.

¶ 12. On September 19, 2012, the bankruptcy trustee filed a motion to reopen Marci’s bankruptcy to pursue the complaint as an asset of her estate. The bankruptcy court subsequently reopened the case and entered an order approving the employment of Marci’s attorney, Chuck McRae, as special counsel for the trustee.

¶ 13. On August 22,2012, Lainey’s attorney sent Marci and her attorney a letter regarding her obligation to preserve electronically-stored evidence. On December 10, 2012, Lainey requested ■ that Marci “produce for inspection any and all computers, in [Marci’s] possession[,] custody or control, that [Marci] used to communicate electronically with John ... from the date of [their] marriage to the present.” At Marci’s deposition on February 27, 2013, she testified that she regularly deleted emails from John (and others) throughout the course of her marriage, so she was no longer in possession of any emails that they exchanged during their marriage. She also testified that she had thrown away her personal laptop a year and a half earlier because it was ruined after coffee was spilled on' it. Finally, Marci testified that the desktop computer that she had used at work at the Onward Store was in storage. Her former boyfriend, Gene Barnett, had rented a storage unit for the store’s equipment after the store closed.

¶ 14. On March 4, 2013, Lainey filed a motion to compel production of Marci’s computers. On April 2, 2013, the court held a hearing on Lainey’s motion, at which time the parties’ attorneys revealed that they had learned that Barnett had sold the desktop computer at some point in 2012. Lainey’s. counsel stated that he needed to inspect the computer because.it was his “understanding that as long as the e-mail has been viewed on a particular computer screen at some point in time, then there is a forensic software program that you run on the computer and it is a high probability that you can pull it off and get a copy 'of it.” At the conclusion of the hearing, the court ordered Marci to produce all emails between her and John and any computers in her possession or control or, alternatively, provide a detailed explanation as to why the same could not be produced. The court reserved ruling on Lainey’s request that the jury be instructed on spoliation at trial.

¶ 15. On April 17, 2013, Marci filed a memorandum with the court explaining that Barnett took possession of equipment from the Onward Store, including the desktop computer that she used, after the store went out of business. Barnett placed the computer and other equipment in a storage unit and advertised it for sale on Craigslist, beginning on July 15, 2012. By the end of July, Barnett had sold the computer for $300. Marci’s memorandum noted that the sale occurred before Lai-ney’s counsel requested access -to the computer. The memorandum also stated that Marci’s attorney had contacted Marci’s email provider (MSN) in an attempt to retrieve any emails between Marci and John, but MSN advised that it retained deleted emails for only sixty days.’ On November 20, 2013, the court entered - an order in which it continued to reserve a ruling on a jury instruction on spoliation.

¶ 16. The case proceeded to a two-day trial in September 2014. During the jury instruction conference, Lainey offered proposed instruction 13-A on spoliation. The proposed instruction stated:

The Court instructs the jury that the Plaintiff has destroyed evidence in this case. The Plaintiff has destroyed emails between herself and John Teal. The Plaintiff has also destroyed her computer while this lawsuit was .pending. Therefore, a presumption is now raised that the emails and the computer contained evidence that would have been unfavorable to the Plaintiff. This presumption of unfavorably is not solely confined to the destroyed emails and computer. You are free to draw, a general negative inference against the Plaintiff because of her act of destroying evidence.

¶ 17. Marci objected to the instruction, arguing that there was no evidence of spoliation. The court ruled that the jury-should be instructed on spoliation, but the court struck the final two sentences of the proposed instruction and gave the instruction as modified.

¶ 18. The jury returned a verdict finding in favor of Marci on her claim for alienation of affections. However, thé jury awarded Marci $0 in damages. A final judgment was entered on the verdict on September 15, 2014. Marci then filed a timely motion for a new trial, JNOV, and additur. The court subsequently denied Marci’s motion, and she appealed.

DISCUSSION

¶ 19. On appeal, Marci raises six issues, which we reorder and renumber as follows: (1) whether the circuit court erred by giving proposed jury instruction 13-A on spoliation; (2) whether the circuit court erred by excluding evidence related to John’s relationship with Lainey after his divorce from Marci; (3) whether the circuit court erred by admitting evidence of Marci’s relationships with other men between the date of her separation from John and the date of their divorce; (4) whether the circuit court erred by admitting evidence of her brief, post-divorce reconciliation with John; (5) whether the circuit court erred by excluding evidence pertaining to her bankruptcy; and (6) whether the circuit court erred by denying her motion for additur. We conclude that the circuit court erred by granting the instruction on spoliation and that Marci is entitled to a new trial on this ground. We also address Marci’s evidentiary arguments because the same issues would likely arise again in a new trial. See Newell v. State, 175 So.3d 1260, 1268 (¶ 5) (Miss. 2015) (holding that an appellate court should address evidentiary issues that are “likely to arise once again on remand” (quoting Brooks v. State, 763 So.2d 859, 864 (¶ 15) (Miss. 2000))). We conclude that the circuit court committed no abuse of discretion in its rulings on those issues.

I. Spoliation Instruction

¶ 20. Lainey first argues that Marci is procedurally barred from challenging the spoliation instruction because it does not appear in the record on appeal, either as offered by Lainey or as modified by the court. Marci concedes that the instruction itself is not in the record on appeal, and the court’s instructions to the jury were not transcribed. However, Marci quoted the proposed instruction in her post-trial motion for a new trial, JNOV, and addi-tur, which is part of the record on appeal. And in response to Marci’s motion, Lai-ney did not suggest that Marci had misquoted the proposed instruction. Marci’s post-trial motion indicates that , the proposed instruction is in the circuit court record at “Docket No. 128.” For reasons that are not apparent, Docket No. 128 was omitted from the record on appeal, but it is publicly available via the-Mississippi Electronic Courts (MEC) case management system, and it shows that Marci has accurately quoted the proposed instruction.

¶ 21. It was Marci’s obligation to examine the record and certify- that it was correct and complete. See Miller v. R.B. Wall Oil Co., 970 So.2d 127, 130-31 (¶¶ 9-11) (Miss. 2007). Therefore, we would be within our discretion to decline to review this issue based on her failure to notice that the instruction was missing and request its inclusion in the record oh appeal. See id. However, it is also within our discretion to proceed with a review of the issue, see id. and we conclude that it is appropriate to do so in this case. The content of the proposed instruction is readily available via MEC and cannot reasonably be disputed. Cf., e.g., Brown v. Lippard, 350 Fed.Appx. 879, 883 (5th Cir. 2009) (holding that an appellate court may consider a prior trial transcript in the district court record in a related case, although it was not. included in the record on appeal); Jacques v. U.S. R.R. Ret Bd., 736 F.2d 34, 40 (2d Cir. 1984) (holding that an appellate court may take judicial notice of “a pleading and official court record of. an inferior court in [the appellate court’s] jurisdiction, in a [related] case”). In addition, the trial court’s modifications to the instruction are clear from the transcript. Accordingly, we will address the issue on the merits.

¶ 22. Our standard of review regarding jury instructions is as follows:

On appeal, this Court does, not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed. Defects in specific instructions do not require reversal where all instructions taken as a whole fairly—although not perfectly—announce the applicable primary rules of law. However, if those instructions do' not fairly or adequately instruct the jury, we can and will reverse.

Mitchell v. Barnes, 96 So.3d 771, 775 (¶ 9) (Miss. Ct. App. 2012). (quotation marks omitted) (quoting Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 583 (Miss. 1993)). “When analyzing the grant or refusal of a jury instruction, two questions should be asked: Does the instruction contain a correct statement of law and is the instruction warranted by the evidence?” Beverly Enters. Inc. v. Reed, 961 So.2d 40, 43 (¶ 8) (Miss. 2007).

¶23. Marci argues that the trial court erred by instructing the jury on spoliation because there was no evidence that she destroyed evidence. In DeLaughter v. Lawrence County Hospital, 601 So.2d 818 (Miss. 1992), which involved a hospital’s loss of patient records in medical malpractice/wrongful death case, the Mississippi Supreme Court discussed how the issue of spoliation should be handled- at trial. The Court’s treatment of the issue is instructive, so we set it out in some length:

This issue concerns what the jury was entitled to hear and what instruction should have been given regarding the reconstructed medical records. The jury was entitled to be told the original hospital record would not be produced in court, as that was a relevant fact. The hospital had the duty to give an adequate explanation for the absence of the original hospital record. Therefore, the jury was entitled to be told why the original hospital record was missing, also a relevant fact.
As with any other evidence, the explanation for the original record’s absence may be fully satisfying either that it was lost through no fault of the hospital, that the hospital deliberately destroyed it, or as in most cases, somewhere in between, thereby making it a jury issue. For example, where the evidence is positive that the hospital had been destroyed by fire, such circumstance would adequately account for the loss of the original medical record without fault attributable to the hospital, and there would be no reason for the jury to be instructed on a presumption or inference arising from the loss.
On the other hand, where the evidence is positive that the hospital deliberately destroyed the original medical record or where a record required by law to be kept is unavailable due to negligence, an inference arises that the record contained information unfavorable to the hospital, and the jury should be so instructed.... Likewise, where the evidence is somewhere in between such that the jury could find that the hospital either had or had not deliberately or negligently destroyed the original medical record, the jury should be instructed to take this into account.
Thus, where the evidence regarding the missing original medical records is such that the jury is entitled to an instruction, the instruction should require the jury to first determine whether reasonable explanation for the loss of the missing original medical record has been presented by the hospital. Should the jury determine from the explanation provided that the loss of the original medical record was not in any way attributable to the deliberate or negligent actions of the hospital, the jury could not infer that the missing original medical record contained information unfavorable to the hospital. However, should the jury determine from the explanation provided that the loss of the original medical record was deliberately or negligently brought about by the actions of the hospital, the jury could infer that the missing original medical record contained information unfavorable to the hospital.

Id. at 821-22.

¶ 24. In the present case, the only evidence of the alleged spoliation that was presented to the jury was the following testimony by Marci on cross-examination:

Q. Okay. And we had asked for [emails between you and John], and you said they were on your computer; is that correct?
A, I guess. If you say I said it.
Q. And you said that you could get them, that your friend Gene Barnett had put them in storage for you?
A. ... [Djuring my deposition, you asked me about a computer [from the Onward Store] .... And I said ... that Gene Barnett had that computer because [he placed] all of my stuff in storage when I closed the store. He had a storage unit for me, and that’s where I was keeping all my stuff.
Q. Okay. And when we asked you to produce the computer, you said you would produce it, didn’t you?
A. I would try to ....
Q. And then when we finally asked you to produce it, you said ... Gene Barnett, your friend, had sold your computer, disposed of it without your knowledge?
A. ... I don’t know if I told y’all that, ■ but I do know that he sold it. To whom, I don’t know, or where or when or whatever. But ... whatever was left in the storage unit, I told him he could keep the money or whatever it was, just dispose of it so it paid him back for him renting the storage unit for me.
Q. Okay. But he never gave you any money for the sale of that computer?
A. I told him to keep the money ... for the payment of the storage unit.
Q. Okay. But you agree with me that there’s no computer, there’s no way we’re going to get your e-mails off of it; isn’t that true?
A. I guess not.
Q. Now there were some e-mails earlier between you and John Teal that you deleted from the computer, is that—
A. ... I delete all my emails I get from anybody, my grandparents, my mother, my brother. I don’t feel no need to keep any e-mails unless there’s something important in it.
Q. But those can be retrieved from a hard drive if you’ve got the computer; can they not?
A. If you have, the computer, I’m assuming yes.

¶25. Thus, the jury heard testimony that Marci had deleted “some e-mails earlier between [her] and John,” as it was her routine practice to delete emails once she had read them. The jury also heard that Marci’s work computer had' been sold at some point. However, the jury was presented with no evidence as to when the emails were deleted or the computer was sold. -

¶ 26. Nonetheless, the jury was instructed as follows:

The Court instructs the jury that the Plaintiff has destroyed evidence in this case. The Plaintiff has destroyed emails between herself and John Teal. The Plaintiff has also destroyed her computer while . this lawsuit was pending. Therefore, a presumption is now raised that the emails and the computer contained evidence that would have been unfavorable to the Plaintiff.

¶27. Marci argues that the evidence did not support this instruction. It is elementary that a jury instruction is “to be granted only where evidence has been presented which ‘ supports the instruction.” DeLaughter, 601 So.2d at 824, We agree with Marci that the evidence presented at trial was insufficient to show that she had deliberately or negligently destroyed emails or her computer at a time when she knew or should have known that they might contain evidence relevant to this case. Marci’s deletion of emails while she and John were married cannot support a spoliation instruction because the evidence was undisputed that she was unaware of John’s affair with Lainey at that time. Therefore, the second sentence of the instruction should not have-been given. As to the third sentence, no evidence was presented at ¡trial that Marci “destroyed her computer.” If this refers to the personal laptop that she threw, away after coffee was spilled on it,, there was simply no mention of the incident at trial. If this refers to the desktop computer from the Onward Store, then it misstates the evidence, which was that Barnett sold the computer, not that Marci “destroyed” it. Furthermore, there was no evidence presented at.trial as to when.the computer was sold.

IT 28. As discussed above, pretrial proceedings in the case provide some additional detail on the issue. However, evidence that was not presented to the jury cannot provide a basis for' such an instruction. As the DeLaughter Court explained, “where the evidence regarding the missing [evidence] is such that the jury is entitled to an instruction, the instruction should require the jury to first determine whether reasonable explanation for the loss of the missing [evidence] has been presented.” Id. at 822 (emphasis added); see also, e.g., Brennan v. Webb, 729 So.2d 244, 250 (¶ 22) (Miss. Ct. App. 1998) (“When the evidence at trial does not support an offered jury instruction, the instruction is improper and should not be granted.”). Therefore, evidence or argument from a pretrial hearing is not a basis for a spoliation instruction. Rather, sufficient evidence of the circumstances of the missing evidence must be presented at trial so that the jury may decide the significance of its absence.

¶ 29. -Furthermore, the “spoliation inference” “entitles the non-offending party to an instruction that the jury may infer that the spoliated evidence is unfavorable to the offending party.” Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124, 1127 (¶ 8) (Miss. 2002) (emphasis added) (citing DeLaughter, 601 So.2d at 822). That is, the jury must be instructed that it is permitted— but not required—to draw that inference, depending on its assessment of the circumstances of the loss of the evidence. The instruction given in this case failed to instruct the jury of its role in deciding whether to draw the permitted inference.

¶30. To summarize, we hold that the instruction given at trial was improper because Marci’s deletion of emails before she discovered John’s affair with Lainey cannot amount to spoliation; because no evidence was presented at trial that she “destroyed” a computer; because the instruction was, in effect, a peremptory instruction—based on evidence never presented to the jury—that Marci spoliated evidence; and because the instruction required the jury to presume that the evidence was unfavorable, rather than simply permitting that inference. Further, we do not believe that the instruction can be deemed harmless. As the Texas Supreme Court has recognized, an improper “spoliation instruction is particularly likely to cause harm” because “its very purpose is to ‘nudge’ or ‘tilt’ the jury.” Wal-Mart Stores Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003). It was prejudicial to Marci for the jurors to be instructed that she had “destroyed evidence” and that they should presume that such evidence “would have been unfavorable” to her. Given the limited evidence actually presented on this issue at trial, the extent and seriousness of Marci’s alleged wrongdoing was largely left to the jury’s imagination. The instruction could have contributed to the jury’s decision not to award Marci damages, despite finding that Lainey intentionally alienated John’s affections. Under the circumstances, we cannot deena the error harmless.

¶ 31. Because the issue may arise again in a new trial, we comment briefly on the evidence presented and arguments made during pretrial proceedings. As discussed above, Marei’s deletion of the emails before she was aware of John’s affair was not spoliation of evidence because at that time she had no reason to anticipate a lawsuit, much less that Lainey might seek to discover the emails as evidence. Thus, the subsequent disposal of Marci’s laptop or sale of her desktop might be spoliation of evidence only if there is reason to believe that the deleted emails still existed on the computers’ hard drives when they left Marci’s possession or control. Prior to trial, Lainey’s counsel stated that it was his “understanding that as long as the e-mail has been viewed on a particular computer screen at some point in time, then there is a forensic software program that you run on the computer and it is a high probability that you can pull it off and get a copy of it.” However, something more than counsel’s understanding is necessary to establish that emails from a web-based email account feasibly can be recovered from a computer’s hard drive years after they were deleted. This is not a matter of common knowledge that can be assumed. If on remand Lainey presents evidence that such emails could have been recovered and evidence of the timing of Marci’s disposal of her computers, then it would be within the discretion of the circuit court to grant her an instruction on spoliation. However, any instruction should be limited to the disposal of the computers (not the deletion of the emails); “the instruction should require the jury to first determine whether reasonable explanation for the loss of the [computers] has been presented” (DeLaughter, 601 So.2d at 822); and the instruction should state “that the jury may infer that the spoliated evidence is unfavorable to [Marci].” Dowdle Butane Gas Co., 831 So.2d at 1127 (¶ 8) (emphasis added).

II. Evidentiary Rulings

¶ 32. “The standard of review regarding admission or exclusion of evidence is abuse of discretion.” Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss. 2000) (brackets omitted) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (¶ 11) (Miss. 1999)). For the reasons that follow, we conclude that the circuit judge did not abuse his discretion by (a) excluding evidence related to John’s continued relationship with Lainey after his divorce from Marci; (b) admitting evidence of Marci’s post-separation/pre-divorce relationships with other men; (c) admitting evidence of Marci’s reconciliation with John; or (d) excluding evidence related to Marci’s bankruptcy.

A. John’s Post-Divorce Relationship with Lainey

¶ 33. Marci argues that the trial court abused its discretion by granting Lainey’s pretrial motion in limine (1) to exclude emails sent between Lainey and John after the date of John and Marci’s divorce and (2) to exclude evidence of expenses that Lainey paid for John after the same date. Marci argues that this ruling was “inconsistent” with the court’s rulings admitting evidence of her own post-separation relationships with other men and her post-divorce reconciliation with John. We will address those rulings separately below, but we find no abuse of discretion in the court’s exclusion of evidence regarding John’s post-divorce relationship with Lai-ney. Marci does not dispute that she and John were finally divorced and his affections- had been alienated by that point. Lainey’s continued relationship with John at that point was neither tortious nor relevant.

B. Marci’s Post-Separation/Pre-Di-vorce Communications and Relationships with Other Men

¶34. Marci next argues that the trial court abused its discretion by denying her motion in limine to exclude evidence of her communications and relationships with other men after her separation from John in January 2008 but prior to their divorce on June 2, 2008. At trial, Lainey presented evidence that Marci spent significant periods of time talking to and texting with other men between March and June 2, 2008. Marci admitted to dating, kissing, and even spending the night -with some of these men, although she denied having a sexual relationship with any of them prior to the date that her divorce became final; she also testified that some of the men were just friends of hers. Marci contends that such evidence was irrelevant and unfairly prejudicial. Lainey, however, argued that it was relevant to show that Marci was ready to move on from the marriage and to rebut Marci’s claim that she was distraught and distressed over the impending divorce. The trial court did not abuse its discretion by admitting evidence of Marci’s pre-divorce conduct. See Fitch v. Valentine, 959 So.2d 1012, 1022 (¶ 25) (Miss. 2007) (“The key time frame for the tort of alienation of affections is that of the marriage .... ”).

C. Marci’s Post-Divorce Reconciliation with John

¶35. Marci next argues that the trial court should have excluded evidence of her post-divorce reconciliation with John. The trial court did not abuse its discretion by allowing limited testimony regarding the brief reconciliation. At least some testimony on the subject was necessary to explain how Marci became aware of John’s affair with Lainey. Further, Lai-ney was entitled to cross-examine John about the fact that he continued to lie to and have relationships with both women during the reconciliation, which was relevant to his credibility. Lainey was also entitled to cross-examine Marci about how she came into possession of emails between Lainey and John. Marci testified that she discovered the emails during her post-divorce reconciliation with John, but the emails were actually forwarded to her from John’s email account in January 2010, several months after the reconciliation ended. Marci testified that she “hacked” into John’s account and forwarded the emails to herself, but Lainey’s counsel argued that the evidence indicated collusion between John and Marci. This was a permissible argument, and the trial court did not abuse its discretion by allowing limited evidence of the reconciliation.

D. Marci’s Bankruptcy

¶ 36. Prior to trial, the court ruled that “the fact that [Marci] filed a bankruptcy petition is admissible, and depending on the proposed testimony, the bankruptcy trustee may testify at trial,” but the court excluded “all other evidence regarding [Marci’s] bankruptcy.” At trial, the court sustained an objection to the following question by Marci’s counsel: “[A]s we stand here now, ... when would [Marci] ... be able to get any money out of this case?” The trial court did not abuse its discretion. Marci may put on evidence of any type of damages proximately caused by Lainey’s conduct in the alienation of John’s affections, see Gorman v. McMahon, 792 So.2d 307, 314-16 (¶¶ 18-23) (Miss. Ct. App. 2001), but the trial court properly prevented her from telling the jurors how large a verdict they needed to render in order for her “to get any money out of this case.”

CONCLUSION

¶37. For the foregoing reasons, we agree with Marci that the spoliation instruction lacked support in the evidence presented at trial, was erroneous, and was prejudicial. Accordingly, although we find no abuse of discretion in any of the trial court’s challenged evidentiary rulings, we reverse and remand for a new trial.

¶ 38. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . Lainey testified that her relationship with John ended around March 2009 and that the last time she saw him was at a fishing tournament in Bermuda in July 2009.

      . See M.R.A.P. 10(d)(l)(i) ("All jury instructions shall be placed in the record[.]”).

      . ' In emphasizing the jury’s role in evaluating alleged spoliation, we also emphasize that the importance of the missing evidence in this case is far less clear than in prior Mississippi Supreme Court cases addressing the issue of spoliation. For example, in DeLaughter, after a patient’s death, the hospital lost the patient’s hospital record—an obvious and “integral component in any malpractice action," which the hospital was required by law to maintain. DeLaughter, 601 So.2d at 821. And in Thomas v. Isle of Capri Casino, 781 So.2d 125 (Miss. 2001), a casino failed to preserve a computer central processing unit that “would have provided conclusive evidence whether [a patron] actually won [a disputed multi-mil-lion-dollar slot] jackpot." Id. at 129 (¶ 17). Indeed, the casino permitted the relevant data to be overwritten while the case was pending before the Mississippi Gaming Commission. See id. at 126-27 (¶ 2). Here, in contrast, the evidence in question consists of two computers that may or may not have contained emails between John and Marci. Lainey asserts that "presumably these emails would shed light on the true state of John and Marci’s marriage,” which Lainey argues “was not as perfect as Marci would have the jury believe.” However, it does not appear that Marci claimed that her marriage was “perfect,” and the jury heard ample evidence that it was not, even without the deleted emails.

      . The court's order noted that some of the emails might be admissible at trial for purposes of impeachment


author: FAIR, J.,

text:
    Stephen CARMODY and Rowena Carmody, Appellants v. Suzannah MCGOWAN, Appellee
    NO. 2015-CA-01236-COA
    Court of Appeals of Mississippi.
    01/03/2017
    Rehearing Denied May 2, 2017
    Certiorari Denied August 3, 2017

      C. VICTOR WELSH III, JACKSON, ATTORNEY FOR APPELLANTS
    F. HALL BAILEY, HEATHER MARIE ABY, JACKSON, OWEN PATRICK LALOR, ATTORNEYS FOR APPEL-LEE
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. This is a dispute over a strip of land bordering residential property owned by the litigants, who are neighbors. Both sides claim record title to the property deriving from Cynthia and M.L. Culley. At issue on appeal is the Stephen and Rowena Carmody’s claim, which originates from a deed to J.E. Fowler in 1969. The chancery court found that the deed did not convey the disputed property, and thus that the Carmodys had no claim to it. The court then granted a partial summary judgment to Suzannah McGowan, which was certified as a final judgment under Mississippi Rule of Civil Procedure 54(b). We agree with the chancery court that the deed was unambiguous and that it did not convey the subject property, and so we affirm.

DISCUSSION

¶ 2. A court interpreting a deed follows the same process as it does with contracts. Conservatorship of Estate of Moor ex rel. Moor v. State, 46 So.3d 849, 852 (¶ 12) (Miss. Ct. App. 2010). We begin by looking at the language of the instrument itself as contained within its “four corners.” Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss. 1990). “When an instrument’s substance is determined to be clear or unambiguous, the parties’ intent must be effectuated.” Id. “If the reviewing [c]ourt finds the terms of the contract to be ambiguous or subject to more than one interpretation, the case must be submitted to the trier of fact, and summary judgment is not appropriate.” Epperson v. SOUTHBank, 93 So.3d 10, 17 (¶ 20) (Miss. 2012).

¶3. The deed at issue states that the Culleys “do hereby sell, convey and warrant unto J. E. Fowler the following described land and property lying and being situated in the First Judicial District of Hinds County, State of Mississippi, and being more particularly described as follows .... ” This is followed by a single-spaced, indented description of a 26.7-acre tract, which concludes with the words:

LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this date by grantors herein in favor of the City of Jackson, Mississippi.

It is undisputed that this refers to the property now in dispute. The Carmodys point to what immediately follows the above-quoted language, where the deed is no longer indented and returns to double-spaced lines, and recites that:

The warranty of this conveyance is subject to an easement for street purposes, executed this date herein, in favor of the City of Jackson, Mississippi, which easement is for an extension of Riverwood Drive.

Several other preexisting easements are then excepted from the warranty, and the deed concludes normally with signatures and acknowledgment.

¶ 4. The Carmodys argue that the deed should be read as a whole. See, e.g., Cherokee Ins. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss. 2010). That is undoubtedly true, but they present no real argument as to how the warranty exclusion conflicts with or alters the meaning of the explicit and unambiguous “less and except” exclusion from the conveyance. The Carmodys contend only that the “less and except” clause renders the warranty exclusion redundant and that there is no apparent reason the grantors would want to retain ownership of the disputed parcel while selling the land surrounding it. These arguments invoke familiar canons of contract construction, but they are applicable only where the deed is first shown to contain some ambiguity. Pursue Energy, 558 So.2d at 352; 26A CJS Deeds § 180 (2011) (“Construction aids are available only to interpret ambiguity in the language of the instrument ... and are not to be invoked to contradict the plain language of the deed.”).

¶ 5. The Carmodys do not explicitly argue that the deed is ambiguous— indeed, the word does not even appear in their briefs on appeal. “The mere fact that the parties disagree about the meaning of [an instrument] does not make [it] ambiguous as a matter of law.” Turner v. Terry, 799 So.2d 25, 32 (¶ 17) (Miss. 2001). Nor are we “at liberty to infer intent contrary to that emanating from the text at issue,” as the words employed by the parties are “by far the best resource for -ascertaining [their] intent.” Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111 (¶ 7) (Miss. 2005). Likewise, redundancies do not make a deed ambiguous. See, e.g., Thornton v. Ill. Founders Ins., 84 Ill.2d 365, 49 Ill.Dec. 724, 418 N.E.2d 744, 747 (1981).

¶ 6. “An ambiguity is defined as a susceptibility to two reasonable interpretations.” Dalton v. Cellular S., Inc., 20 So.3d 1227, 1232 (¶ 10) (Miss. 2009). We can see no reasonable interpretation of the deed, read in its entirety, that does not give effect to the plain and unambiguous qualification that the conveyance is “less and except” the disputed property.

¶7. We conclude that the trial court correctly found the deed to be unambiguous and that the disputed property was expressly excepted from the conveyance upon which the Carmodys’ claim depends. The chancery court therefore properly granted summary judgment to McGowan.

¶ 8. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING, P.J., BARNES, WILSON AND GREENLEE, JJ., CONCUR. GRIFFIS, P.J., ISHEE, CARLTON AND WESTBROOKS, JJ., NOT PARTICIPATING.


text:
    Johnny William WILLIAMS a/k/a Johnny Williams a/k/a Johnny William Williams, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01055-COA
    Court of Appeals of Mississippi.
    01/03/2017
    Rehearing Denied May 2, 2017
    Certiorari Denied August 3, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: ' MOLLIE MARIE McMILLIN, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. A Hinds County jury' convicted Johnny Williams of capital murder in the killing of his seventeen-month-old daughter, Jada Williams. Williams was sentenced to life in the custody of the Mississippi Department, of Corrections without the possibility of parole. Williams now appeals. He argues jury instruction S-3 was improperly granted,, which permitted the jury to find Williams guilty of the underlying felony of child abuse without finding he actually abused the child. Williams also claims to have received ineffective assistance of counsel due to the admission of graphic photographs of Jada’s body. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. On July 3, 2012, at 3:45 p.m., Officer LaShanda Griffin.of the Jackson Police Department responded to a call about an unconscious infant, later identified as Jada Williams, who was brought to the emergency room (ER) of the Central Mississippi Medical Center (CMMC) in Jackson, Mississippi. Officer Griffin was informed by a nurse that the child was stiff when her mother brought her in. Officer Griffin testified that Jada had bruises on her hips, buttocks, and legs.

¶ 3, .Brandon Goldsmith,- an ER nurse at CMMC, testified that when Jada was brought into the.ER at 3:45 p,m., she was unresponsive, not breathing, and had no pulse, Medical staff attempted to open Jada’s airway, but her jaws were locked; so they could not open her mouth. Also, they were unable to obtain IV access in Jada’s arm because her -arm was so .rigid. Goldsmith explained that Jada’s stiffness indicated rigor mortis; thus, Jada had been dead for several hours. Goldsmith observed several bruises on Jada’s torso and legs, which were, present before car-dio-pulmonary resuscitation (CPR) was attempted. Medical staff attempted CPR, but Jada was pronounced dead at 8:50 p.m. Officer Griffin called her supervisor, the mobile-crime unit, robbery-homicide detectives, and the coroner to the hospital.

¶ 4. Officer Charles Taylor of the Jackson Police Department also responded to the call at CMMC, and took photographs of Jada’s body in the trauma room of the ER. Thirty-one photographs of Jada’s body were entered into evidence at trial without objection from the defense. Based on his experience, Officer Taylor testified that it appeared Jada had been severely beaten. Later, Officer Taylor also went to the apartment where Jada, her parents, and their two other small children lived. He took photographs of the apartment, and recovered clothing items and' a belt.

¶ 5. Jasmine Porter, Jada’s mother and Williams’s co-indictee, testified against Williams at trial. Jasmine maintained that she was not offered “a deal” in exchange for testifying. Jasmine lived with Williams and their three children at the Vintage Apartments in Jackson on Ellis Avenue. In addition to Jada, the couple had a two-year-old child and a six-month-old child. The day Jada died, the family had been at home, arising at around 10:30 or 11:00 a.m. Jasmine explained that Jada had “an accident” on the couch; she was not wearing diapers because they were potty training her. Jasmine cleaned Jada up, and the family went to pay the light bill at a store on Capitol Street.

¶ 6. Upon returning home, Jasmine put Jada in the bathtub to play while she cleaned the kitchen and dining area. Jasmine went outside to smoke and talk to a neighbor for about five to ten minutes. When she came back inside, Williams was talking to Jada, who was on the bed limp, and neither moving nor breathing. Jasmine thought Jada was having a “breathing attack.” She grabbed Jada and asked what was wrong with her, but Williams said she was fine.

¶ 7. Since Jada was not breathing, Jasmine attempted CPR, but admitted she did not know how to perform it properly. Williams was “panicky” and hysterical, as was Jasmine, who suggested that they take Jada to the hospital. Instead, they decided to go to the home of Williams’s mother, Beatrice Williams, near County Line Road. Williams drove, and it took ten or twenty minutes. Williams told Jasmine that he had “whooped” Jada because she had had an accident. Jasmine asked Williams a couple of times to take Jada to the hospital, but Williams was too afraid.

¶8. Once at Beatrice’s home, Williams told his mother he had whipped Jada with a belt, and something was wrong with her. Beatrice put Jada in the kitchen sink and splashed water on her face to “try to get her back.” Beatrice testified that Jada grabbed her finger at one point. Jasmine attempted CPR again, Rachel Williams, Williams’s sister, told the couple to take Jada to the hospital. Williams responded that he “didn’t want to go to jail,” preventing Rachel from calling an ambulance by taking her telephone away. After unsuccessfully trying to revive Jada, Wiliams, Jasmine, Beatrice, and Rachel, all got into Williams’s truck with Jada and the six-month-old baby and went back to the couple’s apartment to get supplies for the baby. Jasmine, Beatrice, and Rachel all suggested to Williams, who was driving, to take Jada to the hospital. Instead, they went back to Beatrice’s home to drop off Beatrice, Rachel, and the baby.

¶ 9. Leaving Beatrice’s home, Williams drove Jasmine and Jada to his brother Kelsey Williams’s house in Jackson. Kelsey got in the truck and insisted that Williams immediately take Jada and Jasmine to the hospital. Driving directly to CMMC, Williams dropped off Jasmine and Jada, and left. Jasmine never saw Williams again.

¶ 10. Forensic pathologist Lisa Funte, with the state medical examiner’s office, performed Jada’s autopsy. Fifteen photographs of Jada’s body during the autopsy were entered into evidence to corroborate her testimony, without objection from the defense. Dr. Funte determined Jada’s cause of death was blunt-force injuries, and the manner of death was homicide. She testified there was evidence of extensive past and present injuries to Jada’s body. Internal injuries included bleeding on the brain, hemorrhages in her abdominal cavity, and a large hematoma on her liver and one kidney; further, Jada’s pancreas had been split in two by her backbone. All of these injuries were due to blunt-force trauma. Externally, Jada had old and new bruises on her hip, buttocks, legs, abdomen, and arms, with lighter bruising on her head, face, neck, and throat. Further, she had scarring on the side of her neck and back. The internal-bleeding injuries were caused the same day Jada died. Dr. Funte could not estimate how long Jada had lived after these injuries. The head and abdominal injuries alone were life-threatening. Since Jada had no broken bones, Dr. Funte testified that Jada had been beaten, as opposed to falling or being in an automobile accident. Moreover, Jada’s injuries could not have been caused by improper CPR techniques.

¶ 11. At trial, Williams testified in his own defense. He admitted to' spanking Jada on her buttocks with a belt because she had an accident. He left the room, and upon returning, she was limp and unresponsive. Williams admitted that he told his sister not to call an ambulance because he feared the police would be called. He told his brother that Jada was “gone.” Williams did not believe his “whooping” caused Jada to die. He denied punching Jada or hitting her in the head. He mentioned that his children had spent a couple of days with a friend immediately prior to Jada’s death.

ANALYSIS

I. Jury Instruction S-S

¶ 12. Williams argues the trial court erred in granting jury instruction S-3 over his objection, because it allowed the jury to find Williams guilty of capital murder if he allowed someone else to abuse Jada.

¶ 13. Jury instructions “must be read as a whole .... [I]f the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss. 2010) (quoting Rubenstein v. State, 941 So.2d 735, 784-85 (¶ 224) (Miss. 2006)). The grant or denial of jury instructions is within the discretion of the trial court. Id. (citing Davis v. State, 18 So.3d 842, 847 (¶ 15) (Miss. 2009)).

¶ 14. Williams was charged with capital murder, in violation of Mississippi Code Annotated section 97—3—19 (2) (f) (Rev. 2014), or effecting the death of Jada “while in the commission of the crime of felonious abuse and/or battery of a child,” as prohibited by Mississippi Code Annotated section 97-5-39(2) (Rev. 2014). Section 97-5-39(2) defines various types of felonious child abuse; pertinent here is subsection (c): “Any person shall be guilty of felonious child abuse ... [i]f serious bodily harm to any child actually occurs, and if the person shall intentionally, knowingly or recklessly ... [sjtrike any child on the face or head; ... [djisfigure or scar any child; ... [or] [w]hip, strike, or otherwise abuse any child[.]” Miss. Code Ann. § 97-5-39(2)(c)(i)-(iii) (emphasis added).

¶ 15. The trial court granted the State’s proposed jury instructions on the elements of capital murder and felony child abuse in S-l and S-2 respectively. Instruction S-2 stated the elements of felonious child abuse: that “Johnny Williams ... did intentionally whip, strike or otherwise abuse Jada ... in such a manner as to cause serious bodily injury ....” The trial court also granted instruction S-3, which defined when a child has been “otherwise abused.” Instruction S-3 stated:

If you find beyond a reasonable doubt that Johnny Williams was the father, guardian or custodian of Jada Williams, or that he was responsible for her care or support, whether legally obligated to do so or not, and you find that he intentionally caused or allowed to be caused upon Jada Williams, nonaccidental physical injury to Jada Williams, through whipping or striking Jada Williams[,] then you shall find that Johnny Williams did abuse Jada Williams; and/or,
If you find beyond a reasonable doubt that Johnny Williams was the father, guardian or custodian of Jada Williams, or that he was responsible for her care or support, whether legally obligated to do so or not, and you find that he did intentionally otherwise abuse Jada Williams by failing to provide necessary medical treatment to Jada Williams, then you shall find that Johnny Williams did abuse Jada Williams.

(Emphasis added). Williams argues that the first paragraph of instruction S-3 allowed the jury to find him guilty of felony child abuse, and thereby capital murder, if it found he allowed Jada to be abused by another person, rather than requiring that he actually abused her. Therefore, Williams claims this instruction was an incorrect statement of the law, and reversal of his conviction is warranted.

¶ 16. At trial, the State supported instruction S-3 by pointing out that it came from the definition of “abused child” found in Mississippi Code Annotated section 43-21-105(m) (Rev. 2015) of the youth-court statute, which reads: “[A] child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused, upon the child ... nonaccidental physical injury or other maltreatment.” (Emphasis added). The State requested instruction S-3 to allow the jury to find Williams guilty of child abuse in two different ways: causing serious bodily injuries to Jada “through whipping or striking,” or “failing to provide necessary medical treatment to Jada.” At trial, the State explained the purpose of the three instructions: S-l defined capital murder as murder during the commission of felony child abuse, S-2 defined felony child abuse, and S-3 defined what “otherwise abuse” included, which was referenced in S-2. By failing to take Jada to the hospital and preventing others from calling an ambulance, the State argued that Williams allowed Jada’s injuries to cause her death.

¶ 17. As the State points out, the Mississippi Supreme Court has interpreted the term “otherwise abuse” in section 97-5-39(2) to indicate a nonexhaustive list of felonious-child-abuse actions, which would include acts of omission. Buffington v. State, 824 So.2d 576, 582 (¶ 24) (Miss. 2002). The “language of 97-5-39(1) signals the Legislature’s inclusion of ... acts of omission as abusive behavior,” which would also constitute felony child abuse. Id.; see also Ealey v. State, 158 So.3d 283, 292 (¶ 27) (Miss. 2015). Otherwise, allowing certain omissions, such as permitting someone else to abuse the child; refusing to feed a child on the brink of death, as in Buffington-, “discarding” a newborn infant in a suitcase behind a church, as in Ealey, or failing to seek timely medical care for an unconscious infant, as here; could be charged or' found by a jury only as a misdemeanor . Buffington, 824 So.2d at 582 (¶ 24); Ealey, 158 So.3d at 292 (¶ 27).

¶ 18. Here, we find instruction S-3 was a proper statement of the law, as held by the statutory analysis found in Buffington and Ealey, Williams argues that instruction S-3 allowed the jury to convict him if he allowed someone else to abuse Jada rather than him actually abusing her, or failing to provide medical treatment himself. He argues that while allowing abuse could make Jada an “abused child” under the youth-court law, it was insufficient to convict him of felony child abuse. Even if the jury instruction could have been read in this manner, any error is harmless. “There is no per se rule requiring automatic reversal whenever jury instructions contain conflicting or potentially confusing explanations of the law. In such cases, we apply traditional harmless-error or plain-error analysis, depending upon whether the defendant objected to the instruction at trial.” Rodgers v. State, 166 So.3d 537, 544 (¶ 14) (Miss. Ct. App. 2014). There was no evidence presented to the jury that anyone but Williams abused Jada; so the jury could not have interpreted instruction S-3 as though it was authorized to find Williams guilty for allowing another person to abuse her. The prosecutor even withdrew an accomplice instruction as inapplicable. Accordingly,'we find no error in the trial court’s grant of instruction S-3.

II. Ineffective Assistance of Counsel

¶ 19. Williams argues that he received ineffective assistance of counsel because defense counsel failed to object to the admission of photographs of Jada’s body, both in the hospital and during the autopsy. Williams claims the photographs are gruesome, and thus unfairly prejudicial.

¶ 20. Usually, because the record on direct appeal is insufficient to support a claim for ineffective assistance of counsel, these claims are best brought in postcon-viction-relief proceedings. Read v. State, 430 So.2d 832, 841 (Miss. 1983). However, a reviewing court may address an ineffective-counsel claim on direct appeal if the issues presented are “based on facts fully apparent from the record.” Archer v. State, 986 So.2d 951, 955 (¶ 16) (Miss. 2008) (citing M.R.A.P. 22(b)). We find the record before us sufficient to decide whether Williams’s counsel was constitutionally ineffective because he did not object to the photographs.

¶ 21. To succeed on such a claim, the defendant must prove: (1) counsel’s performance was deficient, and (2) the deficiency prejudiced the defense. Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s errors must be so serious as to deprive the defendant of a fair trial. Id, “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052). “[A]n appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy.” Id. (quoting Bennett v. State, 990 So.2d 155, 158 (¶ 9) (Miss. 2008)).

¶22. Without objection from defense counsel, pictures of Jada’s body were entered into evidence at two different times. First, thirty-one photographs of Jada’s body in CMMC’s trauma room were entered into evidence as a cumulative exhibit (Exhibit 4A-EE) during Officer Taylor’s examination. He took the photographs, which showed different parts of Jada’s external body taken at various angles. Bruises and scars were readily apparent, especially on her buttocks, back, thighs, and side torso. Additionally, during Dr. Funte’s examination, the State introduced fifteen photographs (Exhibits 24-84) taken at Jada’s autopsy. These photographs were more graphic, showing Jada’s external, as well as internal, injuries in detail. They showed Jada’s skull cap removed to expose her brain, as well as the inside of her body cavity. Photographs of her injured kidney, pancreas, and liver, separate from her body, were also shown to the jury.

¶23. Generally, admission of photographs into evidence is within the discretion of the trial court and will be reviewed on appeal for an abuse of discretion. Barfield v. State, 22 So.3d 1175, 1181 (¶ 14) (Miss. 2009) (citing Chamberlin v. State, 989 So.2d 320, 340 (¶ 73) (Miss. 2008)). The reviewing court must determine if the photographs were “so gruesome and inflammatory as to lack any evidentiary purpose.” Id. (citing McFee v. State, 511 So.2d 130, 134-35 (Miss. 1987)). Photographs are deemed to have eviden-tiary value when they “(1) aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; [or] (3) supplement or clarify witness testimony.” McIntosh v. State, 917 So.2d 78, 83 (¶ 13) (Miss. 2005) (quoting Spann v. State, 771 So.2d 883, 895 (¶ 31) (Miss. 2000)). It is acceptable for photographs to “arouse the emotions of the jurors” as long as they serve a legitimate evidentiary purpose. Spann, 771 So.2d at 895 (¶ 31).

¶ 24. Photographs of the outside of Jada’s body in the hospital and at the autopsy showed it was covered in old and new bruises, contusions, abrasions, and scars. The photographs of her brain with the skull removed showed several different types of hemorrhages, indicating blunt-force injury to her head applied at “multiple sites.” Dr. Funte testified these brain injuries alone could have caused Jada to die. There was hemorrhage on the surface of Jada’s intestines and throughout the abdominal soft tissue. One of Jada’s kidneys had a hematoma, or collection of blood, on it; her liver was lacerated and contained a hematoma; and her pancreas had been cut in half by her backbone due to significant blunt-force trauma to the abdomen. Dr. Funte testified that the dissection of Jada’s pancreas alone could have caused her to expire, although not immediately.' A photograph of Jada’s abdominal cavity with the organs removed also showed hemorrhage indicating blunt-force trauma. Dr. Funte stated that CPR codld not have caused these injuries.

¶ 25. All of these photographs had evi-dentiary value, serving the purposes set forth in McIntosh. Moreover, even though the internal autopsy photographs were graphic, they were relevant to show the jury the extent and severity of Jada’s injuries, and that her injuries were not merely superficial. They also presented the circumstances of her killing and cause of death, which Dr. Funte testified was blunt-force injury. The photographs also supplemented and clarified Dr. Funte’s testimony about the descriptions of Jada’s injuries, and her conclusion that Jada was beaten to death by another person, since there was no evidence of another significant trauma like a fall or vehicle accident. This relevance outweighs any prejudicial effect.

¶ 26. Because the photographs were properly admitted, there can be no ineffective assistance of counsel for lack of an objection to their admission. We cannot say that the lack of an objection so undermined the adversarial process that the trial produced an unjust result. Counsel’s performance was neither deficient nor prejudiced the defense. Therefore, this issue is without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, OF CONVICTION OF CAPITAL MURDER, AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.