author: MYERS, P.J.,

text:
    SUMMERALL ELECTRIC CO., INC., Don South Plumbing, Inc. and South and Son Construction Co., Inc., Appellants, v. CHURCH OF GOD AT SOUTHAVEN, Appellee.
    No. 2008-CA-02120-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.

      Joseph M. Sparkman, attorney for appellants.
    William Albert Brown, Hernando, Gordon Charles Shaw, attorneys for Appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Summerall Electric Company, Inc., Don South Plumbing, Inc., and South and Son Construction Company, Inc., (collectively, the subcontractors) brought suit against the Church of God at Southaven (the Church), alleging that the Church, as the property owner, was liable for costs owed to the subcontractors by the general contractor, National Church Services, Inc. (NCS), which was not a party to the suit. The subcontractors alleged that they had not been paid for their work in the construction of a sanctuary building.

¶ 2. The Church executed a “Construction Agreement” with NCS on September 24, 2005, for the construction of the sanctuary building. The contract price was stated as $1.1 million, plus the cost of the surety bond. NCS engaged the services of Rick Nealy, a member of the Church, as its construction superintendent for the project. At the time, NCS did not hold a Mississippi contractors’ license; it claimed to be seeking one through a reciprocacy agreement with South Carolina. The City of Southaven nonetheless allowed NCS to proceed with the construction.

¶ 3. Construction began in March 2006, several months later than provided for in the construction agreement. For the work, NCS employed various subcontractors; the subcontractors in the instant action contracted with NCS in February and March 2006. Nealy was NCS’s only employee permanently located in Southaven.

¶ 4. As the construction progressed, payments from NCS to Nealy and its subcontractors began arriving late, and they had ceased by November 2006, when the subcontractors filed construction liens against the Church’s property. By this point, construction on the sanctuary building had stopped. The Church had paid NCS the balance due under the contract, but approximately $300,000 of work would be required to complete the sanctuary building. The three subcontractors alleged that they were owed about $110,000 among them.

¶ 5. The chancellor found that the subcontractors could not recover from the Church because they had failed to give stop payment notices before the Church made its final payment to NCS, the general contractor. The chancellor also found that the subcontractors could not recover against the Church on an agency theory because no principal-agent relationship existed between the Church and NCS. On appeal, the subcontractors challenge both findings, arguing that the chancellor erred because NCS was not a licensed contractor in the State of Mississippi. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. In reviewing the judgment of a chancery court, an appellate court “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly erroneous.” Hamilton v. Hopkins, 834 So.2d 695, 699(¶ 12) (Miss.2003) (citations omitted). Additionally, where the chancellor has made no specific findings, we will proceed on the assumption that he resolved all such fact issues in favor of the appellee. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). A chancellor’s interpretation and application of the law, however, is reviewed de novo. Tucker v. Prisock, 791 So.2d 190, 192(¶ 10) (Miss.2001).

DISCUSSION

1. Stop Notices

¶7. The chancellor found that because the subcontractors failed to timely file stop notices, they were simple creditors of the general contractor and were barred from recovery against the owners.

¶ 8. We have previously held:

At common law, subcontractors are common creditors of the contractor for whom they agree to provide materials or services. Jones Supply Co. v. Ishee, 249 Miss. 515, 527, 163 So.2d 470, 475 (1964). No privity exists between a subcontractor and an owner. Corrugated Indus., Inc. v. Chattanooga Glass Co., 317 So.2d 43, 47 (Miss.1975). But Mississippi Code Annotated section 85-7-181 (Rev. 1999) prescribes a remedy against the owner for a subcontractor “who may have furnished materials used in the erection, construction, alteration, or repair of any house” and who is not paid by the contractor. To exercise the remedy, the unpaid subcontractor must serve written notice of the debt upon the property owner, at which point “the amount that may be due upon the date of the service of such notice by such owner to the contractor or master workman, shall be bound in the hands of such owner for the payment in full, or if insufficient then pro rata, of all sums due such person....” Miss.Code Ann. § 85-7-181 (Rev.1999). In other words, when the unpaid subcontractor gives written notice (commonly termed a “stop notice”) to the owner, the subcontractor becomes entitled to payment from the owner up to the amount in which the owner is indebted to the general contractor as of the date the notice is served. Id.
The service of the stop notice invokes the subcontractor’s statutory remedy against the owner. Id. Absent such notice, an owner has no obligation to a subcontractor who has provided materials or services pursuant to an agreement with a contractor. Corrugated Indus. Inc., 317 So.2d at 47. And, if a subcontractor serves a stop notice after the owner has paid the contractor the full amount due under the contract, the owner is not liable to the subcontractor. Id.; Miss.Code Ann. § 85-7-181.

Timms v. Pearson, 876 So.2d 1083, 1086 (¶¶ 8-9) (Miss.Ct.App.2004).

¶ 9. It is uncontroverted that none of the subcontractors filed stop notices before the owner, the Church, had paid its obligations to NCS, the general contractor.

¶ 10. On appeal, the subcontractors present several arguments as to why the owners should be liable notwithstanding the subcontractors’ failure to timely file stop notices. The subcontractors present each argument as a separate issue, but because all relate to the single overarching and dispositive issue of whether the chancellor erred in finding that the subcontractors were barred from recovering from the Church, we shall address them together.

¶ 11. First, the subcontractors argue that the chancellor erred in failing to consider Mississippi Code Annotated section 31-3-15 (Rev.2008), which provides:

No contract for public or private projects shall be issued or awarded to any contractor who did not have a current certificate of responsibility issued by said board at the time of the submission of the bid, or a similar certificate issued by a similar board of another state which recognizes certificates issued by said board. Any contract issued or awarded in violation of this section shall be null and void.

This provision applies to private construction contracts of one hundred thousand dollars or more. Miss.Code Ann. § 31-3-1 (Rev.2008).

¶ 12. The subcontractors fail to explain on appeal, however, why this was reversible error or what result section 31-3-15 requires. Nor is reversible error intuitive, as the subcontractor’s remedy under section 85-7-181 is limited by its own terms to “the amount that may be due upon the date of the service of [the stop] notice by such owner to the contractor.” If anything, had the chancellor found the contract between the Church and NCS null and void, there would be nothing owed to NCS by the Church, and the subcontractors could have no remedy against the Church under section 85-7-181.

¶ 13. The subcontractors also argue that Engle Acoustic & Tile, Inc. v. Grenfell, 223 So.2d 613, 618 (Miss.1969), frames the issue as whether the owners or the subcontractors were in the better position to prevent the subcontractors’ loss. This, however, was not the holding in Engle; there, the supreme court rejected the subcontractors’ argument that the owners’ superior trust in the general contractor entitled them to relief, noting that both parties’ trust in the general contractor was misplaced. Id. Instead, the court concluded that “[s]o long as advance payments to the prime contractor extinguished debt and were paid prior to the receipt of statutory stop payment notices, liability was precluded on the part of the owners.” Amerihost Dev., Inc. v. Bromanco, Inc., 786 So.2d 362, 367(¶ 20) (Miss.2001) (restating the holding of En-gle).

¶ 14. Finally, the subcontractors argue that this result is simply unfair to them and that under our law even the most diligent subcontractors may be denied a remedy against the owners. The supreme court, however, has addressed and rejected this argument on numerous occasions. In Amerihost, the Court stated:

[W]e must acknowledge that this is a very difficult decision to make, but no other result can be reached under a fair reading of the statute. We think it significant this statute has apparently worked well under our interpretation since the present version was adopted in 1918. That is not to say that the Legislature should not revisit this statute to bring the language up to date and review the protections offered in light of the use and custom in today’s construction industry.

Id. at 365(¶ 13). Similarly, the supreme court in Engle noted that “[i]t is regrettably true that either the [subcontractors] will lose their labor and materials in the amounts stated or that the [ojwners will be forced to make a double payment.” Engle, 223 So.2d at 618.

¶ 15. In summary, we find none of the arguments advanced by the subcontractors persuasive. Accordingly, we find that this issue is without merit.

2. Agency

¶ 16. In the alternative, the subcontractors argue that the chancellor erred in finding that no agency relationship existed between the Church and NCS. If NCS were acting as an agent of the Church when it employed the subcontractors, the Church may be bound irrespective of whether the subcontractors failed to timely file stop notices. Aladdin Const. Co., Inc. v. John Hancock Life Ins. Co., 914 So.2d 169, 174(¶ 7) (Miss.2005). Alternatively, the Church may be bound if it created the “apparent authority” of NCS to act as its agent and to bind the Church in its dealings with the subcontractors. Bailey v. Worton, 752 So.2d 470, 475(¶ 11) (Miss.Ct.App.1999).

¶ 17. Finding no agency relationship, the chancellor concluded that NCS was an independent contractor tasked with constructing a building and that the subcontractors could not hold the Church to NCS’s debts under an agency theory. At issue, therefore, is whether the chancellor’s finding that NCS was not acting as an agent of the Church is supported by substantial evidence.

A. Actual or Implied Authority

¶ 18. We have stated that “[t]he most characteristic feature of an agent’s employment is that he is employed primarily to bring about business relations between his principal and third persons....” Bailey, 752 So.2d at 474(¶ 8) (citing First Jackson Sec. Corp. v. B.F. Goodrich Co., 253 Miss. 519, 532-33, 176 So.2d 272, 278 (1965)). “An agent is one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by his authority. He is a substitute, a deputy, appointed by the principal, with power to do the things which the principal may or can do.” Id. (citing 2 C.J.S. Agency § lc (1936)).

¶ 19. The supreme court has stated that “[w]ith respect to general principles of agency, ‘the line between an agent and an independent contractor is not really a line but a “twilight zone,” with the answer inevitably revolving around the idea of control.’” Aladdin Const. Co., Inc., 914 So.2d at 175(¶ 10) (quoting Right v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1359 (Miss.1989)). The court has also stated that the key is determining whether “the agent acts on the principal’s behalf and is subject to the principal’s control.” Id. (citing Restatement (Third) of Agency § 1.01 (Tentative Draft No. 2, 2001)).

¶ 20. Although the subcontractors allege that the Church gave NCS actual authority to act as its agent in constructing the sanctuary building, their argument on this sub-issue is not well developed on appeal. They appear to rely on two factual bases.

¶ 21. First, the subcontractors assert that the Church entrusted NCS with the authority to contract on its behalf. This, however, is supported only by citation to vague admissions in the record that the Church entrusted NCS with the authority to do what was necessary to construct the building. On the other hand, the Church cites to the instruments executed between it and NCS that define their relationship as one between owner and contractor. The contract did not provide NCS with the express authority to employ subcontractors on the Church’s behalf. Instead, NCS was tasked to “fully execute” the construction of the building. The contract did not specify how; that is, it appeared to contemplate that NCS would employ subcontractors, but NCS would do so on its own behalf. Likewise, the subcontractors were employed through contracts with only NCS; these instruments referred to each of the subcontractors as “subcontractor,” while NCS was called “contractor.”

¶ 22. Second, the subcontractors cite to instances where the Church was alleged to have exercised authority over the subcontractors. Particularly, Blaire Carlson, an employee of subcontractor Summerall Electric, testified that the Church directed changes to the original plans for the building. He also alleged that Pastor Massey and an associate pastor selected light fixtures and directed him to install them in the building. However, this testimony fell short of establishing any direct control by the Church. Carlson’s testimony was unclear as to whether the Church or NCS directed the changes, and he acknowledged that he was also accompanied by Nealy, NCS’s superintendent, when selecting the light fixtures. Additionally, Carlson was unequivocal in testifying that he understood that Summerall Electric was employed by NCS, rather than the Church; and his testimony suggesting that the Church exercised control over the subcontractors was contradicted by the testimony of numerous witnesses offered by both sides, including employees of other subcontractors.

¶ 23. The subcontractors also cite a letter sent by Pastor Massey to the Southa-ven Building Department that stated that the Church had released NCS and enumerated subcontractors from the construction project. However, Sydney Elliot, a building official for the City of Southaven, testified that the city required such letters from owners when they release general contractors. The letter, therefore, was not inconsistent with an owner-general contractor relationship.

¶ 24. In reviewing the record, we cannot say that the chancellor’s findings on this issue are clearly erroneous.

B. Apparent Authority

¶ 25. The subcontractors also argue that the chancellor erred in not finding that NCS had the apparent authority to bind the Church or act on its behalf.

¶26. “Apparent authority exists when a reasonably prudent person, having knowledge of the nature and the usages of the business involved, would be justified in supposing, based on the character of the duties entrusted to the agent, that the agent has the power he is assumed to have.” Bailey, 752 So.2d at 475(¶ 11) (quoting Eaton v. Porter, 645 So.2d 1323, 1325 (Miss.1994)).

¶ 27. “There are three essential elements to apparent authority: (1) acts or conduct of the principal indicating the agent’s authority; (2) reliance thereon by a third person, and (3) a change of position by the third person to his detriment.” Id. at (¶ 12). Each of these elements must be present, and the existence of apparent authority is a question of fact. Id.

¶ 28. Although they cite Bailey and its holding, the subcontractors simply fail to offer an argument sufficient to allow this Court to reverse a chancellor’s findings of fact on this sub-issue. While the subcontractors do cite some acts of the Church indicating the apparent authority of NCS to bind the Church, they fail to offer any evidence or argument concerning reliance by the subcontractors; in fact, none of the witnesses called by the subcontractors testified as to any belief that he or she was employed by the Church or on its behalf. This issue is without merit.

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

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . NCS was named as a defendant by the subcontractors and by the Church in a cross-claim, but it could not be served with process. The Church did, however, receive a default judgment against Chip Green, the president of NCS.

      . Nealy was a member of the Church’s building committee, but he resigned from that committee and other Church committees when he accepted the position with NCS. Testimony indicated that the various committees were advisory in nature and that all decisions were made by the Church’s pastor, Larry Massey.

      .NCS's application was ultimately denied on the grounds that its South Carolina license was itself reciprocal.

      . The subcontractors in Engle cited Railway Express Agency v. Bank of Philadelphia, 168 Miss. 279, 150 So. 525 (1933), for this proposition.

      . The contract provided that the Church could terminate the agreement if NCS “fails to supply enough properly skilled workers or proper materials,” or if NCS "fails to make payments to subcontractors for materials or labor in accord with the respective agreements between NCS and dm subcontractors.” (Emphasis added).


source: Caselaw Access Project

author: GRIFFIS, J„

license: Public Domain

text:
    Latoya MAPP, individually and as Executrix of the Last Will and Testament and the Estate of Will Frank Mapp, Jr., Donald A. Pugh, Sr., and Darryl Mapp, Appellants, v. Marilyn Mapp CHAMBERS, individually and as Guardian of Virginia Mapp.
    No. 2008-CA-02093-COA.
    Court of Appeals of Mississippi.
    Jan. 12, 2010.

      Ranee N. Ulmer, Attorney for appellants.
    Janessa Emontan Blackmon, Canton, attorney for appellee. •
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J„

for the Court.

¶ 1. Latoya Mapp, individually and as executrix of the last will and testament of the estate of Will Frank Mapp, Jr., Donald Pugh, Sr., and Darryl Mapp (collectively “Appellants”) appeal the chancery court’s decision finding that Virginia Mapp (“Virginia”) was not mentally competent to execute a deed and that the signature of Marilyn Mapp Chambers (“Marilyn”) on the deed was a forgery. Appellants contend that: (1) Virginia possessed the required mental capacity to understand the nature of her actions when she signed the deed, and (2) Marilyn did, in fact, sign and execute the deed. We find no error and affirm the judgment of the chancery court.

FACTS

¶ 2. Virginia lived and maintained a home in Forest, Mississippi. Virginia was an owner and operator of Mapp Funeral Home. In the summer of 2000, Virginia was no longer allowed to drive.

¶ 3. In 2001, she moved to Jackson, Mississippi to live with her daughter, Marilyn. Marilyn testified that she moved her mother because Virginia was no longer able to stay by herself. While Marilyn was at work during the day, Virginia went to an assisted living center.

¶ 4. In July 2001, Virginia was taken to a neurologist, Dr. George Edward Wilkerson, on referral of Dr. John Myers of MEA Medical Clinic for an evaluation of memory loss. Dr. Wilkerson became Virginia’s treating physician.

¶ 5. After the initial evaluation, Dr. Wilkerson diagnosed Virginia with dementia Alzheimer’s type, hypertension, and other etiologies that were not specified in the testimony. Dr. Wilkerson described dementia Alzheimer’s type as a relentlessly progressive irreversible disease where the patient experiences difficulty with cognition or the ability to think, reason, and manage one’s emotions. He testified that on each visit, Virginia showed progression of memory loss, and in January 2002, he recommended that a conservatorship be established for Virginia. He based his recommendation on his evaluations within a reasonable degree of medical probability because Virginia had shown a significant progression of mental infirmity and was in need of protection.

¶ 6. In 2003, Virginia was continuing to decline and showed evidence of psychosis, paranoia, and sleep problems with insomnia. Dr. Wilkerson prescribed Virginia anti-psychotic medication and diagnosed her with sundowning, a condition in which the individual does fine during the daytime but becomes very agitated and restless during the nighttime. On one occasion, Virginia was admitted to Rankin Medical Center because she could not be controlled at home. Dr. Wilkerson testified that during 2003 Virginia was overtly psychotic, delusional, out of contact with reality, very agitated, and not sleeping. Dr. Wilkerson continued to treat Virginia until 2004.

¶ 7. On April 2, 2003, a quitclaim deed was filed with the chancery clerk of Scott County purporting to convey certain parcels of property located in Scott County, Mississippi, including Mapp Funeral Home, from Virginia and Marilyn to Virginia’s son, Will Frank Mapp, Jr. (“Will”). The deed contained the alleged signatures of Virginia and Marilyn.

¶ 8. During the time that the deed was allegedly signed, Josie Gammage was employed by Mapp Funeral Home as a secretary. She was also authorized as a notary public in the State of Mississippi. Gam-mage signed an affidavit which stated that Marilyn did not appear before her to execute the deed, and she stated in a deposition that Marilyn was not present when Gammage notarized the deed. However, at trial, Gammage testified that she did not remember if Marilyn was present when Gammage notarized the deed. She also testified that she did not recognize the signature, alleged to be Virginia’s, on the deed. Gammage later invoked her Fifth Amendment right against self-incrimination. The chancery court noted that there was no presumption of validity of the deed because Gammage had invoked her Fifth Amendment right.

¶ 9. In 2006, Marilyn set up a guardianship for Virginia. Marilyn testified that until that time Virginia could bathe and feed herself with supervision. Marilyn testified that she was at work on the day the deed was signed, and she did not sign the deed. Marilyn also testified that Gam-mage did notarize documents, but she never notarized a document that she had signed. Marilyn testified that the signature that appeared on the deed did not belong to Virginia.

¶ 10. Frank Hicks testified, by deposition, as a forensic document examiner. Hicks expressed his opinion, to a reasonable degree of probability in the field of forensic document examination, that the signature on the deed was that of Marilyn. However, in his deposition Hicks stated that he did not have enough known signatures to determine the writer’s full range of variation. He went on to testify that he did not have any signatures that were contemporaneous with the date on the questioned document.

¶ 11. Latoya Mapp (“Latoya”) is the daughter of Will. Before Will passed away in 2006, he signed paperwork giving Latoya power of attorney. Latoya utilized the power of attorney and executed a deed to transfer parcels of property, including Mapp Funeral Home, to herself. She subsequently executed a deed to transfer parcels of property, including Mapp Funeral Home, to Donald Pugh. These transactions are not the subject of the appeal. It was agreed by and between the parties that the interest of Pugh will rise and fall with the validity of the April 2, 2003, deed.

¶ 12. Pamela Patrick testified that she worked for Mapp Funeral Home from July 1997 to July 2003. Patrick testified that her duties at the funeral home consisted of cleaning, running errands, and answering the phone. She also testified that Will had detailed conversations with her about the business. There was one occasion that Will asked Patrick to pick up Virginia and bring her to funeral home because Virginia was going to sign over property and her interest in the funeral home. Patrick testified that when she picked Virginia up, they talked, and Virginia appeared to be perfectly normal and nothing appeared to be wrong.

¶ 13. The chancellor found that Virginia lacked the mental capacity required to execute the deed and that Marilyn did not sign the deed. Therefore, the chancellor held that the deed was of no force and effect and did not transfer any property from Virginia and Marilyn. It is from this judgment that we consider the Appellants’ appeal.

STANDARD OF REVIEW

¶ 14. A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). Furthermore, we emphasize that “[i]t is not the job of this Court to redetermine questions of fact resolved by the chancellor.” Jackson v. Peoples Bank and Trust Co., 869 So.2d 422, 423(¶ 5) (Miss.Ct.App.2004) (citing Johnson v. Black, 469 So.2d 88, 90 (Miss.1985)).

ANALYSIS

1. Whether the chancellor’s finding that Virginia did not possess the required mental capacity to understand the nature of her actions when she signed the deed was manifestly wrong or clearly erroneous.

¶ 15. The Appellants contend that the chancellor committed manifest error in finding that Virginia did not possess the required mental capacity to understand the nature of her actions when she signed the deed. Additionally, the Appellants contend that Dr. Wilkerson’s testimony did not overcome the burden of clear and convincing evidence to show that Virginia did not possess the required mental capacity to understand the nature of her actions when she signed the deed.

¶ 16. It is presumed that the grantor of a properly executed deed was mentally competent at the time of its execution. McMahan v. Webb, 990 So.2d 825, 827(¶ 8) (Miss.Ct.App.2008) (citing In re Moran, 821 So.2d 903, 906(¶ 11) (Miss.Ct.App.2002)). Generally, in order to set aside a deed, it must be shown by clear and convincing evidence that the grantor lacked the mental capacity at the moment of execution to understand the legal consequences of his or her actions. Id.

¶ 17. In Mississippi, three ways exist to establish the mental incapacity of a person to execute a deed: (1) the grantor suffered from a total lack of capacity to execute the deed (i.e., that the grantor did not understand the legal consequences of his or her actions); (2) the grantor suffered from a general “weakness of intellect” coupled with either (a) inadequate consideration given for the transfer or (b) a confidential relationship between the grantor and grantee; or (3) the grantor suffered from permanent insanity up to and after the date of execution. Smith v. Smith, 574 So.2d 644, 653-54 (Miss.1990).

¶ 18. At the time the deed was signed, Virginia had been diagnosed with Alzheimer’s disease for two years. Expert testimony described Alzheimer’s as a “relentlessly progressive irreversible disease” where the patient experiences difficulty with cognition or the ability to think, reason, and manage one’s emotions. It was noted that Virginia was having increased difficulty with her short-term recall, problems keeping a checkbook, and difficulty keeping up with day-to-day activities. At one point, she was hallucinating and had to be admitted to the hospital.

¶ 19. Dr. Wilkerson testified that just a month before the deed was purportedly signed, Virginia was continuing to decline, and he placed her on anti-psychotic medications. However, the testimony of Patrick was that one week before the deed was executed Virginia was perfectly normal. The chancellor chose to believe the testimony of Dr. Wilkerson regarding Virginia’s mental incapacity.

¶ 20. We cannot find the chancellor in error for relying on the testimony from an eminently qualified neurologist in making the determination that Virginia did not have the capacity to know and understand her actions when executing the deed. The evidence presented supports the assertion that Virginia lacked the mental capacity to sign or affix her signature to any formal agreement or contract to relinquish her rights to any interest she may have had in the property. Accordingly, this issue has no merit.

2. Whether the chancellor’s finding that Marilyn did not sign the deed was manifestly wrong or clearly erroneous.

¶ 21. The Appellants next contend that the chancellor committed manifest error in finding that Marilyn did not sign the deed.

¶ 22. When a party challenges the validity of a properly-acknowledged deed, that party must overcome several presumptions favoring the legitimacy of the document. Thompson v. Shell W. E & P Inc., 607 So.2d 37, 40(¶ 3) (Miss.1992). The first presumption provides that, where a deed is properly acknowledged, the instrument is presumed to be authentic because the certificate of acknowledgment infers verity and presumptively states the truth. Id. at 40. This presumption can be overcome only by clear and convincing evidence. Jones v. Minton, 244 Miss. 354, 358, 141 So.2d 564, 565 (1962).

¶ 23. In the bench opinion, the chancellor properly analyzed the evidence to conclude that the testimony of Gam-mage was not sufficient to uphold the presumption of authenticity. The chancellor noted that Gammage signed an affidavit that Marilyn was not in her presence when she notarized the deed. The chancellor also noted a deposition by Gammage that reiterated her statement that Marilyn was not present when Gammage notarized the deed. The chancellor stated that an adverse inference could be drawn from Gam-mage exercising her Fifth Amendment rights when she changed her testimony to that of not knowing whether Marilyn was present or not when Gammage notarized the deed; the chancellor found the notarization of the deed to be invalid. We are of the opinion that the chancellor used the correct reasoning and law to determine that the deed was not properly acknowledged and that the authenticity of the deed could not be presumed.

¶ 24. The second presumption holds that where a grantor’s signature is placed on an instrument by the hand of another, the grantor presumptively adopts this signature as his own absent clear and convincing evidence to the contrary. Id. at 358, 141 So.2d at 566. In Continental Oil Co. v. Walker, 238 Miss. 21, 117 So.2d 333 (1960), the supreme court upheld the lower court’s finding of a forged mineral deed. There, the complainants introduced the following evidence at trial: (1) the grantors, who were alive at the time to testify, informed the court that they did not sign the purported instrument; (2) a handwriting expert testified that the signatures on the deed were not the signatures of the grantors; and (3) the grantors established that they were in another state on the purported date the mineral deed was signed. Id. at 30, 117 So.2d at 335-36. The supreme court found that this evidence was sufficient to uphold the chancellor’s finding that the deed was forged. Id.

¶ 25. Similarly, in the present case, Marilyn has consistently asserted that she did not sign the deed to transfer the property. Marilyn testified at trial that on the date and at the time the deed was supposedly executed in Forest, she was a teacher in the Jackson Public School System and was at work in Jackson, Mississippi. Gammage signed an affidavit stating that Marilyn was not present at the time she notarized the deed. However, Gammage testified that she did not know whether or not Marilyn was present when she notarized the deed and ended up asserting her Fifth Amendment rights. The chancellor determined that Gammage’s testimony was invalid.

¶ 26. The chancellor then considered the deposition of Hicks, who was accepted as an expert in the field of forensic document examination. Hicks’s determination was that the signature of Marilyn was prepared by the same person, but his testimony falls short of a “virtually certain” degree of confidence. The chancellor found that Hicks was essentially questioning his own opinion. The chancellor determined, based on Hicks’s deposition, that Hicks did not form a conclusive opinion on whether the signature on the deed belonged to Marilyn.

¶ 27. The chancellor would not allow Latoya to testify about her knowledge regarding Marilyn’s signature except on a proffer of evidence. Latoya testified that the signature on the deed was that of Marilyn based upon personal knowledge from birthday cards, graduation gifts, and checks that paid for Latoya’s college books. However, the chancellor determined that it would not be reasonable to rely on Latoya’s testimony regarding her Aunt Marilyn’s signature from articles that Latoya received when she was a child and in college.

¶ 28. We are of the opinion that the chancellor correctly determined that there was clear and convincing evidence that Marilyn did not sign the deed. We find that the chancellor did not commit manifest error in finding that Virginia was mentally incompetent and, therefore, unable to understand the legal consequences of her actions. Further, the chancellor’s determination that the signature on the deed did not belong to Marilyn was not clearly erroneous. Accordingly, the judgment of the chancellor is affirmed.

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

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


author: BARNES, J.,

text:
    Frank AGUIRRE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01856-COA.
    Court of Appeals of Mississippi.
    Jan. 12, 2010.

      Frank Aguirre, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before MYERS, P.J., BARNES, ISHEE and MAXWELL, JJ.
   BARNES, J.,

for the Court.

¶ 1. Frank Aguirre, appearing pro se, appeals the Circuit Court of Oktibbeha County’s dismissal of his motion for post-conviction relief. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In January 2007, an Oktibbeha County grand jury indicted Aguirre for attempting to coerce a person, who was a law enforcement officer posing as a fourteen-year-old girl, over the Internet and via text message, to meet with him in order to engage in sexually explicit conduct. After sexually explicit communications between Aguirre and the person, he arranged a meeting and went to the site of the meeting on the day it was to take place. He was subsequently arrested. In April 2007, Aguirre pleaded guilty to attempted exploitation of a child in violation of Mississippi Code Annotated section 97-5-33(6) (Rev.2006). The circuit court sentenced him to five years in the custody of the Mississippi Department of Corrections (MDOC) and five years of post-release supervision. Aguirre was also ordered to pay a $50,000 fine. Both the imprisonment and fine were the minimum penalties allowed under Mississippi Code Annotated section 97-5-35 (Rev.2006).

¶ 3. Aguirre, appearing pro se, filed a number of documents with the. circuit court contesting his guilty plea and sentence, many of which made the same arguments. First, in July 2007, Aguirre sent a sworn letter to circuit Judge Lee Howard requesting a modification or reduction in his sentence. Aguirre argued his guilty plea was based on his belief that he would receive the minimum sentence because he was a first-time offender. On August 1, 2007, the circuit court, considering the letter a motion for post-conviction relief, found it without merit and summarily dismissed it without a hearing.

¶ 4. On August 16, 2007, Aguirre filed another sworn letter to Judge Howard regarding clarification of his sentence. On October 18, 2007, the circuit court dismissed the “Motion to Clarify Sentence.” The same day, Aguirre filed a sworn form-style “Motion for PosNConviction Collateral Relief’ with the circuit court. Aguirre mailed the motion to the clerk of the circuit court, not the trial judge or district attorney. Also on October 18, Aguirre mailed a sworn motion for an evi-dentiary hearing to the prosecutor of Ok-tibbeha County.

¶ 5. In November 2007, Aguirre filed a sworn motion to reconsider his motion for post-conviction relief of October 2007. He claimed the defense of entrapment and the imposition of an excessive fine. On February 7, 2008, the circuit court dismissed Aguirre’s “Motion for Post-Conviction Collateral Relief,” ruling that Aguirre had waived the defense of entrapment when he pleaded guilty and that the fine was within the court’s discretion. On February 18, 2008, Aguirre filed yet another sworn letter in the circuit court asking Judge Howard to reconsider his sentence. In April 2008, the circuit court dismissed the “Motion to Reconsider Sentence” because it no longer retained jurisdiction over Aguirre since he was sentenced during a previous term of court.

¶ 6. On October 21, 2008, Aguirre filed a sworn motion to withdraw his guilty plea, arguing it was involuntary and unintelligent. He also claimed his counsel was ineffective and his sentence was excessive. On November 3, 2008, the circuit court dismissed the “Motion for Post-Conviction Collateral Relief’ without the necessity of a hearing. Aguirre appeals this judgment.

STANDARD OF REVIEW

¶ 7. This Court will not disturb a trial court’s dismissal of a motion for post-conviction relief unless the decision is clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). Questions of law are reviewed de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 8. Aguirre filed six documents that could be considered motions for post-conviction relief. After the dismissal of the first motion, on August 1, 2007, Aguirre did not appeal; nor did he appeal the circuit court’s subsequent orders of October 18, 2007; February 7, 2008; and April 30, 2008.

¶ 9. Aguirre appealed the judgment related to his last motion of October 21, 2008. We find that motion barred as a successive writ, pursuant to Mississippi Code Annotated section 99-39-23(6) (Supp.2009), which states: “any order dismissing the prisoner’s motion ... is a final judgment. ... It shall be a bar to a second or successive motion.... ” Aguirre did not appeal the dismissal of his first motion, and the thirty-day deadline for him to appeal, which is calculated from the date of the entry of the judgment on August 1, 2007, pursuant to Mississippi Rule of Appellate Procedure 4(a), has long since passed. Further, Aguirre raises no statutory exceptions to the successive-motion prohibition, as authorized by section 99-39-23(6) of the Mississippi Code.

¶ 10. Accordingly, we find the circuit court’s dismissal of Aguirre’s motion for post-conviction relief proper.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.

      . Aguirre mistakenly filed this motion under his criminal case cause number, not his civil case cause number.

      . Aguirre also filed this motion under his criminal case cause number. Additionally, due to a clerical error, two civil case files for Aguirre had been created by the circuit court; therefore, on October 23, 2007, the circuit court consolidated the two post-conviction files into one file.


author: CARLTON, J.,

text:
    Donald KOGER, Appellant, v. Austin ADCOCK, Appellee.
    No. 2008-CA-01187-COA.
    Court of Appeals of Mississippi.
    Jan. 12, 2010.
    Don H. Evans, Harry Merritt McCum-ber, Christie Evans Ogden, Jackson, attorneys for appellant.
    Christopher Royce Shaw, Laura Louise Hill, Jackson, attorneys for appellee.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court.

¶ 1. On January 27, 2004, Donald Koger filed a complaint in the Hinds County Circuit Court against Austin Adcock, alleging negligence and gross negligence stemming from a June 3, 2002, automobile accident. After a two-day trial, the jury returned a verdict in favor of Adcock. The trial court denied Roger’s post-trial motions, and he perfected the instant appeal.

FACTS

¶2. On the morning of June 3, 2002, Roger was driving his car north on Terry Road in Jackson, Mississippi. Roger’s wife, Patricia Roger (Patricia), rode in the front passenger seat. At the intersection of Terry Road and Highway 80, Roger’s vehicle collided with a truck driven by Adcock. The collision caused Adcock’s truck to flip, but neither Adcock nor his passenger, Brad Blackwell, suffered any injuries as a result of the accident. According to Roger and another witness, Ad-cock caused the accident by proceeding through the intersection despite having the red light.

¶ 3. Officer Melvin Bender, a patrolman for the Jackson Police Department, testified at the trial that police dispatchers sent him to the scene of the accident. Officer Bender interviewed the parties and other witnesses to the accident and wrote the accident report. According to Officer Bender, Adcock stated that he had attempted to stop at the intersection, but his car would not stop. Adcock told Officer Bender that his brakes had failed. Officer Bender testified that Brenda McCabe, who had witnessed the accident and remained at the scene, stated that she saw Adcock’s brake lights flash, as if he had pumped his brakes before proceeding into the intersection. Officer Bender testified that both McCabe and Adcock stated that Adcock’s traffic signal was red when Adcock entered the intersection. Officer Bender stated in his testimony that, based on the statements of Adcock and McCabe, he possessed no doubt that Adcock ran the red light.

¶ 4. Roger called Adcock as an adverse witness. Adcock testified at trial that as he approached the intersection of Highway 80 and Terry Road, the traffic light turned from green to yellow. Adcock stated that he approached the intersection traveling at approximately 40 miles per hour. He applied his brakes, but they failed to slow down his truck. He testified that he then downshifted to second gear in another attempt to reduce his speed and stop his truck. Adcock testified that the last time he saw the traffic light, he saw a yellow light. Further, Adcock denied noticing any problems with his brakes at any point prior to the accident. Lastly, Adcock testified that he first saw Roger’s vehicle when Roger’s vehicle hit his truck. However, Adcock admitted, during his testimony, that he had stated in his deposition that upon entering the intersection, he swerved to the right in an effort to avoid the collision with Roger.

¶ 5. Roger next called McCabe, who witnessed the accident. McCabe testified that she was traveling west on Highway 80, behind Adcock’s truck, just before the accident occurred. McCabe saw the traffic light turn yellow. She testified that Ad-cock seemed to be trying to stop his truck. Adcock failed to stop his truck, and the light turned red before he entered the intersection. McCabe testified that cars occupied the left-hand turn lane, so she could not see Roger’s vehicle until it collided with Adcock’s truck. Further, McCabe testified that she checked on Adcock and his passenger and Roger and his wife after the accident. She asked Roger if he or his wife had suffered any injuries, and Roger indicated that they had not.

¶ 6. Roger called Adcock’s father, Eugene Adcock (Eugene), as an adverse witness. Eugene testified that Adcock and his passenger, Blackwell, left Eugene’s office in Pearl to perform some work for his business in the McDowell Road area of Jackson. Shortly after the men left, Eugene received a call that they were involved in an accident. Eugene drove to the accident site. Eugene testified that he received no complaints before the accident regarding the truck’s brakes needing repair. He testified that Adcock told him the brakes seemed “spongy” when he applied them just before the accident. Eugene checked the brakes at some point after the accident. He testified that they seemed “spongy,” but they probably would have stopped the car. Further, Eugene testified that he spoke with Koger and Roger’s wife at the scene of the accident, and Koger indicated to him that they had not received any injuries as a result of the accident. According to Eugene, Koger told him that his back hurt, but it was not because of the accident.

¶ 7. Koger called Adcock’s passenger, Blackwell, to testify. Blackwell testified that he fell asleep in the truck as soon as they left Eugene’s office. He woke up when Adcock screamed, “They’re going to hit us!” He testified that he remembered Adcock swerving to the right just before the collision.

¶ 8. Patricia occupied the front passenger seat of Roger’s vehicle at the time of the collision. Patricia testified that she and Koger stopped at the intersection of Terry Road and Highway 80 when the traffic signal was red. The traffic signal turned green, and Koger proceeded into the intersection. Patricia looked up and saw Adcock’s truck headed toward their car, traveling at approximately 40 to 45 miles per hour. Koger stepped on his brakes, but he could not avoid the collision. Patricia testified that immediately after the accident, Koger told her his back “hurt, it burned, it was stinging.” Patricia testified that Koger declined treatment by medical personnel at the scene of the accident because of his concern for her. Patricia had recently undergone back surgery and, as a result, wore a heavy brace. Koger was driving her to a follow-up appointment with her physician when the accident occurred.

¶ 9. Koger testified that as he and Patricia approached the intersection of Terry Road and Highway 80, the traffic signal turned red. He stopped the car and waited for the signal to turn green. When the signal turned green, Koger glanced to his left and right and noticed that cars had stopped in the Highway 80 turn lanes. Those vehicles prevented Koger from being able to see all lanes of traffic on Highway 80. After checking for on-coming traffic, Koger proceeded through the intersection. Koger testified that as he accelerated through the intersection, he saw some movement “out of the corner of [his] eye.” When he looked up, he saw Adcock’s truck moving toward the intersection. Koger testified that he could tell by the truck’s speed that Adcock would not be able to stop before the intersection. Koger applied his brakes and braced himself for the collision.

¶ 10. Koger testified that he estimated Adcock’s speed just before the collision to be approximately 40 to 45 miles per hour. Koger estimated his own speed at approximately 10 to 15 miles per hour. Koger testified that after the impact, he immediately felt a “burning pain” in his back. Koger testified that following the collision, his primary concern was for Patricia’s welfare because of her recent back surgery. When Patricia asked Koger how he felt after the accident, he told her about the pain in his back. Koger chose not to ride in the ambulance for medical treatment following the collision because, as he asserts, he was focused on Patricia’s well-being. Rather than proceed to Patricia’s appointment, Koger and Patricia returned home and called Patricia’s doctor to schedule an appointment for the following day. Koger spent the rest of the day, June 3, trying to “rest [his] back.” However, Ko-ger was unable to rest because of his back pain. After taking Patricia to her appointment, Koger sought treatment for his back pain from his physician, Dr. Hale Byrd. Koger avers that he never sought treatment for back pain prior to the accident. However, according to Eugene’s testimony, Koger complained of back pain at the scene of the accident and admitted that the pain originated from a source other than the accident.

¶ 11. Dr. Byrd ordered an MRI. The results of that test prompted Dr. Byrd to refer Koger to a neurosurgeon, Dr. Winston Capel, who prescribed physical therapy for Koger. When the physical therapy proved ineffective in relieving Koger’s pain, Dr. Capel referred Koger to Dr. Jeffrey Summers. Dr. Summers prescribed several months of steroid injections. Dr. Capel diagnosed Koger with degenerative disc disease.

¶ 12. According to Adcock, Koger suffers from degenerative disc disease which Adcock contends existed prior to the accident. Adcock bases this position on Eugene’s testimony that Koger told Eugene at the scene of the accident that Koger’s back hurt, not because of the accident, but because of a preexisting back condition. Further, Adcock points to Koger’s own admission that he was denied entry into the military at age 22, presumably because of a back condition. Koger made the following statement in his testimony: “My understanding was that it was something to do with my back[,] but they wouldn’t tell me what it was. And it didn’t bother me[.][S]o being 22 years old I just didn’t worry about it.” Koger reiterated that he never suffered any back pain in his life prior to the accident with Adcock.

¶ 13. After deliberations, the jury returned a verdict in favor of Adcock, which simply stated: “We, the Jury, find for the Defendant!” Koger filed a post-trial motion entitled: “Plaintiffs Motion for Judgment Notwithstanding the Verdict or, in the Alternative, New Trial or, in the Alternative, Additur,” which the trial court denied. Koger contends that the trial court erred in denying his post-trial motions. Second, Koger argues that the trial court erred in denying his request for a peremptory instruction. Lastly, Koger argues that the trial court improperly instructed the jury regarding liability and preexisting injuries.

¶ 14. Finding error in the instructions given to the jury, we reverse this case and remand it for a new trial. Because our ruling on this assignment of error disposes of Koger’s remaining assignments of error, the remaining assignments of error do not merit further discussion.

DISCUSSION

Whether the trial court improperly instructed the jury regarding liability and preexisting conditions.

¶ 15. Koger argues that jury instruction number 16 was extremely misleading, a misstatement of the law, and a misstatement of the facts. Koger argues that the jury instruction, as given, caused him extreme prejudice and may also have been the reason the jury found in favor of Ad-cock.

¶ 16. When reviewing challenges to jury instructions, this Court will affirm the trial court’s ruling “where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.” Lepine v. State, 10 So.3d 927, 944(¶ 49) (Miss.Ct.App.2009) (quoting Ford v. State, 975 So.2d 859, 864(¶ 11) (Miss.2008)).

¶ 17. The jury instruction originally proffered by the defense stated the following:

A pre-existing condition is a condition that may have caused or contributed to the injury claimed by Donald Roger, but is also a condition from which Donald Roger suffered before his motor vehicle accident with Austin Adcock. Therefore, Austin Adcock is not responsible for the injuries of Donald Roger which are the sole proximate result of his preexisting conditions. If you find that Donald Roger suffered from pre-existing conditions such as neck pain, back pain, shoulder pain, or numbness in his hands or legs before the accident that occurred on June 3, 2002, you should consider those pre-existing conditions when reaching your verdict. You should consider whether those pre-existing conditions were unrelated to Donald Roger’s present injuries, whether those pre-ex-isting conditions contributed to his present injuries, or whether those pre-exist-ing conditions were the sole proximate cause of his injuries and adjust your verdict as you see fit based on the causal relation, if any, between the Plaintiffs pre-existing condition and his present complaints.

¶ 18. Despite Adcock’s assertions to the contrary, Roger’s attorney, Don Evans, made a timely objection to the proffered jury instruction. The following exchange took place while the parties and the trial court worked to finalize the jury instructions:

THE COURT: So, D-4, any objections?
MR. EVANS: I have an objection. There’s no evidence of any prior injury. There’s no evidence of any prior pain and it comes down in here about four lines down it says, if you find that Donald Roger suffers from preexisting conditions such as neck pain — that’s never even come up — back pain, shoulder pain or numbness in his hands. That’s never even come up. We’ve had back pain and we had leg pain. And this is misleading.
[DEFENSE COUNSEL]: If it pleases the court I will be more than happy to alter the instructions and limit it to the first two sentences.
THE COURT: Okay.
MR. EVANS: And it’s misleading. It looks like it’s saying if you find he had a preexisting condition, maybe even the degenerative disc disease, that he wouldn’t be liable for it, for this injury.
[DEFENSE .COUNSEL]: Well, as a matter of law, he’s not liable for the preexisting injury. And if the jury finds that this accident did not aggravate or exacerbate then the jury has to return a verdict for my client. And I think that instruction is clear.
THE COURT: Okay. D-5 is the same as the court’s instruction. Will be refused. I believe D-6 was already given in the plaintiff's] instructions. D-6 is refused. D-7, any objections.
THE COURT: Okay. I’m going to go and look at these again and I will send them back in as to how I modified them and I’ll state on the record when I return which ones I’ve granted and refused.

¶ 19. After a break, the trial judge stated for the record the jury instructions he chose to grant or refuse. The trial judge made the following statement:

THE COURT: As to the instructions that were given, I went over some of them earlier, but let me go back through them again.... D-4 was given with modification. The court determined that this was not a case to submit to the jury to consider apportionment of fault.
With respect to D-4 that was submitted dealing with the preexisting condition the court determined that that instruction should be modified where the defendant will be allowed to make that argument to the jury regarding whether or not there were any preexisting conditions. So the first two sentences were given. D-4 was modified. All right. Let’s bring the jury in.

¶ 20. As reflected in the record transcript, after the defense counsel suggested the modification of the instruction to include only the first two sentences, Evans reiterated his objection, stating: “And it’s misleading.” Mr. Evans reiterated his objection to the modification as misleading, thereby indicating that he did not acquiesce in the modification and found the modified instruction still to be misleading. Although Evans did not renew his objection to the modification of instruction D-4 after the trial judge made his rulings on the jury instructions and objections thereto, his previous objection suffices to preserve the issue for our review.

¶ 21. With the trial court’s modification, the jury instruction actually given to the jury read as follows:

A pre-existing condition is a condition that may have caused or contributed to the injury claimed by Donald Roger, but is also a condition from which Donald Roger suffered before his motor vehicle accident with Austin Adcock. Therefore, Austin Adcock is not responsible for the injuries of Donald Roger which are the sole proximate result of his preexisting conditions.

¶ 22. The instruction provides a misleading and incorrect statement of the law as to the responsibility of aggravation of preexisting conditions caused by or contributed to by the negligence of another. We agree that the law provides that Roger is not entitled to damages for any injuries which existed at the time of the accident with Adcock. Winston v. Cannon, 430 So.2d 413, 416 (Miss.1983). However, if Adcock’s negligence caused any aggravation of any preexisting injury to Roger, Adcock bears the responsibility for the portion of the injury or the aggravation of the injury that he caused; and the jury may be instructed to consider the aggravation of the injury. Id. See also Harkins v. Paschall, 348 So.2d 1019, 1021-22 (Miss.1977). Moreover, where the jury cannot apportion the damages, the defendant may be liable for the whole amount of damages. This Court previously stated that “[o]ne who injures another suffering from a preexisting condition is liable for the entire damage when no apportionment can be made between the preexisting condition and the damage caused by the defendant.” Doe ex rel. Doe v. N. Panola Sch. Dist., 906 So.2d 57, 61(¶ 12) (Miss.Ct.App.2004) (quoting Brake v. Speed, 605 So.2d 28, 33-34 (Miss.1992)).

¶ 23. Jury instruction 16 misleads the jury on this point. The instruction implies that, because Roger suffered from degenerative disc disease before the accident occurred, Adcock could not be held liable for any condition caused by the degenerative disc disease. The language of the instruction essentially eliminates any jury question regarding the aggravation of any preexisting injury or condition or the extent of any preexisting injury to Roger. Further, although the instruction correctly informs the jury that Adcock cannot be held liable for Roger’s preexisting injuries, the instruction fails to instruct the jury as to Adcock’s responsibility for any aggravation of Roger’s preexisting degenerative disc disease caused by or contributed to by Adcock’s negligence.

¶ 24. Moreover, this Court examines jury instructions as a whole, making sure the instructions given fairly announce the law of the case and create no injustice. Lepine, 10 So.3d at 944(¶ 49). Examining the instructions as a whole, we find no other instruction which clarifies or explains the law regarding Roger’s preexisting condition. Other instructions given to the jury explain proximate cause, but they still fail to address the issue of Roger’s preexisting condition. Jury instruction 10 instructed the jury as follows regarding proximate cause:

The Court instructs the jury that an element, or test, of proximate cause is that an ordinarily prudent person should reasonably have foreseen that some injury might probably occur as a result of his or her negligence. It is not necessary to foresee the particular injury, the particular manner of the injury, or the extent of the injury.

¶ 25. Jury instruction 11 states the following:

This Court instructs the jury that if you find from the preponderance of the evidence that the Defendant, Austin Ad-cock, could have avoided the collision in question by the exercise of reasonable care on his part or by taking such measures, if any, as an ordinarily prudent person, in his position, would have taken under similar circumstances which it was his duty then and there to do so; and if you further find from the preponderance of the evidence in this regard that the Defendant, Austin Adcock, failed to use reasonable care at the time and place in question, and that such failure, if any, on his part ivas the proximate contributing cause of the accident and, injuries to the Plaintiff, Donald Roger, then in such case, your verdict should be in favor of the Plaintiff, Donald Roger.

(Emphasis added).

¶ 26. Despite its attempts to instruct the jury regarding proximate cause, the trial court failed to properly instruct the jury regarding the proximate cause of any aggravation of Roger’s asserted preexisting condition. Roger testified that despite his physician’s testimony that he possessed degenerative disc disease, Roger had never experienced any back pain or sought medical treatment for back problems prior to the accident with Adcock. The jury should have been instructed as to Adcock’s responsibility if his negligence contributed to an aggravation of Roger’s asserted preexisting condition.

¶ 27. Finding reversible error in the jury instructions that were given, we reverse this case and remand for a new trial consistent with this opinion. Roger’s remaining assignments of error are therefore moot.

¶ 28. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

RING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.

      . Koger was 62 years old at tire time of trial.


author: LEE, P.J.,

text:
    Joseph HOPPER, Appellant, v. Joe KREVINEC d/b/a Joe’s Garage and American Home Assurance Company, Appellees.
    No. 2009-WC-00206-COA.
    Court of Appeals of Mississippi.
    Jan. 19, 2010.
    James Kenneth Wetzel, Gulfport, attorney for appellant.
    Amy Lee Topik, Alison B. Baker, Ridge-land, attorneys for appellees.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Joseph Hopper filed a workers’ compensation claim against his employer, Joe Krevinec d/b/a Joe’s Garage, alleging two work-related neck injuries. A hearing was held, and the administrative law judge (ALJ) denied workers’ compensation benefits. Hopper appealed to the Mississippi Workers’ Compensation Commission (Commission) and filed a motion to introduce additional evidence. The Commission affirmed the order of the ALJ but remanded the case for consideration of Hopper’s motion for additional evidence. Upon remand, the ALJ allowed a report from Hopper’s treating physician, Dr. James Doty, a neurosurgeon, to be introduced into evidence. After considering the additional evidence, the ALJ issued a second order, reversing the first order and finding that benefits should be awarded.

¶ 2. Krevinec and American Home Assurance Company, the workers’ compensation carrier, appealed to the Commission. The Commission reversed the order of the ALJ, found that the injuries were not work related, and dismissed the claim. Hopper appealed to the Circuit Court of Harrison County. The circuit court affirmed the second decision of the Commission.

¶ 3. Hopper now appeals, asserting that the Commission erred in denying him workers’ compensation benefits. Finding no error, we affirm the Commission’s decision.

FACTS

¶4. Hopper testified that on May 7, 2004, he was injured while helping unload tires off of a delivery truck. Hopper stated that when he reached out to grab a tire with his right arm, the tire jerked his arm around. He testified that by the end of the day, his arm began hurting. The next day he was in excruciating pain but worked the entire day. He testified that he did not mention the injury to anyone because his supervisor was not at work, and he thought it was just a pulled muscle. On May 17, 2004, he was at work opening the shop when he sneezed and heard a popping sound in his back. He testified that after he sneezed, the pain got so severe he had to leave work. He testified that he told his supervisor, Bobby Tyson, about the pain.

¶ 5. Hopper saw Dr. Richard Smith, a general physician, who gave him pain medication and a cortisone shot. Approximately a month later, the pain had not subsided, and Hopper went to the emergency room at Gulfport Memorial Hospital, where he was seen by Dr. Doty. Dr. Doty performed an examination and ordered a MRI of his neck. Dr. Doty advised Hopper that he had damaged discs in his neck and that he needed surgery to insert metal plates and screws to repair the damage. The surgery was performed on June 20, 2004. Hopper went back to Dr. Doty approximately three months later with complaints of intense pain in his right arm. He reported to Dr. Doty that since the surgery, he had also been experiencing the same pain in his left arm and that he had no problem with his left arm prior to the surgery.

¶ 6. Hopper testified that he knew of no other activities that would have attributed to his injury. Tyson testified that Hopper did not report a work-related injury, but instead Hopper told him that he had sustained a neck injury at home while repairing his personal vehicle. Tyson testified that Hopper told him before May 17, 2004, that he had neck problems, but that Hopper continued to work until he was physically unable.

¶ 7. After the case was remanded from the Commission to the ALJ, Hopper was seen by Dr. Terry Smith, a neurosurgeon, at the request of Krevinec and American Home Assurance Company. Dr. Smith’s opinion was that, based on the medical records, there was no history of a work-related accident on May 7 or May 17, 2004, and the surgery performed on Hopper’s neck was unrelated to any injury that occurred at work. Dr. Smith also noted that Hopper had several previous neck injuries listed in his medical records.

¶ 8. As to his history of neck injuries prior to May 7, 2004, Hopper crushed several discs in his back at the age of eighteen when he jumped off of a four-foot-high embankment at a lake and fell on his head. He testified that it took approximately two years for the pain to subside and for his neck to return to normal. In 1989, he bumped his head in a swimming pool and sprained a muscle in Ms neck. He testified that despite these injuries, he did not have any significant problems with his neck until he was injured at Joe’s Garage. At the time of the hearing, Hopper was forty-three years old.

STANDARD OF REVIEW

¶ 9. The standard for appellate review of workers’ compensation claims is limited. It is well settled that “[t]he Commission is the ultimate fact-finder.” Hardin’s Bakeries v. Harrell, 566 So.2d 1261, 1264 (Miss.1990). Our review is limited to a “determination of whether or not the decision of the [Cjommission is supported by the substantial evidence.” McCarty Farms, Inc. v. Banks, 773 So.2d 380, 386(¶ 23) (Miss.Ct.App.2000) (quoting Delta CMI v. Speck, 586 So.2d 768, 772-73 (Miss.1991)). “This Court will overturn a[C]ommission decision only for an error of law or an unsupportable finding of fact.” Cook v. President Casino, 740 So.2d 963, 966(¶ 16) (Miss.Ct.App.1999) (citation omitted).

DISCUSSION

¶ 10. Hopper argues that the ALJ’s order and the Commission’s original decision, finding that his injury was com-pensable, were correct and should be upheld. The original order found that his testimony and the testimony of Dr. Doty was credible and that the injury occurred when Hopper moved the tire on May 7, 2004.

¶ 11. The Commission’s second decision focuses on the lack of evidence that Hopper’s injury was work related. The Commission noted: “There is no evidence except [Hopper’s] own testimony that this sneeze even occurred at work.” The Commission also gave great weight to the absence of any report of injury by Hopper to his employer. The medical records did not reflect that the injury was work related, and Tyson testified that he had no knowledge that Hopper was claiming to have a work-related injury until the petition to controvert was filed. The records from Hopper’s visit to Gulfport Memorial Hospital indicated that he had no trauma and that his condition was not due to an on-the-job incident. The Commission found the most compelling evidence weighing in favor of Krevinec to be Hopper’s statement he provided to the emergency room at Gulfport Memorial Hospital that the sneeze occurred “at night,” and he had no pain until the next morning. Hopper testified at the hearing that the sneeze occurred at work. The Commission found that this testimony “makes [Hopper’s] version of the events more suspect than credible.”

¶ 12. The Commission found that Dr. Doty’s testimony was not reliable because it was based solely on Hopper’s version of the events. The Commission also found Dr. Doty’s testimony uncertain because he stated that Hopper “probably injured his disc [on May 7, 2004], and then that one precipitating event when the sneeze happened finally sort of put him over the edge.” (Emphasis added). However, conflicting evidence was presented as to when the sneeze took place. Hopper stated that he had been at work for about twenty minutes on May 14 when he sneezed and the pain from the May 7 injury was exacerbated. Tyson, Hopper’s supervisor, testified that Hopper had related to him that he was injured while working on his personal vehicle at home. Also, the medical record from the hospital stated that the sneeze occurred at night with an onset of pain occurring the next morning. The Commission found that Hopper’s claim was mainly supported by his own testimony, and Hopper’s and Dr. Doty’s testimonies were not as credible as that of Tyson and the medical records.

¶ 13. Keeping in mind this Court’s deferential standard of review, we cannot find that the Commission erred in denying workers’ compensation benefits. The Commission found that conflicting testimony was presented by Hopper, Dr. Doty, and Dr. Smith. The Commission “serves as the ultimate fact finder in addressing conflicts in medical testimony and opinion.” Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 336(¶ 13) (Miss.2003). “Where medical expert testimony is concerned, [the supreme court] has held that whenever the expert evidence is conflicting, the Court will affirm the Commission whether the award is for or against the claimant.” Id. (quoting Kersh v. Greenville Sheet Metal Works, 192 So.2d 266, 268 (Miss.1966)).

¶ 14. The Commission agreed with Dr. Smith and found that “[t]he fact that [Hopper] sought medical attention soon after the alleged injury on May 7, 2004 and May 17, 2004[did] not render [Hopper’s] testimony more credible given the fact that he had a long[-]standing history [of] pre-exist-ing non-work related neck problems.” Even if this Court would not have reached the same decision as the Commission, we must affirm when the Commission’s findings are supported by substantial evidence and are neither arbitrary or capricious. Id. at 338(¶ 25). The Commission’s findings were supported by Dr. Smith’s testimony and the inconsistencies between Hopper’s testimony and the medical records. Therefore, we affirm the findings of the Commission. Hopper’s issues on appeal are without merit.

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

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