author: BROWN, Chief Judge.

text:
    Robin MORRISON, Plaintiff-Appellant, v. FIRST BAPTIST CHURCH OF WEST MONROE, Defendant-Appellee.
    No. 44,189-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      C. Daniel Street, Monroe, for Appellant.
    Azelie Ziegler Shelby, for Appellees, First Baptist Church of West Monroe and Church Mutual Ins. Co.
    Before BROWN, DREW, and LOLLEY, JJ.
   BROWN, Chief Judge.

| ] Claimant, Robin Morrison, appeals the judgment of the workers’ compensation judge (“WCJ”) ending all workers’ compensation indemnity benefits on April 17, 2007, and assessing each party with its own costs. We affirm in part, reverse in part, and remand.

Facts and Procedural Background

On March 11, 2007, claimant, who worked as a kitchen manager for defendant, First Baptist Church of West Monroe, injured her left wrist while putting up bus pans. Claimant reported the accident to her supervisor and received a “comp number.” Thereafter, claimant visited her general practitioner, Dr. Warren Daniel, who, after taking claimant off work, recommended that she see Dr. Douglas Brown, an orthopedic surgeon.

Dr. Brown diagnosed claimant with Ki-enbock’s Disease. Dr. Brown concluded that claimant’s work aggravated this preexisting condition. Dr. Brown recommended that claimant undergo an MRI and get a bone stimulator, and depending on the results of the MRI, possibly undergo surgery. All of these treatments were denied by the workers’ compensation carrier, defendant, Church Mutual Insurance Company.

On April 12, 2007, defendants presented a light duty job description “at this time for 30 hours per week at her same current rate of pay” to Dr. Brown for approval. Dr. Brown approved the light duty job on April 17, 2007. Claimant, however, rejected the job offer.

A workers’ compensation hearing was held on April 21, 2008. The WCJ found that claimant sustained an accident while in the course and scope of employment, and awarded temporary total disability (“TTD”) |2benefits from March 11, 2007, through April, 17, 2007, the date that Dr. Brown approved the light duty job description. The WCJ also found that because claimant rejected the offer of employment, she was not entitled to supplemental earnings benefits (“SEB”). Lastly, the WCJ determined that claimant was entitled to medical treatment and, as a result of defendants’ failure to provide the medical treatment, awarded claimant penalties in the amount $2,000 and attorney fees in the amount of $5,000; however, each party was ordered to bear its own individual costs.

Discussion

Temporary Total Disability Benefits/Supplemental Earnings Benefits

On appeal, claimant contends that the WCJ should have awarded TTD benefits beyond April 17, 2007, or in the alternative, should have awarded SEB after that date.

The question of whether a claimant is entitled to compensation benefits is a question of fact, and a WCJ’s determination may not be disturbed on appeal absent manifest error. Jones v. Hollywood Casino Shreveport, 42,819 (La.App.2d Cir.12/05/07), 972 So.2d 1189.

A claimant is entitled to TTD benefits if she proves by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(l)(c); Jones, supra; Albert v. Trans Met, Inc., 38,261 (La.App.2d Cir.06/23/04), 877 So.2d 183. A claimant who can perform light duty work is not entitled to TTD benefits. Holden v. International Paper Co., 31,104 (La.App.2d Cir.10/28/98), 720 So.2d 442, writ denied, 98-┴29563 (La.01/29/99), 736 So.2d 834; Cleveland v. Delhi Guest Home, 29,-506 (La.App.2d Cir.05/07/97), 694 So.2d 607.

When an employee’s work-related injury does not result in total disability, she may still be entitled to an award of SEB if she proves by a preponderance of the evidence that as a result of the work-related injury she is unable to earn 90% of her pre-injury wages. La. R.S. 23:1221(3)(a). An employee is deemed capable of performing offered employment unless she can establish by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, she cannot perform the offered employment. La. R.S. 23:1221(c)(ii).

In the case sub judice, claimant was found to be temporarily totally disabled from March 11, 2007, until April 17, 2007. On April 17, 2007, Dr. Brown approved a light duty job description proposed by defendants. Claimant did not present clear and convincing evidence that she could not perform the offered employment. Since Dr. Brown had released claimant to perform light duty work, it is clear that she was no longer physically unable to engage in any employment. Accordingly, claimant’s entitlement to TTD benefits ceased on April 17, 2007.

Claimant’s alternative argument, that she was entitled to SEB after April 17, 2007, requires us to determine whether it was proven by a preponderance of the evidence that, as a result of her work related injury, claimant was not able to earn 90% or more of her pre-injury wages. The WCJ found, and defendants did not appeal this finding, that claimant’s pre-jjnjury4 average weekly wage was $500.40. This wage is based upon an hourly rate of $12.51 and a 40-hour week.

In denying claimant’s request for SEB, the WCJ noted that defendants had offered claimant light duty employment at the same wage she was earning prior to her injury, and that claimant rejected that offer. The WCJ stated that claimant “cannot reject an offer paying her pre-injury wages, choose self-employment generating less than 90% of her pre-injury wages and expect defendant to supplement her salary through the payment of supplemental earnings benefits.”

The WCJ mistakenly found that defendants’ light duty offer of employment, which was approved by Dr. Brown, paid wages that were the same as claimant’s pre-injury wages. While the hourly wage rate of the offer was the same as claimant was earning prior to her accident, the average weekly wage was significantly less. Defendants’ light duty job offer was for 30 hours a week at an hourly rate of $12.51, which makes an average weekly wage of $375.30. This amount is 75% of claimant’s pre-injury wages, and as such, proves her entitlement to SEB. Thus, we reverse that part of the WCJ’s judgment and find that claimant is entitled to SEB and remand for the WCJ to determine the appropriate amount.

Costs

In her second specification of error, claimant asserts that the WCJ erred in assessing each party with its own costs.

La. R.S. 23:1310.9 states:

If the workers’ compensation judge before which any proceedings for compensation or concerning an award of compensation have been | .^brought, under the Workers’ Compensation Act, determines that such proceedings have not been brought on a reasonable ground, or that denial of benefits has not been based on a reasonable ground, the workers’ compensation judge shall assess the total cost of the proceedings to the party who has brought them or the party who has unreasonably denied payment of benefits.

Although a WCJ is afforded great discretion in assigning costs, we find that the WCJ abused that discretion in the present case. Defendants were informed by Dr. Brown on March 31, 2007, that claimant’s pre-existing condition was aggravated by her work. Based upon this it was unreasonable for defendants to deny claimant benefits. Furthermore, the WCJ implicitly found that defendants acted unreasonably in failing to authorize the recommended medical treatment by imposing attorney fees and penalties against defendants. Defendants did not answer the appeal or argue that this ruling was erroneous. Based upon the foregoing, it is evident that the WCJ abused her discretion by ordering each party to bear their own costs. See Daniels v. Keller, 02-2767 (La.App. 4th Cir.08/06/03), 854 So.2d 416. Therefore, in accordance with La. R.S. 23:1310.9, we find that since defendants unreasonably denied payment of benefits, the total costs of the proceedings shall be assessed against them.

Conclusion

For the reasons stated herein, that portion of the WCJ’s judgment ending claimant’s temporary total disability benefits on April 17, 2007, is affirmed. That portion of the judgment denying claimant supplemental earnings benefits after April 17, 2007, is reversed, and the matter is remanded to determine the amount of SEB. Lastly, that part of the judgment assessing each party with its own costs is reversed, and consequently the |fitotal costs of the proceedings are assigned to defendants. Costs of this appeal are assessed to defendants as well.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Frederick James SHEPARD, Appellant.
    No. 44,037-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.
    Louisiana Appellate Project by Margaret S. Sollars, for Appellant.
    Paul J. Carmouche, District Attorney, Jason Trevor Brown, Damon Daniel Ker-vin, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before GASKINS, PEATROSS & DREW, JJ.
   PEATROSS, J.

11 Defendant, Frederick James Shepard, was convicted by a jury as charged of Possession of Cocaine, adjudicated as a fourth-felony offender and was sentenced to the mandatory minimum sentence of 20 years at hard labor, without benefits. Defendant now appeals, challenging his multiple offender sentence. For the reasons stated herein, Defendant’s sentence is affirmed.

DISCUSSION

Defendant assigns the following error on appeal (verbatim):

The multiple offender sentence should be overturned because improper sentencing procedures were followed.

The habitual offender bill of information, charging Defendant as a fourth-felony offender, was filed a week after trial. Sentencing delays were waived by Defendant and he was sentenced to the mandatory minimum of 20 years, without benefits. Within his assignment of error, Defendant asserts several alleged sentencing errors by the trial court.

First, Defendant asserts that the sentence imposed is illegal because of the trial court’s failure to first impose a sentence and then vacate it and impose another sentence after the multiple offender adjudication. We disagree. There is no requirement in Louisiana statutes or jurisprudence that a court must first impose a sentence, only to vacate it and impose a sentence after a habitual offender adjudication. La. R.S. 15:529.1 D(3) contains no such requirement and, by its express language, contemplates the situation where the trial court may not have already imposed sentence at the time a defendant is found to be a multiple offender. Subsection D(3) provides:

| g(3) When the judge finds that he has been convicted of a prior felony or felonies or adjudicated a delinquent as authorized in Subsection A, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted or adjudicated, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling. (Emphasis added.)

We, therefore, conclude that the trial court properly sentenced Defendant following his adjudication as a multiple offender. In addition, we note that the cases cited by appellate counsel are inapposite, dealing only with sentences imposed after conviction, which were not vacated before the imposition of a sentence subsequent to a habitual offender adjudication.

Second, Defendant asserts that there was an insufficient articulation of sentencing factors to support the sentence imposed. The sentence imposed was the mandatory minimum for Defendant’s offense of conviction and habitual offender status. As has been repeatedly noted in the jurisprudence of this state, since the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. See State v. Richardson, 39,456 (La.App.2d Cir.3/2/05), 896 So.2d 257, writ denied, 05-0845 (La.11/29/09), 916 So.2d 165, cert. denied, 547 U.S. 1135, 126 S.Ct. 2032, 164 L.Ed.2d 791 (2006), and cases cited therein.

Defendant makes a third challenge to his sentence, claiming that his motion to reconsider sentence has not been acted on and is still pending. Even if it were not yet ruled on, no action would be required by this court. |sSee La. C. Cr. P. art. 881.1 C. The record does, however, contain a motion to reconsider, which was denied by the judge pro tempore on March 5, 2008. This argument is, therefore, without merit.

Finally, Defendant submits that the trial court failed to comply with the proper procedural delays relating to sentencing after ruling on post-conviction motions. As previously mentioned, the record indicates that those delays were explicitly waived by Defendant. Further, Defendant fails to advert to any prejudice alleged to have occurred as a result of any failure to comply with the delays. La. C. Cr. P. art. 921.

In summary, we find the arguments of Defendant to be legally and/or factually meritless. The multiple offender sentence of Defendant is, therefore, affirmed.

CONCLUSION

For the foregoing reasons, the sentence of Defendant, Frederick James Shepard, is affirmed.

AFFIRMED.


author:
PAUL A. BONIN, Judge.
      ARMSTRONG, C.J.,

text:
    Mariangela BRUNGARDT and Maurice P. Brungardt v. Charles SUMMITT, Pat Glorioso, Harry Connick, and District Attorney’s Office for the City of New Orleans.
    No. 2008-CA-0577.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 8, 2009.
    Rehearing Denied May 6, 2009.

      J. Courtney Wilson, J. Courtney Wilson, Attorney at Law, Metairie, LA, for Mar-iangela Brungardt and Maurice Brun-gardt.
    David A. Dalia, New Orleans, LA, for Charles Summitt.
    Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN.
   PAUL A. BONIN, Judge.

| tMr. and Mrs. Maurice Brungardt appeal the summary judgment dismissing their principal demand and granting judgment against them on the reconventional demand on liability alone in favor of Mr. Charles Summit. For the reasons which follow, we amend the judgment on the principal demand and, as amended, affirm it and we affirm the judgment on liability on the reconventional demand.

Background Facts and Proceedings

Mrs. Mariangela Brungardt first met Mr. Summit first at a job fair. According to the Brungardt petition, Mr. Summit early in the relationship “started to act inappropriately and used dirty language.” Once, Mrs. Brungardt alleged, he “grabbed her by the shoulders from behind, turned her around, shoved her against a wall, made aggressive sexual advances, groped and touched her breasts and groin area, forcibly kissed her and made a variety of vulgar statements to her and about her.”

|2She would continue to meet with him during the period beginning in July 1995 through February 1996. During these meetings she alleged that of Mr. Summit exposed his genitals to her, or followed her into the women’s restroom, or, on the last occasion, “masturbated, grabbed [her] by her head and attempted to force her to perform oral sex.” During parts of the year 1996 the petition mostly describes incidents in which she felt that Mr. Summit was following her around town.

On July 13,1997, she circulated an anonymous leaflet in the pews of St. Louis Cathedral which stated that Mr. Summit “rapes and subjects poor defenseless women to sexual and verbal abuse ...” On July 14, 1997, she complains that a document was delivered to her home “which threatened to initiate criminal and civil prosecution against her.” From then on she found herself being investigated by the domestic violence victim assistance program in the office of the District Attorney for Orleans Parish and being prosecuted in the Municipal Court of New Orleans on charges of battery against Mr. Summit. There was also contact with the Jefferson Parish Sheriffs Office about telephone calls by and to Mrs. Brungardt and Mr. Summit.

Mrs. Brungardt submitted to a peace bond in Municipal Court, requiring her to stay away from Mr. Summit. She then filed her lawsuit against Mr. Summit on September 27, 1999. He filed a reconven-tional demand for defamation.

The district court granted a partial summary judgment to Mr. Summit on liability alone on his defamation claim and designated the judgment as final. La. |3C.C.P. art. 1915(B)(1). The court also granted a summary judgment in Mr. Summit’s favor and against the Brungardts on the principal demand, dismissing it without prejudice. Mrs. Brungardt filed a motion for devolutive appeal and designated only portions of the record for our review.

The. Brungardts’ Assignment of Error

The Brungardts argue a single error made by the trial court, which error they assert resulted in the erroneous summary judgment rulings. The issue is an eviden-tiary issue in the context of a motion for and opposition to summary judgment. In order to defeat summary judgment, the Brungardts only submitted a pleading styled “Plaintiffs’ Affidavit/Statement of Controverted Facts,” which we shall refer to as her “affidavit.”

During the hearing the trial judge questioned the efficacy of the “affidavit.” Counsel for Mr. Summit then argued that the “affidavit” was not in proper form or substance and that the court should not consider the “affidavit.” Mrs. Brungardt had signed the “affidavit” before a notary public, who was her counsel. In her “affidavit” she refers to herself as “Mrs. Brun-gardt” or “the plaintiff,” but never in the first person pronoun. No fact is directly set forth in her “affidavit.” The factual allegations of her petition are incorporated into her affidavit by reference to them.

LA typical averment of her “affidavit” is “Plaintiff states that Summit is a pervert by adoption of paras. 7-18, 20-25, and 27-32 of her petition.” The trial judge expressed dissatisfaction with Mrs. Brungardt’s contention that her indirect and inexact references and allusions to Mr. Summit’s misconduct were sufficient to defeat summary judgment. Mr. Summit argued that the “affidavit” was no more than Mrs. Brungardt resting on her “mere allegations.” Touro Infirmary v. Johnson, 377 So.2d 898 (La.App. 4th Cir.1979).

The Brungardts argue that relying upon a verified petition would not be resting on mere allegations and that swearing to the allegations of her petition effectively lifts the allegations from “mere allegations” to facts sufficient to defeat summary judgment. Thus, they argue that Mrs. Brun-gardt’s “affidavit” has the same force of a verified petition.

This may be true, but we have previously held “that a verified petition is not an affidavit for purposes of summary judgment under LSA-C.C.P. art. 967.” Caston v. Centers for Psychotherapy, Inc., 619 So.2d 1140, 1142 (La.App. 4th Cir.1993). La. C.C.P. art. 967(A) requires that “opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

| ¡¡Later we held in Kaufman v. Cleaton, 03-0452, p. 3 (La.App. 4 Cir. 10/8/03), 861 So.2d 586, 588:

The fact that the defendant’s pleadings may be verified is not sufficient to meet the affidavit requirement of La. C.C.P. art. 967. [citation omitted.] The “Verifying Affidavit” filed by the defendant making the generalized assertion that “all of the allegations contained in her Answer and in her ‘Memorandum in Opposition to Beatrice Kaufman’s Motion for Summary Judgment’ are true and correct to the best of her information, knowledge, and belief,” is not sufficient to meet the La. C.C.P. art. 967 requirements that summary judgment affidavits “set forth specific facts.”

Therefore, the trial court did not commit any error in excluding “Plaintiffs’ Affidavit/Statement of Controverted Facts” from consideration of the motion for summary judgment before it. The “affidavit” does not meet the evidentiary requirements for a submission either in support of or opposition to a summary judgment motion.

Standard of Review on Summary Judgment

“A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant.” Samaha v. Rau, 07-1726, p. 2 (La.2/26/08), 977 So.2d 880, 882; La. C.C.P. art. 966. “A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; ie. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Id. at 3-4, 977 So.2d at 882-883.

|riA motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). “Summary judgment is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). The legislature, in 1997, enacted La.C.C.P. art. 966(C)(2), which further clarified the burden of proof in summary judgment proceedings, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

See also Id. at p. 5, 977 So.2d at 883.

The Supreme Court in Somalia, further explained:

This amendment, which closely parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden or persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been 17properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. (Emphasis added; citation omitted)

Id. p. 5, 977 So.2d at 883 (quoting Wright v. Louisiana Power & Light, 06-1181 p. 16 (La.3/9/07), 951 So.2d at 1069-1070 (citations omitted)).

Defamatory Accusation of Rape

Mrs. Brungardt admits that she circulated in the pews of St. Louis Cathedral on July 13, 1997 an anonymous leaflet or flier with the following contents:

Does [sic] the French Consulate and Bastille Day Celebration Inc. support rape and abuse against women?
Dan Summit, the man sharing the social page with you is a sick sexual maniac. He rapes and subjects poor defenseless women to sexual and verbal abuse and uses decent people and organizations like BDC to promote himself and to cover his dirty sexual games.

She had selected the cathedral on that date with the knowledge that there would be a Mass attended by Mr. Summit and about 400 of his associates in connection with the celebration of Bastille Day in New Orleans. The leaflet leaves no doubt that Mrs. Brungardt is accusing Mr. Summit of rape, which is a crime. La. R.S. 14:41 defines “rape”:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is insufficient to complete the crime.
C. For the purposes of this Subpart, “oral sexual intercourse” means the intentional engaging in any of the following acts with another person:
(1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender.
Is(2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.

Mr. Summit’s motion included Mrs. Brungardt’s deposition testimony and his own affidavit attesting that he is “not a rapist.” Her publication of this accusation, he stated under oath, “put a major strain on my marriage and the lives of our children, that almost destroyed our marriage.”

In Badeaux v. Southwest Computer Bureau, Inc., 05-0612, pp. 8-9 (La.3/17/06), 929 So.2d 1211, 1218, the Louisiana Supreme Court discussed the elements of the tort of defamation:

Defamation is a tort involving an invasion of a person’s interest in his reputation and good name. Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139; Sassone v. Elder, 626 So.2d 345, 350 (La. 1993). Generally, to prevail in a defamation action, plaintiff must prove: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Costello, 03-1146 at p. 12, 864 So.2d at 139. In other words, “plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.” Sassone, 626 So.2d at 350. If any one of the required elements is not sufficiently proven, the cause of action fails. Costello, 03-1146 at p. 12, 864 So.2d at 140.

The Supreme Court further explained in Costello that defamatory words can be either defamatory per se or susceptible of a defamatory meaning. The Supreme Court stated that “[w]ords which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se.” Costello v. Hardy, 03-1146, pp. 13-14 (La.1/21/04), 864 So.2d 129, 140. If publication of words that are defamatory per se |flis proven, the elements of falsity, malice, fault, and injury are presumed, but they can be rebutted. Id.; See also Hornot v. Cardenas, 06-1341, p. 20 (La.App. 4 Cir. 10/3/07), 968 So.2d 789, 802.

Mr. Summit properly supported his motion for summary judgment on his recon-ventional demand in connection with his action for defamation. Mrs. Brungardt was required to submit evidence by affidavit or otherwise rebutting at least one element of his cause of action. While truth is a defense to defamation, La. R.S. 13:3602, Mrs. Brungardt did not file any opposing affidavit that she personally knew that Mr. Summit had raped anyone, including herself. Therefore, her opposition did not set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). The partial summary judgment granted on the reconventional demand in Mr. Summit’s favor on the issue of liability to him for defamation by accusing him on July 13, 1997 of the crime of rape was correct.

Claim of Malicious Prosecution in Principal Demand

Mrs. Brungardt asserted a cause of action for malicious prosecution, related to Mr. Summit’s reporting her activities to the District Attorney’s office, the Jefferson Parish Sheriffs Office, and having her charged in Municipal Court. Mrs. Brun-gardt suggests that her malicious prosecution and related claims were not against Mr. Summit or that she has abandoned them.

|inBather than leave any uncertainty about the matter and because Mr. Summit’s motion addressed this matter, we review the summary judgment on this claim. A plaintiff, in a claim for malicious prosecution, must prove: (1) the commencement or continuance of an original criminal or civil law judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to the plaintiff. Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984); Melius v. Keiffer, 07-0189, p. 7 (La.App. 4 Cir. 3/12/08), 980 So.2d 167,173.

Mr. Summit’s motion included in his affidavit the assertion that the result of the legal proceedings instituted against her is that a “Peace Bond injunction [was] entered against her, prohibiting her from harassing [him] for a period of one year.” He, on the other hand, was admitted to the “District Attorney’s Domestic Violence Victim’s Assistance Program for help in dealing with this stalking and harassment problem.” He states in his affidavit that the criterion for admission to the program was that [his] life or that of [his] family was in possible danger.”

Mr. Summit only needed to show on the claim of malicious prosecution that there is an absence of factual support for one element essential to Mrs. Brungardt’s claim, i.e. a bona fide termination of the court proceedings in her favor. Mrs. Brungardt has failed to produce factual support sufficient to establish that she will |nbe able to satisfy her evidentiary burden of proof at trial. We, therefore, conclude that summary judgment on her malicious prosecution and related claims was correct.

Claims for Assault & Battery and Intentional Infliction of Emotional Distress

Mrs. Brungardt alleged in her principal demand, as we set forth earlier, that Mr. Summit in August 1995 “grabbed her by the shoulders from behind, turned her around, shoved her against a wall, made aggressive sexual advances, groped and touched her breasts and groin area, forcibly kissed her and made a variety of vulgar statements to her and about her.” On February 15, 1996, she alleges that he “masturbated, grabbed [her] by her head and attempted to force her to perform oral sex.”

La. C.C. art. 2315 provides that a person may recover damages for injuries caused by a wrongful act of another. The fault concept includes the intentional tort of battery. Landry v. Bellanger, 02-1448, p. 6 (La.5/20/03), 851 So.2d 943, 949. Battery is “[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact ...” Caudle v. Betts, 512 So.2d 389, 391 (La.1987); Landry, 02-1443 at p. 6, 851 So.2d at 954. The defendant’s intention need not be malicious nor need it be an intention to inflict actual damage. Landry, 02-1443 at p. 6, 851 So.2d at 954. It is sufficient if the defendant intends to inflict either a harmful or offensive contact without the other’s consent. Id.

In order to succeed on a battery claim, the plaintiff must prove “all prima facie elements of the tort, including lack of consent to the invasive conduct.” Landry, 02-1443 at p. 6, 851 So.2d at 954. The defendant may then seek to prove |ialack of fault on the basis that his actions were privileged, or justified, as in self-defense. Id.

In order to recover for intentional infliction of emotional distress, a plaintiff must demonstrate (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. White v. Monsanto Company, 585 So.2d 1205, 1209 (La.1991). Merely tortious or illegal conduct does not rise to the level of extreme and outrageous. Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017.

Mr. Summit’s affidavit supports his motion for summary judgment on this claim, raising the issue that the Brungardts would be unable to produce at a trial proof of facts that she had been assaulted or battered, or that her privacy had been invaded. Since Mr. Summit’s motion was properly supported, Mrs. Brungardt may not “rest on the mere allegations ... of [her] pleading.” La. C.C.P. art. 967(B). The trial judge was correct in dismissing these claims.

Mr. Brungardt’s Loss of Consortium Claim

Finally, Mr. and Mrs. Brungardt alleged in the principal demand that Mr. Brungardt sustained unnecessary suffering as a result of the actions of Mr. Summit and, therefore, has a claim for loss of consortium against him. A “loss of consortium claim stems from the injuries sustained by the spouse.” See Ferrell v. Fireman’s Fund Ins. Co., 96-3028 (La.7/1/97), 696 So.2d 569, 573. Bulot v. Intracostal Tubular Services, Inc., 04-0398, p. 9 (La.App. 4 Cir. 9/29/04), 883 ┴13So.2d 1146, 1152. As his cause of action is derivative of her cause of action, we conclude that the summary judgment dismissing this claim is also correct.

The Problematic Designated Record

While the parties have the prerogative to designate only portions of the record, we note that this has caused us some difficulty in this case. We do not have before us Mr. Summit’s reconventional demand. We are uncertain whether Mr. Brungardt was named as a defendant-in-reconvention. The partial summary judgment on liability for defamation is against “the defendants,” which we assume to be both Mr. and Mrs. Brungardt. Mr. Brun-gardt has not assigned as error his inclusion as a judgment debtor, but we are not satisfied that any evidence was introduced to establish his liability for defamation. Since the reconventional demand is being remanded for a trial, we direct the district judge to consider whether Mr. Summit has failed to state a cause of action against Mr. Brungardt. La. C.C.P. art. 927(A)(5) and (B). If the trial court concludes that there is no cause of action against him, any final judgment rendered on damages should exclude him.

Modification of Trial Court Judgment on the Principal Demand

“A trial court commits error by granting a dismissal without prejudice pursuant to the grant of a motion for summary judgment.” Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 492.

1 uDecree

The petition of Mr. and Mrs. Brungardt against Mr. Summit is dismissed with prejudice.

Subject to our instructions to the trial court to review the reconventional demand and consider whether Mr. Summit has stated a cause of action against Mr. Brun-gardt, the summary judgment rendered in Mr. Summit’s favor and against Mr. and Mrs. Brungardt, on the issue of liability alone is affirmed, and the reconventional demand is remanded for a trial on damages alone.

For the foregoing reasons, we amend the judgment and, as amended, affirm and we remand to the trial court for further proceedings.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED AND REMANDED.

ARMSTRONG, C.J., concurs.

ARMSTRONG, C.J.,

concurs.

|,I respectfully concur with the result reached.

      . Mrs. Brungardt's counsel argues that this event is a description of a "rape”.

      . The district judge struck through the words "with prejudice” in the judgment submitted to her. La. C.C.P. art. 1673.

      ."A statement in a pleading may be adopted by reference in a different part of the same pleading or in another pleading in the same court.” La. C.C.P. art. 853.

      . The portions of Mrs. Brungardt’s deposition testimony which were filed into the appeal record do not address Mr. Summit's alleged misconduct but are restricted to Mrs. Brun-gardt’s admissions of circulating or publishing the accusation of rape against Mr. Summit. Upon granting the summary judgment, the trial judge inquired of Mrs. Brungardt’s counsel whether there was deposition testimony from her which he might offer in opposition to the summary judgment. He replied in the affirmative. The trial judge then instructed him to timely file a motion for new trial and attach the deposition testimony. The record as designated in this court does not indicate whether the plaintiffs availed themselves of a motion for new trial.

      . Even the contents of the "affidavit” which she did file would not have established an issue of material fact about the truth or falsity of the accusation.

      . We include in "related claims’’ her theory that Mr. Summit invaded her privacy by contacting the public authorities. Louisiana courts have defined the right of privacy as "the 'right to be let alone' or ‘the right to an "inviolate personality.” ' " Landrum v. Bd. Of Comm'rs of Orleans Levee Dist., 95-1591, p. 14 (La.App. 4 Cir. 11/27/96), 685 So.2d 382, 392. This right embraces four different interests, each of which may be invaded in a distinct manner: (1) the appropriation of an individual’s name or likeness for the use or benefit of the defendant; (2) an unreasonable intrusion by the defendant upon the plaintiff's physical solitude or seclusion; (3) publicity that unreasonably places the plaintiff in a false light before the public; and (4) unreasonable public disclosures of embarrassing private facts. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388 (La. 1979); Melder v. Sears, Roebuck and Company, 98-0939, p. 13 (La.App. 4 Cir. 3/31/99), 731 So.2d 991, 1000. Violation of the right of privacy is actionable only when a defendant's conduct is unreasonable and seriously interferes with another’s privacy interest. Jaubert at 1389. It is not necessary to prove that the defendant acted with malicious intent. Id. A determination of whether the defendant's actions were reasonable is made by balancing the interests of the plaintiff in protecting his privacy from serious invasions with the defendant’s interest in pursuing his course of conduct. Id. A defendant's conduct is reasonable and non-actionable, even though it may slightly invade plaintiff’s privacy, if the action is properly authorized or justified by the circumstances. Parish Nat’l Bank v. Lane, 397 So.2d 1282, 1286 (La. 1981).

      . Mrs. Brungardt had initially joined the district attorney and his domestic violence victim assistance supervisor as parties defendant, and by an amending petition appears to have deleted some allegations against them. However, the designated record before us does not include a dismissal of the district attorney or the supervisor.

      . The Brungardts’ counsel agreed at oral argument that if Mrs. Brungardt’s "affidavit” was properly rejected, the result was dismissal of all claims set forth in the principal demand.

      . Were we certain that Mr. Brungardt had been named as a defendant-in-reconvention we would have evaluated Mr. Summit's motion for summary judgment and found it lacking in support that Mister Brungardt defamed him.

      . We do not mean to preemptively determine whether the liability incurred by Mrs. Brungardt for the intentional defamation of Mr. Summit is her separate obligation or whether it is a community debt. La. C.C. arts. 2359, 2360, 2361 and 2363.


author: RANDOLPH, Justice,

text:
    Dimple G. WHITAKER and Clyde Whitaker v. T & M FOODS, LTD. and Robert Y. Kent.
    No. 2006-CT-01365-SCT.
    Supreme Court of Mississippi.
    April 16, 2009.

      Jim Waide, Tupelo, D. Kirk Tharp, Richard Shane McLaughlin, W. Brent McBride, attorneys for appellants.
    James H. Heidelberg, Stephen Walker Burrow, Jessica Marie Dupont, Pascagou-la, attorneys for appellees.
   ON MOTION FOR REHEARING ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court.

¶ 1. The motion for rehearing of T & M Foods, Ltd., and Robert Y. Kent is denied. The previous opinions of this Court are withdrawn and this opinion substituted therefor.

¶ 2. Dimple and Clyde Whitaker appeal the Mississippi Court of Appeals’ affir-mance of the Circuit Court of Lee County’s dismissal of their case with prejudice. The circuit court granted T & M Foods’ Rule 60(b) motion for relief from the circuit court’s prior order denying summary judgment to T & M Foods and Robert Y. Kent. Following dismissal of them case, the Whitakers appealed. The Court of Appeals affirmed. See Whitaker v. Kent, 7 So.3d 946, 946-48, 2007 WL 2772001, 2007 Miss.App. LEXIS 634, at *1 (Miss.Ct.App. Sept. 25, 2007). This Court granted the Whitakers’ “Petition for Writ of Certiora-ri.”

FACTS

¶ 3. In December of 1999, while working in the course and scope of his employment as a delivery driver for T & M Foods, a Steak-Out franchisee, Kent was involved in an automobile accident which injured Mrs. Whitaker. She initially incurred $891.95 in medical expenses. Approximately one week after the accident, a representative of Progressive Gulf Insurance, Kent’s liability insurer, contacted the Whitakers regarding settlement. At the time, the Whitakers were concerned about the effect of the outstanding medical bills on their credit rating. Soon thereafter, the Progressive representative returned and informed them that Progressive “would not pay [Mrs. Whitaker’s] medical bills unless she signed a Release.” On January 20, 2000, the Whitakers signed a “Full Release of All Claims with Indemnity” providing that, in exchange for $1,391.95 from Progressive, the Whitakers would “release, acquit and forever discharge [Kent] and [Progressive] ... and all other persons, firms, corporations ... of and from any and all claims, actions, causes of actions ... which the [Whit-akers] now [have] or which may hereafter accrue on account of or in any way growing out of [the] accident....”

¶ 4. Soon thereafter, Mrs. Whitaker was diagnosed with temporomandibular joint pain syndrome. Her physician identified the automobile accident as a contributing factor to the condition. On February 21, 2001, the Whitakers filed a complaint against Progressive, Kent, and Steak-Out Franchising, Inc., seeking a declaratory judgment invalidating the January 20, 2000, Release by alleging two theories. First, they alleged “mutual mistake,” by asserting that “[t]he parties to the Release did not know of Dimple Whitaker’s injuries until after the Release was executed.” Second, the complaint alleged “negligent or intentional misrepresentation by the Progressive agent, who represented that the purpose of the payment of Five Hundred Dollars ($500.00) was only for ... Whitaker’s inconvenience. The real purpose was to keep Plaintiffs from receiving just compensation for any injuries that might develop from the accident.”

¶ 5. On May 11, 2001, the Whitakers filed a “First Amended Complaint” against Progressive, Kent, and T & M Foods. The amended complaint added that “[n]ot-withstanding the Release, [Progressive] and [Kent] and [T & M Foods] are jointly liable for [Whitaker’s] injuries. Kent and [T & M Foods] are liable because of their negligence in causing the injuries. [Progressive] is jointly liable with Kent and [T & M Foods] because of their liability policy.” The “Separate Answer and Defenses” of Kent and T & M Foods maintained that “[t]he full release of all claims with indemnity is a valid and enforceable contractual agreement between plaintiffs and defendants.”

¶ 6. During the pendency of the litigation, Progressive and the Whitakers entered into a separate “Settlement Agreement and Release” on September 17, 2002. It noted that, in obtaining the January 20, 2000, Release, “Progressive did not contemplate that [Kent] was in the course and scope of his employment with [T & M Foods,]” and that “the earlier Release ... is now null, void, cancelled and of no effect as between the undersigned.” The signatories were Progressive and the Whitakers. Progressive paid an additional $8,608.05 to the Whitakers in consideration for the “release, discharge and [to] give up all claims and causes of action they have against Progressive arising out of the automobile accident.” (Emphasis added). The Whitakers agreed:

that in making any pursuit of their claim with respect to the automobile accident, they will not seek execution against personal assets of [Kent] and, instead, will seek to satisfy any judgment only from assets of T & M Foods, and from any liability insurance carrier of [T & M Foods] applicable to the accident ... if any.

(Emphasis added).

¶ 7. T & M Foods, Kent’s employer, was the “Named Insured” on a “Non-Owned Automobile Liability Insurance” policy with Evanston Insurance Company (“Ev-anston”) covering a total of ten drivers. The Evanston policy covered food-delivery operations and defined “Auto” as “a non[-]owned motor vehicle, while used to deliver food on behalf of the Named Insured(s).” (Emphasis added). Regarding “Coverage and Limit of Liability,” the policy declared “$1,000,000 combined single limit bodily injury and property damage each accident!,]” with a deductible of “[driver’s insurance or $1,000 deductible, whichever is greater.” The policy defined “Insured” as “any person or organization qualifying as an insured in the WHO IS INSURED section.... ” Regarding “WHO IS INSURED,” the policy stated “[y]ou are insured for any covered auto.” (Emphasis added). The policy also substantively provided: “[f]or any covered auto you don’t own, the insurance provided by this policy is excess over any other collectible insurance” and “[w]e will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto, in excess of the retention amount stated in the declarations.” (Emphasis added).

¶ 8. In the 2002 “Settlement Agreement and Release,” the Whitakers “expressly reserve[d] all rights to proceed against any party ... except Progressive and except personal assets of [Kent].” (Emphasis added). On October 31, 2002, the circuit court entered an order dismissing Progressive with prejudice, providing that “[t]his case shall continue as to the remaining defendants.... ”

¶ 9. Kent and T & M Foods subsequently filed a “Motion for Summary Judgment,” contending that the January 20, 2000, Release “extinguished the Plaintiffs’ cause of action against [Kent] and [T & M Foods].” Alternatively, the motion maintained that, pursuant to the September 17, 2002, “Settlement Agreement and Release,” Kent should be dismissed, as “there are no damages that will be recoverable by the Plaintiffs from [Kent].” On September 9, 2004, the circuit court denied the “Motion for Summary Judgment” of Kent and T & M Foods, except as to the personal assets of Kent, implicitly accepting the September 17, 2002, “Settlement Agreement and Release” as the operative instrument by citing language therein. In addition, the circuit court granted the Whitakers’ motion for default judgment against Kent “because of his failure to appear at his deposition.... ”

¶ 10. On the day of trial, May 8, 2006, T & M Foods filed a “Rule 60(b) Motion for Relief from Judgment or Order,” arguing that “[s]ince the [c]ourt’s ruling on the Motion for Summary Judgment, case law, upon which Plaintiffs claims of vicarious liability as against [T & M Foods] must be based, has been overruled!,]” citing J & J Timber Company v. Broome, 932 So.2d 1 (Miss.2006). T & M Foods argued that “[e]ither of the Releases ... extinguished the Plaintiffs’ cause of action against [Kent] and also therefore his employer, [T & M Foods], [T & M Foods] thus should be relieved from the Court’s Order of September [9], 2004 and this suit should be, as a matter of law, fully and finally dismissed.” The Whitakers posited that the September 17, 2002, “Settlement Agreement and Release” was the operative instrument at issue, and that it clearly “preserve[d] all claims against T & M Foods and its employee, acting in the course and scope of his employment.”

¶ 11. The circuit judge, relying upon J & J Timber, found “the release of Kent ... under either release ... bars all claims of vicarious liability by the plaintiffs [sic] against Kent’s employer, [T & M Foods], despite any attempts by the plaintiffs to preserve those rights.” (Emphasis added). The circuit court granted T & M Foods’ “Rule 60(b) Motion for Relief from Judgment or Order,” relieving them from the September 9, 2004, Order denying their “Motion for Summary Judgment,” and adding that T & M Foods and Kent “should be and are hereby entitled to Judgment as a matter of law.” The circuit court rendered “Judgment” in favor of T & M Foods and Kent, dismissing both with prejudice.

¶ 12. Thereafter, the Whitakers filed a “Motion to Alter or Amend Judgment,” a “Motion for Evidentiary Hearing,” a “Motion to Disqualify Counsel from Representing Robert Y. Kent, Individually,” and a “Motion for Leave to File Second Amended Complaint Based Upon Court’s Sustaining Defendant’s Motion to Dismiss.” Each motion was denied by the circuit court. The Whitakers then timely filed a “Notice of Appeal.”

¶ 13. The Court of Appeals affirmed the circuit court’s dismissal of T & M Foods and Kent. See Whitaker, 7 So.3d at 946-48, 2007 WL 2772001 at *1, 2007 Miss.App. LEXIS 634 at *1. The Court of Appeals, while recognizing that Kent’s dismissal was improper, nonetheless found that:

[b]ecause the trial court correctly applied J & J Timber to the case sub judice, and because the application of J & J Timber did not implicate the Contracts Clause of the Mississippi Constitution, this Court finds that the trial court did not err in granting T & M Foods’s Rule 60(b) motion and dismissing the case. With regard to the trial court’s decision to include Kent in the dismissal, the dismissal was proper as a matter of law although not properly done.[] Finally, this Court finds that the trial court did not abuse its discretion in denying the Whitakers’ motions filed after the trial court granted T & M Foods’s Rule 60(b) motion.

Id. at 950, 2007 Miss.App. LEXIS 634 at *6-7. In concluding that the September 17, 2002, “Settlement Agreement and Release” acted to release Kent, and correspondingly, T & M Foods, under J & J Timber, see id. at 953, 2007 Miss.App. LEXIS 634 at *15, the Court of Appeals made the following findings:

the language of the fifth paragraph [of the “Settlement Agreement and Release”] clearly indicates that, for all intents and purposes, the Whitakers did not intend to pursue any claims against Kent personally. The language of the release clearly indicates that Kent is intended to remain in the litigation for the sole purpose of the Whitakers’ pursuit of T & M Foods. Kent was covered only by the Progressive policy; therefore, the Whitakers could not collect damages from any other source in order to satisfy a judgment against Kent. Accordingly, the Court finds that the Whitakers effectively released Kent when they agreed not to execute on his personal assets because there ivere no other damages to be recovered.
[T]he Court’s review of the [Evanston] policy at issue clearly establishes that T & M Foods is the only insured under the terms of the policy. Kent is in no way protected as an insured.

Id. at *5-7, 2007 Miss.App. LEXIS 634 at *13-15 (emphasis added). Following the Court of Appeals’ denial of the Whitakers’ “Motion for Rehearing,” this Court granted their “Petition for Writ of Certiorari.”

ISSUES

¶ 14. The parties present the following issues:

(1) Whether T & M Foods’ insurance policy with Evanston covered Kent’s automobile.
(2) Whether the trial court erroneously applied the Supreme Court’s holding in J & J Timber as a bar to the Whitakers’ vicarious liability claims against T & M Foods, since the company’s negligent employee had not been released from liability.
(3) Whether the trial court erred in dismissing Kent, as the trial court already had entered a default judgment against Kent and Kent never requested dismissal of the Whitakers’ claims against him.
(4) Whether the Court of Appeals erred in holding that a new decision which alters rights under a previously-existing contract is to be applied retroactively so as to deprive the parties of the rights to which they were entitled prior to the issuance of the new decision.

ANALYSIS

I. Whether T & M Foods’ insurance policy with Evanston covered Kent’s automobile.

¶ 15. The Court of Appeals found that under the Evanston policy, “Kent is in no way protected as an insured[;]” that “Kent was covered only by the Progressive policy;” and, therefore, “the Whitakers effectively released Kent when they agreed not to execute on his personal assets because there were no other damages to be recovered.” Whitaker, 7 So.3d 952-53, 2007 WL 2772001 at *5-7, 2007 Miss.App. LEXIS 634, at *13-15 (emphasis added). The plain language of the September 17, 2002, “Settlement Agreement and Release” and the provisions of the Evanston policy contradict such a determination.

¶ 16. T & M Foods was the “Named Insured” on the “Non-Owned Automobile Liability Insurance” policy with Evanston. The deductible on the policy was “driver’s insurance or $1,000 deductible, whichever is greater.” (Emphasis added). The policy defined “Auto” as “a non-owned motor vehicle, while used to deliver food on behalf of the Named Insured(s).” The policy defined “Insured” as “any person or organization qualifying as an insured in the WHO IS INSURED seetion[,]” and “WHO IS INSURED” expressly extends to T & M Foods “for any covered auto.” Regarding coverage, the policy provided that “for any covered auto you don’t own, the insurance provided by this policy is excess over any other collectible insurance ” and Evanston “will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ... use of a covered auto, in excess of the retention amount stated in the declarations.” (Emphasis added). This Court has stated that:

[p]ursuant to the application of the common law theory of respondeat superior, an employer is generally held to be vicariously “legally responsible” for its employees’ negligent driving.... This principle will only have application when the vehicle is driven during the course of the employee’s employment or within the scope of the permission given by the employer.

Franklin County Mem’l Hosp. v. Miss. Farm Bureau Mut. Ins. Co., 975 So.2d 872, 875 (Miss.2008) (quoting 8 Lee Russ & Thomas Segalla, Couch on Insurance § 111:42 (2005)). Without question, the subject accident occurred when Kent was operating his personal motor vehicle in the course and scope of his employment as a food-delivery driver for T & M Foods. If the “language in an insurance contract is clear and unambiguous, then the court should construe it as written.” Jackson v. Daley, 739 So.2d 1031, 1041 (Miss.1999) (citation omitted). The “clear and unambiguous” language of the Evanston policy provided coverage for Kent’s automobile, as it was “a non-owned motor vehicle, ... used to deliver food on behalf of the Named Insured.” See also Meyers v. Am. States Ins. Co., 914 So.2d 669, 676 (Miss. 2005) (“May and Co.’s automobile insurance policy explicitly provides coverage for Meyers’ vehicle on its designation page and also makes clear that coverage of Meyers’ vehicle is part of the consideration for which May and Co. paid its insurance premium.”). Moreover, “automobile liability coverage follows the vehicle, not the person.... ” 12 Lee Russ & Thomas Segalla, Couch on Insurance § 169:109 (2005). Accordingly, the Evanston policy provided coverage for “damages because of bodily injury ... caused by an accident and resulting from the use of [Kent’s] covered auto[.]” Kent’s automobile was expressly covered under the four corners of the Evanston policy. In the event that the first release is set aside, this avenue of recovery for the Whitakers would not be foreclosed. The Court of Appeals erred in concluding that “there were no other damages to be recovered.” Whitaker, 7 So.3d 952-53, 2007 WL 2772001 at *5-7, 2007 Miss.App. LEXIS 634, at *13-15. The conclusion that the Whitakers effectively had released Kent in the September 17, 2002, Release, see id., is contradicted by the express terms of that instrument.

II. Whether the trial court erroneously applied the Supreme Court’s holding in J & J Timber as a bar to the Whitakers’ vicarious liability claims against T & M Foods, since the company’s negligent employee had not been released from liability.

First Release

¶ 17. Under the first release, the Whitakers released Kent from liability, absent proof to satisfy traditional principles for setting aside a release. “Every person must be presumed to know the law, and in [the] absence of some misrepresentation, or illegal concealment of facts, the person must abide the consequences of his contracts and actions.” Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 754 (Miss.2003) (quoting Farragut v. Massey, 612 So.2d 325, 329 (Miss. 1992)). Thus, the Whitakers will have to provide sufficient evidence to support their claims of either mutual mistake, misrepresentation, concealment, or fraud to invalidate the first release. See Warner v. Warner, 175 Miss. 476, 479, 167 So. 615 (1936). Should the trial court be satisfied that the Whitakers have provided sufficient evidence to raise factual questions regarding mutual mistake or “fraud, misrepresentation, adhesion or other inequities[,] then the case properly goes to the jury or fact finder.” Royer Homes, 857 So.2d at 757.

Second Release

¶ 18. No analysis of the second release regarding Kent is required, should it be determined that Kent was released in 2000. The second release created no rights against Kent, a nonsignatory. The language of the September 17, 2002, “Settlement Agreement and Release” is clearly distinguishable from the release considered in J & J Timber. The J & J Timber instrument provided that “[a]s part of a settlement the plaintiffs released the driver of the log truck from all liability and agreed to indemnify Mm against third-party claims.” J & J Timber, 932 So.2d at 2 (emphasis added). Specifically, the “Receipt, Release and Indemnity Agreement” identified the driver among the “released parties” and provided “[[t]he wrongful death beneficiaries] ... do hereby release, acquit and forever discharge, all of the said released parties, collectively and individually, from any and all actions and/or causes of action ... [resulting] from injuries and/or damages we received ... [in the incident].... ” Id. (emphasis added). Accordingly, the import oí J & J Timber was “whether, as a matter of law, the release of a tortfeasor also serves as a release of the tortfeasor’s employer from claims of vicarious liability, despite an attempt by the releasor to preserve the right to pursue such claims.” Id. at 3 (emphasis added). This Court concluded that “the release of a negligent employee, in any capacity, bars all claims of vicarious liability against the employer, despite a reservation of rights.” Id. at 8 (emphasis added).

¶ 19. By contrast, the September' 17, 2002, “Settlement Agreement and Release” released only one specific party to the litigation, Progressive. It did not release the driver or the driver’s employer. Regarding Kent, the Whitakers agreed only “that in making any pursuit of their claim with respect to the automobile accident, [the Whitakers] will not seek execution against personal assets of [Kent].... ” Kent, the employee, was not released, but rather was the beneficiary of an agreement not to levy a presumed judgment against his personal assets. See also Burt v. Duckvvorth, 206 So.2d 850, 853 (Miss. 1968) (“it appears that Mrs. Burt did not execute a release to Campbell and International Paper Company although she did enter into an agreement not to sue them, retaining any rights that she had against the other parties involved.”).

III. Whether the trial court erred in dismissing Kent, as the trial court already had entered a default judgment against Kent and Kent never requested dismissal of the Whit-akers’ claims against him.

¶ 20. While the Court of Appeals correctly recognized that the trial court erred in dismissing Kent, it affirmed the dismissal of Kent for other reasons. According to the Court of Appeals:

[i]n this case ... even if the Court were to reverse the portion of the order on the Rule 60(b) motion dismissing Kent on the grounds that the trial court improperly granted relief to Kent, such a ruling would be pointless. The trial court apparently granted the relief to Kent in recognition of the fact that the default judgment was void ab initio in light of the J & J Timber case. As a matter of law, the date that the Whit-akers entered into the release with Progressive was the date that Kent effectively was dismissed from the litigation with prejudice and the date that T & M Foods became entitled to summary judgment as a matter of law. The Whit-akers entered into that release with Progressive on September 17, 2002. The default judgment was not entered until May 26, 2006.

Whitaker, 7 So.3d at 954, 2007 WL 2772001 at *6, 2007 Miss.App. LEXIS 634, at *17 (emphasis added). This Court’s resolution of the other issues raised herein requires reversal of the trial court’s ruling.

IV. Whether the Court of Appeals erred in holding that a new decision which alters rights under a previously-existing contract is to be applied retroactively so as to deprive the parties of the rights to which they were entitled prior to the issuance of the new decision.

¶ 21. This question of law is reviewed de novo. See Stephens v. Equitable Life Assurance Soc’y, 850 So.2d 78, 82 (Miss.2003); Geter v. Gardner, 702 So.2d 118,118 (Miss.1997).

¶ 22. T & M Foods presented J & J Timber to the trial court on the day of trial, May 8, 2006, four days after the decision was handed down by this Court. The Court of Appeals deemed the retroactive application of J & J Timber permissible, finding the Contracts Clause of the Mississippi Constitution of 1890 (see Mississippi Constitution, article 3, Section 16), inapplicable. Specifically, the Court of Appeals held:

in order for a party to invoke this provision of the Mississippi Constitution, the contract at issue must have been made under the authority of a statute that affects the ability of the parties to enforce that contract, either because the statute has been amended or repealed .... In this case, the Whitakers did not rely on any statutory authority when they entered into the contract with Progressive. Instead, they entered into the contract based upon prior judicial decisions regarding the release of a tortfeasor in a vicarious liability situation. Accordingly, the contracts clause of the Mississippi Constitution is not applicable.

Whitaker, 7 So.3d at 951, 2007 WL 2772001 at *3, 2007 Miss.App. LEXIS 634 at *9 (emphasis added). This conclusion is erroneous as a matter of law.

¶ 23. As a general rule, “all judicial decisions apply retroactively unless the Court has specifically stated the ruling is prospective.” Cleveland v. Mann, 942 So.2d 108, 113 (Miss.2006) (citations omitted). Furthermore, “newly enunciated rules of law are applied retroactively to cases that are pending trial or that are on appeal, and not final at the time of the enunciation.” Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002).

¶ 24. However, the Contracts Clause of the Mississippi Constitution provides, “[e]x post facto laws, or laws impairing the obligation of contracts, shall not be passed.” Miss. Const. art. 3, § 16 (emphasis added). We have stated that “[t]he Constitution denies to the states the power to enact any law impairing the obligations of contracts. U.S. Const. Art. 1, § 10, cl. 1; see also Miss. Const. Art.3, § 16 (1890).” Collier v. Shell Oil Co., 534 So.2d 1015, 1018 (Miss.1988) (citations omitted). This Court has further held that the same constitutional provisions require that “[i]f a contract when made was valid under the laws of the state as then expounded and administered in its courts of justice, ‘its validity and obligation cannot be impaired by any subsequent action of legislation, or decision of its courts altering the construction of the law.’ Wisconsin Lumber Co. v. State of Mississippi, 97 Miss. 571, 598, 54 So. 247, 249-50 (1911) (emphasis added). See also Poole v. Brunt, 338 So.2d 991, 995 (Miss.1976); Miss. State Tax Comm’n v. Brown, 188 Miss. 483, 509, 193 So. 794, 802 (1940) (“[t]his Court has given protection to citizens from the effect of overruling cases, holding that transactions had or done under a construction making the act valid at the time it was done continue legal, although afterwards a change of decision was made by the Court.”); Yazoo & Miss. Valley R.R. Co. v. Adams, 81 Miss. 90, 116, 32 So. 937, 946 (1902) (“[t]he constitutional barrier to legislation impairing the obligation of contracts applies also to decisions altering the law, ... so as to affect the obligations of existing contracts made on the faith of the earlier adjudications.”); Ohio Life Ins. and Trust Co. v. Debolt, 16 How. 416, 57 U.S. 416, 432, 14 L.Ed. 997, 1004 (1853) (“the sound and true rule is, that if the contract when made was valid by the laws of the State, as then expounded by all the departments of its government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent act of the legislature of the State, or decision of its courts, altering the construction of the law.”) (emphasis added). In support of this position, this Court stated in 1915:

[t]he argument on behalf of the state is that when a decision is overruled, in legal contemplation, the decision never existed. This argument has been met and satisfactorily answered in the adjudicated cases. It is also said that every man is presumed to know the law, and no one can take ... shelter under an erroneous decision of the highest court. This argument is, in our opinion, manifestly faulty. If the legal maxim has any application to a case like this, and is controlling, the maxim must be amended to read thus: “Ignorance of the law excuses no man, except members of the supreme judicial tribunal of the state.”

State v. Longino, 109 Miss. 125,135, 67 So. 902, 904 (1915).

¶ 25. When the 2000 Release and the 2002 “Settlement Agreement and Release” were executed, W.J. Runyon & Son, Inc. v. Davis, 605 So.2d 38 (Miss.1992), was the controlling authority, providing that the release of an agent has no effect on the principal’s vicarious liability. See id. at 43. The Court of Appeals recognized that the Whitakers “entered into the contract based upon prior judicial decisions regarding the release of a tortfeasor in a vicarious liability situation.” Whitaker, 7 So.3d at 951, 2007 WL 2772001 at *3, 2007 Miss.App. LEXIS 634, at *9. Not until J & J Timber was handed down on May 4, 2006, did this Court conclude that “[t]o the extent that Runyon holds that a vicarious liability claim can be maintained against the employer after the employee is released, without an allegation of independent negligence by the employer, that case is overruled.” J & J Timber, 932 So.2d at 6-7. However, Wisconsin Lumber is authority for the legal proposition that the “validity and obligation” of any contract cannot be “impaired by any” Mississippi court decision “altering the construction of the law.” Wisconsin Lumber, 54 So. at 249-50 (citations omitted). As J & J Timber was determined to have that effect, it should not have been applied retroactively to either release. Any holding otherwise fundamentally errs in limiting applicability of the Contracts Clause of the Mississippi Constitution to statutory amendments and repeals. See Whitaker, 7 So.3d 951, 2007 WL 2772001 at *3, 2007 Miss.App. LEXIS 634, at *9. Such a conclusion is not supported by our well-developed case law to the contrary. See paragraph 24 supra. Accordingly, this Court concludes that the Contracts Clause of the Mississippi Constitution prohibits the retroactive application of J & J Timber to either release.

CONCLUSION

¶ 26. Based upon the aforementioned analysis, this Court reverses the judgments of both the Court of Appeals and the Circuit Court of Lee County and remands this case to the circuit court for proceedings consistent with this opinion. Such proceedings necessarily shall require the determination of the validity, vel non, of the first release, utilizing the legal standards in effect at the time of its execution.

¶ 27. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, LAMAR, KITCHENS, AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. CARLSON, P.J., AND CHANDLER, J., NOT PARTICIPATING.

      . By June 22, 2004, Mrs. Whitaker claims she had incurred $113,865.37 in medical expenses, $1,427.33 in pharmacy expenses, and $15,3-13.57 in travel expenses related to the accident, for a total of $130,606.27.

      . The “Settlement Agreement and Release” added that “Progressive, at all relevant times, had in effect a liability policy issued for and on behalf of [Kent]. Progressive does not insure [T & M Foods] or its employees, when acting in the course and scope of employment for [T & M Foods].” ,

      .This exhausted the Progressive policy's $10,000 limitation of liability.

      . No motion for relief on behalf of Kent had been filed.

      . See paragraph 20 infra. The Court of Appeals recognized the efficacy of the September 17, 2002, "Settlement Agreement and Release,” under which only Progressive was released, having paid the limits of its liability policy and satisfied the deductible coverage of the Evanston policy.

      . See also 7A Lee Russ & Thomas Segalla, Couch on Insurance § 110:1 (2005) ("[t]o qualify as an 'insured’ under a policy of automobile insurance, parties must either be the named insured or establish that they were a driver or occupant of a covered vehicle involved in an accident.”).

      . The proper standard to evaluate either release is the law in place at the time of its execution.


author: DICKINSON, Justice,

text:
    Pedro LIMA a/li/a Jesus Lima v. STATE of Mississippi.
    No. 2008-KA-00714-SCT.
    Supreme Court of Mississippi.
    April 23, 2009.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before CARLSON, P.J., DICKINSON and PIERCE, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. In this capital-murder case, the defendant was convicted and sentenced to life in prison without the possibility of parole. He appeals to this Court, asserting that the trial court erred by allowing a witness to testify as an expert, and by denying his motion for a new trial, or in the alternative, for judgment notwithstanding the verdict. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Daniel Houck hired Pedro Lima to work in his restaurant. In lieu of monetary compensation, Houck provided Lima with a house and living necessities. Trial testimony revealed that Lima was dissatisfied with this arrangement.

¶ 3. Ashley Bridges, Lima’s girlfriend, testified that Lima did not go to work as scheduled on ■ March 25, 2006. Bridges, who occupied the house with Lima, stated that Lima was angry about not being paid, and that he asked her to call Houck twice that afternoon. Bridges testified that she called Houck and asked him to purchase toilet paper and bring it by the house.

¶ 4. Marcelo Mendez, a co-worker at the restaurant, corroborated Bridges’s testimony. He testified that Lima was scheduled to work on March 25, 2006, but did not report for duty. Mendez also testified that, before leaving the restaurant that evening, Houck received a phone call requesting he bring toilet paper to Lima’s house. Before taking Mendez home from work, Houck went to the store to purchase toilet paper. Houck told Mendez that he was going to Lima’s house, and that he was going to ask Lima to leave the house because he was not working.

¶ 5. Bridges testified that she did not hear Houck enter the house, but she heard screams from both Lima and Houck. After hearing the screams, Bridges walked into the living room and saw Lima, covered in blood, holding a knife. Bridges testified that she ran back into a back bedroom, but that Lima pulled her out of the bedroom by her hair. When she saw Houck, he was bloody and struggling to breathe. Bridges testified that Lima repeatedly threw an iron at Houck and that, shortly thereafter, Lima went through Houck’s pockets and took credit cards, papers, and car keys.

¶ 6. Bridges testified that Lima loaded their belongings into Houck’s car and that she, Lima, and their daughter fled to Tijuana, Mexico. On the way, she saw Lima throw a knife out of the car. Bridges also testified that, while Lima had been complaining about having no money, she noticed he had a lot of money on the way to Mexico. While in Tijuana, Bridges heard Lima “bragging” about what he had done.

¶ 7. The day after the murder, Daniel Houck’s daughter, Jessica Houck, testified that she had entered the house and found her father’s deceased body, although she did not realize it was her father at the time because there was so much blood. Jessica testified that when she and her mother had arrived at the house, her father’s car was not parked outside. She also testified that her father typically had cash, credit cards, photographs, and identification in a money clip that he usually kept in his shirt pocket.

¶ 8. Arthur Steven Chancellor, a senior crime-scene analyst, performed the crime-scene investigation. He found an unopened package of toilet paper on the counter in the kitchen, as well as an old-fashioned iron that was positioned adjacent to Houck’s head. He also found a cigarette lighter, some pieces of paper, and a couple of receipts that he concluded were removed from the victim’s pocket.

¶ 9. A post-mortem examination by Dr. Steven Hayne revealed that Houck’s death was the result of a homicide, and that the body had numerous lacerations and abrasions, including thirteen slash wounds and five stab wounds. Dr. Hayne testified that two large slash wounds that began on the left side of Houck’s neck and ran horizontally across his neck ultimately caused his death.

¶ 10. With the assistance of Bridges, Lima was apprehended in Memphis, Tennessee. Lima was transported to the Tate County Sheriffs Department and was interviewed by Sheriff Brad Lance. Lance testified that Lima originally had implicated Mendez for the murder, but that the statement was proven to be false. Once Lima became aware that Mendez could not be held accountable for the murder and that Bridges had made a statement to the police, he admitted killing Houck. He also admitted that Bridges’s statement accurately described the events of the murder. Lima subsequently was indicted for capital murder (murder while engaged in the commission of robbery) by a Tate County grand jury.

¶ 11. At trial, Lima testified in his own defense, claiming that Houck’s murder was the result of an argument over working late hours. According to Lima, Houck became angry, grabbed him by the hair and attempted to stab him with a knife. Lima then threw the iron and stabbed Houck in self-defense. Lima testified that he cut Houck’s throat to keep him from getting up and killing him.

¶ 12. The jury found Lima guilty of capital murder, and he was sentenced to life in prison without the possibility of parole. Lima filed a motion for new trial, or in the alternative, for judgment notwithstanding the verdict. The trial court denied the motion, and Lima appealed to this Court.

DISCUSSION

¶ 13. Lima raises two issues on appeal:

I. Whether the trial court erred in finding Dr. Steven Hayne to be an expert witness pursuant to Mississippi Rule of Evidence 702.
II. Whether the trial court erred in denying his motion for a new trial, or in the alternative, judgment notwithstanding the verdict.

Testimony of Dr. Steven Hayne

¶ 14. Lima claims that the trial court erred when it allowed Dr. Hayne to testify as an expert. “It is well-settled that the admission of expert testimony is within the sound discretion of the trial judge. Furthermore, this Court will not reverse a trial court’s decision to admit expert testimony ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of dis-eretion.’ ” Bishop v. State, 982 So.2d 371, 380 (Miss.2008) (citations omitted).

¶ 15. Lima asserts that the trial court erred in accepting Dr. Hayne as an expert, because his work load was too heavy, he lacked reliability, his work lacked peer review, and he was not board-certified by the American Board of Pathology in forensic pathology.

¶ 16. Mississippi Rule of Evidence 702 is the standard for the admission of expert testimony in Mississippi, and it states:

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.

¶ 17. It is clear from the record that the trial court did not abuse its discretion when it accepted Dr. Hayne as an expert. Dr. Hayne’s testimony as to his medical training and experience within the field, which included more than twenty years of experience within the State of Mississippi, exhibited sufficient “knowledge, skill, experience, training, or education” for the trial judge to qualify him as an expert.

¶ 18. We find nothing in the record to suggest that Dr. Hayne’s testimony was not based on “sufficient facts or data.” Dr. Hayne’s post-mortem examination revealed that Houck’s body contained numerous lacerations and abrasions, and that the fatal injury occurred when two slash wounds became confluent and ran horizontally across Houck’s neck. Dr. Hayne testified to that effect at trial, and the photographs entered into evidence supported his conclusions.

¶ 19. Additionally, nothing in the record suggests that Dr. Hayne’s testimony was the product of “unreliable principles and methods.” Lima claims that Dr. Hayne’s testimony was unreliable because he performs many more autopsies annually than the number recommended by the authors of Forensic Pathology. However, Dr. Hayne explained that he does not take vacations and works nearly every day of the year, for approximately sixteen hours a day. He explained that performing a large number of autopsies is viewed by some as necessary in order to remain competent in the field. Dr. Hayne also testified that there was no deterioration of his intellectual or physical performance. The State points out that, while Dr. Hayne’s work in this particular case was not peer-reviewed, his work in other eases has been. Finally, nothing in the record suggests that Dr. Hayne did not “apply the principles and methods reliably to the facts of the case,” nor does Lima point to any specific application errors.

¶ 20. Thus, based on the foregoing analysis, we hold that the trial court did not abuse its discretion when it accepted Dr. Hayne as an expert.

Motion for a New Trial

¶ 21. Lima argues that the trial court erred when it denied his motion for a new trial, or in the alternative, for judgment notwithstanding the verdict. “A motion for new trial challenges the weight of the evidence. In reviewing a challenge to the weight of the evidence, this Court will overturn a jury verdict [only] ‘when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Hearn v. State, 3 So.3d 722, 741, 2008 Miss. LEXIS 607, at *49 (Dec. 11, 2008) (citations omitted).

¶ 22. The verdict in this case cannot be said to have been “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. Ample testimony was presented at trial to support the jury’s finding that Lima murdered Houck during the commission of a robbery. The State produced testimony from nine witnesses, each stating that Lima was angry over the lack of monetary compensation from Houck. Ashley Bridges testified in detail to the events surrounding the murder. The State produced expert testimony and photographic evidence corroborating the State’s version of the facts. Finally, Lima confessed to the crime and admitted that Bridges had accurately described the events surrounding the murder.

¶ 23. Thus, based on the foregoing analysis, we hold that the jury’s verdict was not so contrary to the overwhelming weight of the evidence that allowing it to stand would constitute an unconscionable injustice.

Motion for Judgment Notwithstanding the Verdict

¶ 24. “A motion for a directed verdict or JNOV challenges the sufficiency of the evidence.” Hearn, 3 So.3d at 740, 2008 Miss. LEXIS 607, at *47. “In reviewing a challenge to the sufficiency of the evidence, this Court will reverse and render if the facts and inferences ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men [or women] could not have found beyond a reasonable doubt that the defendant was guilty.’ ” Id. (citations omitted). “The relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. at 740, 2008 Miss. LEXIS 607, at *48 (citations omitted). “The evidence is considered in the light most favorable to the State.” Id.

¶ 25. Lima was convicted of murder while engaged in the commission of the crime of robbery, in direct violation of Mississippi Code Annotated, Section 97-3-19(2)(e) (Rev.2006), which states:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery....

Miss.Code. Ann. § 97-3-19 (Rev.2006).

¶ 26. Robbery, in turn, is defined in Mississippi Code Annotated, Section 97-3-79 (Rev.2006):

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....

Miss.Code. Ann. § 97-3-79 (Rev.2006).

27. “The elements of robbery are: ‘(1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property from his person or in his presence.’ ” Walker v. State, 913 So.2d 198, 224 (Miss.2005) (quoting Caldwell v. State, 481 So.2d 850, 853 (Miss. 1985)). This Court has held that “the intent to rob, which is required to prove the underlying felony of robbery, can be shown from the facts surrounding the crime.” Walker v. State, 913 So.2d 198, 224 (Miss.2005) (quoting Lynch v. State, 877 So.2d 1254,1266 (Miss.2004)).

¶ 28. In determining whether the essential elements of a capital crime are met, Mississippi recognizes the “one continuous transaction rationale.” West v. State, 553 So.2d 8, 13 (Miss.1989). An indictment charging that a killing occurred “while engaged in the commission of’ one of the enumerated felonies includes the actions of the defendant “leading up to the felony, the attempted felony, and the flight from the scene of the felony.” Turner v. State, 732 So.2d 937, 950 (Miss.1999) (quoting West, 553 So.2d at 13).

Felonious intent

¶ 29. It is well recognized that, for a homicide in the commission of one of the enumerated felonies, the only intent required is the specific intent to commit the underlying felony. 3 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 23:49 (2001) (citing Gray v. State, 351 So.2d 1342,1348 (Miss.1977)).

¶ 30. Ample testimony was presented at trial indicating that Lima was angry about his employment arrangement with Houck. Although Houck provided living quarters and other necessities, Lima felt that he should have received monetary compensation also. On the day of the murder, Lima did not go to work because he was angry at Houck for not paying him. Houck received two phone calls requesting that he come to Lima’s house. Bridges testified that she made the two phone calls to Houck, asking him to bring toilet paper to Lima’s house, at Lima’s request.

¶ 31. We find that this testimony, coupled with the testimony about the vicious attack on Houck after he was incapacitated, provided sufficient evidence for the jury to find that Lima manifested a felonious intent.

Force or putting in fear as a means of effectuating the intent

¶ 32. Bridges testified that, after Houck arrived at the residence she shared with Lima, she heard screams from both men. She walked into the living room and saw Lima, covered in blood, holding a knife. She then saw Lima beat Houck repeatedly with an iron. Lima’s attack led to Houck’s death. Lima then took Houck’s money and other property.

¶ 33. We find that this testimony, coupled with the testimony about Lima’s anger over money, provided the jury with sufficient evidence to reasonably find that Lima used force to effectuate the intent.

Taking and carrging awag the proper-tg from his person or in his presence

¶ 34. Bridges testified that, as Houck lay dying, Lima went through his pockets, taking credit cards, papers, and car keys. Houck’s daughter, Jessica, testified that her father typically kept his cash, cards, photographs, and identification in a money clip in his shirt pocket. Lima and Bridges used Houck’s car to flee to Mexico. Bridges testified that Lima, who had previously complained of having no money, suddenly had a lot of money. We find that this testimony provided the jury with sufficient evidence to reasonably find that Lima took and carried away Houck’s property from his person.

¶ 35. Lima’s claim that he killed Houck in self-defense was a question of fact for the jury. See Mohr v. State, 584 So.2d 426, 431 (Miss.1991) (“The jury is the sole judge of the weight of the evidence and the credibility of the witnesses.”). Although no one witnessed the argument between Lima and Houck, Bridges testified that she saw Lima beat Houck and go through his pockets while he was bleeding to death. Furthermore, Bridges testified that Lima had a lot of money while in route to Mexico, and that she heard the appellant “bragging” about the murder after they arrived. We find that this testimony provided the jury with sufficient evidence to reasonably find that Lima killed Houck “without the authority of law.”

¶ 36. Thus, considering the evidence in the light most favorable to the State, we hold that a rational juror could have found beyond a reasonable doubt that the State had met its burden in proving all of the elements of capital murder, with the underlying crime of robbery.

CONCLUSION

¶ 37. Based on the foregoing analysis, we hold that the trial court did not abuse its discretion in accepting Dr. Hayne as an expert witness. Nor did the trial court err when it denied Lima’s motion for a new trial or, in the alternative, for judgment notwithstanding the verdict. We therefore affirm the decision of the Tate County Circuit Court.

¶ 38. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., RANDOLPH, KITCHENS AND PIERCE, JJ., CONCUR. CHANDLER, J., CONCURS IN PART AND IN RESULT. LAMAR, J., NOT PARTICIPATING.

      . The record does not reveal exactly what Bridges heard Lima say. She stated, “He started bragging to them about what he had done and how he had done it."

      . Lima also alleges that Dr. Hayne was removed from the list of state-designated pathologists in August of 2008. This allegation is not supported in the record, and thus will not be considered by the Court. See, e.g., Boone v. State, 973 So.2d 237, 241 (Miss. 2008).

      . Bridges testified she thought the phone calls to Houck were odd, because there was already toilet paper in the house.