author: LEE, P.J.,

text:
    Travis DAVIS, Appellant/Cross-Appellee, v. Jerry PAEPKE, Appellee/Cross-Appellant.
    No. 2007-CA-01689-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2009.

      Ellie Burnham Word, Jackson, attorney for appellant.
    Christopher G. Evans, Tupelo, attorney for appellee.
    Before LEE, P.J., ISHEE and CARLTON, JJ.
   LEE, P.J.,

for the Court.

FACTS

¶ 1. In 1999, Jerry Paepke negotiated for an option to purchase real property in Chickasaw County from his long-time friend, Mabel Leathers, one of six heirs to the Wheeler estate. The Wheeler estate owned 511 acres on the north side of Highway 41 and 134 acres on the south side of Highway 41. Paepke believed he could resell the property for a profit, but he was not financially able to purchase the land on his own. Paepke asked another friend, Travis Davis, to purchase the land and split the profits with him when the land was resold. The Wheelers quoted Paepke a price of $450 an acre for the north 511 acres and $350 an acre for the south 134 acres. Paepke contacted Davis’s attorney to draft purchase options to be executed by each of the six Wheeler heirs. The purchase options showed Paepke as the purchaser of the land.

¶ 2. On September 9, 1999, Paepke and the Wheeler heirs met at Davis’s attorney’s office. Davis’s attorney presented Paepke with a typed partnership agreement. The agreement was drafted by Davis’s attorney. It stated:

Dear Jerry:

This confirms our understanding concerning my purchase on September 9, 1999 of the Wheeler property located Northwest of Okolona. You helped me acquire this property through negotiations with the Wheeler family.
If the property is sold, I will divide equally with you the profit. The profit is the sale price less the price I paid for the property and my expenses.
I anticipate selling the property North of Highway 41 in the near future. I will not sell it for an unreasonably low price and will tell you what the offer is. You or your designee may meet the offer within ten days and if you do not I am free to sell it for the offer. The proceeds from the sale will be first applied to reimburse me for my investment and the expenses of the sale and then any remainder divided equally with you.
If I do not sell the property South of Highway 41,1 will convey to you or your designee a one-half undivided interest in it provided that all of my investment and expenses have been paid for all of the property.
If you agree this is our understanding, please sign a copy of this letter.

Davis’s and Paepke’s signatures appear at the bottom of the letter. Paepke testified that after he signed the agreement, he and the Wheeler heirs were instructed to go to another law office where the closing took place. According to Paepke, he was not advised until the closing that the land would be placed in Davis’s name only or that the closing would take place at another location.

¶ 3. Davis purchased the property for $276,850 and sold it for $484,025, realizing a profit of $157,175. The north section of the property was sold in December 1999 for $340,025. Two-thirds of the south section of the property was sold in March 2000 for approximately $60,000. The remaining one-third of the south section of the property was sold in 2003 for approximately $30,000. Davis did not notify Paepke of the offers on the property and did not give him the ten-day option on the property as per them agreement. Davis also refused to split the profits of the sale with Paepke.

¶ 4. Davis admits he did not comply with any of the terms of the agreement. Davis argues that he did not have the agreement drafted or agree to its terms, despite the letter being on what appeared to be his letterhead and his signature being at the bottom of the document. He testified that he did not see the document until Paepke brought it to his office and asked him to sign it. Davis testified that he looked at the document, saw Paepke’s name, and signed it, but he did not read it.

¶ 5. Davis contends that the terms he agreed to were handwritten by him on a sheet of yellow legal pad paper, which he no longer had. He testified that the handwritten agreement basically stated that Paepke had a buyer who would buy the land for $1,000 an acre within thirty days. Davis testified that he gave Paepke sixty days to sell the land, but no buyer was found. Davis sold the land on his own and refused to split the profits with Paepke because Paepke did not provide a buyer. Paepke denied that he told Davis there was a secured buyer for the property, but Paepke admitted he told Davis that “the Mossy Oak people were paying up to $1,000.00 an acre on some good hunting groundfs].”

¶ 6. Paepke testified that he made improvements to the property, such as repairs to the houses located on the property, dozier work, and repairing road and fire lanes. Davis denied that Paepke had made any improvements to the property. Davis paid Paepke $2,500 and promised to pay him more at a later date. Davis testified that he did not pay Paepke any additional money because he did not believe it was owed and because Paepke began making threats to physically harm him.

PROCEDURAL HISTORY

¶ 7. Paepke filed a complaint against Davis in the Chickasaw County Circuit Court alleging breach of contract, unjust enrichment, and imposition of a constructive trust. Davis answered the complaint and filed a counterclaim, which asserted fraud in the inducement and intentional infliction of emotional distress.

¶ 8. A three-day jury trial was held in the Chickasaw County Circuit Court. At the close of testimony, the trial court instructed the jury that the September 9 agreement was a valid and enforceable contract which limited the jury to finding what, if any, damages were owed to each party. The jury returned a verdict for Paepke in the amount of $72,954.30. The jury found no damages in Davis’s counter-suit against Paepke. The trial court subsequently entered a judgment in favor of Paepke for $72,954.30 plus post-judgment interest at the rate of eight percent per annum and dismissed Davis’s counterclaim with prejudice. Davis filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, which was denied by the trial court.

¶ 9. Davis now appeals, asserting the following issues: (1) the trial court erred in instructing the jury that the instrument was a valid contract; (2) even if the instrument was a valid contract, Paepke acted as a real estate broker in violation of the Real Estate Brokers License Law thus making the contract unenforceable; (3) the trial court erred in dismissing Davis’s counterclaim and defense of fraudulent inducement; (4) the trial court improperly excluded evidence of Davis’s costs incurred during the sale of the land; and (5) reversal or a new trial is required since the jury verdict was based on the trial court’s erroneous findings of fact and conclusions of law. Paepke cross-appeals, asserting that the trial court erred in failing to award him prejudgment interest. Finding no error, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR IN FINDING THAT THE AGREEMENT BETWEEN THE PARTIES WAS A VALID CONTRACT?

¶ 10. Davis asserts that the September 9, 1999, document was not a valid contract because it lacked adequate consideration; thus, the trial court committed reversible error in giving peremptory instruction C-5, which instructed the jury to consider the document valid and enforceable.

¶ 11. This Court reviews a trial court’s decision to give a peremptory instruction the same as a motion for a directed verdict. Windmon v. Marshall, 926 So.2d 867, 872(¶20) (Miss.2006). The grant or denial of a peremptory instruction or a directed verdict is reviewed de novo. Id. “If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted.” Id. (quoting Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1055(¶ 7) (Miss.2003)). However, “[o]ur rules and case law allow for questions to be removed from the jury’s consideration when there exists no factual question for it to resolve.” Entergy Miss., 854 So.2d at 1055(¶ 8).

¶ 12. After hearing the testimony, the trial judge determined sua sponte that the agreement was a valid contract and that the jury would be instructed as such. The trial judge gave the following reasons for his finding:

Mr. Davis is a well-known, respected businessman. He has businesses, various businesses; and the lawyers know and understand that when the parties negotiate, those prior negotiations and contemporaneous negotiations are merged into a contract. It’s not vague, and it is complete on its face.
I don’t know of any contract that could be plainer or clearer than the contract between the parties. The contract was prepared by, admittedly by Mr. Davis’[s] attorney.... So the contract is to be more strictly construed against the party that drew the contract, so the Court has no other alternative but to find that this was a binding, legal contract between the parties.

¶ 13. One of the six elements of a valid contract is consideration. Rotenbenry v. Hooker, 864 So.2d 266, 270(¶ 13) (Miss.2003). Consideration is defined as: “(a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise.” Marshall Durbin Food Corp. v. Baker, 909 So.2d 1267, 1273(¶ 14) (Miss.Ct.App.2005) (quoting City of Starkville v. 4-County Elec. Power Ass’n, 819 So.2d 1216, 1220(¶ 10) (Miss.2002)). “All that is needed to constitute a valid consideration to support an agreement or contract is that there must be either a benefit to the prom-issor or a detriment to the promisee. If either of these requirements exist, there is a sufficient consideration.” Theobald v. Nosser, 752 So.2d 1036, 1040(¶ 15) (Miss. 1999) (quoting American Olean Tile Co. v. Morton, 247 Miss. 886, 893, 157 So.2d 788, 790 (1963)).

¶ 14. Davis argues that the agreement is not a valid contract because it only contains past consideration. Marshall Durbin Food Corp., 909 So.2d at 1276(¶22) (“In most situations, past consideration may not serve as consideration.”). Davis cites to the sentence in the agreement that states, “You helped me acquire this property through negotiations with the Wheeler family.” (Emphasis added). We find that even though the negotiations were in the past, Paepke continued to suffer a legal detriment by allowing Davis to benefit from his option to purchase the land. Paepke continued to be restricted by this after the partnership agreement. Paepke also made, or attempted to make, improvements to the property and continued to attempt to find a buyer. We find that sufficient consideration existed to support the contract.

¶ 15. In finding that this argument is without merit, we also find that Davis’s argument that the trial court improperly denied proposed jury instructions D-7 and D-8 is without merit. Proposed jury instruction D-7 instructed the jury of the elements of a valid contract. Proposed jury instruction D-8 gave the jury the definition of consideration and instructed the jury that past consideration is insufficient to support a contract. These instructions were unnecessary as the only issue for the jury to resolve regarding the contract was that of damages.

II. DID PAEPKE ACT AS A REAL ESTATE BROKER IN VIOLATION OF THE REAL ESTATE BROKERS LICENSE LAW?

¶ 16. Davis next argues that even if the agreement is found to be a valid contract, Paepke illegally acted as a real estate broker; thus, the contract is unenforceable. Davis filed a motion for summary judgment on this issue, which was denied. He argues that the trial court committed reversible error in denying his motion for summary judgment, and at the least, the jury should have been instructed to consider his defense that the contract may have been illegal.

1. Did the trial court err in denying Davis’s motion for summary judgment?

¶ 17. This Court employs a de novo standard of review of a lower court’s grant or denial of a motion for summary judgment. Pratt v. City of Greenville, 918 So.2d 81, 82(¶ 4) (Miss.Ct.App.2006). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made,” and the moving party bears the burden of demonstrating that no genuine issue of fact exists. Pratt, 918 So.2d at 82-83(¶ 4). If there is no genuine issue of material fact, then the moving party is entitled to a judgment as a matter of law. Id. at 83(¶ 4).

¶ 18. The law regarding the licen-sure of real estate agents, Mississippi Code Annotated section 73-35-1 (Rev. 2008), states that it is unlawful for a person to act as a real estate broker in this state without first obtaining the appropriate license. A real estate broker includes:

all persons, partnerships, associations and corporations, foreign and domestic, who for a fee, commission or other valuable consideration, or who with the intention or expectation of receiving or collecting the same, list, sell, purchase, exchange, rent, lease, manage or auction any real estate, or the improvements thereon, including options; or who negotiate or attempt to negotiate any such activity; or who advertise or hold themselves out as engaged in such activities; or who direct or assist in the procuring of a purchaser or prospect calculated or intended to result in a real estate transaction. The term “real estate broker” shall also include any person, partnership, association or corporation employed by or on behalf of the owner or owners of lots or other parcels of real estate, at a stated salary or upon fee, commission or otherwise, to sell such real estate, or parts thereof, in lots or other parcels, including timesharing and condominiums, and who shall sell, exchange or lease, or offer or attempt or agree to negotiate the sale, exchange or lease of, any such lot or parcel of real estate.

Miss.Code Ann. § 73-35-3(1) (Rev.2008).

¶ 19. We cannot find that Paepke acted as a real estate broker. The contract signed by the parties did not require Paepke to make any efforts to sell or market the property, and Paepke did not receive or request a fee for negotiating the options. According to the contract, Davis was to divide the profits from the sale of the land equally with Paepke if the land sold. In the event that the property or a portion of it did not sell, Davis was to deed a one-half interest in the property to Paepke. We find that Paepke’s actions concerning the agreement with Davis was that of a business deal rather than the actions of a real estate broker.

2. Did the trial court err in excluding the testimony of Roberi Prather regarding real estate law?

¶ 20. Davis notified Paepke on Friday, March 30, 2007, that Robert Prather, Executive Director of the Mississippi Real Estate Commission, might be called as a witness. Trial was scheduled to begin the following Monday, April 2, 2007. The notice designating Prather was filed on the day of trial. During pretrial motions, Paepke objected to Prather being called as a witness. The trial court excluded Prather as a witness because of the late designation. Davis argues that the trial court’s exclusion of Prather’s testimony severely prejudiced his defense of illegality of the contract based on the Real Estate Brokers License Law and affected his substantial right to a fair trial. Also, Davis argues that Paepke would have suffered no prejudice if Prather were allowed to testify as Paepke’s counsel could have interviewed Prather prior to his testimony.

¶ 21. “The standard of review for the admission or exclusion of evidence is abuse of discretion.” Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 145(¶ 13) (Miss. 2007). In excluding Prather’s testimony, the trial court stated:

The Court finds that the addition of Robert Prather as a prospective witness comes too late because he should have been named earlier if the defendant intended to use Mr. Prather. The notice was filed today, the date of trial. It was faxed to the defendant on ... March 30th, if I understand it, and three days before the trial; and the Court’s of the opinion that it would be unfair to allow Robert Prather to testify on such short notice; and I will sustain the motion in limine in that regard.
This matter was filed, this case was filed in 2000; and the Court’s of the opinion that the designation of Mr. Prather would come far too late....

Davis’s counsel offered no explanation for the designation of Prather on the first day of trial, which had been set six months earlier. We cannot find that the trial court abused its discretion in granting Paepke’s motion to exclude Prather’s testimony.

¶ 22. Having found that this issue is without merit, we also find that Davis’s argument that the trial court committed reversible error in denying jury instructions D-9 through D-17 is without merit. These instructions were unnecessary as they instructed the jury on real estate licensing law, and no testimony was presented to the jury regarding this issue.

III. DID THE TRIAL COURT ERR IN DISMISSING DAVIS’S COUNTERCLAIM AND DEFENSE OF FRAUDULENT INDUCEMENT?

¶ 23. Davis asserts that Paepke induced him into purchasing the Wheeler property by fraudulently representing that he had a buyer in place who would purchase the north side of the property for $1,000 an acre within thirty days of Davis’s purchase. He argues that the trial court erred in refusing to consider parol evidence that Paepke fraudulently induced him into entering the contract and in rejecting his proposed jury instructions on this issue.

¶ 24. “Fraud in the inducement arises when a party to a contract makes a fraudulent misrepresentation, ie., by asserting information he knows to be untrue, for the purpose of inducing the innocent party to enter into a contract.” Lacy v. Morrison, 906 So.2d 126, 129(116) (Miss.Ct. App.2004). “Parol evidence is admissible to show that the making of a written contract was procured by fraudulent representations. Evidence of this kind does not vary the written contract; it destroys and avoids it.” Turner v. Terry, 799 So.2d 25, 33-34(¶ 25) (Miss.2001) (quoting Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 162, 125 So. 708, 709 (1930)).

¶ 25. Davis contends that he would not have purchased the property had he known that Paepke did not have a secured buyer in place to purchase the land for $1,000 an acre. He and another witness, Frank Holliday, testified at trial to hearing Paepke say that he had a buyer in place to purchase the property for $1,000 an acre. Paepke denied that he represented to Davis that a secured buyer was in place. However, Paepke admitted he told Davis that “the Mossy Oak people were paying up to $1,000.00 an acre on some good hunting ground[s].” We cannot find that Davis was fraudulently induced by Paepke’s speculation that Mossy Oak was buying property in the area.

¶ 26. In addition, the agreement, which was drafted by Davis’s attorney, contains no indication that the parties contemplated that a secured buyer was in place. The language of the agreement makes statements such as: “If the property is sold, I will divide equally with you the profit”; “I will not sell [the property north of Highway 41] for an unreasonably low price and will tell you what the offer is”; and “If I do not sell the property South of Highway 41, I will convey to you or your designee a one-half undivided interest in it provided that all of my investment and expenses have been paid for all the property.” If Davis felt the purchase of the property was based on Paepke’s statements regarding a potential buyer, it seems that Davis would have instructed his attorney to include that information in the agreement. At one point in the testimony, Davis asserts that he did not read the agreement before signing it. As for that argument, it is well established that “a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.” Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss. 1991).

¶ 27. If it was truly Davis’s understanding that a secured buyer was in place, Davis could have seen from a plain reading of the contract that the terms of the document he signed contradict this understanding. Further, as the trial court noted, Davis was a well-known and respected businessman who negotiated and entered into contracts on a regular basis, and Paepke was not an experienced businessman.

¶ 28. We find that this issue is without merit. In so finding, we also find that Davis’s argument regarding the refused jury instructions on fraudulent inducement is without merit.

IV. DID THE TRIAL COURT IMPROPERLY EXCLUDE EVIDENCE OF DAVIS’S COSTS INCURRED DURING THE SALE OF THE LAND?

¶ 29. Davis argues that the trial court committed reversible error in not allowing his testimony concerning expenses he incurred making repairs to and selling the property. The trial court found that evidence of Davis’s expenses should be excluded because of Davis’s lengthy delay in responding to discovery requests on this issue. The jury was allowed to consider the interest on the loans taken out by Davis to procure the property.

¶ 30. In January 2001, Davis answered the first set of interrogatories and requests for production of documents. Interrogatory numbers nine and ten asked for “a detailed account of each transaction concerning the initial purchase and subsequent sale” of the real property and “a detailed accounting of all monies expended [ Qincluding the initial purchase price plus all expenses and interest) ... for the initial purchase.” Davis responded that information relating to documents, persons, and expenses involved in the sale of the property and improvements on the property were “highly privileged and personal,” and he would not respond without a confidentiality order.

¶ 31. The case laid dormant for some time, and in January 2005, Paepke’s counsel requested Davis to supplement his answer. Davis did not respond. Again on April 1, 2005, July 15, 2005, and January 25, 2006, Paepke’s counsel requested that Davis supplement his answer, and Davis did not respond. On March 3, 2006, Paepke’s counsel filed a motion to compel discovery. Six days before trial, on March 26, 2007, Davis filed his supplemental response to Paepke’s first set of interrogatories and requests for production of documents. Davis answered that he expended $42,500 on the property and was attempting to find receipts on the expenditures and would produce them when available.

¶ 32. The trial court found that disclosing these expenditures six days prior to trial did not give Paepke the opportunity to investigate the accuracy of the alleged expenses and that allowing evidence of the expenses would be unfair. We review the admission or exclusion of evidence for abuse of discretion. Pounders, 970 So.2d at 145(1113). We cannot find that the trial court abused its discretion in excluding testimony regarding Davis’s expenses. This litigation had been ongoing for six years prior to trial, and the parties knew of the trial setting six months in advance. No reason was given for the delay except for Davis’s assertion that he had just located his bank records. Therefore, we find that this issue is without merit.

V. WAS REVERSAL OR A NEW TRIAL WARRANTED?

¶ 33. In this section of his brief, Davis reasserts all his prior arguments and argues that numerous errors at trial require reversal. Having found no reversible error, we find that this issue is without merit and affirm the judgment in favor of Paepke, including the award of post-judgment interest.

Cross-appeal

¶ 34. Paepke cross-appeals asserting that the trial court should have awarded him prejudgment interest. In its ruling on this motion, the trial court stated, “Since the Court sanctioned the Defendant (Davis) for failure to timely answer discovery request, the Court declines to assess pre-judgment interest against Defendant and therefore overrules Plaintiffs motion for same.”

¶ 35. Our standard of review of an award of prejudgment interest is abuse of discretion. Warwick v. Matheney, 603 So.2d 330, 342 (Miss.1992). We cannot find that the trial court abused its discretion in denying prejudgment interest. This case was filed by Paepke on September 26, 2000. Some discovery was taken, but then the case lay dormant for nearly four years. The case was dismissed as stale on January 31, 2005. It was reactivated by Paepke on March 15, 2005. Trial was finally held on April 2, 2007. We find that both parties are to blame for the delays in moving forward with this case. Paepke, as the plaintiff, had a responsibility to prosecute his case and move it forward. Therefore, we affirm the trial court’s denial of prejudgment interest.

¶ 36. However, because this case was filed before January 1, 2003, Mississippi Code Annotated section 11-3-23 (repealed) is applicable. Although this section was repealed by the Legislature in 2002, the savings clause provides that causes of action which were filed in a trial court before January 1, 2003, are still subject to section 11-3-23. Miss.Code. Ann. § 11-3-23 (Rev.2002); AirTran, Inc. v. Byrd, 987 So.2d 905, 908(¶ 8) (Miss.2007). Prior to being repealed, section 11-3-23 provided:

In case the judgment or decree of the court below be affirmed, or the appellant fails to prosecute his appeal to effect, the Supreme Court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%), as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum....

Since the judgment of the court below was affirmed and this case was filed before January 1, 2003, we render judgment against Davis for damages in the amount of fifteen percent of the $72,954.30 judgment against him.

¶ 37. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS AFFIRMED ON DIRECT AND CROSS-APPEAL. THE APPELLANT IS ASSESSED DAMAGES IN THE AMOUNT OF FIFTEEN PERCENT ON THE JUDGMENT OF $72,954.30. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND APPELLEE/CROSS-APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ, CONCUR.

      . Davis testified that his attorney did not draft the document, but rather Paepke had it prepared. However, Davis's former attorney, the Honorable Kenneth Burns, admitted through deposition testimony that he drafted the document.


source: Caselaw Access Project

license: Public Domain

text:
    Robert Stafford JUSTUS, Sr., Appellant v. Brenda Lott JUSTUS, Appellee.
    No. 2007-CA-01119-COA.
    Court of Appeals of Mississippi.
    Feb. 10, 2009.

      William B. Jacob, Joseph A. Kieronski Jr., Daniel P. Self Jr., Meridian, attorneys for appellant.
    Robert D. Jones, Meridian, Henry Palmer, attorneys for appellee.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Robert Justus Sr. (Dr. Justus) and Brenda Lott Justus (Ms. Justus) were granted a divorce based on irreconcilable differences on April 30, 1991. Ms. Justus was awarded alimony in the amount of $3,250 per month. On March 24, 1998, an order was entered by the trial court reducing the alimony to $2,900 per month, reflecting an agreement of the parties. In February 2005, Dr. Justus tiled a complaint in the Lauderdale County Chancery Court for modification of the prior decree and requested, among other things, that the chancellor reduce or eliminate the alimony.

¶ 2. A trial was held, and on May 30, 2007, the chancellor entered an opinion and ordered that the alimony should remain at $2,900 per month. Dr. Justus now appeals the decision of the chancellor, asserting the following issues: (1) the chancellor erred in failing to find a material change in circumstances justifying the reduction or elimination of the alimony; and (2) the chancellor applied an erroneous legal standard to the application of the Armstrong factors. Finding no error, we affirm.

FACTS

¶ 3. Dr. Justus and Ms. Justus divorced after sixteen years of marriage. When the couple divorced, Dr. Justus was thirty-eight years old, and Ms. Justus was thirty-nine. Three children were born of the marriage. At the time of the request for modification of the alimony, Dr. Justus and Ms. Justus were fifty-four and fifty-five years old, respectively. Both parties are healthy and working to them maximum earning capacity.

¶ 4. Dr. Justus and his current wife, Mary Beth, have one child together, who was twelve years old at the time of the order denying modification of the alimony. Mary Beth also has two children from a previous marriage. Dr. Justus operates a periodontal practice in Meridian, Mississippi. The business’s income has varied from year to year. At the time of the divorce, Ms. Justus produced expert testimony from a certified public accountant projecting Dr. Justus’s future income at the Meridian office to range between $240,000 and $300,000. However, from 1998 until the request for modification of alimony in February 2005, the income from the periodontal office ranged from approximately $66,000 to $207,000 a year, making his average income $137,000 a year. Dr. Justus attributed the decline in his practice to increased competition in Meridian and fewer referrals of new patients. Dr. Justus owns the building where his clinic is located and rents out the other office spaces. The monthly rental income from the building is $4,000.

¶ 5. Dr. Justus also practices at the Cumberland Dental Clinic in Tuscaloosa, Alabama. He usually travels to the clinic one day a week. He has worked with the Tuscaloosa clinic since 2000 and receives a percentage of the funds collected for his services. He estimates his gross annual income from this clinic is $50,000. In 2001, he became a reserve officer with the Mississippi Ah- National Guard Medical Unit.

¶ 6. The lowest adjusted gross income reported by Dr. Justus and Mary Beth was $174,951 in 1999, and the highest adjusted gross income reported was $318,563 in 2001. A capital gain from the sale of stock increased the couple’s adjusted gross income in 2001. At the time of the request for modification of alimony, Dr. Justus’s average monthly income from his salary, building rental, and the Air National Guard was $18,584. This made his annual income at the time of the request for modification of the alimony approximately $223,008.

¶ 7. Dr. Justus pays the housing and colleges expenses for his and Ms. Justus’s twenty-year-old daughter, Audrey. He also contributes to the college and living expenses of his two stepsons. The two stepsons each receive a $12,000 annual salary from Dr. Justus’s periodontal office for various dental and “handyman” work around the office. Dr. Justus pays his mother a salary of $7,920 per year to do various chores around his office. He estimates that the total paid out per month to family members from his office is $3,000. Dr. Justus and Mary Beth’s daughter attends private school. Dr. Justus estimates his monthly expenses for this child to be approximately $1,185.

¶ 8. At the time of the divorce, Ms. Justus did not work outside the home. She cared for the couple’s three minor children and received sole custody of the children at the time of the divorce. She was awarded $1,800 a month in child support to be paid until the oldest child reached the age of majority or became emancipated. The couple’s two oldest children, Stafford and Jarrod, were emancipated pursuant to the settlement agreement in March 1998. At the time of the settlement agreement, the youngest child, Audrey, was twenty years old and attending college. In March 1998, Ms. Justus went to work as a part-time teacher at Lamar Elementary School. She worked as a full-time teacher for the 1998 through 1999 school year. In 1998, she earned $10,361, and in 1999, she earned $20,692.

¶ 9. In 1999, Ms. Justus sold the former marital home, which was awarded to her in the divorce, and moved to Collierville, Tennessee. She realized approximately $85,000 in equity from the sale of the home, which was used toward the purchase of her home in Collierville. Dr. Justus paid the monthly note of $1,036.44 on the home until it was sold. The sale of the home eliminated Dr. Justus’s requirement to pay Ms. Justus’s mortgage. Ms. Justus makes the payment on the Collierville home; thus, her expenses have increased.

¶ 10. After moving to Collierville, Ms. Justus began working as a teacher in Memphis. At the time of the hearing, she was still working as a teacher in Memphis and earning extra income from tutoring and teaching summer school. Her annual base salary is $45,688, and she receives a two percent annual raise. Her gross monthly income from salary is $3,807. She also receives $2,900 in alimony and $775 in child support per month. Therefore, her total monthly income is $7,482. After deductions, the resulting net income is $5,879. She has also established a savings account and retirement accounts. She estimates that her monthly expenses are approximately $4,937.

¶ 11. Pursuant to the settlement agreement in 1998, Ms. Justus received as her sole property a certifícate of deposit (CD) in the amount of $25,000 and the remaining funds in the approximate amount of $12,000 derived from a previous CD. The CDs were intended for the children’s education and were frozen by the divorce decree. In March 1998, the two oldest children were emancipated but not attending college. Ms. Justus acquired these funds, but she had no record of how they were spent. According to her testimony, she spent $12,000 to pay off a debt owed by the couple’s oldest son, Stafford. She testified that the remainder of the $25,000 was given to Stafford when he moved out of state. As for the $12,000, Ms. Justus testified that she paid approximately $6,000 of this amount on attorney’s fees after one of her sons was arrested, and she expended the remainder of the $12,000 on other expenses for this son. Although there was no documentation of the distribution of these funds, the chancellor found that Ms. Justus no longer had any of the money from the CDs.

STANDARD OF REVIEW

¶ 12. This Court will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or manifest error. Andrews v. Williams, 723 So.2d 1175, 1177 (¶ 7) (Miss. Ct.App.1998). Thus, if we find substantial evidence in the record to support the chancellor’s findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184, 186 (¶ 3) (Miss.Ct.App.1999). “The Court reviews questions of law, however, under a de novo standard.” Stacy v. Ross, 798 So.2d 1275, 1278 (¶ 13) (Miss.2001).

DISCUSSION

I. DID A MATERIAL CHANGE IN CIRCUMSTANCES OCCUR SUFFICIENT TO JUSTIFY A MODIFICATION OF THE ALIMONY?

¶ 13. Dr. Justus argues that the chancellor erred in denying his request for a reduction or termination of the alimony. He argues that both his and Ms. Justus’s financial situations have changed such that a modification is warranted.

¶ 14. “Alimony awards by the court or by an agreement incorporated into the decree of the court, if not lump sum, have long been subject to modification upon proof of material change in circumstances subsequent to entry of the decree because of public policy.” Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997) (quoting Taylor v. Taylor, 392 So.2d 1145, 1147 (Miss.1981)). The material change in circumstances must not be one that is anticipated by the parties at the time of the original decree. Id. In determining an award or modification of alimony, the chancellor must consider the factors set out in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). Parker v. Parker, 934 So.2d 359, 361 (¶ 5) (Miss.Ct.App. 2006). The Armstrong factors are:

(1) the income and expenses of the parties; (2) the health and earning capacity of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence and absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) any fault or misconduct; (11) wasteful dissipation of the assets by either party; (12) any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Id. (citing Armstrong, 618 So.2d at 1280). In applying the Armstrong factors, the chancellor must “comparte] the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.” Steiner v. Steiner, 788 So.2d 771, 776 (¶ 16) (Miss.2001).

¶ 15. Dr. Justus argues that at the time of the agreement to reduce the alimony, Ms. Justus was a part-time teacher and stay-at-home mom with one child living at home. At the time of the request for modification, Ms. Justus was working full time, and the couple’s youngest minor child had gone to college. Also, Dr. Justus argues that he has experienced a material change in circumstances because his income from his periodontal practice had decreased since the divorce, and he and his current wife have a child that he is now supporting. He also has two stepsons whom he helps support.

¶ 16. The chancellor reviewed evidence of Dr. Justus’s and Ms. Justus’s incomes and expenses from 1998 through 2005. The chancellor also reviewed evidence from his ruling from the original divorce decree. The chancellor found that Dr. Justus’s income was lower and that his monthly expenses exceeded his monthly income. However, the chancellor found that most of the expenses were voluntarily incurred in his effort to maintain his established standard of living. Dr. Justus’s net worth still significantly exceeds Ms. Jus-tus’s net worth. Some of the purchases made by Dr. Justus since 1998 included: a lake house, two condominiums, land, various vehicles, two motorcycles, and two dirt bikes. He testified that he has considered selling some of his assets, but he has not taken steps to do so. He estimates his monthly expenses, including insurance for himself and his family and installment payments to creditors, are approximately $25,240.

¶ 17. The chancellor recognized that Dr. Justus paid for expenses of the couple’s youngest daughter, Audrey, while she was in college, including her housing, since August 2004. Dr. Justus also purchased Audrey a new car. Ms. Justus has also paid daily and periodic expenses for Audrey. Ms. Justus paid most of Audrey’s sorority expenses and pays approximately $150 a month for a cellular phone. She has purchased groceries for Audrey and has given her cash for various expenses. Ms. Justus testified that she spends at least $775 per month on Audrey despite Dr. Justus paying for her college, housing expenses, and vehicle.

¶ 18. While Ms. Justus’s income has increased, her monthly expenses have also increased due to the purchase of the home in Collierville. As of 1999, Dr. Justus no longer paid Ms. Justus’s mortgage. The purchase of the home lowered Dr. Justus’s monthly obligation to Ms. Justus, but it raised Ms. Justus’s monthly expenses. Also, Dr. Justus now pays less in alimony due to Ms. Justus’s employment. As for Dr. Justus’s argument that a material change in circumstances has occurred because Ms. Justus now makes more money, we find this argument is without merit as this was contemplated in the settlement agreement.

¶ 19. After carefully reviewing the facts of this case, the chancellor determined that while changes had occurred in both of the parties’ financial situations, these changes were not material in nature and could have been anticipated by the parties at the time of the divorce or settlement agreement. We cannot find that the chancellor abused his discretion in finding Dr. Justus has failed to prove by a preponderance of the evidence a material change in circumstances justifying the reduction or elimination of the alimony.

II. DID THE CHANCELLOR APPLY AN ERRONEOUS LEGAL STANDARD?

¶ 20. In this section, Dr. Justus reiterates his arguments from issue one of his brief and argues that not only was the chancellor manifestly wrong in his findings, but the chancellor made his findings based on an erroneous legal standard. He argues that the chancellor operated under the erroneous assumption that the only factor “justifying a reduction or termination of alimony would be when [the parties’] respective net worth’s [sic] were equal.”

¶ 21. Dr. Justus points us to two cases in support of his argument. In Graham v. Graham, 767 So.2d 277, 281 (¶ 11) (Miss. Ct.App.2000), this Court reversed an award of periodic alimony in the amount of $500 a month. Dr. Justus argues that in Graham, this Court recognized that $33,000 a year was a living wage in which one could sustain their needs, and Ms. Justus makes substantially more than $33,000 a year. We find that the facts in Graham are distinguishable from this case. In Graham, the parties were separated for seven years before Mr. Graham filed for an irreconcilable differences divorce. Id. at 279 (¶ 2). During those seven years, Ms. Graham never petitioned the court for any child support or alimony. Id. at 280 (¶ 8). While Ms. Graham’s monthly expenses exceeded her monthly income, the chancellor did not inquire into the necessity of those expenses. Id. The chancellor also failed to consider her fault for alimony purposes as required by Armstrong. Id. at (¶ 9). Further, Ms. Graham failed to file a brief on appeal which this Court found to be a confession of error. Id. at 281 (¶ 11). Multiple errors in Graham warranted reversal of the award of alimony; the decision was not based solely on Ms. Graham’s level of income as Dr. Justus contends.

¶ 22. The second case Dr. Justus draws our attention to is Jones v. Jones, 917 So.2d 95 (Miss.Ct.App.2005). Dr. Justus argues that in Jones, this Court recognized that an ex-wife that was in good health, had no dependents, made $51,000 a year, and had an established retirement account was not entitled to alimony. He argues that this factual scenario is comparable to Ms. Justus’s, except Ms. Justus is more financially secure than Ms. Jones. In Jones, the chancellor found that Ms. Jones proved a material change in circumstances requiring an increase in alimony. Id. at 101 (¶ 17). This Court reversed and remanded, finding that the chancellor erred in failing to consider the Armstrong factors; specifically, the chancellor failed to compare the relative positions of the parties at the time of the request for modification in relation to their- positions at the time of the divorce decree. Id. at 102 (¶¶ 20-21). This case is also distinguishable from the ease at hand since it was reversed based on error by the chancellor in not fully conducting an analysis under Armstrong.

¶ 23. In this section of his brief, Dr. Justus also makes the policy argument that an award of periodic alimony is not intended to continue indefinitely just because the couple was married at one time. See Beacham v. Beacham, 383 So.2d 146, 148 (Miss.1980). He points out that he has paid alimony for sixteen years, which is as long as the length of the marriage. He argues that now that Ms. Justus is employed and has a savings and a retirement account, she no longer needs his support.

¶ 24. This Court is well aware that “[a]limony is not a bounty to which [the wife] became entitled to receive indefinitely simply by reason of the fact that at one time she had been married to [the husband].” Id. However, we must keep in mind our standard of review for modification of alimony. While we recognize that Dr. Justus has been paying alimony for at least the length of the marriage and many circumstances have changed during that time period, we cannot find that the chancellor’s decision was an abuse of discretion, an erroneous application of law, or manifest error. Andrews, 723 So.2d at 1177 (¶7).

¶ 25. After reviewing the facts of this case in a very thorough opinion nearly sixty pages long, the chancellor could not find a material change in circumstances warranting the modification of the alimony. We find that the chancellor addressed the Armstrong factors fully and made his decision accordingly. Consequently, we cannot find error in the chancellor’s conclusions and, therefore, must affirm.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.


text:
    Billy G. AUSTIN anD Agnes H. Austin, Appellants, v. Thurman L. CARPENTER and Gladys L. Carpenter, Appellees.
    No. 2007-CA-01779-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2009.

      Richard D. Bowen, Iuka, attorney for appellants.
    George Martin Via, attorney for appel-lees.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Billy G. Austin and Agnes H. Austin (the Austins) commenced a lawsuit against Thurman L. Carpenter and Gladys L. Carpenter (the Carpenters) for specific performance of a contract for the sale of real property. The chancellor found that an enforceable contract never materialized because a condition precedent was not met. Applying Mississippi’s three-tiered approach to contract interpretation, we find that there was a condition precedent which applies to both parties. We find no error and affirm.

FACTS

¶ 2. In the spring of 2005, the Austins and the Carpenters seriously discussed the sale of three of the four tracts of land owned by the Carpenters. Both parties agree that they did not contemplate the sale of the tract of land where the Carpenters’ vacation home, garage, and cabin are located. The parties orally agreed on a price for three tracts of the land.

¶ 3. The Austins had a contract drawn up stating that the sale was for all four tracts of land — not three tracts as contemplated by the parties. The contract stated that the Carpenters agreed to sell and that the Austins “agree[d] to purchase and pay for the following described property: Approximately _acres,” which is followed by a description of all four tracts based on section, township, and range. The contract also included a “special provision” which stated that the “sale was contingent upon [the] buyer obtaining an acceptable survey of the property.” The contract was signed by all parties.

¶ 4. The Austins’ subsequent survey showed that the cabin is not located within one tract of land but actually sits on two tracts of land. The Carpenters would sell part of their cabin if they sold the three tracts of land orally agreed upon. It is undisputed that the Carpenters did not intend to sell, nor did the Austins intend to purchase the vacation home, garage, or cabin. After the survey, the Carpenters failed to appear at the closing, and the Austins obtained counsel to enforce the contract.

¶ 5. At trial, the Austins claimed that there was a meeting of the minds and any ambiguity regarding the description of the property to be sold could be cured by extrinsic evidence. Furthermore, according to the Austins, the Carpenters never expressed or indicated that their agreement to sell was conditioned upon the Austins furnishing an acceptable survey to the Carpenters, so the special provision providing for another survey protected only the Austins.

¶ 6. The chancellor found the special provision — that the sale was contingent upon buyer obtaining an acceptable survey of the property — was a condition precedent and protected the Carpenters and the Austins. Therefore, either party could decide not to go forward with the transaction if the survey was reasonably unacceptable. The chancellor found it reasonable that the survey was unacceptable to the Carpenters because it would have partitioned the cabin and sold a portion of it to the Austins. Because the condition precedent was not satisfied, the contract never manifested into an enforceable contract, and the chancellor denied the Austins’ request for specific performance.

¶ 7. The Austins ask this Court to reform the description of the property to exclude the portion of the property containing the cabin and surrounding property and enforce specific performance. The Carpenters ask this Court to find that there is not an enforceable contract because there was a condition precedent that was not satisfied or, alternatively, the description of the property was too indefinite. Mr. Carpenter testified that Mr. Austin asked for his and his wife’s signatures on the contract only to get a survey of the property, and that he promised to prepare another contract with all of the details of the sale after the survey.

¶ 8. We find the issue of the condition precedent to be dispositive. Because there is a condition precedent that was not met, the contract did not become an enforceable contract for the sale of land. Thus, we do not reach the issue of whether the property description was too indefinite to be enforced.

STANDARD OF REVIEW

¶ 9. “Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact-finder.” Miss. State Highway Comm’n v. Patterson Enters., 627 So.2d 261, 263 (Miss.1993). “We conduct a de novo review for determinations of legal questions.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002).

ANALYSIS

Whether the contract is unenforceable because a condition precedent was not satisfied.

¶ 10. The Austins argue that the Carpenters never expressed or indicated that the contract was conditioned upon an acceptable survey and that the special provision only protected the Austins. The Carpenters contend that the condition precedent protected both parties.

¶ 11. The supreme court has set out a three-tiered approach to contract interpretation. Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752(¶10) (Miss.2003). First, the “[l]egal purpose or intent should ... be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence.” Id. (citations omitted). “Secondly, if the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary ‘canons’ of contract construction.” Id. at 753(1111) (citation omitted). “Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence.” Id. (citation omitted).

¶ 12. “A condition precedent has been defined as a ‘condition which must be performed before the agreement of the parties shall become a binding contract or ... a condition which must be fulfilled before the duty to perform an existing contract arises.’ ” Turnbough v. Steere Broad. Corp., 681 So.2d 1325, 1327 (Miss. 1996) (citations omitted).

¶ 13. Following the three-tiered approach, we first look to the language of the contract — the sale is contingent upon buyer obtaining an acceptable survey of the property — to determine its legal purpose or intent. The language is clear that there is a condition which must be performed before the contract becomes binding; there must be an acceptable survey. However, the plain language is not clear concerning who must accept the survey.

¶ 14. A contract is ambiguous when it “can be interpreted as having two or more reasonable meanings.” Miss. Farm Bureau Cas. Ins. Co. v. Britt, 826 So.2d 1261, 1265(¶ 14) (Miss.2002). Here, the language of the condition, the buyer obtaining an acceptable survey, can be interpreted as having two reasonable meanings. The condition could mean that: (1) the sale was conditioned on the Austins receiving a survey that was acceptable only to them, or (2) it was the Austins’ responsibility to procure a survey that was acceptable to both parties. Both of these interpretations are reasonable.

¶ 15. Because we cannot “translate a clear understanding of the parties’ intent” from the text alone, we must go to the second step of contract interpretation and apply the discretionary canons of contract construction. It is a “universal rule of construction that when the terms of a contract are vague or ambiguous, they are always construed more strongly against the party preparing it.” Stampley v. Gilbert, 332 So.2d 61, 63 (Miss.1976).

¶ 16. The Austins drafted the contract and provision; therefore, the provision will be construed against the Austins. Construing the provision that the “sale was contingent upon [the] buyer obtaining an acceptable survey of the property” in favor of the Carpenters, we find that the condition precedent required the Austins to obtain a survey that was acceptable to both parties.

¶ 17. Because the condition precedent was not satisfied, the contract did not become binding and enforceable. Accordingly, we affirm the chancellor’s finding that a valid contract did not exist.

¶ 18. THE JUDGMENT OF THE CHANCERY COURT OF TISHOMIN-GO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . The chancellor refers to the contract as an agreement. For the sake of clarity and consistency, we will refer to the agreement for the purchase of real estate as a contract.


author: BARNES, J.,

text:
    Mike TOWNSEND, Appellant, v. DOOSAN INFRACORE AMERICAN CORPORATION f/k/a Daewoo Heavy Industries American, Corp. and Burke Handling Systems, Inc., Appellees.
    No. 2007-CA-01153-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2009.

      John F. Hawkins, John Griffin Jones, attorneys for appellant.

      James D. Holland, Leann W. Nealey, Robert A. Miller, attorneys for appellees.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court.

SUMMARY OF CASE AND FACTS

¶ 1. This appeal stems from an incident which occurred on January 17, 2000, at Central Pipe Supply, Inc., in Pearl, Mississippi. Mike Townsend, an employee of Central Pipe, was operating a sit-down, gasoline-powered Daewoo GS25S forklift truck. While carrying a load, Townsend bumped into a handcart on the loading dock with the forklift. The handcart began to roll toward the edge of the loading dock. Afraid that the moving handcart might cause damage or injury, Townsend stopped the forklift, put the shift lever in neutral, and quickly exited the forklift in order to halt the handcart’s progress. Townsend did not set the forklift’s parking brake when he left the forklift, nor did he lower the load on the forklift. After stopping the handcart, Townsend noticed that the forklift had begun to move down the dock under its own power, and he attempted to stop it. Townsend positioned himself alongside the forklift and reached for the gear shift, but before he could stop the forklift, one of the wheels went off the loading dock. The forklift struck Townsend in the head and knocked him to the concrete below, landing on top of him and severely injuring his leg.

¶ 2. Townsend filed a complaint on September 19, 2001, against Daewoo Heavy Industries America, Corporation (Doosan), the manufacturer of the forklift, and Burke Handling Systems, Incorporated, the retailer who sold the forklift to Central Pipe. The complaint alleged that the defendants were liable for damages, including punitive damages, due to (1) the defective design of the forklift; (2) the failure to include adequate warnings/instructions; (3) negligence; and (4) a breach of the express and implied warranties. A motion to stay proceedings was filed on October 23, 2001, by Burke pursuant to Mississippi Code Annotated section 83-23-135 (Rev.1999). Burke filed the motion to stay because its liability insurer, Reliance Insurance Company, was experiencing financial difficulties and was placed into liquidation on October 3, 2001. Burke’s motion was granted by the trial court, which stayed the proceedings for six months from the date of insolvency.

¶ 3. On August 30, 2006, Doosan filed a motion for summary judgment and a motion to exclude the plaintiffs expert and/or strike the plaintiffs expert, Thomas Berry. The trial judge granted Doosan’s motion and excluded the testimony of Berry under Rule 702 of the Mississippi Rules of Evidence, Daubert. v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Mississippi Transportation Commission v. McLemore, 863 So.2d 31 (Miss.2003), holding that Berry was “unqualified to render an opinion on the subject issues.” On or about February 28, 2007, the trial court entered a Rule 54(b) final judgment dismissing the complaint against Doosan with prejudice. See M.R.C.P. 54(b). Townsend now appeals submitting that the trial court’s order granting Doosan’s motion to exclude the plaintiffs expert and granting summary judgment should be reversed and remanded. Finding no error in the exclusion of Townsend’s expert witness testimony, we affirm the trial court’s grant of Doosan’s motion for summary judgment.

I. Whether the trial court erred in granting Doosan’s motion for summary judgment.

¶ 4. Doosan submitted a motion to exclude the testimony of Townsend’s expert witness, Berry, along with its motion for summary judgment. The trial court granted this motion based on its determination that Berry’s methodology failed to meet the evidentiary requirements of Rule 702 of the Mississippi Rules of Evidence, Daubert, and McLemore. The trial court also stated that Berry’s opinion testimony was based on nothing more than “speculation and conjecture.” Based on the exclusion of Berry’s testimony, the trial court found that the Doosan’s motion for summary judgment was warranted. Townsend claims that the trial court committed reversible error in excluding Berry’s testimony; therefore, summary judgment was improperly granted.

¶ 5. “When reviewing a trial court’s grant of summary judgment, our standard of review is de novo.” Webb v. Braswell, 930 So.2d 387, 395(¶ 12) (Miss.2006) (citations omitted). “Summary judgment is appropriate when the evidence is considered in the light most favorable to the nonmov-ing party, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.” Hubbard v. Wansley, 954 So.2d 951, 956(¶ 9) (Miss.2007) (citing M.R.C.P. 56(c)). “If any triable issues of material fact exist, the trial court’s decision to grant summary judgment will be reversed.” Harmon v. Regions Bank, 961 So.2d 693, 697(¶ 10) (Miss.2007). As the motion for summary judgment was granted based solely on the exclusion of the expert testimony of Berry, we must first review the trial court’s grant of Doosan’s motion to exclude Berry in order to determine whether summary judgment was warranted.

II. Whether Berry’s testimony was properly excluded under Rule 702 of the Mississippi Rules of Evidence and the Daubert standard.

¶ 6. In McLemore, the supreme court adopted the standard of analysis introduced in Daubert and the 2003 amendment to Rule 702, “for assessing the reliability and admissibility of expert testimony.” McLemore, 863 So.2d at 39(¶ 23). The amended Rule 702 of the Mississippi Rules of Evidence states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has' applied the principles and methods reliably to the facts of the case.

Thus, under Rule 702 and Daubert, “the trial judge is to act as a gatekeeper, ensuring that expert testimony is both relevant and reliable.” Poole ex rel. Poole v. Avara, 908 So.2d 716, 723(¶ 15) (Miss.2005) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

¶ 7. Townsend argues that based on Berry’s extensive qualifications, background, experience, and training, the trial court should have denied Doosan’s motion to exclude Berry’s testimony. “When reviewing a trial court’s decision to allow or disallow evidence, including expert testimony, we apply an abuse of discretion standard.” Canadian Nat’l/Ill. Cent. R.R. v. Hall, 953 So.2d 1084, 1094(¶ 29) (Miss. 2007) (citing Webb, 930 So.2d at 396-97(¶ 15)). “Absent an abuse of discretion, a judge’s determination as to the qualifications of an expert witness will remain undisturbed on appeal.” Hubbard, 954 So.2d at 956(¶ 11) (citation omitted). While we recognize that Berry is a licensed professional engineer with over twenty-four years of experience in his field, the trial court’s exclusion of Berry’s testimony was based on the methodology Berry used in obtaining his results, not based on his ré-sumé.

¶ 8. A party who offers expert testimony has to show that the expert’s opinion is not based “on opinions or speculation, but rather on scientific methods and procedures.” Webb, 930 So.2d at 397(¶ 16) (citing McLemore, 863 So.2d at 36(¶ 11)). Two important considerations that determine “whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested ... [and] whether the theory or technique has been subjected to peer review and publication.” DaubeR, 509 U.S. at 593, 113 S.Ct. 2786. The United States Supreme Court has also stated that the language of Rule 702 of the Federal Rules of Evidence “makes no relevant distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge.” Kumho Tire Co., 526 U.S. at 147, 119 S.Ct. 1167. However, this Court will only find an expert’s opinion admissible when it is founded on data. Glenn v. Overhead Door Corp., 935 So.2d 1074, 1079(¶ 13) (Miss.Ct.App.2006). “Talking ‘off the cuff — deploying neither data nor analysis — is not an acceptable methodology.” Id. (quoting Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924 (7th Cir. 2000)).

¶ 9. In his report, Berry concluded that the forklift was defectively designed because “[t]he F-N-R shift lever does not lock in neutral and can easily be bumped into engagement.” However, there was no evidence presented to show that Townsend actually bumped the gear shift when he exited the vehicle. In his deposition, Townsend stated: “I am unaware of me doing that [hitting the gear shift lever]. I don’t feel like I did.” It was also noted in Berry’s testimony that another employee had engaged the forklift by bumping the gear shift on a previous occasion; however, no injury occurred. In order to accomplish this hypothetical scenario, Berry performed what Townsend has termed “real life testing” to determine whether an individual could exit the forklift and inadvertently bump the gear-shift the mechanism from the “neutral” position into the “forward” position with his body. Specifically, Berry used what have been termed the “hip bump” and “finger flick” tests to attempt to create this hypothetical situation. The “finger flick” test, which was recorded on video, showed Berry attempting to use his finger to lightly “flick” the gear shift to see if it would slip into “forward” gear. The “hip bump” test was not recorded. Berry was only able to successfully “hip bump” the gear shift into forward once. In fact, the record reflects that Berry only attempted to do this a couple of times. We also note that Berry performed these tests himself, rather than using someone of Townsend’s similar height, weight, and build.

¶ 10. “[T]he test for expert testimony is not whether it is fact or opinion ... [but] whether it requires scientific, technical, or other specialized knowledge beyond that of the randomly selected adult.” Palmer v. Volkswagen of Am., Inc., 904 So.2d 1077, 1092(¶64) (Miss.2005) (internal quotations omitted). “If so, the testimony is expert in nature, and must be treated in discovery, and at trial, as such.” Id. “[Wjhether ... specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert’s testimony often will rest ‘upon an experience confessedly foreign in kind to [the jury’s] own.’ ” Kumho Tire Co., 526 U.S. at 149, 119 S.Ct. 1167 (quoting Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L.Rev. 40, 54 (1901)). In Kumho, the Supreme Court said that an expert’s testimony was properly excluded as there was doubt about the reliability of his theory, nor were there “refer[ences] to articles or papers that validate [his] approach.” Id. at 157, 119 S.Ct. 1167.

¶ 11. Townsend argues that Doosan’s expert witness, R. Kevin Smith, performed a test similar to another test Berry used in order to determine the amount of pressure required to move the gear — shift the mechanism from “neutral” to “forward.” Berry, and Smith, used an instrument to demonstrate how many pounds of pressure it would take to move the gear lever. Both Berry and Smith concluded it took anywhere from 2-5 pounds of pressure to move the lever. These tests were the only minimally quantitative tests performed in this case. However, neither expert gave testimony as to how these tests relate to any industry standard, nor did these tests present the trial court with any information as to any design defect. As in Glenn, the product in this case functioned as intended. In fact, Central Pipe continued to use the forklift after the accident, and it was still in service when Berry made his inspection approximately one year later.

¶ 12. We agree with Doosan’s assertion that these methods employed by Berry were “result-oriented tests.” Berry concluded that the only way the accident could have occurred was that Townsend must have bumped the gear lever into the “forward” position upon exiting the forklift. Therefore, his testing was limited to that theory. In addition, Townsend admits that Berry could not point to any literature where this “real-life testing” methodology has been employed. Berry did not conduct any personal interviews, nor did he prepare his own fact sheet regarding the incident. Much of the information contained in his report was gathered by Se-vart, the original expert witness hired by Townsend.

¶ 13. Townsend argues that the guidelines set forth in Daubert “are not to be applied rigidly but rather constitute general guidelines.” While we recognize that the Supreme Court has stated that the Daubert analysis is flexible, our sole focus must be on the “principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786. Townsend admitted that Berry’s conclusion was that, “more likely than not,” Townsend inadvertently bumped the gear into the “forward” position when he exited the vehicle. We agree with the trial court that Berry’s findings are speculative and that his methodology failed to meet either the relevancy or reliability standards outlined in Daubert. Again, while we do not dispute that Berry was a qualified, highly-educated engineer, our issue here is that his methods failed to reflect such specialized training.

¶ 14. Accordingly, we find that the trial court did not abuse its discretion in excluding the testimony of Townsend’s expert witness; therefore, summary judgment was properly granted.

III. Whether Townsend’s state law claims are preempted by federal law.

¶ 15. In the alternative to its motion for summary judgment, Doosan also argued that Townsend’s claims are preempted by federal law. The trial court failed to address the issue of federal preemption since it granted Doosan’s motion for summary judgment. We too find this issue moot.

CONCLUSION

¶ 16. We find no error in the trial court’s exclusion of Townsend’s expert witness; therefore, the motion for summary judgment was properly granted. Additionally, as Issue I is case-dispositive, the remaining issue is rendered moot.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . We also note that Townsend was not wearing a seat belt.

      . Although the complaint identified the defendant as Daewoo Heavy Industries America, Corporation, the official corporate name was Doosan Infracore America Corporation, f/k/a Daewoo Heavy Industries America Corporation (sometimes referred to as "DHIA”). For clarity, we will hereafter refer to the appellee as Doosan.

      . Townsend later dropped his claim of failure to warn/inadequate warnings admitting that his expert, Thomas Berry, testified that ade-quale or better warnings would not have prevented the injury.

      . Although various motions and responsive pleadings were filed by Burke throughout the course of the litigation, ultimately Townsend and Burke agreed it would be appropriate to dismiss Burke as a separate defendant from the action, and the trial court entered an order dismissing Burke on March 12, 2007.

      . Originally, J.B. Sevart, a consulting engineer, was Townsend’s expert witness. However, due to health issues, Sevart was replaced by Berry. Townsend submitted his supplemental designation of expert witness for Berry to the trial court on October 10, 2005.

      . Based on die information provided in the record, Townsend clearly failed to follow the safety procedures outlined in the instruction manual for the subject forklift. The instruction manual states on page 41 that there is a danger that if the forklift is left running without an operator, it can move slowly if the transmission is engaged. It also instructs operators to "[ajlways place the transmission control lever in the NEUTRAL (center) position and apply the parking brake before dismounting the lift truck." (Emphasis added). The manual admonishes operators to "[njever leave the lift truck with the engine operating, or with the parking brake disengaged.” Townsend admitted that he had never reviewed the operator’s manual prior to operating the subject forklift.


author: IRVING, J., GRIFFIS, J.,

text:
    Jonathan M. HARBIT, Appellant v. Mary Melissa Scarberry HARBIT, Appellee.
    No. 2007-CA-01474-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2009.

      Carlos Eugene Moore, attorney for appellant.
    A.E. (Rusty) Harlow, Sabrina Ann Davidson, Grenada, attorneys for appellee.
   IRVING, J.,

for the Court.

¶ 1. The Chancery Court of Grenada County granted Mary Melissa (Melissa) and Jonathan Harbit a divorce on the ground of irreconcilable differences. Pursuant to a consent of issues agreement, the chancellor also resolved certain issues which were submitted to her for resolution. Aggrieved by the chancellor’s decision, Jonathan appeals and asserts the following points of error, which we quote verbatim:

1.Whether the Chancellor erred when she failed to grant Mr. Harbit’s Motion for New Trial after the Chancellor allowed “unsworn” testimony to be taken in violation of Miss. Rule of Evidence 603.
2. Whether the Chancellor erred when she allocated a debt incurred during the course of the marriage to Mr. Harbit.
3. Whether the Chancellor erred when she ordered Mr. Harbit to pay Ms. Har-bit’s attorneys fees.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Melissa and Jonathan agreed to a divorce on the ground of irreconcilable differences and submitted to the chancellor for resolution the issues of child custody, child support, division of the marital estate, alimony, and attorney’s fees.

¶ 4. Prior to the commencement of trial, Melissa made an offer of judgment pursuant to Rule 68 of the Mississippi Rules of Civil Procedure. We defer any further discussion of the offer until we address the attorney’s fee issue. It is sufficient at this juncture to note that the offer was rejected by Jonathan. After the trial, which included the testimony of only the parties, the chancellor awarded custody of the parties’ minor child to Melissa and ordered Jonathan to pay the balance owed on a Toyota 4Runner in the amount of $2,046.76. Additionally, the chancellor, after unsealing and reading the offer of judgment, ordered Jonathan to pay Melissa’s attorney’s fees in the amount of $2,000, as the chancellor determined that Jonathan had received a judgment less favorable than the offer tendered to him by Melissa. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Unsworn Testimony

¶ 5. Upon commencement of the trial, both Jonathan and Melissa testified without first being sworn. When Jonathan was later recalled as a rebuttal witness, the trial judge expressed concern that the witnesses may not have been sworn. On this point, the record reflects the following:

[APPELLANT’S ATTORNEY]: May I approach the witness?
THE COURT: Yes, you may. Let me ask a question.
[APPELLANT’S ATTORNEY]: Okay.
THE COURT: Were these witnesses sworn before we started our testimony?
[APPELLANT]: Nope.
THE COURT: Your Honor, very candidly we swore the prior witnesses and I think we proceeded right on along without that, and I think the Court is correct. We need to make a record right at this very moment on both of them.
THE COURT: I am going to ask the Clerk to please swear these witnesses and ask if they will swear that the testimony they have already given— and I want both of you to think long and hard about that, because we did not administer an oath, and I’m sorry. I just forgot that we had not sworn y’all.
[COURT] CLERK: All witnesses please stand up. Do you and each of you solemnly swear and affirm that the existing testimony that you have given, plus the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?

[APPELLANT]: Yes, I do.

[APPELLEE]: Yes, sir.

¶ 6. In this issue, Jonathan contends that the trial judge erred in basing her findings of fact and conclusions of law on “un-sworn” testimony. Jonathan heavily relies on Rule 603 of the Mississippi Rules of Evidence, which reads: “Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.”

¶ 7. Further, Jonathan relies on Scoggins v. Ellzey Beverages, 743 So.2d 990 (Miss.1999) and Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss.1997). Neither of these cases involve the failure of a witness to be sworn before giving trial testimony. Rather, they deal with the failure of witnesses to give truthful information during discovery. Scoggins, 743 So.2d at 997 (¶ 36); Pierce, 688 So.2d at 1388. Therefore, they provide no support for Jonathan’s position.

¶ 8. In this case, although Jonathan and Melissa initially gave unsworn testimony, they each later affirmed under oath that the unsworn testimony that they had given was true and correct. Therefore, the real issue is whether the swearing in of Jonathan and Melissa, after they had given unsworn testimony, was effective. We answer in the affirmative.

¶ 9. Jonathan has cited no authority in support of this specific issue, and we have not found any Mississippi case law on this specific issue. Therefore, we consider authority from other states and circuits that have spoken to the issue.

¶ 10. In Saxton v. State, 389 So.2d 541(Ala.Crim.App.1980), an Alabama trial court was faced with a situation substantially analogous to ours. There, a state witness testified on direct examination without being sworn. Id. at 543. At the conclusion of the direct examination, the defense counsel moved for a mistrial on the basis that the witness had not been sworn. Id. The court interrupted the proceedings, swore in the witness, and allowed the witness to be reexamined. Id. The court denied the motion for a mistrial. Id. On appeal, the Alabama Court of Criminal Appeals noted that defense counsel made no objection during the first examination of the witness and held that the trial court did not err in overruling the motion for a mistrial. Id. The court also held that “[i]f a witness is allowed to give evidence before the jury without first being lawfully sworn, it is the duty of the judge, as soon as it is called to his attention, to immediately administer a proper oath.” Id.

¶ 11. In United States v. Perez, 651 F.2d 268, 273 (5th Cir.1981), the United States Court of Appeals for the Fifth Circuit noted that the general rule is that the failure to swear a witness may be waived. The court also noted that the waiver “may occur by knowing silence and an attempt to raise objection after verdict or by the mere failure of counsel to notice the omission before completion of trial.” Id. (footnote omitted).

¶ 12. In Beausoliel v. United States, 107 F.2d 292, 294 (D.C.Cir.1939), the United States Court of Appeals for the District of Columbia observed “that the irregular administration of the oath to a witness, or the taking of testimony without an oath at all, must, if known to the adverse party, be objected to at the time.” The court further noted that a defendant “may not, with knowledge of the irregularity, permit the trial to proceed, and raise the question after verdict.” Id.

¶ 13. Finally, in State ex rel. Tucker v. AMs, 89 N.E.2d 328, 328 (Ohio CtApp. 1949), the Ohio appeals court for the second district observed that when the failure to swear a witness is known at the time, “the defect must be taken advantage of at once and the failure to do so is such acquiescence in the testimony as will preclude objection after the verdict.”

¶ 14. We find the holdings of the above cases quite persuasive. Consequently, we hold that the chancellor in today’s case acted promptly and properly when it occurred to her that the witnesses had not been sworn. As noted in the colloquy quoted above, the chancellor had the witnesses sworn immediately and required them to attest under oath that the testimony already given was true and correct. We also note that Jonathan never objected to the witnesses not being sworn and was about to give rebuttal testimony when the court on its own questioned whether the witnesses had been sworn. After the court was assured by Jonathan that he and Melissa had not been sworn, the court moved immediately to correct the oversight. Rather than object to the court’s failure to swear in the witnesses, Jonathan waited until after the chancellor was almost completely finished rendering the verdict favorable to Melissa before he suddenly moved for a mistrial on the ground of “unsworn” testimony. Therefore, even though we find no fault with the chancellor’s handling of this matter, we find that Jonathan waived the issue of the court’s failure to initially swear in the witnesses, because he failed to timely object. This contention of error is without merit.

2. Equitable Distribution

¶ 15. Next, Jonathan argues that the chancellor erred in requiring him to pay the indebtedness on the Toyota 4Run-ner. Melissa owned the 4Runner prior to the marriage, but it was used as collateral for a loan made during the marriage, and the proceeds of that loan were used for marital obligations.

¶ 16. Jonathan accurately states that assets classified as marital are distributed equitably. Bowen v. Bowen, 982 So.2d 385, 395 (¶ 41) (Miss.2008) (citing Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994)). However, equitable distribution of marital assets is committed to the discretion of the chancellor and is not disturbed absent clear error or application of an erroneous legal standard. Bodne v. King, 835 So.2d 52, 60 (¶33) (Miss.2003) (citing Arthur v. Arthur, 691 So.2d 997, 1003 (Miss.1997)). Moreover, the Mississippi Supreme Court has repeatedly stated that “the chancellor’s division and distribution will be upheld if it is supported by substantial credible evidence.” Bowen, 982 So.2d at 394 (¶ 32) (quoting Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994)).

¶ 17. Here, the record reflects uncon-tradicted testimony that the indebtedness was incurred to assist with marital obligations because Jonathan was unemployed for a prolonged period of time. Accordingly, we cannot find an abuse of discretion with the chancellor’s decision to assign the debt solely to Jonathan. This issue is without merit.

3. Attorney’s Fees

¶ 18. Finally, Jonathan argues that the chancellor erred by ordering him to pay Melissa’s attorney’s fees. Jonathan specifically argues that the court should have considered the McKee factors in determining whether or not to award Melissa attorney’s fees. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). We find that the primary purpose of requiring the trial judge to perform the McKee analysis is to ensure that any award of attorney’s fees that the judge may order is reasonable and supported by the evidence. It should be noted that “the matter of determining attorneys fees in divorce cases is largely entrusted to the sound discretion of the trial court.” Id. (citing Walters v. Walters, 383 So.2d 827, 828 (Miss.1980)).

¶ 19. In awarding $2,000 in attorney’s fees to Melissa, the chancellor relied on the dictates of Rule 68 of the Mississippi Rules of Civil Procedure, which states:

At any time more than fifteen days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within ten days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict, order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time, not less than 10 days, prior to the commencement of hearing to determine the amount or extent of liability.

(Emphasis added).

¶ 20. The chancellor determined that the judgment rendered was less favorable to Jonathan than the offer. According to Rule 68, Jonathan would only be required to pay the costs incurred by Melissa from the point of rejection of the offer until the conclusion of the trial. Therefore, the real issue is whether costs, as specified in Rule 68, include attorney’s fees. Since Jonathan has not provided us with any Mississippi authority on this point, and our independent research has revealed none, we look to federal jurisprudence. In Marek v. Chesny, 473 U.S. 1, 9, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (overruled on other grounds), the United States Supreme Court held:

[T]he most reasonable inference is that the term “costs” in [Federal] Rule 68 was intended to refer to all costs properly awardable under [a] relevant substantive statute or other authority.... Thus, absent congressional expressions to the contrary, where the underlying statute defines “costs” to include attor-ne/s fees, we are satisfied such fees are to be included as costs for the purposes of [Federal] Rule 68.

¶ 21. We are not aware of any Mississippi statute that authorizes a chancellor to award attorney’s fees, as part of the costs, to a prevailing party in a divorce proceeding. While there is plenty of authority authorizing a chancellor, in the chancellor’s discretion, to award attorney’s fees to a party in a divorce action, that authority is decisional law and is based on the financial needs of the party. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Therefore, we find that the chancellor erred in using Rule 68 to calculate the amount of attorney’s fees awarded to Melissa. However, as previously mentioned, the matter of determining attorney’s fees in divorce cases lies within the sound discretion of the chancellor.

¶ 22. In discussing the attorney’s fees, the chancellor stated:

THE COURT: With regard to Mrs. Harbit’s request for attorney’s fees, I did some calculations on the attorney’s fees. It’s obvious from the bill that was submitted and affidavit that was submitted as Exhibit Five that this bill is up to the trial of this case. There is no charge on the bill for today’s trial and I have basically added two hours of time for Mr. Harlow. I know you have probably been here longer than that, Mr. Harlow, and you have two assistants here and I know they are going to bill for their time also.
But when I added two hours to Mr. Harlow’s time his bill totals $3,313.93, and my initial reaction was that I was going to require you, Mr. Harbit, to pay one half of those attorney’s fees; however, then after I had written out all of my notes I did open the offer of judgment that was done on April the 16th and basically I have awarded or y’all have agreed upon — some of the things y’all agreed upon on your own, some of the things I have awarded y’all or I have made a ruling on.
But I think you would have been much better off to take the offer of judgment at that time, but the Mississippi Rules of Civil Procedure say that once an offer of judgment is made, if it’s not accepted within ten days, then any attorney’s fees, costs associated with prosecuting the case or that are incurred after that time are assessable to you.
The Court is not required to, but the Court certainly has every bit of authority to assess those against you. So I went back through that attorney’s affidavit and that bill and added up the time that was spent on your case prior to the offer of judgment being made and subtracted that from the total bill and according to my calculations it was a little over $2,000 that you would be assessed with.
So I changed my little notes about what I was going to rule and I am going to assess you with $2,000.00 of Mrs. Harbit’s attorney’s fees and that will be payable within 30 days directly to Mr. Harlow.

¶ 23. The chancellor essentially determined that but for Rule 68 she would have ordered Jonathan to pay one-half of Melissa’s attorney’s fees. While we find that the chancellor erred in using Rule 68 to calculate the amount of attorney’s fees due, we also find clear and substantial evidence that the chancellor would have awarded attorney’s fees to Melissa even if there had been no offer of judgment. We further find that based on the chancellor’s own pronouncement, that amount would have been one-half of the amount of attorney’s fees incurred by Melissa in the litigation. Exhibit 5, which was admitted into evidence, was Melissa’s attorney’s bill for all services rendered except for the trial. The chancellor found that the trial lasted two hours, and she added $350 to the bill for service rendered during the trial, bringing the total amount of the attorney’s bill to $3,313.93.

¶ 24. An appellate court may affirm a trial court on other grounds if it finds that the trial court reached the right result despite its flawed or erroneous premises. Mason v. S. Mortg. Co., 828 So.2d 735, 738 (¶ 15) (Miss.2002) (citing Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993)). Here, we find that the chancellor was justified in awarding attorney’s fees to Melissa. Therefore, we exercise our authority to affirm on other grounds the chancellor’s decision to award attorney’s fees to Melissa. We do so despite the fact that the chancellor did not perform the McKee analysis, because, for the following reasons, we find that this omission did not cause Jonathan to suffer any prejudice. The divorce complaint was filed on February 20, 2007. The two-day trial commenced on June 14. The docket index reflects that in the approximate four months prior to trial, a modest amount of activity occurred. As stated, the chancellor indicated that she would have ordered Jonathan to pay one-half of Melissa’s attorney’s fees. That amount would have been $1,656.97. We find that, on these special facts, a McKee analysis is not indispensable to determining the reasonableness of this amount. Accordingly, we modify the amount of attorney’s fees awarded from $2,000.00 to $1,656.97 to represent one-half of the total amount of attorney’s fees incurred by Melissa. The judgment of the trial court is affirmed in all other particulars.

¶ 25. THE JUDGMENT OF THE CHANCERY COURT OF GRENADA COUNTY IS AFFIRMED AS MODIFIED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., BARNES AND ROBERTS, JJ., CONCUR. ISHEE, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J., ISHEE AND CARLTON, JJ. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

GRIFFIS, J.,

concurring in part, dissenting in part.

¶ 26. I concur with the majority regarding issues one and two. I respectfully dissent as to the holding of issue three.

¶ 27. In my opinion, the majority is correct to rule that the chancellor erred when she cited Rule 68 of the Mississippi Rules of Civil Procedure as appropriate authority for the chancellor to award attorney’s fees. There is no legal authority for this conclusion. Rule 68 does not authorize an award of attorney’s fees as costs.

¶ 28. In McKee v. McKee, 418 So.2d 764, 766-67 (Miss.1982), the supreme court determined that an award of attorney’s fees in a divorce case may be awarded at the discretion of the chancellor, but the award must be reasonable and supported by the evidence. The supreme court held:

The fee depends on consideration of, in addition to the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.

Id. at 767.

¶ 29. The majority concludes that “on these special facts, a McKee analysis is not indispensable to determine] the reasonableness of this amount. Accordingly, we modify the amount of attorney’s fees awarded from $2,000 to $1,656.97 to represent one-half of the total amount of attorney’s fees incurred by Melissa.”

¶ 30. I do not agree with the majority’s conclusion. Based on McKee, the supreme court has ruled that an award of attorney’s fees must be supported by a chancellor’s analysis of what has become known as the McKee factors. Here, the chancellor has not made this analysis. Therefore, I am of the opinion that the proper holding by this Court is to reverse the award of attorney’s fees and remand this issue to the chancellor for an analysis of the McKee factors. Accordingly, I dissent as to issue three. I would reverse the chancellor’s award of attorney’s fees and remand this case to the chancery court for further proceedings consistent with this opinion.

LEE, P.J., ISHEE AND CARLTON, JJ., JOIN THIS SEPARATE OPINION.

      . The parties later agreed that Melissa would have physical custody of the parties' minor child.

      . After Jonathan rejected the offer, it was sealed and filed among the clerk’s papers.

      . We assume that the court reporter made an error in transcribing that this statement was made by the court. It seems more likely that this statement was made by one of the attorneys.

      . The McKee factors include "the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.” McKee, 418 So.2d at 767.

      . Rule 68 of the Mississippi Rules of Civil Procedure is patterned after Federal Rule 68, which provides that "[i]f the judgment that the offeree finally obtains is not more favorable than the unacceptable offer, the offeree must pay the costs incurred after the offer was made.” (Emphasis added).