text:
    Richard SMITH v. Marie LONZO and Willie Barton.
    No. 02-1053.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Douglas L. Bryan, The Bryan Law Firm, L.L.C., Marksville, LA, for Defendant/Appellant, Marie Lonzo.
    Norris J. Greenhouse, Marksville, LA, for Plaintiff/Appellee, Richard Smith.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS and GLENN B. GREMILLION, Judges.
   11 COOKS, Judge.

This is an appeal from a judgment of the Marksville city court finding Marie Lonzo jointly liable with Willie Barton for a judgment granted in favor of Richard Smith. Finding the city court judge erred in holding a joint venture existed between Lonzo and Barton, we reverse.

FACTS

Richard Smith entered into an agreement with Willie Barton to have the starter on his 1989 Lincoln Continental repaired. Barton agreed to perform the work for approximately $300, and requested a $100 deposit. On the day Smith came to pay the $100 deposit, Barton was not present. The $100 was given to Marie Lonzo, who wrote Smith a receipt bearing Barton’s name. Smith claimed he eventually had his vehicle removed because it was not repaired. The vehicle remained with Barton for over one year. An estimated cost for repairs on the vehicle at this point was $2,653.56.

Smith filed suit against Barton in the Marksville City Court. At some point after the filing of the suit, Lonzo’s name was typed on the petition along with Barton’s as a defendant. On August 23, 2001, a judgment was rendered in favor of Smith and against both Barton and Lonzo in the amount of $5,027.08. Counsel for Lonzo sought a nullity of the judgment as to her on the basis of no service of process. The City Court out of an “abundance of caution” nullified the judgment as to Lonzo “because the record was not complete as to service.”

Trial against Lonzo was then reset. It was established at trial that Lonzo and Barton, although not married, were in an intimate relationship and have a child together. Smith testified that they lived together, although this was denied by Lonzo. | ¡¿Barton stated they lived together “part time.” Barton and Lonzo have separate residences, although the two backyards abut each other. Barton’s mechanic’s occupational license listed Lonzo’s address on it.

It was established that Barton was employed by Meineke Mufflers as a mechanic, but took additional jobs on the side to make extra money. It was also established that Lonzo had allowed Barton to use her yard to perform the repairs on the additional jobs for approximately three years. Barton stated he gave money to Lonzo because they had a child together, not because he had any agreement that she would receive a portion of the monies he earned working on cars in her yard. Lonzo stated she received money from Barton for “using the utilities” and for rent. Lonzo also testified she charged him for some vehicles that were kept on her property.

The city court judge ruled there was a joint enterprise between Lonzo and Barton and held Lonzo jointly liable for the judgment granted in favor of Smith. The judge gave the following oral reasons for his judgment:

[Tjhere is evidence I would classify as a joint enterprise in where Ms. Lonzo provides a physical location for the operation of a mechanic business and Mr. Barton is the mechanic and the phrase early was used the “mom and pop operation” and I think that is typical in our rural setting here in Marksville and around our parish. There are no rental agreements, there are no set methods of doing business among this couple. Most of it is done on a handshake and a word and obviously by the admission of all three parties, Ms. Lonzo seems to be the one who decides on occasion who and when and where Mr. Barton does this work on vehicles. As he stated when he has a good day then she has a good day. I take that to mean that the amount of money she earns in this business is contingent on several things. The first thing is that the vehicles she and Mr. Barton both believe that he should work on and secondly the time frame and the factors involved. If they know the personalities of the individuals and basically Ms. Lonzo has an apparent ^position of authority. I don’t know if you could classify it as secretary or what have you, but certainly at her home ... she says that she doesn’t know about this occupational license being in effect, but she does know that this business has been in operation for a period of years and she has been involved in it and it is unfortunate that being involved in a business might not always be your intentions but by virtue of your actions you get in these situations because the public today I can assure you is more demanding today than it has ever been. If you are going to be in a business or if you are going to have someone in a business and if you are going to share the profits then in some cases you may be liable to share the liabilities and I think that is what we have here. This is clearly not an employee/employer relationship and it is clearly not a rental agreement.... The profits that she has derived have been monies that have come to her through the mechanic operations on the premises and when I say profits, that is what I am talking about income coming into her personally as a result of joint enterprise being operated by she and Mr. Barton in that she does not go out there and twist on wrenches that is all not together necessary. If she is providing a location and utilities and vital resources in conjunction with someone else who is actually doing the hands off that is in my opinion a common enterprise and a joint effort by two individuals to pull [sic] their resources in the things they have. In her case a location and utilities and his case the mechanical ability to make this business operate. This is exactly a “mom and pop” situation where mom might stand at the cash register and collect money from- time to time but if she is not there because the kid is sick then pop takes the money but then mom can say we will bag your groceries next, or in this case we will fix your car, or we don’t have time to fix this one, or move this one or you can’t park here. This is a common enterprise and both derive an interest from it....

Lonzo appealed the judgment of the city court. For the following reasons, we reverse.

ANALYSIS

The city court judge found Lonzo was jointly liable for the judgment granted in favor of Smith, because she and Barton were involved in a joint venture. The only evidence offered to prove the alleged “joint venture” is the fact that Lonzo allowed Barton to use her property, on one occasion collected money paid as a deposit to Barton for mechanic work and accepted money from Barton for rent and utilities. LSimply providing a physical location for the repairs of cars and charging for rent and utilities is not sufficient to establish a joint venture. In Guilbeaux v. Times of Acadiana, Inc., 96-360, p. 10 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, 1188, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327, we described joint venture as follows:

Since the essential elements of a joint venture and a partnership are the same, joint ventures are generally governed by partnership law. Latiolais v. BFI of Louisiana, Inc., 567 So.2d 1159 (La.App. 3 Cir.1990). Louisiana Civil Code Article 2801 defines partnership as:

[A] juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.
A joint venture requires:
(1) A contract between two or more persons;
(2) A juridical entity or person is established;
(3) Contribution by all parties of either efforts or resources;
(4) The contribution must be in determinate proportions;
(5) There must be joint effort;
(6) There must be a mutual risk vis-a-vis losses;
(7) There must be a sharing of profits.

Although what constitutes a joint venture is a question of law, the existence or nonexistence of a joint venture is a question of fact. Grand Isle Campsites, Inc. v. Cheek, 262 La. 5, 262 So.2d 350 (1972). “[Jjoint adventures [sic] arise only where the parties intended the relationship to exist. They are ultimately predicated upon | ¡¡contract either express or implied.” Pillsbury Mills, Inc. v. Chehardy, 231 La. 111, 124, 90 So.2d 797, 801 (1956), citing Daspit v. Sinclair Refining Co., 199 La. 441, 6 So.2d 341 (1942).

After a review of the record we find the City Court judge manifestly erred in finding a joint venture existed between Lonzo and Barton. There was absolutely no proof elicited at trial that any oral or written contract existed between Lonzo and Barton. There also was no agreement between the parties to share profits or losses equally. Barton expressly stated that he gave Lonzo only what he wanted to give her every month:

Q. Do ya’ll have any type of arrangement as to how much she gets per vehicle?
A. No.
Q. You decide what she gets, or she decides what she gets?
A. She don’t get none of it, I give it to her.
Q. Mr. Barton, I am kind of confused. When you say you give Ms. Lonzo money, what do you give her money for? A. I just give her money ... I give her money once a month.
Q. Do you give her money because you have a child with her, or you give her money to stay there, or because you operate or work on cars there? Why? Or is it all of the above?
A. It is all of the above. I am a man ... I have to do for her. Any man would give a woman money.
Q. Have you ever ... do you. How do you determine how you give her money? How much money to give her?
A. It all depends on how much money I make. I might have a good week or I might have a bad week.

It is clear to us after reviewing the record, there was no intent by either party to enter | fiinto a joint venture. The relationship between Barton and Lonzo was personal not professional. She and Barton have a child together. Barton has a legal obligation to support his child. The fact that she generously allows him to decide the amount of support legally owed by him and other monthly costs for using her property based on receipts from Barton’s mechanic work does not establish a relationship existed between them sufficient to deem it a “joint venture.” There is no evidence even remotely suggesting the parties intended to mutually share the losses or liabilities incurred by Barton’s mechanic’s operation.

DECREE

For the above reasons, the judgment finding Marie Lonzo jointly liable with Willie Barton for the judgment granted in favor of Richard Smith is reversed. All costs of this appeal are assessed to Richard Smith.

REVERSED.

      . Barton's listed formal residence at 412 Martin Luther King Boulevard in Marksville was owned by his mother. Lonzo was the owner of her residence at 463 Brouillette Street.


source: Caselaw Access Project

author: JjPICKETT, Judge.

license: Public Domain

text:
    Drew CHENEVERT, et al. v. WAL-MART STORES, INC., Lawrence Thomas, Sr., and American Home Insurance Company.
    No. 02-1075.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Jerold Edward Knoll, Attorney at Law, Marksville, LA, for Plaintiffs/Appellees: Drew Chenevert, et al.
    John G. Swift, Attorney at Law, Lafayette, LA, for Defendants/Appellants: Wal-Mart Stores, Inc., Lawrence Thomas, Jr., and American Home Assurance Company.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, Judge.

FACTS

On July 11, 2000, Drew Chenevert was involved in a collision while driving his truck in the parking lot of Wal-Mart on Evangeline Thruway in Lafayette. He struck a forklift operated by Lawrence Thomas, Jr., an employee of Wal-Mart. Mr. Thomas was acting in the course and scope of his employment at the time. Chenevert suffered injuries as a result of the accident and filed this suit against Wal-Mart, Thomas, and Wal-Mart’s insurer, American Home Assurance Co., seeking medical expenses, lost wages, and general damages. His wife, Angela Fun-derburk Chenevert, sought damages for loss of consortium.

Following a trial by jury, Thomas and Chenevert were found to be equally at fault in causing the accident. Chenevert was awarded damages of $5,000.00 for physical pain and suffering, $10,000.00 for past medical expenses, and $12,000.00 for past lost wages. No damages were awarded for mental pain and suffering, future medical expenses or future lost wages. On the consortium claim, the jury awarded $8,000.00 to Mrs. Chenevert. The trial judge signed a judgment conforming to the verdict, and ordered that costs incurred before September 21, 2001, be split equally between the parties and all costs incurred after September 21, 2001, be paid entirely by Chenevert and the Louisiana Workers’ Compensation Corporation, who intervened in the suit to recover benefits paid to Chenevert after September 21, 2001.

The Cheneverts filed a Motion for a Judgment Notwithstanding the Verdict, asking that the court find that Thomas was 100% at fault and for an increase in the damages awarded. Following a contradictory hearing, the trial court granted the JNOV in part. The trial judge found Thomas 100% at fault and increased the damage | ^awards to $85,000.00 for general damages, including mental and physical pain and suffering, $20,850.84 for past medical expenses, and $33,036.00 for past lost wages. The trial court did not increase the consortium award. The JNOV further cast the defendants with all costs of court. The Judgment Notwithstanding the Verdict was signed March 13, 2002.

The defendants lodged this appeal seeking to have the jury award reinstated. Mrs. Chenevert answered the appeal, seeking an increase in the damages awarded for loss of consortium. When Mrs. Chenevert died on October 4, 2002, Drew Chenevert was substituted as cross-appellant as the natural tutor of the minor children of Mrs. Chenevert.

ASSIGNMENTS OF ERROR

The appellants assert two assignment of error:

1) The trial court erred, as a matter of law, in granting the plaintiffs Motion for Judgment Notwithstanding the Verdict affecting the Allocation of Liability/Fault because the evidence opposing the JNOV was of such quality and weight that reasonable and fair-minded persons, in the exercise of impartial judgment, could have reached different conclusions, including the conclusion reached in the jury’s verdict.
2) The trial court erred, as a matter of law, in granting the plaintiffs Motion for Judgment Notwithstanding the Verdict affecting the Award of Damages because the evidence opposing the JNOV was of such quality and weight that reasonable and fair-minded persons, in the exercise of impartial judgment, could have reached different conclusion reached in the jury’s verdict.

The appellee answered the appeal, asserting one assignment of error:

1) The trial court erred in not granting the plaintiffs Motion For Judgment Notwithstanding the Verdict by not increasing the loss of consortium award to Angela Funderburk Chenevert.

\ .DISCUSSION

All three assignments of error concern the trial court’s disposition of the plaintiffs Motion For Judgment Notwithstanding the Verdict. La.Code Civ.Pro. art. 1811(F) provides that a motion for judgment notwithstanding the verdict may be granted on the issue of liability or damages, or both.

Our supreme court clearly set forth the standard to be used in determining whether a JNOV should be properly granted in Davis v. Wal-Mart Stores, Inc., 00-445, p. 4 (La.11/28/00); 774 So.2d 84, 89:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

Allocation of Fault

The jury found Thomas 50% at fault for the accident and Chenevert 50% at fault. In ruling on the JNOV, the trial court found Thomas 100% at fault. In brief and at the hearing on the motion for JNOV, the appellee argued Chenevert was in the preferred lane of travel and had the right of way, and cited Bankston v. Bueche, 206 So.2d 532 (La.App. 1 Cir.1968) for the proposition that a motorist traveling in a favored lane of travel has the right to assume any driver on a less favored street will yield the right of way. The accident in Bankston occurred on a public street. Although the trial court did not state it was relying on Bankston in reaching its ^decision to grant the JNOV, in his discussion with counsel at the hearing, the trial judge likened the instant case as being no different from an intersectional collision.

A different standard applies in a private parking lot. In this case, the defense requested, and the judge correctly gave, the following jury instruction, citing Gatheright v. State Farm Mut. Auto. Ins. Co., 352 So.2d 428 (La.App. 3 Cir.1977):

When a vehicular collision takes place in a private parking lot the general tort law of Louisiana applies. A motorist traveling in a parking lot is required to exercise a duty of “due caution.” The motorist can breach their duty of “due caution” if they travel at a fast pace in a parking lot with other traffic present and with their vision obstructed by parked cars and other objects.

The court in Gatheright determined that, though persuasive, the Highway Regulatory Act was not controlling in private parking lots and set a standard of “due caution” when in a parking lot.

In the instant case, Chenevert was driving through an area of the parking lot which had “gang boxes” in which merchandise was stored. These gang boxes obstructed his view. There was testimony that Thomas unexpectedly drove a forklift from behind one of these storage facilities and into Chenevert’s path. Two witnesses testified that Chenevert was traveling at an excessive rate of speed. Although the appellee argues this testimony should be discounted because the witnesses were Wal-Mart employees, doing so would require a credibility determination by the trial judge which is improper in a JNOV. Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94.

We cannot say that the evidence points so strongly in favor of the appellee that reasonable men could not reach a different conclusion. Accordingly, we reverse the [Rtrial court’s ruling on the JNOV on the issue of fault and reinstate the jury’s determination.

Damages

The jury made the following damage awards, as they appeared on the verdict sheet:

Physical Pain and Suffering (Past, Present, and Future) $ 5,000.00
Mental Pain and Suffering (Past, Present, and Future) $ -0-
Past Medical Expenses $ 10,000.00
Future Medical Expenses $ -0-
Past Lost Wages $ 12,000.00
Future Lost Wages $ -0-

In granting the JNOV, the trial court increased the awards. He awarded general damages of $85,000.00, medical expenses of $20,850.54, and past lost wages of $33,036.00.

After reviewing the evidence in this case, even given the high burden of proof that no “reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions,” we find no error on the trial judge’s part in its increase of the damages award.

The appellee’s evidence clearly establishes his medical bills, all of which were associated with this injury, totaled $20,850.54. The evidence further clearly established his actual lost wages as $33,036.00. These two items of damages being clearly established, no reasonable finder of fact could grant damages in any lesser amount absent some evidence of the inaccuracy of the amounts established by the appellee.

|f;We further find no error in the increase in the general damage award by the trial court. There is no question Mr. Chenevert was injured in this accident. Every doctor who saw him agreed he suffered a muscle or ligament strain. Treating physicians have indicated that it will be several years before his physical problems resolve. In addition, he suffers from depression. He has had to undergo an operation to facilitate a trial dorsal column stimulator and in all medical probability he will need a permanent dorsal column stimulator. In view of the extent of the injuries and problems suffered by Mr. Chene-vert as a result of this evidence, $5,000.00 cannot be considered a reasonable amount of damages. We find no error in the trial court’s determination of $85,000.00 in general damages.

The appellee answered the appeal, arguing the trial court erred in denying the Motion for JNOV as it pertains to the loss of consortium award to Mrs. Chenevert. He seeks an increase of that award. Having reviewed the record, we find no error in the trial court’s ruling and affirm that portion of the judgment rendered.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


author: hAMY, Judge.

text:
    STATE of Louisiana, et al. v. KITTERLIN CREEK, LLC.
    No. 02-1063.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Rehearing Denied March 19, 2003.
    J. Reed Walters, District Attorney, Jena, LA, for Plaintiffs/Appellees, Lasalle Parish Police Jury, State of Louisiana, La-salle Parish School Board.
    Robert G. Nida, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for De-fendanVAppellant, Kitterlin Creek, LLC.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.
   hAMY, Judge.

The trial court entered a preliminary injunction, prohibiting the defendant landowner from obstructing passage on a road contained on its property. The court concluded that a right of public passage existed along the roadway. The landowner appeals. For the following reasons, we reverse the entry of the preliminary injunction barring the landowners from restricting public access to the roadway.

Factual and Procedural Background

At issue in this case is whether a right of public passage exists across a parcel of land in LaSalle Parish purchased by the defendant, Kitterlin Creek, L.L.C. The property was purchased by Kitterlin Creek in December 1999, in order to develop a private hunting and fishing club. The Kitterlin Creek property includes Sections 9, 10 and 15, Township 6 North, Range 2 East of LaSalle Parish. These three sections adjoin Section 16. The petition instituting this matter alleges that the State of Louisiana has never divested itself of the ownership of the tract, which was acquired through a federal land grant. The petition alleges that the LaSalle Parish School Board manages Section 16.

The record indicates that the School Board has historically permitted the public to use Section 16, and its water bodies, for recreational purposes. A road, identified as Road 8-P, has provided the public with access from Louisiana Highway 127 to School Board property. According to testimony, Road 8-P has been maintained by the LaSalle Parish Police Jury. The length of that maintenance prior to 1993 is not firmly established in the record. A question also exists as to whether Road 8-P extends in a maintained fashion to the boundary of Section 16 or whether the ^maintained road ends on Kitterlin Creek property. Although the plaintiffs maintain that the Police Jury built the road, evidence in the record does not indicate when the road was built nor does it indicate who built it.

Kitterlin Creek argues that there is no authority for the public to use Road 8-P. It contends that, in its present form, the road allows access to private, Kitterlin Creek property. It asserts that, due to the access, Kitterlin Creek has been subjected to vandalism and unauthorized recreational use of its property. The Police Jury maintains that the public has a right to access the road due to a servitude and right-of-way established in 1955 by Kitter-lin Creek’s ancestor in title. It also contends that the road has been maintained by the Police Jury for an adequate period of time for it to be a public road.

This matter came before the court when Kitterlin Creek placed two gates on Road 8-P in an attempt to limit public access to its property. In May 2002, the State of Louisiana, the LaSalle Parish Police Jury, and the LaSalle Parish School Board (collectively referred to as the “plaintiffs”) filed a petition seeking a temporary restraining order, ordering the defendant to immediately remove the gates from Road 8-P. The temporary restraining order was issued by the trial court. A hearing was set for consideration of a preliminary injunction in the form and substance of the restraining order. On May 20, 2002, Kit-terlin Creek filed a Motion to Dissolve Temporary Restraining Order. In the motion, Kitterlin Creek asserted: “[T]hat La. R.S. 9:1251 prevents any roadways maintained by the LaSalle Parish Police Jury on the property of mover, for access to and from waters for boating or for the purposes of ingress and egress to or from any recreational site from becoming public roads, and cannot cause any loss of private property rights to mover.”

IsFollowing a hearing at which both the preliminary injunction and the motion to dissolve were considered, the trial court granted the preliminary injunction. Kit-terlin Creek appeals, presenting the following issues for review:

1. Does the November 2, 1955 right-of-way, servitude & flowage right grant give to the LaSalle Parish School Board or the LaSalle Parish Police Jury the right to a public road across the property of Kitterlin Creek, L.L.C. to the School Board section, Section 16, Township 6 North, Range 2 East, LaSalle Parish, Louisiana?
2. Does La.R.S. 9:1251 prevent road 8-P from becoming a public road?
3. If road 8-P is a public road, does Kitterlin Creek, L.L.C. have the right to prevent the public from going off the public road, onto its property, including Kitterlin Bay?

Discussion

A party’s request for a preliminary injunction is provided for by La.Code Civ.P. art. 3601, which provides:

An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; provided, however, that no court shall have jurisdiction to issue, or cause to be issued, any temporary restraining order, preliminary injunction, or permanent injunction against any state department, board or agency, or any officer, administrator or head thereof, or any officer of the State of Louisiana in any suit involving the expenditure of public funds under any statute or law of this state to compel the expenditure of state funds when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.
During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.
Except as otherwise provided by law, an application for injunctive relief shall be by petition.

|4A trial court’s determination as to whether to issue a preliminary injunction is subject to the abuse of discretion standard of review. Smith v. West Virginia Oil & Gas, Co., 373 So.2d 488 (La.1979). See also Jones on Behalf of Cooper v. W.T. Henning Elementary School Principal, 98-470 (La.App. 3 Cir. 10/28/98); 721 So.2d 530.

At issue is whether Road 8-P is subject to public use. See La.Civ.Code art. 457. The Louisiana Supreme Court has acknowledged that the public’s right to use a road may be acquired through purchase, exchange, donation, expropriation, prescription, or dedication. St. Charles Parish School Bd. v. P & L, 95-2571 (La.5/21/96); 674 So.2d 218, citing A.N. Yiannopoulos, PROPERTY § 96 (2 Louisiana Civil Law Treatise 3d ed.1991). While the plaintiffs’ petition instituting this matter could be construed broadly, arguments presented to the trial court indicate that the plaintiffs proceeded under theories that can be identified as two of those listed by the supreme court. First, the plaintiffs argued that the right of public use of Road 8-P was purchased/donated, as demonstrated by a 1955 conveyance. Next, the plaintiffs argued that the right to use the roadway was acquired through dedication. In oral reasons for ruling, the trial court indicated that it found merit in both of these approaches. It discounted an argument that La.R.S. 9:1251, a statute passed after the 1955 conveyance, prevented the road from becoming a public road.

[ BRight-Of-Way, Servitude & Flowage Right

In its first assignment of error, Kitterlin Creek contends that the document relied upon by the plaintiffs in arguing that Road 8-P should be accessible by the public does not create a right of public passage. Further, Kitterlin Creek argues that the document merely grants the Police Jury the right to go upon the property of Urania Lumber Company, Kitterlin Creek’s ancestor in title, for the purpose of constructing a dam. It also contends that a flowage easement was granted for the purpose of raising the water level. Kitter-lin Creek argues that the right-of-way does not provide the Police Jury with a right to build or maintain a public road, nor does it provide the public with the right of access to the property.

The document at issue provides:

RIGHT-OF-WAY, SERVITUDE & FLOWAGE RIGHT GRANT
STATE OF LOUISIANA
PARISH OF LASALLE
WHEREAS, the Department of Public Works, State of Louisiana, has agreed to construct a dam and appurtenances on Walker Lake [and Lehman Lake, Also Kitterlin Lake and Fool’s River] in this parish to create a fish and wild life habitat and water conservation facility in |ficonnection with which construction it appears that it will be necessary to use, flood, and inundate all or part of the following described property owned by me in LaSalle Parish, Louisiana; said appurtenances and dams to hold water on said lakes no higher than contour thirty-six (36) mean sea level;
NOW, THEREFORE, I Q.T. Hardt-ner, Jr., a resident of the lawful age of the parish of LaSalle do hereby grant unto the Police Jury of the Parish of LaSalle, its successors and assigns a servitude, right-of-way, and flowage right on, over and across the above described property which servitude, right-of-way and flowage right shall include the right and privilege of entering and going upon said land and bringing thereon such materials, equipment, vehicles and animals as may be necessary in connection with the construction of the said dam and appurtenances and the right and privilege of flooding, inundating, and otherwise causing the said land to be covered by the waters of Walker Lake.
I hereby relinquish unto the said Police Jury for the Parish of LaSalle and unto the Department of Public Works, State of Louisiana, its contractors and employees any and all claims for damages to said property caused by or resulting from the aforesaid constructions.
The consideration of this grant is the benefit which will inure to me as a consequence of the aforesaid construction and the creation of the said facility which will enhance the value of my said land, the sufficiency and the adequacy of which consideration are hereby acknowledged.
IN WITNESS WHEREOF, this instrument is executed on this 2 day of November, 1955.

The rights conferred above do not reference Section 16 nor does it name that property as the beneficiary of a servitude or right-of-way so as to render it a dominant estate. See La.Civ.Code art. 646. The water bodies referenced in the above-document are contained either entirely or, in part, on the land that would be interpreted as the servient estate, that now owned by Kitterlin Creek. Rather, the entirety of the document focuses on a proposed project to flood the area for water 17conservation purposes and the creation of a wildlife/fish habitat. Some testimony indicated that a component of a water control device may exist on Kitterlin Creek property. There is no testimony establishing a connection between the water control device and the proposed flooding project.

The nature of the plaintiffs’ argument regarding the 1955 document indicates that they are seeking acknowledgment of a right-of-way, or servitude of passage for the public. See, e.g., La.Civ.Code art. 705. However, the document conveys a servitude and “right-of-way” only to the La-Salle Parish Police Jury, its successors and assigns, and does so within the context of the proposed dam and flooding project. La.Civ.Code art. 730 instructs that: “Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.” The 1955 document is clearly connected to the dam and flooding project. Nowhere in the document does it reference Section 16, the School Board property, nor does it indicate that any servitude or right-of-way is granted in favor of the public. Even if the grant of the servitude was not limited by the context of the document, Article 730 requires that any ambiguity as to the extent of this servitude and right-of-way be interpreted in favor of the land now owned by Kitterlin Creek. Accordingly, we do not find that the document creates a right of passage for the public as urged by the plaintiffs.

1 xLa.R.S. k8:k91 and La.R.S. 9:1251

The plaintiffs also maintain that the Police Jury has maintained Road 8-P “for a sufficient period of time within which to obtain a public right of passage over all lands upon which the road is located.” This argument stems from La.R.S. 48:491, which provides, with some qualification, that roads maintained or worked on for a period of three years become public roads or streets. The Louisiana Supreme Court has described operation of La.R.S. 48:491 as a “tacit dedication.” See St. Charles Parish School Bd., 95-2571; 674 So.2d 218. La.R.S. 48:491 presently provides:

§ 491. Public roads
A. All roads or streets in this state that are opened, laid out, or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality shall be public roads or streets, as the case may be.
B. (l)(a) All roads or streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by the authority of a parish governing authority within its parish, or by the authority of a municipal governing authority within its municipality, shall be public roads or streets, as the case may be, if there is actual or constructive knowledge of such work by adjoining landowners exercising reasonable concern over their property.
(b) Actual or constructive knowledge is presumed if prior to or during the public body notifies the last known adjoining landowners of same by written notice by certified or registered mail, return receipt requested. When such notice is given more than two years and ten months from commencement of such work, it shall suspend the foregoing prescription for sixty days.
(c) Actual or constructive knowledge is conclusively presumed within all parishes and municipalities, except as otherwise provided by R.S. 48:491(B)(3), if the total period of such maintenance is four years or more, unless prior thereto and within sixty days of such actual or constructive knowledge, the prescription is interrupted or suspended in any manner provided by law.
(2) When a local governing authority for any reason decides to dispose of any road, street or property used for right-of-way purposes [9which was originally donated to the authority or its ancestors in title, the property shall revert to the original donor or his heirs or assigns. The authority shall notify the donor or his heirs of its intention to donate the property by sending written notice via certified mail, return receipt requested, to the donor or his heirs at his last known address. The notice shall inform the donor or his heirs or his assigns of the authority’s intention to have the land revert and provide him ninety days from receipt in which to respond. If, upon the expiration of the ninety-day period, no response has been received by the authority, it shall dispose of the property in accordance with applicable law. In the donations deed from the authority to the donor or his heirs or his assigns, the authority shall reserve rights of passage for landowners who own property contiguous to the property to be reverted.
(3) In the parish of Vermilion only such maintenance operations are conducted by authority of a parish or municipal governing authority pursuant to a written contract with the landowner which specifies that a private road or street shall not be or become a public road or street.
C. All roads or streets made on the front of their respective tracts of lands by individuals when the lands have their front on any of the rivers or bayous within this state shall be public roads when located outside of municipalities and shall be public streets when located inside of municipalities.
D. Notwithstanding any other provisions of law to the contrary, any road or street used by the public is a public road or street provided it is designated as such by the local governing authority, and it shall be within the discretion of the local governing authority to maintain the road up to a private drive; however, no road or street on private property shall be designated as a public road unless ownership is transferred or the right of way is given to the local governing authority.

The statute has been amended a number of times, with Section B presently containing the requirement of notice prior to dedication of a public road. This inclusion of the notice requirement was made by Acts 1985, No. 480, § 1. Prior to the amendment, no notice was required. However, insofar as it may be viewed as affecting this case, Section 2 of Acts 1985, indicates that: “This Act shall not affect streets or roads the maintenance of which commenced prior to September 1, 1984.” Although the School Board has presented indication of general maintenance for a number of years, the |inmaintenance demonstrated in the record by Police Jury work logs commenced in 1993. There is no proof of when maintenance began and whether the notice requirements of Section B(l) are applicable to this road.

Furthermore, Section D was enacted by Acts 1999, No. 1058, § 1. If there was no designation of the road as public prior to 1999, this Section would also prohibit designation “unless ownership is transferred or the right of way is given to the local governing authority.” As seen above, our review of the 1955 document indicates that it does not convey the type of right-of-way described in Section D. Rather, the conveyance is limited to the water conservation and wildlife habitat project described in the document.

Finally, even if La.R.S. 48:491 was found applicable to this situation, La.R.S. 9:1251 provides:

§ 1251. Passage to or from waters or recreational sites; servitudes or rights of way or passage not acquired.
A. Any other provisions of the laws of this state to the contrary notwithstanding, whenever any land owner voluntarily, whether expressly or tacitly, permits passage through or across his land by certain persons or by the public, solely for the purpose of providing a convenience to such persons or by the public, solely for the purpose of providing a convenience to such persons in the ingress and egress to and from waters for boating, or for the purpose of ingress and egress to and from any recreational site, neither the public nor any person shall thereby acquire a servitude or right of passage, nor shall such passage become a public road or street by reason of upkeep, maintenance, or work performed thereon by any governing authority.
B. The provisions of this sections shall not be construed to:
(1) prohibit land owners from entering into enforceable contracts specifically granting servitudes or rights of way or passage;
ln(2) prohibit land owners from specifically dedicating roads, streets or passages to the public use;
(3) repeal any laws relative to expropriation or appropriation of land or ser-vitudes or laws authorizing the legislature or governing authorities to open, lay out or appoint public roads or streets; nor
(4) repeal any laws creating servi-tudes along rivers, streams or other waters.

(Emphasis added.) Section A is applicable under the present facts as testimony indicates that the public has historically used the road for access to the recreational features of the surrounding property, including Section 16. In fact, it is on that basis that the temporary restraining order and injunction were sought.

The plaintiffs contend that La.R.S. 9:1251 is inapplicable to Road 8-P, due to the presence of Section B(l). It argues that the servitude and right-of-way contained in the 1955 document operate as the type of contract described in Section B(l). As we discussed above, we disagree that the right of passage for the public now sought by the plaintiffs is that conveyed in the 1955 document. We also note that the transcript of the hearing reveals that the trial court observed that La.R.S. 9:1251 did not become effective until 1958, three years after the 1955 document. The court questioned whether Road 8-P may have become a public road by tacit dedication prior to the 1958 enactment of the statute. Again, we note that the plaintiffs presented testimony as to the public’s historic use of the road. However, actual proof of the Police Jury’s maintenance of the road, by way of maintenance logs, extends only to 1993; nor does any testimony satisfactorily establish maintenance prior to 1993.

Due to the inapplicability of the 1955 conveyance of a servitude and right-of-way to the Police Jury and the operation of La.R.S. 9:1251, we conclude that the trial 119court abused its discretion in granting the preliminary injunction sought by the plaintiffs.

DECREE

For the foregoing reasons, the judgment of the trial court granting the preliminary injunction is reversed. Costs of this proceeding, in the amount of $2,588.43, are assigned to the plaintiffs, the State of Louisiana, the LaSalle Parish Police Jury, and the LaSalle Parish School Board. Cf. La. R.S. 13:5112.

REVERSED.

      . For general discussion of the federal land grant regarding the Sixteenth Section, see Andrus v. Utah, 446 U.S. 500, 100 S.Ct. 1803, 64 L.Ed.2d 458 (1980) and State v. Humble Oil and Refining Co., 197 So. 140, 195 La. 457 (1940).

      . Art. 457. Roads; public or private
      A road may be either public or private.
      A public road is one that is subject to public use. The public may own the land on which the road is built or merely have the right to use it.
      A private road is one that is not subject to public use.

      . See also A.N. Yiannopoulos, Property § 96 (2 Louisiana Civil Law Treatise 4th ed.2001).

      . In ruling, the trial court stated, in part:
      I can just say that as far as I’m concerned, I'm gonna grant the preliminary injunction. The reason being, number one — I believe that Plaintiff's Exhibit 1 gives a continuing right to the police jury to do it. It was done way before the passage of the '58 act. I think that the road obviously has been there a long time. You've got a USGS map — I’m not sure what series it is — y’all can come in and show me that it wasn't there before the passage of the act, then, that's fine. Y'all win on the permanent injunction. But, I grant the preliminary injunction. I recall the rule to dissolve the temporary restraining order. And I deny that request. And, basically, I think it is a public road. Not only do I think it’s a public road, but, I also think there are some private aspects to it, between the State of Louisiana and also the LaSalle Parish Police Jury, which grants them even more access than an ordinary public road would be. And if that ain’t enough, they've been maintaining it for years. I think they have a right to go in there. I think the public has a right to go in there. I think that that right preceded the passage of the Title 9, Section 1251 Act. That’s all I find.

      . We note that the bracketed material is contained in the right-of-way document, but appears as a typewritten addition between the applicable lines of the document. We have included brackets merely to signal the lack of uniformity in the typewritten text.

      . The document is signed by "Q.T. Hardtner, Jr.” as President of the Urania Lumber Company. It also bears the signatures of two witnesses.

      . Article 646 provides that: "A predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners.”

      . Article 705 currently provides:
      Art. 705. Servitude of passage
      The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate.

      .The rights granted to the Police Jury relating to the project described in the document are not at issue in this case.

      . We also point out that in St. Charles Parish School Board v. P & L, 674 So.2d 218, 222, the supreme court observed that "token maintenance" or an "occasional brushing up" of a road does not qualify as a tacit dedication under La.R.S. 48:491.

      . We note that our review is limited to those issues presented and ruled on by the trial court, namely, that regarding the applicability of the 1955 conveyance and operation of La. R.S. 9:1251. While the plaintiffs make broad reference in their brief to this court that Section 16 is landlocked, we do not reach the issue of whether those Civil Code articles related to an enclosed estate are applicable in this situation. Inadequate testimony and argument were presented in the court below for consideration of that issue here.


author: | .DECUIR, Judge.

text:
    Roy MENARD v. Donald SAGRERA.
    No. 02-0924.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Michael B. Miller, Crowley, LA, for Roy Menard.
    Debra Talbot Parker, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Donald Sagrera.
    Court composed of NED E. DOUCET, JR., Chief Judge, and OSWALD A. DECUIR and MARC T. AMY, Judges.
   | .DECUIR, Judge.

Plaintiff, Roy Menard, appeals a judgment of the workers’ compensation judge denying penalties and attorney’s fees and reducing a consent judgment to writing that differed from the parties’ oral stipulation.

FACTS

Roy Menard filed a claim for workers’ compensation benefits against his employer, Sagrera Farms, and its insurer, Louisiana Workers’ Compensation Corporation. The case was heard on May 9, 2001. At that time the parties appeared before the workers’ compensation judge and recited the terms of a settlement agreement between the parties. The defendants and Menard exchanged proposed written forms of the stipulated judgment but could not agree on language. When the defendants failed to pay the settlement by March 21, 2002, Menard filed a Motion for Penalties and Attorney Fees alleging that the defendants had failed to pay in accordance with the consent judgment. After a hearing on-May 1, 2002, the workers’ compensation judge denied the request for penalties and attorney fees. In addition, the workers’ compensation judge signed a judgment entitled “Judgment on Stipulation.” Menard objected alleging that the judgment contained terms not stipulated to by the parties. Subsequently, Menard lodged this appeal.

FINAL JUDGMENT

On appeal, Menard contends that the workers’ compensation judge erred in failing to award penalties and attorney’s fees under La.R.S. 23:1201(G). Specifically, Menard argues that the statute authorizes penalties and attorney’s fees for the failure to pay the terms of a final, non-appealable judgment within thirty days. Menard contends that the settlement agreement entered into by the parties in open court constitutes a final, non-appealable judgment.

In 1999, the Legislature amended La. R.S. 23:1272(A) to provide:

LA. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers’ compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding.

(Emphasis added.)

Prior to 1999, in Borne v. St. John The Baptist Parish School Bd., 97-1062 (La.App. 5 Cir. 3/11/98), 712 So.2d 921, 923, writ denied, 98-807 (La.5/8/98), 719 So.2d 52, the court said:

In this case, we hold that the Order by the hearing officer is a judgment within the meaning of the statute. Under the law, the hearing officer was required to make certain findings before approving the payment. La.R.S. 23:1272. The Order of approval was not automatic. Further, this was a lump sum payment of benefits owed and not a contested matter. Since the Order is nonappealable under R.S. 23:1272, we find that the hearing officer did not err in finding that R.S. 23:1201G applies.

Likewise, the fourth circuit, when faced with the question of whether the workers’ compensation judge correctly found that a document styled a “resolution” was a final, non-appealable judgment, said:

Since the “Resolution” was an agreement on the terms of the settlement, TMSEL RTA’s counsel certainly had authority to compromise and bind his client. No issue was unresolved. A binding settlement had been reached. We agree with the conclusions of the Hearing Officer.

Johnson v. TMSEL, RTA, 95-1352 (La.App. 4 Cir. 2/15/96), 669 So.2d 1309, 1311.

Thus, prior to the amendment writings not typically considered judgments were considered final non-appealable judgments by the courts. The language of the 1999 amendment closely tracks Civil Code Article 3071 dealing with transaction or compromise which states:

This contract must either be reduced into writing or recited in open court and capable of being transcribed from, the record of the proceeding. The agreement recited in open court confers upon each of |sthem the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

(Emphasis added.)

The amendment to La.R.S. 28:1272 broadens the available avenues for settling workers’ compensation claims. Clearly the legislature intended the recitation in open court to have the same effect as the previously approved forms of settlement. The settlement of a workers’ compensation claim is substantially the same as a transaction or compromise. An oral recitation of a transaction or compromise in open court and capable of transcription is judicially enforceable. Accordingly, we find the workers’ compensation judge erred in finding that the oral recitation of the settlement agreement capable of transcription was not a final, non-appealable judgment and in failing to award penalties and attorney’s fees pursuant to La.R.S. 23:1201(6).

The record reflects that the defendant failed to pay the terms of the settlement agreement within thirty days as required by law. Pursuant to La.R.S. 23:1201(G), the defendants are ordered to pay 24% of the amount payable under the settlement agreement as penalties. In addition, the defendants are ordered to pay $5,000.00 as attorney’s fees. Finally, defendants are ordered to pay any unpaid legal interest accruing as a result of our ruling.

JUDGMENT ON STIPULATION

Menard next contends that the workers’ compensation judge erred in signing a “judgment on stipulation” that differed from the stipulation recited in open court. We agree.

The parties stipulated in open court that all matters related to average weekly wage would be considered res judicata by virtue of the agreement. The judgments submitted for signature and the “judgment on stipulation” signed by the workers’ compensation judge provide that Menard’s claims related to average weekly wage are |/‘dismissed with prejudice.” The defendants assert that the phrases are the same and that counsel for Menard has merely been using the disagreement to obstruct the process. If that is the position of the defendants, we question why they insisted on the dismissal with prejudice language. In any event, we need not resolve that issue. The transcription of the stipulated agreement is in the record. They agreed that the issue of average weekly wage would be considered res judicata. We have found that agreement to be a final judgment. Accordingly, the workers’ compensation judge’s “judgment on stipulation” containing language not agreed to by the parties is vacated.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge denying penalties and attorney’s fees is reversed and rendered. The judgment of the workers’ compensation judge styled “judgment on stipulation” is vacated. All costs of these proceedings are taxed to appellees, Sagrera Farms and Louisiana Workers’ Compensation Corporation.

REVERSED AND RENDERED IN PART; VACATED IN PART.


author: DIAZ, J.,

text:
    Bonnie HAGGERTY v. Steven FOSTER and Foster Construction Company.
    No. 2001-CA-00551-SCT.
    Supreme Court of Mississippi.
    Dec. 5, 2002.
    Rehearing Denied March 13, 2003.

      Austin R. Nimocks, Gulfport, attorney for appellant.

      William E. Whitfield, III, Gulfport, Samuel Trent Favre, attorneys for appellees.
    Before SMITH, P.J., COBB and DIAZ, JJ.
   DIAZ, J.,

for the Court:

¶ 1. Bonnie Haggerty (Haggerty) filed her Complaint in the Circuit Court of Harrison County, First Judicial District, against Steven Foster and Foster Construction Company (collectively hereinafter “Foster”), seeking to recover damages she sustained in a car accident on U.S. Highway 49 in Harrison County, Mississippi, on September 27, 1996. After trial on the matter, the jury returned a verdict in favor of Foster, and judgment was entered accordingly. The trial court denied Hag-gerty’s Motion for Judgment Notwithstanding the Verdict, or Alternatively, for a New Trial. Aggrieved by the judgment and the trial court’s denial of her motions, Haggerty appeals, presenting the Court with the following five issues:

I. WHETHER THE CIRCUIT COURT ERRED IN GIVING JURY INSTRUCTION D-6A AND NOT GIVING JURY INSTRUCTION P-8A.
II. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING HAGGERTY’S CHALLENGES FOR CAUSE DURING VOIR DIRE.
III. WHETHER THE CIRCUIT COURT ERRED IN NOT ALLOWING HAGGERTY TO TESTIFY, UTILIZE DEMONSTRATIVE ITEMS, AND INTRODUCE EVIDENCE REGARDING HER DAMAGES DURING THE COURSE OF THE TRIAL.
IV. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING HAGGERTY’S OBJECTION TO THE APPELLEE’S CLOSING ARGUMENT ON ACCIDENT RECONSTRUCTION.
V. WHETHER THE CIRCUIT COURT ERRED IN DENYING HAGGERTY’S MOTION FOR A NEW TRIAL, OR ALTERNATIVELY, JUDGMENT NOTWITHSTANDING THE VERDICT.

FACTS

¶2. On September 27, 1996, Haggerty was traveling north on U.S. Highway 49 in Gulfport, Mississippi, intent on turning east at the upcoming intersection of Highway 49 and Creosote Road. Steven Foster was proceeding south on Highway 49, traveling to McDonald’s restaurant to eat lunch. McDonald’s is located just south of the intersection of Highway 49 and Creosote Road. Northbound traffic was stopped for a traffic signal at that intersection. Motorists who were stopped at the signal made a corridor for Foster to pass between them and enter McDonald’s parking lot. Foster crossed three lanes of northbound traffic. Foster and his employee, Vince Wolfson (Wolfson), both testified that they looked up the turn lane and saw no vehicles approaching. Wolfson testified that he could only see 20 or 30 feet down the turn lane. As Foster crossed the turn lane, his vehicle was struck by Haggerty’s. Wolfson testified that he saw Haggerty’s vehicle immediately before impact and judged her speed at approximately 20 to 30 miles per hour. He testified that he had looked down the turn lane and seen no one coming, looked away as Foster started across, then looked back and saw Haggerty’s vehicle immediately before impact. He estimated that Foster was in the process of crossing the turn lane for approximately 3 or 4 seconds. Foster testified that he never saw Haggerty prior to impact. He further testified that his vehicle had nearly entered McDonald’s parking lot at the time of the accident and that he had crossed 8-10 feet of the 11 feet turn lane.

¶ 3. Haggerty testified that she did not see Foster’s vehicle until the impact occurred. She testified that she was in the turn lane, she slowed her vehicle to allow another car in front of her to make a right turn into a car dealership immediately south of McDonald’s, then she proceeded in the turn lane. She testified that she continued driving in the turn lane and then Foster’s vehicle pulled out in front of her and she hit him without having time to react. She estimated that she was going approximately 15 miles per hour at the time of the collision. She also testified that Foster’s truck continued moving after the accident and dragged her and her vehicle into the McDonald’s parking lot,

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN GIVING JURY INSTRUCTION D-6A AND NOT GIVING JURY INSTRUCTION P-8A.

¶4. As her first assignment of error, Haggerty cites the trial court’s error in allowing and denying certain jury instructions. When determining whether reversible error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole to determine whether a jury has been incorrectly instructed. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Coleman v. State, 697 So.2d 777, 782 (Miss.1997); Collins v. State, 691 So.2d 918, 922 (Miss.1997) (citing Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982)); Jackson v. Griffin, 390 So.2d 287, 290 (Miss.1980).

¶ 5. Haggerty’s three challenges to the trial court’s disposition of jury instructions are discussed in turn below.

(A) Whether Jury Instruction D-6A is Based Upon an Improper Legal Standard.

¶ 6. Haggerty cites as error the trial court’s giving of instruction D-6A, claiming that it is based upon an improper legal standard. Instruction D-6A, states in pertinent part: “that if, based upon the instructions of this Court, you find that the Defendants ... were negligent ... you may reduce any verdict for damages by an amount or percentage which reflects the negligence, if any of the Plaintiff.” (emphasis added). Haggerty argues this portion of the instruction required the jury to base its findings as to the negligence of the defendants upon the instructions of the court, rather than on the evidence presented at trial. Haggerty contends this error was compounded by a later portion of that same paragraph in the instruction, which instructed the jury to determine any negligence on the part of the plaintiff by what is demonstrated by the evidence. That portion reads: “The application and reduction of damages to the Plaintiff by her comparative negligence, if any, is left to your sole discretion if any negligence on her part is demonstrated by the evidence in this case by the Defendants, Steven Foster and Foster Construction Company.” (emphasis added). The next paragraph of the instruction provides that “in the event you find that the Defendants were negligent as described in other instructions ... If based upon the evidence, you find that the Plaintiff was comparatively negligent, then you must assign a percentage for her negligence .... ” (emphasis added). Haggerty argues this instruction improperly charged the jury to utilize different standards as to the findings to be made regarding each party.

¶ 7. The findings of the jury are to be based only on the evidence presented at trial. Meant v. Langlinais, 240 Miss. 242, 126 So.2d 866 (1961). The statements of counsel are not evidence, Walker v. State, 671 So.2d 581, 618 (Miss.1995), and neither are the instructions of the court which should only serve to guide the jury as to the applicable law. See Carmichael v. Agur Realty Co., 574 So.2d 603, 612 (Miss.1990); Cintgran v. Board of Trustees of Shelby Hosp., 222 So.2d 677, 678 (Miss.1969). Cf Rogers v. State, 796 So.2d 1022, 1027 (Miss.2001) (“The evidence which you are to consider consists of the testimony and statements of the witnesses and the exhibits offered and received.”). Nonetheless, in keeping with the applicable standard of review on jury instructions discussed above, it is improper to consider excerpts from the jury instruction or to evaluate portions of the jury instruction out of context since the instruction must be considered with the other instructions given. Instruction D-6A instructs the jury to make its determination based on all of the instructions of the court. Instruction C-l instructs the jury to “conscientiously consider and weigh the evidence ... determine the facts and to determine them from the evidence produced in open court ... your verdict should be based on the evidence.” We conclude that, when read as a whole, the jury instructions fairly announce the applicable law.

¶ 8. Moreover, at trial Haggerty objected to instruction D-6A only on the grounds that it addressed comparative fault. Haggerty’s attorney did not object to the specific wording now complained of on appeal. In fact, during the instruction conference Haggerty’s attorney agreed to the giving of Instruction D-6A, stating, “I have no objection to this wording, assuming the Court is going to allow a comparative fault instruction.” In order to preserve an objection for appeal, an attorney must make a contemporaneous objection. Gatlin v. State, 724 So.2d 359, 369 (Miss.1998); Mitchell v. Glimm, 819 So.2d 548, 2002 WL 454021 at *4 (Miss.Ct.App.2002). “Failure to make a contemporaneous objection and allow the trial court opportunity to cure the defect is a procedural bar and constitutes a waiver of the argument on appeal.” Id. Because Haggerty’s attorney failed to object to the language at trial, the trial judge did not have an opportunity to cure any possible defect. Hag-gerty’s objection to the language was therefore not properly preserved and her argument on appeal is not properly before the Court and is denied.

¶ 9. This assignment is without merit.

(B) Whether Jury Instruction D-6A should not have been given because there existed no evidence to support Foster’s theory or argument that Haggerty was negligent.

¶ 10. Haggerty also argues that since no factual basis was developed at trial that indicated that she contributed in any way to the accident, Instruction D-6A, a comparative fault instruction, was erroneously given. She cites the cases of Vines v. Windham, 606 So.2d 128 (Miss.1992), and McKinzie v. Coon, 656 So.2d 134 (Miss.1995), in support of this argument.

¶ 11. In Vines, this Court held that a comparative negligence instruction was improper where the evidence was clearly insufficient to support a finding of contributory fault. The defendant’s comparative negligence instruction was submitted to the jury despite his bare testimony that he did not see the plaintiffs vehicle when he last looked. This Court held that the defendant’s sole assertion could not independently establish a “safe and dependable probability” that the plaintiff was driving negligently. Vines, 606 So.2d at 132. In the case at bar, while Foster asserts he did not see Haggerty’s vehicle, his assertion does not stand alone. Both Foster and Wolfson testified that they proceeded with caution across the lanes and that they stopped prior to crossing an empty and untraversed turn lane. Foster and Wolf-son testified that they could see no cars proceeding up the lane.

¶ 12. In Vines, this Court found it significant that the defendant’s vehicle was struck on its left front fender, indicating that he had only just begun to enter the intersection when the vehicles collided and that, therefore, the accident was his fault. In the case sub judice, Foster presented evidence that Haggerty struck Foster’s vehicle in its mid-section as Foster’s truck had already begun to cross the outside line of the turn lane and was partially in the McDonald’s parking lot. This evidence tends to demonstrate that Foster’s vehicle was well within the turn lane when the accident occurred and, coupled with the testimony of both Foster and Wolfson that they did not see Haggerty before Foster entered the turn lane, creates the possibility that Haggerty was partially or wholly responsible for the accident; a theory the jury appears to have believed.

¶ 13. In McKinzie, this Court reversed a trial court’s denial of a plaintiffs motion for directed verdict where the defendant admitted he entered an intersection and did not see the plaintiffs vehicle until it was too late, stating that the defendant failed to offer proof to contradict the plaintiffs version of the accident. Conversely, the plaintiff had presented an accident re-constructionist who corroborated plaintiffs testimony about her speed as well as two disinterested witnesses who testified that the defendant was not paying attention when he pulled into the intersection. In the case at bar, Haggerty was the only Plaintiffs witness testifying to her speed. She testified that, although she was only traveling 15 miles per hour, she did not see Foster until impact. Defense witness Wolfson testified as to Haggerty’s approximate speed. Both Foster and Wolfson testified that they looked up the turn lane and did not see Foster’s vehicle. Unlike the defendant in McKinzie, Foster refuted Haggerty’s unsubstantiated version of the facts through his own testimony, the testimony of a factual witness, property damage and photographs.

¶ 14. The general rule is that all instructions must be supported by the evidence. Where an instruction is not supported by evidence then it should not be given. Dennis v. State, 555 So.2d 679, 683 (Miss.1989); Moffett v. State, 540 So.2d 1313 (Miss.1989); Nicolaou v. State, 534 So.2d 168 (Miss.1988). Granting instructions not supported by evidence is error. Lancaster v. State, 472 So.2d 363, 365 (Miss.1985). Foster affirmatively pled comparative fault in his answer and presented evidence in support of his theory that Haggerty was negligent. This Court has held that “[a] party has a right to have jury instructions on all material issues presented in the pleadings or evidence.” Glorioso v. Young Mens Christian Ass’n of Jackson, 556 So.2d 293, 295 (Miss.1989); see also Barkley v. Miller Transporters, Inc., 450 So.2d 416 (Miss.1984); Alley v. Praschak Mach. Co., 366 So.2d 661 (Miss.1979). Because Foster presented evidence regarding Haggerty’s comparative fault that sufficiently raised a jury question as to how the accident occurred, instructing the jury on comparative fault was not error.

¶ 15. This assignment is without merit. (C) Whether Jury Instruction P-8A should have been given because: (1) the reasonableness and necessity of Haggerty’s medical expenses is an element of her prima facie case, (2) the Jury must be instructed on every element of her prima facie case, and (3) both parties agreed as to the reasonableness and necessity of her medical expenses.

¶ 16. Haggerty argues that the trial court erred in refusing to submit to the jury an instruction to the effect that Foster admitted that Haggerty’s medical expenses were reasonable and necessary. Haggerty argues that the trial court’s refusal to give the instruction was error because the jury must be instructed as to each and every element of the prima facie case at issue. Haggerty cites two criminal cases for this proposition, Havard v. State, 800 So.2d 1193, 1199 (Miss.2001) (“Reversible error is committed when the instructions do not instruct the jury on the essential elements of the crime.”); Berry v. State, 728 So.2d 568, 570 (Miss.1999) (finding plain error where the jury is not fully instructed as to all elements of the crime charged). She argues that there is no logical basis to distinguish these cases from the case at bar.

¶ 17. In Mississippi, in order for a plaintiff to recover for medical expenses from an accident or otherwise, it must be shown that the medical expenses incurred were both reasonable and necessary. See Miss.Code Ann. § 49-9-119 (1999); Jackson v. Brumfield, 458 So.2d 736, 737 (Miss.1984). Haggerty urges that where the jury was asked to make a damages finding involving medical expenses, the jury needed to be instructed that the parties had agreed to the reasonableness and necessity of those expenses.

¶ 18. Foster counters by arguing that Haggerty waived this assignment of error by virtue of her attorney failing to state distinctly in the record the matter to which he objected to the court’s refusal of this instruction. Attorneys must dictate their specific objections on jury instructions into the record. M.R.C.P. 51(b)(3); URCCC 3.07. Haggerty’s attorney failed to make any argument at all supporting the instruction. However, this Court has made clear that once an instruction has been submitted, subsequent objections to their refusal are unnecessary. “The point is procedurally preserved by the mere tendering of the instructions, suggesting that they are correct and asking the Court to submit them to the jury. This in and of itself affords counsel opposite fair notice of the party’s position and the Court an opportunity to pass upon the matter. When the instructions are refused, there is no reason why we should thereafter require an objection to the refusal unless we are to place a value upon redundancy and nonsense.” Carmichael v. Agur Realty Co., 574 So.2d 603, 612 (Miss.1990).

¶ 19. The reasonableness and medical necessity of Haggerty’s medical bills were stipulated by the parties. Hag-gerty testified regarding them, and her counsel explained the stipulation pertaining to them to the jury in closing argument. The trial court was of the opinion that an instruction regarding them was unnecessary as the jury was fully informed as to their reasonableness and medical necessity, and the fact that the parties stipulated to those facts. This Court agrees. If there was any error in disallowing the instruction regarding damages, it was harmless because the stipulation and evidence regarding the reasonableness and medical necessity of the medical expenses were adequately presented to the jury through argument and testimony.

¶ 20. This assignment is without merit.

II. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING HAGGERTY’S CHALLENGES FOR CAUSE DURING VOIR DIRE.

¶ 21. Haggerty asserts as error the circuit court’s denial of her challenges for cause against jurors Cheryl Ohman and Chellie Orman. This Court approaches such contentions under the following guidelines:

A circuit judge has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause. The circuit judge has an absolute duty, however, to see that the jury selected to try any case is fair, impartial and competent. “Trial judges must scrupulously guard the impartiality of the jury and take corrective measures to insure an unbiased jury.”

Brawn v. Blackwood, 697 So.2d 763, 769 (Miss.1997) (citations omitted). Additionally, it is a generally accepted principle that “jurors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference.” Scott v. Ball, 595 So.2d 848, 850 (Miss.1992) (citations omitted). Keeping this precedent in mind, Haggerty’s contentions of error in the trial court’s refusal to remove two jurors for cause are discussed in turn below.

(A) Whether Venireman Ohman should have been excused for cause due to her career as an insurance claims adjuster.

¶22. Haggerty first challenges the trial court’s discretion in denying her challenge for cause against Cheryl Ohman (Ohman). The challenge was based on Ohman’s twenty years of employment as a claims adjuster with an insurance company. During voir dire, Haggerty’s attorney asked Ohman whether she could leave her work experience behind her. She replied, “if you want me to be honest, maybe not. I believe I could listen to the facts and be fair. But I mean, it has been 20 years. It’s been, you know, half my lifetime.” She also stated that she could “listen to the facts and be fair with the facts” and further, “apply the law.”

¶ 23. The trial court refused to remove Ohman for cause, finding that her extended employment as a claims adjuster was insufficient to demonstrate her prejudice. This decision was within the trial court’s discretion. Ohman testified that she could listen to the facts, be fair, and apply the law. Mere employment with an insurance company, without more, is not enough to demonstrate bias and prejudice sufficient to warrant removal for cause.

(B) Whether Venireman Ormon should have been excused for cause due to possible bias against lawyers and clients of law firms who participated in any forms of advertising.

¶ 24. Haggerty challenged Or-mon for cause based on her statements regarding lawyers who advertise. The trial court interviewed Ormon to determine her ability to be fair and impartial. He asked whether her opinions regarding lawyer advertising would cause her to be opposed to Haggerty’s position. Though Ormon expressed her dislike of lawyer advertisements on television, she also represented to the trial court that she would listen to both sides. Ormon stated, “I honestly think that after I hear the facts, I can say Well, if it was his fault, — you know, that’s it.’ ” The trial court’s questions of Ormon and her responses that she could be impartial despite her aversion to lawyers who advertise, indicate sound reasoning for the trial court’s denial of the challenge for cause. Failure to grant this challenge for cause was not an abuse of discretion. Therefore, this issue is without merit.

III. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION ON EVIDENTIARY RULINGS.

¶ 25. Haggerty next asserts as error the trial judge’s rulings on various evidentiary issues. Our standard of review for the admission of or refusal to admit evidence is well settled. “ ‘[A]dmission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.’ ” Broadhead v. Bonita Lakes Mall, Ltd. P’ship, 702 So.2d 92, 102 (Miss.1997) (quoting Summit v. Miss. Power Co., 693 So .2d 359, 365 (Miss.1997)); Gen. Motors Corp. v. Jackson, 636 So.2d 310, 314 (Miss.1992); Walker v. Graham, 582 So.2d 431, 432 (Miss.1991). Demonstrative evidence may be admitted at the trial court’s discretion, if such evidence was reasonably necessary and material, Murriel v. State, 515 So.2d 952, 956 (Miss.1987), and appropriate and relevant. Gandy v. State, 373 So.2d 1042, 1047 (Miss.1979). Furthermore, where error involves the admission or exclusion of evidence, this Court “will not reverse unless the error adversely affects a substantial right of a party.” In re Estate of Mask, 703 So.2d 852, 859 (Miss.1997); Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995). With this precedent in mind, each of Haggerty’s alleged evidentiary errors are discussed below.

(A) Whether Haggerty should have been allowed to show the jury empty pill bottles which held the medications she was required to take as a result of the accident.

¶ 26. Haggerty attempted to use approximately one hundred empty pill bottles to demonstrate to the jury how much medication she was required to take. Haggerty did not intend to introduce the bottles into evidence. Foster objected on the grounds that the pill bottles were not disclosed in discovery and that they had no relevance since the medications were not an issue at trial. He argued they were only to be used to inflame the jury or garner the sympathy of the jury. The trial judge sustained Foster’s objection and refused to allow Haggerty to use the pill bottles. Haggerty asserts this as error, citing numerous cases for the proposition that demonstrative evidence is often admitted for the purpose of bringing the jury to a better understanding of the case.

¶ 27. Haggerty was allowed to introduce a list of the prescriptions she was required to take after the accident. The amount of medication she was required to take was the point Haggerty sought to make through the display of the pill bottles. We conclude that the point was sufficiently, if not as persuasively or dramatically, demonstrated to the jury through the prescription list. Therefore, Haggerty has failed to show that she was prejudiced by the judge’s ruling or that his decision was an abuse of discretion. Thus, this assignment is without merit.

(B) Whether Haggerty should have been allowed to use a spine model as a demonstrative device during trial to assist the jury in better understanding the nature and location of her injuries.

¶ 28. Haggerty attempted to use a model of a spine to point out the parts of the spine as her doctor witness testified about them. Foster’s attorney objected on the grounds that the model was not disclosed in discovery and that Haggerty’s counsel was not trained in medicine and did not have the experience necessary to explain the model to the jury. The trial judge sustained the objection. Haggerty argues this was error, citing Hall v. State, 691 So.2d 415 (Miss.1997).

¶29. In Hall, a photograph was held admissible in conjunction with a doctor’s testimony because the doctor testified it was difficult “to simply describe things without some form of visual aid because most people don’t understand anatomy.” Hall, 691 So.2d at 418-19. Haggerty asserts that her counsel intended to use the spine model just like the photograph in Hall, pointing out the parts of the spine as the doctor testified about them.

¶ 30. This Court has developed strict discovery rules in order to avoid trial by ambush and to insure each party has a reasonable time to prepare for trial. It is committed to the discovery rules because they promote fair trials. Once an opponent requests discoverable material, an attorney has a duty to comply with the request regardless of the advantage a surprise may bring. Harris v. General Host Corp., 503 So.2d 795, 797 (Miss.1986); Tolbert v. State, 441 So.2d 1374, 1375 (Miss.1983). We conclude that the trial judge did not abuse his discretion in refusing to allow introduction of the model. Haggerty was not prejudiced by the refusal since the doctor’s testimony was allowed, use of the model was not essential for the jury’s understanding of her injury, and the model was not disclosed to the defense during discovery.

(C) Whether Haggerty was improperly prohibited from testifying about her impression and understanding of her MRI results.

¶ 31. At trial, Haggerty was asked to give her “impression after the visit to her doctor about the MRI results.” Foster’s counsel objected and the trial judge inquired whether she would have to have gotten these impressions based upon what the doctor told her. When Haggerty responded in the affirmative, the judge sustained the objection. Haggerty cites this as error, relying on Mississippi Rules of Evidence 602 and 701 for the proposition that she can give her impression about her injuries. Haggerty also cites the recent Court of Appeals case of Kroger Co. v. Scott, 809 So.2d 679, 688 (Miss.Ct.App.2001). In Kroger, the plaintiffs opinion as to “why she [wanted] 74,000” in damages was ruled to be admissible under Rules 602 and 701 since the testimony was rationally based on the perception of the witness and helpful on the issue of pain and suffering. However, it is well established law that a plaintiff is clearly incompetent to testify regarding his or her own medical prognosis and treatment. Graves v. Graves, 531 So.2d 817, 822 (Miss.1988) (citing Temple Constr. Co. v. Naylor, 351 So.2d 1350, 1352 (Miss.1977)).

¶ 32. Kroger is distinguishable from the case at bar in that here Haggerty was not prohibited from testifying about her perception of her injuries, but only her impression of the MRI. Any impression of the MRI was outside the understanding of Haggerty and her knowledge of it was only gleaned through conversations with her doctor. Allowing Haggerty to testify as to those conversations would be to introduce hearsay into the proceedings. Moreover, this testimony from Haggerty was unnecessary, as the deposition of her doctor explaining the MRI results was later read to the jury. Although she was not allowed to testify regarding the MRI, Haggerty was not denied an opportunity to describe her physical problems, pain, and suffering to the jury. Therefore, any error committed by not allowing her to testify to the results of her MRI was harmless.

(D) Whether the trial court properly excluded the medical report of Dr. Richardson and testimony regarding his treatment.

¶ 33. Haggerty asserts as error the trial court’s sustaining an objection to her introduction of evidence regarding her visit with a plastic surgeon, Daniel Richardson, M.D. Dr. Richardson advised Hag-gerty that nothing could be done to remove the scar on her neck which resulted from neck surgery following the accident. Haggerty alleges refusal of this evidence was error because she withdrew the cost of the visit as an element of her damages, therefore, she argues no prejudice could result to Foster from its introduction. She argues that her visit with Dr. Richardson is relevant within the meaning of Mississippi Rule of Evidence 401 as it is both (1) material or “of consequence” (relates to the injury element of the prima facie case), and (2) contains probative value as it makes the existence of her neck injury and scar “more probable.”

¶ 34. Foster’s counsel objected on the grounds that they requested a copy of all doctor reports during discovery and did not receive a copy of Dr. Richardson’s report, had no knowledge of the report, and had not been advised during discovery that Haggerty had visited a plastic surgeon. Foster claimed admission of the report would prejudice his case because they did not have an opportunity to review the report prior to trial, interview and/or depose Dr. Richardson, and Dr. Richardson was not scheduled to testify at trial. The trial court sustained the objection and refused introduction of the report or any testimony concerning it.

¶ 35. This Court has developed strict discovery rules to avoid trial by ambush and to insure each party had a reasonable time to prepare for trial. These discovery rules promote fair trials. Once discoverable material is requested, an attorney has a duty to comply with the request regardless of the advantage a surprise may bring. Williams v. Dixie Elec. Power Ass’n, 514 So.2d 332, 335 (Miss. 1987) (citing Harris v. Gen. Host Corp., 503 So.2d 795, 797 (Miss.1986); Tolbert v. State, 441 So.2d 1374, 1375 (Miss.1983)). See also K-Mart Corp. v. Hardy ex rel. Hardy, 735 So.2d 975, 986(34) (Miss.1999); State Highway Comm’n of Miss. v. Jones, 649 So.2d 201, 203 (Miss.1995). As mentioned, Dr. Richardson’s report was not disclosed prior to the point in trial when Haggerty sought to introduce it. This Court has stated “[t]he standard of review regarding admission of evidence is abuse of discretion. Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party.” Floyd v. City of Crystal Springs, 749 So.2d 110, 113(12) (Miss.1999). “In regard to matters relating to discovery, the trial court has considerable discretion. The discovery orders of the trial court will not be disturbed unless there has been an abuse of discretion.” Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992).

¶ 36. In Robert v. Colson, 729 So.2d 1243, 1246 (Miss.1999), this Court found that Rule 26 of the Mississippi Rules of Civil Procedure provides for seasonable supplementation of answers. This Court has held “seasonable supplementation” to mean soon after new information is known and far enough in advance of trial for the other side to prepare. Decisions addressing what constitutes a seasonable supplementation focus on the necessity to avoid unfair surprise at trial. See, e.g., Foster v. Noel, 715 So.2d 174, 182-83 (Miss.1998) (stating Rule 26 requires strict compliance to avoid unfair surprise); Wesi v. Sanders Clinic for Women, P.A., 661 So.2d 714, 721 (Miss.1995) (affirming trial court’s exclusion of certain expert testimony elicited at trial but not found in answers to interrogatories and stating seasonable supplementation requires supplementation when new information renders initial response inadequate); Motorola Communications & Elecs., Inc., v. Wilkerson, 555 So.2d 713, 717-18 (Miss.1989) (requiring seasonable disclosure give enough time to prepare for trial); Jones v. Hatchett, 504 So.2d 198 (Miss.1987) (stating purpose of our civil discovery procedures is to prevent trial by ambush).

¶ 37. The trial court inquired and Hag-gerty’s counsel admitted that they had inadvertently failed to disclose to Foster’s counsel any information regarding Hag-gerty’s visit to Dr. Richardson, despite Foster’s request for all information regarding doctor visits. The jury viewed Haggerty’s scar and was able to determine for themselves the extent of permanent disfigurement. Therefore, we conclude that the trial judge did not abuse his discretion in refusing to allow the evidence regarding Dr. Richardson. Haggerty was not prejudiced by its exclusion; the jury still got the information she wished to convey through the doctor’s report. Conversely, had the report been admitted into evidence, Foster would have been prejudiced. He would have been unable to depose or cross-examine Dr. Richardson regarding the contents of the report. In addition, though Foster did not object on this ground, the trial judge noted that Dr. Richardson would not be testifying at trial and any rendition of what he told Haggerty would have been hearsay.

¶ 38. This assignment is without merit.

IY. WHETHER THE CIRCUIT COURT ERRED IN OVERRULING HAGGERTY’S OBJECTION TO FOSTER’S CLOSING ARGUMENT ON ACCIDENT RECONSTRUCTION.

¶ 39. In closing argument, Foster’s counsel used paper cups to represent vehicles as he exhibited photographs C and D from Defendant’s Exhibit 1. He argued that these photographs demonstrated that Haggerty had just entered the turn lane when the accident occurred because there was more damage to the left front side of her vehicle than to the right. He used the cups to represent the two automobiles and to show why the damage to the front left side of Haggerty’s vehicle indicated that she was still in the process of entering the turn lane when the accident occurred. Therefore, he argued,. Foster was not at fault because the accident was unavoidable. Haggerty’s counsel objected, arguing that Foster’s counsel is not an expert on accident reconstruction and since no expert testimony to that effect was produced at trial use of the cups was improper. The trial court overruled the objection and allowed the reconstruction argument.

¶ 40. Haggerty alleges this argument was improper. She cites Fielder v. Magnolia Beverage Co., 757 So.2d 925 (Miss.1999), for the proposition that only a qualified accident reconstructionist may give opinions about the causation of an accident. She argues that without Foster’s theory or evidence being proffered or supported by an accident reconstructionist expert (and it was not), Foster’s counsel should not have been allowed to make such a reconstruction in closing argument.

¶41. Attorneys are allowed wide latitude in closing arguments. Holly v. State, 716 So.2d 979, 988 (Miss.1998); Wilcher v. State, 697 So.2d 1087, 1110 (Miss.1997). In addition, the “court should also be very careful in limiting free play of ideas, imagery, and personalities of counsel in their argument to [a] jury.” Ahmad v. State, 603 So.2d 843, 846 (Miss.1992). Any alleged improper comment must be viewed in context, taking the circumstances of the case into consideration. Id. The trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect, Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990), and a “trial judge has wide discretion in controlling the remarks and argument of attorneys.” Gen. Motors Acceptance Corp. v. Layton, 353 So.2d 749, 754 (Miss.1977).

¶ 42. The trial judge determined that the demonstration was permissible argument and noted that Haggerty’s counsel could “counter that with logic.... ” In his closing argument, Haggerty’s counsel did indeed argue his own theory of how the accident occurred, including why the front left fender of Haggerty’s car was more damaged. Given the wide latitude afforded attorneys in closing argument and the discretion which trial judge’s are required to exercise, no abuse of that discretion occurred here. Moreover, Haggerty has not demonstrated that allowing the “reconstruction” caused her prejudice. She rebutted the defense’s explanation of the damage to her vehicle with her own explanation and the jury was allowed to decide which was more plausible. Absent a showing of abuse of discretion and prejudice, this Court will defer to the trial court’s judgment.

¶ 43. This assignment is without merit.

Y. WHETHER THE TRIAL COURT ERRED IN DENYING HAGGERTY’S MOTION FOR A NEW TRIAL OR, ALTERNATIVELY, JUDGMENT NOT WITHSTANDING THE VERDICT.

¶ 44. When reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict, this Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 720 (Miss.2001). If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, this Court is required to reverse and render. Id. at 720. However, if there is substantial evidence in support of the verdict, such that evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, this Court is required to affirm. Id. (citing Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993)); Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997); Misso v. Oliver, 666 So.2d 1366, 1375-76 (Miss.1996); Am. Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390-91 (Miss.1995). When conflicting testimony exists, the jury determines the weight and worth of the witnesses’ testimony and credibility at trial. Wallace v. Thornton, 672 So.2d 724, 727 (Miss.1996). Reversal of a jury verdict is not warranted unless it is against the overwhelming weight of the evidence and credible testimony. Id.

¶ 45. The standard for granting a new trial is as follows: “On a motion for a new trial, the trial judge should set aside a jury’s verdict when, in the exercise of his sound discretion, he is convinced that the verdict is contrary to the substantial weight of the evidence.” McKinzie v. Coon, 656 So.2d 134, 138 (Miss.1995) (citing Wells Fargo Armored Serv. Corp. v. Turner, 543 So.2d 154, 158 (Miss.1989)). When determining whether a trial court erred in refusing a new trial, this Court reviews for abuse of discretion. Am. Fire Protection, Inc., 653 So.2d at 1390.

¶ 46. The circuit judge did not abuse his discretion in denying a judgment notwithstanding the verdict or a new trial. Viewing the evidence in the light most favorable to Foster, it cannot be said that the facts point so overwhelmingly in favor of Haggerty that reasonable men could not have arrived at a contrary verdict. Foster presented evidence supporting his theory that the accident was unavoidable. He submitted photographs of the damage to both vehicles and articulated a plausible theory of why the damage to both resulted as it did. This theory supported his version of how the accident occurred: Hag-gerty entered the turn lane after Foster began crossing it.

¶ 47. Though Haggerty also presented a theory of how the accident occurred, both theories were reasonable and the jury was entitled to decide which to credit. Wolfson testified that both he and Foster looked to make sure that no vehicles were coming and that Foster was driving carefully. Both Foster and Wolfson testified that the lane was clear. Though it might be argued that Wolfson is Foster’s employee and therefore biased, this argument goes to the weight of his testimony and was obviously resolved by the jury in favor of believing him. Haggerty testified that she hit Foster’s vehicle without having time to apply her brakes. She also testified that she did not see Foster until she hit him. Though she testified that she hit Foster head-on, the photographs introduced at trial indicate the collision may have occurred in a manner consistent with Foster’s version.

¶ 48. In short, given the deference that is afforded a jury’s verdict when, as here, the evidence presented at trial conflicts and is capable of more than one interpretation, it cannot be said that the trial court erred in refusing to grant a judgment notwithstanding the verdict or a new trial.

¶ 49. This assignment is without merit.

CONCLUSION

¶ 50. We find no merit to the errors that Haggerty assigns. The trial court’s judgment is affirmed.

¶ 51. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.

      . Ormon told the court that she had a problem with lawyers who advertise on television.

      . Haggerty's doctor was not present at trial; however, his deposition was read into evidence.

      . The substance of the doctor’s testimony is not disclosed in the record; however, since Haggerty has not alleged in her brief that testimony regarding the doctor’s interpretation of her MRI results was not before the jury, we assume that it was.

      . The trial judge, Judge Kosta N. Vlahos, seemed very hostile to this Court throughout the trial, commenting derogatorily several times on decisions of this Court. His grounds for sustaining this objection were unclear. It appears from the record that he did so because the doctor's visit was not disclosed in discovery and, as an after thought, specifically speaking to this Court, on hearsay grounds because the doctor was not to be called to testify.

      . Albeit, other than the photographs already in evidence, void of demonstrative aids.