source: Caselaw Access Project

author: WILSON, J.,

license: Public Domain

text:
    Paul BERLIN and Janice Berlin, Appellants v. LIVINGSTON PROPERTY OWNERS ASSOCIATION, INC., a Mississippi Non-Profit Corporation, Appellee
    NO. 2015-CA-01512-COA
    Court of Appeals of Mississippi.
    04/25/2017
    Rehearing Denied August 22, 2017
    Certiorari Denied November 30, 2017

      DONALD W. BOYKIN, V. DOUGLAS GUNTER, ATTORNEYS FOR APPELLANTS
    JAMES L. MARTIN, DAVID GLYN PORTER, ATTORNEYS FOR APPEL-LEE
    BEFORE GRIFFIS, P.J., ISHEE, WILSON AND GREENLEE, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Paul and Janice Berlin are residents of Livingston, a covenant-restricted community in Madison County. Their 3.56-acre lakefront lot is subject to a maintenance easement that extends twenty feét onto their property from the lake’s high-water mark'. Their lot is also subject to a covenant requiring them to obtain approval from the Architectural Review Committee (ARC) of the Livingston Property Owners Association (LPOA) prior to beginning construction of fences and other improvements on their property. The Berlins asked the ARC to approve a planned fence that would not be enclosed on the lakeside boundary of their property but would instead extend across the maintenance easement .and three feet out into the lake along their east and west property lines. The ARC declined to approve the proposed fence on the ground that it would interfere with the maintenance easement. The Berlins built the fence anyway.

¶ 2. LPOA sued the Berlins in the Madison County Chancery Court. Following a two-day trial, the chancellor entered a final judgment and opinion finding that the Berlins were in violation of the restrictive covenants applicable to their property. She ordered them to remove the portions of their fence that extend across the easement and into the lake. She also awarded LPOA attorneys’ fees. The Berlins appealed. They argue that the chancellor’s decision is erroneous for multiple reasons, that she erred in awarding attorneys’ fees without holding a hearing on the reasonableness of the fees requested by LPOA, and that she abused her discretion by excluding one document as irrelevant. For the reasons that follow, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Livingston is a residential community consisting of fifty-nine lots and four lakes on sixteenth-section school trust land near the intersection of Highway 463 and Highway 22 in Madison County. All lots in Livingston are subject to a declaration of covenants, conditions, and restrictions that was duly filed with the Madison County Chancery Clerk in 2001, The declaration established LPOA, which is responsible for enforcing the covenants and maintaining all common areas and lakes.

¶ 4. In 2005, the Berlins entered into a long-term residential lease for Lot 21 at Livingston, a 3.56-acre lot on one of the subdivision’s lakes. The Berlins’ lease states that their lot is subject to the covenants.

¶ 5. Section 11.02 of Livingston’s covenants reserves to LPOA a twenty-foot easement from the lake’s edge at its high-water level for lake “maintenance and control purposes only,” The declaration clearly states, in multiple places, that any interest in any of'the lakefront properties in the subdivision is subject to the- easement.

¶6, The covenants ‘also establish the ARC to exercise “architectural control” over the subdivision. Section 10.02 of the covenants provides, as relevant in this case, that “no ... fences ... shall be commenced, erected, constructed[,] ... or permitted to remain on ... any Lot, until after compliance with the review process of this Article X and approval ... by the [ARC].” The review process requires the submission of detailed building and landscaping plans to the ARC. Section 10.03 provides that the ARC must review and approve or disapprove submissions within thirty business days of receipt of all plans. Section 10.03 also states that the ARC shall provide “[w]ritten notice of [its] decision,” which “shall specify the reasons for any disapproval.” Decisions of the ARC may be appealed to the subdivision’s board of directors, and residents are entitled to a hearing before the board.

¶ 7. On or about February 6, 2010, Paul Berlin delivered a handwritten plan, for the construction of a fence on his lot to Jerry Ward, the chair of the ARC. The plan proposed the construction of iron fences commencing on both sides of the Berlins’ home, running to and then continuing down the property lines on the east and west sides of the property, and then finally crossing the twenty-foot maintenance easement and extending three feet out into the lake. The plan also showed a three-foot-wide “walk gate” on one side of the maintenance easement and an eight-foot-wide “access gate” on the opposite side of the easement.

¶ 8. The ARC met within a few days and voted unanimously to disapprove the proposed fence. Ward then met with Paul and explained that the ARC had disapproved the fence because it crossed the maintenance easement and extended into, the lake. Ward suggested that Paul could revise and resubmit' his plan or meet with the ARC. The ARC would have approved a fence with the same design and materials if it had been enclosed on the lakeside of the property and stopped short of the maintenance easement. Ward told Paul that he could also appeal and meet with LPOA’s board of directors. Paul responded that enclosing the fence, rather than extending it into the lake, would cost an additional $5,400. Paul then told Ward that he was not going to meet with the board or the ARC and that he intended to build the fence as proposed, without revisions and without ARC approval.

¶ 9. Ward notified LPOA’s board of directors of Paul’s statement that he. intended to build the fence without ARC approval, and the board contacted' LPOA’s attorney, Don McGraw. On February 26, 2010, McGraw sent a, letter to the Berlins confirming that the ARC had disapproved their proposed fence. McGraw’s letter also stated that he understood that the Berlins had stated that they intended to disregard the ARC’S decision and build the fence anyway. McGraw warned that LPOA would seek, injunctive relief and an award of attorneys’ fees and expenses if the Berlins proceeded in disregard of the ARC’S decision.

¶ 10, The Berlins began construction on their fence at some point in March 2010. Although they, never ■ submitted modified plans to the ARC, they ultimately constructed the fence with three eight-foot-wide gates. Otherwise, the'fence was constructed as originally planned. On March 31, 2010, their attorney sent McGraw a letter informing him that the Berlins intended to proceed with construction of the fence. The letter asserted that the Berlins were entitled to proceed with construction because LPOA failed to give them a written statement of the reasons that the fence was disapproved.

¶ 11. LPOA filed suit in the Madison County Chancery Court on May 20, 2010. LPOA’s complaint asked the court to enforce the subdivision’s covenants, enjoin the Berlins from maintaining their fence without ARC approval, and, order the Berlins to remove the portion of the fence that encroached on LPOA’s maintenance easement. LPOA also requested an award of-attorneys’ fees and other costs. The Berlins filed an answer and counterclaim accusing LPOA of arbitrary and selective enforcement of the covenants. The counterclaim demanded attorneys’ fees, costs, and punitive damages. The parties engaged in discovery, and the case eventually proceeded to trial in January and September 2014.

¶ 12. Paul, Ward, and Steve Horn weré the only witnesses at trial. Horn is a resident of Livingston and the president of its developer, Livingston Development Corporation. Ward and Horn testified that LPOA and its contractors regularly use the maintenance easements that surround the lakes to spray for weed control and to monitor the lakes for beavers and nutria, among other things. They testified that aquatic weeds, beavers, and nutria can cause serious harm to the lakes, which are one of the neighborhood’s essential amenities. Horn testified that a contractor regularly rides along the easements, often on a four-wheeler, looking for any issues that need attention. Ward and Horn testified that weed control is conducted with, a Ku-bota or Polaris utility vehicle equipped with a twenty-five gallon tank-and a sprayer. Ward and Horn- insisted that it was .not practical for LPOA and -its contractors to work through fences that cross the-easement, even if the fences had gates. They noted that the Berlins have three dogs (two bulldogs and a schnauzer), and LPOA did not want to be responsible for keeping dogs inside a fence. In addition, the plans submitted by the Berlins had only one eight-foot-wide “access gate,” which would prevent a utility vehicle or four-wheeler from entering on one side of the property and continuing out the other.

¶ 13. Horn also testified that, a neighbor three, houses down from the Berlins requested permission to build a fence that was similar but was enclosed and stopped short of the maintenance easement. The ARC. approved the plans, and a photograph of the fence was admitted into evidence at trial.

¶ 14. Paul claimed that he had not witnessed anyone performing any type of maintenance or monitoring within the easement in years. He did not believe‘that his gated fence would cause any problems for anyone. He testified that he would be happy to put up his dogs if given a little advance notice. Paul also complained that the ARC had authorized another resident, Darryl Gibbs, to plant shrubs across the maintenance easement on Gibbs’s-property. Paul felt that the ARC had been inconsistent in its enforcement of the covenants.

¶ 15. On June 24, 2015, the chancellor entered an opinion and final judgment finding that the Berlins had violated the covenants and that LPOA was entitled to injunctive relief. The chancellor ordered the Berlins, within sixty days of the judgment, to remove the portions of their fences that encroached on the twenty-foot maintenance easement. The chancellor also awarded LPOA $17,485.58 for attorneys’ fees and expenses, said amount to be paid in full by the Berlins within one year. The chancellor denied all relief requested in the Berlins’ counterclaim. The Berlins filed a timely motion to reconsider or for a new trial, which was denied, and a timely notice of appeal.

DISCUSSION

¶ 16. On appeal, the Berlins make five arguments: (1) that LPOA is not entitled to an injunction because the ARC failed to provide written notice of the reasons for its disapproval of the fence; (2) that the chancellor’s decision is contrary to the law and against the overwhelming weight of the evidence; (3) that LPOA is not entitled to an injunction because the ARC never promulgated rules regarding construction or improvements; (4) that the chancellor should not have awarded attorneys’ fees without holding an additional hearing; and (5) that the chancellor erred by excluding a letter written by LPOA’s attorney in regard to a dispute with another resident. We address each of these contentions below, keeping in mind that “[a]n appellate court employs a limited standard of review in chancery matters.” Gaw v. Seldon, 85 So.3d 312, 316 (¶ 12) (Miss. Ct. App. 2012). “The findings of the chancery court will not be disturbed when supported by substantial evidence unless the court abused its discretion, applied an erroneous legal standard, was manifestly wrong, or committed clear error.” Singh v. Cypress Lake Prop. Owners Ass’n, 192 So.3d 373, 376 (¶ 11) (Miss. Ct. App. 2016).

I. The ARC’S failure to provide a written statement of reasons for its decision does not excuse the Berlins’ violation of the covenants.

¶ 17. The Berlins first argue that “LPOA cannot complain” that the Berlins built their fences without ARC approval because the “ARC did not comply with the covenants.” The Berlins rely on section 10.03 of the covenants, which provides, in relevant part, as follows:

Within 30 business days after receipt of all the Plans, the [ARC] shall review the Plans and shall either approve or disapprove all or any portion of the Plans. Written notice of such decision shall be given to the Developer, Owner or other builder, as the case may be, and such notice shall specify the reasons for any disapproval.

¶ 18. LPOA responds that the ARC complied with section 10.03 because it acted on the Berlins’ request within thirty business days, and section 10.03 does not state that the ARC must provide written notice of the reasons for its decision within that time frame—only that the decision itself must be made. In addition, the Berlins received clear written notice from LPOA’s attorney within about fifteen business days, although the letter did not specify reasons for the ARC’S decision. Ward and Horn also testified that, in other cases, the ARC or the board had been able to resolve issues through informal discussions with homeowners without preparing a formal written statement of reasons. LPOA also argues that a written notice of reasons would have been a hollow and pointless formality in this case because, within fewer than fifteen business days, Ward had orally communicated the ARC’S reasons to Paul, and in response Paul unequivocally stated that he would not resubmit his plans or meet with the ARC or the board. The obvious purpose of the requirement of a statement specifying reasons is to provide a basis for the submission of modified plans or further discussions, and Paul made clear that he had no interest in those options.

¶ 19. We conclude that the Berlins’ argument is without merit. Nothing in the covenants states that a homeowner may proceed with construction simply because he does not receive a written statement of reasons, and the Berlins cite no other authority for their argument.. Their argument sounds like a claim that LPOA has “unclean hands,” but “the clean hands doctrine prevents a complaining party from obtaining equitable relief in court” only if the party “is guilty of willful misconduct in the transaction at issue.” Scruggs v. Wyatt, 60 So.3d 758, 772 (¶ 34) (Miss. 2011) (emphasis added; emphasis omitted) (quoting Bailey v. Bailey, 724 So.2d 335, 337 (¶ 6) (Miss. 1998)). LPOA is not guilty of any “willful misconduct.” Rather, it substantially complied with section 10.03 by promptly informing the Berlins of the reasons for the ARC’S decision. The chancellor did not err by rejecting the Berlins’ argument, even if we assume arguendo that LPOA technically failed to comply with the letter of section 10.03.

II. The chancellor’s ruling was neither contrary to law nor against the overwhelming weight of the evidence.

¶20. The Berlins argue that the chancellor erred by ordering them to remove the parts of their fences that extend through the maintenance easement. We address this argument against the backdrop of a “body of law” that has developed concerning neighborhood homeowners associations’ authority to enforce restrictive covenants. Perry v. Bridgetown Cmty. Ass’n Inc., 486 So.2d 1230, 1233 (Miss. 1986). More than thirty years ago, our Supreme Court “note[d] that one of the unique characteristics of a homeowners association is mandatory membership. Upon taking title to a lot the property owner automatically becomes a member of the association and is subject to the obligations of membership and enforcement of the covenants.” Id. “A second unique characteristic of a homeowners association is the power of the association to control the use and enjoyment of property. The extent of the power is defined in the declaration, but usually encompasses use and size of buildings upon individual lots and regulation of the property commonly enjoyed by all lot owners.” Id. As in this case, an association may, by covenant, require preapproval of all planned construction and alterations, and it may delegate its power to approve or disapprove such plans to a neighborhood architectural review committee. See Goode v. Vill. of Woodgreen Homeowners Ass’n, 662 So.2d 1064, 1074-75 (Miss. 1995). Such covenants are clearly valid and enforceable under Mississippi law. See id. at 1075.

ÍI21. Our Supreme Court has held that

the association is not beyond review in administration of these powers. The declaration [of covenants] gives rise to review in law or in equity by any lot owner. Review by the court must be guided by the intent stated in the declaration of purpose and judged by a test of reasonableness. Applying a reasonableness standard to a regulation, this Court will consider not only the rights of the individual owner, but also the rights of the other association members who expect maintenance in keeping with the general plan of development for the subdivision.

Perry, 486 So.2d at 1234 (citation omitted).

¶ 22. The issue in this appeal arises in the context of restrictive covenants that not only grant LPOA a maintenance easement across the Berlins’ property but also require the Berlins to obtain LPOA’s approval prior to the construction of any new fence on their property. The issue also arises in the context of the Berlins’ decision to build their fences without ARC approval and in willful disregard of the ARC’S disapproval, which was a clear violation of the covenants. In this context, it is not this Court’s role to decide de novo whether the Berlins’ fences are an unreasonable interference with LPOA’s ease-mént. Rather, our only role is to determine whether “powers granted [to LPOA and the ARC] through the restrictive covenants .. . were reasonably applied.” Goode, 662 So.2d at 1075. That is, the only issue for judicial .determination is whether LPOA and the ARC acted unreasonably when they decided that the fences would interfere with use of the easement. In applying this standard, we must “consider not only the rights of the individual owner, but also the rights of the other association members who expect maintenance in keeping with the general plan of development for the subdivision.” Id. (quoting Perry, 486 So.2d at 1234).

¶ 23. The covenants expressly state that the ARC may disapprove plans for a proposed fence or other improvement to any lot for, inter alia, “any .., reason or reasons which are not arbitrary or capricious, including, but not limited to, aesthetic considerations.” Again, such a restriction is ’ valid and enforceable under Mississippi law. Goode, 662 So.2d at 1075. Moreover, we cannot say that LPOA has enforced the covenant or exercised its authority in an unreasonable manner. Horn and Ward testified that contractors and others regularly require access to maintenance'easements in order-to monitor the lake for pests and aquatic weeds-that can cause serious harm to Livingston’s lakes, which are one of the subdivision’s essential features. The chancellor found their testimony credible, and the chancellor’s findings are supported by substantial evidence and are not clearly erroneous.

¶ 24. The Berlins counter that any person who needs to access the easement can easily -open and shut their gates and drive four-wheelers or other utility vehicles in and out. Paul also testified that he would put up his dogs while any * maintenance personnel are present. However, if all lakefront property owners constructed similar fences, persons performing maintenance on the lake would have to contact each homeowner in advance to request that any animals be put up and would have to open and shut gates throughout the neighborhood, rather than riding along the lakeshore uninterrupted. We cannot say that LPOA and the ARC acted unreasonably in concluding that these and other potential issues would interfere with necessary access to the maintenance easement.

: ¶ 25. In arguing that the chancellor’s ruling is contrary to law and against ■the overwhelming weight of the evidence, the Berlins primarily rely on this Court’s opinion in Gaw v. Seldon, 85 So.3d 312 (Miss. Ct. App. 2012). In that case, Gaw owned á forty-foot easement across Seldon’s property.. Id. at 314 (¶ 1). Seldon built brick columns at the entry to his property that encroached on Gaw’s easement by nine and a half feet. Id. at 314, 316 (¶¶ 1, 9). Gaw filed a complaint seeking removal of the columns, but the chancellor found that the columns did not interfere with Gaw’s reasonable use of the easement for ingress and egress, which was “the express purpose of the easement.” Id. at 316-17 (¶¶ 9, 15). Gaw claimed that he planned to build a barn and house on his property in the future, and he asserted that “the columns might prevent, large pieces of construction equipment from traveling along his easement[.]” Id. at 317 (¶15). But he admitted that he had not begun any construction. Id. The chancellor reasoned that the columns could remain until Gaw showed actual interference with his reasonable use of the. easement. Id. On appeal, this Court affirmed the chancellor’s decision in relevant part. Id.

¶26. Gaw is distinguishable in several material respects. First, Gaw did not involve a homeowners association or restrictive covenants. Second, the easement owner in Gaw had not reserved unto himself broad authority to approve or disapprove any new construction on the easement. In this case, as discussed above, LPOA did exactly that. Third, the columns at issue in Gaw extended less than ten feet onto a forty-foot easement, whereas the Berlins’ fences extend across the entire twenty-foot easement at issue here. The Berlins rely on Gaw primarily for its conclusion that the columns could remain until such time as the easement owner could show actual interference with his use of the easement, as opposed to mere potential interference. However, the chancellor in this case reached a different factual conclusion based on the evidence presented. As the chancellor discussed, LPOA’s witnesses testified that the Berlins’ fences interfere with their current use of. the, easement, eyen if the fences do not- prevent access. The chancellor’s findings and credibility determinations on this issue are not clearly erroneous. Thus, Gaw is distinguishable for several reasons, the most significant being that it did not involve judicial review of a homeowners association’s exercise of its lawful authority to approve or disapprove new construction.

¶27. In concluding our discussion of this issue, we emphasize that, in exercising its lawful authority to review and approve construction plans, LPOA never attempted to prevent the Berlins from having a fence on their property. LPOA simply required that the fence on the 3.56-acre lakefront property stop just short of LPOA’s maintenance easement rather than extending across the easement and -out into the subdivision’s common lake. A neighbor three doors down from the Berlins built just such a fence with the ARC’s approval and without incident In reviewing ■ the reasonableness of LPOA’s decision, “this Court will consider not only the rights of the individual owner, but also the rights of the other association members who expect maintenance in keeping with the general plan of development for the subdivision.” Perry, 486 So.2d at 1234. We cannot say that the requirement placed on the Berlins’ fences was an unreasonable one. By' moving into a covenant-restricted community, the Berlins agreed to abide by the neighborhood covenants and the reasonable regulation of the homeowners association. That is the nature of the deal. The chancery court’s judgment enforcing the covenant at issue here- was neither contrary- to law nor against the overwhelming weight of, the evidence.-

III. LPOA’s other alleged noncompliance with the covenants does not excuse the Berlins’ violations.

¶ 28. The Berlins next make a cursory argument that LPOA is estopped from enforcing .the covenants, because LPOA did not “provide evidence” at trial that it had adopted construction rules and regulations, as it is permitted to do by the declaration of covenants. Section 4.02(d) of the covenants provides that LPOA’s board has the power, authority, and duty “[t]o adopt, promulgate and enforce such rules, regulations, restrictions and requirements as may be recommended by the [ARC] ..., or as the [b]oard may consider to be appropriate” (emphasis added). Section 10.06 likewise provides that the board “may adopt and promulgate such rules and regulations” or publish policies or standards “as may be considered necessary” (emphasis added). Nothing in the declaration requires the board to do adopt such rules. Moreover, nothing in the declaration makes the covenants unenforceable if the board does not issue such rules or regulations. The Berlins’ argument is without merit.

IV. The chancellor was not required to hold a hearing on the reasonableness of LPOA’s attorneys’ fees.

¶29. The Berlins argue that the chancellor erred in awarding attorneys’ fees to LPOA without conducting a hearing on the reasonableness of the amount awarded. This issue requires discussion of some additional procedural background.

¶ 30. At the conclusion of LPOA’s casein-chief in September 2014, LPOA’s attorney in the litigation, James L. Martin, requested permission to wait until after the conclusion of the trial to submit an affidavit regarding LPOA’s attorneys’ fees and costs. The chancellor granted his request, and Martin then asked whether LPOA would “be permitted to have a hearing as to the reasonableness of those fees.” The chancellor responded, “Yes, of course. Always.” The next day, at the conclusion of the trial, the chancellor gave the parties oral instructions regarding post-trial briefing and submissions, which included the following: “[T]he parties each ask that their attorneys be allowed to present testimony of fees ... at a later date. This Court hereby requires the same to be done in writing. The affidavit ... as to the reasonableness and necessity of said services can be attached thereto.” In her final instructions to the parties, the chancellor did not mention a hearing on attorneys’ fees; rather, she indicated that she would issue her opinion after receiving the parties’ submissions.

¶ 31. On November 14, 2014, Martin filed an affidavit in support of LPOA’s request for attorneys’ fees and costs of $17,485.58. Martin stated that he had over thirty years of experience as a practicing attorney, including significant experience in real property matters, and that his usual hourly rate was $300. Martin’s affidavit also addressed the other factors set out in Rule 1.5 of the Mississippi Rules of Professional Conduct. Martin attached an itemization and hourly breakdown of his work on the case, which showed a total of 59.75 hours billed from 2010 to 2014. On November 17, 2014, one of the Berlins’ attorneys filed a similar affidavit in support of then-request for $31,637.50 in attorneys’ fees and costs, along with itemized billing records. The Berlins’ request for attorneys’ fees was based on approximately 125 hours of attorney time at a rate of $250 per hour.

¶ 32. On June 24, 2015, the chancellor issued her opinion and final judgment and found that LPOA was entitled to recover $17,485.58 in attorneys’ fees and costs pursuant to section 14.01 of the covenants. In their motion for reconsideration or a new trial, the Berlins objected that they had not been “afforded an opportunity to contest ,.. whether [LPOA’s attorneys’ fees] were reasonable and necessary.” LPOA responded that the chancellor’s post-trial instructions put the Berlins on notice that the court intended to rule on the issue without a further hearing. LPOA also argued that its attorney’s affidavit was sufficient and that no hearing was necessary. On September 3, 2015, the chancellor denied the Berlins’ motion without specifically addressing the issue of attorneys’ fees.

¶ 33. The Berlins do not dispute that a prevailing party in an action to enforce the covenants is entitled to an award of attorneys’ fees, and section 14.01 makes clear that a prevailing party is entitled to such an award. See Journeay v. Berry, 953 So.2d 1145, 1162-63 (¶¶ 63-66) (Miss. Ct. App. 2007) (holding that valid restrictive covenants are contractual in nature and therefore may support an award of attorneys’ fees). However, “[a] contractual provision to pay attorney’s fees is not a blank check; it is limited by the reasonableness of the fee which includes an analysis of whether work performed was actually necessary.” Pikco Fin. Inc. v. Staten (In re Staten), 559 B.R. 666, 674 (Bankr. S.D. Miss. 2016). “[W]e review the issue of the reasonableness of the trial court’s award of attorneys fees applying an abuse of discretion standard. This Court will not disturb the finding of the trial court on such an issue unless it is manifestly wrong or exhibits a manifest abuse of discretion.” Microtek Med. Inc. v. 3M Co., 942 So.2d 122, 130 (¶ 24) (Miss. 2006), abrogated'on other grounds by Upchurch Plumbing Inc. v. Greenwood Utils. Comm’n, 964 So.2d 1100, 1116-17, (¶¶ 41-43) (Miss. 2007). “In this context, the word ‘manifest’ has been defined to mean ‘unmistakable, clear, plain, or indisputable.’” Id. (quoting Mosley v. Mosley, 784 So.2d 901, 904 (¶7) (Miss. 2001)).

¶ 34. No rule requires a chancellor to hold a hearing prior to making a determination as to the reasonableness of requested attorneys’ fees. In addition, Mississippi Code Annotated section 9-1-41 (Rev. 2014) provides:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.[]

Finally, although a chancellor generally should provide some on-the-record analysis of the factors set out in Rule 1.5 of the Rules of Professional Conduct, the failure to do so is not per se reversible error, and the chancellor’s 'award may be upheld so long as the amount is “not unreasonable.” West v. West, 88 So.3d 735, 747 (¶ 58) (Miss. 2012); see Jordan v. Jordan, 105 So.3d 1130, 1135-36 (¶¶ 24-28) (Miss. Ct. App. 2012) (Fair, J., specially concurring).

¶ 35. Given the history of this litigation, the amount of fees awarded by the chancellor was “not unreasonable,” and we cannot say that she abused her discretion. The case was pending for five years and involved multiple depositions, a two-day trial, a motion to reopen the ease, and other post-trial briefing and motions. Nonetheless, LPOA requested and was awarded attorneys’ fees for less than 60 hours of attorney time. We also note that the Berlins claimed that they were entitled to a considerably larger award of attorneys’ fees and costs ($31,637.50 as compared to $17,485.58) and claimed that their lawyers reasonably spent more that twice as many hours working on the case (about ’ 125 hours as compared to about 60 hours). If the Berlins’ fee request was even in the ballpark of-“reasonable,” then the chancellor’s award to LPOA cannot be unreasonable. Finally, we note that although LPOA’s attorney filed his detailed time records with his affidavit in November 2014, the Berlins 'have never identified any duplicative or unnecessary time entries or articulated any way in which LPOA’s're-quested fees are unreasonable. Given the particular facts and history of this case, the amount of fees awarded was not unreasonable, and we cannot say that the chancellor abused her discretion by awarding fees without a hearing or additional findings of fact. See West, 88 So.3d at 747 (¶ 58), Accordingly, the award of attorneys’ fees is affirmed.

V. The chancellor did not abuse her discretion by refusing to admit a letter that LPOA’s attorney wrote regarding another case.

¶36. Horn testified on cross-examination that in 2007 another Livingston resident, Greg Giurintano, built a fence across the maintenance easement on his property. Horn objected to the fence and asked Giurintano to move it, but Giurinta-no refused. Horn testified that in the early years of the development before many lots were sold, he essentially acted as the ARC, and he was unsure whether the ARC was functioning when the Giurintano dispute began. Horn also testified that he and Giurintano were once friends but had a falling out over the fence dispute. The Berlins’ attorney then asked, “[Han’t it true that jfall settled that issue back in 2007?” Horn denied that the dispute had been settled and testified that it was still the subject of a separate lawsuit, also pending in the Madison County Chancery Court.

¶ 37. The Berlins then attempted to introduce a letter dated November 13, 2007, from Don McGraw to the Giurintanos’ at- • torney that stated in part as follows:

[LPOA] inquired as to the status of the fencing issue and I told them that you and I had spoken in the last two or three weeks but had not finalized anything. To reiterate:
1. The fencing as it travels to the water’s edge will be allowed as long the entry gate into the Giurintano’s [sic] . yard is at least 10 feet wide.
3. The fencing on the west side of the lot needs to be moved to the lot .line so that it will not interfere with the lake access easement as provide for on the plat.
Livingston would like to have resolutions to these matters within ten (10) days.
I look forward to hearing from you.

Horn then testified that McGraw was not authorized to permit the Giurintanos’ fence to extend across the maintenance easement.

¶ 38. LPOA objected to the letter being introduced into evidence and to further questions about it, arguing that the dispute with the Giurintanos was irrelevant to the issues in the Berlins’ case. The chancellor sustained LPOA’s objections. On appeal, the Berlins argue that the chancellor abused her discretion by excluding the letter because it was evidence that LPOA had acted arbitrarily and capriciously in disapproving their fence plans.

¶39. “Whether evidence is relevant and/or admissible is left to the discretion of the chancellor, and reversal occurs only where that discretion has been abused.” Prestridge v. City of Petal, 841 So.2d 1048, 1059 (¶ 53) (Miss. 2003). “Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the , evidence; and (b) the fact is of consequence in determining the case.” M.R.E. 401. “Irrelevant evidence is not admissible.” M.R.E. 402.

¶ 40. We cannot say that the chancellor abused her discretion by excluding the letter. In the letter itself, McGraw stated that he had told LPOA that he “had not finalized anything” “as to the status of the fencing issue”; Horn denied that McGraw had authority to allow the Giurintanos’ fence to cross the maintenance easement; and it appears that nothing was ever settled or finalized, since the issue with the Giurintanos’ fence remained in litigation years later. Under the circumstances, the chancellor did not abuse her discretion in finding that the letter was irrelevant. Furthermore, there is nothing to indicate that exclusion of the letter had any impact on the chancellor’s ultimate findings and conclusions.

CONCLUSION

¶ 41. The chancellor’s judgment and findings are supported by substantial evidence and are neither contrary to law nor clearly erroneous. Wé reject the Berlins’ arguments that LPOA’s alleged noncompliance with the covenants excuses the Berlins’ own clear violations of the covenants. Finally, the chancellor’s award of attorneys’ fees was reasonable, and she did not abuse her discretion by awarding such fees without a hearing or.by excluding a letter related to LPOA’s dispute with another resident.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES,.ISHEE, CARLTON,. FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . In general, the owner of the servient estate may build a fence on an easement if (1) the fence is expressly permitted by or consistent with the intent of the easement grant or (2) "intent is undeterminable, but ... the fence ,does not unreasonably interfere with” use of the easement by the owner of the dominant estate. Calvert v. Griggs, 992 So.2d 627, 632 (¶ 14) (Miss. 2008) (citing Rowell v. Turnage, 618 So.2d 81, 87 (Miss. 1993)).

      . The argument is also procedurally barred because the Berlins failed to raise the issue in the chancery court. See, e.g., City of Hattiesburg v. Precision Constr. LLC, 192 So.3d 1089, 1093 (1118) (Miss. Ct. App. 2016) (applying the “long-established rule” that issues not raised in the trial court will not be considered on appeal).

      . See Tupelo Rede v. Agency v. Gray Corp., 972 So.2d 495, 521 (¶79) (Miss. 2007) ("Rule 1.5 ... sets out several factors which the trial court should consider in determining the reasonableness of the amount of attorneys' fees.”). The Rule 1.5 factors are similar to the factors discussed in McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982).

      . Section 9-1-41 applies "[i]n any action” in which an award of reasonable attorneys’ fees is authorized and thus applies regardless of whether the' award is based on a statute, a contractual provision, or common law. See Staten, 559 B.R. at 670 n.4.

      . In the chancery court, the Berlins filed a motion to consolidate their case with a case captioned LPOA v. Anna Marie Giurintano. The Giurintano case arose from a complaint for injunctive relief filed by LPOA, which alleged that the Giurintanos violated the covenants by constructing a fence without submitting plans to the ARC for approval. The Giurintanos were represented by the same attorneys 'as the Berlins and joined in the motion to consolidate. However, the chancery court denied the motion, and the record in this appeal does not-include additional information about the Giurintano case.


author: GREENLEE, J.,

text:
    Jimi MOSELY, Individually and as a Personal Representative of the Estate and Heirs-at-Law and/or Wrongful Death Beneficiaries of Gerboria Mayfield, Deceased, Appellant v. BAPTIST MEMORIAL HOSPITAL-GOLDEN TRIANGLE, INC., Brandy Adams-Hall, R.N. and Jennifer Gilliam, R.N., Appellees Jimi Mosely, Individually and as Proposed Guardian of the Estate of Gerboria Mayfield, and on Behalf of the Heirs and Wrongful Death Beneficiaries of Gerboria Monique Mayfield, Deceased, Appellant v. Gregory W. Childrey, M.D., Appellee
    NO. 2015-CA-01380-COA, NO. 2015-CA-01517-COA
    Court of Appeals of Mississippi.
    04/25/2017
    Rehearing Denied August 8, 2017
    Certiorari Denied November 16, 2017

      ATTORNEYS FOR APPELLANT: .CARLOS EUGENE MOORE, TANGALA LANIECE HOLLIS, TAMEIKA LA-DANYA BENNETT, DARRYL ANTHOt NY WILSON
    ATTORNEYS FOR APPELLEES: DAVID W. UPCHURCH, JOHN MARK MCINTOSH, J. GORDON FLOWERS, SCOTT FULLER SINGLEY, LAUREN ÓAKS LAWHORÑ
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Gerboria Mayfield, died at Baptist Memorial Hospital-Golden Triangle (BMH-GT) following complications from a cesarian section. Jimi Mosely, as representative of Mayfield’s estate, brought a wrongful-death action based on the tort of medical negligence against Mayfield’s doctor, Gregory Childrey, and against BMH-GT (.Mosely I). BMH-GT was dismissed without prejudice from the action pretrial due to Mosely’s inadequate pleading as to causation. Mosely’s subsequent motion to amend the complaint to join BMH-GT back as a defendant was denied as untimely. Mosely then filed a second action (Mosely II) naming BMH-GT and two nurses, Brady Adams-Hall and Jennifer Gilliam, as defendants. The court denied Mosely’s motions to consolidate Mosely I and Mosely .II and granted BMH-GT’s and Gilliam and Adams-Hall’s -respective “Motion to Dismiss, or, in the Alternative, for Summary Judgment” in Mosely II on the ground that Mosely II was barred, by the two-year statute of limitations. From Mosely I, Mosely appeals the pretrial denial of the motion to amend the complaint to join BMH-GT back into the action. From Mosely II, Mosely appeals the dismissal of the case with prejudice. We consolidated the two cases for appellate review. Finding no error in either case, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. On August 23, 2011, Mayfield died at BMH-GT from a perforated gastric ulcer several days after delivering twins via cesarian section. On October 22, 2013, her estate representative filed suit against both, -her treating physician and BMH-GT following compliance with the notice requirements of Mississippi Code Annotated section 15-1-36(15) (Rev. 2012). .Presuit notice was given on August 21, 2013, one day prior to the expiration of the two-year statute of limitations. The suit against BMH-GT was based on the theory of re-spondeat superior. No individual employees were named in the .complaint or served with presuit notice.

¶ 3. On November 26, 2013, BMH-GT moved to be dismissed from the action due to the complaint’s failure to allege proximate causation as to BMH-GT. Following a hearing held in January 2014, this motion was granted on March 27, 2014. On May 6, 2014, the parties entered into an agreed scheduling order setting the deadline for joinder of parties and amendments to the pleadings for June 1, 2014, with a trial date of -November 17, 2014. A final judgment -dismissing BMH-GT without prejudice was entered on May 12,2014. On September 3, 2014, Mosely moved to amend her complaint to add BMH-GT back in as a defendant. The court denied the motion, stating in its order that the motion “should be denied because of the delay in seeking the relief at this time, which would cause undue burden and expense for the defendant.”

¶ 4. On November 4, 2014, Mosely filed a new, separate complaint naming as defendants BMH-GT and two individual nurses involved in Mayfield’s care, Gilliam and Adams-Hall. Mosely then filed a series of motions to consolidate Mosely I and Mosely II. Mosely did not provide presuit notice to BMH-GT or to Gilliam and Adams-Hall prior to filing Mosely II. The motions to consolidate were denied. The defendants respectively moved to be dismissed from Mosely II. At the hearing on the motions to dismiss, Mosely conceded that the second action should be dismissed under Arceo v. Tolliver, 949 So.2d 691, 697-98 (¶ 16) (Miss. 2006), due to lack of presuit notice, but argued that the dismissal should be without prejudice. Mosely then verbally renewed the motion to amend Mosely I.

¶ 5. Noting that the only issue for it to decide was whether the dismissal should be with or without prejudice, the trial court dismissed Adams-Hall and Gilliam from Mosely II with prejudice due to the expiration of the statute of limitations. By a separate order, the. trial court also dismissed BMH-GT from Mosely II with prejudice on the ground that expiration of the statute of limitations as to the employees extended to the employer where the sole complaint against the employer was on the basis of respondeat superior.

¶6. Mosely appeals the denial of the motion to amend the complaint in Mosely I, the denial of the various motions to consolidate, and the dismissal of Mosely II with prejudice.

DISCUSSION

I. The trial court did not err in denying Mosely’s motion to amend the complaint.

¶ 7. A trial court’s grant or denial of a motion to amend the complaint is reviewed for abuse of discretion, and motions to amend .should be denied where there has been undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, or where the amendment would cause undue prejudice to the opposing party or be futile. Webb v. Braswell, 930 So.2d 387, 393 (¶ 9) (Miss. 2006); Moeller v. Am. Guar. and Liab. Ins., 812 So.2d 953, 962 (¶28) (Miss. 2002).

¶8. Trial courts are required by Mississippi Rule of Civil Procedure 15(a) to provide plaintiffs an opportunity to amend complaints that have been dismissed pursuant to Mississippi Rule of Civil Procedure 12(b)(6) “when justice so requires” and “upon conditions and within' time as determined by the court.” M.R.C.P. 15(a). We find that the trial court satisfied the mandate of Rule 15(a) by approving a scheduling order that gave Mosely time to amend her complaint following BMH-GT’s motion to dismiss under Rule 12(b)(6) for failure to state a claim, and that the trial court did not subsequently abuse its discretion in denying the motion to amend when the motion was filed three months after the scheduling deadline. -See Hartford Cas. Ins. v. Halliburton Co., 826 So.2d 1206, 1219 (¶ 47) (Miss. 2001) (motion to amend properly denied as untimely when made after scheduling deadline).

¶ 9. Mosely 'was put on notice of the complaint’s failure to plead proximate causation as to BMH-GT when BMH-GT moved to dismiss in November 2013. Yet Mosely delayed until September 2014 before filing a motion to amend the complaint, by which time a hearing on the motion to dismiss had been held, the motion had been granted, and a new scheduling deadline granting Mosely time to cure the pleading defect had expired by a significant amount of time. The trial court therefore did not err in denying the motion to amend on the ground of undue delay.

II, The trial court did not err in granting the defendants’ “Motion to Dismiss, or, in the Alternative, for Summary Judgment” with prejudice in Mosely II.

¶ 10. Statute-of-limitations issues are questions of law reviewed de novo. Fletcher v. Lyles, 999 So.2d 1271, 1276 (¶ 20) (Miss. 2009).

¶ 11. The trial court correctly determined that Gilliam and Adams-Hall should be dismissed with prejudice from Mosely II due to the expiration of the two-year statute of limitations applying to torts sounding in medical negligence. Nurses Gilliam and Adams-Hall were not named as defendants in Mosely I and were not given presuit notice in either Mosely I or II. Therefore, the statute of limitations as to them expired on August 22, 2013, two years after Mayfield’s death and months prior to the filing of Mosely II.

¶ 12. We also find that the trial court appropriately dismissed BMH-GT with prejudice when Mosely renamed BMH-GT as a defendant in Mosely II. As Mosely concedes, section 15-1-36(15) requires notice to be given prior to filing suit even if that defendant was properly served presuit notice in a previous action. Arceo v. Tolliver, 19 So.3d 67, 71 (¶¶ 12-13) (Miss. 2009). But while, “[o]rdinarily, dismissal without prejudice is appropriate where ... dismissal of a suit was based upon a plaintiffs failure to comply with statutory pre-suit notice provisions!,] ... where a suit is dismissed for any reason and the statute of limitations has expired, dismissal with prejudice is warranted.” Id. at 75 (¶42).

¶ 13. Specifically addressing the employee-employer relationship between a nurse and her employer in a wrongful-death action, the Mississippi Supreme Court held in Lowery v. Statewide Healthcare Serv., Inc., 585 So.2d 778, 780 (Miss. 1991), that “a suit barred by a statute of limitation against an agent will likewise bar the same claim against the principal whose liability is based solely upon the principal and agency relationship, and not some act or conduct of the principal separate and apart from the act or conduct of the agent.” The statute of limitations had expired as to Gilliam and Adams-Hall at the time Mosely II was filed. Because the claim against BMH-GT was based solely on the theory of respondeat superior, the statute had also expired as to BMH-GT. Therefore, even if Mosely had served BMH-GT pre-suit notice prior to filing Mosely II, the action would still have been barred.

¶ 14. Mosely asserts that “the savings statute” — Miss. Code Ann. § 15-1-69 (Rev. 2012) — operates to make Mosely II timely filed. The statute does apply in medical-malpractice suits where a complaint was filed within the statute of limitations but the plaintiff failed to provide presuit notice. Arceo, 19 So.3d 67. On the facts of this case, the savings statute would not apply to defendants Adams-Hall and Gilliam because they were not sued within the statute of limitations.

¶ 15. As to BMH-GT — who in Mosely I was timely given presuit notice and timely sued — Mosely is unable to point to any authority that indicates that the savings statute would apply to a situation in which a motion to amend was denied due to undue delay. Rule 15(a) operated to grant Mosely additional time to cure the defect in her pleading as to causation, and she did not take advantage of that opportunity.

¶ 16. Mosely also argues that she should be able to join Gilliam and Adams-Hall to Mosely I via Mississippi Rule of Civil Procedure 9(h). This argument is without merit. Rule 9(h) provides for the substitution of parties via amendment to a complaint that named fictitious parties. Mosely did not name fictitious defendants in the Mosely I complaint or ever file a motion to amend Mosely I on Rule 9(h) grounds. She simply named Adams-Hall and Gilliam as defendants in a new, independent action more than two years after the statute of limitations had expired.

CONCLUSION

¶ 17. In Mosely I, the trial court did not abuse its discretion in denying the motion to amend as untimely. In Mosely II, the trial court did not err in finding the action barred with prejudice as to all defendants by the statute of limitations. The denial of the motions to consolidate were appropriate given the statute-of-limitations bar.

¶ 18. THE JUDGMENTS OF THE LOWNDES COUNTY CIRCUIT COURT ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Dr. Childrey was not directly employed by the hospital.

      . Mosely’s interlocutory appeal challenging the denial of the motion to amend was denied.

      . This operated to extend the statute of limitations by'sixty'days as to the defendants given notice.

      . The plaintiff originally proceeded under the erroneous assumption that Dr. Childrey was an employee of BMH-GT.

      .This motion to amend was renewed almost a year later following the continuance of trial due to Mosely’s failure to secure the attendance of her expert in time for the originally scheduled November 2014 trial. The motion was again denied as untimely, The trial was held in August 2015, and the jury entered a verdict in favor of Dr. Childrey. The jury verdict in favor of Dr. Childrey was not appealed.

      . A previous version of Rule 15(a) provided that leave to amend following a 12(b)(6) dismissal was mandatory with a deadline of thirty days. Interpreting that earlier version of the rule, the Mississippi Supreme Court noted in Poindexter v. S. United Fire Ins. Co., 838 So.2d 964, 970 (¶ 29) (Miss. 2003), the absence of discretionary language such as “when justice so requires.” While the new version of the rule maintains the mandatory "shall,” it is clearly designed to give greater discretion to the trial court by replacing the thirty-day deadline with "within time as determined by the court” and adding "when justice so requires.”

      . We note that Mosely II is also likely barred under the doctrine prohibiting claim-splitting, but do not find it necessary to arrive at that issue. See Carpenter v. Kenneth Thompson Builder Inc., 186 So.3d 820, 824 (¶ 11) (Miss. 2014) (filing a second action and moving to consolidate for the purpose of avoiding a procedural bar in the original action is prohibited).


author: ISHEE, J.,

text:
    Terrance Montreal JENKINS a/k/a Terrence Jenkins a/k/a Terrance Jenkins a/k/a T-Bisket, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00206-COA
    Court of Appeals of Mississippi.
    05/02/2017
    Rehearing Denied August 8, 2017
    Certiorari Denied October 26, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. Terrance Jenkins was convicted in the Leflore County Circuit Court of armed robbery and sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC). Jenkins brings threé issues for our review: (1) whether there was sufficient evidence tó support the verdict; (2) whether' the verdict was contrary to the overwhelming weight of the evidence; and (3) whether jury instruction 5, offered as S-3, constructively amended his indictment. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In December 2014, Henry Hampton cashed a settlement check that stemmed from a motor-vehicle accident, in an amount of approximately $4,0Q0. Then Hampton purchased a, new pistol — leaving him with $3,600 cash in his pocket. Jenkins, Centrelle Neal, and Carter Neal learned of Hampton’s settlement proceeds, and they devised a plan to rob him. Jenkins called around to some of his friends until he eventually found where Hampton was located. Next, Jenkins, Centrelle, and Carter picked Hampton up,, and drove to the liquor store. At trial, Carter testified that Jenkins was carrying a gun of his own, but he did .not have any ammunition. While Hampton was inside the liquor store, the three men discussed their plan to rob Hampton. Hampton got back in the vehicle, and the group left the liquor store.

¶3. Next, Jenkins drove to a secluded road, and-said that he had to stop to use the restroom. When Jenkins got out, Hampton also -got out so that he could shoot the gun that he had purchased earlier that day. Jenkins asked Hampton if-he could shoot Hampton’s gun. Jenkins snatched Hampton’s gun, shot it several times, and then put the gun on the floorboard of the driver’s side of the vehicle.

¶4. According to Carter, Jenkins told Hampton to come shoot the gun again. Then Jenkins grabbed Hampton, choked him, and pushed him to the' ground. Just as they had -planned, Centrelle got out and attempted to grab Hampton’s money from his pants pocket. But Hampton fought back, and Centrelle failed to get the money. During the course of the scuffle, Jenkins punched Hampton in the face. Hampton fled to the woods — with Jenkins chasing after him.

¶ 5. Jenkins emerged from the woods holding both his own gun and the money. Then Jenkins, Centrelle, and Carter drove to the “Triple Stop” — a local gas station. While there, one of the three contacted Deputy. Rodney Spencer, and had Spencer meet Jenkins at the car wash.- Before Spencer arrived, Jenkins -hid the money and his gun in the back of the vehicle,

¶ 6. Once Spencer arrived at the car wash, and he and Jenkins started talking, Centrelle and Carter drove off. During Jenkins and Spencer’s conversation, Jenkins told him that Hampton had tried to shoot and kill him. Jenkins told Spencer that he was able to take Hampton’s gun away from him during the altercation. Jenkins then handed Hampton’s gun to Spencer.

¶ 7. Spencer and Jenkins then rode to the scene of the incident — where they found Hampton staggering down the road. Hampton was disoriented, he was bleeding from his nose and mouth, and he was upset. Spencer then called an ambulance, and Hampton was rushed to the hospital. While at the hospital, Hampton told a number of people that he was robbed by Jenkins, Carter, and Centrelle. After further investigation, and the recovery of some of the stolen money, Jenkins was detained, and later indicted on the charge of armed robbery.

¶ 8. At trial, Hampton testified that he never saw Jenkins point a weapon at him during the entire incident. Yet Hampton testified that he was fearful that he would get shot. And when asked if he was worried that he might be shot by Jenkins, Hampton testified that he was worried. At trial, the State presented six witnesses— all of whom testified about the events surrounding the robbery. The defense counsel, however, did not call any witnesses, and conceded that while the State had proven that Jenkins robbed Hampton, the State did not prove that Jenkins used a gun during the robbery. And so, the defense counsel moved for a directed verdict, which the trial judge denied.

¶ 9. After considering all of the evidence that was presented, and having been instructed on both armed robbery and simple robbery, the jury found that Jenkins was guilty of armed robbery. Jenkins was then sentenced to a term of twenty years in the custody of the MDOC, with ten years to serve followed by five years of post-release supervision and five years of unsupervised probation. On January 20, 2016, Jenkins moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. This motion was denied by the trial judge. Jenkins now appeals.

DISCUSSION

I. Sufficiency of the Evidence

¶ 10. Jenkins claims there was insufficient evidence to find him guilty of armed robbery, because there was no proof that the taking in this case was accomplished by putting Hampton in fear by the display of a deadly weapon.

¶ 11. A motion for a JNOV is a challenge to the legal sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). When assessing the legal sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Nolan v. State, 61 So.3d 887, 893 (¶24) (Miss. 2011) (quoting Bush, 895 So.2d at 843 (¶ 16)). If the facts and inferences point in favor of the defendant with sufficient force that reasonable people could not have found the defendant guilty beyond a reasonable doubt, then the reviewing court must reverse and render. Bush, 895 So.2d at 843 (¶ 16) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)).

¶ 12. According to Jenkins’s indictment, the State was required to prove that Jenkins unlawfully, willfully, and felo-niously took, or attempted to take, Hampton’s personal property from his person or from his presence, against Hampton’s will by putting him in fear of immediate injury by the exhibition of a handgun. We have held that a victim’s assumption that a weapon was used is not sufficient to sustain an armed-robbery conviction. Blue v. State, 827 So.2d 721, 724 (¶ 7) (Miss. Ct. App. 2002). Indeed, there must be actual evidence demonstrating the exhibition of a gun. Id. Additionally, the State is required to prove that the accused placed the victim in fear as a means to accomplish the armed robbery. See Clayton v. State, 759 So.2d 1169, 1172 (¶ 8) (Miss. 1999).

¶ 13. Here, the State offered sufficient evidence to show that Jenkins used a gun during the robbery, and that his use of the gun was intended to intimidate or cause fear in Hampton. First, the evidence was sufficient to show that Jenkins used a gun to effectuate the robbery. The record indicates that not only did Jenkins bring his own gun in preparation for the robbery, but he also snatched Hampton’s gun away from him, shot it twice, and then placed it where Hampton could- not get to it. Furthermore, Carter testified that when Jenkins emerged from the woods, and yelled that he had the money, Jenkins was also carrying -his . own gun. The gun Jenkins was holding had to be his gun, because Hampton’s gun was in the vehicle — out of Hampton’s reach.

¶ 14. Second, the evidence was sufficient to show that Hampton was placed in fear by Jenkins’s use of a firearm. Hampton testified that during the altercation he “was in a state of shock because [he] did not expect to get out of there.” Also, when asked if he was “worried that [he] may be shot by Jenkins,” Hampton responded, “yeah.” The record reflects that due to Hampton’s disabilities, many of his answers were not clear. But we find that— through Hampton’s testimony — a rational trier of fact cohid have found that Hampton was placed in fear by Jenkins’s use of a firearm.

¶ 15. After reviewing the evidence in light most favorable to the prosecution, we find that a reasonable juror could have concluded that Jenkins was able to successfully rob Hampton by using his gun to place him in fear. Thus there was sufficient evidence to find Jenkins guilty of armed robbery. This issue is without merit.

II. Weight of the Evidence

¶ 16. Next, Jenkins claims that the verdict is not supported by the weight of the evidence. Specifically, Jenkins argues that the weight of the evidence proves that any money taken from Hampton resulted from a violent taking which was not the result of Hampton being placed in fear of harm by the display of a deadly weapon.

¶ 17. A reviewing court will only disturb a verdict based on the weight of the evidence “when [the verdict] is so’ contrary to the overwhelming weight of the evidence that to allow' it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). In reviewing this issue, we weigh the evidence in the light most favorable to the verdict. Id.

¶ 18. For the reasons discussed in the previous issue, and viewing the evidence in the light most favorable to the verdict, we do not find that allowing the verdict to stand would sanction an unconscionable injustice, as the State proved the necessary elements beyond a reasonable doubt.

III. Constructive Amendment to the Indictment

¶'19. Jenkins argues that jury instruction 5, offered as S-3, was at variance with the indictment and adds an alternative statutory element of “by violence to the person” which was omitted from the indictment; We disagree.

¶20. The language in the indictment charging Jenkins with armed robbery stated that Jenkins:

[Djid unlawfully, willfully and feloniously take or attempt to take from the person of or from the presence of Henry Harnp-ton, Jr., against.his will by putting him in fear of immediate injury by the exhibition of a deadly weapon, to wit: a handgun in violation of [Mississippi Code Annotated sjection 97-3-79 [ (Rev. 2014) ] .... :

At the time Jenkins was indicted, section 97-3-79 stated:

■•Every person who shall feloniously take or attempt to take from the person or ■from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery ....

.¶21. At trial, the jury instruction at issue encompassed both armed robbery and simple robbery. In regard to armed robbery, the first half of jury instruction 5 stated:

The Court instructs the Jury that if you find from the evidence presented in this case beyond a reasonable doubt that the Defendant, Terrance Jenkins[:j
1. [Ajcting alone or in concert with Cent-relle Neal and Carter Neal, on or about December 22, 2014[,j in Leflore County, Mississippi;
2. [Djid willfully and feloniously take or attempt to take from the person or presence of Henry Hampton, Jr., United States Currency, the personal property of Henry Hampton, Jr.[,j against the will of Henry Hampton, Jr.;
3. [B]y violence to the person of Henry Hampton, Jr., or, by putting Henry Hampton, Jr., in fear of immediate injury to his person by the exhibition of a deadly weapon, to wit a handgun;
[Tjhen you shall find the’ Defendant, Terrance Jenkins, guilty of armed robbery ... .■ If the State has failed to prove any or more of these elements beyond a reasonable doubt, then, you shall find the defendant, Terrance Jenkins, not guilty of armed robbery. -

(Emphasis added).

¶ 22. The second half of jury instruction 5, addressing the lesser offense of simple robbery, stated:

You- may then consider the lesser offense of robbery and-the Court instructs the Jury that if you find from the evidence in .this case beyond a reasonable doubt that the Defendant, Terrance Jenkins[:j
1. [Ajcting alone or in concert with Cent-relle Neal and Carter Neal, on or about December 22, 2014[,j in Leflore County, Mississippi;
2. [Djid willfully, unlawfully, and felo-niously, take United States Currency, the personal' property • of Henry Hampton, Jr.[,j in his presence or from the person of Henry Hampton, Jr.[,j and against the will of Henry Hampton, Jr., by violence to the person of Henry Hampton, Jr.[,j or by putting him in fear of some immediate injury to his person;
[Tjhen you shall find the Defendant, Terrance Jenkins, guilty of Robbery .... If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant, Terrance Jenkins, not guilty.

(Emphasis added).

¶23. The Mississippi Supreme Court has held1 that “a constructive am'endment of the indictment occurs when the •proof and. instructions broaden the grounds upon which the defendant may be found guilty of the offense charged so that the defendant' may be convicted -without proof of the elements alleged by the grand jury in its indictment.” Bell v. State, 725 So.2d 836, 855 (¶ 58) (Miss. 1998). It is important to note that “[n]ot all variances between the indictment and instructions constitute a constructive amendment, nor do they rise to plain error. The central question is whether the variance is such as to substantially alter the elements of proof necessary for a conviction.” Id. at (¶ 61). And where a variation between an indictment and an instruction does not modify an essential element of the offense charged, then the defendant is not prejudiced, and reversal is not warranted. Id. at 856 (¶ 61).

¶24. Jenkins argues that instruction 5 was an improper constructive amendment of his indictment. Specifically, Jenkins takes issue with the fact that the instruction on armed robbery included the phrase “by violence to his person.” Jenkins contends that this phrase should have been excluded because it lessened the State’s burden of proof for the armed-robbery charge, and because his indictment did not contain the language.

¶ 25. First, we note that Jenkins failed to make an objection regarding thp discrepancy at trial. Nonetheless, the issue is not procedurally barred. Indeed, “[d]ue[-]process rights include the right to a properly instructed jury.” Blunt v. State, 55 So.3d 207, 211 (¶ 16) (Miss. Ct. App. 2011) (citing Shaffer v. State, 740 So.2d 273, 282 (¶ 31) (Miss. 1998)). Additionally, the trial court is responsible for assuring that the jury is “fully and properly instructed on all issues of law relevant to the case.” Harrell v. State, 134 So.3d 266, 270 (¶ 14) (Miss. 2014).

¶26. In making his argument, Jenkins relies on a recent case before this Court, Brown v. State, 2014-KA-00331-COA, 225 So.3d 1263, 2016 WL 3512493 (Miss. Ct. App. June 28, 2016). Brown was convicted of manslaughter and four counts of aggravated assault. With respect to the aggravated-assault charges, Brown’s indictment alleged the statutory element of causing “serious bodily injury,” while the elemental jury instruction allowed for conviction for merely causing “bodily injury.” Id, at 1275, *9 (¶41). In reversing the aggravated-assault convictions, this Court found that “the jury was not asked to decide on the specific issue of whether the injuries inflicted upon [the victims] were ‘serious’ bodily injuries, which substantially altered the elements of proof for a conviction.” Id. And thus, we found that the jury instructions failed to “fairly instruct the jury on the applicable law.” Id. (quoting Conner v. State, 138 So.3d 143, 150 (¶ 16) (Miss. 2014)).

¶27. We find that Jenkins’s reliance on Brofim is misplaced. Unlike Brown, jury instruction 5 did not substantially alter the elements of proof for Jenkins’s conviction. Indeed, jury instruction 5 tracked the language of the “[r]obbery using [a] deadly weapon” statute, which provides that a person who takes or attempts to take personal property from another person “against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery.” Miss. Code Ann. § 97-3-79 (emphasis added). Additionally, the phrase “by violence to his person” ivas also present in the simple-robbery instruction. And so, adding the statutory language did not lessen the 'State’s burden, nor did it broaden the grounds on which Jenkins could be convicted. This is unlike Brown in that going from “serious bodily injury” to merely having to prove “bodily injury” clearly broadened the scope of conduct for which Brown could' have been convicted. While here, the addition of the phrase “by-violence to his person” did not broaden the scope of conduct for which Jenkins could have been convicted.

¶ 28. In the end, Jenkins could not have been convicted of armed robbery unless the jury found that he robbed Hampton “by the exhibition of a deadly weapon.” While the indictment did not include the phrase “by violence to his person,” it did track the essential elements set forth under the statute. Furthermore, the indictment fully informed Jenkins of the statute under which he was charged. The variance between the indictment and jury instruction 5 did not relieve the State of its burden to prove the essential elements of armed robbery. Therefore, we find that Jenkins was not prejudiced by this instruction. This issue is without merit.

CONCLUSION

¶ 29. Upon review of the record, we find no merit to any of the issues raised on appeal. Therefore, we affirm the judgment of the circuit court.

1130. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE, FIVE YEARS OF POST-RELEASE SUPERVISION, AND FIVE YEARS OF UNSUPERVISED PROBATION, AND TO PAY $1,800 IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES AND WILSON, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


author: LEE, C.J.,

text:
    Dwayne BRYANT, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01667-COA
    Court of Appeals of Mississippi.
    05/02/2017
    Rehearing Denied September 12, 2017
    Certiorari Denied December 7, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE .
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:

...¶.1. Dwayne Bryant was found guilty of second-degree murder by a jury in the Circuit Court of Forrest County and sentenced to forty years in the custody of the Mississippi Department of Corrections (MDOC). He appeals his conviction, arguing that (1) the evidence was insufficient to support a conviction; (2) he was entitled to an acquittal under. Weathersby(3) the trial court erred when it allowed certain photos into evidence; and. (4) his right to a fundamentally fair trial was violated by the prosécution’s closing argument. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 1, 2013, Bryant shot Adrian Walker multiple times, and Walker later -died as a result of the gunshot wounds. Bryant was a resident of Bonhomie Apartments in Hattiesburg, Mississippi. Bryant and Walker were considered to be neighborhood friends. Walker had previously lived with his girlfriend, Stacy Pollard, a Bonhomie resident and one of Bryant’s neighbors. Though Walker no longer lived with Pollard, he was regularly at Pollard’s apartment. Bryant would sometimes cut Walker’s hair, as he did for several residents of the apartment complex. And Walker would often come over when Bryant- was grilling, which was a regular occurrence.

¶ 3. On the evening that Walker was shot, Bryant asked Walker if he could borrow a grill to' cook some food, and Walker agreed. When Bryant went-to Pollard’s apartment to get the grill, he found that Walker had already started the coals, and so he decided to stay at Pollard’s apartment to grill. The group at Pollard’s apartment included Bryant, his brother Jeremy, Walker, Willie Wilson, and Slozel-la McDonald. At trial, Wilson testified that Walker and Bryant had been drinking before she arrived there, and she believed they were drunk. Bryant testified that he only consumed one alcoholic beverage during the time he was there. At some point, a conversation between McDonald and Bryant became intense, and Walker joined in-the heated conversation. Bryant became irritated and decided to leave.

¶ 4. At trial, Bryant testified that when he announced he was leaving, Walker began cursing, at him. Bryant gathered his food off of the grill and started walking back to his own apartment with his brother, Jeremy. Walker followed Bryant and Jeremy, though Wilson and Pollard told Walker, not to pursue them. According, to Bryant, he went inside his apartment and left the door open for- Jeremy to follow. When Jeremy and Walker made it to Bryant’s doorway, Jeremy did not come inside because he reportedly did not want to get involved in the argument. Jeremy testified that Walker, who was standing in Bryant’s doorway, was still cursing and “fussing” at Bryant. Jeremy also testified that Walker told. Bryant that he would physically harm him. Bryant walked back in and out of the house several times, and Walker did not leave Bryant’s doorway. At some point, Bryant walked upstairs in his apartment to get his gun, which he testified he kept for protection. Bryant testified that he then went back downstairs to take Jeremy home. Jeremy testified that Walker said “I’m going to get you now,” and “started running up in the house,” “trying to fight ... with his fists balled.” Similarly, Bryant testified that he heard Walker say, “F.. .it..I’m fixing to go ahead and get you now.” According to Bryant, Walker flinched, and Bryant pulled out his gun and shot him. Both Bryant and Jeremy testified that Walker was in Bryant’s doorway when Walker flinched and Bryant shot him.

¶ 5. Bryant testified that he felt threatened by Walker and was fearful of him when he armed himself and when he shot Walker. He also testified that Walker was in his doorway when he initially shot him, and that Walker “went backwards” and fell down “on the opposite side of the sidewalk.” Bryant shot Walker eight times. He later turned himself in to the Hattiesburg Police Department. Walker was taken to the hospital where he underwent several surgeries and stayed in the ICU. A month after the shooting, Walker died from complications due to the gunshot wounds.

¶ 6. At trial, Bryant moved for a directed verdict at the close of the State’s casein-chief and at the close of all the evidence — both motions were denied. The case was submitted to the jury, and Bryant was convicted. Bryant filed a motion for a judgment notwithstanding the verdict (JNOV) or,, in the alternative, a new trial, which was denied.

STANDARD OF REVIEW

¶ 7. “Motions for a directed verdict and a judgment notwithstanding the verdict challenge the legal sufficiency of the evidence.” Mitchum v. State, 164 So.3d 477, 481 (¶ 12) (Miss. Ct. App. 2014). When considering whether the evidence is sufficient to sustain a conviction, “the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.” Id. at 480 (¶ 12) (internal quotation marks omitted) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005)). “[W]here the evidence fails to meet this test[,] it is insufficient to support a conviction.” Id. An appellate “court wffl not reverse unless reasonable and fair-minded jurors could only find the accused not guilty.” Id. at 481 (¶ 12) (citing Ferguson v. State, 137 So.3d 240, 243 (¶ 6) (Miss. 2014)).

DISCUSSION

I. Sufficiency of the Evidence

¶8. Bryant argues that the evidence at trial was insufficient to support his conviction of second-degree murder. He contends that he was entitled to the castle-doctrine presumption, and so the evidence only established that his actions were justifiable homicide. Mississippi’s justifiable-homicide statute, in relevant part, provides that the killing of another person is justified “[wjhen committed in the lawful defense of one’s own person ... where there [is] reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there [is] immi--nent danger of such design being accomplished.” Miss. Code Ann. § 97 — 3—15(l)(f) (Rev. 2014). The castle doctrine, codified in section 97-3-15(3), states in part:

A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment[,] or the immediate premises thereof[,] or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment[,] or the immediate premises thereof[,] and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred.

¶9. Bryant states that all of the witnesses agreed that Walker followed Bryant to' his home, that Walker threatened Bryant, and that Walker was in Bryant’s doorway when Bryant shot him. As such, Bryant argues that he was entitled to the castle-doctrine presumption, and with the presumption, his actions only amounted to justifiable homicide. Bryant and Jeremy testified that Walker was in Bryant’s doorway when Bryant shot him. And that Walker went backwards and eventually fell down outside on the opposite side of the sidewalk. But Pollard testified that she saw Bryant shoot Walker while Walker was lying wounded on the ground, with Bryant standing over him with a gun in his hands. Officer Tammy Hoadley, one of the first responders to the scene, testified that Walker was lying on the ground, specifically on the sidewalk. As such, there was a factual dispute as to where Bryant and Walker were when Bryant shot Walker.

¶ 10. In a homicide prosecution where the defendant asserts that the castle doctrine applies, and there are discrepancies in witness testimony, the issue is properly left to the jury. Flynt v. State, 183 So.3d 1, 14 (¶ 40) (Miss. 2015). Here, the jury was instructed on the castle-doctrine presumption, justifiable homicide, imperfect self defense, and heat-of-passion manslaughter. After receiving instructions on the applicable, law, the jury deliberated and found Bryant guilty of second-degree murder, rejecting Bryant’s defense .theories — including the castle doctrine. An appellate court “must presume that the jury considered the jury instructions — including the [ejastle [djoctrine instruction and the related evidence-and ¡testimony.” Id. In the instant case, the evidence presented supports the jury verdict, and thus the trial court did not err in denying- Bryant’s motion for JNOV. This issue is without merit.

II. Weathersby Rule

III. Bryant also argues that- he- was entitled to á directed verdict under the Weathersby rule, and that the trial court erred when it denied Bryant’s motion. In Weathersby, our supreme court held:

[Wjhere the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible'witness or witnesses for the [Sítate, or by physical facts or by the facts of common knowledge.

Weathersby, 147 So. at 482.

¶12. Bryant argues that he and Jeremy were the only eyewitnesses to the shooting. And he also states that their testimony consistently maintained that Bryant shot Walker in necessary self-defense while Walker was entering Bryant’s house in a threatening manner. As such, Bryant argues that under Weathersby, his version of events is an absolute defense to the homicide, and he is entitled to a directed verdict of acquittal.

¶ 13. Bryant’s recitation of the Weathersby rule is accurate. However, Weathersby only applies where, the defendant’s witness are the only eyewitnesses. Here, Bryant and - Jeremy testified that Bryant shot Walker from inside his apartment while 'Walker was standing in Bryant’s doorway. Yet Bryant admitted there, was conflicting testimony about where Walker was standing when Bryant shot him. And there was another witness, Pollard, who. testified she saw Bryant shoot Walker, while Walker was lying on the ground outside of Bryant’s apartment.

¶ 14. Additionally, Weathersby does not apply where the defendant’s version is “substantially contradicted in material particulars by a credible witness or witnesses for the [S]tate, or by physical facts ,,. Id. In ¡the instant case, Bryant testified that he did not recall shooting Walker in the back, or Walker walking or running away from Bryant or Bryant’s apartment. However, the physical evidence showed that Walker had been shot — not only in the front of his body — but multiple times in the back and buttocks. The first signs of blood were found ten to twelve feet outside of Bryant’s apartment. And there were multiple shell casings found outside of Bryant’s apartment on the grass next to the sidewalk. There was also conflicting testimony about who was taunting who, with Pollard testifying that Bryant was “egging [Walker] on[,] initiating for more conversation[,]” and saying, “[C]ome one. I’ve got something for you.”

¶ 15. Here, the Weathersby rule does not apply. Bryant’s witnesses were not the only eyewitnesses, and there were physical facts and other evidence presented by the State which substantially contradicted Bryant’s version of the shooting. The supreme court “has warned- repeatedly that wh.ere circumstances are shown in the evidence which materially contradict the defendant’s version of self-defense, the jury is not required to accept his- version of self-defense along with the conflicting evidence and any unfavorable inferences therefrom.” Pritchett v. State, 560 So.2d 1017, 1019 (Miss. 1990). Further, “[i]t is a rare case that meets all of the requirements of the [Weathersby ] rule.” Sartain v. State, 311 So.2d 343, 345 (Miss. 1975) (citation omitted).

¶ 16. Bryant correctly notes that it is the duty of the trial court and not the jury to determine the applicability of the Weathersby rule. Id. at 344, 147 So. 481, 482. Here, the trial court found that there were contradicting facts, and that there were more eyewitnesses than those testifying on Bryant’s behalf.' “[W]here the defendant’s story is materially contradicted, the Weathersby rule has no application!!,] and the matter of conviction versus acquittal becomes a question for the jury.” Green v. State, 631 So.2d 167, 174 (Miss. 1994). Accordingly, the trial judge did not err when he overruled Bryant’s motion for a directed verdict under the Weathersby rule and properly left the issue to the jury. Therefore, this issue is without merit.

III. Photographs Introduced into Evidence

¶ 17. Bryant also contends that the trial court erred in admitting certain photographs into evidence. At trial, the prosecution introduced three color autopsy photographs that depicted the open torso, abdomen, and buttocks of Walker. Bryant claimed that the photographs lacked any probative value and were introduced only to arouse prejudice and inflame the jury. The State argued that the photographs were probative — specifically, with a tendency to prove that Walker had been shot multiple times in the back, torso, extremities, and buttocks, demonstrating to the jury the number and location of those wounds. According to the State, the location and number of wounds depicted in the photographs negated the claim that Bryant shot Walker in self-defense.

¶ 18. “The decision of whether or not to admit photographs is left to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.” Hoskins v. State, 172 So.3d 1242, 1247 (¶ 5) (Miss. Ct. App. 2015) (quoting Smith v. State, 792 So.2d 343, 348 (¶ 20) (Miss. Ct. App. 2001)). Our supreme court has noted that “[p]hotographs of the victim should not ordinarily be admitted into evidence where the killing is not contradicted or denied, and the corpus delicti and the identity of the deceased have been established.” Talbert v. State, 125 So.3d 66, 74 (¶28) (Miss. Ct. App. 2013) (quoting Sudduth v. State, 562 So.2d 67, 70 (Miss. 1990)). However, “[p]hotographs of bodies may nevertheless be admitted into evidence in criminal cases where they have probative válue[,] and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory.” Id. “Some probative value is the only requirement needed in order to support a trial judge’s decision to admit photographs , into evidence.” Barfield v. State, 22 So.3d 1175, 1181 (¶ 15) (Miss. 2009) (quoting Jones v. State, 920 So.2d 465, 476-77 (¶35) (Miss. 2006)). “Photographs of a victim have evi-dentiary value when .they aid in describing the circumstances-of the killing; .describe the location of the body and cause, of death; or supplement or clarify a witness’s testimony.” Fortenberry v. State, 195 So.3d 890, 893 (¶ 11) (Miss. Ct. App. 2016) (quoting Keller v. State, 138 So. 3d 817, 857 (¶ 101) (Miss. 2014)).

¶ 19. Here, the State presented the photographs at issue to describe the circumstances of the killing, specifically the location and number of wounds, and to contradict Bryant’s version of events that he shot Walker out of fear while Walker was coming toward him. And the State’s pathologist, Dr. Brent Davis, testified that the photographs helped to clarify the location of the injuries. Upon review, we do not find that the photographs were overly gruesome, or that their potential for prejudice outweighed their probative value. And “our case law indicates that the discretion of the trial [court] runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and extenuation of probative value.” Williams v. State, 544 So.2d 782, 785 (Miss. 1987). Therefore, we hold that the trial court judge did not abuse his discretion by admitting the photographs into evidence.

IV. Comments by the Prosecution

¶20. For the first time on appeal, Bryant argues that he was unfairly prejudiced by the prosecutor’s comments during the State’s closing argument, and that justice requires this Court to reverse his conviction and remand for a new trial.

¶ 21. “While attorneys are allowed wide latitude in presenting their cases to a jury, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Stevenson v. State, 156 So.3d 927, 929-30 (¶ 11) (Miss. Ct. App. 2015) (internal quotation marks omitted) (quoting Sheppard v. State, 777 So.2d 659, 661 (¶7) (Miss. 2000)). “The standard of review for lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Id. at 930 (¶ 11) (internal quotation marks omitted) (quoting Slaughter v. State, 815 So.2d 1122, 1130 (¶ 45) (Miss. 2002)).

¶ 22. Before this Court determines whether the prosecutor’s closing remarks were improper such that they constitute reversible error, we must first “determine if defense counsel objected to the statement ....” Id. at (¶ 13) (citation omitted). The supreme court has clearly stated, “Failure to raise an objection to a prosecutor’s statements made at trial proeedurally bars the statements from appellate review.” Sandlin v. State, 156 So.3d 813, 820 (¶ 27) (Miss. 2013). “If no contemporaneous objection is made, the error, if any, is waived.” Stevenson, 156 So.3d at 930 (¶ 13) (quoting Slaughter, 815 So.2d at 1130-31 (1147)).

¶23. When “no objections were raised at trial, the defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.” Hurt v. State, 34 So.3d 1191, 1196 (¶ 12) (Miss. Ct. App. 2009) (quoting Jackson v. State, 924 So.2d 531, 542 (¶ 36) (Miss. Ct. App. 2005)). “A review under the plain-error doctrine is necessary when a party’s fundamental rights are affected, and the error results in a manifest miscarriage of justice.” Id. at 1197 (¶ 17) (quoting McGee v. State, 953 So.2d 211, 215 (¶8) (Miss. 2007)).

¶24. Bryant argues that the prosecutor’s comments made during closing arguments prejudiced his defense by leading the jury to believe Bryant was a lazy person who had taken advantage of the government and cheated the system. The comments at issue included the prosecutor stating that Bryant had “skirted the system,” “sat at home every day,” and “[was] having barbeques all day.” The State’s comments further included that Bryant was “taking an apartment that ... a single mother[ ] out there ... needs,” and “receiving almost free rent, not paying a light bill, probably other food stamps and stuff .... ” Bryant also argues that the prosecutor made an impermissible “send a message” argument with the following statement:

This is not self-defense. You’re drunk. You’re a drinking, irresponsible person who has to be held accountable for your actions because if you don’t, then there is no responsibility, and there is no accountability, and people like him can continue on the same path and continue to take lives, continue to be irresponsible. We’re going to stand for those rights. I promise you. Stand up for responsibility.

Our supreme court has “repeatedly condemned the ‘send a message’ argument and warned prosecutors accordingly.” Payton v. State, 785 So.2d 267, 270 (¶ 11) (Miss. 1999).

¶25. Here, the record shows that Bryant did not make a contemporaneous objection — or any objection at all — to the prosecutor’s comments. However, “despite the absence of objection, [an appellate court] will not procedurally bar the issue where the send-a-message argument is so inflammatory that the trial judge should have objected on his own motion.” Brown v. State, 986 So.2d 270, 276 (¶ 13) (Miss. 2008) (internal quotation marks and citation omitted). “[T]he ‘so inflammatory’ standard is the proper threshold inquiry for appellate review of claims of prosecuto-rial misconduct during closing argument.” O’Connor v. State, 120 So.3d 390, 401 (¶29) (Miss. 2013). “If a defendant can meet this threshold test, then the court should conduct the two-prong Spicer test. Under Spicer, we ask if ‘the remarks were improper.’ And if so, we ask if ‘the remarks prejudicially affected the accused’s rights.’ ” Snyder v. State, 174 So.3d 331, 336 (¶ 22) (Miss. Ct. App. 2015) (quoting Spicer v. State, 921 So.2d 292, 318 (¶ 55) (Miss. 2006)).

¶ 26. In the instant case, Bryant failed to object to the prosecutor’s comments during trial and has thus waived the iésue on appeal. And we do not find that the prosecutor’s comments were “so inflammatory” as to overcome the threshold for plain-error review. Even where the “prosecutor’s comments were improper, [but] they did not cause a miscarriage of justice[,] ... a reversal based on plain error is not appropriate.” Stokes v. State, 141 So.3d 421, 424 (¶ 2) (Miss. Ct. App. 2013). Though Bryant urges us to reverse and remand his case for a new trial, “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. at 428 (¶ 30) (quoting Bush, 895 So.2d at 844 (¶ 18)). Here, we do not find that the evidence weighed heavily against the-jury’s guilty verdict of second-degree murder. Rather, there was sufficient evidence to support Bryant’s conviction. Therefore, this issue is without merit.

¶ 27. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF SECOND-DEGREE MURDER AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

IRVING AND GRIFFIS, PJJ, BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Weathersby v. State, 165 Miss. 207, 147 So. 481, 482 (1933).