author:
SMITH, Presiding Justice,
      McRAE, PRESIDING JUSTICE,

text:
    ENTERGY MISSISSIPPI, INC. v. Brenda BOLDEN.
    No. 2002-CA-00265-SCT.
    Supreme Court of Mississippi.
    Sept. 25, 2003.

      James Lawton Robertson, Jackson, Laura G. McKinley, Attorneys for Appellant.
    Richard Benz, Jr., Attorney for Appel-lee.
   SMITH, Presiding Justice,

for the Court:

¶ 1. Brenda A. Bolden (“Bolden”) brought suit against Entergy Mississippi, Inc. (“Entergy”) on April 1, 1998, in the Circuit Court of Sunflower County. The first trial ended in a mistrial. Thereafter, in the second trial a jury awarded Bolden $532,000 on November 14, 2001, and judgment was entered accordingly. The trial court denied Entergy’s motion for judgment notwithstanding the verdict, or for a new trial or remittitur. Aggrieved, Enter-gy appeals to this Court.

FACTS

¶ 2. This case arose out of a motor vehicle accident in Sunflower County on July 1, 1997. Bolden was traveling north on B.B. King Road, and W.L. Strawbridge (“Strawbridge”), an Entergy employee, was traveling south on B.B. King Road. Strawbridge made a left turn in front of Bolden onto Lynbar Street when Bolden struck his Entergy truck. There was no testimony by Strawbridge at the trial. A corporate representative was sent by En-tergy. There was disputed testimony whether Bolden was speeding. In her deposition she said she was traveling 35 miles per hour, and at trial she stated that she was going 20 miles per hour. However, the accident report stated that she was traveling 20 miles per hour. The speed limit was 25 miles per hour. There is no evidence that Strawbridge used his turn signal to indicate to Bolden that he was making, a left turn. By all accounts the day was bright and clear, and there was nothing to obstruct Bolden’s view. As the Entergy truck was turning left, Bolden’s Ford struck it.

¶ 8. Bolden sustained injuries to the left side of her body including her knee, shoulder and ankle. She underwent surgery on July 22, 1997, to repair her left knee. Dr. J.O. Manning said she had a prior basketball injury to that knee in 1983. Ankle surgery was performed on August 14, 2000, by Dr. George Wood, II.

¶ 4. Due to her injuries Bolden was unable to go back to her job as a security officer and had lost wages of $9,600. Her total medical expenses were $31,686.06. Dr. Paul Williams assigned a 15% impairment to the left knee and 10% impairment to the left ankle. Dr. Manning testified that he felt that Dr. Williams’s impairment ratings were low. Dr. Williams recommended in June of 1998 that Bolden go back to work. He further stated that she was more at risk to develop arthritis.

¶ 5. Entergy raises the following issues on appeal:

I. WHETHER THE LOWER COURT ERRED IN INSTRUCTING THE JURY THAT STRAWBRIDGE “AS A MATTER OF LAW WAS NEGLIGENT AND THEREFORE ENTERGY MISSISSIPPI, THROUGH THE ACTIONS OF W.L. STRAWBRIDGE WAS NEGLIGENT.”

II. WHETHER THE LOWER COURT ERRED IN NOT INSTRUCTING THE JURY CONCERNING A SPECIAL HAZARD.

III. WHETHER THE LOWER COURT ERRED IN REFUSING TO ISSUE A CONTRIBUTORY NEGLIGENCE INSTRUCTION.

IY. WHETHER THE LOWER COURT ERRED IN FAILING TO GRANT ENTERGY A REMITTI-TUR, OR, IN THE ALTERNATIVE, A NEW TRIAL ON THE ISSUE OF DAMAGES.

V. WHETHER BOLDEN’S CLOSING ARGUMENT WAS PROPER.

STANDARD OF REVIEW

¶ 6. There are several standards of review that must be used in analyzing the issues in this appeal. First, when reviewing jury instructions on appeal, we must read them as a whole. Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 968 (Miss.1999). While a party is entitled to have jury instructions submitted that represent his or her theory of the ease, an instruction that “incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence” need not be submitted to the jury. Humphrey v. State, 759 So.2d 368, 380 (Miss.2000). This Court will not find reversible error where the instructions actually given, when read together as a whole, “fairly announce the law of the case and create no injustice.” Coleman v. State, 697 So.2d 777, 782 (Miss.1997) (citing Collins v. State, 691 So.2d 918, 922 (Miss.1997)). Moreover, the standard of review of jury verdicts is as follows:

Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.

Id. (citing Bell v. City of Bay St. Louis, 467 So.2d 657, 660 (Miss.1985)).

¶ 7. The standard of review for whether a peremptory instruction should be granted is the same as the standard for a directed verdict. Herrington v. Spell, 692 So.2d 93, 97 (Miss.1997). The standard of review in cases where a directed verdict has been granted is as follows: “[t]his Court conducts a de novo review of motions for directed verdict.... If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted.” Pace v. Fin. Sec. Life of Miss., 608 So.2d 1135, 1138 (Miss.1992) (citation omitted). Additionally, this Court has held that “[a] trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree.” Vu v. Clayton, 765 So.2d 1253, 1254 (Miss.2000) (quoting Vines v. Windham, 606 So.2d 128, 131 (Miss.1992)).

DISCUSSION

I. WHETHER THE LOWER COURT ERRED IN INSTRUCTING THE JURY THAT STRAW-BRIDGE “AS A MATTER OF LAW WAS NEGLIGENT AND THEREFORE ENTERGY MISSISSIPPI, THROUGH THE ACTIONS OF W.L. STRAWBRIDGE WAS NEGLIGENT.”

¶ 8. A directed verdict was granted in favor of Bolden on the issue of the negligence of the Entergy driver. Based on the standard of review discussed herein, the trial court determined that the evidence was so overwhelmingly in favor of Bolden on this issue that Entergy was negligent, and a peremptory instruction was granted. When reviewing requests for peremptory instructions, we consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). Our rules and case law allow for questions to be removed from the jury’s consideration when there exists no factual question for it to resolve. M.R.C.P. 50(a) & cmt. See also Mayor & Bd. of Aldermen of the City of Vicksburg v. Young, 616 So.2d 883, 886-87 (Miss. 1992); Hasson v. Hale, 555 So.2d 1014, 1016 (Miss.1990); Bryant v. Alpha Entertainment Corp., 508 So.2d 1094, 1096-97 (Miss.1987).

¶ 9. Bolden submits that a reasonable jury could not have found that Entergy was not negligent based upon the actions of its agent. Herrington v. Spell, 692 So.2d at 97. We agree. No reasonable juror could have concluded from the evidence presented that Strawbridge was not negligent. Unrebutted testimony established that Strawbridge was negligent in crossing in front of Bolden at the intersection where the collision occurred. No contrary evidence was placed in the record to make this a fact question for the jury.

¶ 10. An accident description in Enter-gy’s accident adjuster’s report stated, “En-tergy driver made a left turn in front of other vehicle that had the right-of-way. We failed to yield right-of-way.” The motor vehicle report from the Indianola Police Department stated, “(Entergy) driver stated that he didn’t see (Bolden) and cut across in front of (Bolden) causing the collision.” Both of these reports were admitted into evidence. Strawbridge’s supervisor even testified that he agreed with the Entergy adjuster’s report concerning Strawbridge’s negligence.

¶ 11. The jury instructions left room for the jury to determine the proximate cause of the accident and apportion damages with respect to the amount of fault due to each party’s negligence. The trial court did not err in instructing the jury that Strawbridge was negligent as a matter of law and that, therefore, Entergy was negligent through Strawbridge’s actions.

II. WHETHER THE LOWER COURT ERRED IN NOT INSTRUCTING THE JURY CONCERNING A SPECIAL HAZARD.

¶ 12. At trial, Entergy requested that the court submit Instruction D-3 to the jury. This instruction stated that the “driver or operator of any motor vehicle is under a duty to decrease the speed of their vehicle [sic] when approaching and crossing an intersection, or when a special hazard exists with respect to pedestrians or other traffic.” The court refused Instruction D-3. However, the trial court accepted Entergy’s Instruction D-2, which stated that “[t]he operator of a motor vehicle has ... a duty to reduce their speed [sic] when approaching an intersection.” In its brief, Entergy states that two important elements exist in Instruction D-3 which are absent from Instruction D-2 and all other instructions submitted to the jury: (1) a motorist has the duty to reduce her speed when a special hazard .exists; and (2) a motorist’s duty to decrease speed when faced with a special hazard is a function of statute and failure to comply with the statute is negligence as a matter of law.

¶ 13. In support of its proposed instruction, Entergy cites Miss.Code Ann. § 63-3-505. This section of the Mississippi Code sets out the duty of a motorist with regard to special hazards:

[T]he driver or operator of any motor vehicle must decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic....

Miss.Code Ann. § 63-3-505 (Rev.1996) (emphasis added). We have had numerous opportunities to interpret this statute, but only one of our decisions focuses on the existence of a “special hazard” within the meaning of § 63-3-505.

¶ 14. In Bullock v. Sim Ramsey, Jr. Trucking Co., 207 So.2d 628, 629 (Miss.1968), the plaintiffs were driving their automobile southbound in the left-hand lane of Interstate 55. As they crossed a bridge on the highway, the plaintiffs approached the scene of an automobile accident. Id. The plaintiffs saw the emergency lights of a highway patrol car and a police car, which were both facing north. Id. In addition, the plaintiffs saw a police officer in the roadway flashing a red light. Id. Seeing the emergency vehicles and the police officer in the roadway, the plaintiffs drove their car into the right-hand lane and slowed down to a speed of only a few miles per hour. Id. Just as the plaintiffs’ car was parallel to one of the wrecked cars in the left-hand lane, the defendant approached the scene from behind the plaintiffs’ car. Id. Unable to stop his truck, the defendant attempted to drive his truck between the plaintiffs’ automobile and one of the wrecked cars obstructing the left-hand lane. Id. The resulting collision between the defendant’s truck and the plaintiffs’ automobile injured the plaintiffs. Id. The plaintiffs alleged that the defendant was driving his truck at an excessive rate of speed and that there were special hazards present at the time and place of the collision. Id. We held that the plaintiffs’ declarations were “sufficient to state a cause of action, and that cause was shown by the proof offered.” Id.

¶ 15. Here, the thrust of Entergy’s argument on this point is that a vehicle poses a special hazard within the meaning of Miss.Code Ann. § 63-3-505 where the driver of the vehicle is “looking for a street with which he may not be familiar, and who may be momentarily inattentive to other traffic.” The Legislature did not provide a definition of the phrase “special hazard” as it is used in § 63-3-505, and this Court has not delineated the precise scope of that language. However, we have never held, and the statute does not provide, that a momentarily inattentive driver is a special hazard for which another driver must reduce speed. Moreover, a comparison of the facts in this case to those presented in Bullock makes it readily apparent that the Entergy truck here was not a special hazard. In Bullock, there were emergency vehicles in the median and a police officer on the roadway. The emergency lights on the highway patrol and police cars were illuminated as the plaintiffs approached the accident scene. The police officer was flashing a red light in the center of the interstate. Moreover, there were disabled cars obstructing the left-hand lane of the interstate. Furthermore, at the time of the accident, the plaintiffs’ vehicle was traveling at a rate of only a few miles per hour due to the existing accident. The record here, however, is devoid of extreme facts like those present in Bullock — that is, in this case, there were no stalled or wrecked vehicles obstructing the roadway, no emergency vehicles, no emergency lights, etc. The facts here are clearly distinguishable from those presented in Bullock.

¶ 16. The evidence in this case does not support the requested instruction regarding special hazards. Since a party is not entitled to a jury instruction that is not supported by the evidence, Entergy was not entitled to have Instruction D-3 submitted to the jury, and the trial judge therefore did not err in refusing the proposed instruction.

III. WHETHER THE LOWER COURT ERRED IN REFUSING TO ISSUE A CONTRIBUTORY NEGLIGENCE INSTRUCTION.

¶ 17. Entergy argues that the trial court erred in refusing to grant a contributory negligence jury instruction. Entergy contends that Rule 49(c) of the Mississippi Rules of Civil Procedure authorizes a trial court to submit special interrogatories to the jury; therefore, En-tergy maintains that the trial court in this case erred when it refused to accept En-tergy’s special interrogatory, Instruction D-15. However, Entergy offers no authority to support this position.

¶ 18. We have consistently held that “an argument unsupported by cited authority need not be considered by the Court.” Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124, 1136 (Miss.2002). In addition, we have expressly held that “[i]t is the duty of an appellant to provide authority in support of an assignment of error.” Jones v. Howell, 827 So.2d 691, 702 (Miss.2002). Where an assertion of error is not supported by authority, that assertion is deemed abandoned. Id. This Court is therefore procedurally barred from considering unsupported assertions on appeal. Webb v. DeSoto County, 843 So.2d 682, 685 (Miss.2003).

¶ 19. Here, Entergy failed to meet its burden under our existing case law. In assigning as error the trial court’s failure to allow Instruction D-15, Entergy assumed the obligation of presenting to this Court some type of legal authority in support of that position. In its brief, Entergy simply declares that “such an instruction was clearly authorized. Rule 49(c), Miss. R. Civ. P.,” referring to the proposed contributory negligence instruction. While Entergy correctly cites the controlling rule regarding special interrogatories, it offers no authority in support of its assertion that the trial court erred in this case. Merely pointing out that our Rules of Civil Procedure authorize the submission of special interrogatories in no way supports the contention that the trial court erred in refusing to allow Instruction D-15. In sum, because Entergy cites no supporting authority for its assertion that the trial court erred when it refused the special interrogatory, Instruction D-15, we are procedurally barred from considering this issue on appeal.

IV. WHETHER THE LOWER COURT ERRED IN FAILING TO GRANT ENTERGY A RE-MITTITUR, OR, IN THE ALTERNATIVE, A NEW TRIAL ON THE ISSUE OF DAMAGES.

¶ 20. There are no fixed standards as to when an additur or remittitur is proper. Leach v. Leach, 597 So.2d 1295, 1297 (Miss.1992). Therefore, we proceed on a case-by-case basis in determining whether a jury award is excessive. Biloxi Elec. Co. v. Thorn, 264 So.2d 404, 405 (Miss.1972). We will not disturb a jury’s award of damages unless its size, in comparison to the actual amount of damage, shocks the conscience. City of Jackson v. Locklar, 431 So.2d 475, 481 (Miss.1983). The standard of review for the denial of a remittitur is abuse of discretion. Odom v. Roberts, 606 So.2d 114, 121 (Miss.1992). A remittitur is appropriate when either (1) the jury or trier of fact was influenced by bias, prejudice, or passion, or (2) the damages were contrary to the overwhelming weight of the evidence. Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 944 (Miss.1992). “The bias, prejudice or passion standard is purely a circumstantial standard[.]” Cade v. Walker, 771 So.2d 403, 407 (Miss.Ct.App.2000). “[EJvidence of corruption, passion, prejudice or bias on the part of the jury (if any) is an inference ... to be drawn from contrasting the amount of the verdict with the amount of the damages.” Rodgers, 611 So.2d at 944-45.

¶ 21. It is clear from the record that the most generous award of special damages would result in Bolden obtaining roughly $41,286.00. The total awarded in this case adds almost $500,000 to that sum for future pain and suffering. A remittitur is proper if the jury verdict evinces bias, passion or prejudice. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 485 (Miss.2002). See also J.O. Hooker & Sons, Inc. v. Roberts Cabinet Co., 683 So.2d 396 (Miss.1996); Terex Corp. v. Ingalls Shipbuilding, Inc., 671 So.2d 1316 (Miss.1996). A remittitur is appropriate if there is insufficient proof to support the award of damages. Cade, 771 So.2d at 406. The plaintiff has the burden of proving her damages by a preponderance of the evidence. TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1016 (Miss.1997). When the amount of the verdict evinces passion, prejudice or bias, it is the duty of this Court to order a remitti-tur. Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216, 225 (Miss.1969). We conclude that the scant testimony offered in support of damages for pain and suffering does not justify such a large award of damages for pain and suffering. The size of the award here, given the facts of the case at bar, “shocks the conscience” of this Court. As such, we hold that the trial court abused its discretion in failing to grant Entergy a remittitur reducing the verdict from $532,000 to $232,000.

V. WHETHER BOLDEN’S CLOSING ARGUMENT WAS PROPER.

¶ 22. Entergy claims that Bol-den’s closing arguments were wholly unsupported by facts in evidence and were designed to incite bias, passion, or prejudice on the part of the jury. This Court has continually held that counsel is afforded broad latitude in closing argument. Berry v. State, 703 So.2d 269, 281 (Miss.1997). This latitude is set out by the Court in Nelms & Blum Co. v. Fink, 159 Miss. 372, 382-383, 131 So. 817, 820 (1930). However, an issue is waived on appeal where there was no contemporaneous objection. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992). There was no objection made at trial by Entergy’s trial counsel, Mr. Perkins. However, “[i]n order to reverse under the plain error doctrine, the reviewing court must find both error and harm.” Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 727 (Miss.2001); Dobbins v. State, 766 So.2d 29, 31 (Miss.Ct.App.2000); Riggs v. State, 744 So.2d 365, 372 (Miss.Ct.App.1999). Since there was no objection made in this case, the error, if any, is harmless.

¶ 23. The Fifth Circuit has called “the use of the closing arguments to bring before the jury damaging facts not in evidence and never established a particularly indefensible tactic.” Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 284 (5th Cir.1975). The Fifth Circuit further held that “where placing material facts not in evidence before the jury in final argument substantially prejudices a party, reversal is required.” Id. at 285.

¶ 24. The statements that Enter-gy claims are in error here consist of the statement in closing that Bolden’s knee is more at risk for arthritis. However, in Dr. Williams’s testimony he stated that Bolden was more at risk to develop arthritis. Also, Entergy argues that mentioning Bol-den’s property damage to her car was error because this had been previously settled. This is harmless error. No amount was even mentioned regarding the value of the car.

¶ 25. Entergy further claims that it was error for Bolden’s counsel to assert that Bolden suffers with every step. However, the jury was instructed that what the attorneys said was not evidence. The jurors had heard all of the evidence, including doctors’ testimony, and could decipher that evidence.

¶ 26. Under the plain error doctrine, this is not clear error and certainly not harmful.

CONCLUSION

¶ 27. For these reasons, we conclude that only Entergy’s assignment of error regarding damages is well taken. We remit the judgment from $532,000 to $232,000, and affirm the judgment as remitted to $232,000, provided this remitted judgment is accepted by Brenda Bolden within ten (10) days of the final judgment of this Court. Otherwise, the judgment is vacated, a new trial confined to the issue of damages is granted, and the case is remanded for such. Should Bolden accept the remittitur, the principal sum of $232,000 will be payable together with interest at the legal rate from the date of the original judgment. On all other issues, we affirm the trial court.

¶ 28. AFFIRMED AS TO LIABILITY; JUDGMENT REMITTED FROM $532,000 TO $232,000, AND AFFIRMED AS REMITTED, CONDITIONED ON ACCEPTANCE BY BRENDA BOLDEN WITHIN 10 DAYS OF THE FINAL JUDGMENT OF THIS COURT. OTHERWISE, THE JUDGMENT IS VACATED, AND THE CASE IS REMANDED FOR A NEW TRIAL AS TO DAMAGES ONLY.

PITTMAN, C.J., WALLER, COBB AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J. DIAZ, J., NOT PARTICIPATING.

McRAE, PRESIDING JUSTICE,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 29. I agree with the majority’s findings concerning Jury Instruction 5 (or P-9), which is essentially a peremptory instruction and/or directed verdict concerning negligence, and its findings regarding the trial court’s failure to grant Instruction D-15, which amounts to a contributory negligence instruction. I write separately on these issues only to flesh them out more in depth. However, since I disagree with the majority’s finding as to the jury’s verdict on damages, I also dissent.

¶ 30. Entergy argues that the trial court erred by allowing instruction P-9, which is essentially a peremptory instruction and/or directed verdict concerning negligence. This argument fails for a couple of reasons. The trial court found that, based on the evidence, it was undisputed that Strawbridge, Entergy’s employee, was the negligent party. “The standard of review for whether a peremptory instruction should be granted is the same as the criteria for a directed verdict.” Pickering v. Industria Masina I Traktora (IMT), 740 So.2d 836, 842 (Miss.1999) (citing Her-rington v. Spell, 692 So.2d 93, 97 (Miss.1997); Wilner v. Miss. Export R. Co., 546 So.2d 678, 681 (Miss.1989)). We have stated that:

Miss R.Civ.P. 50 requires the trial court to take a case from a jury and grant a directed verdict if any verdict other than the one directed would be erroneous as a matter of law. The comment to the Rule instructs the trial court to look “solely to the testimony on behalf of the opposing party; if such testimony, along with all reasonable inferences which can be drawn therefrom, would support a verdict for that party, the case should not be taken from the jury.” Kussman v. V & G Welding Supply, Inc., 585 So.2d 700, 702 (Miss.1991).

McKinzie v. Coon, 656 So.2d 134, 137 (Miss.1995). “If the facts so considered point so overwhelmingly in favor of the movant that reasonable men could not have arrived at a contrary verdict, then the peremptory instruction should be granted.” Pickering, 740 So.2d at 843 (citing McMillan v. King, 557 So.2d 519, 522 (Miss.1990)). The evidence to support a peremptory instruction included: (1) The unrefuted testimony of Bolden that Straw-bridge did not have his left turn signal on; (2) The fact that both Entergy’s and the Police Department’s reports show that Strawbridge failed to yield and turned left at the intersection; (3) The unrefuted evidence and testimony presented that Bol-den had no opportunity to avoid the accident; (4) The fact that Strawbridge was in town the day of the trial, but did not appear to rebut any testimony or evidence; and (5) The fact that according to the traffic laws Bolden had the right of way and that Strawbridge had the statutory duty to signal his turn and yield to traffic with the right of way. Miss. Code Ann. §§ 63-3-133, 63-3-703, 63-3-707, 63-3-709, & 63-3-803. Based on this evidence there can be no doubt that Strawbridge’s negligence caused the accident. There is no dispute of facts concerning the details of the accident, and Strawbridge and En-tergy, through its own accident report, admit to fault.

¶ 31. Entergy argues that since there is a dispute as to whether Bolden was going ten to fifteen miles over the speed limit, there is justification for a denial of the peremptory instruction and/or directed verdict. As we have stated in other cases “[o]nly by stretching testimony beyond imagination is it possible that reasonable jurors could have reached [a] different verdict.” McKinzie, 656 So.2d at 141. “The only way that the trial court could have concluded that an issue of fact existed concerning [Bolden’s] contributory negligence was by building a tower of inferences on [a] slender reed of testimony.” Vines v. Windham, 606 So.2d 128, 131 (Miss.1992).

¶ 32. Additionally, a party may not object to a jury instruction at the appellate level without having raised that issue at the trial court level. As we have stated “[fjailure to make a contemporaneous objection and allow the trial court the opportunity to cure the defect is a procedural bar and constitutes waiver of the argument on appeal.” Haggerty v. Foster, 838 So.2d 948, 954 (Miss.2002) (quoting Gatlin v. State, 724 So.2d 359, 369 (Miss.1998)). A close look at the record shows that trial counsel for Entergy, Mr. Perkins, never objected to the peremptory instruction and never raised that issue in the Motion for Judgment Notwithstanding the Verdict, Motion for Remittitur, or in the alternative, Motion for a New Trial on the issue of Damages. The trial transcript reflects the following:

By the Court: All right, let’s look at 1, 4, 9, and 5. The difference between 4 and 9 is that in P-9—
By Mr. Patton: The number Paragraph 3 is inserted.
By the Court: As a matter of law, basically a directed verdict for Straw-bridge was negligent and therefore Entergy was negligent. And then it goes to Paragraph 5. Then if you find by a preponderance the negligence was a proximate contributing cause, if any, then you shall return a verdict against Entergy Mississippi.
By Mr. Benz: So as I see that, it allows them to talk about 35. It also does not direct a verdict concerning the damages which was one of the objections we had to P-1, I though. So that leaves them open to argue whether or not damages were caused — I think that’s not refuted, but anyway—
By Mr. Patton: It still leaves it open.
By Mr. Benz: It still leaves those two open which cures the two objections as I understood in P-1.
By the Court: Mr. Perkins can still argue that she was speeding and that her speeding was a contributing cause.
By Mr. Patton: Correct.
By the Court: All right, Mr. Perkins, any comment?
By Mr. Perkins: We accept P-9.
By the Court: P-9
By Mr. Benz: With that, then we will withdraw P-1, 4 and 5.
By the Court: On P-9, shouldn’t you take out WL Strawbridge?
By Mr. Benz: Yes, Sir.
By Mr. Patton: That’s correct.
By Mr. Benz: In the last sentence.
By the Court: The last sentence should be against Entergy of Mississippi.
By Mr. Benz: I’ve got a big marker. Do you want me to go get it?
By the Court: I marked it out.

(emphasis added). As the record shows, Entergy did not object to instruction P-9. It acquiesced to its inclusion in the jury instructions. Furthermore, a review of the Motion and hearing on the JNOV, Remittitur, or in the alternative, Motion for a New Trial reflects that Entergy again failed to raise any issue or argument concerning instruction P-9.

¶ 33. Entergy argues that the trial court erred by failing to instruct the jury on the issue of contributory negligence. This argument too fails for a couple of reasons. Entergy cites no authority to support its position on this issue except Miss. R. Civ. P. 49(c). Rule 49(c) only permits a trial court, in its discretion, to submit to the jury a general verdict accompanied by interrogatories on one or more issue of fact. Miss. R. Civ. P. 49(c). This Rule certainly does not support an argument concerning contributory negligence. As this Court has stated many times, “[fjailure to cite any authority may be treated as a procedural bar, and we are under no obligation to consider the assignment.” McClain v. State, 625 So.2d 774, 781 (Miss.1993); Smith v. Dorsey, 599 So.2d 529, 532 (Miss.1992); R.C. Petroleum Co. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990); Read v. Southern Pine Elec. Power Ass’n., 515 So.2d 916, 921 (Miss.1987). Thus, I agree with the majority that this issue is procedurally barred by Entergy’s failure to cite supporting authority.

¶ 34. Additionally, a party is entitled to an instruction on contributory negligence only if it is supported by credible evidence. Haggerty, 838 So.2d at 955. Entergy presented no evidence tending to show that Bolden was contributorily negligent. The only evidence Entergy presented was evidence to rebut Bolden’s estimate of damages. Since Entergy failed to present any credible evidence to support an instruction on contributory negligence, the trial court did not err in refusing instruction D-15.

¶35. Also, two of the defendant’s instructions which were given to the jury permitted the jury to find Bolden contributory negligent. Instruction D-2, as given to the jury as Jury Instruction 7, stated that:

The Court instructs the jury that the operator of a motor vehicle has a duty to drive their automobile at a speed no greater than that which is reasonable and prudent under the circumstances then and there existing and not to exceed the posted speed limit, a duty to reduce their speed when approaching an intersection, a duty to keep a constant lookout in the direction of the travel of their vehicle for other vehicles using the roadway, and a duty to keep their vehicle under control at all times.
If you find by a preponderance of the evidence that Brenda Bolden drove her vehicle at a speed which was greater than that which was reasonable under the circumstances then and there existing or greater than the posted speed limit; failed to reduce her speed as she approached an intersection; failed to keep a proper lookout in her direction of travel; or failed to keep her vehicle under control, then Brenda Bolden was negligent.
If you further find that the negligence, if any, of Brenda Bolden was a contributing proximate cause of the accident, then it is your sworn duty to apportion fault between plaintiff and defendant.

Instruction D-7, as given to the jury as Jury Instruction 9, stated in relevant part that:

The Court instructs the jury that the plaintiff was under a duty after suffering harm, if any, to exercise care to take reasonable steps to avoid or diminish the damages resulting from that harm. You are further instructed that plaintiff is not entitled to damages for the harm that she could have avoided by the use of due care, nor for the harm which proximately resulted from her own conduct, if any, which contributed to her damages.

Both Jury Instruction 7 and 9 provided Entergy with its requested contributory negligence instruction. As this Court has stated many times, “if the instructions actually given fairly announce the law of the case and create no injustice when read as a whole, no reversible error will be found.” Reese v. Summers, 792 So.2d 992, 994 (Miss.2001) (citing Fielder v. Magnolia Beverage Co., 757 So.2d 925, 929 (Miss. 1999)) (collecting authorities). See also Rester v. Lott, 566 So.2d 1266, 1269 (Miss.1990). There can be no doubt that the jury was properly instructed on the issue of contributory negligence without the inclusion of instruction D-15, which only amounts to an interrogatory instruction and would only be repetition of Jury Instruction 7 and 9 as given to the jury (also known as D-2 and D-7).

¶ 36. Furthermore, when the trial court refused instruction D-15, and asked if there were any objection, counsel for En-tergy, Mr. Perkins, stated that he did not object. He acquiesced to the giving of a modified instruction P-8 which by its own language included the instructions and directives contained in instruction D-15. The transcript reflects the following:

By the Court: All right, form of the verdict. All right, that’s fíne. Okay, we’ve got P-8, which as amended would be just No. 1, “We find for the plaintiff and assess damages as follows.” and an amount for the verdict without, “We find for the defendant.” And then we have D-15 and 16. 15 is like a special interrogatory of some kind.
By Mr. Patton: Yes, sir, probably the one — cover what we’ve got;
By Mr. Benz: You have to take out No. 1.
By the Court: Are you talking about D-15?
By Mr. Patton: Yes, sir.
By Mr. Benz: You have to take out Paragraph 1, and you’ve instructed them that they were.
By the Court: Then you get to what’s marked second paragraph, “Was the plaintiff, Brenda Bolden, negligent? Yes or no. What percentage?” But then you have to get to a form of the verdict.
By Mr. Patton: We have to get some money on there or opportunity to give money.
By the Court: I would rather, to keep it simple for the jury, I think when we start throwing these questionnaires back there, I think on closing, you can use that. You can argue that. But I think the thing to do is use P-8 or either P-8 or P-16, depending on which one you want to mark up, and just take out two and just have a blank for the plaintiff.
By Mr. Perkins: Your Honor, we want the jury instruction to give them a right to find for the defendant without by implication.
By the Court: Well, that’s my problem is that for them to find for the defendant when I have already ruled that they were negligent as a matter of law, I’m not sure how the could do that. They are going to have to— They are going to have to say that the defendant was negligent as a matter of law, but that plaintiffs negligence contributed to such an extent that her damages are zero. That’s how I am reading it.
By Mr. Benz: Remember, there is D-2 that says, that instructs them they may apportion. If they apportion and they put the figure down on D-16 or P-8, , whichever it be.
By the Court: Well, I’m going to use P-8 and strike “or” and Paragraph 2. You’ve got the apportionment. You can argue that, and then give that as amended.
That would be 16, form of the verdict. I’m going to refuse D-15 and D-16. That way I think everybody can argue what they need to argue....
Any objection to that?
By Mr. Benz: No, sir.
By the Court: Mr. Perkins?
By Mr. Perkins: No sir. Can we get a copy of that?

(emphasis added). By advising the trial court that it had no objection to the refusal of instruction D-15, Entergy effectively withdrew instruction D-15. Furthermore, even though Entergy’s JNOV Motion, Motion for a Remittitur, and in the alternative, Motion for a New Trial, raises as error the trial court’s refusal to allow instruction D-15; Entergy failed to address this point during the hearing on the motion, never mentioned anything about instruction D-15, and mainly argued for a remittitur or new trial on damages.

¶ 37. Lastly, as Entergy argued, the majority finds that the damages awarded were excessive and against the weight of evidence; therefore, it orders a remittitur or new trial. We have stated that:

We proceed on a case-by-case basis in determining whether a jury award is excessive. Biloxi Elec. Co. v. Thorn, 264 So.2d 404, 405 (Miss.1972).... [W]e have stated a very high standard of review.
The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, where they have no standard by which to ascertain the excess.
Detroit Marine Eng’ v. McRee, 510 So.2d 462, 471 (Miss.1987) (citing Biloxi Elec., 264 So.2d at 405). Furthermore, “[t]he only evidence of corruption, passion, prejudice or bias on the part of the jury is an inference, if any, to be drawn from contrasting amount of the verdict with the amount of damages.” Biloxi Elec., 264 So.2d at 406. Evidence is viewed in the light most favorable to the verdict and all reasonable inferences are given thereof. Odom v. Roberts, 606 So.2d 114, 118 (Miss.1992). In essence, we will not disturb a jury’s award of damages unless its size, in comparison to the actual amount of damage, “shocks the conscience.” City of Jackson v. Locklar, 431 So.2d 475, 481 (Miss.1983). In James v. Jackson, 514 So.2d 1224 (Miss.1987), we enumerated the elements of damages which must be examined for evidence of bias. They are (1) past and future pain and suffering; (2) past and future medical expenses; (3) lost wages; and (4) future disability. Id.

Purdon v. Locke, 807 So.2d 373, 377 (Miss.2001). Bolden incurred $31,686.06 in medical bills to date. However, testimony indicates that she will more than likely incur future medical expenses to maintain and correct future problems associated with her knee, ankle, and shoulder injuries which resulted from the accident. Bolden documented lost wages in the amount of $9,600. These two amounts total $41,286.06. As a result of the wreck Bol-den reinjured her knee which caused painful swelling and later required surgery and physical therapy. She injured her ankle which required surgery, physical therapy, and the use of a brace. Bolden also injured her shoulder which required her to wear a sling. As a result of these injuries, Bolden is still required to participate in physical therapy and perform home exercises. Physician testimony indicated that Bolden will likely develop arthritis in both her knee and ankle and will continue to walk with a limp. Physician testimony also established that she will likely be required to have another ankle surgery in the future. Bolden has two scars from the accident, one on her knee and one on her ankle. She will also have trouble walking on uneven ground, up and down stairs, and standing for a prolonged period of time. Bolden, as a thirty-two year old single mother, had trouble caring for her three children as a result of her injuries. She lost her home because she was unable to work and pay her bills and sank into depression. Bolden was assigned a permanent impairment rating of 15% to her left knee (75% of which was attributed to a pre-existing injury), 10% to her left ankle, and 10% to her entire body. All of these factors support the jury’s award of $532,000. There is no evidence of bias, prejudice, or passion.

¶ 38. Furthermore, a review of holdings concerning other jury verdicts, leads to the same conclusion. In Edwards v. Ellis, 478 So.2d 282 (Miss.1985), we examined whether a $80,000 jury award was excessive and the result of bias, passion, or prejudice. Ellis was injured in automobile accident. Id. at 289. He incurred $2,264.55 in medical bills and was given a 15% permanent impairment rating for his left arm. Id. The jury verdict was nearly forty times the medical damages. Id. In upholding the jury’s verdict, we found that in light of Ellis’s permanent impairment rating, the judgment was not excessive as to shock the conscience. Id. Then, in Locke, 807 So.2d 373, we examined whether a $500,000 jury award was excessive. Locke had underwent a directional coronary ath-erectomy (DCA) procedure during which a guide wire broke causing Locke to undergo emergency bypass surgery. Id. at 375-76.. Locke testified that he had extreme soreness and discomfort. Id. at 376. Locke’s medical bills totaled $47,000. Id. The jury verdict was almost fourteen times the amount of damages. In affirming the jury’s verdict, we found that “$450,000 [of the $500,000 award to Locke] represented pain and suffering ... such a figure does not shock the conscience.” Id. at 378. Again in Gatewood v. Sampson, 812 So.2d 212 (Miss.2002), we addressed whether a $308,000 jury award was excessive.. Sampson was shot in the back of the head while a patron at the Gatewood store during a robbery. Id. at 216-17. He suffered damages totaling $16,000, which included only $3,102.50 in medical expenses. Id. at 223. The jury’s verdict was thirty-eight times the amount of damages. Id. In upholding the jury verdict, we found that the award was not entirely disproportionate to the injuries suffered by Sampson. Id. Additionally, in Kroger Co. v. Scott, 809 So.2d 679 (Miss.Ct.App.2001), the Court of Appeals addressed whether a jury verdict in the amount of $74,000 was excessive and the result of bias, passion, or prejudice. Scott sustained injuries due to a slip and fall in Kroger: Id. at 682-83. Her total medical bills were $1,660.75. Id. at 682. The verdict was forty-five times the amount of actual damages. Id. at 684. In upholding the jury verdict, the court of appeals stated that “[d]ue to the uncertainty of the monetary value placed on pain and suffering and future damages, we have affirmed damages up to fifty-one times the actual damages shown.” Id. (citing Cade v. Walker, 771 So.2d 403, 409 (Miss.Ct.App.2000)). See also General Motors Corp. v. Pegues, 738 So.2d 746, 755 (Miss.Ct.App.1998).

¶ 39. Bolden proved a total of $41,286.06 in damages with more medical expenses expected in the future. She suffered from severe physical and emotional pain and was given a permanent impairment rating of 15% to her left knee (75% of which was attributed to a pre-existing injury), 10% to her left ankle, and 10% to her entire body. She will more than likely suffer from arthritis and be required to undergo more surgery in the future. She lost her home and was put under great strain as she is a single mother with three children who had no place to live and could not return to work. The jury verdict of $532,000 is around twelve times the amount of actual damages Bolden proved that she has already incurred. Clearly, the jury verdict does not “shock the conscience” and is not against the overwhelming weight of the evidence. Therefore, I would affirm the trial court’s judgment in its entirety.

¶40. For these reasons, I concur in part and dissent in part.

EASLEY, J., JOINS THIS OPINION.

      . See Conner v. Harris, 624 So.2d 482 (Miss.1993) and Gates v. Murphree, 286 So.2d 291 (Miss.1973), where we found a defendant negligent, as a matter of law, for failing to follow applicable traffic laws.

      . See Stribling v. Hauerkamp, 771 So.2d 415 (Miss.Ct.App.2000), where the Court of Appeals upheld a directed verdict where there was no dispute as to the underlying facts of the accident and the defendant admitted to being at fault.

      . See also Hill v. Dunaway, 487 So.2d 807, 809 (Miss. 1986), where we found that "a party to an action is entitled to have the jury instructed regarding a genuine issue of material fact, viz. the Plaintiffs contributory negligence vel non, so long as there is credible evidence in the record which would support the instruction.”


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    In re ASSESSMENT OF AD VALOREM TAXES ON LEASEHOLD INTEREST HELD BY REED MANUFACTURING, INC. By the ITAWAMBA COUNTY BOARD OF SUPERVISORS.
    No. 2002-CA-01434-SCT.
    Supreme Court of Mississippi.
    Sept. 25, 2003.

      Thad J. Mueller, attorney for appellant.
    Bo Russell Thomas, E. Childs, Jr., attorneys for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. The Board of Supervisors of Ita-wamba County was granted summary judgment allowing the County to assess back taxes on a leasehold interest held by Reed Manufacturing, Inc., (Reed). Reed appeals the ruling of the circuit court on the grounds that it is exempt from being assessed ad valorem taxes on its privately held leasehold interest. Finding that the Itawamba County Board of Supervisors’ motion for summary judgment was inappropriately granted, we reverse the judgment of the Circuit Court of Itawamba County and render judgment here.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Reed is the holder of a certain leasehold interest to a building owned by Ita-wamba County, Mississippi. The building was constructed in 1973 through the Mississippi Agricultural Industrial Board revenue bond procedures. The initial tenant of the facility was the Melville Shoe Corporation, which entered into a Contract and Lease on or about August 9, 1973, with Itawamba County, Mississippi. On March 31, 1977, the contract was assigned to Reed by Melville. Pursuant to Section F of the contract, the assignment was approved by the Itawamba County Board of Supervisors on April 4,1977. The primary term of the lease was for the ten year life of the bonds, which were paid in full in 1984. Since the expiration of the primary term, and pursuant to Paragraph 12, Section D of the contract, Reed has exercised its option to extend the lease for an annual rate of $2,000.00/year. Under Paragraph 12, Section D of the contract, Reed has the right to extend the lease on a yearly basis until the year 2072.

¶ 3. Reed has continually been assessed and has paid ad valorem taxes on its personal property and inventory located at the facility. Prior to 2000, Reed had never been assessed an ad valorem tax on the leasehold interest. In January 2000, Reed received a tax assessment for 1999 from Itawamba County with respect to its leasehold interest in the amount of $7,482.71. On August 25, 2000, pursuant to Miss.Code Ann. § 27-35-143(7) (Rev.2002), Reed filed a petition for reduction of assessment, alleging that the leasehold interest was exempt from ad valorem taxes under Miss. Code Ann. § 27-31-33 (Rev.2002). By letter dated October 16, 2000, the Board notified Reed that it had been assessed additional ad valorem taxes on its leasehold interest for the prior seven years (1993-98) in the amount of $60,264.35. The Board also rejected Reed’s objections.

¶ 4. On October 26, 2000, Reed appealed the ad valorem tax assessments to the Circuit Court of Itawamba County, and posted the statutorily required bonds. On January 24, 2001, Reed filed a motion for summary judgment, to which the County responded and filed a cross-motion for summary judgment. A bench trial was conducted on January 22, 2002, the Honorable Richard D. Bowen, presiding. Although at the conclusion of the bench trial, the circuit judge stated that it was his opinion that the County could assess back taxes, not to exceed ten years, the order granting summary judgment in favor of the County was not entered until August 7, 2002. The circuit judge’s order grant summary judgment in favor of Itawamba County, found the “[ojrders of the Itawam-ba County Board of Supervisors dated December 23, 1999 (1999 taxes) and October 2, 2000 (1993-1998 taxes) w[ere] correct in assessing taxes on the leasehold interest on the property.” The circuit judge stated that, although the contract allowed for an ad valorem tax exemption, Reed did not take the necessary steps to secure that exemption. The circuit court also stated that the exemption would have been limited to ten years; therefore, there was no legal or equitable exemption after 1987.

¶ 5. Reed timely appeals and raises the following three issues before this Court:

I. WHETHER THE EXEMPTIONS PROVIDED IN MISS. CODE ANN. §§ 27-31-33 AND 27-31-34, AND THE PROHIBITION AGAINST ASSESSMENTS FOR BACK TAXES ON LEASEHOLD INTERESTS PROVIDED UNDER MISS. CODE ANN. 27-35-155 APPLY TO LEASEHOLD INTERESTS HELD BY A PRIVATE COMPANY, OR TO LEASEHOLD INTERESTS HELD BY THE STATE OR POLITICAL SUBDIVISIONS.

II. WHETHER MISS. CODE ANN. § 27-35-155 PRECLUDES ITA-WAMBA COUNTY FROM ASSESSING AD VALOREM TAXES FOR THE YEARS 1993-1998 THAT WERE OMITTED FROM THE TAX ROLLS.

III. WHETHER THE LEASEHOLD INTEREST IS EXEMPT FROM AD VALOREM TAXATION UNDER MISS. CODE ANN. §§ 27-31-33 AND/OR -34.

DISCUSSION

¶ 6. Summary judgment is granted in cases where there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). This Court conducts a de novo review to determine if the trial court properly granted a motion for summary judgment. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993). “Statutory interpretation is a matter of law which this court reviews de novo.” Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (Miss.2002) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999)). In conducting a de novo review, the evidence is viewed in a light most favorable to the nonmoving party, but, if the evidence shows that the moving party is entitled to a judgment as a matter of law, then “summary judgment should forthwith be entered in his favor.” GNB, Inc., 629 So.2d at 599. See also Conrod v. Holder, 825 So.2d 16, 18 (Miss.2002).

I. WHETHER THE EXEMPTIONS PROVIDED IN MISS. CODE ANN. §§ 27-31-33 AND 27-31-34, AND THE PROHIBITION AGAINST ASSESSMENTS FOR BACK TAXES ON LEASEHOLD INTERESTS PROVIDED UNDER MISS. CODE ANN. 27-35-155 APPLY TO LEASEHOLD INTERESTS HELD BY A PRIVATE COMPANY, OR TO LEASEHOLD INTERESTS HELD BY THE STATE OR ITS POLITICAL SUBDIVISIONS.

¶ 7. The three statutes at issue in this suit are Miss.Code Ann. §§ 27-31-33, 27-31-34, and 27-35-155. Section 27-31-33 provides in pertinent part:

(1) All leasehold interests in any property, real or personal, belonging to the State of Mississippi, counties, districts, municipalities or any other political subdivision, which were created prior to July 1, 1984, pursuant to a lease agreement or contract and which had been allowed an ad valorem tax exemption, or treated as exempt from ad valorem taxation, prior to July 1, 1984, shall be exempt from ad valorem taxation unless such leasehold interest is made subject to ad valorem taxation by statute or by the terms of the lease agreement or contract creating such leasehold interest.
(3) This section shall apply to assessments of real property for ad valorem taxation for the 1984 taxable year and each taxable year thereafter.

Miss.Code Ann. § 27-31-34 provides in pertinent part:

(1) For purposes of this section, “state” means the State of Mississippi or any county, district, municipality or other political subdivision thereof.
All lease contracts, leases or leaseholds in existence on or before April 16, 1993, (a) to which the state is a party, (b) which provide that the leased premises and all facilities and replacements thereof are and shall be the property of the state, and (c) which provide a term or period of time for exemption from ad valorem taxation, shall, along with the possessory and leasehold interests as described under and originally, created by such lease contract, lease or leasehold, be exempt from all ad valorem taxation for the term or period of time as stated in such lease contracts, leases, or leaseholds meeting the requirements of subparts (a) and (b) above, which were entered into prior to July 1, 1984, and which do not contain an express term or period for exemption from ad valorem taxation, shall be exempt from all ad valorem taxation for the term of such lease contracts, leases, or leaseholds, including any option periods which may be exercised by the lessee.

(emphasis added). Section 27-35-155 provides in pertinent part:

No leasehold interest in any property, real or personal, belonging to the state of Mississippi, counties, districts, municipalities or any political subdivisions, shall be subjected to ad valorem taxation for any past year on the basis of it having been omitted from the ad valo-rem tax rolls.

(emphasis added). Because the statutes reference and apply to a “leasehold interest in any property, real or personal, belonging to the State of Mississippi, counties, districts, municipalities or any other political subdivision,” the threshold question is whether “belonging to” references “leasehold interest” belonging to the State, or “any property, real or personal” belonging to the State. Reed argues that the Legislature’s intent to exempt privately-held leasehold interests can be inferred from the fact that “[a]ll property, real or personal, belonging to the State of Mississippi or any of its political subdivisions” is already exempt from taxation pursuant to Miss.Code Ann. § 27-31-l(b) (Rev.2002). Reed contends based on the plain language of § 27-31-33 (Rev.2002), that the Legislature carved out an exemption for private companies holding a leasehold interest in any property owned by a political subdivision that did not exist prior to 1985, at which time the statute became effective. Based on this reasoning, Reed urges this Court to apply the exemptions and prohibitions provided for under §§ 27-31-33, 27-31-34, and 27-35-155 to leasehold interests held by private entities.

¶ 8. For the first time on appeal, Ita-wamba County argues §§ 27-31-33, 27-31-34, and 27-35-155 are unconstitutional because they allow for a greater tax exemption for a corporation than ten years. The County also argues § 27-35-155 is unconstitutional because it prohibits political subdivisions from collecting back taxes, thus creating a statute of limitations against the State. The County bases its arguments on two provisions in the Mississippi Constitution which state the Legislature is prohibited from granting tax exemptions to a corporation for a period greater than ten years (Art. 7, Section 182) and statutes of limitations in civil cases may not run against the State or its subdivisions (Art. 4, Section 104). In its motion for summary judgment and in its oral argument before the trial judge, the County only argued these statutes were not applicable. The County never argued that these statutes were unconstitutional.

¶ 9. We granted the Attorney General’s motion to submit an amicus curiae brief in support of the constitutionality of these statutes. First the Attorney General correctly argues that this issue is barred because it was never raised before the trial court and the Attorney General was never given notice of a constitutional challenge. Next the Attorney General states these statutes are constitutional. Article 4, section 112 of the Mississippi Constitution allows the Legislature to exempt from taxation, in whole or in part, certain species of property, such as the leasehold interests in question here. The Attorney General also argues that Article 7, section 182, which only allows for a ten year exemption, has been superseded by Article 4, section 112.

¶ 10. The law is well-established regarding claims as to the constitutionality of statutes made for the first time on appeal.

‘We accept without hesitation the ordinarily sound principle that this Court sits to review actions of trial courts and that we should undertake consideration of no matter which has not first been presented to and decided by the trial court. We depart from this premise only in unusual circumstances.” Educational Placement Services v. Wilson, 487 So.2d 1316, 1320 (Miss.1986). “The law has been well settled that the constitutionality of a statute will not be considered unless the point is specifically pleaded.” Smith v. Fluor Corp., 514 So.2d 1227, 1232 (Miss.1987). Furthermore, Rule 24(d) of the Mississippi Rules of Civil Procedure requires that proper notice be given to the Attorney General when the constitutionality of a statute is challenged “to afford him an opportunity to intervene and argue the question of constitutionality.” Miss. R. Civ. P. 24(d).

Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 202-03 (Miss.1999). See also Pickens v. Donaldson, 748 So.2d 684, 691-92 (Miss.1999). The County’s failure to raise the issue of the constitutionality of §§ 27-31-33, 27-31-34 and 27-35-155 at trial results in the procedural bar on this issue.

¶ 11. Although Attorney General opinions are not binding, they are certainly useful in providing guidance to this Court. City of Durant v. Laws Constr. Co., 721 So.2d 598, 604 (Miss.1998). See Miss.Code Ann. § 7-5-25 (Rev.2002). The Mississippi Attorney General has addressed the issue of whether these sections apply only to a leasehold interest owned by the State or its political subdivision or if these sections apply to a privately held leasehold interest on property owned by the State or its political subdivisions both directly and indirectly. The Smith County Tax Assessor submitted the following question to the Attorney General:

It seems to me that the aforesaid Section 27-35-155 is vague because it does not state whether or not the leasehold interest is vested in the State of Mississippi or whether or not fee simple title to the land is vested in the State of Mississippi.

Miss. Att’y Gen. Op., 1986 WL 82070 (Dec. 18, 1986). The property in question was leased from Smith County by an individual. Although the property was sixteenth section land and subject to taxation under § 29-3-71, the Attorney General opined as follows:

This Code section [27-31-33] clears up the other two [27-35-155 and 21-33-55] in that it provides for the exemption unless the leasehold interest is subject to ad valorem taxation by statute, as sixteenth section land is, or unless the terms of the lease agreement rendered the property subject to taxation, as many sixteenth section leases do.

Miss. Att’y Gen. Op., 1986 WL 82070 (Dec. 18,1986) (emphasis added).

¶ 12. The attorney for the Hinds County Board of Supervisors submitted the following question to the Attorney General:

I am requesting an opinion in regard to the tax exempt status of a leasehold interest in certain real estate owned by the City of Jackson on which was constructed a building using Industrial Revenue Bonds. The land and building are leased to a private corporation which claims tax exempt status under Section 27-31-1 (b) Mississippi Code Annotated, (1972) and Section 27-31-33 Mississippi Code Annotated, (Supplement 1986).... An opinion is requested as to whether the exemption period runs from the date of the lease or from the date of the completion of construction of the project.

Miss. Att’y Gen. Op., 1987 WL 121490 (Jan. 6, 1987). In response, the Attorney General stated:

Assuming the lease you have described qualifies for the § 27-31-33 exemption, the exemption will run from the date the private corporation acquired the leasehold interest.

Miss. Att’y Gen. Op., 1987 WL 121490 (Jan. 6,1987) (emphasis added).

¶ 13. Finally the attorney for the Industrial Development Authority of Coaho-ma County submitted a question to the Attorney General regarding agricultural land leased by a private individual from the County. In response, the Attorney General stated:

It is the opinion of this office that a lessee is not liable for ad valorem taxes on a leasehold interest created prior to July 1, 1984, on property, real or personal, belonging to the county or any other political subdivision, unless such leasehold interest, is by statute made subject to ad valorem tax, and we do not find statutory provision making the property described in your letter of request subject to taxation.

Miss. Att’y Gen. Op., 1984 WL 61634 (Oct. 8,1984).

¶ 14. In Board of Sup’rs of Lamar County v. Hattiesburg Cocar-Cola Bottling Co., 448 So.2d 917 (Miss.1984), this Court was faced with this similar issue in determining the purpose of Miss.Code Ann. § 57-3-33 which at the time stated:

The bonds authorized by this chapter, and the income therefrom, all mortgages or deeds of trust executed as security therefor, all lease or -purchase agreements made pursuant to the provisions hereof, all purchases required to establish the industrial enterprise and financed by bond proceeds shall likewise be exempt from all taxation in the State of Mississippi except the contractors’ tax ... and all projects and the revenue derived therefrom from any lease thereof shall be exempt from all taxation in the State of Mississippi .... (Emphasis added.)

Hattiesburg Coca-Cola, 448 So.2d at 920. This Court held:

If the purpose of § 57-3-33 is merely to insure that the governmental entity which issues revenue bonds to finance a project will not be taxed, the statute would be totally unnecessary because § 27-31-1 (b) already exempted property of the State of Mississippi and its political subdivisions. Thus, county and municipally owned property was already exempt from ad valorem taxes, and the Legislature obviously intended by § 57-3-33 to provide for an additional exemption not already allowed by § 27-31-l(b). By exempting the bonds authorized by the act and the income therefrom, the legislature must have intended to benefit the bond holders, not the county. In exempting all lease agreements it clearly intended to exempt the industry who would operate the project under a lease agreement, and by exempting “all projects”, as defined in §§ 57-3-5(2), we think the legislature intended to provide that every interest in the real and personal property deemed “necessary in connection” with the project be exempted. The county already being exempted, the legislature must have intended that the industry likewise would be exempt.

Id. (emphasis in original). Therefore, this Court determined the lease agreement between Lamar County and Hattiesburg Coca-Cola would be fully exempt from all ad valorem taxes

¶ 15. In reviewing legislative history, Attorney General opinions, case law and the unambiguous language of the statutes we conclude that a leasehold interest held by a private company is entitled to the exemption provided for under §§ 27-31-33, 27-31-34 and 27-35-155.

II. WHETHER MISS. CODE ANN. § 27-35-155 PRECLUDES ITA-WAMBA COUNTY FROM ASSESSING AD VALOREM TAXES FOR THE YEARS 1993-1998 THAT WERE OMITTED FROM THE TAX ROLLS.

¶ 16. Reed was never assessed ad valorem taxes on its leasehold interest pri- or to 2000. The tax assessor and collector for Itawamba County since 1988, Johnny Riley, testified during the hearing held on January 22, 2002, that he first assessed the property of which Reed held a private leasehold interest in October 2000 for 1999 taxes. This oversight was called to Riley’s attention by the newly elected supervisor for that district, Joey Sheffield, after inquiries were made from outside parties regarding renting the property. Riley also stated that the tax records showed that Reed never requested an ad valorem exemption on its leasehold interest. Reed also had not requested an exemption for the personal property taxes, and Reed had, in fact, been paying the personal property taxes each year. Riley determined that it was “just strictly an oversight by Itawamba County by not charging for the leasehold interest.” When questioned about why the County omitted Reed’s leasehold from the tax rolls, Riley referred to this as “[j]ust an error.” Riley testified that although it was the County’s practice to tax all leaseholds, no other leaseholds involved contracts which were executed before 1984. Riley also agreed that there was no procedure for obtaining an ad valorem tax exemption provided in either section 27-31-33 or section 27-31-34; however, Riley stated it was his personal belief that companies must apply for an exemption which is granted by the Legislature. Reed has maintained that these sections provide an automatic exemption.

¶ 17. In response to a similar question from the Lamar County Tax assessor and collector regarding whether “the Tax Assessor ha[d] authority under Section 27-35-155 to collect taxes that have escaped taxation and that have been omitted from the tax roll on lease-hold interest,” the Attorney General stated:

Section 182 as interpreted by the Hat-tiesburg Coca-Cola decision limits a tax exemption to a period of ten years. Section 27-35-155 of the Code, however, does not grant any tax exemption but only describes when property which has escaped taxation or which has been omitted from the tax rolls may be assessed for the previous years.
It is our opinion that this statute does not create any tax exemption which would be limited by Section 182 of the Constitution. This section merely creates a provision in the form of a statute of limitations that prohibits the tax assessor from going back further than seven years to assess property that has “escaped, taxation ” and prohibits the assessor from going back any amount of time to assess leasehold interests in property belonging to the State of Mississippi or its political subdivisions which leaseholds have been omitted from the ad valorem tax rolls.

Miss. Att’y Gen. Op. No.1993-0384, 1993 WL 294261 (June 30, 1993) (emphasis added).

¶ 18. Miss.Code Ann. § 27-35-155 reads in pertinent part:

The power of the assessor to assess property that has escaped taxation by way of additional assessments for a former year or years shall expire at the end of the seven (7) years from the date when his right so to do first accrued. No leasehold interest in any property, real or personal, belonging to the state of Mississippi, counties, districts, municipalities or any political subdivisions, shall be subjected to ad valorem taxation for any past year on the basis of it having been omitted from the ad valo-rem tax rolls.

(emphasis added).

¶ 19. As stated in Issue I, section 27-35-155 applies to privately held leaseholds. Therefore, because Itawamba County admitted to omitting Reed’s leasehold interest from the ad valorem tax rolls, pursuant to Miss.Code Ann. § 27-35-155, the leasehold interest is not subject to ad valorem taxation for any past year that it was not listed on the ad valorem tax roll.

III. WHETHER THE LEASEHOLD INTEREST IS EXEMPT FROM AD VALOREM TAXATION UNDER MISS. CODE ANN. §§ 27-31-33 AND/OR -34.

¶ 20. Pursuant to the language of section 27-31-33, Reed argues that the leasehold interest became exempt from ad valorem taxation in the 1984 taxable year. Reed also contends that the leasehold interest is exempt “for each taxable year thereafter” for the life of the lease, or until 2072. Reed argues its leasehold interest meets all the prerequisites for the exemption provided in section 27-31-33. The leasehold interest was created prior to July 1, 1984, and the leasehold interest was created pursuant to contract and treated as exempt from ad valorem taxation.

¶ 21. In Hattiesburg Coca-Cola, Lamar County entered into an agreement in 1978 with Coca-Cola in which the County would provide funds through the issuance of industrial revenue bonds for Coca-Cola to build a bottling plant. 448 So.2d at 918. Coca-Cola bought the property and conveyed it to the County. Id. Lamar County then leased the property back to Coca-Cola for a “rent sufficient to pay the principal, interest and redemption premium on the bonds.” Id. The lease stated that the County would not “cause or induce the assessment of ad valorem taxes on the project.” Id. Although the County’s tax rolls listed the property as exempt, at a Board of Supervisors’ meeting held on November 2, 1981, the supervisors adopted a resolution finding that the property was no longer exempt and was subject to assessment. Id. at 919. The land assessment rolls were amended to reflect the resolution. Id.

¶ 22. The Circuit Court of Lamar County upheld Coca-Cola’s claim of tax exemption pursuant to Miss.Code Ann. §§ 27-31-1 and 57-3-33. Id. at 918. This Court affirmed the ruling of the trial court finding that the lease clearly reflected Mississippi’s public policy set out in Miss.Code Ann. §§ 57-8-1 et seq., which authorized counties and municipalities to issue bonds and lease the enterprises to business entities in order to promote the State’s economy after the Great Depression. Id. at 919.

¶ 23. After this Court determined that Coca-Cola was entitled to the ad valorem tax exemption, the Court also noted that the tax exemption would be subject to Article 7, § 182 of the Mississippi Constitution. Id. at 920. Article 7, Section 182 provides that:

The power to tax corporations and their property shall never be surrendered or abridged by any contract or grant to which the state or any political subdivision thereof may be a party, except that the Legislature may grant exemption from taxation in the encouragement of manufactures and other new enterprises of public utility extending for a period of not exceeding ten (10) years on each such enterprise hereafter constructed, and may grant exemptions not exceeding ten (10) years on each addition thereto or expansion thereof, and may grant exemptions not exceeding ten (10) years on future additions to or expansions of existing manufactures and other enterprises of public utility. The time of each exemption shall commence from the date of completion of the new enterprise, and from the date of completion of each addition or expansion, for which an exemption is granted. When the Legislature grants such exemptions for a period of ten (10) years or less, it shall be done by general laws, which shall distinctly enumerate the classes of manufactures and other new enterprises of public utility, entitled to such exemptions, and shall prescribe the mode and manner in which the right to such exemptions shall be determined.

(emphasis added). This Court held:

Action by the state or a political subdivision calculated to permanently surrender or abridge the power to tax corporations and their property is obviously precluded by the black letter language of § 182 of the Mississippi Constitution. It follows that a permanent tax exemption would not be permitted by the first clause, but the second clause of § 182 allows a ten (10) year exemption from taxation in the encouragement of manu-facturera and other new enterprises. Consequently, under § 57-3-33, supra, Coca-Cola may have an exemption for a “period not to exceed ten (10) years” from date of completion of the project.

Hattiesburg Coccir-Cola, 448 So.2d at 922. Since the Hattiesburg Cocar-Cola decision, section 57-3-33 has been amended to add the following:

From and after July 1, 1989, there shall be no new exemption under this section or under Chapter 10, Title 57, Mississippi Code of 1972, from ad valorem taxes levied for school district purposes. The time of any ad valorem tax exemption provided for hereunder shall not exceed a total often (10) years, which shall run from the date of completion of the project. In no event shall the term of the ad valorem tax exemption provided for hereunder be limited, terminated or otherwise affected by payment in full of the bonds issued under this chapter or by the change from a leasehold to a fee title in the enterprise financed with bonds issued under this chapter.

(emphasis added).

¶ 24. Pursuant to Article 4, Section 112, the “Legislature may, by general laws, exempt particular species of property from taxation, in whole or in part.” However, Article 7, Section 182 limits that power by providing that the exemption may not exceed ten (10) years. Therefore, although an entity may be exempt from ad valorem taxes pursuant to the terms of the lease, that exemption, according to the Mississippi Constitution, may not exceed ten (10) years. Because Reed’s lease with Itawam-ba County began in 1977, the ad valorem tax exemption would only have been in effect through 1987. However, as previously stated in Issue II, by omitting Reed’s leasehold interest from the ad valorem tax rolls, these back taxes may not be assessed against Reed. Once Reed’s leasehold interest is properly placed on the Itawamba County ad valorem tax rolls, the County may begin assessing Reed the appropriate ad valorem taxes.

CONCLUSION

¶ 25. The Circuit Court of Itawamba County erred in granting summary judgment in favor of Itawamba County. The exemptions provided under sections 27-31-33, 27-31-34, and 27-35-155 apply to privately held leaseholds; therefore, Reed’s privately held leasehold interest was exempt from ad valorem taxation. However, pursuant to Article 7, § 182 of the Mississippi Constitution, that exemption may not exceed ten (10) years, thus causing Reed’s exemption to end in 1987. Because Itawamba County omitted Reed’s leasehold from its ad valorem tax rolls, the County may not assess any back ad valo-rem taxes against Reed. The County may begin assessing appropriate ad valorem taxes against Reed once the leasehold interest is properly placed on the County’s ad valorem tax rolls. Therefore, we reverse the circuit court’s grant of summary judgment and set aside the orders of the Itawamba County Board of Supervisors dated December 23, 1999 and October 2, 2000, and we render judgment pursuant to this opinion.

¶ 26. REVERSED AND RENDERED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND GRAVES, JJ., CONCUR. EASLEY, J., CONCURS IN PART. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Miss.Code Ann. § 27-35-143 states in pertinent part:
      The board of supervisors of each county shall have power, upon application of the party interested, or by the assessor on behalf of such party, or otherwise as prescribed in Sections 27-35-145 through 27-35-149, to change, cancel or decrease an assessment in the manner herein provided at any time after the assessment roll containing such assessment has been finally approved by the State Tax Commission, and prior to the last Monday in August next, under the following circumstances and no other:
      7. When the property assessed is nontaxable, or was not subject to taxation on the next preceding tax lien date.

        . Miss.Code Ann. § 27-31-1. The following shall be exempt from taxation: (b) All property, real or personal, belonging to the State of Mississippi or any of its political subdivisions, except property of a municipality not being used for a proper municipal purpose and located outside the county or counties in which such municipality is located. A proper municipal purpose within the meaning of this section shall be any authorized governmental or corporate function of a municipality. Section 27-31-1 was amended on March 25, 2003, to add Section (hh). 2003 Miss. Laws ch. 476 (S.B.2922).

      . The only argument posed by the County in its brief is that the three statutes at issue are unconstitutional. The County does not address the arguments made by Reed in its brief.


author: LEE, J.,

text:
    Timothy J. WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00581-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.
    Rehearing Denied Sept. 23, 2003.
    Pamela A. Ferrington, Natchez, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On January 10, 2002, Timothy Williams was found guilty by a jury in the Circuit Court of Adams County of two counts of child fondling. Williams was sentenced to serve fifteen years on each count, to be served concurrently in the custody of the Mississippi Department of Corrections. From his conviction, Williams appeals to this Court asserting the following issues: (1) the lower court erred in denying his motion for a new trial; and (2) the lower court should have declared a mistrial after ruling that a discovery violation had occurred. Finding no merit to either issue, we affirm.

FACTS

¶ 2. On June 10, 2001, Williams was riding around Natchez in his truck with his girlfriend, Lekendria Goings, her younger sister, fifteen year old K.D., and two of their cousins, J.D., a ten year old female, and her brother, Gerald. Williams parked his truck in a rural area, and proceeded to have sex with Lekendria at the back of the truck while the other children waited in the cab of the truck. K.D. and J.D. both testified that, after this occurred, Williams said “next”. K.D. then proceeded to the back of the truck where, with her pants down, Williams rubbed his penis against her vagina. According to the girls, Williams said “next” again and J.D. went to the back of the truck where the same act was performed on her.

¶ 3. This incident was reported to the police on June 23, 2001. Based upon the statements of K.D. and J.D., Williams was arrested shortly thereafter.

DISCUSSION OF ISSUES

I.DID THE LOWER COURT ERR IN DENYING WILLIAMS’ MOTION FOR A NEW TRIAL?

¶4. With his first issue, Williams claims that his motion for a new trial should have been granted as a result of newly discovered evidence. Specifically, Williams contends that this new testimony, which consisted of a statement made by one of the victims that Williams never touched her, was incorrectly treated as impeachment evidence by the trial judge. Our standard of review concerning a motion for new trial states:

In reviewing the decision of the trial court on a motion for a new trial, this Court views all of the evidence in the light most consistent with the jury verdict. A motion for a new trial addresses the weight of the evidence and should only be granted to prevent an unconscionable injustice.

Daniels v. State, 742 So.2d 1140 (¶ 11) (Miss.1999) (citations omitted). Additionally, Rule 10.05 of the Uniform Circuit and County Court Rules describes the prerequisites for granting a new trial:

The court on written motion of the defendant may grant a new trial on any of the following grounds:
1. If required in the interests of justice;
2. If the verdict is contrary to law or the weight of the evidence;
3. Where new and material evidence is recently discovered which would probably produce a different result at a new trial, and such evidence could not have been discovered sooner, by reasonable diligence of the attorney;
4. If the jury has received any evidence, papers or documents, not authorized by the court, or the court has admitted illegal testimony, or excluded competent and legal testimony;
5. If the jurors, after retiring to deliberate upon the verdict, separated without leave of court; and
6. If the court has misdirected the jury in a material matter of law, or has failed to instruct the jury upon all questions of law necessary for their guidance....

URCCC 10.05. Furthermore, a lower court may be overruled if the court abuses its discretion in granting or denying a new trial based on newly discovered evidence. Ormond v. State, 599 So.2d 951, 962 (Miss.1992).

¶ 5. In his brief, Williams argues that the testimony at the hearing on his motion for a new trial was new evidence that could not have been discovered sooner and that would probably have produced a different result at a new trial. At the hearing on the motion for a new trial, Jonathan Baldwin testified that prior to the trial K.D. had told him Williams had not touched her. After hearing this information from K.D., Baldwin told his mother, neither of whom did anything with this information. Baldwin also testified that, while riding on the school bus after the trial, K.D. responded with “no” when asked if Williams had touched her.

¶ 6. There were three other witnesses at the hearing who were there to corroborate Baldwin’s testimony. However, two of the witnesses thought that the conversation on the bus may have been before the trial and one did not remember when he had heard the conversation. Furthermore, Williams was a good friend of the family of one of the witnesses. There was no mention of ever hearing J.D. state that the incident with Williams did not occur.

¶ 7. At the motion hearing, both K.D. and J.D. testified that neither of them had ever recanted their original testimony and that their testimony at trial was completely truthful. After the testimony, the judge stated the following:

The Court has heard the testimony from the witnesses and finds that under 10.05, 1 — well I guess back up. Let’s go to Number 3, that this is not new evidence and all it is is impeachment of the two witnesses in the case. Saying that they said he didn’t do it. I think they were cross-examined extensively on that same point during the trial. And these witnesses or at least the witnesses, the witness, I believe, Jonathan Baldwin was readily available before the trial. As to the statements he said he had with her in the cafeteria and I know that statement was made before the trial and he could have brought, been brought to trial to say that if he had been subpoenaed or as the defense had so desired. With that being said the Court finds that under a string of Mississippi cases, impeachment evidence is not sufficient to grant a new trial and for that reason the Court is going to overrule your motion for a new trial.

¶ 8. The Supreme Court has discussed the issue of what constitutes newly discovered evidence as it relates to the case sub judice. In Meeks v. State, 781 So.2d 109 (Miss.2001), Alvin Meeks had been convicted of capital murder, burglary, and assault, and later filed a motion for post-conviction relief, seeking a new trial based on new evidence. Meeks claimed that Tana Meeks, the eyewitness to his crime who testified at the trial, admitted to Charles Smith that she had lied at the trial. However, at the motion hearing Tana testified that she had never met Charles Smith or told anyone else that she lied at the trial. Tana stated that her testimony was the truth and never stated otherwise. The Supreme Court concluded that the testimony of Charles Smith was impeachment evidence at best, further stating that “testimony which only impeaches a witness’s trial testimony does not constitute grounds for a new trial.” Id. at ¶ 11. Meeks did not “prove by a preponderance of the evidence that material facts existed which required the vacation of his conviction.” Id.

¶ 9. In the present case, we cannot find an abuse of discretion by the trial court. The trial court had the benefit of viewing the witnesses during their testimony and concluded that the evidence was not sufficient to warrant a new trial. We cannot find that an unconscionable injustice would result in denying Williams’ motion for a new trial; thus, we affirm.

II. DID THE LOWER COURT ERR IN NOT GRANTING A MISTRIAL AFTER A DISCOVERY VIOLATION WAS DISCOVERED?

¶ 10. With his other issue, Williams claims that the trial court erred in failing to declare a mistrial after a witness for the prosecution made statements on the witness stand that had not been disclosed to Williams. The authority to declare a mistrial is left largely to the sound discretion of the trial judge. Pulphus v. State, 782 So.2d 1220 (¶ 10) (Miss.2001). Within this authority is the discretion to determine whether the objectionable comment is so prejudicial that a mistrial should be declared. Edmond v. State, 312 So.2d 702, 706 (Miss.1975). Furthermore, when a trial judge instructs the jury, we must assume that the panel followed the instruction. Puckett v. State, 737 So.2d 322 (¶ 72) (Miss.1999).

¶ 11. A Detective Butler testified at the trial that Williams had verbally admitted to her and to another detective that he did not understand why he was being arrested since he had not penetrated either girl. This statement was not known to either side until the day of the trial. After hearing the testimony of Detective Butler and after an objection by Williams, the trial court stated that it was a discovery violation and that the jurors would be instructed to disregard the statement. The statement was also stricken from the record. The trial court stated to the jury:

The Court: The Court is going to direct that you disregard that statement as if it never happened. So you cannot consider that in your deliberations; do you understand that? The Court has stricken that from the record. It does not exist. So you can’t use that in you deliberation. Do you understand that? Jurors: Yes.

In addition to this admonishment, the trial court, during jury instructions, told the jury again “to disregard all evidence which was excluded by the Court from consideration during the course of the trial.”

¶ 12. We do take notice that at the time of the testimony by Detective Butler, Williams objected and then asked the court to strike any mention of the objectionable statement from the record and to instruct the jury not to consider that upon their deliberation. If a defendant who has been surprised by undisclosed discoverable evidence does not request a continuance at the time of such surprise, he waives this issue on appeal. Cole v. State, 525 So.2d 365, 370 (Miss.1987). Furthermore, in Blackwell v. State, 44 So.2d 409 (Miss.1950), the Supreme Court stated:

It is now well settled that when anything transpires during the trial that would tend to prejudice the rights of the defendant, he cannot wait and take his chances with the jury on a favorable verdict and then obtain a reversal of the cause in this Court because of such error, but he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such nature as would entitled him to a mistrial. Such a motion was not made in the instant case, and since the trial judge did all he was asked to do at the time of the occurrence, the error complained of does not entitle the defendant to have the case reversed.

Id. at 410.

¶ 13. We cannot find that the trial court abused its discretion in failing to sua sponte grant a mistrial. Williams asked that the statement be stricken and the jury admonished not to consider it. The trial court granted this request immediately upon Williams’ objection and took appropriate steps to instruct the jury. Williams did not request a mistrial or a continuance, and the trial court did not find it necessary to grant a mistrial sua sponte. As we find no abuse of discretion, we must affirm.

¶ 14. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF CHILD FONDLING AND SENTENCES OF FIFTEEN YEARS TO SERVE ON EACH COUNT, TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO ADAMS COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.