author: ISHEE, J., IRVING, J.,

text:
    Robert Lee PERRY, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00541-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.
    Rehearing Denied Nov. 14, 2006.

      David L. Walker, attorney for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Robert Lee Perry was convicted of sale of a controlled substance, cocaine, in the Circuit Court of Panola County and sentenced to serve twelve years in the custody of the Mississippi Department of Corrections (“MDOC”). Aggrieved by his conviction and sentence, Perry appeals. Finding no error, we affirm.

FACTS

¶ 2. After selling crack cocaine to a confidential informant on April 28, 2004, Perry was arrested and charged with possession of a controlled substance. During the jury selection process, Perry exercised all of his peremptory strikes on white males. The assistant district attorney objected, asserting that Perry was intentionally discriminating on the basis of race and gender. When asked to state his race/gender neutral reasons for exercising the peremptory strikes on these jurors, Perry presented the following: (1) juror McGregor was a security guard, thus pro-law enforcement, had been a crime victim, had a family member that had been a victim of narcotics, and had given a statement to law enforcement; (2) juror Chapman knew all of the narcotics agents involved in the case, had been a crime victim, and was a park ranger and emergency medical technician; (3) juror Davis was a crime victim; (4) juror Waller had been on a jury before and found the defendant guilty, had been a crime victim, and watches Law and Order, (5) juror Phillips was a military veteran and maintenance supervisor; and (6) juror Keeton was a military veteran, in addition to the fact that Perry “was reluctant to accept any prospective juror that the assistant district attorney liked.”

¶ 3. The trial court found all of the asserted reasons to be non-discriminatory except for those pertaining to jurors Davis, Phillips, and Keeton. The trial judge reasoned that the fact that juror Davis had been a crime victim did not alone constitute a sufficient reason to strike him, especially considering that another prospective female juror had been a crime victim, but was not struck. Because the trial judge determined that the proffered race/gender neutral reason given was insufficient, he reinstated juror Davis to the petit jury. As to juror Phillips, the trial judge stated that it was impermissible to bar a former veteran from serving on a juror simply because of his veteran status; thus, juror Phillips was reinstated to the petit jury. The trial judge used the same rationale in reinstating juror Keeton to the petit jury. Perry then objected and asked that the court make a record of the composition of the petit jury, which it did.

¶ 4. After his trial, Perry was convicted of possession of a controlled substance, cocaine, and sentenced to twelve years in the custody of the MDOC, with ten to serve and two suspended pending Perry’s future good behavior. Perry further raised the issue of the trial court’s reinstatement of the aforesaid jurors to the jury in his motion for a new trial, or in the alternative, for a judgment notwithstanding the verdict. Such motions were denied, and Perry appeals, asserting that the trial court erred by reinstating the jurors.

STANDARD OF REVIEW

¶ 5. This Court will only reverse a trial judge’s factual findings if such findings were “clearly erroneous or against the overwhelming weight of the evidence.” Tyler v. State, 911 So.2d 550, 553(¶ 10) (Miss.Ct.App.2005) (citing Tanner v. State, 764 So.2d 385, 393(¶ 14) (Miss.2000)). This Court will accord a trial judge’s Batson determinations great deference, as such determinations are based largely on credibility. Tyler, 911 So.2d at 553(¶ 10) (citation omitted). “Great deference” has been defined in the Batson context as “insulation from appellate reversal of any trial findings which are not clearly erroneous.” Id. (citing Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987)).

ISSUES AND ANALYSIS

¶ 6. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that parties could not exercise peremptory strikes based solely on a potential juror’s race. Batson, 476 U.S. at 89, 106 S.Ct. 1712; see Forrest v. State, 876 So.2d 400, 403(¶ 4) (Miss.Ct.App.2003) (“The Batson decision provides procedural directives for the trial court to follow in detecting and disallowing the practice of using peremptory challenges to remove members of an identified racial group from jury service based upon nothing more than their racial identification”). The Batson analysis has three prongs. Lynch v. State, 877 So.2d 1254, 1270-71(¶ 48) (Miss.2004). First, the party objecting to the opposing party’s exercise of a peremptory strike “must make a prima facie showing that race [or gender] was the criteria for the exercise of a peremptory strike.” Id. (quoting McFarland v. State, 707 So.2d 166, 171(¶ 14) (Miss.1997); see also Randall v. State, 716 So.2d 584, 588(¶ 16) (Miss.1998) (discussing application of Bat-son to gender discrimination)). To establish a prima facie case of discrimination, the party must demonstrate: (1) that he or she is a member of a cognizable racial [or gender] group; (2) that the opposing party has exercised peremptory challenges against members of a particular race; and (3) that the facts and circumstances raise an inference that the party exercising the peremptory strikes does so for the purpose of striking a particular race [or gender]. See Snow v. State, 800 So.2d 472, 478(¶ 10) (Miss 2001). “However, where the trial court does not explicitly rule on whether the defendant established a prima facie case under Batson but nevertheless requires the [opposing party] to provide [gender/]race-neutral reasons for its challenges and the [opposing party] provides reasons for its challenges, the issue of whether the [challenging party] established a prima facie case is moot.” Lynch, 877 So.2d at 1271(¶ 48) (citing Snow, 800 So.2d at 478-79(¶ 11)).

¶ 7. Once a prima facie case is established, burden shifts to the party exercising the challenge to provide a [gender/]race-neutral reason for doing so. McFarland, 707 So.2d at 171(¶ 14). “ ‘[A]ny reason which is not facially viola-tive of equal protection will suffice.’ ” Lynch, 877 So.2d at 1271 (¶ 49) (citations omitted). Such explanation does not have to be persuasive, or even plausible. Id. (quoting Randall, 716 So.2d at 588(¶ 16)). Unless discriminatory intent is inherent in the proffered race/gender-neutral explanation, the reason offered will be deemed a gender/race-neutral explanation. Id. In the absence of rebuttal by the challenging party, the trial judge is limited to the reasons proffered by the party exercising the peremptory strike. Lynch, 877 So.2d at 1271(¶ 49) (citations omitted). Failure by the challenging party to offer rebuttal to the proffered reasons constitutes waiver. Id. (citing Manning v. State, 735 So.2d 323, 339(¶ 30) (Miss.1999); Mack v. State, 650 So.2d 1289, 1297 (Miss.1994)). In reviewing the trial judge’s decision on the gender/race-neutral reasons offered by the party exercising the peremptory strike, this Court will give the decision great deference. Lynch, 877 So.2d at 1271 (¶ 50) (citing Walker v. State, 815 So.2d 1209, 1215(¶ 12) (Miss.2002)). We give such deference to the trial court’s findings because the trial judge is in the best position to evaluate the demeanor and credibility of the attorney offering the gender/race-neutral explanation. Id. Our supreme court has set out a non-exhaustive list of valid race-neutral reasons for the exercise of peremptory challenges, which includes “living in a ‘high crime’ area, body language, demeanor, [distrust of a juror by the party exercising the strike], inconsistency between oral responses and juror’s card, criminal history of juror or relative, social work and other types of employment, and religious beliefs.” Walker, 815 So.2d at 1215(¶ 12) (citing Lockett v. State, 517 So.2d 1346, 1356-57 (Miss.1987)).

¶ 8. The third prong of Batson requires the trial court to “determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory [challenge].” McFarland, 707 So.2d at 171(¶ 14). The trial court must determine whether the proffered gender/race-neutral reasons were pretexts for intentional gender/race discrimination. Berry v. State, 802 So.2d 1033, 1038(¶ 14) (Miss.2001). Our supreme court has identified five indicia which may indicate pretext for Batson purposes in a party’s exercise of a peremptory strike: (1) “disparate treatment, that is, the presence of unchallenged jurors of the opposite race [or gender] who share the characteristic given as the basis for the challenge”; (2) “the failure to voir dire as to the characteristic cited”; (3) “the characteristic cited is unrelated to the facts of the case”; (4) “lack of record support for the stated reason”; and (5) “group based traits.” Id. (citing Manning, 765 So.2d at 519(¶ 9); Mack, 650 So.2d at 1298; Whitsey v. State, 796 S.W.2d 707, 707 (Tex.Crim.App.1989)).

¶ 9. In the case sub judice, the gender/race-neutral reason offered for Perry’s peremptory strike of juror Phillips was that he was a military veteran and maintenance supervisor. Perry reasoned that military veterans and supervisors, in general, are more likely to be pro-prosecution according to Joe EdwaRD MoRRis, Systematic Jury Selection in Mississippi: A PRACTICAL Approach (1997). Perry further stated that because Phillips was a supervisor, he was likely to project an image of authority and consequently be selected as the jury foreperson. The trial judge stated that it would be impermissible to strike a juror simply because he was a military veteran. The trial judge found the strike against juror Phillips to be pretextual, and thus reinstated him.

¶ 10. Perry’s proffered reason for exercising a peremptory challenge against juror Davis was that he was a crime victim. The trial judge stated as to jurors Davis and Phillips, “I think there is just not sufficient evidence for the lawyers and this Court to say that they would be a biased juror.” The trial judge thus reinstated Davis.

¶ 11. As to juror Keeton, Perry’s proffered reasons for exercising the peremptory strike on him were that he was a military veteran and that Perry was “reluctant to accept anyone that [the prosecutor] likes as a juror. Obviously, that raises a red flag.” The judge found the reasons insufficient, however, and reinstated Kee-ton.

¶ 12. We find no clear error in the trial judge’s Batson determinations. The trial judge is given great deference in Batson matters, and his decisions in the case sub judice fit well within the Batson framework. Accordingly, we affirm the decision of the lower court.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE AND TWO YEARS SUSPENDED PENDING GOOD BEHAVIOR, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY KING, C.J., SOUTHWICK AND ROBERTS, JJ.

IRVING, J.,

Dissenting:

¶ 14. The majority finds no clear error with the trial judge’s Batson’s determinations and affirms the trial judge’s refusal to allow the peremptory strikes of two jurors by Perry, as race-neutral strikes. Because I think the proferred reasons were race-neutral, I respectfully dissent.

¶ 15. After Perry’s counsel had used peremptory strikes on five white males, the prosecutor objected that Perry’s counsel was impermissibly striking white males in violation of Georgia v. McCollum and demanded that Perry’s counsel be required to give race-neutral reasons for the strikes. Thereafter, the record reflects the following colloquy:

MR. WALKER [PERRY’S COUNSEL]: No. 7, Your Honor, is Jerry W. Davis. He is a crime victim. So far, Your Honor, I’ve been consistent, every crime victim I have exercised a peremptory challenge, that is, Mr. McGregor, Mr. Chapman, and Mr. Davis I used a strike against each of those.
MR. WALKER: D-5, No. 36, James A Phillips, is a military veteran. Of course, Dr. Morris’ book on jury selection indicates military veterans are pro-prosecution. He is a maintenance supervisor. Dr. Morris’ book on jury selection also indicates supervisors, in general, are pro-prosecution. Supervisors, in my mind, project the image of authority and the defense runs the risk that he would be selected foreperson of the jury and, in general, military personnel are very conservative and very pro-state according to the literature. Those are the reasons for striking No. 36.
THE COURT: All right, gentlemen. I have got to call the play the way I see it. I think Juror Davis should be re-established. There is nothing there other than a crime victim to indicate that to this base challenge and to take this person’s right to serve on a jury away from him and the same with Mr. Phillips, Juror No. 36—
You know, if going into the military is going to exclude you from jury service in the criminal justice system — the people that write these books on how to pick juries, they don’t have to comply with Constitutional standards as I do and the three that Mr. Walker gave with other reasons, I think are non-discriminatory, but I cannot say that as to Juror Davis, No. 7 and No. 36, Mr. Phillips. I don’t think anybody can ever say that veterans are going to be unfair jurors or pro-prosecution jurors. They go and do what they got to do and come back home and try to put their life together. I just think it is discriminatory as to No. 36 and No. 7. The other three, I think, will—
MR. WALKER: Judge, I guess I am going to lodge a general objection to that. I’m not sure I am required to, but as a matter of caution, I am going to generally object to that. I think we have rebutted the State, but any way, I respect your opinion.
THE COURT: There is, I think, Constitutionally challenged. The other two, I do not think so. I think there is just not sufficient evidence there or sufficient information for the lawyers and this Court to say that they would be a biased juror.
(emphasis added)

¶ 16. As can be discerned from the trial court’s ruling, the trial judge did not find that the reasons offered by Perry’s counsel were pretextural. Rather, the judge was concerned that there was no proof or evidence to suggest that Juror Phillips would be biased simply because he was a military veteran, or that Juror Davis would be unfair because he was a crime victim. Whether the jurors could or would be fair and unbiased is not the proper area of inquiry for the trial court in making Bat-son determinations. The focus is not on the juror’s bias, or lack thereof, but on the reason, intent, or purpose of the proponent in exercising the peremptory strike. If the reason for the strike is race-based, the strike is improper. Otherwise, the strike is permissible.

¶ 17. The majority at correctly states the law that “[ujnless discriminatory intent is inherent in the proffered race/gender-neutral explanation, the reason offered will be deemed a gender/race-neutral explanation.” Majority opinion at (¶ 7), quoting Lynch v. State, 877 So.2d 1254, 1271(¶49) (Miss.2004). However, after reciting the applicable law, the majority fails to apply the law when it finds that the trial judge did not abuse his discretion in not accepting as race-neutral Perry’s explanation for striking the Jurors Davis and Phillips. In my judgment, Perry’s counsel offered a race-neutral reason for striking the two jurors. The State failed to rebut the race-neutral reason offered by Perry’s counsel; therefore, the trial court should have accepted the explanation and allowed the strikes.

¶ 18. For the reasons discussed, I respectfully dissent. I would reverse and remand this case for a new trial, as Perry was denied his statutory right to challenge two jurors for purely non-racial reasons.

KING, C.J., SOUTHWICK AND ROBERTS, JJ., JOIN THIS OPINION.

      . Juror Davis was a white male; juror Druette was a white female; juror Sullivan was a white female; juror McCord was a white female; juror McDowell was a black female; juror Todd was a white female; juror Phillips was a white male; juror Keeton was a white male; juror Oliver was a black female; juror Crofford was a white female.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Lauretta WARREN, Appellant v. HORACE MANN LIFE INSURANCE COMPANY and Leo Hawkins, Jr., Appellees.
    No. 2004-CA-02291-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.
    Rehearing Denied Oct. 17, 2006.

      Precious Martin, Jackson, Dawn L. Stough, for Appellant.
    Arthur F. Jernigan, Samuel L. Anderson, Staci B. O’Neal, Jackson, for Appellees.
    Before LEE, P.J., GRIFFIS and ROBERTS; JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Lauretta Warren sued Horace Mann Life Insurance Company and Leo Hawkins, Jr., for fraud in connection with the sale of two life insurance policies. The circuit court judge granted summary judgment to Horace Mann and Hawkins. On appeal, Warren argues that there are genuine issue of material facts as to whether her claims are barred. We find no error and affirm.

FACTS

¶ 2. In March of 1993, Hawkins approached Warren to sell her life insurance. Warren bought a ten year term life policy, written by Horace Mann, on her sons Tommy and Christopher. The policy went into effect May 1. It included a clause to automatically convert to a permanent policy at the end of the ten years.

¶ 3. Warren claims that she was told that she was buying two life insurance policies, one on each son, with herself as beneficiary on both. She also claims that she was told that both policies were contained in the one contract. However, this was a joint life policy. The policy expired on the death of the first insured. Warren did not receive a copy of the policy until about two weeks after she filled out the application. She did not receive any illustrations, brochures or other materials with this policy.

¶ 4. In January or February 2003, Warren’s attorney asked her to contact him if she had a Horace Mann policy. She took out the policy and read it for the first time. Upon doing so, she was afraid that the policy was not what she was originally led to believe.

¶ 5. In May of 2003, Horace Mann advised Warren that her policy expired. She called Horace Mann and was told that she had the option of purchasing a whole life policy with the same terms as before. Warren understood that she had the option to refuse. However, she requested the new policy, because she had already invested ten years’ worth of premiums into the 1993 policy, and she wanted her sons to be insured. As a result, on June 3, 2003, Warren purchased a whole life policy from Horace Mann on Tommy and Christopher.

STANDARD OF REVIEW

¶ 6. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002) (citations omitted). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id.

ANALYSIS

I. Is Warren’s claim on her 1993 policy barred by the statute of limitations?

¶ 7. Warren contends it was error for the circuit judge to hold that her fraud claim was time-barred. Warren maintains there was a genuine issue of material fact as to whether the 1993 policy was ambiguous. If the policy were ambiguous, then a reading of it would not have lead to discovery of her cause of action. Horace Mann and Hawkins assert that the policy was unambiguous.

¶ 8. A cause of action for fraud is subject to the three-year statute of limitations set out in Mississippi Code Annotated Section 15-1-49 (Rev.2003). Stephens v. Equitable Life Assurance Soc’y of the U.S., 850 So.2d 78, 82(¶ 12) (Miss.2003). This three year period begins to run once the cause of action accrues. Miss.Code Ann. § 15-1-49 (Rev.2003). A claim for fraudulent inducement accrues upon the completion of the sale induced by the fraud. Stephens, 850 So.2d at 82(¶ 13).

¶ 9. Warren agreed to purchase the first policy on March 24, 1993. It was not delivered to her until two weeks later. The policy did not go into effect until May 1. Thus, the sale was complete on May 1, 1993. Warren had until May 1,1996 to file her fraud claim. Warren filed the lawsuit in December of 2003. Unless Warren can establish that the limitations period was tolled, the circuit judge was correct to find her claim time-barred.

¶ 10. Warren insists that the limitations period was tolled by Horace Mann’s fraudulent concealment of the initial act of fraud. If the defendant fraudulently conceals a cause of action, then the cause of action is deemed to accrue at “the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.” Miss.Code. Ann. § 15-1-67 (Rev.2003). To prove fraudulent concealment, plaintiff must show (1) defendant engaged in an affirmative act or conduct designed to prevent, and which does prevent, discovery of a claim, and (2) due diligence was performed on the plaintiffs part to discover defendant’s fraud. Stephens, 850 So.2d at 83-84(¶ 18).

¶ 11. Warren alleges there are genuine issues of material facts as to whether Horace Mann and Hawkins used ambiguous policy language, which concealed the original fraud, and as to when she, through reasonable diligence, should have discovered the fraudulent concealment.

¶ 12. During her deposition, Warren testified about the discovery of her cause of action. She testified that her attorney sent her a letter inquiring whether she had a policy with Horace Mann. Before consulting with her attorney, she read her policy. She believed the policy did not represent what she thought she bought. She immediately called her sister and told her, “I got this policy in 1993, and it just — I felt it was — not felt, but I don’t know, but it just wasn’t like I thought it should be, the policy.” In other words, upon reading the policy, Warren was under the impression that it was not what Hawkins had represented. Based on her own testimony, the language of the policy did not in fact prevent Warren from discovering her claim.

¶ 13. Because Warren failed to present a genuine issue of material fact as to whether the appellees fraudulently concealed her cause of action, the lower court was correct to find that the statute of limitations had run. We affirm.

II. Is Warren’s claim on her 1998 policy moot?

¶ 14. Because Warren’s claim on the 1993 policy is time-barred, we will not consider the lower court’s alternative holding that the claim was moot.

III. Is Warren’s claim on her 2003 policy barred, or does it otherwise fail on its merits?

¶ 15. Warren contends it was error for the circuit judge to deem her claim based on the 2003 policy barred by the doctrine of ratification. She argues a plaintiff may ratify a contract and yet maintain an action for fraudulent inducement. Horace Mann and Hawkins argue that ratification waives the fraud claim. In the alternative, they claim that her fraud claim based on the 2003 policy fails on the merits. We agree.

¶ 16. The circuit court determined that Warren knew of the true nature of the 2003 policy before she purchased it. Thus, this was a ratification.

¶ 17. We find that the testimony does not reveal a ratification of the 2003 policy, if her knowledge of the terms came before entering the contract. Rather, this evidence indicates that there was no fraud in the first place. To maintain an action of fraud, plaintiff must prove defendant made a false, material representation, that the speaker either knew was false or was ignorant as to its truth, on which the speaker intended to induce the hearer’s reliance. Beck Enters., Inc. v. Hester, 512 So.2d 672, 675 (Miss.1987). Plaintiff must further show that the hearer reasonably relied on the statement to her detriment. Id.

¶ 18. In her deposition, Warren testified about her decision to purchase the 2003 policy. In January or February of 2003, she discovered the 1993 policy was not the two separate policies that she was originally lead to believe. On May 1, 2003, Horace Mann sent her a letter stating the 1993 policy had expired. Warren called Horace Mann’s offices and was informed that she had the option of purchasing a whole life policy on the same terms as her 1993 policy. She elected to do so, because she did not want to lose the life insurance on her sons. On June 3, Hawkins arrived at her home to deliver the 2003 policy. Hawkins told Warren that the 2003 policy-provided for $41,062 in life insurance coverage for each son. She maintains he did not explain to her that the 2003 policy was also a joint life policy.

¶ 19. This testimony is undisputed in the record. Reading these facts in the light most favorable to Warren, it appears that her fraud claim fails on the merits. Hawkins made a false, material misrepresentation to Warren that her 2003 policy was two separate policies. He intended for her to rely on this statement, and indeed had an interest that she would. However, Warren cannot be said to have relied on this statement. She knew the 1993 policy was not what she wanted. She nevertheless requested to apply these same terms to the 2003 policy. AH of this happened before Hawkins made the fraudulent statements. She had already made up her mind to buy the policy, and she did not in fact rely on Hawkins’s subsequent misrepresentations.

¶20. We affirm the summary judgment.

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

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


author: ROBERTS, J.,

text:
    Ricky C. MILES And Christy M. Young, Appellants v. Tony L. MILES, Appellee.
    No. 2005-CA-00158-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Rehearing Denied Nov. 21, 2006.

      Jan R. Butler, Eupora, Attorney for Appellants.
    Dewitt T. Hicks, Columbus, Attorney for Appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

FACTS

¶ 1. H.C. Miles, Jr. and Mattie Gray Miles lived in Webster County, Mississippi. They had three children; Ricky, Christy, and Tony. The Miles’ three children grew up on approximately 120 acres of real property.

¶ 2. The GM & 0 railroad owned a right-of-way across the Miles’ property. In effect, that right-of-way divided the Miles’ property into two parcels. The eastern parcel had frontage access to Highway 15. The Miles’ home was on that forty acre eastern parcel. Additionally, Mr. Miles built a shop on the eastern parcel and conducted his carpentry business out of that shop. The western parcel contained approximately eighty acres. There were no structures on the western parcel. However, there was unevenly distributed timber on the western parcel.

¶ 3. Over time, Ricky moved to Tennessee and Christy moved to Maryland. Tony remained near his parents. In 1986, Mr. and Mrs. Miles deeded 2.02 acres of the eastern parcel to Tony. Tony built his home on that property. Tony also used Mr. Miles’s shop to conduct his contracting business.

¶ 4. Mr. Miles died in 2001. After Mr. Miles died, Tony continued to use the shop. Predeceased by her husband, Mrs. Miles passed away in the spring of 2003. Mrs. Miles left a will. According to her will, Mrs. Miles left her real property to Ricky, Christy, and Tony. That is, Ricky, Christy, and Tony each inherited an undivided one-third interest in the eastern and western parcels.

PROCEDURAL HISTORY

¶ 5. On June 30, 2003, Ricky and Christy filed a complaint for partition of land in the Webster County Chancery Court. Ricky and Christy named Tony as the sole defendant to their complaint. Ricky and Christy asked the chancery court to (a) partite the land into three equal parcels and (b) sell the ancestral home along with a small lot. On January 9, 2004, Ricky and Christy filed an amended complaint for partition. They did not alter their request to partite the land or to sell the ancestral home. However, they requested that the chancery court grant them access to the western parcel across the railroad right of way.

¶ 6. On January 20, 2004, Tony filed his answer to Ricky and Christy’s original and amended complaints. Tony also filed a counter-complaint for partition. By his counter-complaint, Tony requested that the chancery court award him the entire east parcel. Tony also requested that the chancery court order him to pay owelty to Ricky and Christy to compensate them and to equalize the division.

¶ 7. On February 11, 2004, the chancery court conducted the first of many hearings. John Scott Tenhet, a land appraiser, testified that the market value of the eastern parcel was $100,000. That estimate included the ancestral home. E. Lynn Prine, a timber expert, testified that the value of the timber on the western parcel was approximately $106,795. Prine also divided the western parcel into three smaller tracts of 25.26 acres. According to Prine, tract 1A, the northern tract, contained $47,580 in timber, tract 2k, the middle tract, contained $22,314 in timber, and tract 3A, the southern tract, contained $36,901 in timber. Tenhet used Prine’s timber estimate and concluded that the value of the western parcel was $144,000.

¶ 8. In June of 2004, Ricky and Christy agreed on a reciprocal transfer. Ricky gave Christy his undivided one-third interest in the western parcel. In exchange, Christy gave Ricky her undivided one-third interest in the eastern parcel. After-wards, Ricky owned a two-thirds interest in the eastern parcel, Christy owned a two-thirds interest in the western parcel, and Tony owned a one-third interest in both the eastern and western parcels.

¶ 9. On August 20, 2004, the chancellor filed an opinion and ordered that it would be possible to partite the land. The chancellor directed Ricky and Christy to submit three potential commissioners. Likewise, the chancellor directed Tony to submit three potential commissioners. The chancellor also instructed that the eastern parcel would be divided into two tracts. According to the chancellor, the special commissioners were to award one tract to Tony and that tract should include the land on which the ancestral home and the shop was located. The chancellor qualified that instruction. The special commissioners were only to award that tract to Tony “if such division [was] practicable.” The chancellor also instructed the special commissioners to award the other tract of the eastern parcel to Ricky. As for the western parcel, the chancellor instructed the special commissioners to award one tract to Tony and one tract to Christy.

¶ 10. On September 30, 2004, the chancellor entered a judgment. According to the chancellor’s judgment, the chancellor appointed three commissioners “to inspect the property and render a decision in accordance with the Opinion ... regarding whether the property can be partited in kind or whether a sale should be made with a division of the proceeds of the property.”

¶ 11. On November 15, 2004, the special commissioners filed their report. The commissioners’ report stated that the eastern parcel contained 35.41 acres and the western parcel contained 74.21 acres— 109.62 acres total. The special commissioners agreed that both parcels could be partited in kind.

¶ 12. The commissioners’ report stated that, as for the western parcel, Christy should receive 49.47 acres and Tony should receive 24.74 acres. As for the eastern parcel, the commissioners found that it was not “practical” to award Tony the tract that contained the ancestral home and the shop “because the value would be more than one-third of the total value of the East Parcel.” To that end, the commissioners concluded that Ricky should receive the ancestral home and the shop and the 1.6 acres that surrounded it as well as an additional 13.47 acres of the eastern parcel. As for Tony’s share of the eastern parcel, the commissioners concluded that Tony should receive 21.94 acres. The commissioners noted that Tony’s suggested award “would include the property in front of his present home and run north.”

¶ 13. On November 17, 2004, the chancellor filed an order and directed the parties that they must make their objections, if any, in writing and they must file them within five days. The order also instructed the parties to state why the commissioners’ report should not be approved, confirmed and accepted. On November 22, 2004, Ricky and Christy filed objections to the special commissioners’ report.

¶ 14. The chancellor did not conduct a hearing on Ricky and Christy’s objections. Regardless, on December 15, 2004, the chancellor issued her final judgment and her judgment confirming the special commissioners’ report. The chancellor added a slight modification to the special commissioners’ report. The chancellor gave Ricky an easement for ingress and egress over Tony’s tract on the east parcel.

¶ 15. On December 28, 2004, Ricky and Christy filed a postjudgment motion for new trial or, alternatively, to alter or amend the judgment. On January 4, 2005, the chancellor entered an order and denied Ricky and Christy’s postjudgment motions. The chancellor overruled Ricky and Christy’s postjudgment motions -without conducting a hearing. On January 15, 2005, Ricky and Christy filed their notice of appeal.

STANDARD OF REVIEW

¶ 16. “The standard of review for property partition cases is whether this Court finds manifest error in the decision of the chancellor, only then will this Court reverse the findings of the chancellor.” In re Last Will and Testament of Lynn, 878 So.2d 1052(¶11) (Miss.Ct.App.2004). “A chancellor is afforded wide discretion in fact finding in determining whether to confirm the special commissioner’s report and to authorize the special commissioner’s deed.” Hataway v. Nicholls, 893 So.2d 1054(¶ 18) (Miss.2005) (internal quotations omitted). “This Court will not disturb findings of the chancellor unless the chancellor was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Necaise v. Ladner, 910 So.2d 699(115) (Miss.Ct.App.2005).

ANALYSIS

I. DID THE CHANCERY COURT ERR WHEN IT DID NOT CONDUCT A HEARING ON RICKY’S AND CHRISTY’S OBJECTIONS TO THE SPECIAL COMMISSIONERS’ REPORT?

¶ 17. Ricky and Christy claim that the chancellor erred when she did not conduct a hearing on their objections to the special commissioners’ report. Ricky and Christy concede that nothing in Mississippi’s partition statutes requires a chancellor to conduct such a hearing. However, Ricky and Christy cite Section 11-21-25 of the Mississippi Code and its provision that the chancellor has authority to set aside the special commissioners’ report upon a showing of good cause. Specifically, that Section states:

The special commissioners shall make to the court, at the first term held after they have acted, or else as the court shall direct, a full report, in writing, of their proceedings, which, on exceptions filed at any time before its confirmation, for good cause shown may be set aside by the court, and other special commissioners appointed, or the same special commissioners may be directed to make a new partition; or the partition may be modified by the court in any particular, and be confirmed as thus modified.

Miss.Code Ann. § 11-21-25 (Rev.2004). Still, nothing in Section 11-21-25 mandates conducting a hearing on objections to the special commissioners’ report.

¶ 18. Ricky and Christy also cite M.R.C.P. 53 and claim that “[t]he language of Rule 53 certainly suggests that a court should conduct a hearing upon objections to the commissioners’ report.” According to M.R.C.P-. 53(g)(2):

The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.

Ricky and Christy draw particular attention to the language that gives the chancellor the authority to adopt the special commissioners’ report, reject it, modify it, receive further evidence, or recommit it “after hearing.” However, M.R.C.P. 53(g)(2) also states that the party who submits written objections must submit such objections in the form of a motion if they desire “action upon the report.” Action upon the special commissioners’ report is also conditioned “upon notice as provided by Rule 6(d).” M.R.C.P. 53(g)(2). Rule 6(d) directs that notice of a hearing on a motion “shall be served not later than five days before the time fixed for the hearing.” As such, M.R.C.P. 53(g)(2) suggests that the chancellor must conduct a hearing when a party submits objections in the form of a motion and when a party complies with the rules on noticing a hearing. Ricky and Christy did not submit their objections in the form of a motion and did not notice a hearing. Rather, they submitted a document styled “OBJECTION TO SPECIAL COMMISSIONERS [sic] REPORT” and asked the chancellor to refuse to adopt the special commissioners’ report in lieu of what they considered to be a partition method more favorable to them. What is more, M.R.C.P. 7(b)(1) states that “[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” M.R.C.P. 7(b)(1) goes on to state that “[t]he requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.” Ricky and Christy simply objected to the special commissioners’ recommendations and suggested alternative partition methods commensurate with their position. The “objections” document certainly failed to include a written notice of a hearing and did not even include a request for a hearing. Nothing in Ricky and Christy’s “objections” document placed the chancellor on notice that Ricky and Christy desired a hearing on their objections. Even if we relax the requirements of Rules 53(g)(2), 6(d), and 7(b)(1) to ensure that we do not favor form over substance, a chancellor has “wide discretion in fact finding in determining whether to confirm the special commissioner’s report.” Hataway, 893 So.2d at (¶18). Under M.R.C.P. 53(g)(2), the chancellor was required to accept the special commissioners’ findings of fact “unless manifestly wrong.” Considering the particular circumstances of this case, we cannot find that the chancellor abused her discretion in failing to conduct a hearing on Ricky and Christy’s objections.

¶ 19. Ricky and Christy cite Prostak v. Prostak, 257 N.J.Super. 75, 607 A.2d 1349 (Ct.App.Div.1992) as authority for the proposition that the chancellor should have conducted a hearing on their objections. In Prostak, the Appellate Division of the New Jersey Superior Court held that the chancery division of the superior court erred when it did not conduct a hearing on a party’s motion to suppress the special commissioners’ report. Id. at 1353. Obviously, we are not bound by New Jersey law. Even if we consider it instructive, there is a distinguishing feature. The party that requested the hearing in Prostak filed his objections in the form of a motion to suppress and the party’s attorney requested a hearing. Id. at 1351. Here, Ricky and Christy did not request a hearing and did not file their objections in the form of a motion.

¶ 20. Ricky and Christy also cite Green v. Marek, 2002 (Tex.Ct.App.2002), an unpublished opinion from the Texas Court of Appeals. Again, we are not bound by Texas law, especially in the form of an unpublished opinion that has no precedential value — not even in Texas, much less in Mississippi. For the sake of argument, Green held that a Texas district court erred when it confirmed a report from special commissioners incident to a partition action. Green found error because the aggrieved party did not get a copy of the special commissioners’ report and did not receive notice of the hearing at which the district court approved and confirmed the special commissioners’ report. Green found that the aggrieved party did not get an opportunity to file objections to the special commissioners’ report. Here, Ricky and Christy do not claim that they did not receive the special commissioners’ report. What is more, they not only had an opportunity to file objections to the special commissioners’ report, they actually filed their objections. We find no error equivalent to that in Green.

¶ 21. For purposes of clarity, we do not suggest that a party to a partition action has no right to a hearing. Rather, we find that a party has a right to a hearing on their objections to a special commissioners’ report where the party that seeks the hearing follows the requirements set forth in Rules 53(g)(2), 6(d), and 7(b)(1). To be sure, we do not find that, because Ricky and Christy did not include the word “motion” in the style of their objection, they were not entitled to a hearing on their objections. Rather, we find that, because Ricky and Christy did not follow the necessary procedural requirements to even place the chancellor on notice that they desired a hearing, the chancellor did not abuse her discretion in failing to conduct one. We find no reversible error and no violation of Ricky and Christy’s due process rights.

II. DID THE CHANCELLOR ERR WHEN SHE CONFIRMED THE SPECIAL COMMISSIONERS’ REPORT WHERE THE SPECIAL COMMISSIONERS DID NOT FOLLOW THE CHANCELLOR’S ORDERS?

¶22. Ricky and Christy submit that the special commissioners failed to follow the chancellor’s instructions in that they did not award Tony the tract of land on the eastern parcel that contained the ancestral home and the shop. Ricky and Christy note that the chancellor instructed the special commissioners to award the ancestral home and shop to Tony Miles “if such division is practicable.” The special commissioners’ report stated that it was not “practical” to award Tony the ancestral home and the shop. Ricky and Christy claim that the chancellor erred when she confirmed the special commissioners’ report because it was practicable to award Tony the ancestral home and the shop. According to Ricky and Christy, such an award was practicable because, even if Tony received an inequitable portion of the eastern parcel, the chancellor could have remedied that inequity through owelty. Ricky and Christy also distinguish the chancellor’s instruction that the special commissioners award Tony the ancestral home if “practicable” and the special commissioners’ response that such an award was not “practical.”

¶ 23. As for the difference between the chancellor’s use of the word “practicable” and the special commissioners’ use of the word “practical,” this appears to be nothing more than a scrivener’s error. The substantial use of the word “practical” distinguished from the substantial use of the word “practicable” is negligible when examined in the context of the effect. It is clear from the context of the special commissioners’ report that the commissioners felt as though they could not equitably award Tony the ancestral home because of Tony’s right to one-third of the eastern parcel versus Ricky’s right to two-thirds of that parcel. In any context, we cannot find that the difference in the two words rises to the level of clear or manifest error.

¶ 24. Regarding whether the chancellor erred when she confirmed the special commissioners’ report and did not modify the report to award Tony the ancestral home with instructions to pay owelty to Ricky, we can find no reversible error in that decision. “A partition in kind is the preferred method of partition of property under Mississippi law.” Fuller v. Chimento, 824 So.2d 599(¶ 8) (Miss.2002). As- mentioned, we are bound to allow a chancellor wide discretion in determining whether to confirm the special commissioner’s report. Hataway, 893 So.2d at (¶ 18). That the chancellor did not award Tony the ancestral home combined with an obligation to pay owelty to Ricky is a matter within the chancellor’s wide discretion.

III. DID THE CHANCELLOR ERR WHEN SHE CONFIRMED THE SPECIAL COMMISSIONERS’ REPORT WHERE THE SPECIAL COMMISSIONERS EMPLOYED THE DEFENDANT’S EXPERT AS THE SURVEYOR?

¶ 25. In this issue Ricky and Christy note that the special commissioners used a survey prepared by Mr. Ed Springer of Springer Engineering. Ricky and Christy submit that it was improper to use Springer’s survey because Tony was prepared to call Springer as an expert witness. According to Ricky and Christy, “[t]here was no way that [Springer] could have been truly impartial.”

¶ 26. There can be no doubt that the special commissioners were entitled to employ a surveyor to assist them with their duties and that such a surveyor should act impartially. See Miss. Code Ann. § 11-21-19 (Rev.2004). It is certainly foreseeable that a surveyor listed as one party’s expert witness could be impartial. However, in this case, Ricky and Christy present no evidence of an inequitable result based on Springer’s survey. Bare allegations of impropriety, without more, are insufficient to overcome the discretion afforded to the chancellor. At the very least, such a complaint should be accompanied by more than a generalized allegation to amount to reversible error. Here, we only have an allegation, a simple conclusion. Without more, we will not find reversible error.

IV. DID THE CHANCELLOR ERR WHEN SHE PARTITED PROPERTY ACCORDING TO THE FENCE LINE RATHER THAN THE DESCRIPTION WITHIN THE DEED?

¶ 27. Ricky and Christy claim that Springer’s survey omitted portions of Mrs. Miles’s real property. According to Ricky and Christy, because Springer’s survey failed to account for that omitted property, it was impossible to accurately and equitably partition the property. The discrepancy in property stems from a variation between the language of the deed by which Mr. and Mrs. Miles acquired the property in 1959 and a fence line around the western parcel. According to Springer’s survey, the fence line around the western parcel does not follow the actual boundary line. Instead, the fence line encroaches over the northern boundary of the western parcel and then falls short of the western and southern boundaries of the western parcel. Springer’s survey states that the 1959 deed credited the western parcel with 80.49 acres, while the boundary inside the barbed wire fence surrounding the western parcel contains 74.21 acres.

¶ 28. In the chancellor’s August 2004 opinion, the chancellor confirmed that the property contained approximately 118 acres. The chancellor then stated that the eastern parcel contained approximately thirty-eight acres and the western parcel contained approximately seventy-eight acres. Even accounting for approximation, that amounts to 116 acres. In the special commissioners’ report, the special commissioners stated that the eastern parcel contained 74.21 acres and the western parcel contained 35.41 acres. That amounts to 109.62 acres.

¶ 29. According to Ricky and Christy, Springer “created totally new and more limited land boundaries for both parcels.” Ricky and Christy suggest that Springer did not conduct his survey within the calls of the deed from which Mr. and Mrs. Miles derived their title. They also suggest that Springer “merely set the boundaries based on present fence lines.”

¶ 30. Tony claims that Ricky and Christy waived this allegation when they failed to include it in their objections to the special commissioners’ report. Ricky and Christy admit that they did not include this allegation in their objections, but they submit that they preserved the issue when they included it in their posttrial motion titled “Post Judgment Motion Pursuant to Rule 59 MRCP for a New Trial, or Alternatively, to Alter or Amend the Judgment and (sic) Pursuant to Rule 60 MRCP.” Alternatively, Tony submits that the chancellor included the entire 123 acres in her award. Tony claims that Christy’s 49.47 acres, plus Ricky’s 13.47 acres, in addition to Tony’s 46.68 acres amounts to 123.09 acres. Tony is incorrect. 49.47 plus 13.47 plus 46.68 equals 109.62-not 123.09.

¶ 31. Ricky and Christy did not object to the special commissioners’ using the fence line as the proper boundary. In effect, Ricky and Christy failed to submit a contemporaneous objection. Their failure is tantamount to waiver on appeal. Accordingly, we find this issue to be procedurally barred.

¶ 32. Procedural bar notwithstanding, this issue is one of first impression. There is an obvious discrepancy between Springer’s survey and the fence line. So, the question is whether the chancellor should have partited the property according to the language of the deed or the fence line.

¶ 33. We find that the chancellor did not err. The Springer survey preceded the commissioners’ report. The commissioners relied on the Springer survey when they recommended a suitable partition. No party disputed that Mr. and Mrs. Miles treated the fence line as the true and correct boundaries to the western parcel. As such, the surveyor, the commissioners, and the chancellor all sought to partite the property that Mr. and Mrs. Miles claimed as their own. Where a chancellor found that a surveyed line was the true boundary between the parties and that the fence had not been recognized and considered by the parties the boundary line, the chancellor did not err when he found that the appellants did not have title to the disputed property. Jenkins v. Thweatt, 42 So.2d 95 (Miss.1949). Here, the chancellor found that the fence had been recognized and considered to be the boundary line.

¶ 34. Naturally, this opinion is in no way to be construed as a determination that Mr. and Mrs. Miles, and now Christy and Tony, respectively, either adversely possessed that property which encroaches the northern boundary survey line or lost property because an adjacent landowner adversely possessed that property short of the western and southern boundary survey lines. Due process requires that those adjacent landowners have notice and an opportunity to be heard prior to any such resolution of those property rights. Those are questions for a later date. Christy and Tony still have the right to adjudicate those property rights. Here, however, we affirm the chancellor’s decision to partite that property that all parties conceded to be the proper boundaries to the western parcel.

V. DID THE CHANCELLOR ERR WHEN SHE ACCEPTED THE SPECIAL COMMISSIONERS’ VALUATION OF THE SHOP AND ITS SURROUNDING 1.6 ACRES?

¶ 35. The special commissioners valued the shop and its surrounding 1.6 acres at $7,500. According to Ricky and Christy, the commissioners had no basis to conclude on that value because no one presented any evidence regarding the valuation of the shop or the valuation of the 1.6 acres that surrounds it. Tony’s entire argument on this issue is that, “[t]he conservative value assigned for the shop and 1.6 acres clearly lies within the discretionary authority of the capable Special Commissioners, who unanimously determined this value.”

¶ 36. The chancellor has substantial discretion, but property appraisal is not a part of that discretion. Likewise, the special commissioners must have an evidentiary basis for the valuation they utilize to effect their partition report. It is improper to value property where there is no evidentiary basis for that valuation. See, e.g., Bishop v. Miss. Transp. Comm’n, 734 So.2d 218(¶ 11) (Miss.Ct.App.1999).

¶ 37. The evidence shows that Tenhet submitted an appraisal and that it was admitted into evidence. Tenhet’s appraisal placed a value on the shop. Tenhet’s appraisal also included a per acre valuation. Accordingly, there was an evidentia-ry basis for the valuation of the shop and the surrounding property.

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

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

      . As we will discuss below, there are variations in the precise acreage involved in this partition action.

      . Rule 60 cannot be the basis for a motion to alter or amend a judgment. A motion to alter or amend a judgment must be filed pursuant to M.R.C.P. 59(e).


author: MYERS, P.J., KING, C.J.,

text:
    Roy GILBERT, Appellant v. Martha Jean IRELAND, Appellee.
    No. 2004-CA-02340-COA.
    Court of Appeals of Mississippi.
    Aug. 29, 2006.
    Rehearing Denied Nov. 28, 2006.

      Susan Neelley O’Neal, Andrew N. Alexander, Greenville, attorneys for appellant.
    James H. Walker, Cleveland, attorney for appellee.
   MYERS, P.J.,

for the Court.

¶ 1. This personal injury action is before the Court for a second time. In 2000, the Court reversed and remanded a one million dollar judgment on an evidentiary issue. Gilbert v. Ireland, 758 So.2d 1050 (Miss.Ct.App.2000). On October 29, 2003, in the Circuit Court of Bolivar County, a jury returned a verdict in favor of Martha Ireland for three million dollars on a theory of post-traumatic stress stemming from a minor automobile accident, which even Ireland’s witness, Dr. Rodrigo Galvez, termed “a fender-bender.” There were no issues going to property damage. Rather, the judgment was based on a theory of post-traumatic stress syndrome. The defendant, Roy Gilbert, appeals, asserting five issues, which we quote verbatim:

I. THE TRIAL COURT ERRED IN DENYING GILBERT’S MOTION TO DISMISS AND RENEWED MOTION TO DISMISS WHERE THE EVIDENCE SHOWED, AND THE TRIAL COURT ACTUALLY FOUND, THAT THE PLAINTIFF, MARTHA JEAN IRELAND, LIED REPEATEDLY, BOTH UNDER OATH AND TO HER TREATING PHYSICIANS, ABOUT HER MEDICAL AND PSYCHOLOGICAL CONDITION, THE SOLE ISSUE REMAINING IN THIS LAWSUIT.
II. THE TRIAL COURT ERRED IN DENYING GILBERT’S MOTION TO EXCLUDE THE EVIDENCE OF IRELAND’S EXPERT, DR. RODRIGO GALVEZ, WHERE DR. GALVEZ’S TESTIMONY WAS BASED ON IRELAND’S FALSE STATEMENTS TO HIM, WAS NOT OTHERWISE SUPPORTED BY SUFFICIENT FACTS AND DATA, AND THUS DID NOT COMPLY WITH THE REQUIREMENTS OF M.R.E. 702 AND DAU-BERT V MERRILL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993).
III. THE TRIAL COURT ERRED IN DENYING GILBERT’S MOTION FOR DIRECTED VERDICT, AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT, WHERE IRELAND’S PROOF AT TRIAL WAS INSUFFICIENT AS A MATTER OF LAW, CONSISTING ONLY OF HER OWN TESTIMONY AND THE TESTIMONY OF EXPERTS WHOSE ONLY RELEVANT OPINIONS WERE ADMITTEDLY BASED ON IRELAND’S FALSE STATEMENTS ABOUT HER CONDITION.
IV. WHERE IT WAS ESSENTIAL TO GILBERT’S DEFENSE TO EXPOSE MS. IRELAND’S PREVIOUS FALSE TESTIMONY ABOUT HER DAMAGES, AND THAT FALSE TESTIMONY CONCERNED SENSITIVE SEXUAL MATTERS, THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL THE OPPORTUNITY TO QUESTION POTENTIAL JURORS IN VOIR DIRE ABOUT THEIR REACTION TO DISCUSSION OF SUCH SEXUAL MATTERS, AND IN DENYING DEFENSE COUNSEL THE ABILITY TO ADDRESS THE SUBSTANCE OF HER FALSE TESTIMONY IN HIS OPENING STATEMENT TO THE JURY.
V. WHERE THE UNDISPUTED EVIDENCE PROVED THAT THE CAR ACCIDENT BETWEEN GILBERT AND IRELAND WAS A MINOR “FENDER-BENDER.” AND THAT IRELAND HAD INCURRED ONLY $10,253.52 OVER TEN YEARS IN MEDICAL COSTS OSTENSIBLY RELATED TO THE ACCIDENT, THE THREE MILLION DOLLAR JURY VERDICT WAS GROSSLY EXCESSIVE, AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WAS THE PRODUCT OF BIAS, PREJUDICE AND IMPROPER PASSION.

¶2. Finding that the first three issues mandate reversing and rendering this action, the fourth and fifth will not be addressed.

FACTS AND PROCEDURAL HISTORY

¶ 3. On May 23, 1993, Ireland was driving northbound on Highway 1 south of Benoit, Mississippi. Gilbert was traveling along the same highway behind Ireland. Proceeding along the same path, in between Ireland and Gilbert’s vehicles, was a third vehicle driven by Lawrence Smith. Gilbert moved into the lane for southbound traffic and commenced passing Smith. As Gilbert moved past Smith’s vehicle, Ireland executed a left turn into a private driveway that abutted the highway. As Ireland executed this turn, Gilbert struck her car near the driver’s side door.

¶ 4. Ireland was transported to the Bolivar County Hospital in Cleveland, Mississippi where she was treated and released, but she returned the next day complaining of back pain. She was treated by Dr. Arthur Lindsey, a general practitioner in Cleveland. Dr. Lindsey admitted Ireland to Bolivar County Hospital for treatment and physical therapy for approximately one week. Dr. Lindsey died prior to the trial. In this Court’s first opinion, we addressed the sole issue of whether the circuit court erred in admitting a letter written by Dr. Lindsey. We found that the letter should not have been admitted and reversed and remanded. 758 So.2d at 1054(¶ 13). This issue is not presented in the current appeal.

¶ 5. Following our reversal and remand, this cause was again tried on August 21, 2001, but a mistrial was declared after it was disclosed that Ireland had been untruthful in both her testimony, as well as her statements to her expert witness going to her medical history and psychological condition. Ireland testified that she “developed nervousness problems, depression, stress. I lost my interest in men because I lost my sex drive and had no interest in them, and I also lost my memory. I couldn’t remember things, therefore I couldn’t pass my State [Nursing] Board tests.” In fact, Ireland had been treated for sexually transmitted diseases forty-one times, and had received prescriptions for birth control pills in each year from 1995 to 2001. Moreover, she had been pregnant twice, delivering a still-born infant in 1996, and having a miscarriage one month prior to the first trial. Medical records indicated that Ireland reported in a gynecological examination that she had sexual relations on the very day upon which she testified as to her loss of “sex drive” in the first trial. Subsequently, the circuit court granted Gilbert’s motion for a mistrial. Ireland does not dispute that Gilbert sought this medical information in discovery. The circuit court found that the discovery violations were not attributable to Ireland’s counsel, but instead stemmed from information she declined to share with him, as well as counsel for Gilbert.

¶ 6. Ireland testified and told Dr. Galvez that she was socially isolated, and her academic performance was impaired by post-traumatic stress stemming from the automobile accident. However, in fact, her grades were better after the accident than before. Moreover, during the third trial, Gilbert introduced evidence showing Ireland had visited the Lighthouse Point Casinos eighty-nine times since 1998, including a visit nine days prior to trial.

¶ 7. Gilbert filed a motion to dismiss the action and for attorney’s fees as a sanction pursuant to Mississippi Rule of Appellate Procedure 37(b)(2). The circuit court declined to dismiss the claim, but ruled that Ireland could not pursue the loss of sex drive claim, nor could she pursue issues of academic performance or not passing a test to be a Licensed Practical Nurse. Gilbert sought an interlocutory appeal to the supreme court, which denied the appeal.

¶ 8. The case was brought on for trial yet a third time on October 27, 2003. Dr. Donald Cook, an orthopaedic surgeon, testified he diagnosed a soft tissue injury in Ireland’s back. He had not treated Ireland prior to the injury, but despite having nothing on which to base Ireland’s condition prior to the accident beyond Ireland’s statements as to her pre-accident medical condition, he stated she had a permanent medical impairment to the body of seven percent as a result of the accident. Dr. Galvez testified that Ireland suffered from post-traumatic stress disorder and had a sixty percent permanent impairment. Dr. C. Greg Cates, a rehabilitative counselor, testified that based on Dr. Galvez’s and Dr. Cook’s findings, Ireland was one hundred percent vocationally impaired. He admitted, however, that without Dr. Gal-vez’s diagnosis he could not have made his finding of vocational impairment. Dr. Lewis Smith, a professor of economics at the University of Mississippi, testified Ireland’s lost wages and benefits totaled $690,905.79. Smith had never met personally with Ireland. Ireland again testified that she was socially isolated and lacked friends.

ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING THE MOTIONS TO DISMISS

¶ 9. The standard of review as to whether an action should have been dismissed as a sanction for discovery violations is abuse of discretion. Scoggins v. Ellzey Beverages, 743 So.2d 990(¶ 27) (Miss.1999). An appellate court will affirm a trial court’s decision about dismissal as a sanction unless there is a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Pierce v. Heritage Properties, Inc., 688 So.2d 1385, 1388 (Miss.1997) (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990)). The supreme court set forth the analysis as to whether dismissal is the appropriate sanction as:

First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in [a] situation where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.

Pierce, 688 So.2d at 1389 (quoting Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th Cir.1985)).

¶ 10. In this case, not only do all of these factors weigh in favor of dismissal, but also the fact of the matter is that the circuit court imposed no sanctions whatsoever. The court found that Ireland could no longer pursue the claims under which, as her own counsel concedes, she gave untruthful testimony and failed to comply with discovery. The circuit court merely ruled she could not give false testimony a third time. Thus, she was only deprived of something she had no legal right to pursue in the first place. In this case, the “sanctions” simply put Ireland where she would have been had she not been untruthful. This was an inadequate sanction as a matter of law. “Courts are obligated to ensure that such efforts are not only cut short, but that the penalty will be sufficiently severe to dissuade others from following suit.” Scoggins, 743 So.2d at 994 (¶ 18). Without sanctions that extract a penalty, litigants actually have an incentive to bring false claims. We find the circuit court erred in not applying sanctions. While it might be argued that the circuit court had discretion to be lenient, the “sanctions” that the circuit court imposed were inadequate to undo the damage Ireland’s untruthfulness inflicted upon Gilbert’s ability to prepare for trial and to defend the claim against him. In argument concerning Gilbert’s pretrial motion to dismiss, prior to the interlocutory appeal, Gilbert’s counsel stated:

By Mr. Alexander: It’s hardly fair to let Galvez assume, for his opinion that she’s lost her sex drive.
By the Court: Sex drive is out of the question.
By Mr. Alexander: But his opinion includes it. It makes up part of the basis for this conclusion he has that she’s got this 60% mental impairment or whatever he calls it.
By Mr. Alexander: Let me get this straight because I want this real clear on the record. For seven years, eight years, plaintiff has been telling her physicians, giving the history that includes a number of things, several of which apparently are now out of the case, and the experts, including Dr. Galvez, Dr. Cates, Dr. Cook, history including this alleged sexual dysfunction, school problems. It’s now plain that she was, she was lying about that. But that’s the history. Now, is it, first let me ask a question because I need to know exactly where we are. Is it the plaintiffs position that Dr. Galvez and the rest of the doctors are still going to be allowed to rely on the history, the false history that she gave them?
By the Court: Okay. Well the Court rules—
By Mr. Walker: I don’t know of any false history.
By the Court: The Court rules that if defense counsel wants to re-depose under the facts and circumstances, defense counsel, well, the defendant has that right.

¶ 11. Dr. Galvez relied upon Ireland’s misleading information in reaching his expert opinion. Any remedy for the false testimony and discovery violations that did not exclude his expert testimony could not remedy Ireland’s untruthful recitation of her symptoms and history. The supreme court has cautioned against disallowing expert testimony as a sanction where a lesser sanction can remove any prejudice or litigation cost that a party’s discovery violation has caused. Caracci v. Int’l Paper Co., 699 So.2d 546(¶ 30) (Miss.1997). However, in this case, the same information that Ireland failed to disclose, her purported lack of sex drive and her inability to engage in social interaction, was the basis for Dr. Galvez’s diagnosis of post-traumatic stress syndrome. As the untruths were the basis for his expert opinion, it was illogical, and an abuse of discretion, for the circuit court to refuse to disallow Galvez’s opinion from the false evidence.

¶ 12. Dr. Galvez testified that Ireland’s misstatements of facts were not intentional untruths, but rather manifestations of the post-traumatic stress syndrome which he diagnosed. Therefore, it could be argued that dismissal as a sanction is unduly harsh. However, as discussed in the rest of this opinion, while the logical course Dr. Galvez traveled in giving his testimony a third time was at best circular, even if it were credible, he had no factual basis for concluding when this psychological condition began or what caused it.

II. WHETHER THE CIRCUIT ERRED IN DENYING GILBERT’S MOTION TO EXCLUDE THE EXPERT TESTIMONY OF GALVEZ

III. WHETHER THE CIRCUIT COURT ERRED IN DENYING GILBERT’S MOTIONS FOR A DIRECTED VERDICT OR IN THE ALTERNATIVE A JNOV

¶ 13. Gilbert’s second and third assignments of error both address the same issue, so they will be addressed together. The issue is the evidentiary basis, and value, of Dr. Galvez’s expert opinion. The supreme court acknowledged the Daubert standard for the admissibility of expert testimony under Mississippi Rule of Evidence 702 in Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31(¶23) (Miss.2003). In that case, the Supreme Court found that, prior to allowing expert testimony into evidence, trial courts must first assess: (1) that the expert testimony is relevant and will assist the trier of fact; (2) the opinion is reliable in that it is based upon sufficient data and founded upon reliable principles and methods; and (3) the proposed witness has applied the principles and methods reliably to the case.

¶ 14. The standard of review for a denial of a JNOV and a denial of a directed verdict are the same. Under this standard, an appellate court must:

consider the evidence in the light most favorable to the[non-moving party], 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 [moving party] that reasonable [jurors] 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, 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. 3M Co. v. Johnson, 895 So.2d 151, 160 (Miss.2005) (quoting Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)).

Owens v. Mississippi Farm Bureau Casualty Insurance Co., 910 So.2d 1065, 1073(¶ 29) (Miss.2005).

¶ 15. Prior to the third trial, Gilbert deposed Dr. Galvez a second time. During this deposition, Dr. Galvez first became aware of the misstatements. Yet, he did not change his diagnosis. Rather, he opined that the misstatements were part of the post-traumatic stress disorder. Dr. Galvez testified that Ireland’s misstatements of fact were “denial,” which was an aspect of her suffering from post-traumatic stress syndrome. Gilbert voir dired him concerning Ireland’s lack of sexual interest.

Q: She wasn’t completely honest with you, was she?
A: No. That, that is a typical example of what we call denial in post-traumatic stress disorder. The people go through that post-traumatic stress order [sic], they deny themselves the freedom of taking, and even if they get in, like this particular case, even sick. They deny that. They put it away from their mind. It’s not that they are lying to us. It’s simply they use a, what we call, an ego defense.

¶ 16. However, according to medical records of the healthcare facility where Ireland sought medical treatment for sexually transmitted diseases, during the same time period that she was telling Dr. Galvez she had no interest in sex, she was able to remember when she had had sexual relations, and with whom she had had them. Therefore, Dr. Galvez’s opinion was at odds with the facts introduced at trial. The opinion was not “based upon sufficient facts or data.” M.R.E. 702. Therefore, the circuit court erred in admitting Dr. Galvez’s testimony into evidence.

¶ 17. Moreover, even assuming arguen-do that the testimony was admissible, Dr. Galvez admitted that he had nothing on which to base his judgment of Ireland’s psychological condition before the automobile accident, other than her recitations to him. He testified that Ireland wanted to do better than she was capable of doing academically after the accident, even though her grades after the accident improved from the grades prior to the accident.

Q: [D]o you think before the accident her grades [before the accident] were as good as she wanted them to be?
A: She told me after the accident her performance was not as good as she wanted [it] to be. I didn’t ask her if before the accident her performance was as good as she wanted [it] to be. We were talking after the accident.

¶ 18. Dr. Galvez testified that the basis for his opinion concerning Ireland’s pre-accident psychological condition, was the medical history that he obtained from talking with her.

Q: A history is what the patient tells you right?
A: Yes, sir.
Q: And it’s important to be able to believe what the patient tells you, right?
A: I don’t exactly believe 100% of what they tell me. I take information at face value and I take it from this.
Q: I’m sorry. The last thing you said.
A: I keep alert. If the patient tells me things, I listen to them, and I, but I don’t exactly say it’s a hundred percent fits [sic] with reality or is not consistent with reality. I, it’s an observation that I make to how the patient perceives his or her life, Okay.... It’s how the patient perceives his life.

¶ 19. Dr. Galvez’s diagnosis of post-traumatic stress syndrome was totally based upon his observation of how Ireland “perceived” her life and social interactions. The only information he had concerning Ireland’s psychological condition prior to the accident was what she told him, and he testified that he did not expect her to be factually accurate. His opinion simply had no probative value as to Ireland’s pre-accident condition.

¶ 20. The record is devoid of any medical testimony or documents that could shed light on whether before the accident Ireland had a psychological condition blurring fantasy with reality. The only witness for Ireland who did not depend upon Dr. Galvez’s diagnosis to show some injury or loss was Dr. Cook. He testified that Ireland had a slight loss of mobility in her back, but like Dr. Galvez, his medical history of Ireland consisted solely of her verbal representations to him. Consequently, the record fails to contain any information that could tend to show Ireland suffered any psychological injury stemming from the accident, aside from her verbal representations, which even her expert witness stated were not factually accurate. Therefore, the circuit court erred in denying Gilbert’s motion for directed verdict or JNOV.

¶21. In conclusion, the circuit court erred in failing to exclude Dr. Galvez’s testimony as both a sanction under Mississippi Rule of Civil Procedure 37, as well as under Mississippi Rule of Evidence 702. And, the circuit court erred in not granting a directed verdict or JNOV. Ireland failed to produce any evidence showing any psychological injury. The testimony of all the expert witnesses has been tainted by Ireland’s repeated lies and therefore their testimony was inaccurate. The only appropriate sanctions for these actions was dismissal of the suit against Gilbert. Consequently, we reverse and render.

¶ 22. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

KING, C.J.,

Dissenting:

¶ 23. Because I believe that the majority has improperly found that the circuit court should have dismissed this case as a matter of law, I dissent.

¶ 24. The majority correctly recognizes that the circuit court’s dismissal or refusal to dismiss an action is subject to review under an abuse of discretion standard. After recognizing this, the majority fails to apply the abuse of discretion standard, and proceeds to say this is a matter of law and sanctions were mandatory. See paragraph 10 of the majority opinion, which states,

In this case, not only do all of these factors weight in favor of dismissal, but also the fact of the matter is that the circuit court imposed no sanctions whatsoever. The court found that Ireland could no longer pursue the claims under which, as her own counsel concedes, she gave untruthful testimony and failed to comply with discovery. The circuit court merely ruled she could not give false testimony a third time. Thus, she was only deprived of something she had no legal right to pursue in the first place. In this case, the “sanctions” simply put Ireland where she would have been had she not been untruthful. This was an inadequate sanction as a matter of law. “Courts are obligated to ensure that such efforts are not only cut short, but that the penalty will be sufficiently severe to dissuade others from following suit.” Scoggins, 743 So.2d at 994(¶ 18).

¶ 25. I would suggest that the discretion to impose sanctions carries with it the discretion to refrain from imposing sanctions. The mere fact that this Court might have resolved the issue in a different manner, if it were the initial court, does not make the trial court wrong, nor does it axiomatically mean that the trial court abused its discretion.

¶ 26. The opinion appears to suggest that the foundation for declaring the circuit court’s actions to be inadequate as a matter of law is paragraph 18 of Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990 (Miss.1999). Paragraph 18 is taken from that section of the opinion styled “STATEMENT OF THE CASE”. A careful reading of Scoggins indicates that the quoted language is not from the supreme court discussion of the issues, but is taken from its recitation of the facts at the trial level.

¶ 27. Paragraph 18 of Scoggins reads,:

In determining that dismissal was the only appropriate sanction for Scoggin’s actions, the trial court found:
Thus, this is not a case in which a mere fine, payment of attorney fees or limitation of recovery will compensate for the harm done. If the Court were to limit Ms. Scoggins to recovery only for injuries “clearly related” to the subject accident, there would remain the factual question for the jury of how much of her condition is attributable to her prior ailments, and how much is explained by the accident. In other words, the case would remain in precisely the same posture as if this motion were never brought.
If, on the other hand, the Court were to impose upon Ms. Scoggins the necessity of paying the Defendant’s attorney fees incurred in pursuing this portion of the case, several problems would arise. First, assuming the case went to trial and Ms. Scoggins lost, the Defendant would, no doubt, be compelled to sue her to recover its fees since she plainly,is in no position to pay such fees without a substantial judgment in her favor. Even if she won, however, and the fees were ordered to be deducted from the award, this court, considers that substantial justice would not have been done. The Court arrives at this conclusion based on the damages Ms. Scog-gins’s conduct inflicted on the orderly progress of the case.
At this point in the case, discovery has been concluded for some time. The case is set for trial on April 29, 1998. If the Court were to allow the case to proceed to trial, it would undoubtedly do so only after allowing the Defendant additional time to re-depose at least Drs. Pace and Bowlus, which would necessitate both a continuance and further expense to the Defendant to re-take depositions which have already been completed. Moreover, because Ms. Scoggins has undergone several procedures and additional therapy, including doctor visits, since the accident and subsequent filing of the suit, it is likely to now be an impossible task to separate the costs attributable to her prior condition from those attributable to the accident.
All of these consideration aside, however, the Court finds that perhaps the most compelling reason for granting the Defendant’s motion is to redress an apparently deliberate attempt to subvert the judicial. process. Having observed Ms. Scoggins’s testimony as a witness and having examined the record-including her deposition and discovery responses-in great detail, and having given her the benefit of every reasonable doubt, the court is of the opinion that Ms. Scoggins has presented no credible explanation for the total lack of congruence between her testimony and her medical records. “A trial is a proceeding designed to be a search for the truth.” Sims v. ANR Freight System, Inc., 77 F.3d 846, 849 (5th Cir.1996). When a party attempts to thwart such a search, the courts are obligated to ensure that such efforts are not only cut short, but that the penalty will be sufficiently severe to dissuade others from following suit. For these reasons set out above, this Court finds that dismissal with prejudice is the only penalty that will accomplish that purpose on the facts as presented.

¶ 28. Because I believe that the majority opinion fails to apply the proper standard of review, and incorrectly relies upon the statements of the trial court in the Scoggins case as legal authority for its actions in this case, I dissent and would affirm.

      . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).