author: CARLSON, Justice, DIAZ, Presiding Justice,

text:
    Jackie TENTONI, Individually, and as Next Friend on Behalf of Her Minor Children, Melanie Tentoni, Johnathan Tentoni and Phillip Tentoni v. Warren W. SLAYDEN.
    No. 2005-CT-00529-SCT.
    Supreme Court of Mississippi.
    Nov. 8, 2007.

      Joseph S. Gatlin, III, attorney for appellant.
    Shelly G. Burns, Jackson, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. Jackie Tentoni sued Warren W. Slayden in the Madison County Circuit Court, alleging negligence and gross negligence due to bodily injuries and property damage resulting from an automobile accident. The Madison" County Circuit Court entered a final judgment after a trial resulting in a jury verdict in favor of Slayden and against Tentoni. On appeal, the Court of Appeals reversed and rendered as to liability and ■ remanded the case to the Madison County Circuit- Court for a new trial on damages. Inasmuch as we find that the Court of Appeals erred, we reverse its judgment and reinstate and affirm the trial court judgment entered in favor of Slayden and against Tentoni, consistent with the jury verdict.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On January 1, 1999, Jackie Tentoni was driving her 1996 Suzuki Sidekick southbound in the right lane on Interstate 55 in Carroll County. In the vehicle with Tentoni were her three children, Melanie, Phillip, and Jonathan. Melanie was in the front seat next to Tentoni and was wearing a seatbelt. Phillip was in the back seat, not wearing a seatbelt, and Jonathan was lying down in the back area of the Suzuki, unrestrained. Following directly behind Tentoni in a 1995 Buick was Warren W. Slayden, along with his wife, Brenda, and their daughter, April.

¶ 3. Although it was raining, Slayden had been driving behind Tentoni in the southbound right lane for miles, without incident. While traveling down 1-55 in Carroll County, Tentoni pulled into the left lane to pass an eighteen-wheeler tractor-trailer rig. Slayden also moved into the left lane behind Tentoni. By the time Tentoni had passed the eighteen-wheeler and pulled back into the right lane in front of the eighteen-wheeler, all three vehicles had started down a hill. Tentoni reduced her speed, and the incline caused the descending eighteen-wheeler to increase its speed, thus creating insufficient space for Slayden to pull in behind Tentoni and in front of the eighteen-wheeler. Slayden chose to maintain his speed in the left lane and as he did, his vehicle hydroplaned and came in contact with Tentoni’s vehicle. Both Tentoni and Slayden acknowledged that their vehicles collided twice, but according to Tentoni, it was a mysterious third impact which caused Tentoni’s vehicle to travel down an embankment and collide with a tree, resulting in most of the injuries and damages suffered by Tentoni and her children.

¶ 4. Slayden testified at trial that he was traveling in the left lane beside Tentoni at the speed of sixty-eight miles per hour, within the posted seventy-mile-per-hour speed limit; Tentoni testified at trial that she was traveling approximately fifty-five miles per hour. Slayden testified that he and Tentoni were traveling side-by-side; Tentoni testified that she noticed Slayden when he was “coming towards my side, more towards my door;” Slayden testified that he hydroplaned in the left lane and moved between one foot to one-and-one-half feet into the right lane, bumping Ten-toni’s left front bumper. Slayden further testified that his vehicle then spun and hit Tentoni’s right back bumper, sending Ten-toni off to the right and Slayden off to the left, where he came to a stop in the median. After Tentoni’s vehicle went to the right, Slayden did not see where Tentoni’s vehicle came to rest. The eighteen-wheeler passed between the two vehicles but returned to the scene; however, neither Slayden nor Tentoni obtained the truck driver’s name and contact information.

¶ 5. Tentoni testified that after the first two impacts, she maintained control of her vehicle. She described the first impact as a “light tap” and the second impact as being “much harder than the first.” According to Tentoni, she came to a complete stop on the shoulder of 1-55 and attempted to shift her vehicle into park. However, of significant import, Tentoni testified that as she was attempting to place her vehicle into park, there was a third impact which sent her vehicle completely off the road, where she traveled down an embankment over logs and crashed into a tree. Tentoni described the third impact as being “something light” which “hit me way behind, something just very, very light, I heard a loud ner-er-er-er-er-er-er.” Tentoni further testified that the third impact caused her to lose control of her vehicle, causing her and her children to suffer most of their injuries. Slayden testified that Tentoni did nothing wrong. Officer Billy McClurg, who responded to the scene, issued no citations to Slayden due to the rainy conditions.

¶ 6. A passerby who identified himself as a doctor called an ambulance, which transported Tentoni and her three children to the emergency room at Grenada Lake Medical Center. The Slayden family also traveled to the hospital and stayed with the Tentonis until they received a good prognosis for each family member.

¶ 7. Tentoni filed suit individually and on behalf of her three children in the Circuit Court of Madison County on January 13, 2000. Slayden and “John Does 1-10” were named as defendants. Even though the incident giving rise to this litigation occurred in Carroll County, Tentoni and her three children, as well as Slayden, were all Madison County residents at the time of the commencement of this suit. In her complaint, Tentoni alleged that “[Slayden], suddenly and without prior warning, negligently lost control of his vehicle and negligently collided with [Tentoni’s] vehicle.” Tentoni further alleged that Slayden was negligent in that he: (a) failed to stop prior to colliding with [Tentoni’s] vehicle; (b) failed to maintain a proper lookout for other vehicles; (c) failed to keep his vehicle under proper control in light of the then-existing weather conditions and conditions of the roadway; (d) failed to maintain a safe speed; and (e) failed to operate his vehicle in a safe and prudent manner, pursuant to the laws of the state of Mississippi and the rules of the road.

¶ 8. A jury trial was conducted December 14-16, 2004, Judge Samac S. Richardson, presiding. Tentoni alleged, inter alia, that she and her children had sustained multiple injuries as a result of the accident caused by Slayden’s negligence. Tentoni and the children had seen numerous medical professionals concerning their alleged injuries. However, Slayden’s medical expert, Dr. John Lonson, testified that the only visits which were “reasonable and necessary” were the initial visit to Grenada Lake Medical Center for Tentoni and her three children and a follow-up visit to the doctor for Tentoni.

¶ 9. The jury returned a verdict in favor of Slayden, which stated, “We, the jury, find for the defendant, Warren W. Slay-den, as to all plaintiffs, Jackie Tentoni, Melanie Tentoni, Jonathon (sic) Tentoni, and Phillip Tentoni.” The trial court subsequently entered its final judgment consistent with the jury verdict. After conducting a hearing on January 31, 2005, the trial judge denied Tentoni’s motion for a new trial, and Tentoni appealed to this Court, raising two issues: (1) whether the trial court erred in refusing to give Tento-ni’s peremptory instruction to the jury; and (2) whether the verdict was against the overwhelming weight of the evidence or a product of bias, passion and prejudice. We assigned this case to the Court of Appeals.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 10. In an 8-2 decision, the Court of Appeals reversed and rendered as to liability and remanded this case to the trial court for a new trial on damages. Finding that Barkley v. Miller Transporters, Inc., 450 So.2d 416 (Miss.1984) was controlling, that court stated, inter alia, that “Slayden admitted that it was raining and the road was wet. He admitted that he was aware of the dangers of hydroplaning. Nevertheless, he testified that he did not slow down. He maintained a speed near the posted speed limit. He admitted that he lost control of his vehicle when his car hit a patch of standing water. He ignored the danger and as a result lost control of his car. This testimony went undisputed. We find that [Tentoni] was entitled to a peremptory instruction on negligence. Additionally, since Slayden admitted causation, [Tentoni] was entitled to a directed verdict on liability.” Tentoni v. Slayden, 968 So.2d 492, 494, 2006 WL 3594232, *2 (¶ 7) (Miss.Ct.App.2006). Further, the Court of Appeals held that statements made by Slayden’s counsel at trial appeared “to be intended to ignite the jury’s passions in favor of Slayden and against the Tenton-is—Jackie, in particular. On remand, Slayden’s counsel is instructed not to repeat this conduct.” Id. at 495 (¶ 14).

¶ 11. Judge Southwick, in a dissent (joined by Judge Barnes), found that Barkley was distinguishable from the case sub judice. Tentoni, at 495-500 (¶¶ 16-35) (Southwick, J., dissenting). Not being satisfied with a mere study of our opinion in Barkley, Judge Southwick retrieved and studied this Court’s record in Barkley. Id. at 496 (¶ 20) (Southwick, J. dissenting).

DISCUSSION

¶ 12. In his petition for writ of certiora-ri, Slayden asserts that the Court of Appeals misapplied Barkley, and that the Court of Appeals’ decision in the case sub judice was likewise inconsistent with prior decisions of this Court. We will address these issues as they were stated to the Court of Appeals.

I. WHETHER THE TRIAL COURT ERRED IN REFUSING A PEREMPTORY INSTRUCTION TO THE PLAINTIFF.

¶ 13. The Court of Appeals found that the trial court erred in not granting a peremptory instruction (or a directed verdict) as to liability against Slayden and in favor of Tentoni, and thus remanded this case to the trial court for a new trial “to assess the proper damages.” Tentoni, at 495 (¶ 10).

¶ 14. We review a trial court’s refusal to grant a peremptory instruction de novo, giving the non-moving party the benefit of all reasonable inferences which may be drawn from the evidence. “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 peremptory instruction should not be granted. Windmon v. Marshall, 926 So.2d 867, 872 (Miss. 2006) (quoting Entergy Mississippi Inc. v. Bolden, 854 So.2d 1051, 1055 (Miss.2003)). “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.” Id.

¶ 15. During the jury instruction conference at the conclusion of the presentation of the evidence, Tentoni, through counsel, submitted jury instruction P-12, which was given by the trial judge and designated as the trial court’s Instruction No. 10. This instruction will be set out verbatim later in this discussion, but suffice it to state here that this instruction was an “elements” instruction informing the jury that if the jury found certain facts to exist, including a violation of one or more of the rules of the road (statutes) by Slayden, then Slayden was negligent, and if the jury further found that such negligence was the proximate cause or a proximate contributing cause of the accident and resulting injuries suffered by Tentoni and her three children, then the jury must return a verdict in favor of Tentoni and her children and against Slayden. However, Tentoni argues that she was entitled to a peremptory instruction because she presented evidence which proved each and every element set out in Instruction No. 10 (and on which reasonable jurors could not disagree), and that she also established that Slayden was negligent as a matter of law.

¶ 16. Tentoni “bears the burden of producing evidence sufficient to establish the existence of the conventional tort elements of duty, breach, proximate causation, and damages.” Simpson v. Boyd, 880 So.2d 1047, 1050 (Miss.2004) (citing Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995)). Tentoni argues that Slayden breached his duty by violating four specific statutes. Furthermore, Tentoni argues that Slayden’s medical expert, Dr. Lonson, admitted that at least some of the medical expenses incurred by Tentoni and her children were a result of the subject accident and were “reasonable and necessary” for the treatment of the injuries suffered.

¶ 17. Tentoni also argues that the proximate cause of Tentoni’s car leaving the roadway was clear and uncontradicted, as Slayden testified that he hit the Suzuki twice, which “shot her off to the right.” However, Tentoni’s own testimony contradicts this argument, as she testified that there was a third impact. Tentoni testified, inter alia, that Slayden moved over into her lane of travel and collided twice ■with her vehicle, with the second impact forcing her off the road, and as she was attempting to put her vehicle into park, another impact forced her vehicle down the embankment over logs and debris before colliding with a pine tree. While there is disputed testimony as to whether there were two or three impacts, we find this disputed evidence to be of no moment in today’s case. Extensive evidence was before the jury as to the conduct of the parties and the circumstances with which they were confronted as the parties’ vehicles and the eighteen-wheeler were southbound on 1-55. It was for a properly-instructed jury to determine the traditional tort issues of duty, breach of duty, causation and damages.

¶ 18. Unquestionably, the jury heard extensive testimony concerning the injuries and damages allegedly suffered by Tentoni and her three children as a result of this accident. However, the extent of these damages was hotly contested by Slayden. The jury learned early on during the cross-examination of Tentoni by Slayden’s counsel that after the subject accident of January 1, 1999, Tentoni was involved in not one — not two — not three— not four — but five separate accidents, some of which resulted in further injuries to Tentoni.

¶ 19. We now return to the jury instructions, again remembering that Tento-ni asserts that she was entitled to a peremptory instruction on both negligence and liability. We now set out verbatim the previously-mentioned jury instruction P-12, submitted by Tentoni’s counsel, which was given by the trial judge and designated as the trial court’s Instruction No. 10.

The Court instructs the jury that the law of the State of Mississippi requires a driver of a motor vehicle to drive at a reasonable rate of speed for the conditions then and there existing; to keep and maintain a proper lookout for other vehicles using the roadway; and to maintain his or her vehicle under free and reasonable control and to drive in his lane of travel and to not change lanes until and unless he can do so safely; and if you believe from a preponderance of the evidence that Warren W. Slayden, while traveling south on Interstate 55 in the left hand lane at a time when the roadway was wet, either drove his vehicle at a greater rate of speed than was reasonable under the conditions then and there existing, and/or that he failed to keep and maintain a proper lookout for other vehicles using the roadway, and/or that he failed to maintain his vehicle under free and reasonable control and/or that he failed to stay in his lane of travel and moved over into plaintiffs lane of travel and that as a result of the aforesaid, he lost control of his vehicle and came over into plaintiffs lane of travel and collided with the plaintiff, then he is guilty of negligence, and if you further believe from a preponderance of the evidence that such negligence, if any, was the proximate cause or a proximate contributing cause of the accident in question and the injuries suffered by Jackie Tentoni, Melanie Tentoni, Jonathan Tentoni, and Phillip Tentoni, if any, then you should find for the plaintiffs and against the defendant, Warren W. Slayden.

(Emphasis added).

¶ 20. In considering Instruction No. 10, the jury had to find by a preponderance of the evidence that Slayden breached his duty to Tentoni and her children and that this breach of duty was the proximate cause or a proximate contributing cause of the accident and any injuries suffered by the Tentonis. Additionally, Slayden, through counsel, submitted jury instruction D-12A, to which Tentoni’s counsel had no objection; therefore, the trial judge gave jury instruction D-12A and designated it as the trial court’s Instruction No. 8. This instruction stated:

The charge laid by the Plaintiffs against Mr. Slayden is one of negligence. You cannot presume that Mr. Slayden was negligent. The Plaintiffs may recover on the charge of negligence against Mr. Slayden only if it is sustained by a preponderance or greater weight of the credible evidence, and it is not the duty of Mr. Slayden to disprove the charge, but, rather, the law casts the burden of proof upon the Plaintiffs; and such charge of negligence must be sustained by a preponderance of the credible evidence. Therefore, if the Plaintiffs have failed to prove that Mr. Slayden acted unreasonably, then your verdict must be in his favor. Further, even if you find that Mr. Slayden failed to act reasonably, your verdict must be in his favor unless the Plaintiffs prove that his failure caused the accident. In other words, if you conclude that the accident was unavoidable in any event, then you must return a verdict in Mr. Slay den’s favor.

(Emphasis added). Obviously, it can reasonably be inferred from the evidence, the jury instructions given, and the jury ver-diet, that the jury deemed Slayden’s hydroplaning to have been unavoidable on his part, thus exonerating him of all liability for any resulting injuries allegedly suffered by Tentoni and her children, notwithstanding the first and second impacts which Slayden admitted had occurred. Also, on this point, the investigating officer, state trooper Billy McClurg, testified that he gave no citation as a result of this accident “due to the rain, I mean this happens. Anytime it rains this happens on Interstate 55.”

¶ 21. Returning to the Court of Appeals’ opinion in the case sub judice,' we respectfully disagree with that court’s application of Barkley to this case. We find, as did Judge Southwick, that Barkley “very much is limited to its facts, in part because there is so little from which the measure of neglected care can be discerned.” Tentoni; at 498 (¶ 26). In Barkley, the plaintiff was driving on two-lane Highway 98, being followed by the defendant driver of an eighteen-wheeler tractor-trailer rig. As the truck driver attempted to pass the plaintiff on a stretch of Highway 98 which had recently been asphalted, he lost control of his truck, and even though there was no contact between the two vehicles, the defendant’s actions forced the plaintiff off the highway, causing the accident and resulting injuries. However, unlike today’s case, in Barkley, by the time of the accident, both drivers had passed a road sign cautioning travelers that, this portion of the highway “was slippery when wet.” Barkley, 450 So.2d at 417. As we noted earlier, Judge Southwick, in preparing his dissent in today’s case, was not satisfied with a mere study of our opinion in Barkley, so he likewise retrieved and studied this Court’s record in Barkley. Tentoni at 496-97 (¶ 20) (Southwick, J. dissenting). We agree with Judge South-wick that this Court’s decision in Barkley “indicate[d] that it was the slippery and wet new asphalt ... a condition for which a warning sign had been placed and seen by the defendant, that caused the defendant to lose control.” Id. at 497 (¶20). Likewise, contrary to the facts of Barkley, in which the defendant was suddenly confronted with a warning sign and wet new asphalt, a condition that deserved immediate remedial action, in today’s case, Slay-den had been engaged in similar conduct under similar conditions for possibly fifty or sixty miles. Judge Southwick’s independent research also revealed that “[n]o Supreme Court opinion in the over-twenty years since Barkley was decided applied it to find that someone was negligent as a matter of law.” Id. at 498 (¶ 23). This poignant fact goes not unnoticed by us, and we see no reason to apply Barkley to this record to reverse the trial judge’s denial of Tentoni’s peremptory instruction.

¶ 22. Shields v. Easterling, 676 So.2d 293 (Miss.1996), involved a one-vehicle accident in which a truck pulling a U-Haul trailer hit a patch of ice on a bridge, causing the truck momentarily to slide. The truck driver regained control and reduced his speed; however, a few miles down the road the truck hit another patch of ice, causing the truck and trailer to jackknife and then flip, resulting in injuries to one of the passengers. Likewise in Shields, a case resulting in a jury verdict for the defendant, this Court found that the trial court properly denied the plaintiffs peremptory instruction since the record established that it was a jury question as to whether the truck driver’s speed caused the accident. Id. at 295.

¶ 23. The Court of Appeals, in the case sub judice, found Shields to be distinguishable, stating that the truck driver in that case “recognized that the bridges were icing over and took precautionary measures. Since he had a minor incident, he slowed down. It was a jury question as to whether it was reasonable for him to foresee that he would nevertheless have a major incident at the slower speed he chose. In the case sub judice, however, Slayden recognized the danger but did not slow his speed.” Tentoni, 968 So.2d at 494 (¶ 9). The “danger” to which the Court of Appeals was referring was “the danger[ ] of hydroplaning.” Id. at 494 (¶ 7). However, the danger of hydroplaning always is present for all motorists traveling in the rain on a heavily-traveled highway such as Interstate 55. In today’s case, the record reveals that Slayden may have been trailing Tentoni for as many as fifty to sixty miles, presumably at a fairly constant rate of speed, without incident. Under the circumstances then and there existing, as revealed in the record, we know of no reason for Slayden to believe he suddenly would hydroplane. Given the other options of either speeding up to what he believed to be an unsafe speed in order to pass Tentoni, or dropping back behind the eighteen-wheeler and enduring the heavy spray generated by the tractor-trailer rig, Slayden’s decision to maintain the status quo and remain beside Tentoni in the left-hand, south-bound lane of Interstate 55 was not an unreasonable act, as obviously found by the jury in its verdict. Thus, we find Shields to be applicable to our case today.

¶ 24. Likewise, in Shields, we approved an “unavoidable accident” jury instruction similar to Jury Instruction No. 8 (submitted as instruction no. D-12A) which the trial judge granted in today’s case. Shields, 676 So.2d at 296. Also in Shields, this Court cited our prior decision in McCollum v. Randolph, 220 So.2d 310, 312 (Miss.1969). In McCollum, we stated:

Appellants next complain of a jury instruction granted at appellee’s request which is referred to in the brief as an “unavoidable accident” instruction. A reading of this instruction reveals that it correctly informs the jury that its verdict should be for the defendant if it should find from the evidence that the defendant had been guilty of no negligence which had proximately caused or proximately contributed to the injury and death of [decedent].
The instruction concludes by saying that in such an event (a factual finding by the jury that no negligence on defendant’s part had proximately caused or contributed to the injury and death) the occurrence, insofar as the defendant was concerned, was an unavoidable accident for which he was not liable. We do not think the instruction incorrectly stated the applicable law nor that it was capable of misleading the jury, especially when read with the rather liberal' instructions granted appellants which submitted to the jury all of the theories of negligence relied upon for recovery.

Id. at 312.

¶ 25. Finally, being firmly convinced, for the reasons stated, that the trial judge properly allowed the jury to resolve the issues of negligence and liability, based on the evidence before the jury and the applicable law, and remembering always, as the jury was instructed in this case, that the jury had the “prerogative to determine what weight and what credibility will be assigned the testimony and supporting evidence of each’witness in this case,” (Instruction No. 1 [C—1]), we are again reminded of what this Court stated in Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983). Even though these words were directed toward the chancellor, sitting as the fact-finder without a jury, they certainly are applicable to any and all fact-finders, whether judge or jury:

[As to] the matter of the credibility of the testimony of [the witnesses], [t]he trial judge saw these witnesses testify. Not only did he have the benefit of their words, he alone among the judiciary observed their manner and demeanor. He was there on the scene. He smelled the smoke of battle. He sensed the interpersonal dynamics between the lawyers and the witnesses and himself. These are indispensable.”

Id. at 708. Likewise, the jury in our case today had the opportunity to hear the testimony of the various witnesses, - and also to observe their demeanor. This was certainly true as to Warren Slayden; and this was certainly true as to Jackie Tentoni.

¶ 26. For all these reasons, we find that the trial judge did not err in denying the plaintiffs peremptory instruction on the issues of negligence and liability. We thus find no merit in this issue.

II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE OR A PRODUCT OF BIAS, PASSION AND PREJUDICE.

¶ 27. Our cases are legion as to how we must review this issue:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

Wal-Mart Stores v. Frierson, 818 So.2d 1135, 1143 (Miss.2002) (quoting Herrington v. Spell, 692 So.2d 93, 103 (Miss.1997)). See also Lift-All Co., Inc. v. Warner, 943 So.2d 12, 15-16 (Miss.2006) (citing Blossman Gas, Inc. v. Shelter Mut. Gen. Ins. Co., 920 So.2d 422, 424 (Miss.2006); Upchurch v. Rotenberry, 761 So.2d 199, 204 (Miss.2000)). Also, a new trial may be granted when the trial court, or the appellate court on appeal, determines that “ ‘the jury has departed from its oath and its verdict is a result [of] bias, passion, and prejudice.’ ” Hamilton v. Hammons, 792 So.2d 956, 965 (Miss.2001) (quoting Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 132 (Miss.1989) (citing Griffin v. Fletcher, 362 So.2d 594, 596 (Miss. 1978))). See also Clayton v. Thompson, 475 So.2d 439, 443 (Miss.1985). A trial judge’s denial of a motion for a new trial will be reversed only upon a finding of abuse of discretion. Hamilton, 792 So.2d at 965.

¶ 28. Tentoni argues that the jury was distracted from fairly and impartially deciding the issues presented because of certain improper and prejudicial statements made by Slayden’s counsel during closing arguments. Counsel for Slayden stated the following:

I will be the first one to acknowledge that I was a little bit harsh on Jackie Tentoni yesterday. I know I made some snide comments that I probably shouldn’t have and I know I went on way too long. And I apologize for that. But here’s the problem and here’s why. This has been going for [the Slaydens] for six years. For six years, he has been carrying this burden and all the uncertainty and insecurity and stress that has been going along with this. He’s survived two heart attacks. And he’s sitting there with Nitroglycerine in his pocket right now. But he came here and he testified because he wanted you to know the truth.
[Slayden] has been the object of [Tento-ni’s] fixation and her obsession for six years. We ask that you return a verdict in his favor today and set him free from that at long last.

On the other hand, Tentoni concedes in her brief that “[w]hile highly objectionable, no objection was made by [Tentoni’s] counsel,” which precludes a party from arguing the issue on appeal. Further, Tentoni argues that the comments were so prejudicial that this Court must reverse even absent objection. However, Tentoni fails to cite any relevant authority, and thus, we are not obligated to review this issue on appeal. Huff-Cook, Inc. v. Dale, 913 So.2d 988, 991 (Miss.2005) (citing Williams v. State, 708 So.2d 1358, 1362-63 (Miss. 1998)).

¶29. Procedural bar notwithstanding, this issue is without merit. In Eckman v. Moore, 876 So.2d 975 (Miss.2004), we reiterated the familiar premise that in order to determine if a lawyer has made remarks in arguments to the jury which are so egregious as to require reversal, the test is “ ‘whether the natural and probable effect of the improper argument ... create[s] an unjust prejudice against the [opposing party] resulting] in a decision influenced by the prejudice so created.’ ” Id. at 986 (quoting Davis v. State, 530 So.2d 694, 701-02 (Miss.1988)). In Eckman, we likewise stated:

While an attorney making a closing argument may not make remarks which are unfairly calculated to arouse passion or prejudice, and while we do not condone appeals to sectional prejudices of the jury, the control of such argument is left largely to the discretion of the trial judge, who is in a much better position to observe and determine what is improper.

Id. at 986 (quoting James W. Sessums Timber Co. v. McDaniel, 635 So.2d 875, 882 (Miss.1994)).

¶ 30. The Court of Appeals understandably was not required to discuss this issue at length since that court was remanding the case for a new trial, but the Court of Appeals did find that such conduct exhibited by these remarks should not be repeated upon remand. While we agree that these comments would have been better left unsaid, a fact conceded by Slayden’s counsel, we are firmly convinced that any error in making these statements to the jury was harmless. The trial judge in today’s case dutifully instructed the jurors as to their solemn oaths to follow the law as given by the trial court via the instructions, including Instruction No. l(C-l), which informed the jury that it was to base its decision on the evidence and the law, and that the evidence “consists of the testimony and statements of the witnesses, any stipulations made by the attorneys, and any exhibits admitted into evidence;” that the jury was “to use your good common sense and sound honest judgment in considering and weighing the testimony of each witness who has testified;” and that the jury was not to “be influenced by bias, sympathy or prejudice.” Also, in Instruction No. 19, (C — 4), the trial court informed the jury, inter alia, that “arguments, statements and remarks of counsel are intended to help you understand the evidence and apply the law, but they are not evidence,” and that “[i]f any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement or remark.” From the totality of the record, there is no indication that the jury in any way disregarded the trial court’s instructions or was guided by blind passion or prejudice to render a defendant’s verdict which it otherwise would not have returned.

¶ 31. In sum, “[i]n a motion for a new trial, this Court will overturn the verdict only when it is against the overwhelming weight of the evidence.” Poole v. Avara, 908 So.2d 716, 727 (Miss.2005) (citing Bush v. State, 895 So.2d 836, 844 (Miss.2005)). Stated differently, we will not set aside a jury’s verdict and order a new trial unless we are convinced that the verdict was contrary to the substantial weight of the evidence that justice requires that a new trial be granted. Id. (citing Jesco, Inc. v. Whitehead, 451 So.2d 706, 714 (Miss.1984) (Robertson, J., specially concurring)). We are not convinced that the comments of Slayden’s counsel, although objectionable, were so prejudicial as to require a new trial; therefore, we find this issue to be without merit.

CONCLUSION

¶32. For the reasons stated, we reverse the judgment of the Court of Appeals, and reinstate and affirm the Madison County Circuit Court’s judgment entered consistent with the jury verdict in favor of the defendant, Warren W. Slayden, and against the plaintiffs, Jackie Tentoni, individually and as next friend on behalf of her minor children, Melanie Tentoni, Johnathan Tentoni and Phillip Tentoni.

¶ 33. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON, RANDOLPH and LAMAR, JJ., concur. DIAZ, P.J., dissents with separate written opinion joined by GRAVES, J.

DIAZ, Presiding Justice,

Dissenting:

¶ 34. Because I believe the Court of Appeals correctly held that the trial court erred in refusing to grant a peremptory instruction to the plaintiff on the issue of liability, I respectfully dissent.

¶ 35. The evidence presented at trial establishes that the defendant was traveling at approximately sixty-eight miles per hour when he hydroplaned. The evidence also establishes that it was raining at the time of the accident. Although it is not clear how heavy the rainfall was, it appears undeniable that there was a significant amount of rainfall both before and at the time of the accident. The defendant felt it necessary to drive behind the plaintiffs vehicle to avoid standing water on the roadway. The plaintiff testified that just before the accident she felt water under her vehicle and shifted gears to get extra traction. Moreover, the defendant testified that the tractor-trailer was “blowing water all over the top of [his vehicle]” as he passed it.

¶ 36. The fundamental question is whether the defendant complied with his duty “to take reasonably proper steps to avoid an accident or injury to persons and property after having knowledge of the danger” of hydroplaning. Shideler v. Taylor, 292 So.2d 155, 157 (Miss.1974). The defendant clearly was well-aware of the danger of hydroplaning. However, in spite of his knowledge of that danger, he took no “steps to avoid an accident.” Instead, the defendant chose to drive at a speed of sixty-eight miles per hour and, as a result, hydroplaned.

¶ 37. Considering all of the evidence presented at trial in the light most favorable to the defendant, and giving him the benefit of all favorable inferences that may reasonably be drawn from the evidence, the facts and inferences point so overwhelmingly in favor of the plaintiff that reasonable jurors could not find for the defendant on the issue of liability. Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss. 1987) (citations omitted). There simply is no way of getting around the fact that the defendant decided to maintain a speed of sixty-eight miles per hour under very poor driving conditions. By refusing to decrease the rate of speed at which he was driving, the defendant failed to take the only step that could have been taken to avoid an accident. Accordingly, I would hold that the plaintiff was entitled to a directed verdict.

¶ 38. Unlike the majority, I do not find the case of Barkley v. Miller Transporters, Inc., 450 So.2d 416 (Miss.1984), to be distinguishable from the present case. The majority asserts that Barkley is distinguishable because the driver of the tractor-trailer in Barkley passed a road sign warning drivers that the “upcoming stretch of road was slippery when wet.” Id. at 417. It certainly is true that the defendant in this case was not made aware of a specific driving hazard by a road sign, as was the negligent driver in Barkley. However, that factual difference alone does not distinguish Barkley from the present case.

¶ 39. The defendant in the present case was just as cognizant of the danger of hydroplaning as the driver in Barkley was of the danger posed by the wet, freshly-laid asphalt. Like the driver in Barkley, he appreciated the risk of losing control of his vehicle, but took no steps to avoid an accident. Both drivers chose not to reduce the rate of speed at which they were traveling in response to the dangerous driving conditions that existed at the time of their respective accidents. If anything, the defendant’s conduct in this case was more negligent than that of the truck driver in Barkley.

¶ 40. First, the defendant in this case was traveling at sixty-eight miles per hour, whereas the driver of the tractor-trailer was driving at only approximately fifty miles per hour. Tentoni v. Slayden, 968 So.2d 492, 497 (¶ 20) (Southwick, J., dissenting). Second, he was traveling at that higher rate of speed under much worse driving conditions than the truck driver in Barkley. At the time the accident occurred in this case, a significant amount of rain was falling. When the driver in Barkley lost control of his truck, the road was wet, but it was not raining. Barkley, 450 So.2d at 417.

¶ 41. It appears that the Court in Barkley concluded that the granting of a peremptory instruction was proper because the driver of the tractor-trailer did not reduce his speed after becoming aware of the slick asphalt that lay ahead. Id. at 420; Tentoni 968 So.2d at 497 (¶22) (Southwick, J., dissenting) (“both in Barkley and here the only possible negligence arises from the defendants’ speed”). Because of the similarity between the facts of the two cases, I would adhere to the Court’s analysis in Barkley and hold that the defendant was negligent as a matter of law in not reducing his speed.

¶42. I also am not persuaded by the majority’s reliance on Shields v. Easter-ling, 676 So.2d 293 (Miss.1996) in reaching its conclusion that the denial of the plaintiffs request for a peremptory instruction was proper. Shields is distinguishable because the defendant in that case took steps to avoid an accident, while the defendant in this case did not. After hitting “a patch of ice on a bridge” and slightly losing control of his vehicle, the defendant in Shields “slowed his speed to approximately forty to forty-five miles per hour.” Shields, 676 So.2d at 294. After taking this precautionary measure, the defendant hit another patch of ice and jackknifed. Id. By contrast, the defendant in this case never reduced his rate of speed, despite the fact that he was driving under treacherous conditions. Therefore, Shields should not instruct the Court’s decision on whether the trial court correctly denied the plaintiffs request for a peremptory instruction.

¶ 43. For the foregoing reasons, I would affirm the judgment of the Court of Appeals, reverse and render as to liability and remand the case to the trial court for a new trial on damages.

GRAVES, J., joins this opinion.

      . Melanie was referred to as “Melonie” throughout the record, but we will refer to her by the name as used by her mother in the pleadings and documents filed in the this cause.

      . Although there are multiple spellings throughout the record, "Jonathan” is used most consistently.

      . In fact, according to Slayden’s testimony, he had entered 1-55 at “the Sardis exit and was going south and returning to Madison. It was raining, as I had mentioned; and, when it’s raining like that, I prefer to be behind a car. Because when you’ve got a car in front of you the spray tends to be sprayed out before you go through it. And so I had been behind Ms. Tentoni’s vehicle for quite a few miles. And we were coming up behind an 18-wheeler.” Thus, taking Slayden’s testimony literally, he traveled behind Tentoni’s vehicle without incident from Sardis, in northern Panola County, to the point of the accident, which according to Tentoni, was “196 mile marker around Duck Hill Exit on 1-55.” This would be a distance of between fifty and sixty miles that Slayden had followed Tentoni, without incident.

      . Taking the evidence in the light most favorable to Tentoni, at least some physical injuries and property damage were suffered due to the second impact by Slayden. This will be discussed in more detail, infra.

        . On the other hand, the investigating officer, state trooper Billy McClurg, testified that Ten-toni told him she was traveling at an estimated speed of 60 mph, as opposed to the 55 mph Tentoni testified to at trial.

      . In her complaint, Tentoni alleged that the defendants, "John Does 1 through 10,” were, inter alia, "those entities, corporations, partnerships, and individuals whose names are presently unknown to [Tentoni] and who are liable and/or responsible to [Tentoni] for the tortuous (sic) acts described in this Complaint.” However, the record reveals that the pleadings were never amended to reflect the true identity of any of these John Doe defendants (see Miss. R. Civ. P. 9(h)), and the evidence presented at trial and the jury instructions addressed only the relevant issues as to the defendant, Slayden.

      . Tentoni refused Slayden’s Offer of Judgment of $20,795.97, which included $15,000 to cover the medical bills and $5,795.97 for property damage to the Suzuki.

      . Slayden states in his brief that the correct spelling of this doctor's last name is "Lan-con.” While we in no way dispute this assertion, for the sake of consistency, and to avoid confusion, we will refer to this doctor by the name used throughout the record in this case.

      . Tentoni filed a pro se motion for a new trial. This action prompted Tentoni’s trial counsel to file a motion to withdraw as Tentoni’s counsel. The motion to withdraw was joined by Tentoni. The trial judge entered an agreed order allowing Tentoni’s trial counsel to withdraw and a few days later, the trial judge entered an order denying Tentoni's motion for a new trial. No motion for a judgment notwithstanding the verdict was ever filed. Ten-toni subsequently retained new counsel for appeal purposes.

      . These statutes are Miss.Code Ann. §§ 63-3-505, 63-3-603, 63-3-609, and 63-3-611 (Rev.2004).

      . As Slayden testified at trial, when he was in the left lane alongside Tentoni after Tentoni and Slayden had successfully passed the eighteen-wheeler, Slayden was in essence confronted with a dilemma — increase his speed (above what he thought was a safe speed in rainy conditions) in order to pass Tentoni; decrease his speed and fall in behind the eighteen-wheeler causing his vehicle (windshield) to be heavily sprayed with rain/water by the eighteen-wheeler; or, maintain the same speed and simply continue traveling in the left lane alongside Tentoni's vehicle, which was in the right lane.

      . Since the Court of Appeals opined Slayden should have reduced his speed, we are left with the unanswered question of how much Slayden should have reduced his speed to avoid hydroplaning.

      . The plaintiff in this case requested and was denied a peremptory instruction on the issue of liability at the close of all the evidence. The proper procedure would have been for the plaintiff to move for a directed verdict. See Miss. R. Civ. P. 50(a); see also White v. Miller, 513 So.2d 600, 602 n. 2 (Miss.1987) (citation omitted).


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    NATCHEZ ELECTRIC AND SUPPLY CO., INC., Appellant v. Wayne JOHNSON d/b/a Johnson Electric, Appellee.
    No. 2004-CA-00155-COA.
    Court of Appeals of Mississippi.
    Feb. 14, 2006.
    Rehearing Denied June 20, 2006.

      Clifford C. Whitney, Vicksburg, attorney for appellant.
    Scott Joseph Schwartz, Hattiesburg, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Natchez Electric & Supply Co., Inc. sold electrical materials on open account to Wayne Johnson d/b/a Johnson Electric (Johnson), a commercial electrical contractor. On June 6, 1997, Natchez Electric filed suit against Johnson in the Circuit Court of Forrest County to collect on the account. Johnson filed an answer and counterclaim asserting breach of contract and intentional and negligent infliction of emotional distress. In his breach of contract counterclaim, Johnson asserted that he had paid Natchez Electric for materials which had not been delivered to him and that Natchez Electric had provided him with inaccurate cost estimates for electrical jobs. During the jury trial, the Circuit Court of Forrest County directed a verdict in favor of Natchez Electric on Johnson’s emotional distress claims.

¶ 2. The jury found that Johnson was not indebted to Natchez Electric on the open account. The jury further found that Natchez Electric had breached its contract with Johnson, but awarded Johnson zero damages. Natchez Electric appeals, arguing (1) that Natchez Electric was entitled to a JNOV; (2) that the verdict was against the overwhelming weight of the evidence; (3) that the trial court erroneously admitted testimony concerning theft by a Natchez Electric employee, necessitating a new trial; and (4) that Johnson failed to prove his counterclaim for breach of contract.

¶ 3. We find that, concerning the majority of the materials sold to Johnson on open account, the evidence was insufficient to support a jury finding of no liability. We further find that there was insufficient evidence to support a verdict for Johnson on his breach of contract claim. Therefore, we affirm in part and reverse in part, and render a judgment for Natchez Electric in the amount of $39,098.83.

FACTS

¶ 4. The following evidence was adduced at the trial. Natchez Electric is an electrical parts supplier which primarily sells to electrical contractors and other commercial customers. Johnson was a frequent customer at Natchez Electric’s branch office in Hattiesburg. Beginning in May of 1993 and ending in July 1996, Natchez Electric sold Johnson over $200,000 worth of electrical materials on open account.

¶ 5. For materials purchases, Johnson or one of his employees would contact Natchez Electric with a list of the materials Johnson needed for a particular job. Then, Natchez Electric generated a delivery ticket that listed the materials. Natchez Electric’s employees gathered the materials. Often, Johnson or one of his employees picked up the materials from Natchez Electric’s sales counter. On other occasions, Natchez Electric delivered the materials to the job site. Once the materials had been picked up or delivered, Natchez Electric sent Johnson an invoice that billed him for the materials. Periodically, Johnson made payments toward the account. Over the history of the account, Johnson paid Natchez Electric $211,944.67 for his materials purchases.

¶ 6. In May 1996, Johnson expressed concerns about his account to Stacy Tag-gert, the branch manager of Natchez Electric’s Hattiesburg office. Johnson was worried that he had been over billed for some of his materials purchases. Taggert testified that, over the next few weeks, he and Johnson met weekly to discuss the billing problem. Taggert stated that, at these meetings, he and Johnson compared Natchez Electric’s invoices indicating certain materials had been delivered to Johnson with Johnson’s own business records indicating which materials he had received. Together, Taggert and Johnson discovered that Natchez Electric inadvertently had overbilled Johnson for some of his materials purchases.

¶ 7. Taggert testified that approximately half of these errors were attributable to Johnson’s being billed for one unit of a certain item when he should have been billed for a single item. For example, in one instance, Johnson was charged $250, the price of a unit of one hundred face plates, when he should have been charged $2.50, the price of a single face plate. On May 29, 1996, Natchez Electric issued Johnson a credit in the amount of $19,025.70. Taggert testified that this amount compensated Johnson for the total billing errors throughout the history of the account as agreed upon by Natchez Electric and Johnson. As reflected by a copy of the account, Natchez Electric applied the credit to Johnson’s outstanding invoices.

¶ 8. Taggert testified that, after the credit was issued, Johnson still had unpaid invoices totaling $41,794.45. Kally Dennig, who oversaw Natchez Electric’s accounting and bookkeeping, testified that this amount was correct. The invoices reflecting the debt were admitted into evidence, along with delivery tickets associated with the invoices. Taggert stated that these invoices contained billing errors, but that the amount of the erroneous billings had already been credited to Johnson’s account by the $19,025.70 credit. Therefore, Tag-gert asserted that Johnson owed Natchez Electric the total amount reflected by the invoices.

¶ 9. Johnson testified that he never agreed that the $19,025.70 credit covered the totality of the billing errors. Johnson testified that Taggert told him the billing errors were caused by a Natchez Electric employee, Chris Fortenberry, selling material “out the back door” and then billing Johnson. Johnson stated that Taggert planned to fire Fortenberry and requested Johnson’s presence during the firing. Johnson refused.

¶ 10. Taggert denied that the billing errors were attributable to employee theft. Taggert stated that Natchez Electric had investigated the possibility of employee theft, but concluded that it had not occurred. Nonetheless, Natchez Electric fired Fortenberry on the same day it issued the credit to Johnson. Taggert testified that Fortenberry was fired for his mismanagement of Johnson’s account including pricing errors and failure to credit the account for material returns. Forten-berry testified that he had not stolen materials from the store and had not been fired for stealing.

¶ 11. With the evidence of Fortenber-ry’s theft, Johnson attempted to cast doubt on the correctness of the amount he owed on the account. Johnson also argued that additional billing errors might exist that went uncorrected by the $19,025.70 credit. Johnson testified about several billing errors; Taggert testified that these errors had been corrected by the credit. Johnson further asserted that he owed nothing on the account because it was uncertain whether he had received all of the materials for which he had been billed. As previously mentioned, each invoice billing Johnson for materials had an associated delivery ticket. An employee of Robinson Electric Supply testified that it was customary for electrical supply stores to have the person picking up or accepting delivery of materials to sign the delivery ticket as proof of delivery. The Robinson Electric employee further testified that delivery tickets associated with items that shipped to the customer directly from the manufacturer would not bear the recipient’s signature.

¶ 12. The record reflects that not all of the delivery tickets matching the outstanding invoices were signed. Some of the tickets did not show the name of the person who received the materials. Other delivery tickets bore a printed name of the person receiving the materials. It was established that, on these tickets, a Natchez Electric employee had printed the name of the Johnson employee who received the materials instead of obtaining a signature from the employee. Taggert and Forten-berry testified that Johnson had requested that Natchez Electric not obtain a signature from his employees if doing so would take extra time. Johnson did not refute this testimony, and admitted to having picked up materials from Natchez Electric himself without signing a delivery ticket. However, Johnson asserted that, since not all of the outstanding invoices were signed, it could not be shown that he had actually received all of the materials billed.

¶ 13. Moreover, Johnson asserted that he owed nothing on any invoices for materials used on his Red Lobster restaurant job. Johnson averred that he had bought all of the electrical supplies for the Red Lobster job from another electrical supplier, except for some material he bought from Natchez Electric and paid for in full. Johnson testified that, because he had not bought material for the Red Lobster job from Natchez Electric, the invoices for the Red Lobster job materials could not have been accurate.

¶ 14. The jury found in favor of Johnson, and Natchez Electric appeals.

LAW AND ANALYSIS

I. WHETHER SUFFICIENT EVIDENCE SUPPORTED THE JURY’S VERDICT THAT JOHNSON WAS NOT LIABLE ON THE ACCOUNT.

¶ 15. The trial court denied Natchez Electric’s motion for a judgment notwithstanding the verdict. On appeal, Natchez Electric argues that the evidence was insufficient to support the jury’s finding that Johnson was not liable on the account. Natchez Electric argues that it was entitled to a JNOV concerning all the delivery tickets that were signed because the signatures proved that Johnson had received the materials and, thus, that he was responsible for payment for those materials. Alternatively, Natchez Electric contends that it was entitled to a JNOV concerning all of the delivery tickets, including those affixed with printed names and those with no name affixed.

¶ 16. The question of Natchez Electric’s entitlement to a JNOV implicates the burdens of proof applicable to a suit on an open account. “An open account is a type of credit extended through an advance agreement by a seller to a buyer which permits the buyer to make purchases without a note of security and is based on an evaluation of the buyer’s credit.” Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 914 (Miss. 1993). An open account is an unwritten contract. McArthur v. Acme Mechanical Contractors, Inc., 336 So.2d 1306, 1308 (Miss.1976). In essence, a suit on an open account is “an action to collect on a debt created by a series of credit transactions.” Allen v. Mac Tools, Inc., 671 So.2d 636, 644 (Miss.1996).

¶ 17. The burdens allocated to the plaintiff and defendant in an open account suit formerly were established by statute. Miss.Code Ann. § 11-7-45; § 13-1-141 (repealed). Section 11-7-45 required the plaintiff to attach to the complaint a copy of the account showing the date of purchase, the kind of goods, the quantity, and the price. Motive Parts Warehouse, Inc. v. D & H Auto Parts Co., Inc., 464 So.2d 1162, 1165 (Miss.1985). Pursuant to section 13-1-141, the plaintiff could attach to the complaint an affidavit attesting to the correctness of the account and stating that it was due from the defendant. Id. at 1164-65. The affidavit entitled the plaintiff to judgment unless the defendant filed a counter-affidavit averring that the account was not correct and particularizing wherein it was not correct. Id. at 1165. By submitting a counter-affidavit, the defendant admitted the existence of the account but denied its correctness. Walker v. Cleveland Lumber Co., Inc., 512 So.2d 695, 696 (Miss.1987). In the presence of a counter-affidavit, “the affidavit to the account [entitled] the plaintiff to judgment only for such part of the account as the defendant by his affidavit [did] not deny to be due.” Motive Parts Warehouse, Inc., 464 So.2d at 1165 (quoting Miss.Code Ann. 13-1-141 (repealed)).

¶ 18. “The statutes provide[d] a rule of evidence whose purpose [wa]s to dispense with proof of the correctness of the account.” Id. at 1165. Prior to their repeal, the evidentiary effect of these statutes was obviated by the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence. Key Constructors Inc. v. H & M Gas Co., 537 So.2d 1318, 1322 (Miss.1989). Now, pursuant to Mississippi Rule of Civil Procedure 10(d), a claim or defense founded on an account must be accompanied by a copy of the account attached to the pleading “unless sufficient justification for its omission is stated in the pleading.” The parties’ burdens of proof are those applicable to other claims governed by the Mississippi Rules of Civil Procedure. Id. at 1323.

¶ 19. A motion for a JNOV challenges the legal sufficiency of the evidence. Investors Prop. Mgmt., Ltd. v. Watkins, Pitts, Hill & Assoc., 511 So.2d 1379, 1381 (Miss.1987); see M.R.C.P. 50(b). On review of the denial of a JNOV,

This Court' will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Blake v. Clein, 903 So.2d 710, 731(¶ 61) (Miss.2005) (quoting Ala. Great S. R.R. v. Lee, 826 So.2d 1232, 1235-36(¶ 12) (Miss. 2002)).

¶ 20. Johnson argues that the jury’s verdict was supported by substantial evidence such that reasonable jurors could have reached different conclusions as to his liability on the account. Essentially, Johnson’s defense to the debt was that Natchez Electric could not show conclusively that he received all of the materials billed. Natchez Electric contends that, given the evidence of Johnson’s debt to Natchez Electric, Johnson’s evidence of non-delivery was insufficient to create a factual dispute for the jury as to whether the materials actually were delivered to Johnson.

¶ 21. We find that Natchez Electric’s proof of the correctness of the debt evidenced by the delivery tickets with signatures, printed names, and for directly shipped items was such as to have entitled Natchez Electric to a JNOV. While recognizing that the rigid burden-shifting scheme imposed by statutory practice has been abandoned, we find that, in light of the evidence of the correctness of the account, Johnson’s proof of the account’s incorrectness had to be more specific than his general allegations of billing errors. Our analysis follows.

¶ 22. At the trial, it was established that the custom and practice of the electrical supply industry was for the supplier to obtain the signature of the person receiving materials. Johnson admitted that a signed delivery ticket constituted proof of delivery. Johnson wholly failed to submit any evidence, beyond his own nebulous allegations, that any outstanding invoice contained a billing error for which he had not already been credited. Thus, Johnson failed to present sufficient evidence from which the jury could have concluded that he was not indebted to Natchez Electric in the amount reflected by the signed delivery tickets and their associated invoices.

¶ 23. Further, Johnson never refuted the testimony of Taggert and Fortenberry that he had instructed his employees to accept material from Natchez Electric without signing a delivery ticket. In fact, Johnson admitted to having picked up material from Natchez Electric without signing a delivery ticket. Taggert and For-tenberry testified that, when Johnson or his employees picked up material without signing for it, a Natchez Electric employee would print the name of the person having received the materials. In rebuttal, Johnson testified that Fortenberry was selling material “out the back door” and billing it to Johnson’s account. But, Johnson did not point to any specific billing error caused by theft by Fortenberry. Beyond his testimony that he did not receive all of the materials billed, Johnson presented no evidence that he did not get a specific item. While Johnson’s testimony could have cast some doubt upon the correctness of the account, his uncorroborated allegations of theft by Natchez Electric employees, with nothing more specific, was insufficient to enable a reasonable juror to reject Natchez Electric’s proof that Johnson had received the materials listed on the delivery tickets bearing printed names.

¶ 24. Natchez Electric was also entitled to a JNOV concerning certain delivery tickets showing that the listed items had shipped directly from the manufacturer to Johnson. Taggert testified that Natchez Electric’s delivery tickets for direct shipments would not bear the recipient’s signature because the signature would appear on the shipper’s delivery receipt. Johnson admitted that a delivery ticket for a direct shipment would not bear a signature. There was no evidence from which a reasonable jury could have found that Johnson was not indebted for invoices associated with delivery tickets for directly shipped materials.

¶ 25. We address the matter of the invoices with associated “blank” delivery tickets bearing no signature or printed name. As previously stated, it was established that the custom and practice of the electrical supply industry was for the supplier to obtain the signature of the recipient of materials. It was further established that the ordinary course of business between Natchez Electric and Johnson was for Johnson’s employees often to pick up materials without signing, and then for a Natchez Electric employee to print the recipient’s name on the delivery ticket as proof of delivery. Based on this evidence of the industry custom and the parties’ own practice, the delivery tickets with no signed or printed name were not sufficient proof that material had been delivered to Johnson to entitle Natchez Electric to a JNOV. Therefore, we affirm the jury’s finding that Johnson was not indebted to Natchez Electric concerning any invoice associated with a blank delivery ticket.

¶ 26. We last address the matter of the invoices for materials used on Johnson’s Red Lobster job. At any given time, Johnson was working on several electrical jobs. Taggert and Fortenberry testified that Natchez Electric employees noted on each invoice the job for which the materials were intended based upon instruction from Johnson’s employees. Johnson testified that he bought all of his material for the Red Lobster job from Robinson Electric, not from Natchez Electric. Johnson surmised that Natchez Electric had billed him for materials he had bought elsewhere. Johnson admitted that he never compared his materials invoices from Natchez Electric and Robinson with his materials records for the Red Lobster job. We find there was insufficient evidence to distinguish the Red Lobster invoices from the other invoices admitted at the trial. Viewing the evidence in the light most favorable to Johnson, Johnson’s testimony was too speculative to enable a reasonable juror to conclude that Johnson did not receive the invoiced Red Lobster materials in the face of a delivery ticket bearing a signature or printed name, or for directly shipped items.

¶ 27. In conclusion, we find that there was insufficient evidence to support the jury’s finding that Johnson was not indebted to Natchez Electric. We have reviewed the evidence adduced by both parties at the trial and find that Natchez Electric was entitled to a JNOV concerning all of the invoices associated with signed delivery tickets, delivery tickets with printed names, and delivery tickets for directly shipped items. Concerning these invoices, the evidence pointed so overwhelmingly in favor of Natchez Electric that reasonable jurors could not have arrived at a finding for Johnson. Blake, 903 So.2d at 731(¶ 61). We reverse and render a verdict for Natchez Electric in the amount of $39,098.83, the amount reflected by the above listed invoices. We affirm the jury’s finding of no liability concerning the invoices accompanied by “blank” delivery tickets.

Attorney’s fees

¶ 28. As we are entering judgment for Natchez Electric, we must address its request for attorney’s fees. The issue of attorney’s fees in a suit on an open account is governed by Mississippi Code Annotated section 11-53-81. Section 11-53-81 provides, in pertinent part,

When any person fails to pay an open account within thirty (30) days after receipt of written demand therefor correctly setting forth the amount owed and ‘an itemized statement of the account in support thereof, that person shall be liable for reasonable attorney’s fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff.... If that person sued on the open account shall prevail in the suit, he shall be entitled to reasonable attorney’s fees to be set by the judge.

Natchez Electric argues that it is entitled to attorney’s fees pursuant to section 11-53-81. Indeed, Natchez Electric gave Johnson a written demand for payment of the account, and Johnson did not pay the amount owed within thirty days.

¶29. Notwithstanding Natchez Electric’s compliance with the demand requirement, we find that Natchez Electric was not entitled to attorney’s fees. For entitlement to attorney’s fees pursuant to section 11-53-81, “a plaintiff must secure a ‘judgment on the claim’ in the amount sued for.” Rainbow Rental and Fishing Tools, Inc. v. Delta Underground Storage, Inc., 542 So.2d 258, 263 (Miss.1989) (but stating that, had the amount recovered “lacked but a few dollars, being the entire amount sued for on open account, [it would put] an entirely different posture on th[e] case”). In Rainbow Rental, Rainbow claimed $32,357.98 on open account, but recovered a judgment for $5,529, a sum for which the defendant had been willing to settle prior to the lawsuit.

¶ 30. While we have found that Natchez Electric was entitled to a JNOV concerning the majority of the outstanding invoices, we have affirmed the jury’s finding of no liability concerning other invoices. We find that, since both Natchez Electric and-Johnson have partially prevailed in this case, Natchez Electric is not a prevailing plaintiff within the meaning of section 11-53-81 and is not entitled to statutory attorney’s fees.

II. WHETHER NATCHEZ ELECTRIC IS ENTITLED TO A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 31. The weight of the evidence is challenged by a motion for a new trial and is addressed to the trial court’s sound discretion. We will reverse the trial court’s denial of a motion for a new trial only for abuse of discretion. In determining whether the verdict was against the overwhelming weight of the evidence, we review all of the evidence as a whole, in the light most favorable to the verdict, and generally accept as true all of the credible evidence in favor of the non-moving party. Brandon HMA Inc. v. Bradshaw, 809 So.2d 611, 616(¶ 13) (Miss.2001); Green, 641 So.2d at 1203. We will reverse only if “no reasonable, hypothetical juror could have found as the jury found.” Brandon HMA Inc., 809 So.2d at 616(¶ 13).

¶ 32. A motion for a new trial requires a lesser showing than a motion for a JNOV. Investors Prop. Mgmt., Ltd. v. Watkins, Pitts, Hill & Assocs., 511 So.2d 1379, 1381 (Miss.1987). Therefore, for those claims on which we have found that Natchez Electric was entitled to a JNOV, its motion for a new trial is moot. Concerning the invoices for which Natchez Electric was not entitled to a JNOV, viewing the evidence in the light most favorable to the verdict, we find that the verdict was not against the overwhelming weight of the evidence. This issue is without merit.

III. WHETHER NATCHEZ ELECTRIC WAS ENTITLED TO A NEW TRIAL BASED ON THE ERRONEOUS ADMISSION OF TESTIMONY THAT FORTEN-BERRY STOLE MATERIALS.

¶ 33. Natchez Electric filed a motion in limine to exclude the evidence of Fortenberry’s alleged theft of materials. The motion was based upon Johnson’s deposition testimony that he did not know if any of the materials billed to his account in fact had been stolen by Fortenberry. Natchez Electric argued that the theft evidence was more prejudicial than probative. M.R.E. 403. The trial court denied the motion.

¶ 34. Natchez Electric argues that the admission of the theft evidence was error entitling Natchez Electric to a new trial. This Court reviews the trial court’s admission or exclusion of evidence for abuse of discretion. Terrain Enterprises v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995). Even if we find that the lower court’s decision was error, we will not reverse unless the error affected a substantial right of a party. M.R.E.103 (a).

¶ 35. Natchez Electric renews its argument that, since Johnson could not show that any of the materials billed to his account actually had been stolen by For-tenberry, the theft evidence was more prejudicial than probative. Mississippi Rule of Evidence 403 provides that evidence, though relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The theft evidence, though not linked to any specific materials and, therefore, insufficient to defeat Natchez Electric’s proof of delivery, was probative of whether Natchez Electric had overbilled Johnson for materials purchases. Given the broad discretion afforded to the trial court in conducting the Rule 403 balancing test, we find that the trial court did not abuse its discretion in finding that the theft evidence was not substantially prejudicial to warrant its exclusion.

IV. WHETHER SUFFICIENT EVIDENCE SUPPORTED THE JURY’S VERDICT THAT NATCHEZ ELECTRIC BREACHED ITS CONTRACT WITH JOHNSON.

¶ 36. Johnson asserted two breach of contract claims against Natchez Electric. Firstly, Johnson argued that Natchez Electric had breached its oral contract to sell materials to Johnson by failing to deliver the materials he ordered. Secondly, Johnson argued that Natchez Electric had breached a contract to provide Johnson with materials quotes for Johnson’s electrical contracting jobs by incorrectly quoting materials costs to Johnson. The jury found for Johnson on both these claims, but awarded him zero damages. Natchez Electric contends that the evidence was insufficient to sustain the jury’s verdict and, therefore, the trial court should have granted a JNOV concerning Johnson’s breach of contract claims. We agree.

¶ 37. To prove a breach of contract, the plaintiff must show by the preponderance of the evidence (1) the existence of a valid and binding contract; (2) that the defendant has breached the contract; and (3) that the plaintiff has been damaged monetarily as a result of the breach. Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992). Regarding Johnson’s claim that Natchez Electric breached its contract by failing to deliver materials ordered, we observe that we have already found that, regarding the majority of the materials invoices, the evidence was insufficient to support a verdict for Johnson. Concerning the materials invoices for which we hold Natchez Electric was not entitled to judgment, Johnson did not show that he suffered any damage as a result of being billed for materials that he did not receive. Johnson did not show that he ever paid for these materials; in fact, this lawsuit was an attempt to collect from Johnson on the unpaid debt. There was insufficient evidence to support a verdict for Johnson on his breach of contract counterclaim. The trial court erred by refusing to enter a JNOV for Natchez Electric concerning this counterclaim.

¶ 38. Next, we review the evidence pertaining to Johnson’s claim that Natchez Electric had failed to provide him with accurate materials quotes for electrical jobs. This evidence consisted of Johnson’s testimony, corroborated by Forten-berry, that Natchez Electric had provided quotes for several of Johnson’s electrical jobs. To formulate a quote, a Natchez Electric employee reviewed the plans and specifications for the project, discerned which electrical materials were necessary for the job, priced the materials, added up the prices to arrive at a total estimated cost, and then sold the materials to Johnson at the quoted prices. Johnson testified that several of Natchez Electric’s quotes had been unduly high. Johnson presented no proof that he lost any money as a result of Natchez Electric’s misquotes, such as lost project bids or overpayment for materials purchases. Thus, Johnson failed to submit proof that he suffered any damage from the misquotes. Consequently, there was insufficient evidence to enable a reasonable jury to find that Natchez Electric breached its contract to provide materials quotes to Johnson, and Natchez Electric was entitled to a JNOV concerning this claim.

CONCLUSION

¶ 39. We affirm in part and reverse and render in part a judgment for Natchez Electric in the amount of $39,098.83, and reverse and render a judgment for Natchez Electric on Johnson’s breach of contract counterclaims.

¶ 40. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART AND JUDGMENT IS ENTERED FOR THE APPELLANT IN THE AMOUNT OF $39,098.83. ALL COSTS OF THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT AND THE APPELLEE.

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

      . The Court has meticulously sifted through the approximately 250 invoices submitted by Natchez Electric that reflect the outstanding debt claimed of $41,794.45. Of these invoices, Natchez Electric has excerpted twenty-four invoices that were unaccompanied by delivery tickets with signatures or printed names, or for directly shipped items. However, this Court has identified eight additional invoices that were either associated with "blank” delivery tickets or which had no associated delivery ticket. Therefore, there is a total of thirty-two invoices totaling $2,695.62 for which we affirm the jury's verdict of no liability.

      . The jury was instructed to find for Johnson if he proved the elements of breach of contract, including actual damages, and to award Johnson compensatory damages, if any. The jury awarded zero damages. This was analogous to the zero damage verdict for breach of contract awarded by the jury in A & F Prop., LLC v. Lake Caroline, Inc., 775 So.2d 1276 (Miss.Ct.App.2000). In that case, we found that the zero damage award was unsupported by the evidence and reversed and rendered an award of $63,249. Id. at (¶¶ 18-19). Notably, we found no deficiency in the jury's conclusion that the contract had been breached.