author: GRIFFIS, J.,

text:
    Dennis Neal WILKERSON, Appellant/Cross Appellee v. Kathy Ray Youngblood WILKERSON, Appellee/Cross Appellant.
    No. 2005-CA-01382-COA.
    Court of Appeals of Mississippi.
    Jan. 9, 2007.
    Rehearing Denied May 8, 2007.

      John C. Jopling, J. Randolph Lipscomb, Columbus, attorneys for appellant.
    John W. Crowell, Columbus, Kristen E. Wood, attorneys for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Dennis Neal Wilkerson (“Dennis”) filed a petition for clarification of his child support obligations. Kathy Ray Young-blood Wilkerson (“Kathy”) responded and filed a counter-petition for clarification of the property distribution. The chancellor entered a judgment that considered both petitions and clarified the earlier judgment. On appeal, Dennis argues that the chancellor: (1) exceeded his jurisdictional authority, (2) contravened well-established principles of equity, (3) did not follow the law of equitable distribution, and (4) entered a judgment that “exceeds the findings of the lower court.” On cross-appeal, Kathy argues that the chancellor erred when he found that the children’s expenses incurred for counseling and dental braces were not necessary medical expenses. We affirm on direct appeal and affirm in part and reverse and render in part on cross appeal.

FACTS

¶2. On August 25, 1995, Kathy was granted a divorce from Dennis. According to the judgment, Kathy was awarded physical custody of Neal and Seth. Dennis was ordered to pay child support and was awarded visitation. The chancellor found that the marital home and Dennis’s business, Wilkerson, Inc., were marital property. The chancellor awarded Kathy the marital home, and ordered Dennis to pay a share of the mortgage. In exchange, the chancellor awarded Dennis the business, free and clear of Kathy’s interest.

¶ 3. On June 21, 2004, the chancellor found Dennis in contempt for failing to provide medical insurance for Neal and Seth. The chancellor increased Dennis’s child support payments and ordered Dennis to pay for all his sons’ medical expenses that were not covered by health insurance. The chancellor denied Dennis’s request for a change of custody.

¶ 4. A few months later, Dennis filed a motion to clarify whether he was obligated to pay for his sons’ counseling and Neal’s dental braces. Kathy filed a counterclaim to determine whether Dennis had fulfilled his obligations to pay a portion of the mortgage payments on the former marital home. Dennis insisted that his financial obligation on the house would cease in March of 2005, when his monthly payments of $304.47 would total $35,000.

¶ 5. On June 14, 2005, the chancellor found that the children’s counseling expenses and Neal’s braces were not medically necessary; therefore, Dennis did not have to pay for them. The chancellor found that Dennis’s mortgage obligation was $300, not $304.47, per month. The chancellor further ruled that Dennis’s obligation to pay $300 a month would cease in August of 2018, when his total payments equaled $82,800. Since he only paid $290.42 in March 2005, he was held in arrears $9.58. The chancellor further ruled that this arrearage would be offset by the $4.95 overpayments Dennis had made between the date of divorce and February of 2005.

STANDARD OF REVIEW

¶ 6. A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002).

ANALYSIS

I. Did the chancellor misinterpret his prior order on propeHy division?

¶ 7. Although Dennis styles his appeal as four different issues, his argument under each issue is that the chancellor misinterpreted the 1995 judgment regarding Dennis’s mortgage payments and, in the alternative, that the property division was against the law. Specifically, Dennis argues that the original judgment ordered him to pay a total of $35,000, over time, without interest. Kathy countered that the chancellor properly interpreted his pri- or decree — that Dennis was responsible for $35,000 in principal, plus interest.

¶ 8. The 1995 opinion of the chancellor determined that the marital home was worth $95,000, and it carried an $81,000 mortgage. The chancellor further found the monthly mortgage payment to be $600. As for Wilkerson, Inc., based on the varied evidence of value that Dennis presented, the chancellor found the value ranged between $50,000 and $85,362. The opinion provided:

The Court finds that it may best accomplish equity under these circumstances by awarding the mother the title to the marital home ... and requiring the father to make one half of the $600 per month mortgage payment, until a date certain, known as Jubilee, and calculated based upon the following formula, to-wit: Using the total number of remaining mortgage payments from September 1, 1995 until maturity of the mortgage, as the baseline, which equals 100%; the Defendants obligation to pay one half of the monthly mortgage payment shall terminate when the remaining number of monthly payments due and payable equals 14% of the baseline. If the mortgage is paid in advance of Jubilee, the father will be indebted to the mother for the remaining payments as they would have otherwise accrued. This results in the father paying a portion of his one half of his existing debt under the mortgage and increasing the equity value of the mother’s ownership of the home in an amount fairly representative of her equity in the tobacco business. Upon the father’s payment of his required portion of the mortgage, the mother will have received from the father, value in the sum of $4.2,000.00 based upon current values ($7,000.00 equity and $35,000.00 principal on the mortgage). The father will be allowed to pay this value to the mother during the life of the mortgage at $300.00 per month from his earnings at Wilkerson, Inc., and the father will receive Wilkerson, Inc. free and clear of any interest of the mother. The full current value of Wilkerson, Inc. is released to the father free of any claim of the mother, and this represents a value to the father of up to one half the value of the stock. Depending upon which of the father’s valuations of the stock is used, the value to him of this release would vary from $30,000.00 to $42,000.00.

(emphasis added). This opinion was based on the evidence presented at the original divorce trial that the monthly mortgage payments were only $600 a month. The chancellor assumed the mortgage was a regular thirty-year, amortized loan.

¶ 9. Kathy’s petition to clarify asked the chancellor to clarify the date of “Jubilee,” and therefore whether Dennis had satisfied his mortgage obligations. At the hearing, additional evidence on the mortgage was offered. In the June 14, 2005 judgment, the chancellor explained Dennis’s mortgage obligations:

In its judgment of divorce entered in August 1995, [Dennis] was ordered to pay [Kathy] $300.00 per month beginning in September 1995 until the Jubilee payment. The calculation of Jubilee was meant to be a date certain based upon a formula created by the Court. The formula was based upon the remaining payments on the mortgage balance of $81,000.00 at $600.00 per month without balloon. The Court was not provided the interest rate or the number of payments or it would have stated them and calculated the Jubilee date. The Court assumed it was a straight amortization but apparently was not provided with the beginning principal of the debt or the original number of payments, whether 240 or 360, etc. On a thirty-year mortgage there would have been 340 payments remaining and that would establish the baseline. Jubilee was set at the payment that left only 14% of the payments remaining.
Footnote 1 — The 14% applied to the baseline (the total number payments to amortize $81,000.00 at $600.00 per month) is the approximation of the remaining payments that are to be made by [Kathy] solely. The 14% number is the ratio of $11,000.00 to $81,000.00 rounded to the nearest percent. The actual balance on the debt was approximately $84,000.00 not $81,000.00. The formula includes interest in excess of interest on an amortization of $35,000.00.
The formula was based upon the following specific findings: The balance on an existing mortgage was $81,000.00 and the monthly mortgage payments were $600.00. The value of the marital home was $95,000.00. The unstated finding was that each mortgage payment was equal until maturity. Therefore, Jubilee is calculated based upon extending the payments in equal amount ($600.00) until the debt is paid in full. [Dennises obligation continued until the payment at the 86th percentile. Using $81,000.00 and $600.00 per month at 7.75% from September 1995 until final payment is 320 payments. The 86th percentile is payment 276 in August 2018.
Footnote 2 — Using the actual balance and payment amount would make the Jubilee payment the 292nd payment in December 2019. The Court will follow its findings rather than the new information now provided that the balance and payment amounts were inaccurate.
This mortgage was on the former marital home that was awarded to [Kathy], The Court thought that the mortgage debt was amortized, but it was not. After 23 monthly payments of $608.95, the 24th payment on December 29, 1995, was a balloon payment of the remaining principal and interest. Neither party returned to court when that event occurred .... In March 2005, [Dennis] asserts that he has paid the $35,000.00 in monthly principal installments and Jubilee has arrived. [Dennis] asserts that ... no interest was owed on this obligation.
[Dennis] is in error. The Court awarded [Kathy] approximately $35,000.00 payable with interest over time until Jubilee. The interest rate on the existing mortgage was 7.75%. However, an amortization of $35,000.00 at 7.75% payable at $300.00 per month beginning with a payment in September 1995 does not alternatively calculate the date of Jubilee. The day of Jubilee is calculated by the formula as directed by the 1995 judgment and yields a different interest rate than 7.75% and a different date than using the original promissory note rate and principal.... [In a footnote, the court stated, “... If you use $35,000.00 for principal, the actual interest rate is 8.96%.”]
... The date of Jubilee was established in 1995 to be the 276th payment in August 2018.... The total owed by [Dennis] based upon the judgment of 1995 remains $300.00 per month for 276 payments.

¶ 10. In Prescott v. Prescott, 736 So.2d 409, 416 (¶¶ 33-35) (Miss.Ct.App.1999), this Court reviewed a chancellor’s interpretation of his own order. In 1995, the chancellor entered an order for temporary support to be paid until further notice. Id. at 416 (¶ 33). On December 20, 1996, the chancellor issued an opinion granting the divorce and setting out payment distributions. Id. The final judgment on this opinion was not entered until February. Id. The parties disputed over whether the December opinion or the February judgment constituted further notice. Id. at (¶ 34). The chancellor found that the December opinion terminated the husband’s temporary support obligation. Id. at 416-17 (¶ 36). We affirmed and held that, “[sjince temporary support was to continue until further order, and the chancellor declined to interpret his December 20, 1996 letter opinion as continuing the temporary support, we find that to be within his discretion.” Id. at 417 (¶ 36).

¶ 11. Here, the chancellor acted within his discretion by interpreting his 1995 judgment to mean $35,000 over time with interest. In the original 1995 opinion, the chancellor spoke in terms of current values. He did not award Kathy the total sum of $35,000, but rather the present (1995) value of $35,000. He ordered this current value of $35,000 would be paid over time. The time value of money is reflected in interest payments. If Dennis were ordered to pay $35,000 in a lump sum, this would equal the value of $35,000 to Kathy in 1995. In order to pay Kathy the equivalent value of $35,000 over time, Dennis would be required to pay $35,000 plus interest.

¶ 12. Furthermore, the 1995 judgment contemplates that Kathy and Dennis would pay the first eighty-six percent of the mortgage debt fifty/fifty. As for the last fourteen percent of the mortgage, Kathy will bear that cost alone. This is likewise the result of the 2005 clarification. Accordingly, we find no error in the chancellor’s decision on this issue.

II. Did the chancellor err in dividing the property ?

¶ 13. Dennis also makes several arguments that the ordered payments go against the law of equitable distribution. Kathy responds that Dennis is procedurally barred from bringing these arguments and that the chancellor’s judgment was based on both the facts and the law. We agree.

¶ 14. The remainder of Dennis’s arguments attack the chancellor’s decision in the 1995 opinion and judgment. These issues are raised for the first time in this appeal. For ten years after the original opinion and judgment, and even at the hearing on the petitions for clarification, Dennis never argued that the chancellor was without authority to require Dennis to pay his portion of the property division out over time. All Dennis argued was that he had made all the monthly payments required of him. Dennis is therefore procedurally barred from raising these arguments on appeal. Jurney v. Jurney, 921 So.2d 372, 377 (¶ 19) (Miss.Ct.App.2005).

¶ 15. Procedural bar notwithstanding, Dennis’s arguments are without merit. First, Dennis argues that the chancellor acted outside his authority by awarding Kathy an amount greater than for which she pled. The record reveals that Kathy did not plead for a specific judgment amount, neither in the original divorce nor in her counter-petition for clarification. In her counter-petition, she merely asked the chancellor to specify the date of Jubilee. She did not put forward any interpretation of her own as to when that would be. Dennis, however, points to a post-trial letter from Kathy’s attorney to the judge and to Dennis’s attorney. Dennis claims that in this letter Kathy pleads that she is entitled to $21,616.02 more in mortgage payments. This is not true. Kathy’s attorney makes an argument that the payments extend well beyond what the chancellor eventually would order. In the alternative, Kathy’s attorney asserts that even accepting Dennis’s interpretation, Dennis still owes $21,616.02.

¶ 16. Second, Dennis argues that the chancellor acted outside his jurisdiction by dividing non-marital property. Dennis reasons that since he is using cash earned after the marriage to pay Kathy, then Kathy is getting Dennis’s separate property and not marital property. This ignores what Dennis purchased with these payments. Indeed, Dennis was paying Kathy for her interest in Wilkerson, Inc., which was marital property. The money for the payment came from Dennis’s earnings at Wilkerson, Inc. Moreover, the payments were used to decrease a marital debt and increase Kathy’s equity in the former marital residence.

¶ 17. Third, Dennis argues that the property division award “is in effect an award of alimony without the required consideration” of the Armstrong factors. Dennis gives no basis for this characterization, except for the fact that the award results in monthly payments. The judgment is clear that the award was to compensate Kathy for her share of marital property, i.e., stock in Wilkerson, Inc. Clearly, the payment was for property division, not alimony. Unlike alimony, the payment was not contingent upon Kathy’s remarriage or Dennis’s death. In fact, the payment was not contingent upon anything. It was a fixed amount, financed for a fixed period of time, to compensate Kathy for her share of the marital property.

¶ 18. Finally, Dennis cites Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994), and argues that equitable division must be used to “eliminate periodic payments.” Therefore, he reasons that the chancellor was without power to order periodic payments. Ferguson sets out a list of factors chancellors must consider in dividing marital property. Id. at 928. One of many factors is “[t]he extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties.” Id. (emphasis added). In other words, where a spouse’s property rights increase, his or her alimony recedes. Id. at 929. Rather than require a lump sum payment for property distribution, the chancellor allowed Dennis to finance his property division obligation through monthly payments. Ferguson does not prohibit this arrangement. Accordingly, we find no merit to this issue.

III. Is Dennis obligated to pay for his sons’ counseling and Neal’s braces?

¶ 19. Kathy argued that Neal and Seth’s counseling and Neal’s braces are reasonable medical expenses, and Dennis was obligated to pay these expenses. In the alternative, she argued that she was entitled to a modification of child support to cover these expenses. Dennis counters that the chancellor’s order was supported by substantial credible evidence, and there was no material change in circumstances.

A. Counseling expenses

20. On October 5, 2004, Neal and Seth had separate, psychological counseling sessions with Dr. Debbie K. Wells of Wells Counseling Associates, Inc. Kathy testified the reason for the sessions were Neal and Seth’s feelings associated with Dennis’s lawsuit to take custody away from Kathy and with Dennis’s refusal to exercise visitation since losing that custody battle. She testified that Neal and Seth, who expressed a desire to stay with her, had been feeling guilt placed upon him by their father. The bill, in the amount of $170, was admitted into evidence. This bill was for one session each with Neal and Seth. The boys had only one session each between October 5, 2004 and the trial -of this matter on May 26, 2005. The chancellor denied payment of the counseling bill, because he found Kathy “offered no proof that the one counseling bill of $170.00 was medically necessary.”

¶ 21. Psychological counseling is a medical expense which may be assessed against a non-custodial parent. Martin v. Martin, 538 So.2d 765, 767 (Miss.1989). See also Miss.Code Ann. § 43-19-103(a) (Rev.2004). The custodial parent has the inherent discretion to determine the child’s medical needs. Clements v. Young, 481 So.2d 263, 267 (Miss.1985). This discretion is limited by reasonableness. Id. For the non-custodial parent to be assessed with the expense, it must be reasonably necessary and reasonable in amount. Id.

¶ 22. Evidence that a medical bill has been paid or incurred is prima facie evidence that it is reasonable and necessary. Miss.Code Ann. § 41-9-119 (Rev. 2005); Clements, 481 So.2d at 267-68. This prima facie showing may be rebutted by the non-custodial parent. Id. at 269.

¶ 23. The bill Kathy submitted into evidence was sufficient to meet her prima facie case. However, Dennis established that the boys only went to counseling one time. The chancellor determined that this was substantial credible evidence to support a finding that the counseling was not medically necessary in the first place, because Dr. Wells did not order any follow up treatment. Although we might have concluded this differently, we cannot say that this was an abuse of the chancellor’s discretion.

¶ 24. In the alternative, Kathy argues that she is entitled to a child support modification to require that Dennis pay the counseling bill. “To obtain a modification in child support payments, there must be a ‘substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.’” McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994) (quoting Gillespie v. Gillespie, 594 So.2d 620, 623 (Miss.1992)). To determine whether a material change has occurred, courts examine the following factors: (1) increased needs of older children, (2) an increase in expenses, (3) inflation, (4) a child’s health and special medical or psychological needs; (5) the parties’ relative financial condition and earning capacity; (6) the health and special needs of the parents; (7) the payor’s necessary living expenses; (8) each party’s tax liability; (9) one party’s free use of a residence, furnishings, or automobile; and (10) any other relevant facts and circumstances. Tedford v. Dempsey, 437 So.2d 410, 422 (Miss.1983). The change must have been unforeseeable since the most recent order. McEwen, 631 So.2d at 823.

¶ 25. In Clark v. Myrick, 523 So.2d 79, 81 (Miss.1988), the supreme court declined to consider a child’s need for psychological counseling in a mother’s argument for modification, where the child support decree already assessed the father with all medical expenses. We likewise find no need to entertain Kathy’s modification argument, as Dennis is already liable under the existing order for all reasonable and necessary medical expenses.

¶ 26. Accordingly, we find that there was substantial credible evidence to support the chancellor’s finding that the counseling was not medically necessary. This finding would not avail Kathy under the existing decree nor under a modification analysis, as she has failed to show that Neal and Seth have “special psychological needs.” Therefore, we find that this issue lacks merit.

B. Neal’s braces

¶ 27. Braces are a medical expense for which a non-custodial parent is liable, so long as it is reasonably necessary for the child’s health and well being, including mental and physical, and are the proper treatment. Smith v. Smith, 405 So.2d 896, 897-98 (Miss.1981). Whether or not braces are reasonably necessary is a question of fact. Id. at 898.

¶ 28. In 2001, Dennis had his own braces adjusted by Dr. Charles Atkins. Dennis asked Dr. Atkins to assess whether or not Neal would need braces in the future. Dr. Atkins went out in the waiting room and looked at Neal’s teeth. Dr. Atkins noticed that Neal had an overbite, which he inherited from Dennis. Dennis testified that as a result of this consultation, he was under the impression that Neal did not need braces. Dr. Atkins testified that, while Neal had an overbite at the time, he considered Neal too young for braces.

¶ 29. In 2004, Neal’s dentist Dr. Susanne Nichols recommended that Neal see an orthodontist about braces. Kathy discussed this with Dennis, and Dennis offered no objection. He said only that he had made arrangements for payment with Dr. Atkins’s office.

¶30. On September 21, 2004, Dr. Atkins began treating Neal for an overbite, eventually putting braces on Neal’s teeth. By affidavit submitted and entered into evidence, Dr. Atkins testified that the procedure for Neal was both cosmetic and medical. Specifically, the medical benefits were “reduced periodontal involvement, fewer cavities and a lessened chance of joint dysfunction.”

¶ 31. In his trial testimony, Dr. Atkins testified that, without the braces:

the odds are definitely that [Neal] would have more periodontal involvement because of the crowding, that he would have some cavities that he normally wouldn’t have if his teeth were straight.
And there’s less chance of dysfunction because you’ve got the teeth functioning correctly. But there’s no way for me to tell you that we’re definitely going to get that in this particular case. But as a general rule, that’s pretty true.

When asked what was the primary reason for Neal’s braces, Dr. Atkins testified:

Well, he has a deep bite. Showed no lower anterior teeth, which causes — in the future, it usually causes problems with the joints. Not usually, but it occurs much more frequently in a deep bite case than a normal bite case. It would improve his smile. It would get rid of the crowding so that he could brush and floss his teeth ideally.

¶ 32. The chancellor denied payment for the braces, because Kathy “has failed to establish that the instant braces are a medical expense.” We find this to be error. Dr. Atkins’s testimony went uncon-tradicted. Dr. Atkins testified that Neal’s braces were needed for medical reasons. The chancellor’s finding otherwise was therefore not supported by substantial credible evidence. We reverse and render. We find that Dennis is liable for payment of all medical expenses related to Neal’s braces.

¶ 33. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS AFFIRMED ON DIRECT APPEAL AND AFFIRMED IN PART AND REVERSED AND RENDERED IN PART ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

      . This appears to be a clerical error as Dennis’s overpayments were only $4.47 per month.

      . The term “Jubilee,” as used here, comes from the biblical concept known as the Year of Jubilee, which is a year of celebration and forgiveness. See Leviticus 25:8-54.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Leonard POTTS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01066-COA.
    Court of Appeals of Mississippi.
    April 24, 2007.

      David M. Holly, Greenwood, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. On April 19, 2005, Leonard Potts was convicted by a jury in Leflore County, Mississippi of the crimes of failure to register as a sex offender, fondling, and kidnapping. Potts now appeals the Leflore County Circuit Court denial of his motions for directed verdicts. He asserts the following points of error on appeal:

I.THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION FOR A DIRECTED VERDICT IN COUNT I OF THE INDICTMENT, AS THE STATE FAILED TO PROVE PERMANENT OR TEMPORARY RESIDENCE OF THE DEFENDANT, ONE OF THE ESSENTIAL ELEMENTS OF MISS. CODE SECTION 45-33-25.

II. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION FOR A DIRECTED VERDICT IN COUNT II OF THE INDICTMENT, AS THE STATE FAILED TO PROVE THE ESSENTIAL ELEMENTS UNDER MISS. CODE SECTION 97-5-23(1) BY CREDIBLE AND UNCONTRADICTED EVIDENCE.

III. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION FOR A DIRECTED VERDICT IN COUNT III OF THE INDICTMENT, AS THE STATE FAILED TO PROVE FORCIBLE SEIZURE OF THE VICTIM, ONE OF THE ESSENTIAL ELEMENTS OF MISS. CODE SECTION 97-3-53.

FACTS

¶ 2. On May 11, 2004 in Greenwood, Mississippi, Leonard Potts asked to borrow his neighbor, K.D.’s car to run some personal errands. Potts instead drove KD.’s car to pick up ten year old A.J. from A.J.’s aunt’s house. When Potts arrived at the home, A.J. was playing outside. Potts persuaded him to get into the car on the pretense that K.D., a close family friend to A. J., wanted to speak with the child. This was not a true statement, since K.D. never requested to speak with A.J.

¶ 3. According to A.J.’s testimony, Potts fondled him during the ride from his aunt’s house to KD.’s house. Potts told A.J. to pull down his pants as Potts began to rub on his behind. Before they arrived at KJD.’s house, Potts created a story to tell K.D. that would justify the child’s presence with him. Although it was not unusual for A.J. to visit K.D., this was the first time the child had been alone with Potts.

¶ 4. Potts instructed A.J. to tell K.D. that they came to KD.’s house because A.J. was experiencing problems with his step-father. Potts asked K.D. to speak with A.J. about the step-father “problems” as well. K.D. agreed to speak with A.J. but, during their conversation, KD. noticed A.J. was not acting normally. He was non-responsive, he rejected KD.’s offers of food, and he was “fidgety.” K.D. ended the conversation and asked A.J. to call his aunt and inform her of his location. After A.J. spoke with his aunt, K.D. talked with her to inform her A. J. was on the way home. At this point, K.D. asked Potts to take the child back home.

¶ 5. The pair did not go straight back to the aunt’s house. There were approximately seven hours unaccounted for between the time Potts left KD.’s house and when A.J. was seen again. A.J. testified that during this time, Potts drove through neighboring communities as far away as Glendale and Winona, Mississippi. He further testified that Potts told him he could make a lot of money and Potts would buy him clothes and “stuff.” Potts tried to give A.J. money to have sex with him. At some point during the evening, Potts even made A.J. view Potts masturbating with the aid of baby oil while the two were in the car.

¶ 6. A.J. testified that Potts stopped for gas several times and, on one occasion, he avoided the gas station because a police patrol car was present. A.J. cried most of the time he was in the car with Potts but felt he could not leave because Potts was an adult. Near midnight, Potts let A.J. out of the car at a truck stop near A.J.’s house. According to Jerome McCaskill, investigator with Greenwood Police Department, A.J.’s mother reported him missing hours earlier in the day. It was during this time that the police discovered Potts was an unregistered sex offender.

¶ 7. A.J.’s mother notified police when A.J. returned home and Greenwood police arrested Potts after they intercepted him between the truck stop and his residence in Leflore County, Mississippi.

STANDARD OF REVIEW

¶ 8. This Court reviews denials of motions for judgment notwithstanding the verdict and directed verdicts under the same standard. Grihim v. State, 760 So.2d 865, 866(¶ 6) (Miss.Ct.App.2000). We consider the legal sufficiency of all the evidence in the light most favorable to the verdict. Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998). Credible evidence, consistent with the defendant’s guilt, is accepted as true. Pratt v. State, 870 So.2d 1241, 1246(¶13) (Miss.Ct.App.2004). The State is given “the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Smith v. State, 897 So.2d 1002, 1006-07(¶ 20) (Miss.Ct.App.2004) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). We reverse when, considering the elements of the charged offense, reasonable and fair jurors could only find the defendant not guilty. Williams v. State, 863 So.2d 63, 67(¶ 14) (Miss.Ct.App.2003).

ANALYSIS

I. The trial court erred in overruling the defendant’s motion for a directed verdict in Count I of the indictment as the State failed to prove permanent or temporary residence of the defendant, one of the essential elements of Miss Code Section 45-33-25.

¶ 9. Potts was found guilty of failure to register as a sex offender under Count I of the indictment. He challenges the sufficiency of the State’s evidence, asserting he was he was not a Mississippi resident at the time the crime occurred. Mississippi law requires sex offenders, who maintain a permanent or temporary residence in the state, to register with the Mississippi Department of Safety. Miss.Code. Ann. § 45 — 33—25(c) (Rev.2006). Sex offenders establish a “permanent residence” in the place where they abide, lodge, or reside for fourteen or more consecutive days. Miss.Code Ann. § 45-33-25 (Rev.2006). Sex offenders establish “temporary residence” where they reside, lodge, or abide for a total of fourteen days or more during any calendar year and the place is not their permanent address. Miss.Code Ann. § 45-33-23(h) (Rev.2006). If the offender’s permanent residence is not in Mississippi, temporary residence is established where the person “routinely abides, lodges or resides for a period of four or more consecutive or nonconsecutive days in any month and which is not the person’s permanent residence.” Id.

¶ 10. Potts does not deny that he is a sex offender. On March 24, 1995, Potts was convicted in Cook County, Illinois of indecent solicitation and abuse of a child under the age of thirteen. Potts, however, argues he was not required to register as a sex offender with the State of Mississippi because he was still a resident of Chicago, Illinois at the time of the crime. At trial, the State offered the testimonies of K.D. and Chief Investigator Ken Spencer of the Leflore County Sheriffs Department, as evidence that Potts was a Mississippi resident on May 11, 2004.

¶ 11. K.D. testified that, as of the time of trial, he and Potts had lived near one another for about six to nine months. K.D. was aware Potts previously lived in Chicago, but he testified that Potts was a resident of Leflore County, Mississippi on May 11, 2004. K.D. and Potts had numerous conversations and they would have barbecues and fish fries together. K.D., who is confined to a wheel chair, said Potts often helped him by running errands in his car and taking him places. Although K.D. could not give an accounting of Potts’s whereabouts everyday, he did testify that he saw Potts on a regular basis. K.D. specifically recalled seeing Potts on the two days leading up to the May 11th incident.

¶ 12. Investigator Spencer testified that the police department discovered Potts was a convicted sex offender in Illinois, and they notified the Leflore County Sheriffs Department that Potts had failed to register as a sex offender in Mississippi.

¶ 13. During cross-examination at trial, Investigator Spencer testified that Potts gave the police 8336 South Crandon Avenue, Chicago, Illinois, as his address when he was arrested. Spencer was unable to testify, as to his personal knowledge, how long Potts had been in the state.

¶ 14. It is the jury’s duty to weigh the evidence presented at trial and determine the facts. In re Extension & Enlarging of Boundaries of the City of Laurel, 922 So.2d 791, 795-96(¶7) (Miss.2006). This Court reviews the legal sufficiency of the evidence in the light most favorable to the State, the non-moving party in this appeal. Garris v. Smith’s G & G, LLC, 941 So.2d 228, 231(¶ 6) (Miss.Ct.App.2006). We are prevented from overturning the jury verdict unless “it is clear that the verdict is a result of prejudice, bias or fraud, or is manifestly against the weight of the credible evidence.” Id.(citing Sessums v. Northtown Limousines, 664 So.2d 164, 168-69 (Miss.1995)). We find that the verdict was supported by legally sufficient evidence and thus, the trial court did not err in denying Potts’s motion for a directed verdict as to Count I of the indictment.

II. The trial court erred in overruling the defendant’s motion for a directed verdict in Count II of the indictment as the State failed to prove the essential elements under Miss. Code Section 97-5-23(1) by credible and uncontradicted evidence.

¶ 15. Potts was found guilty of fondling under Count II of the indictment. Potts challenges the sufficiency of the State’s evidence, asserting the State failed to prove by credible and uncontradicted evidence that he fondled the victim. The elements of the crime are:

Any person above the age of eighteen (18) years, [2] who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, [3] shall handle, touch or rub with hands or any part of his or her body or any member thereof, [4] any child under the age if sixteen (16) years, with or without the child’s consent shall be guilty of a felony.

Miss.Code Ann. § 97-5-23(l)(Rev.2006).

¶ 16. A.J. testified that Potts told him to pull down his pants while Potts rubbed his behind. He also testified that Potts used baby oil to masturbate. K.D. stated he saw baby oil and tissue in his ear the next morning when his car was returned to him from police custody. According to K.D., neither of the two items were present the previous day when K.D. loaned Potts the car. On direct examination, Detective McCaskill of the Greenwood Police Department offered corroborating testimony by saying he noticed a roll of toilet paper and a bottle or container that appeared to be baby oil in KD.’s car as well. After further investigation, McCaskill was informed that the items did not belong to K.D.

¶ 17. Potts argues that A.J.’s testimony is unbelievable because the child failed to inform K.D., his aunt, or anyone at the gas stations where they stopped for gas about the fondling during the seven hours Potts had A.J. Potts also argues that if A.J.’s testimony were credible, he would not have gotten back into the car after leaving KD.’s house. As a further challenge to the credibility of AJ.’s testimony, Potts notes that no baby oil was found on A.J.’s body when he was examined at the hospital after the incident. This argument is speculative, at best, since there was no evidence offered during trial regarding the hospital results.

¶ 18. This Court leaves the responsibility of resolving factual disputes in the hands of the jury. Brown v. State, 934 So.2d 1039, 1044(¶18) (Miss.Ct.App.2006). The jury was faced with weighing the credibility of the witnesses’ testimonies and evidence presented. We are not at liberty to direct that Potts be discharged from his sentence, absent a finding that the evidence before this Court is so contrary to the overwhelming weight of the evidence, affirming the verdict would constituted “unconscionable justice.” See id. We find the verdict was supported by legally sufficient evidence, and thus the trial court did not err in denying Potts’s motion for a directed verdict as to Count II of the indictment.

III. The trial court erred in overruling the defendant’s motion for a directed verdict in Count III of the indictment as the State failed to prove forcible seizure of the victim, one of the essential elements of Miss.Code Section 97-3-53.

¶ 19. Potts was found guilty of kidnapping under Count III of the indictment. He challenges the sufficiency of the State’s evidence, asserting the State failed to prove “force.” The indictment reads as follows:

That Leonard Potts, on or about the 11th day of May, 2004, in Leflore County, did unlawfully, willfully, feloniously, and forcibly seize and confíne [A.J.], a human being, by removing from a place where he/she had a right to be to another place with the intent to cause to be secretly confined or imprisoned against his/her will against the peace and dignity of the State of Mississippi.

¶ 20. Under Mississippi law, the elements of kidnapping are,

Any person who:

(1) without lawful authority;
(2) and with or without intent to secretly confine;
(3) shall forcibly seize and confine any other person;
(4) or shall inveigle or kidnap any child under the age of sixteen (16) years;
(5) against the will of the parents or guardian or person having the lawful custody of the child.

Miss.Code. Ann. § 97-3-53 (Rev.2006).

¶21. In the interest of due process, the State is required to prove each element in the indictment beyond a reasonable doubt. Hennington v. State, 702 So.2d 403, 408(¶ 16) (Miss.1997). Potts argues that since the “inveigle” language was not included in the indictment, the State was prohibited from convicting Potts of kidnapping by trickery. It is true that Potts initially kidnapped A.J. through deceit or inveiglement when Potts falsely informed A.J. that K.D. sent Potts to pick him up. However, after A.J. was lured into the vehicle, Potts actions sufficiently met the definition of forcible seizure and confinement.

¶ 22. In United States v. Hefferon, 314 F.3d 211, 225 (5th Cir.2002), the court found the amount of “force” required to overtake another person’s will to resist is “directly proportional to the development of the other’s will.” Id. at 226. The court rejected the defendant’s rigid definition of physical force because it did not take into account the victimization of very young and very vulnerable people, “whose wills are either undeveloped or can be overcome with less than a full blown assault.” Id. The court concluded that the definition of force is flexible and subject to multiple interpretations and should be applied to the particular facts in question on a case by case basis. Id. (citing United States v. Hawkins, 87 F.3d 722 (5th Cir.1996)). In Standi v. State, 78 Md.App. 376, 553 A.2d 268, 272 (1989), the court similarly held force requirements are lowered in the area of child kidnapping and each taking requires a case by case analysis. These cases support the finding that, given the particular facts of this case, Potts satisfied the definition of forcible seizure and confinement.

¶ 23. To recount the pertinent facts in this case, Potts first picked up A.J. and drove around for a period of time, during which he fondled the child. Having gratified his lust, he then took A.J. to KD.’s house. Although K.D. never asked Potts to bring A.J. to his home, he did attempt to speak with the child. K.D. noticed AJ.’s unusual demeanor, such as refusing offers of food and being fidgety and non-responsive. After being unable to converse with A.J., K.D. requested Potts take A.J. back to his aunt’s house.

¶24. After leaving KD.’s house, Potts drove the victim around in a car for approximately seven hours, stopping at several gas stations and in communities, such as Glendale and Winona, Mississippi. Testimonies revealed that this drive began in the evening and continued well into the nighttime hours. A.J. indicated that he viewed Potts as an authority figure and felt he could not leave because he was required to obey him. Additionally A.J. indicated that while he wanted to leave, he did not know his way back home from the locations Potts took him. Potts argues that A.J. was not forcibly confined because he could have remained at K.D.’s house or one of the gas stations where they stopped to get gas.

¶ 25. A plain reading of Potts’ indictment and the Mississippi statute reveals that the offense of kidnapping was complete when Potts “forcibly confined or seized” A.J. and “removed him from a place where he had a right to be” (on his way straight home from K.D.’s house to his aunt’s house) “to another place” (communities as far away as Glendale and Wi-nona, Mississippi) “with the intent to secretly confine or imprison him against his will” (A.J. testified he wanted to leave he but felt he could not leave).

¶ 26. Potts does not have any support for his assertion that if there is a means of escape, the victim is not forcibly confined. We decline to read into the statute a duty to escape from kidnapping before we find the kidnapping is complete. In Russell v. State, 834 So.2d 714, 717-18 (¶¶ 15-18) (Miss.Ct.App.2002), we rejected the defendant’s argument that the victim was not kidnapped because she failed to take advantage of many opportunities to escape the defendant’s confinement. Id. Sufficient evidence existed to support a jury finding that the victim was adequately fearful of defendant such that she would not escape, even when she was temporarily out of his presence. Id. at 718.

¶27. AJ.’s age, the locations of his confinement, and the time of night the crime occurred are all factors that were squarely before the jury during deliberation. It is the jury’s duty to determine the weight and credibility of the evidence. Williams v. State, 923 So.2d 990, 995(¶ 19) (Miss.2006). Considering the evidence in this case, in the light most favorable to the verdict, we can not reverse in favor of the defendant absent a finding that no reasonable, hypothetical juror could find that Potts was guilty beyond a reasonable doubt. Flora v. State, 925 So.2d 797, 822(¶ 81) (Miss.2006): We find the trial court did not err in denying Potts’s motion for a directed verdict as to Count III of the indictment.

¶ 28. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF CONVICTION OF COUNT I OF FAILURE TO REGISTER AS A SEX OFFENDER AND SENTENCE OF FIVE YEARS; COUNT II OF FONDLING AND SENTENCE OF FIFTEEN YEARS TO RUN CONSECUTIVELY WITH SENTENCE IN COUNT I; AND COUNT III OF KIDNAPPING AND SENTENCE OF THIRTY YEARS TO RUN CONSECUTIVELY TO SENTENCES IN COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LE-FLORE COUNTY.

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

      . In order to protect the victim’s identity, this Court will use initials to identify the victim and all related witnesses.

      . Potts was sufficiently put on notice that he would be charged under the kidnapping statute, thus availing himself to prosecution under forcible seizure or inveigling. Without addressing the sufficiency of the indictment, we find that forcible seizure was present in the case. See Stevens v. State, 808 So.2d 908, 919(¶ 31) (Miss.2002). In Stevens, the court rejected the defendant's argument that he could not be charged with aggravated assault because the indictment failed to enumerate the crime’s elements. The indictment tracked the language of the statute and the court determined the defendant was sufficiently placed on notice of the crime under which he was charged. Id. at 919-20.


author: IRVING, J.,

text:
    Amy WALKER, Appellant v. Bobby GANN and Benchmade, Inc., a Mississippi Corporation, Appellees.
    No. 2005-CA-01747-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.

      James H. Walker, Cleveland, attorney for appellant.
    B. Leon Johnson, and Wilton V. Byars, Elizabeth Ross Hadley, Oxford, attorneys for appellees.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of a personal injury claim filed by Amy Walker against Bobby Gann and Benchmade, Inc. After all the evidence had been produced, the jury found that Gann was liable, and that Walker’s damages totaled $14,000. The jury also found that Walker was forty percent at fault for the accident, and the court therefore reduced her final award to $8,400. Aggrieved, Walker appeals and asserts that the court erred in refusing to grant a jury instruction, in improperly commenting on evidence, in refusing to grant a motion in limine, and in refusing to grant Walker’s motion for a new trial or an additur.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On January 29, 1997, Walker and Gann were both driving north on Highway Seven south of Coffeeville, Mississippi. The highway is a two-lane road, with one lane south-bound and one lane northbound. Walker was behind Gann, who was driving behind a small truck that was also north-bound. Walker was in a Jeep Grand Cherokee and Gann was in a fourteen-wheel tractor trailer. The small truck in front of Gann apparently was proceeding at a rather slow pace. Therefore, when the opportunity arose, Gann attempted to pass the truck in front of him, and Walker attempted to pass Gann.

¶ 4. Walker testified that she had turned on her signal and pulled into the southbound lane to pass Gann, and had proceeded part of the way alongside Gann’s vehicle, when Gann came into the south-bound lane as well, hitting Walker’s vehicle. Walker testified that the contact between the vehicles caused her to lose control and go off the right side of the road, where she collided with a stand of pine trees. Gann testified that he checked both his mirrors before moving to the left to pass the truck in front of him, but did not see Walker in his mirrors. Gann testified that, after he had started moving to the left, he saw Walker veer off the right side of the road behind his truck, at which point Gann stopped and went to render aid. Gann knew of no physical contact between his vehicle and Walker’s.

¶ 5. At trial, the defense disputed whether there was any actual contact between Gann and Walker. Walker claimed that there was contact between the two vehicles, while Gann, James Hannah, a defense expert, the investigating officer at the scene of the accident, and Walker’s own expert, Dennis Faust, all testified that they believed that there was no actual contact between the vehicles. Ashley Wilbourn, a passenger in Walker’s vehicle, testified at trial that there was contact between the vehicles, although she had previously testified at her deposition that she did not recall any contact between the vehicles. Anthony Harbour, who witnessed the accident, testified that he did not see any contact between the vehicles.

¶ 6. Also contested at trial was whether Walker was following too closely to Gann. Evidence was introduced to indicate that the operator of a tractor-trailer truck like the one that Gann was driving has a “blind spot” immediately behind the back of the vehicle such that, if a vehicle is following too closely to the truck, the operator of the truck will not be able to see the vehicle. As a result of all the testimony presented, Hannah opined that the cause of the accident was Walker’s failure to maintain a safe distance and proper lookout, and, ultimately, Walker’s failure to maintain control of her vehicle. Faust, Walker’s expert, also admitted that Walker had a duty to maintain a proper lookout.

¶ 7. Several experts testified regarding Walker’s alleged physical and mental injuries resulting from the accident. The defense produced its own experts to counteract the testimony of Walker’s experts, and introduced evidence showing that Walker has suffered little to no permanent impairment as a result of the accident. The only undisputed injuries were the bruises and minor injuries that Walker was treated for immediately after the accident.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Jury Instruction

¶ 9. Walker contends that the court erred in refusing to grant her proposed jury instruction P-2. P-2 reads:

The Court instructs the jury that the Defendant, Bobby Gann, is guilty of negligence by failing to comply with his duty to keep a proper lookout, specifically his failure to ascertain the location of Plaintiffs vehicle prior to turning from the northbound lane of Mississippi Highway 7 to the left southbound lane or passing lane, attempting to pass another vehicle without ascertaining he could do so with reasonable safety, if you further find that the Defendant, Bobby Gann’s failure to comply with this duty was a proximate contributing cause to the Plaintiffs injuries, then your verdict shall be for the Plaintiff, Amy Walker, against the Defendants.

(emphasis added).

¶ 10. As support for her argument that the instruction should have been allowed, Walker points to Gates v. Murphree, 286 So.2d 291 (Miss.1973), where the Mississippi Supreme Court affirmed a trial court’s decision to give the jury an instruction telling it that the defendant was negligent as a matter of law. What Walker misses is that the defendant in Gates admitted that he had failed to maintain a proper lookout when he testified that he began to pass the vehicle in front of him on a curve in the road where it was not possible to maintain a proper lookout. Id. at 292. The court noted: “The general rule is that when a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him ... he is conclusively bound by his own testimony, and cannot successfully complain if the court directs a verdict against him.” Id. at 293.

¶ 11. In this case, the issue of whether Gann was negligent was contested. Gann’s unequivocal testimony was that he had, in fact, maintained a proper lookout by checking his mirrors before attempting to pass the truck in front of him. Gann testified that he did not see Walker behind him when he looked in his mirrors. No evidence was offered to indicate that it was impossible for Gann to keep a proper lookout, as was shown of the stretch of road in Gates. Therefore, an instruction in this case that informed the jury that Gann was negligent as a matter of law would have been improper.

¶ 12. “While a party is entitled to have jury instructions submitted that represent his or her theory of the case, 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.” Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 380(¶ 16) (Miss.2004) (quoting Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1054(¶ 6) (Miss.2003)). The proposed instruction was without foundation in the evidence, and the court did not err in refusing it. This issue is without merit.

2. Improper Comment on the Evidence

¶ 13. Here Walker claims that the court improperly commented on the evidence while giving its instructions to the jury. In instructing the jury, the court stated:

All of my instructions have a blue number at the top of the page and I’m going to read you instruction No. 24 next and I’m going to put it on top of the stack. Twenty-four tells you how to record a verdict if you, in fact, reach a verdict. Twenty-four is a two-page instruction and some of it’s even in handwriting, some of it’s typed, but I think the instruction will lead you where you want to go if you will follow it. It reads as follows: “When you reach a verdict in this case you should write it down on a separate piece of paper” — well, if you prefer to fill in the blanks, that will be acceptable on this case because it’s a two-part instruction. “If you find for the plaintiff, you will say, we, the jury find for the plaintiff and assess her total damages as” — whatever money amount you may in your mind agree on. If you find for the defendants, all you’ve got to say is, “We, the jury, find for the defendants.”
Going back, if you find for the plaintiff, you should write in the total damages you think she’s sustained. Then it tells you, “If you find for the plaintiff and award damages, and if you find that both parties were at fault in causing this accident, refer to page two of these instructions.”
Page two tells you: “Complete the following paragraph and the blanks as required by your verdict. If you assess a percentage of fault to any of those listed below, write in the pereentage[s], [which] when added together it can’t exceed 100 percent. If you assess a percentage of fault to any of those listed below, the total such percentage must be 100 percent.”
All right. On the claim. If you find, “We the jury assess percentage of fault as follows” — if this is your finding, “If you find Amy Walker was guilty of negligence,” and determine what percent you think she was, write it in. If you think Bobby Gann was guilty of negligence, write it in. Total up, which must equal 100 percent. And then I’ll be required — if you come out and say it was 60-10 or something like that, to come back and lessen this amount here by the amount of fault that you attribute to the other party.
Now, this may sound real complicated but it’s not. You would put your total damages, come back, tell me, we find that she was damaged this much but she was guilty of this much negligence, then I would have to reduce the amount of total damages by the amount of negligence you tell me that she was guilty of. It’s not a difficult instruction; the lawyers will probably want to go into more detail with you on that instruction. That’s the way we’re required under existing law today to deal with these cases and most all cases now, or at least a lot of them. We make it as simple as we can, but it does sounds [sic] complicated when you’re confronted for the first time.

(emphasis added). Walker claims that this statement to the jury constitutes reversible error because “the aforesaid jury instruction to the jury wrongfully instructed the jury which was extremely prejudicial to the Plaintiff....”

¶ 14. Mississippi Code Annotated section 11-7-155 (Rev.2004) states: “The judge in any civil cause shall not sum up or comment on the testimony, or charge the jury as to the weight of the evidence.” Walker contends that the judge in this case violated this section. As proof, Walker points to the fact that the jury came to the same division of fault as the court gave in its example, that is sixty-forty.

¶ 15. We note first that the court informed both parties before instructing the jury that he would discuss further with the jury how to find its verdict: “I’m going to try to impress on them how to follow that instruction, but it’s obviously proper areas for argument and explanation for the attorneys also.” We further note that no objection was made by Walker when the judge gave the jury the sixty-forty percent example. The closing arguments of counsel are not included in the record before us, so this Court is without knowledge as to whether Walker or the defendants made further arguments to the jury about how to fill out its verdict.

¶ 16. Walker’s claim on this issue is procedurally barred for failure to contemporaneously object to the court’s comment. In Parker Tractor & Implement Co. v. Johnson, 819 So.2d 1234, 1242 (¶¶ 33-35) (Miss.2002), the Mississippi Supreme Court noted that an appellant had failed to preserve error for appeal where a judge made a brief comment which was not objected to until well after the remark had been made. In the present case, no objection was ever made to the court’s comment. As the Parker court noted, “[cjontemporaneousness is critical because it allows the judge to avert a mistrial, if possible, by admonishing the jury to disregard the utterance.” Id. at 1241 (¶ 33).

¶ 17. In response, Walker quotes Nichols v. Munn, 565 So.2d 1132, 1137 (Miss.1990), where the Mississippi Supreme Court stated:

[t]he circuit judge injecting himself into a trial, however, does so by his own deliberative intent, and he is at least supposed to know better. He should not need to be told by trial counsel that he has exceeded propriety or deviated from probity. We therefore need not hold trial counsel to precisely the same degree of diligence in [that] instance. ...

The court went on to note that the judge’s comments in Nichols constituted “plain error, requiring reversal.” Id.

¶ 18. Therefore, in the absence of a contemporaneous objection, the court’s comment must rise to the level of plain error in order to require reversal. “ ‘[I]n order to reverse under the plain error doctrine, the reviewing court must find both error and harm.... ’ Additionally, issues of plain error will only be addressed if the fundamental rights of a party have been violated.” HWCC-Tunica, Inc. v. Jenkins, 907 So.2d 941, 944(¶ 7) (Miss.2005) (quoting Bolden, 854 So.2d at 1059(¶ 22), citing Johnson v. Gray, 859 So.2d 1006, 1015(¶ 43) (Miss.2003)). Therefore, the comment in this case must have violated one of Walker’s fundamental rights. Taken in context, it is clear that the example given to the jury was simply to aid their understanding of what would happen when they rendered their verdict, and how the form of their verdict should look. We fail to see that the instruction violated any of Walker’s fundamental rights. Therefore, the statement, at best, constitutes harmless error that is procedurally barred in the absence of a contemporaneous objection.

¶ 19. We would find this issue without merit even if a contemporaneous objection had been lodged by Walker. In MIC Life Ins. Co. v. Hicks, 825 So.2d 616, 624-25(¶28) (Miss.2002), the Mississippi Supreme Court noted that a judge had improperly invaded the province of the jury with his remarks when he had “chastised the witness for ... ‘equivocating.’ He instructed the witness to ‘be candid.’ ” As the court noted, “instructing a witness to ‘be candid’ is tantamount to informing the jury that the witness is being deceitful and evasive.” Id. at 625(¶28). We note that the judge’s comment in this case is far from the level of insertion of the judge in MIC. Nothing in the judge’s explanation indicated anything about how the judge felt that the jury should rule, nor was the judge’s comment “tantamount” to commenting on evidence that had been presented. Quite simply, Walker has failed to show that the comment prejudiced her case in any way or that the comment improperly affected the jury in any way. Therefore, this issue would be without merit even in the absence of the procedural bar.

3. Expert Witness

¶ 20. In her third assignment of error, Walker contends that the court erred in allowing the testimony of James Hannah, the defendants’ expert accident reconstruc-tionist. Specifically, Walker claims that the defendants committed a discovery violation in not giving the grounds for Hannah’s opinions, and that Hannah’s testimony was not based on reliable principles and should have been excluded. We address each of these contentions in turn.

(a) Discovery Violation

¶ 21. According to Rule 26 of the Mississippi Rules of Civil Procedure, a party’s expert witness designation must “state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” M.R.C.P. 26(b)(4)(A)(i). The designation provided by the defendants for Hannah stated, in part:

Mr. Hannah is expected to be offered as an expert in the area of accident investigation and reconstruction.... In formulating his opinions, Mr. Hannah has reviewed the Mississippi Uniform Accident Report; photographs of the jeep involved in the accident (Walker vehicle); the depositions of Bobby Gann, Officer Weaver, Ashley Wilbourn, and Amy Walker; the witness statement of Anthony Harbor [sic]; witness statement of Ashley Wilbourn; medical records from Grenada Lake Medical Center; Complaint; Answer and Defenses; and the report of Dennis Faust dated October 28, 2004. In addition, Mr. Hannah has conducted an inspection of the accident scene and has supervised a survey of the accident scene. Mr. Hannah is expected to testify that the vehicle operated by Amy Walker was traveling northeast on Mississippi State Highway 7 approximately 5 miles south of Coffeeville. She was operating her vehicle behind an 18-wheeler driven by Bobby Gann. As the two vehicles neared Yalobusha County Road 71, Highway 7 had a double yellow line which designated a no-passing zone. As the vehicles continued north, they reached a point designated for safe passing by means of a broken yellow line. The distance between the start of [the] broken yellow line and the point of the rest of the jeep was 1,250 feet.... The posted speed limit for the area was 55 mph. At the time of the accident, the roadway was dry and the accident took place during the day. Both Bobby Gann and Amy Walker were traveling behind a slow moving vehicle. They each state that they began to attempt to pass the slow moving vehicle. Within each driver’s remembrance, oncoming traffic was clear. The maneuver to pass is a standard act, such as accelerating and braking. There was no evidence of contact between the vehicles. James Hannah concurs with Trooper Weaver that this was a one vehicle accident as set forth in the Mississippi Uniform Accident Report. Mr. Hannah also concurs with Officer Weaver that Amy Walker was following too closely behind the 18-wheeler operated by Bobby Gann prior to the accident. It is James Hannah’s opinion that the sole cause of the accident was Amy Walker following too closely and failing to keep her vehicle under control by not braking and/or steering in such a manner to maintain control of her vehicle. Mr. Hannah reserves the right to supplement his opinion as additional information becomes available.

¶ 22. Despite the above designation, Walker first objected to Hannah’s testimony on the ground that: “It’s a discovery violation. I’ve never been given any opinions or summaries for grounds for his opinions in discovery.” In response, the defendants pointed out that “we have answered discovery. I’ve got three pages worth of his opinions. I produced three diagrams, five photographs, and this was all done probably a year and a half or two years ago.” Thereafter, the court reviewed the expert designation provided for Hannah and ruled: “I think the discovery request has been substantially complied with it [sic]. That should give opposing counsel a good overview of what’s expected from this witness and I think that’s what the point of discovery is.... It may not be perfect, but I think it’s substantial compliance.”

¶ 28. Hannah’s specific testimony that Walker objects to regards the speed that Walker would have had to have been going to reach a certain point on Gann’s truck at the time of the accident. During Hannah’s direct examination, he was asked, “were you in the courtroom ... when Mr. Faust gave his opinions?” Hannah indicated that he was in the courtroom during Faust’s testimony. Hannah was then questioned about Faust’s testimony regarding speed, distance, and the time it would have taken Walker to reach a certain point on Gann’s vehicle. Eventually, Walker’s attorney objected: “None of these last half a dozen questions were put in the answers to interrogatories. His testimony is set out for me on a piece of paper I got here and none of this was in it.” In response, the defendants’ attorney pointed out that the testimony was elicited in response to Walker’s own expert’s testimony regarding speed, distance, and time. The court overruled Walker’s objection, noting, “I think this witness is proper.”

¶ 24. “[T]he admission of expert testimony is within the sound discretion of the trial judge.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 81, 34(¶ 4) (Miss.2003) (citing Puckett v. State, 737 So.2d 322, 342(¶ 57) (Miss.1999) (overruled on other grounds)). We will not disturb the decision of a trial judge in this regard “unless we conclude that the [decision] was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id. (quoting Puckett, 737 So.2d at 342(¶ 57)). We have stated that “discovery responses regarding experts do not, indeed cannot include everything that an expert witness will state at trial.” Peterson v. Ladner, 785 So.2d 290, 295(¶ 20) (Miss.Ct.App.2000).

¶ 25. The court did not clearly err in allowing Hannah to testify. We note that the designation clearly indicated that Hannah would testify that “the sole cause of the accident was Amy Walker’s following too closely and failing to keep her vehicle under control by not braking and/or steering in such a manner to maintain control of her vehicle.” It follows reasonably from this summary of Hannah’s opinion that Hannah might testify about the speeds, distances, and times involved in the accident. Furthermore, the testimony objected to was clearly in response to opinions given by Faust, Walker’s expert, during his testimony.

¶ 26. Walker also contends that the designation was insufficient to support Hannah’s trial testimony because Hannah opined at trial that part of the cause of the accident was Walker’s failure to maintain a proper lookout. However, some of Hannah’s testimony dealing with the issue of whether Walker maintained a proper lookout was also elicited as a result of testimony by Faust and other witnesses as to what happened. Specifically, Hannah was asked, “If Mr. Faust said [that if Walker was near the cab of Gann’s truck and did not see the vehicle in front of Gann, then Walker was not maintaining a proper lookout], do you agree with him?” Hannah responded in the affirmative. After stating on the stand that he found the cause of the accident to be “that the vehicle to the rear did not keep a proper lookout and failed to maintain control of the vehicle,” Hannah went on to explain how a proper lookout and how following too closely are inextricably related. Hannah then testified that his expert designation had, in fact, included his opinion that the accident was caused by Walker following too closely to Gann. Given the wide latitude enjoyed by trial judges in determining the admissibility of expert testimony, the court did not clearly err in allowing Hannah’s testimony.

¶ 27. Walker cites several cases, that she contends support her position. However, by and large, these cases provide no support whatsoever for Walker’s contentions. For example, in Buskirk v. Elliott, 856 So.2d 255 (Miss.2003), the Mississippi Supreme Court affirmed a trial court’s decision to allow an expert’s testimony, even though the expert was improperly identified as a urologist in the expert witness designation. On appeal, the appellants claimed that allowing the testimony was error, and cited numerous ways that the misidentification had prejudiced their case. Id. at 262(¶ 18). The court rejected the reasons, noting “the substance of the interrogatory response ... was sufficient to give [the appellants] adequate notice of his expertise, despite his misidentification as a urologist.” Id. at 264(¶ 23). The Buskirk court found that admission of the expert’s testimony was not error, even in light of a blatant discovery violation. By contrast, there was no blatant discovery violation in the present case.

¶ 28. Walker also cites Square D Co. v. Edwards, 419 So.2d 1327 (Miss.1982), where the Mississippi Supreme Court reversed a case because the information given in an expert witness designation was insufficient. The designation initially indicated that no opinion was known, but was later supplemented to refer to a deposition taken of the expert. Id. at 1327. At trial, the expert testified that there were three defects in the design of a switch. Id. However, this opinion was not given in the deposition referred to in the supplement. Id. at 1328. Therefore, the court held that the testimony should have been excluded because the subject matter of the expert’s opinion was never given prior to trial. Id. at 1329. Such is clearly not the situation in the case before us, where the subject matter of Hannah’s opinions was given to Walker several months before trial, in the form of the defendants’ expert witness designation.

¶ 29. This contention of error is without merit.

(B) Reliability of Testimony

¶ 30. Walker also contends that Hannah’s testimony lacked a reliable basis and should have been excluded. Specifically, Walker questions, “How in the world can the expert witness James Hannah of the Defendants make such an unfounded statement [that Walker was following too closely] not based upon sufficient facts or data, not supported by the facts, and no evidence whatsoever of same.”

¶ 31. Rule 702 of the Mississippi Rules of Evidence allows expert testimony, where qualified and where the testimony will be of aid to the jury, as long as “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Mississippi utilizes a modified Dauberf standard to determine the admissibility of expert testimony: “First, the court must determine that the expert testimony is relevant [i.e., that the testimony will assist the trier of fact].... Next, the trial court must determine whether the proffered testimony is reliable.” McLemore, 863 So.2d at 38(¶ 16) (citations omitted). In determining whether the testimony is reliable, there is a non-exhaustive list of factors that the court should use. Id. at 36-37(¶ 13).

¶ 32. Here, Hannah stated that he was basing his testimony and opinions on multiple pieces of evidence, including the layout of the accident scene, Walker’s testimony, Anthony Harbour’s testimony, Gann’s testimony, and the opinions and findings of the officer who investigated the scene. On the stand, Hannah explained how each of those pieces of evidence supported his finding that Walker was following too closely to Gann at the time of the accident. Walker makes much of the fact that Gann testified that he did not see Walker immediately before the accident, but according to Hannah and other evidence, this supports a finding that Walker was following too closely, and was therefore in Gann’s blind spot. Hannah’s testimony was based on sufficient facts and data.

¶ 33. Hannah also indicated that his findings were based on reliable principles and methods. Hannah testified regarding his extensive training and experience in investigating accidents and their causes. Hannah explained how scientific principles supported his findings. Therefore, his testimony meets the second prong of Rule 702. Nothing indicates that those princi-pies and methods were not applied reliably to the facts of the present case. Therefore, Hannah’s testimony also meets the last prong of the Rule 702 test. The court here fulfilled its gatekeeping function in accordance with the modified Dauberb standard, although there was no formal Daubert hearing. First, Hannah’s testimony was clearly relevant. Furthermore, there was ample evidence that Hannah’s testimony was reliable. Therefore, the court did not err in finding that the testimony was admissible.

¶ 34. As support, Walker points out that Dennis Weaver, the officer who investigated the accident, found that Walker had the right of way and did not indicate that Walker was following too closely to Gann. Walker then contends that “[fjollow-ing too close is something that comes into play when one motor vehicle is following another and runs into the rear.” Walker essentially disputes the defendants’ theory of the case. However, Walker presented her theory of the case at trial. The decision as to which of these theories is more compelling is one left to the jury. Nothing indicates that it was impossible for Walker’s proximity to Gann’s vehicle to be a contributing factor in this accident. Therefore, there was a basis for Hannah’s testimony and finding that Walker’s following too closely caused the accident in question. The question of the credibility of that finding is one properly left to the jury.

¶ 35. Walker contends that Hannah’s testimony had to be based on guesswork or speculation. However, such is simply not the case. In fact, at one point the court sustained an objection and noted that Hannah’s testimony appeared to have crossed into the realm of speculation. The defendants’ attorney rephrased the question accordingly. Shortly thereafter, Walker objected to a different question, and the court asked Hannah, “can you intelligently answer that, Officer, or is that something that’s just guessing?” Hannah responded, “No, it’s not guessing, sir, it’s based on the facts of what was available to the driver.” Hannah repeatedly explained the basis for his opinions and findings. The record does not reflect that Hannah’s testimony was the result of guesswork.

¶ 36. This contention is also without merit.

4. Additur/New Trial

¶ 37. In her final claim of error, Walker contends that the trial court erred in refusing to grant her motion for a new trial or, in the alternative, refusing to grant an additur to supplement the jury’s finding of damages. Because the two issues are distinct, we separately address both the addi-tur claim and the motion for a new trial.

Additur

¶ 38. The question of whether a jury award is excessive must be addressed on a case-by-case basis. Bolden, 854 So.2d at 1058(¶20) (Miss.2003). “We will not disturb a jury’s award of damages unless its size, in comparison to the actual amount of damage, shocks the conscience.” Id. (citing City of Jackson v. Locklar, 431 So.2d 475, 481 (Miss.1983)). In reviewing a jury’s award of damages, “after the trial court has refused to grant a new trial on the question of damages, the question then becomes whether the verdict was either so excessive or inadequate as to shock the conscience and to indicate bias, passion and prejudice on the part of the jury, or, whether the jury failed to respond to reason.” Walmart Stores, Inc. v. Johnson, 807 So.2d 382, 392(¶27) (Miss.2001) (quoting Dorris v. Carr, 330 So.2d 872, 874 (Miss.1976)). “The party seeking the addi-tur bears the burden of proving his injuries, loss of income, and other damages. We view the evidence in the light most favorable to the defendant, giving him all favorable inferences that may be reasonably drawn therefrom.” Patterson v. Liberty Assocs., L.P., 910 So.2d 1014, 1020(¶ 19) (Miss.2004) (quoting Maddox v. Muirhead, 738 So.2d 742, 743-44(¶ 5) (Miss.1999)). We review the trial court’s denial of an additur under an abuse of discretion standard. Id.

¶ 39. Walker quotes section 41-9-119 of the Mississippi Code, which states: “Proof that medical, hospital, and doctor bills were paid or incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.” Miss.Code Ann. § 41-9-119 (Rev. 2005). Walker then points out that she submitted an itemization of her medical expenses, totaling $43,690.40, the admission of which was uncontested by the defendants. However, as the defendants point out in their brief, “[t]he fact that the medical bills were authenticated, not hearsay and, therefore, admissible, has absolutely no relevance to the reasonableness and necessity of those charges.”

¶ 40. The statute cited by Walker provides no relief to her for the simple reason that she did not conclusively prove that the bills in question were incurred as a result of her injury. It is that very causation that was contested by the defendants and their evidence. The only bills that were uncontested were those that Walker incurred immediately after the accident, which related to bruises to her knees and other minor injuries. Virtually every other injury, both physical and mental, claimed by Walker was strongly contested by the defendants’ expert witnesses and other evidence. Furthermore, even if Walker had proven that the bills were incurred as a result of her injury, the bills act only as prima facie evidence. The Mississippi Supreme Court has clearly stated that such bills may be refuted by other evidence, such as the expert witness testimony and other evidence in this case. See Purdon v. Locke, 807 So.2d 373, 378-79(¶ 15) (Miss.2001).

¶ 41. Multiple expert witnesses offered on behalf of the defense contested both Walker’s physical and mental injuries. Furthermore, Walker’s own experts indicated that their diagnosis of Walker was dependent on the truthfulness of their discussions with her. In other words, the diagnoses in question were based on Walker’s claims of pain and other injuries and problems; if Walker was not telling the truth, the diagnosis would be incorrect. Wilbourn, who was involved in the accident, testified at her deposition that the only injuries to Walker that she could recall was knee pain and a scratched face. In addition, multiple photographs were introduced of Walker after the accident, socializing with her friends in various locations, such as on Spring Break in Florida. Some of the pictures show Walker in odd poses, such as standing on the edge of a chair, or being carried on the back of another girl. Furthermore, it was revealed at trial that Walker had maintained high grades throughout college after the accident, and had graduated with honors. Walker also apparently took and did very well on the LSAT after the accident. Finally, individuals who had known and lived with Walker after the accident testified that they had never known of her to complain of pain or exhibit any other signs of having been injured in the accident. Although Walker claimed that she is no longer able to work, Patsy Bramlett, a vocational rehabilitation counselor offered by the defense, testified that it was her opinion that “there has been no loss of earning capacity, no loss of future earning capacity, and ... Walker would be able to engage in employment for which she is trained with her college education and be able to earn the same wage that she would have earned had she not been involved in the ... accident.” In short, there was ample evidence that many of the injuries claimed by Walker were either non-existent or were exaggerated.

¶42. Mississippi appellate courts have granted or affirmed an additur in multiple cases. However, in none of those cases have the damages or injuries been contested to the extent of the damages and injuries in this case. See, e.g., Gaines v. K-Mart Corp., 860 So.2d 1214, 1220-21 (¶¶ 25-30) (Miss.2003) (affirming additur where jury verdict found defendant only 5% liable, but plaintiff was not awarded 5% of the uncontradicted damages); Scott Prather Trucking, Inc. v. Clay, 821 So.2d 819, 822(¶ 13) (Miss.2002) (affirming addi-tur where stipulated and uncontested damages clearly exceeded jury award); Maddox, 738 So.2d at 744-45(¶ 10) (granted additur where “the jury award fail[ed] to compensate Maddox for medical bills that were uncontested by either defendant.”); Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945-46 (Miss.1992) (granted ad-ditur where jury awarded only medical expenses and there was uncontested evidence that claimant also suffered uncompensated pain); Pham v. Welter, 542 So.2d 884, 889 (Miss.1989) (granted additur where jury’s verdict clearly “ignored” the ample evidence concerning the claimant’s past and future pain and suffering, as well as the claimant’s partial permanent disability; jury verdict was barely above the amount of undisputed medical expenses).

¶ 43. We find Green v. Grant, 641 So.2d 1203 (Miss.1994) to be particularly instructive. At the Green trial, which was on damages alone, both Grant and Green presented conflicting evidence as to the extent of Green’s damages. Green, 641 So.2d at 1204. The parties stipulated that Green had incurred $2,118.25 in medical expenses, although “Grant did not stipulate that these expenses were necessary.” Id. Green also claimed other damages. Id. at 1205. After hearing all the evidence, the jury awarded Green only $2,000. Id. at 1207. The Mississippi Supreme Court found that this award was proper and an additur was not required, noting:

testimony presented on behalf of Grant tended to prove that Green was not seriously injured ... [and] the issue of the extent of Green’s injuries, the reasonableness and necessity of her medical expenses, and the reasonableness and necessity of her lost income were seriously contested.... Viewing the conflicting evidence presented in the instant case, the verdict does not appear to be either against the overwhelming weight of the evidence or so inadequate as to evidence bias, passion, or prejudice on the part of the jury.

Id. at 1209-10. The situation in the case at bar is much the same.

¶ 44. The jury’s finding of damages in the amount of $14,000 is greater than the uncontested expenses incurred by Walker. Because of the heavily contested nature of the rest of the damages, the jury was not required to find damages in the total amount submitted by Walker. In short, the jury’s award of damages in this case does not “shock the conscience,” nor does it “indicate bias, passion and prejudice on the part of the jury.” The court did not abuse its discretion in declining to grant an additur.

Motion for a New Trial

¶ 45. “The motion for a new trial has only been employed in ‘rare cases when there would be injustice either in allowing the verdict to stand or in granting a j.n.o.v.’ ” Hamilton v. Hammons, 792 So.2d 956, 965(¶ 44) (Miss.2001) (quoting C & C Trucking Co. v. Smith, 612 So.2d 1092, 1099 (Miss.1992)). Rule 59 of the Mississippi Rules of Civil Procedure allows a trial judge to grant a new trial if so required by justice. Justice requires the granting of a new trial “when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result from bias, passion, and prejudice.” Hamilton, 792 So.2d at 965(¶ 44) (citations omitted). As with an additur, we review the trial court’s denial of a motion for a new trial under an abuse of discretion standard. Id. As such, we give “substantial weight, deference and respect to the decision of the trial judge.” Id. (citing C & C Trucking Co., 612 So.2d at 1099).

¶ 46. Walker bases her contention that the court erred in failing to grant a new trial solely on the basis that the jury’s award was so low that it shocks the conscience, evinces “bias, prejudice, and passion,” and was contrary to the overwhelming weight of the evidence.

¶ 47. As we have already discussed, we do not find that the jury’s award was so low as to shock the conscience or evince bias on the part of the jury. We also do not find that the jury’s decision is against the overwhelming weight of the evidence. Much evidence was generated in this trial, both for and against Walker’s theory of the case. Each theory expounded by Walker’s expert witnesses was contradicted by the testimony of other expert witnesses. Evidence indicated that after the accident Walker did well in school and was able to perform light work. “[W]hen evidence is in conflict, the jury is the sole judge of both the credibility of a witness and the weight of his testimony.” Ill. Cent. R.R. Co. v. Hawkins, 830 So.2d 1162, 1183(¶60) (Miss.2002) (quoting Weathersby Chevrolet Co. v. Redd Pest Control Co., 778 So.2d 130, 133(¶ 10) (Miss.2001)). As the fact-finder, the jury in this case was entitled to believe whomever it found to be most credible. In light of the conflicting evidence and contested nature of the vast majority of Walker’s damages, the court did not abuse its discretion in refusing to grant a new trial.

¶ 48. This issue is without merit.

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

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

      . Gann was a truck driver for Benchmade at the time of the accident that led to Walker's alleged injuries.

      . Walker claims in her brief that Hannah testified that Walker's speed was “the cause of the accident.” We find this claim to be unsupported by the record. Hannah clearly testified on the stand that he found that speed was not a factor in the accident. Instead, this testimony appears to have been introduced to discredit Walker’s expert witness who had testified regarding the speeds of the vehicles and time it would have taken for Walker to reach Gann's truck.

      . Although we find no error in the trial court's admission of the expert testimony here, this opinion should not be read to mean that parties should not be thorough and comprehensive in providing the information required to be produced pursuant to Rule 26 of the Mississippi Rules of Civil Procedure concerning the designation of experts and the subject matter on which the expert is expected to testify. Normally, the designation of the subject matter should include any rebuttal testimony that the expert is expected to give, although such rebuttal testimony is not specifically required by the rule.

      . Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . Walker never requested a hearing, nor made any motion challenging Hannah's admissibility as an expert witness.