author: CARLSON, Justice, for the Court.

text:
    Timmy TRAINER, Angela Trainer, SD Amusements of Mississippi, Inc. and Mississippi Amusement Operators’ Association v. STATE of Mississippi.
    No. 2004-CA-01955-SCT.
    Supreme Court of Mississippi.
    April 6, 2006.
    Rehearing Denied June 8, 2006.

      John H. Cox, III, Greenville, attorney for appellants.
    Office of the Attorney General by Billy Berryhill, Thomas Henry Mueller, Meredith M. Aldridge.
    Before WALLER, P.J., CARLSON and RANDOLPH, JJ.
   CARLSON, Justice, for the Court.

¶ 1. This civil action against the State of Mississippi, which challenges the constitutionality of certain criminal statutes, arises from the arrest of one of the appellants, Timmy Trainer, who was charged with possession of illegal gambling machines. The machines in question were seized from Trainer’s place of business and partially disassembled. Money was also removed from the machines and seized. Trainer relied on profit from the machines for part of his livelihood. Trainer claims the machines were not illegal gambling machines. He brought this suit to challenge the constitutionality of the criminal statutes under which he was arrested and under which the machines and money were seized. Trainer maintains the statutes are vague and ambiguous. Trainer also claims violations of his property rights and his right to due process of law, as he was provided no hearing. The trial court granted the State of Mississippi’s motion to dismiss, finding the machines were illegal gambling devices, and that Trainer thus had no property rights in contraband; and, that Trainer had failed to meet his burden of showing that the law was unconstitutional.

¶ 2. Trainer appealed to this Court. We affirm the trial court’s judgment which specifically allowed seizure of these machines under Miss.Code Ann. §§ 97-33-7 and -17, as we do not find these statutes to be unconstitutional.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. Shortly after Timmy Trainer’s purchase of Mac’s Grocery in Greenville, a law enforcement search of Trainer’s store was conducted pursuant to a warrant, in June, 2002. As a result of the execution of this warrant, law enforcement officials seized four video game machines and the money inside the machines. Trainer had been operating the store for only a few weeks when the Washington County Sheriffs Department conducted the search. The warrant described “four video poker machines,” which Trainer testified were not the types of machines seized. In fact, Trainer did not actually own any “video poker” machines. The seized video games, from which Trainer earns some of his livelihood, have a display similar to those on slot machines, and are known as “Cherry Masters” or “Eight Liners.” Trainer was arrested for possessing illegal gambling devices. When this civil action came before the circuit court, the criminal matter was still pending in county court, and a stay of the criminal case had been issued by the county court judge. The officers from the sheriffs department removed from the machines on site the mother boards, or “brain boards,” which are circuit boards similar to a computer’s CPU.

¶ 4. At the hearing on the State’s motion to dismiss, Trainer presented three witnesses, Phillip Lee, Brian Walters, and Ronnie Moore, who had experiences similar to Trainer. Lee, Walters, and Moore all owned bars and clubs which had these game machines which police confiscated and/or destroyed; and, they were not afforded a hearing or a criminal trial. Lee, Walters, Moore, and Trainer do not know where their game machines are being kept or what condition those machines are in. Testimony at the hearing revealed that these arcade-like machines which are common to all four individuals, project electronic displays onto glass screens similar to those on personal computers. The displays themselves resemble spinning reels like those on a traditional slot machine. The player begins the game by inserting money, which generates a certain number of credits, depending on how much money is inserted. The game is played by stopping the spinning reels by pressing buttons, or skill stops, on the front of these video game machines. The object is to line up common symbols on the display to accumulate more credits, which in turn will allow more playing time. Thus, the player “buys” credits by initially inserting money and then attempts to “win” more credits through game play. The machines, which accept both coins and bills, do not give change or return unused credits. Instead, any unused credits become a windfall to the next player. The machines also lack what are commonly called knock-off buttons, a device common to actual slot machines in casinos which reset the game credits to zero, thus allowing the player to be reimbursed for any unused credits. However, concerning the machines which are the subject of today’s appeal, if the player has increased the number of credits, the “winnings” cannot be redeemed for value.

¶ 5. Trainer filed his complaint for declaratory judgment/relief challenging the constitutionality of the statutory provisions under which he was arrested, naming Washington County as the defendant. In the original complaint Trainer also claimed violations of the Fourteenth Amendment of the United States Constitution, namely that he was deprived of due process of law and property, and that he was denied equal protection of the laws. The state Attorney General intervened on behalf of Washington County under Miss. R. Civ. P. 24(d), and filed a motion to dismiss. Before Trainer filed his response to the motion to dismiss, he filed a motion to amend his complaint for declaratory judgment, requesting that Washington County be deleted as the defendant, and that the State of Mississippi be substituted therefor, since he was challenging the constitutionality of a state statute. Trainer also requested that the complaint be amended to include another basis of unconstitutionality, namely, that the statute was vague and arbitrary as worded, interpreted and enforced. Washington County filed a response, agreeing that the complaint should be dismissed as to the County. In its response, the State argued that the trial court should address the State’s motion to dismiss before considering Trainer’s motion to amend; and, that there was no need to amend the complaint as the State had already intervened. At a subsequent hearing, the trial court granted both motions to dismiss. In its order granting the State’s motion, the trial court briefly addressed the issue of vagueness. Trainer filed this appeal from the trial court’s dismissal of his complaint.

¶ 6. In this appeal, Trainer challenges the constitutionality of Miss.Code Ann. § 97-33-7 (making the possession of slot machines illegal), and Miss.Code Ann. § 97-33-17 (making monies exhibited from illegal gambling subject to seizure by the sheriff). Trainer claims he was deprived of a property right in the machines, and profits from these machines, without a hearing to determine if his machines were covered by the statute or if the seizure was valid. Trainer raises only one issue today, but phrases it in two parts, namely, whether sections 99-33-7 and 99-33-17 are unconstitutionally vague, and impermissibly allow seizure of personal property without a hearing, depriving individuals of property rights and due process under the federal and state constitutions.

DISCUSSION

¶ 7. This Court has stated the scope of our power of review when interpreting the constitutionality of statutes:

Without doubt, our constitutional scheme contemplates the power of judicial review of legislative enactments; however, that power may be exercised affirmatively only where the legislation under review be found ‘in palpable conflict with some plain provision of the ... constitution.’ Statutes ... come before us clothed with a heavy presumption of constitutional validity. The party challenging the constitutionality of a statute is burdened with carrying his case beyond all reasonable doubt before this Court has authority to hold the statute, in whole or in part, of no force or effect. When a party invokes our power of judicial review, it behooves us to recall that the challenged act has been passed by legislators and approved by a governor sworn to uphold the selfsame constitution as are we.

In re T.L.C., 566 So.2d 691, 696 (Miss.1990) (quoting Hart v. State, 87 Miss. 171, 39 So. 523, 524 (1905) (internal citations omitted)).

I. WHETHER THE STATUTES MAKING IT A CRIME TO POSSESS GAMBLING MACHINES ARE UNCONSTITUTIONALLY VAGUE.

¶ 8. Trainer was arrested under Mississippi’s criminal laws which make it a crime for any person to possess, display, or operate any “slot machine, pinball machine, or similar device or devices” except where the statute specifically allows it, such as in legal casinos. Miss.Code Ann. § 97-33-7(1) (Rev.2000).

(1) It shall be unlawful for any person ... to have in possession, own, control, display, or operate any ... slot machine, pinball machine, or similar device or devices .... Any slot machine ... which delivers, or is so constructed as that by operation thereof it will deliver to the operator thereof anything of value in varying quantities, in addition to the merchandise received, and any slot machine ... that is constructed in such manner as that slugs, tokens, coins or similar devices are, or may be, used and delivered to the operator thereof in addition to merchandise of any sort contained in such machine, is hereby declared to be a gambling device, and shall be deemed unlawful under the provisions of this section. Provided, however, that pinball machines which do not return to the operator or player thereof anything but free additional games or plays shall not be deemed to be gambling devices, and neither this section nor any other law shall be construed to prohibit same.

Id. This statute provides that certain illegal gambling devices include slot machines that “deliver to the operator thereof anything of value in varying quantities, in addition to the merchandise received” and those that both use and deliver “slugs, tokens, coins or similar devices ... to the operator thereof in addition to merchandise of any sort contained in such machine.” Id. The statute also carves out exceptions for antique coin machines defined under another civil statute, § 27-27-12. Id. Our Court of Appeals has stated that prohibited machines are those that “(1) are operated by coin, token, or other consideration, and (2) dispense a product with (3) the possibility of dispensing additional items at varying quantities.” Miss. Gaming Comm’n v. Six Video Gamb. Devices, 792 So.2d 321, 324 (Miss.App.2001). On the other hand, the Mississippi Gaming Control Act defines slot machine more specifically:

(ff) “Slot machine” means any mechanical, electrical or other device, contrivance or machine which, upon insertion of a coin, token or similar object, or upon payment of any consideration, is available to play or operate, the play or operation of which, whether by reason of the skill of the operator or application of the element of chance, or both, may deliver or entitle the person playing or operating the machine to receive cash, premiums, merchandise, tokens or anything of value, whether the payoff is made automatically from the machine or in any other manner. The term does not include any antique coin machine as defined in Section 27-27-12.

Miss.Code Ann. § 75 — 76—5(ff). The Court of Appeals also considered this civil statute in Six Elec. Video Gamb. Devices, 792 So.2d at 326. However, our holding today is distinguishable from this Court of Appeals case, as our holding is limited to the two statutes raised on appeal — those found under title 97 of the Mississippi Code. Finally, any machine falling under the category of slot machine or gambling device is subject to seizure by law enforcement officials. Miss.Code Ann. § 97-33-17(1). Except where state law otherwise provides, “all monies staked or betted, shall be liable to seizure by any sheriff, constable, or police officer, together with all the appliances used or kept for use in gambling ... and all appliances seized shall be destroyed....” Id. It is important to note that the statute also states “that pinball machines which do not return to the operator or player thereof anything but free additional games or plays shall not be deemed to be gambling devices, and neither this section nor any other law shall be construed to prohibit same.” Miss.Code Ann. § 97-33-7(1).

¶ 9. The basic legal question is whether the statutes are unconstitutional because of vagueness in the description of what constitutes a slot machine. Trainer argues that because the statute is vague, he could not know if his devices were indeed illegal under the statute and thus, he was due a hearing to determine if they were illegal. Trainer argues that without this hearing, he was deprived of a property right in the machines and the income these machines produced for him. Trainer’s argument is that the vague description of slot machines and gambling devices prevents law enforcement officials from possessing the knowledge needed to discern which machines are legal and which are not. Trainer thus argues those officials are empowered with the authority to confiscate and destroy the personal property of individuals who are never afforded a hearing.

A. This Court’s decision in Henson, and vagueness.

¶ 10. This Court has had occasion to consider a case similar to today’s case. In Miss. Gaming Comm’n v. Henson, 800 So.2d 110 (Miss.2001), we found two game machines to be illegal gambling devices. The question before the Court in Henson was not the constitutionality of the statute, but rather what was required for a machine to be considered a “slot machine” under Section 75-76-5(ff) before the machine could be subject to seizure and destruction under Section 97-33-7(1). As previously mentioned, today’s holding applies only to Sections 97-33-7 and -17, and is therefore distinguishable from Henson.

¶ 11. The Fifth Circuit recently dealt with vagueness of statutes, stating that “[a]n enactment is void for vagueness if its prohibitions are not clearly defined.” J & B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 367 (5th Cir.1998) (quoting Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). To determine whether a statute is vague “we view the law from the standpoint of a person of ordinary intelligence.” Id. This Court has recognized the established, guiding legal principle that an ordinance or regulation “cannot be enforced unless it provides clear notice and sufficiently definite warning of that which is prohibited, and that which is allowed. The authorities for this proposition abound.” Mayor & Bd. of Aldermen, City of Clinton v. Welch, 888 So.2d 416, 421 (Miss.2004). The “restrietion[s] must be reasonably clear, enabling a citizen to understand what is allowed, and what is not.” Id. at 420.

B. The potential danger of arbitrary enforcement of the criminal statutes.

¶ 12. Trainer expresses concerns that the criminal statutes at issue do not give law enforcement officials clear guidance as to what game machines are subject to seizure. Trainer points out that the Mississippi Gaming Commission, allegedly not understanding the statute as clear and unambiguous, provides its own definition of a gambling game in that agency’s regulations by providing that such a game is “any banking or percentage game played with cards, with dice or with any mechanical, electromechanical or electronic device or machine for money, property, checks, credit or any representative of value.” Miss. Gaming Comm., Reg. VII., A. (10) (2005). The Commission later amended this definition. Trainer argues that if the statute were clear and unambiguous, there would be no need for the Commission to provide definitions and amended definitions. Likewise, the record reveals that the law enforcement officials in today’s case had difficulty with defining an illegal game machine under the criminal statutes. However, our role does not involve an attempt to rewrite the statute. Instead, we must decide if this statute provides “clear notice and sufficiently definite warning of that which is prohibited, and that which is allowed.” Welch, 888 So.2d at 421.

C. A closer look at sections 97-33-7, -17.

¶ 13. Again, Trainer was arrested under the criminal statute. We thus find the answer to the issue at hand in section 97-33-7. With the exceptions of antique coin machines and where the law specifically allows gambling, such as in legal casinos, the criminal statute makes it illegal for a person to possess a device which “deliver[s] to the operator thereof anything of value in varying quantities, in addition to the merchandise received,” or one which “is constructed in such manner as that slugs, tokens, coins or similar devices are, or may be, used and delivered to the operator thereof in addition to merchandise of any sort contained in such machine.” Miss.Code Ann. § 97-33-7(1). Given that the law treats a credit as whatever cost is required to play one credit, the possibility of winning several credits on any one spin of the virtual reels certainly awards things in varying quantities. Thus there is a clear exception for vending machines, such as a snack or soft-drink machine, which always deliver the same quantity of a product for one fixed amount of money. In the same way that a “true” slot machine, such as those found in legal casinos, might deliver varying quantities of coins or tokens to a player, the machines in today’s case can deliver varying quantities of credits to a player, each worth one coin or token initially required for play. Whether a player receives several dozen coins or several dozen credits, the player is receiving, in varying quantities, something of value. The question of a credit or a coin does not lay this issue to rest in Trainer’s favor. Legal slot machines may also commonly be operated to deliver only credits to a player who can choose to later “cash in” these credits. As for the exception that “pinball machines which do not return to the operator or player thereof anything but free additional games or plays shall not be deemed to be gambling devices,” one can easily see the difference between an additional game, such as one more round or turn, and an entire additional credit, the value of which is determined by the initial cost of play. We agree with the Court of Appeals that illegal gambling machines under the criminal statute are those that “(1) are operated by coin, token, or other consideration, and (2) dispense a product with (3) the possibility of dispensing additional items at varying quantities.” Six Elec. Video Gamb. Devices, 792 So.2d at 324.

¶ 14. Trainer draws our attention to another part of title 97, which states, “[a]ll laws made or to be made for the suppression of gambling or gaming, are remedial and not penal statutes, and shall be so construed by the courts.” Miss.Code Ann. § 97-33-29. Therefore, Trainer asserts that Sections 97-33-7, -17 are civil in nature, and not criminal. Looking at the same penal/remedial language from this statute, the Fifth Circuit declined to equate “remedial” with regulatory and “penal” with criminal, and therefore refused to reverse the criminal convictions. U.S. v. Stewart, 205 F.3d 840, 843 (5th Cir.2000).

In further support of their argument that violation of a state gambling law is not “criminal” ... Appellants rely on § 97-33-29 of the Mississippi criminal code, which provides: “All laws made or to be made for the suppression of gambling or gaming, are remedial and not penal statutes, and shall be so construed by the courts.” This particular provision has not been interpreted in modern case law in this context, but the Mississippi Supreme Court in 1903, in Fuller v. State held — consistent with even earlier opinions — that the provision was intended to clarify that criminal laws prohibiting gambling were to be construed liberally, as an exception to the normal rule of lenity, requiring strict construction of criminal statutes in favor of the accused. In Fuller, the court held that the predecessor to § 97-33-1 authorized imprisonment in addition — not just as an alternative — to a fine and stated: “We are fortified in this position by that provision of our criminal law which says that all laws in reference to gaming are remedial, and are to be construed liberally — not liberally in favor of the culprit, but for the suppression of vice.”

Id. (relying on Fuller v. State, 83 Miss. 30, 35 So. 214, 215 (1903); Cain v. State, 21 Miss. 456 (1850)). The Fifth Circuit further stated that “[t]he Mississippi Supreme Court, in construing ‘that provision of our criminal lav/ clarified that the word ‘remedial’ called for gaming laws to be construed liberally against the criminal; it has never held that the provision removed all prohibitory gambling laws from the criminal code.” Id. (emphasis in original). Also, we emphasize that our constitutional analysis of a statute is the same whether the statute under scrutiny is criminal or civil. We have long held that the Constitution applies to every statute. Hollins v. State, 128 Miss. 119, 90 So. 630, 631 (1922). Unable to see the distinction between the authority of criminal case law and that of civil case law when analyzing the constitutionality of a statute, the Court, in Hollins, held that “[t]he proper construction of the statute, or whether it shall be strictly or liberally construed, is not the question, but whether the Constitution applies to all statutes alike, whether civil or criminal. And we hold that it does.” Id.

¶ 15. The final question in our analysis is whether Trainer has met his burden of showing that these statutes are unconstitutionally vague. Keeping in mind that statutes come before us “clothed with a heavy presumption of constitutional validity,” Trainer must show the statute in question here is “in palpable conflict with some plain provision of the constitution.” In re T.L.C., 566 So.2d at 696 (quoting Hart v. State, 87 Miss. 171, 176, 39 So. 523, 524 (1905)). Trainer’s burden is to carry the case beyond all reasonable doubt. See In re T.L.C., 566 So.2d at 696. If Trainer can show this Court beyond all reasonable doubt he is being deprived of his property without due process of law because the statute is unconstitutionally vague, he should prevail. However, Trainer has not met that burden. We clearly find that, as written, the criminal statutes, Sections 97-33-7, -17, are not too broad in their description of what causes a video game to be an illegal slot machine. From the criminal statutes, as they currently exist, a person with ordinary intelligence would have little difficulty determining what exactly is prohibited and what is not. For these reasons, we find this issue to be without merit.

II. WHETHER MISSISSIPPI’S GAMING-DEVICE STATUTES DEPRIVE OWNERS OF PROPERTY WITHOUT DUE PROCESS OF LAW.

¶ 16. Trainer also contends he was deprived of property without due process of law because there was no hearing. The federal constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV(l). The Mississippi Constitution’s counterpart provision reads, “[n]o person shall be deprived of life, liberty, or property except by due process of law.” Miss. Const. Art. 3, § 14. The gambling laws in Mississippi however do not extend a property right to illegal gambling machines. Miss.Code Ann. § 97-33-7(2).

(2) No property right shall exist in any person, natural or artificial, or be vested in such person, in any or all of the devices described herein that are not exempted from the provisions of this section; and all such devices are hereby declared to be at all times subject to confiscation and destruction, and their possession shall be unlawful, except when in the possession of officers carrying out the provisions of this section. It shall be the duty of all law-enforcing officers to seize and immediately destroy all such machines and devices.

Id. As to Trainer’s argument that he has been deprived of property without due process of law, we have examined how other jurisdictions have addressed this issue. With exceptions made in instances of health risks, there is abundant case law, firmly rooted in legal history, across numerous jurisdictions, which absolutely requires a hearing to determine whether property is illegal or is a nuisance before it can be destroyed. See e.g., South Dakota Dept. of Health v. Owen, 350 N.W.2d 48, 51 (S.D.1984); State v. 25 Slot Machines, 163 W.Va. 459, 459, 256 S.E.2d 595, 596 (W.Va.1979); In re Destruction of One Gambling Device, 16 Wash.App. 859, 863, 559 P.2d 1003, 1005 (Wash.Ct.App.1977); State v. Madere, 344 So.2d 29, 30 (La.Ct. App.1977); Marathon Oil Co. v. Board of Zoning Adjustment, 44 Ohio App.2d 402, 407, 339 N.E.2d 856, 860 (1975); In re Teletype Mach. Co. 33335, 126 Pa.Super. 533, 534, 191 A. 210, 211 (Pa.Super.1937); State v. Falgren, 176 Minn. 346, 347, 223 N.W. 455, 455 (Minn.1929); Garland Novelty Co. v. State, 71 Ark. 138, 71 S.W. 257, 259 (1902); Bobel v. People, 173 Ill. 19, 24, 50 N.E. 322, 323 (Ill.1898). This has long been the rule, clearly consistent with basic principles of due process. “If there is no notice and hearing before the seizure and destruction of the property, then the owner is entitled to a hearing after the destruction to determine whether the property was in fact a nuisance, and whether such destruction was, in fact, necessary to abate the nuisance.” City of Rapid City v. Boland, 271 N.W.2d 60, 67-68 (S.D.1978) (relying on North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908)) (internal citations omitted). One state court has expressly held that where doubt exists as to whether the use to which the device may be put is lawful or entirely unlawful, “then the destruction of the device without notice and opportunity for a hearing is frowned upon as violative of due process of law; particularly is this true as to devices which, although capable of use for gambling purposes, actually may be used for lawful purposes.” Prendergast v. Dwyer, 88 Idaho 278, 285, 398 P.2d 637, 640-41 (1965). Again, as today’s factual scenario does not create any violation of Trainer’s due process rights, this question is not properly before us to resolve.

¶ 17. The trial court in today’s case relied on Stevens v. State, 225 Miss. 48, 82 So.2d 645 (1955) and Clark v. Holden, 191 Miss. 7, 2 So.2d 570 (1941) to support that the mere possession of an illegal gambling device, such as a slot machine, is enough for a violation. Naturally, if possession alone of certain objects is a crime, there is no property interest in those objects. If the machines in question clearly fall under the description of “illegal gambling devices,” it is without question that no property right existed in them. Trainer argues that because the statute is vague, he could not know if his devices were indeed illegal under the statute and thus was due a hearing to determine if they were. Trainer argues that without this hearing, he was deprived of a property right in the machines and the income they produce to him. This issue then hinges entirely on the vagueness of the statutes at issue in this case.

¶ 18. The trial court did not delve into a deep analysis of vagueness, but pointed out that for Trainer to prevail on the claim that Section 97-33-7 is facially unconstitutional, he must establish that there is no set of circumstances in which the law could be applied constitutionally. Barnes v. Miss., 992 F.2d 1335, 1342 (5th Cir.1993), cert. denied, 510 U.S. 976, 114 S.Ct. 468, 126 L.Ed.2d 419 (1993). The mere possibility that the law “might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” Webster v. Reproductive Health Services, 492 U.S. 490, 524, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). Trainer’s challenge to this statute is not that it is facially unconstitutional, but rather that it is unconstitutionally vague. Because we find the statute in question is not unconstitutionally vague, it follows that Trainer was not deprived of property without due process of law. Trainer was not due a hearing on whether his gaming machines were actually gambling devices precisely because the statute is not constitutionally vague as written. This issue is without merit.

CONCLUSION

¶ 19. Trainer has not met his burden of showing that, as currently written, the criminal statute in question, and the only one Trainer argues, fails to provide a clear and adequate definition of what is allowed and what is proscribed with regard to video game machines for a person with ordinary intelligence. In the application of the law to the facts before us now, we cannot find there is no possibility for the statutes to operate constitutionally. For the foregoing reasons, we do not find this statute to be unconstitutionally vague, thus allowing seizure of the devices and monies in this case.

¶ 20. In sum, for the reasons stated, we find the trial court properly granted the State’s motion to dismiss. Thus, the final judgment entered by the Circuit Court of Washington County is affirmed.

¶ 21. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.

      . In addition to Timmy Trainer, the other appellants are Angela Trainer, SD Amusements of Mississippi, Inc., and Mississippi Amusement Operators' Association. Angela Trainer is Timmy Trainer’s wife. She is identified in the record as co-owner and co-operator of Mac’s Grocery. SD Amusements of Mississippi, Inc., is a for-profit corporation which has business interests throughout Greenville and Washington County, and which owns and operates video game machines similar to those seized from the Trainers' place of business. At the hearing on the motion to dismiss, Trainer testified he was employed by SD Amusements. Trainer also testified that he owned and operated Mac's Grocery. Mississippi Amusement Operators' Association is a not-for-profit association of Mississippi owners and operators of video game machines similar to the ones seized from the Trainers' place of business. It is not clear from the record whether Trainer was a member of Mississippi Amusement Operators’ Association. For the sake of clarity, we will refer to the appellants collectively as "Train-

      . There is some confusion in the record as to the store’s actual name. In his brief, Trainer referred to his store as T and N Grocery, but in his testimony at the hearing on the state’s motion to dismiss, he called it Mac’s Grocery.

      . A few days before the oral arguments in this case, Trainer, through counsel, submitted a Rule 28(j) letter. See M.R.A.P. 28(j). So that there be no misunderstanding, this Court has also considered the citations of supplemental authorities provided in this letter, which was appropriately submitted according to the Rule, after the briefs were filed with the Court.

      . One of the game machines in Henson was actually a "Cherry Master Video,” supposedly similar to the game machines in today's case. Henson provides a detailed description of the game machine, which is essentially an upright arcade version of a slot machine, and which is also played in a similar fashion. Henson, 800 So.2d at 113-14. The main difference between the machine in Henson and the machines in our case today is the absence of "knock-off” buttons in the machines which are the subject of the case before us today. However, in Henson, these knock-off buttons were not the determining factor concerning the machines' illegality.


source: Caselaw Access Project

author: WALLER, Presiding Justice,

license: Public Domain

text:
    Kevine Dale PARKS v. STATE of Mississippi.
    No. 2004-KA-02448-SCT.
    Supreme Court of Mississippi.
    May 25, 2006.

      Wayne 0. Lee, Greenville, attorney for appellant.
    Office of the Attorney General by Jose B. Simo, attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Kevine Parks appeals from his conviction in Washington County Circuit Court of aggravated assault and sentence of twenty years in the custody of the Mississippi Department of Corrections. We affirm.

FACTS

¶ 2. Lolita Thompson and Parks had dated just over one and one half years. Two weeks after the end of their relationship, Thompson, then a student at Mississippi Delta Community College, was approached by Parks as she was leaving class. Thompson testified that Parks hit her and forced her into her car. Parks repeatedly hit Thompson in the face and body as he drove her away from the college, and, by use of force, prevented any escape attempts by Thompson. Parks was assisted in his attack by his cousin, Eric Haslett. Thompson’s ordeal continued until Parks was pulled over by Narcotics Agent Rick McDaniel of the Washington County Sheriffs Department after he saw the two struggling. Thompson was taken to a local hospital for evaluation and treated for extensive bruises and injuries to her face and head. Parks was arrested and charged with kidnaping and aggravated assault.

¶ 3. At trial, the State offered photographs of Thompson’s injuries, the testimony of hospital staff that Thompson’s injuries were the result of serious physical trauma, the testimony of an adverse witness against Parks, Thompson’s own testimony against Parks, and even letters written by Parks to Thompson wherein he all but confessed to the crime and offered Thompson money to drop the charges against him. The State rested, and Parks produced no witnesses or evidence in his defense, but moved for a directed verdict or a mistrial which were denied. After jury instructions were given, the jury deliberated and returned a guilty verdict on the charge of aggravated assault. The jury, however, was deadlocked as to the issue of kidnaping, and the circuit court declared a mistrial as to that charge. Parks was sentenced to twenty (20) years in prison for his conviction of aggravated assault.

ISSUES

I. Denial of Motions for Directed Verdict and Judgment Notwithstanding the Verdict.

¶ 4. Parks contends the circuit court erred when it denied his motions for a directed verdict and for a judgment notwithstanding the verdict because he was indicted for striking Thompson with his fists and not attempting to strangle her. Parks contends he should have been convicted of simple assault under Miss.Code Ann. Section 97-3-7(1) instead of aggravated assault under Miss.Code Ann. Section 97-3-7(2) and alleges there was insufficient evidence to sustain a conviction of aggravated assault because he used no deadly weapon in the commission of his assault on Thompson. In Jackson v. State, 594 So.2d 20, 23 (Miss.1992), we stated that a violent and aggravated assault with one’s fist may be encompassed by the statutory words of Miss.Code Ann. Section 97-3-7(2)(b) “or other means likely to produce death or serious bodily harm.” This holds true even if one’s hands cannot be said to constitute a deadly weapon.

It is not necessary under § 97-3-7(2)(b) that the use of hands and fists constitute the use of a “deadly weapon;” rather, it is enough if their use constitutes a “means likely to produce [either] death or serious bodily harm.” Nor is it necessary under this section for the State to prove the victim suffered “serious” bodily injury. Mere “bodily injury” is sufficient so long as it was caused with “other means likely to produce death or serious bodily harm.”

Id. Accordingly, Parks’s assertions to the contrary are without merit.

¶ 5. The proof in support of the State was overwhelming. The State produced a number of witnesses who testified as to Thompson’s injuries and their knowledge that Parks was the individual who inflicted those injuries. The victim gave a compelling account of the events surrounding her abduction and assault; medical officials verified that Thompson had indeed been ferociously assaulted; and other witnesses were able to place Parks in the presence of Thompson during the time she received her injuries. After viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Bush v. State, 895 So.2d 836, 843 (Miss.2005). As such, we find the circuit court did not err when it denied Parks’s motions for directed verdict and judgment notwithstanding the verdict.

II. Weight of the Evidence.

¶ 6. Parks also argues that his conviction was against the overwhelming weight of the evidence. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we sit as a “thirteenth juror” reviewing the evidence in the light most favorable to the verdict, and we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id. at 844-45. Apparently, Parks’s trial strategy was to cast doubt on the State’s witnesses and evidence. Considering the amount of testimony and evidence presented by the State, we cannot say that the verdict of the jury was contrary to the weight of the evidence before it. Id. Accordingly, Parks’s argument is without merit.

III. Whether the Circuit Court Erred in Refusing to Declare a Mistrial.

¶ 7. Parks next asserts that the circuit court erred in denying his motion for a mistrial. Parks’s motion was based on the testimony of Dr. Allen Billsby. Dr. Billsby testified as to the injuries sustained by Thompson and the force required to inflict such injuries. Dr. Bills-by’s testimony that the “considerable force” used to inflict Thompson’s injuries would be enough to possibly cause death was excluded by the circuit court. While the court did not grant a mistrial, it did give a cautionary instruction to the jury concerning the excluded portion of Dr. Billsby’s testimony. Parks argues that Billsby’s testimony warranted a mistrial.

¶ 8. This Court reviews motions for mistrial under an abuse of discretion standard. Tate v. State, 912 So.2d 919, 932 (Miss.2005). The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case, however, the trial judge is permitted considerable discretion in determining whether a mistrial is warranted because the judge is best positioned to measure the prejudicial effect. Id. (citing Gossett v. State, 660 So.2d 1285, 1290-91 (Miss.1995); Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990)). In the present case, while the comments of Dr. Billsby may be of some concern, the circuit court judge took the appropriate steps to ensure that the witness’s comments would not be considered by the jury when he issued a cautionary instruction to the jury to disregard part of the witness’s testimony. We have held that, generally, a judge’s directions to a jury to disregard the comments of a witness will sufficiently alleviate the prejudicial effects of such comments. King v. State, 580 So.2d 1182, 1189 (Miss.1991). See also Dennis v. State, 555 So.2d 679, 680 (Miss.1989); McFee v. State, 511 So.2d 130, 135-36 (Miss.1987); Weaver v. State, 497 So.2d 1089, 1094 (Miss.1986); Johnson v. State, 477 So.2d 196, 210 (Miss.1985). Parks has not shown that Dr. Billsby’s excluded testimony was of a sufficient prejudicial nature to warrant a mistrial after the circuit court’s cautionary instruction, and we do not find that the circuit court erred in denying Parks’s motion for a mistrial.

IV.Whether the Circuit Court Erred in Allowing the State to Call Eric Haslett as an Adverse Witness.

¶ 9. Parks next argues that the circuit court erred when it allowed the State to call Eric Haslett as an adverse witness because, Parks reasons, Haslett was neither qualified as an adverse witness, nor did the State tender Haslett as an adverse witness. Generally, the decision to allow leading questions rests within the sound discretion of the trial court and will not be disturbed absent a showing of an abuse of discretion. McFarland v. State, 707 So.2d 166, 175 (Miss.1998). We have held that when determining whether a witness is identified with an adverse party for purposes of allowing leading questions under Mississippi Rule of Evidence 611(c) , the trial court should “determine from the facts and circumstances of the case whether the witness proposed to be called is one who is identified with the adverse party within the meaning and contemplation of the rule.” Neal v. State, 805 So.2d 520, 526-27 (Miss.2002) (citing Harris v. Buxton T.V., Inc., 460 So.2d 828, 833 (Miss.1984)). In the present case, Haslett, Parks’s cousin, was treated as one identified with an adverse party. While Parks may be correct that Haslett was never charged for the crimes committed against Thompson, that does not change the familial relationship between Haslett and Parks or Haslett’s minimal involvement in the events leading to the present case. These two factors alone could easily place Haslett in the category of a witness “identified with an adverse party” within the meaning of M.R.E. 611(c). Parks has not shown that by allowing the State to use leading questions in its direct examination of Haslett the circuit judge abused his discretion. Accordingly, Parks’s assignment of error is without merit.

CONCLUSION

¶ 10. Because Kevine Parks has failed to bring to the attention of this Court any errors warranting remand or reversal of any part of his trial or sentence, we uphold the verdict and sentence of Parks.

¶ 11. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF COURT COSTS IN THE AMOUNT OF $284.00 AND A BOND FEE IN THE AMOUNT OF $200.00, AFFIRMED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Mississippi Rule of Evidence 611 (c) reads as follows: ''[Heading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.”


author: CARLSON, Justice,

text:
    Robert W. WEBB, Jr. and Senora B. Webb v. Chris BRASWELL, Jackson and Braswell, P.A. and First National Bank of Rosedale. Robert W. Webb, Jr. and Senora B. Webb, v. First National Bank of Rosedale.
    Nos. 2004-CA-01438-SCT, 2004-IA-01566-SCT.
    Supreme Court of Mississippi.
    May 25, 2006.

      Talbot O. McCain, Greenwood, attorney for appellants.
    S. David Norquist, Gerald H. Jacks, Kathy R. Clark, attorneys for appellees.
    P. Scott Phillips L. Carl Hagwood, attorneys for appellee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. This consolidated appeal arises from orders entered by the Circuit Court for the Second Judicial District of Bolivar County granting summary judgment in favor of two defendants, Chris Braswell and his accounting firm, Jackson and Braswell, P.A. (the Braswell defendants), and granting partial summary judgment in favor of the remaining defendant, First National Bank of Rosedale. First National had filed a combined, motion for partial summary judgment and to exclude expert testimony, which the trial court granted in toto. The trial court also denied an earlier motion to amend pleadings filed by the plaintiffs, Robert and Señora Webb. The plaintiffs’ motion to amend their pleadings was denied due to untimeliness inasmuch as the trial judge concluded that the granting of the motion would have resulted in undue delay, causing prejudice to the defendants. The trial judge entered final judgment as to the Braswell defendants, resulting in a direct appeal by the Webbs. As to the trial court’s grant of a partial summary judgment in favor of First National, the Webbs petitioned this Court for an interlocutory appeal, which we granted. The Braswell defendants also filed a cross appeal from an order of the trial court denying their previously filed motion to dismiss. We have consolidated these appeals.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Robert and Señora Webb had farmed 1,600 acres of farmland in the Greenwood area for several years prior to the events leading to this litigation. During these years of farming, the Webbs had secured crop production loans by hiring accountant Chris Braswell of the Cleveland Certified Public Accounting firm of Jackson and Braswell, P.A. Braswell was able to secure loans from Valley Bank in Greenwood on behalf of the Webbs. In the early spring of 1997, Braswell informed the Webbs that Valley Bank would not make a loan to them that year to fund their farming operation; however, Bras-well felt he could obtain that year’s loan from First National Bank of Rosedale. First National required numerous conditions to be met prior to approving the loan, such as a requirement that the Webbs file for bankruptcy. In May of 1997, Braswell informed the Webbs that First National would not provide them the loan. The Webbs filed this lawsuit against both First National Bank of Rosedale and the Bras-well defendants on October 10,1998, claiming various causes of action, including breach of contract and malpractice. The Webbs’ position was that the actions of First National Bank and Braswell prevented them from securing a production loan in time to harvest a profitable crop, causing them large financial losses, and practically removing them from the farming industry altogether.

¶ 3. In 2000, the Braswell defendants filed a motion “to enforce agreement of plaintiffs to dismiss all claims against them with prejudice,” based on an alleged agreement between the lawyers to do so. The trial judge denied this motion because he was unable to determine if such an agreement actually existed. This is the basis for the Braswell defendants’ cross-appeal.

¶ 4. After considerable discovery, the trial judge, on October 30, 2002, entered an order setting the trial of this case for December 15, 2003; however, on the day the trial was to commence, the trial court instead entered another order setting various deadlines and assigning a primary trial date of August 23, 2004, with an alternative trial date of December 13, 2004.

¶ 5. On April 12, 2004, the Webbs filed a motion for leave to amend the complaint, adding new claims against both First National and the Braswell defendants, and seeking damages for future lost profits in unplanted crops. Some of these claims included breach of implied contracts, breach of duty of good faith, fraud, estop-pel, intentional infliction of emotional distress, and claims for compensatory and punitive damages. Many of these claims were based on information the Webbs asserted they learned for the first time through discovery, thus they argued it was not possible for those claims to be included in the original complaint, filed before discovery was commenced. In their response, the Braswell defendants argued that the Webbs had not specifically pleaded fraud as required in Mississippi, and, because discovery deadlines had passed and trial preparation had been ongoing for years, that an amended complaint would cause the Braswell defendants to suffer substantial hardship.

¶ 6. First National filed a combined motion to exclude the new expert testimony and for a partial summary judgment in late April, 2004. The Braswell defendants filed a motion for summary judgment on the same day. On June 21, 2004, the trial court conducted a hearing on these motions and at the conclusion of the hearing, took these motions under advisement for subsequent ruling. Shortly thereafter, the trial court entered an order granting First National’s combined motion to exclude expert testimony and for a partial summary judgment. The trial court also entered an order denying the Webbs’ motion for leave to amend their pleadings because of untimeliness and the resulting undue delay and prejudice to the defendants. Additionally, the trial judge granted the Bras-well defendants’ motion for summary judgment. As to the Braswell defendants, the trial judge entered a final judgment pursuant to Miss. R. Civ. P. 54(b).

¶ 7. As to the order granting First National’s motion for partial summary judgment, and the order denying their motion for leave to amend their complaint, the Webbs requested a certification from the trial court for interlocutory appeal and a stay of the proceedings, pending the outcome of that interlocutory appeal, which the trial court granted on July 26, 2004. The Webbs also appealed the final judgment as to the Braswell defendants on their motion for summary judgment. The Braswell defendants meanwhile filed a cross-appeal from the denial of their earlier motion to dismiss filed in 2000. We have consolidated these appeals.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE WEBBS’ MOTION FOR LEAVE TO AMEND THE PLEADINGS.

¶ 8. This Court has outlined the standard of review for motions for leave to amend a complaint:

Motions for leave to amend complaint are left to the sound discretion of [the] trial court; the Supreme Court reviews such determinations under an abuse of discretion standard; and, unless convinced that [the] trial judge abused [his/ her] discretion, the Supreme Court is without authority to reverse. Church v. Massey, 697 So.2d 407, 413 (Miss.1997). Grant or denial of [a] motion for leave to amend is within [the] sound discretion of [the] trial court. MBF Corp. v. Century Bus. Communications, Inc., 663 So.2d 595, 600 (Miss.1995); Frank v. Dore, 635 So.2d 1369, 1375 (Miss.1994). Amendments to the pleadings are properly addressed to the discretion of the lower court. Red Enters., Inc. v. Peashooter, Inc., 455 So.2d 793, 796 (Miss.1984); McDonald v. Holmes, 595 So.2d 434, 436 (Miss.1992). Where the plaintiff filed his motion for amendment of declaration setting out its exact terms, and such terms were incorporated into an order which quoted [the] text of [the] motion and which was filed in [the] cause and entered upon [the] minutes of [the] court, [the] amendment was sufficient, as against [the] defendant’s contention that [the] original declaration should have been manually amended by inter-lineation or otherwise. International Order v. Barnes, 204 Miss. 333, 341, 37 So.2d 487 (1948) (overruled on other grounds by Mississippi Baptist Hosp. v. Holmes, 214 Miss. 906, 55 So.2d 142 (1951)). While the trial court has discretion to allow an amendment and should do so freely under the proper circumstances, an amendment should not occur when to do so would prejudice [the] defendant. Hester v. Bandy, 627 So.2d 833, 839 (Miss.1993).

Preferred Risk Mut. Ins. Co. v. Johnson, 730 So.2d 574, 579 (Miss.1998). Thus, in today’s case, we may reverse the trial court’s denial of the Webbs’ motion to amend their pleadings, only upon finding-abuse of discretion by the trial court. Otherwise, the trial court’s denial of this motion to amend must remain undisturbed.

¶ 9. The Webbs argue that because Miss. R. Civ. P. 15(a) requires “leave shall be freely given when justice so requires,” the trial court should have granted their motion. Miss. R. Civ. P. 15(a). The Webbs also point out that this Court has found, in part through the comment to the rule, that amended pleadings have been liberally permitted throughout Mississippi’s legal history. See Moeller v. Am. Guar. and Liab. Ins. Co., 812 So.2d 953, 962 (Miss.2002); Beverly v. Powers, 666 So.2d 806, 809 (Miss.1995); Rector v. Miss. State Highway Comm’n, 623 So.2d 975, 978 (Miss.1993). However, as the Webbs concede, the rule is not absolute.

Rule 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded ... if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be “freely given.”

Moeller, 812 So.2d at 962 (citing Estes v. Starnes, 732 So.2d 251, 252 (Miss.1999))(quoting Frank v. Dore, 635 So.2d 1369, 1375 (Miss.1994); and Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Therefore, leave should be freely given, but not when factors such as undue delay or undue prejudice would result — factors the Webbs argue are not present here.

¶ 10. First, the Webbs argue that the comment to Rule 15 places the burden of proving prejudice on the party opposing the motion. Next, the Webbs argue that, even if prejudice is shown, the trial court is charged with granting a continuance as opposed to denying the motion. The Webbs rely on the following portion of the comment to Rule 15: “[i]f the opposing party objects but fails to persuade the court that such party will be prejudiced in maintaining the party’s claim or defense, the court must then grant leave to amend the pleadings to allow the evidence on the issue. If the objecting party can show prejudice, the court may grant a continuance to meet the evidence, but should again allow amendment of the pleadings.” Miss. R. Civ. P. 15 (comment) (relying on 6 Wright & Miller, supra, Civil § 1495). In relying on this comment to Rule 15, the Webbs characterize their motion as one for leave to amend the complaint to conform to the evidence as provided under Rule 15(b). Mabus v. Mabus, 890 So.2d 806, 814-16 (Miss.2003); Par Industries v. Target Container Co., 708 So.2d 44, 51-53 (Miss.1998). Even assuming, arguendo, that Rule 15(b) applies to this pre-trial setting, the granting of a continuance under Rule 15(b), would most assuredly require the defendants to request the trial court to reopen discovery and practically start from the beginning on trial preparation with regard to the new claims. Rule 15(b) states, inter alia, that “[w]hen issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Miss. R. Civ. P. 15(b). While the above-quoted portion of the rule’s comment concerning continuances, and upon which the Webbs rely, is in reference to Rule 15(b), it is incomplete as presented by the Webbs. The previous sentence to the Rule 15(b) comment states that “[ujnder [Miss. R. Civ. P.] 15(b), when evidence is introduced or an issue is raised with the express or implied consent of the other party, the pleadings shall be treated in all respects as if they had been amended to conform to such evidence.” The Webbs’ motion is simply not a 15(b) motion. The comment contemplates amending pleadings based on evidence already introduced. The Webbs are actually trying to amend the complaint to include allegations which require new evidence, namely expert testimony. The rule itself refers to issues that are tried, and tried by express or implied consent of the parties. Here, the defendants expressly refused any consent to amend, and no trial has begun. No evidence has been introduced in court. Rule 15(b) exists for the most part for motions based on evidence at trial, and that is how this Court analyzes such motions. See, e.g., McCarty v. Kellum, 667 So.2d 1277, 1284-85 (Miss.1995). Thus, the Webbs’ motion is not a 15(b) motion and is not governed by that part of the rule. Rather their motion is actually a motion to amend the complaint, which is governed by Rule 15(a).

¶ 11. The trial judge here found that the Webbs filed their motion to amend four years after initiating suit, and only a few months before trial, and also noted that the Webbs’ attorney admitted he was aware of the nature and extent of their claims in 2000, four years before filing this motion. The trial judge further found that the Webbs had more than an adequate amount of time to analyze their case and amend their pleadings much earlier than when they filed the motion and that failure to do so timely was the result of a lack of diligence. Finally, the trial judge found that granting the motion would result in undue delay to the litigation, undue prejudice to the defendants, and “would encourage delay, laches, and negligence.” This is precisely what our case law warns against. “[T]he policy to freely grant amendments is not allowed to encourage delay, laches and negligence. Examples of when a motion to amend may be prejudicial include: where it would burden the adverse party with more discovery, preparation, and expense, particularly where the adverse party would have little time to investigate and acquaint itself with the matter.” Wal-Mart Super Center v. Long, 852 So.2d 568, 571 (Miss.2003) (citations omitted). This Court does not view lack of diligence as a compelling reason to amend. “Applications to amend the pleadings should be prompt and not the result of lack of diligence.” Harris v. Miss. Valley State Univ., 873 So.2d 970, 991 (Miss.2004)(relying on TXG Intrastate Pipeline Co. v. Grossnickle, 716 So.2d 991, 1011 (Miss.1997)). We have previously rejected the argument of an absolute right to amend, disallowing such amendments based on reasoning that a party should not be allowed to later complain on an issue, when that party “had ample opportunity and time to amend its complaint, and has offered no justification for why it did not do so.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1219 (Miss.2001). We agree with the trial judge, who clearly did not abuse his discretion by denying the Webbs’ motion to amend the pleadings. Amending the complaint was easily possible at a much earlier stage in the litigation, and the Webbs give no good reason why this was not done. Amending the complaint at this stage, well after the discovery deadlines, would without doubt cause undue prejudice to the defendants in the form of delay and cost. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE BRASWELL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.

¶ 12. Motions for summary judgment are governed by Miss. R. Civ. P. 56. When reviewing a trial court’s grant of summary judgment, our standard of review is de novo. Williams v. Bennett, 921 So.2d 1269, 1271 (Miss.2006); Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005). In considering this issue, we must examine all the evidentiary matters before us, including, inter alia, admissions in pleadings, answers to interrogatories, depositions and affidavits. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). The movant carries the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party is given the benefit of the doubt as to the existence of a material fact. Id. We are to view the evidence in the light most favorable to the party opposing the motion. Stallworth v. Sanford, 921 So.2d 340, 341-42 (Miss.2006). If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor. McCullough, 679 So.2d at 630. Thus, we will today conduct a de novo review to determine if any genuine issue of material fact existed so that the motion for summary judgment filed by the Braswell defendants should have been denied.

¶ 13. The Braswell defendants argue the scope of their professional relationship did not exceed the limits of the provisions of an engagement letter and a letter of representation the firm sent the Webbs. The letters essentially stated the nature of the Braswell defendants’ work, which consisted of compiling a statement of the Webbs’ financial condition and obtaining records from which to compile the statement. The Webbs argued that an oral contract existed, requiring much more from the Braswell defendants, and the Webbs included this allegation in their attempted amendments to the original complaint. However, only count VI (a malpractice claim) and count VII (a misrepresentation claim), in the original complaint, allege any wrongdoing against the Braswell defendants. Count VI alleges that because the Braswell defendants advised the Webbs to pursue funding from First National and no other source, the Braswell defendants committed malpractice which resulted in the Webbs having no funding. Count VII alleges that the Braswell defendants misrepresented to the Webbs that First National would provide their funding, which the Webbs assert was eventually shown to be a false statement, and which resulted in the Webbs pursuing no other funding.

¶ 14. The trial judge rendered his decision based on the following reasoning. Because the motion to amend the pleadings had been denied, the judge found that the only claims against the Braswell defendants which were properly before the court were those claims in the original complaint. Considering the facts and allegations in the light most favorable to the Webbs — that Braswell did actually give the advice as alleged in Count VI — the trial judge found no indication that such statements could give rise to liability, and therefore, the Braswell defendants were entitled to judgment as a matter of law. As to the allegations in Count VII, there was no credible or relevant evidence found by the trial judge to indicate that the statements were false at the time Braswell supposedly made them, assuming, arguen-do, that Braswell indeed made the statements. Falsity of the statement, along with the speaker’s knowledge of its falsity, are two of the elements of a cause of action for fraudulent misrepresentation. Levens v. Campbell, 733 So.2d 753, 761-62 (Miss.1999). The Webbs provide little more in their brief to this Court than the general law on summary judgment motions, such as the standards of review and the burdens of the moving and non-moving parties. The Braswell defendants, however, point out that no evidence existed that advising the Webbs not to attempt to obtain other financing, after First National informed them no production loan was forthcoming, was the proximate cause of any injury, or that the Webbs could have even obtained a loan from other sources. To the contrary, many facts existed which caused the Webbs to be a credit risk, such as facts that the Webbs were heavily in debt, unable for years to profit from their farming, and unable to qualify for a government-secured production loan for 1997. In their reply brief, the Webbs argue that the nature of their business relationship with the Braswell defendants, and the existence of an oral contract between the parties, are fact issues to be determined by a jury. We agree with the trial judge that, after the motion to amend was properly denied, the only counts of wrongdoing against the Braswell defendants before the trial court were the two counts in the original complaint alleging malpractice and misrepresentation. The other purported genuine issues of material fact now argued by the Webbs exist outside these two counts in the original complaint. Viewing the evidence in the light most favorable to the Webbs, no genuine issue of material fact exists as to those two counts. Summary judgment was proper, and this issue is without merit. Because we find that this issue is without merit and that the trial judge properly rendered final judgment in favor of the Braswell defendants, we find unnecessary any discussion on the trial court’s denial of the Braswell defendants’ 2000 motion “to enforce agreement of plaintiffs to dismiss all claims against them with prejudice,” which is the subject of the cross appeal.

III. WHETHER THE TRIAL COURT ERRED IN GRANTING FIRST NATIONAL’S MOTION TO EXCLUDE EXPERT TESTIMONY.

¶ 15. When reviewing the trial court’s decision to allow or disallow evidence, including expert testimony, we are bound by an abuse of discretion standard of review. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003). “Our well-settled standard of review for the admission or suppression of evidence is abuse of discretion.” Id. We must simply ask with regard to this issue if the trial judge abused his discretion in granting the motion of First National to exclude the expert testimony of agricultural economist David Parvin, Ph.D., whom the Webbs presented to testify to their claims of damages based on future lost profits for un-planted crops.

¶ 16. Rule 702 of our rules of evidence addresses the admissibility of expert testimony.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702. In Miss. Transportation Comm’n v. McLemore, 863 So.2d 31 (Miss.2003), this Court adopted the standard initially set out by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and later modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). That standard is a two-pronged test. For expert testimony to be admissible, it must be both relevant and reliable. McLemore, 863 So.2d at 38. The party offering the testimony must show that the expert based his/her opinion not on opinions or speculation, but rather on scientific methods and procedures. Id. at 36. The trial judge assumes the critical role as a gatekeeper in assessing the value of the testimony. Id. at 39. To be relevant and reliable, the testimony must be scientifically valid and capable of being applied to the facts at issue. Id. at 36. See also Poole ex rel. Poole v. Avara, 908 So.2d 716, 721-25 (Miss.2005).

¶ 17. In today’s case, the trial court granted First National’s motion to exclude the Webbs’ expert testimony because it found the testimony did not meet the Daubert/McLemore standard of relevance and reliability, inasmuch as the expert was to testify to future damages resulting from unplanted crops. We are hesitant to allow such uncertain damages to be proven. In Kaiser Invs., Inc. v. Linn Agriprises, 538 So.2d 409, 415 (Miss.1989) (examining damages from crops not planted on farmland after breach of the lease to that land), we held “[t]his Court has stated that damages for breach of contract must be proven with reasonable certainty and not based merely on speculation and conjecture.” (Citing Leard v. Breland, 514 So.2d 778 (Miss.1987); Lovett v. E.L. Garner, Inc., 511 So.2d 1346 (Miss.1987)).

¶ 18. In Kaiser, we held that evidence of lost profits for unplanted crops was not admissible because the amount of damage was not reasonably ascertainable based on past experience. Because the farming entity in that case had not established itself as profitable, and because there was no definite or certain data by which profits or lossés for that unplanted crop might be estimated, we determined that evidence of the projected harvest was erroneously admitted by the trial court and should have been excluded. 538 So.2d at 415-16 (Miss.1989) (citations omitted). We considered and discussed other authorities in support of use of profit projections for crops not yet planted, finding the rule to be that such projections should be “reasonably ascertainable based on past experience,” as in L.U. Cattle Co. v. Wilson, 714 P.2d 1344, 1348 (Colo.Ct.App.1986), or based upon “reasonable probability,” as in Nelson v. Reisner, 51 Cal.2d 161, 171-72, 331 P.2d 17, 24 (1958). In Kaiser, we cited a Georgia case which held that “anticipated profits of an unestablished future business are generally too speculative for recovery, but where the business has been established, has made profits and there are definite, certain and reasonable data for their ascertainment, and such profits reasonably must have been in the contemplation of the parties at the time of the contract, they may be recovered at least for a limited reasonable future time, even though they cannot be computed with exact mathematical certainty.” Mizell v. Spires, 146 Ga. App. 330, 332, 246 S.E.2d 385, 387 (1978).

¶ 19. In today’s case, the testimony was proffered for one purpose, to show damages of lost profits as a result of unplanted crops. The Webbs brought this testimony forward without ever establishing that they were profitable. Rather, the Webbs had been farming and operating at a loss in the years prior to the farming year which is the subject of this litigation. Therefore, the amount of damage allegedly resulting from the unplanted crops was not reasonably ascertainable based on the Webbs’ past experience, as the rule requires. This being the case, any testimony to prove damage to the Webbs is tenuous at best and fails the reliability prong of the Daubert/McLemore test. For these reasons, we find that the trial judge did not abuse his discretion in granting First National’s motion to exclude certain expert testimony proposed to be offered by the Webbs. This issue is thus without merit.

IV. WHETHER THE TRIAL COURT ERRED IN GRANTING FIRST NATIONAL’S MOTION FOR PARTIAL SUMMARY JUDGMENT.

¶20. Again, we review de novo grants of summary judgment by the trial court. Williams, 921 So.2d at 1271; Hall, 912 So.2d at 136. This standard of review applies equally to grants of partial summary judgment. McKinley v. Lamar Bank, 919 So.2d 918, 925 (Miss.2005). Based on our discussion of Issue III, supra, the trial judge was correct in denying the Webbs any recovery from claims based on unplanted crops. To this end, no genuine issue of material fact existed as to those claims, and First National was thus entitled to judgment as a matter of law concerning those claims. Therefore, this issue is without merit.

CONCLUSION

¶ 21. The tardiness of the motion for leave to amend the pleadings is inexplicable and cannot be excused. Had the motion been granted, the defendants would have been subjected to undue prejudice, and the case itself would have been subjected to undue delay. As to the only two claims against the Braswell defendants which were properly before the trial court, no genuine issue of material fact existed in favor of the Webbs, even when viewing the evidence in the light most favorable to them; therefore, the Braswell defendants were entitled to judgment as a matter of law. Finally, expert testimony offered by the Webbs was not admissible, and partial summary judgment in favor of First National, as to the issues concerning lost profits from future unplanted crops, was proper. Accordingly, the trial court properly granted judgments in favor of all the defendants.

¶ 22. For these reasons, we affirm the judgments in favor of Chris Braswell, Jackson and Braswell, P. A., and First National Bank of Rosedale, as entered by the Circuit Court for the Second Judicial District of Bolivar County.

¶ 23. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY AND DICKINSON, JJ„ CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. RANDOLPH, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J., AND DIAZ, J., NOT PARTICIPATING.

      . This order, entered on December 15, 2003, set numerous deadlines as follows: Pre-trial statement to be completed by the parties' counsel by February 16, 2004; counsel to exchange proposed jury instructions and motions in limine by March 1, 2004; objections to jury instructions and motions in limine to be exchanged between counsel by March 15, 2004; mediation to be conducted by March 15, 2004, in an effort to resolve this case prior to trial; conference between counsel by March 30, 2004, in an attempt to resolve objections to jury instructions, motions in li-mine, exhibits and qualifications of expert witnesses, and to agree on the contested issues of law and any anticipated questions concerning the admissibility of evidence during the trial; by April 15, 2004, counsel to submit a written report to the court on these conferences and any unresolved objections; all other motions to be filed by April 30, 2004; and, by August 16, 2004, counsel to notify the court administrator whether the case would go forward for trial on August 23, 2004, or would be settled or continued. The order also provided for the assessment of sanctions if counsel failed to comply with these various deadlines.

      . Though of no moment here, we note that M.R.A.P. 5(a) was amended, effective March 1, 2005, eliminating as a prerequisite the trial court's grant or denial of interlocutory certification prior to submitting the interlocutory appeal issue to this Court. This amendment applies to all trial court orders entered on or after March 1, 2005.