author: ROBERTS, J., IRVING, J.,

text:
    Randy DAVIS, Appellant v. Patricia WALTERS, Appellee.
    No. 2009-CA-00653-COA.
    Court of Appeals of Mississippi.
    May 4, 2010.
    Rehearing Denied Sept. 7, 2010.
    Certiorari Denied Dec. 9, 2010.
    Certiorari Dismissed as Improvidently Granted Feb. 17, 2011.

      B. Wayne Williams, Reagan David Wise, Tupelo, attorneys for appellant.
    Ralph Edwin Chapman, William Harvey Gresham, Jr., Joseph Harland Webster, attorneys for appellee.
    Before KING, C.J., ISHEE, ROBERTS and MAXWELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On May 8, 2005, Patricia Walters was involved in an accident while she was a passenger on an utility terrain vehicle (UTV), specifically a Yamaha Rhino (Rhino), driven by Joel Cummings, who was nine years old at the time. Walters, who was forty-two years old at the time of the accident, suffered extensive injuries as a result of the accident, and she incurred medical bills totaling approximately $177,447. She subsequently filed suit against “T & R Farms, a partnership consisting of Tracey Davis and Randy Davis; [and] Randy Davis.” In her complaint she alleged that Randy Davis (Davis), as the owner of the Rhino, negligently entrusted the UTV to his nephew, Cummings, and that such negligent en-trustment was the proximate cause of her injuries.

¶ 2. A trial on the merits of the case was held on May 12-13, 2008, in the Circuit Court of Tallahatchie County. The jury returned a verdict that assessed comparative fault of 20% to Davis and 80% to Walters and awarded $3,797.92 in total damages. Walters subsequently filed a post-trial motion requesting an additur or, in the alternative, a new trial on damages. The trial court granted Walters’s request for an additur and awarded an additional $3,038.34 in damages. However, Walters rejected the additur and again requested a new trial on damages. Before the trial court had an opportunity to rule on Walters’s second request for a new trial on damages, Davis filed a notice of appeal following the trial court’s denial of his motion for a judgment notwithstanding the verdict (JNOV).

¶ 3. After careful examination of the record before this Court, as well as the supreme court’s holding in Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900 (Miss.2007) and this Court’s decision in Henson v. Riggenbach, 982 So.2d 432 (Miss.Ct.App.2007), we find that a new trial on damages must be held prior to an appellate court gaining jurisdiction of this matter. Because the requisite new trial did not occur, this Court must dismiss Davis’s appeal and remand this ease to the trial court for a new trial on damages.

FACTS AND PROCEDURAL HISTORY

¶4. For purposes of the resolution of this case at the appellate level at this point in time, the substantive facts surrounding the accident are of small import. However, we will briefly recite them to give context to the case as a whole. Davis, and his wife, Ann, live in Tippo, Mississippi, where Davis operates a farm with his brother on the land that surrounds Davis’s home. On May 8, 2005, Ann invited Walters to come to the Davis home to socialize. Additionally, Ann’s sister, Nanette Langkawel, and Cummings, Langkawel’s son, as well as other individuals, were present at the Davis home on the eighth of May, celebrating Mother’s Day.

¶ 5. There is contradictory testimony in the record as to the timing of the following events; however, in general, the actions that led up to the accident were as follows: After driving his daughter and other individuals around his property, Davis and Cummings rode on the Rhino. Davis allowed Cummings to drive and instructed him on the basic operation of the UTV. At some point in time after Cummings was taught how to operate the Rhino, he began driving other individuals, including Walters, around the Davis property and surrounding farm land. During Walters’s second ride on the Rhino, the UTV rolled over while Cummings was turning and caused extensive damage to Walters’s right arm and hand that required several operations which continued up to and after the date of trial. The parties stipulated at trial that Walters had incurred $177,447 in medical expenses arising from the injury to her right arm and hand. Specifically, one of her fingers had to be amputated, and she had permanent scarring, disfigurement, and disability.

¶ 6. Walters filed her complaint on January 3, 2006, alleging that her injuries were proximately caused by Davis’s negligent entrustment of the Rhino to Cummings. A trial on the matter was held on May 12-13, 2008. At the conclusion of the trial, the jury returned a verdict initially apportioning liability of 20% to Davis and 80% against Walters and awarded $0 in damages. The trial court determined the verdict to be inconsistent and instructed the jury to return a verdict that would fairly and adequately compensate Walters for her injuries. Thereafter, the jury returned a verdict with the same apportionment of fault but set Walters’s total damages at $3,797.92. This verdict was either a unanimous verdict of all twelve jurors or, at least, a verdict of eleven of the twelve jurors and responsive to the issues presented to the jury. As a consequence of the verdict, Walters was awarded $759.58 in damages — that is 20% of $3,797.92. Subsequently, Walters filed a motion for additur and/or a new trial on damages. The trial court denied the request for a new trial on damages, but the court granted Walters an additur in the amount of $3,038.34. The amount of the suggested additur and the prior jury award of $759.58 totaled $3,797.92; this was the exact amount awarded by the jury’s verdict. Although Davis filed a notice indicating his acceptance of the additur, Walters filed a motion rejecting the trial court’s additur and again requested a new trial on damages. However, after the trial court denied Davis’s motion for a JNOV, Davis filed a notice of appeal.

DISCUSSION

¶ 7. In his brief to this Court, Davis raises issues surrounding whether the trial court abused its discretion in denying Davis’s motion for a JNOV and other substantive issues related to the trial. However, given the procedural posture of this case, we are only able to address a singular issue, which was not raised by either party, as we lack the jurisdiction required to further examine the issues presented by the parties.

WHETHER JURISDICTION IS PROPER IN AN APPELLATE COURT ONCE A PROPOSED ADDI-TUR HAS BEEN REJECTED BY A PARTY AND A NEW TRIAL ON DAMAGES HAS BEEN REQUESTED BUT NOT HELD.

¶ 8. Given our disposition of this case, we find that it would be helpful to revisit and expand the procedural history that led this appeal to find its way to this Court. The case was tried before a jury on May 12-13, 2008. At the conclusion of the trial, the jury returned a verdict assessing 80% fault to Walters and 20% fault to Davis, as well as a total monetary judgment of $3,797.92. On June 10, 2008, Walters subsequently filed a motion for a new trial on damages and/or additur. She alternatively filed a motion for a new trial. Additionally, on June 10, 2008, Davis filed a motion for a JNOV. Eight days later on June 18, 2008, Davis filed his response to Walters’s motion for an additur. This was followed by Walters filing a response to Davis’s motion for a JNOV on June 23, 2008, and a reply to Davis’s response to her motion for an additur on June 25, 2008.

¶ 9. A hearing was held on all outstanding post-trial motions on July 28, 2008. At the conclusion of the hearing, the trial court granted an additur and rejected Walters’s request for a new trial. Additionally, the trial court specifically rejected Davis’s motion for a JNOV. In granting the additur, the trial court ordered Davis to pay an additional amount that would bring the total monetary judgment against him to $3,797.92, which was the original total award of the jury. The trial court entered the order granting the additur for July 28, 2008, nunc pro tunc on January 28, 2009, and the order was actually filed on February 5, 2009. Walters filed a notice of rejection of the proposed additur and motion for new trial on damages on February 6, 2009. Following Walters’s rejection of the additur on February 11, 2009, Davis filed his acceptance of the trial court’s proposed additur. Almost two weeks later, on February 24, 2009, Davis filed his notice of appeal from the trial court’s oral denial of his motion for a JNOV, and he stated that the notice shall take effect upon disposition of the motion. On April 15, 2009, the trial court entered a formal order denying the motion for a JNOV.

¶ 10. As evinced by the timing of the post-trial motions above and our disposition of this case, the inclusion of an additur or remittitur into the procedural mix can cause issues. In the case of Pellerin Laundry, the supreme court, after identifying the inconsistencies and confusion surrounding the jurisprudence of additurs and remittiturs, established a new procedure to govern the application of law to such post-trial issues. The facts the supreme court had before it were strikingly similar to those this Court is examining today. After a trial on the merits, the jury returned a verdict in favor of the plaintiffs but awarded zero dollars in damages. Pellerin Laundry, 947 So.2d at 902 (¶ 2) (quotations omitted). The plaintiffs moved the trial court for an additur or, in the alternative, a new trial on damages. Id. The trial court granted an additur conditioned upon the defendant’s acceptance or rejection, but the judgment granting the additur denied the plaintiffs’ request for a new trial. Id. The defendants did not accept the additur in a timely manner, and as such, it was deemed rejected. Id. at 902 (¶ 5) (citing Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 961, 962 (¶ 2) (Miss.Ct.App.2005)). The supreme court held that not only were the defendants entitled to reject the additur and demand a new trial on damages, but the plaintiffs were similarly entitled to the same options. Id. at 909 (¶ 18). Because the plaintiffs so requested a new trial on damages in their post-trial motions, the supreme court reversed the trial court’s judgment and remanded the case to the trial court for a new trial on damages. Id. at 909-10 (¶¶ 18-19).

¶ 11. In reaching its holding, the supreme court stated:

We thus state, hopefully with clarity, the procedure to be hereafter followed by the trial bench and bar when confronted with the post-trial issues of additurs and remittiturs. Any party aggrieved by the amount of damages awarded pursuant to a jury verdict may file a motion for an additur or remittitur. Miss.Code Ann. § 11-1-55. If the trial judge grants a motion for an additur or remittitur, such grant of an additur or remittitur shall take effect only if accepted by all the parties. If all the parties do not agree to the additur or the remittitur, then each party shall have the right to either demand a new trial on damages, or appeal the order asserting an abuse of discretion on the part of the trial judge [in granting the additur or remittitur].
[I]f any of the parties opted for a new trial on damages, then such a trial as a matter of right should have been available to any party so requesting the new trial.

Id. at 908-09 (¶¶ 16, 18). In reaching its holding, the supreme court implicitly identified the overall goal of additurs and re-mittiturs — fairness. Article 3, section 31 of the Mississippi Constitution provides that “[t]he right of trial by jury shall remain inviolate.” However, any court of record may suggest an additur or remitti-tur if it finds that a trier of fact’s award of damages was “influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of the evidence.” Miss.Code Ann. § 11-1-55 (Rev.2002). A grant of an additur or remittitur requires a finding by the trial court of the very same grounds as that of a motion for a new trial on damages. Such an action effectively discards the will of the trier of fact. Prior to Pellerin Laundry, the defendant had complete control over the outcome of a grant of additur, and the plaintiff could do nothing, save appeal, to protect his right to a trial by jury. The supreme court identified this flaw in the existing process stating, “both sides have a right to a jury trial and a fair trial at that.” Pellerin Laundry, 947 So.2d at 908 (¶ 15) (quoting Odom v. Roberts, 606 So.2d 114, 122 (Miss.1992) (Banks, J., dissenting)). The remedy to the existing unfairness was to guarantee all parties the right to a new trial on damages if any party did not agree to the court’s usurpation of a jury’s province in awarding damages. As such, given the jurisprudence of Pellerin Laundry, we find it is logically impossible for a trial court to grant an additur or remittitur and simultaneously deny a motion for a new trial on damages.

¶ 12. Soon after the supreme court handed down its decision in Pellerin Laundry, this Court interpreted the language in Pellerin Laundry to arrive at our holding in Henson. In that case, the trial court bifurcated a personal-injury case, having the jury first consider the liability and compensatory-damages issues, then trying the issue of punitive damages. Henson, 982 So.2d at 433 (¶ 6). The jury found for William and Teresa Riggenbach and awarded only compensatory damages, and the trial court entered its judgment consistent with the jury’s findings. Id. at 433-34 (¶¶ 6-7). Subsequently, the Riggenbachs filed a motion for additur or, alternatively, a new trial. Id. at 434 (¶ 8). The trial court granted both an additur and a new trial in the event the additur was not accepted by all parties. Id. The Riggen-bachs accepted the additur; however, the defendants, Dewayne Henson and AXA Re Property and Casualty Insurance Company, did not. Id. They appealed claiming that the trial court had abused its discretion when it granted the motion for addi-tur. Id.

¶ 13. After discussing and analyzing the supreme court’s decision in Pellerin Laundry, this Court dismissed Henson’s and AXA’s appeal and remanded the case to the trial court for a new trial on damages. In doing so we stated, “[bjecause [a] new trial on damages has yet to occur, there has been no final judgment. As such, this matter is not ripe for appellate review.” Id. at 436 (¶ 15). The same result must occur in this case.

¶ 14. As we stated in Henson, the granting of a motion for a new trial by a trial court is not a final judgment from which an appeal may ordinarily be taken. Henson, 982 So.2d at 435-36 (¶ 15) (citing Maxwell v. Illinois, C.G. R.R., 513 So.2d 901, 908 (Miss.1987)); see also Street v. Lokey, 209 Miss. 412, 413, 47 So.2d 816, 816 (1950) (stating that “[t]his Court therefore has no jurisdiction of an appeal sought to be presented directly from an order of the circuit court granting a new trial”). In the case before us, once the jury returned its verdict, Walters moved the court for an additur or, alternatively, a new trial on damages. The trial court granted the ad-ditur, which Davis accepted. However, Walters specifically rejected the trial court’s additur and again requested a new trial on damages. As per the supreme court’s mandate in Pellerin Laundry, Walters’s timely request for a new trial on damages following her rejection of the proposed additur left the trial court with no option other than to grant the request and schedule a new trial on damages. As such, this Court does not have jurisdiction to hear this case as it is not ripe for appellate review. There simply is not, and cannot currently be, a final judgment in this case from which to appeal timely as the trial court was compelled to grant Walters’s motion for new trial on damages. Therefore, we dismiss Davis’s appeal without prejudice and remand the matter to the circuit court for a new trial on damages consistent with this opinion. In so holding, we note that fault, or liability, has already been determined by the jury and apportioned 80% to Walters and 20% to Davis.

¶ 15. As we are remanding this case to the trial court for a trial on damages consistent with Pellerin Laundry, we will take this opportunity to add what we hope will aid trial courts when confronted with procedural issues surrounding addi-turs and remittiturs in the future. At this point, it would be helpful to review the pertinent language from Pellerin Laundry once more. The supreme court stated:

If all parties do not agree to the additur or remittitur, then each party shall have the right to either demand a new trial on damages, or appeal the order asserting an abuse of discretion on the part of the trial judge [in granting the additur or remittitur].
[I]f any of the parties opted for a new trial on damages, then such a trial as a matter of right should have been available to any party so requesting the new trial.

Pellerin Laundry, 947 So.2d at 908-09 (¶¶ 16, 18). From the language of Pelle-rin Laundry, it is clear that when a party requests an additur or remittitur or, alternatively, a new trial on damages, the trial court’s grant of the additur or remittitur also acts as a conditional grant of the alternative request for a new trial on damages in the event that the additur or remit-titur is rejected by any party. As identified above, fairness dictates such a result.

¶ 16. Given this conditional grant of a new trial on damages, once a motion for additur or remittitur or, alternatively, a new trial on damages has been granted, the trial court would do well to require all parties to submit a written acceptance or rejection of the additur or remittitur within a specified, brief period of time. Additionally, to avoid certain procedural and jurisdictional pitfalls inherent in this practice, a trial court that grants an additur or remittitur should defer its rulings on any other dispositive post-trial motions until all parties have either accepted or rejected the proposed additur or remittitur. Failure to do so could create a procedural quagmire. As in this case, if the trial court denies the motion for a JNOV before the rejection of the suggested additur and the affected party files a notice of appeal, it would appear that the trial court has been stripped of the jurisdiction it requires to fulfill the mandate of Pellerin Laundry, i.e. to hold a new trial on damages. When such a practice is observed, if any party rejects the additur or remittitur, then the rights dictated by Pellerin Laundry can surface, unhindered by the consequences and judicial delay that may result from a trial court’s disposition of any dispositive post-trial motions.

¶ 17. A prime example is situated in the procedural facts of this case. The comment to Rule 4(d) of the Mississippi Rules of Appellate Procedure states that: “A notice [of appeal] filed before the filing of [a motion for a JNOV] or after the filing of a motion but before its disposition is, in effect, suspended until the motion’s disposition, whereupon the previously filed notice effectively places jurisdiction in the Supreme Court.” M.R.A.P. 4(d) cmt. In the instant case, when the trial court denied Davis’s motion for a JNOV, it appeared as if it initiated a chain of events that would eventually preclude the trial court from holding the required new trial on damages, placing the trial court between the proverbial rock and a hard place.

¶ 18. Davis filed his notice of appeal after the trial court’s oral pronouncement of its denial of his motion for a JNOV on July 28, 2008, but before the formal entry of an order of denial on April 15, 2009. Ordinarily, this would remove jurisdiction from the trial court and place it at the appellate level, as indicated by the comment to Rule 4(d). Thus, from the trial court’s point of view, it no longer had jurisdiction to commence the new trial on damages required by Pellerin Laundry as the notice of appeal vested jurisdiction of the case in the supreme court. However, in this case, the trial court never lost jurisdiction. Rule 50(c) of the Mississippi Rules of Civil Procedure allows a trial court to simultaneously rule on a motion for new trial and a motion for a JNOV, which is essentially what the trial court did here. M.R.C.P. 50(c). The comment to Rule 50 specifies that when a trial court grants a motion for new trial but denies a motion for a JNOV, it is not appealable “and the new trial will proceed.” Id. cmt. As the trial court’s grant of an additur also acted as a conditional grant of Walters’s request for a new trial, assuming either party rejected it, the trial court’s denial of Davis’s motion for a JNOV was not an appealable order. Thus, while it may have appeared that Davis was free to appeal the trial court’s denial of his motion for a JNOV as a “final order,” such was not the case.

¶ 19. Finally, our holding today does not preclude an affected party from preserving his position that the trial court erred in granting an additur or remittitur or a new trial on damages. If a party also requested a new trial on damages, once this trial of right on damages has been conducted, any affected party who has not yet had an opportunity to appeal the trial court’s grant of an additur or remittitur may appeal that decision. Henson, 982 So.2d at 485 n. 3. Therefore, we dismiss Davis’s appeal without prejudice as we lack the jurisdiction required to proceed given that the trial court has yet to conduct the requisite new trial on damages.

¶ 20. THIS APPEAL IS DISMISSED WITHOUT PREJUDICE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE AND MAXWELL, JJ„ CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BARNES, J.

IRVING, J.,

dissenting:

¶ 21. The majority, relying on Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900 (Miss.2007), finds that this Court lacks jurisdiction and dismisses Randy Davis’s appeal as untimely. In reaching this result, I believe the majority misconstrues Pellerin Laundry, as it did in Henson v. Riggenbach, 982 So.2d 432 (Miss.Ct.App.2007). Therefore, because of the following reasons, as well as the reasons expressed in my dissent in Riggenbach where the facts are almost identical to today’s facts, I dissent. In my view, there is no procedural impediment to reaching the merits of Davis’s appeal, and I believe that the trial court erred in not granting Davis’s motion for a judgment notwithstanding the verdict. I would reverse and render the judgment in favor of Patricia Walters.

¶ 22. As stated by the majority, the jury determined that Walters suffered damages in the amount of $3,797.92. The jury also determined that Walters was eighty percent at fault and that Davis was twenty percent at fault. Therefore, the trial court entered a final judgment on June 5, 2008, awarding Walters $759.58 in damages, this amount being twenty percent of $3,797.92. On June 10, 2008, Walters filed a motion for a new trial on damages and/or additur and, in the alternative, a motion for a new trial on the merits. On the same date, Davis filed a motion for a judgment notwithstanding the verdict. On February 5, 2009, the trial court entered an order denying Walters’s motion for a new trial on damages but granted her motion for an additur in the amount of $3,038.34. On February 6, 2009, Walters filed a notice of rejection of additur and a motion for a trial setting for a new trial on damages. On February 11, 2009, Davis filed a notice of acceptance of the additur, and on February 24, 2009, he filed a notice of appeal wherein he observed that the trial court had not ruled on his motion for a judgment notwithstanding the verdict and noted that, pursuant to Rule 4(d) of Mississippi Rules of Appellate Procedure, his appeal would become effective upon disposition of his motion for judgment notwithstanding the verdict. On April 15, 2009, the trial court entered an order denying Davis’s motion for a judgment notwithstanding the verdict.

¶ 23. It is important for purposes of our analysis to keep in mind that the trial court specifically denied Walters’s motion for a new trial on damages. While Walters also requested, in the alternative, that she be granted a new trial, the trial court’s February 5, 2009, order denying Walters’s motion for a new trial on damages and granting her an additur did not mention her alternative motion for a new trial on the merits. Walters never brought to the trial court’s attention that it had not ruled on her motion for a new trial on the merits. Indeed, she coupled her notice of rejection of additur with a motion for a trial setting for a new trial on damages. As noted, on February 5, 2009, the trial court denied Walters’s motion for a new trial on damages as not being well taken. Therefore, it cannot be legitimately argued that the trial court intended to grant a new trial on damages if the additur was not accepted by all parties. Unlike in Pellerin Laundry, it cannot be legitimately argued here that the trial court intended to grant Walters a new trial on damages. It clearly did not.

¶ 24. Key to the proper disposition of today’s issue is a correct construction of the following language from Pellerin Laundry:

We thus state, hopefully with clarity, the procedure to be hereafter followed by the trial bench and bar when confronted with the post-trial issues of additurs and remittiturs. Any party aggrieved by the amount of damages awarded pursuant to a jury verdict may file a motion for an additur or remittitur. Miss.Code Ann. § 11-1-55. If the trial judge grants a motion for an additur or remittitur, such grant of an additur or remittitur shall take effect only if accepted by all the parties. If all the parties do not agree to the additur or the remittitur, then each party shall have the right to either demand a new trial on damages, or appeal the order asserting an abuse of discretion on the part of the trial judge. ... Finally, this rule announced today does not impinge upon a party’s right to appeal the jury verdict and trial court judgment on the issue of liability. Hopefully, this newly-established procedure will provide all parties with a level playing field in dealing with issues of additurs and remittiturs.

Pellerin Laundry, 947 So.2d at 908-09 (¶ 16) (emphasis added).

¶ 25. The majority, relying on a different portion of Pellerin Laundry, construes Pellerin Laundry as precluding the immediate right of appeal to either party when one party has refused to accept the additur or remittitur. In my view, this construction is contrary to the plain and clear language of the passage quoted above. After announcing the procedure to be followed, the Pellerin Laundry court, immediately before the conclusion, stated:

The learned trial judge in today’s case likewise dutifully followed the then existing case law on additurs by offering only to Pellerin the option of whether to accept the additur or demand a new trial on damages. However, based on our pronouncement in today’s case, and for the reasons herein stated, we find that the Dedeauxes likewise were entitled to have the same option of either accepting the additur or demanding a new trial as to damages. Had this option been offered to all parties and all parties agreed to the additur, the case would have ended. On the other hand, if any of the parties opted for a new trial on damages, then such a trial as a matter of right should have been available to any party so requesting the new trial.

Id. at 909 (¶ 18).

¶ 26. It is clear to me from the above passage that the Pellerin Laundry court was not altering the procedure which it had pronounced earlier in paragraph sixteen. As stated, if all parties do not agree to the additur or the remittitur, the procedure grants each party the right to either demand a new trial on damages, or appeal the order asserting an abuse of discretion on the part of the trial judge.

¶ 27. Here, Walters rejected the addi-tur, but Davis accepted it. Walters demanded a new trial on damages, but the trial judge denied the motion. In my view, there was nothing more that either of the parties could have done but appeal. I note that Walters has not filed an appeal. Therefore, the sole issues before this Court are those that have been put forth by Davis: whether the trial court erred in denying his motion for a judgment notwithstanding the verdict and whether the trial court erred in instructing the jury on both negligence and wilfulness/wantonness.

¶ 28. In my view, the trial court erred as to both issues. However, since I believe the evidence fails to show any negligence on the part of Davis, I would reverse and render. The facts, as set forth by the majority, are adequate except it should be stated that there is no credible evidence that Davis instructed his nine-year-old nephew Joel Cummings to take Walters for a ride on the four-wheeler or that Davis knew or should have foreseen that his nine-year-old nephew would be operating the four-wheeler on Davis’s property with Walters, a mature lady, as a passenger. Quite the contrary, the evidence is overwhelming that it was Walters who asked Cummings to take her for a ride. The trial court determined that Walters was a social guest. I agree. However, the accident did not occur as the result of any defect or condition on Davis’s premises. Therefore, in my view, the law of premises liability is not controlling. However, Davis owed a duty not to commit any negligent act which could cause injury to Walters. There is no evidence in this record that he breached that duty.

¶29. For the reasons presented, I would reverse and render the judgment of the trial court.

BARNES, J., JOINS THIS OPINION.

      . Davis owns and operates T & R Farms with his brother. T & R Farms was listed as the owner of the Rhino at the time of the accident and was named as a defendant at the time Walters filed her complaint. However, T & R Farms was later dismissed from this case by mutual agreement before trial began.

      . The record revealed that while the judgment denied the request for a new trial on damages, it clearly showed that the trial court envisioned a new trial on damages in the event that the defendant rejected the suggested additur. Pellerin Laundry, 947 So.2d at 909 (¶ 17).

      . We note that the language quoted by the dissent from Pellerin Laundry that the dissent identifies as "[k]ey to the proper disposition of today’s issue” fails to include the second sentence of the majority's quote, which states that if any party requests a new trial on damages then such a trial should be made available as a matter of right. Contrary to the dissent's statement that after the trial court denied Walters's motion for a new trial on damages "there was nothing more that either of the parties could have done but appeal,” the portion of the supreme court's language in Pellerin Laundry, which is omitted by the dissent, firmly establishes that when a party rejects an additur or remittitur that party has a right to a new trial on damages if one is so requested. The condition precedent in the dissent's statement, i.e. that the trial court denied Walters’s motion for a new trial on damages, is simply a procedural impossibility given the rejection of the additur by Walters and the mandate of Pellerin Laundry, specifically that portion of the holding that the dissent fails to mention.

      . This order was entered nunc pro tunc for July 28, 2008.

      . As best as I can tell from the record, the trial court did not give Walters a trial setting for a new trial on damages. This is understandable, given the fact that the trial court had already determined that a new trial on damages was not warranted.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Ronnie E. NOBLIN, Henry C. Noblin, Jr., Thomas C. Noblin, Robbie Noblin, Nell Noblin Johnson, Diane Boykin and Joyce Miller, Appellants v. Sammy BURGESS and Sheila McDill, Co-Executors of the Last Will and Testament of Robert H. Noblin and Individually as Sole Devisees and Beneficiaries, Appellees.
    No. 2008-CA-01425-COA.
    Court of Appeals of Mississippi.
    June 8, 2010.
    Rehearing Denied Nov. 16, 2010.
    Certiorari Denied Feb. 17, 2011.

      David Garner, Lewis W. Bell, William F. Goodman, Jr., Jackson, Eugene Coursey Tullos, attorneys for appellants.
    Mark K. Tullos, Raleigh, attorney for appellees.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Robert H. “Bob” Noblin executed his last will and testament only hours before his death. The proponents of the will and the sole beneficiaries under it, Sammy Burgess and Sheila McDill, initiated probate proceedings in Smith County. Nob-lin’s numerous heirs at law contested the will, asserting it was the product of undue influence. The trial court granted the contestants’ request for a jury trial, and the jury returned a verdict in favor of the proponents.

¶ 2. On appeal, the contestants contend that a confidential relationship existed between the testator and the proponents, raising a presumption of undue influence. They argue the proponents failed as a matter of law to overcome this presumption by clear and convincing evidence. In the alternative, the contestants claim the trial court erred in peremptorily instructing the jury that the testator possessed testamentary capacity. They also argue the trial court erred in failing to grant their proposed peremptory instruction, which would have directed the jury to find the existence of a confidential relationship.

¶ 3. We find no reversible error and affirm.

FACTS

¶ 4. Noblin died in the early morning hours of October 3, 2003. He left behind no close “blood” relatives. Noblin’s closest relatives by consanguinity appear to be an aunt and an uncle. His uncle is one of the contestants along with multiple first cousins. The proponents, Burgess and McDill, are Noblin’s stepchildren. Nob-lin’s only wife, who passed away in 1994, was the natural mother of Burgess and McDill. But because Noblin never adopted Burgess or McDill, they bear no relationship to him under Mississippi’s law of intestate succession.

¶ 5. Although Noblin did not make a will until the final hours of his life, he had named Burgess and McDill as contingent beneficiaries (entitled to payment if his spouse predeceased him) on his individual retirement accounts (IRAs) and certificates of deposit. In 1989, Noblin listed Burgess and McDill as his “son” and “daughter” on his IRA applications.

¶ 6. On September 23, 2003, Burgess took Noblin to see a doctor because Noblin had been having physical problems. Burgess later took Noblin to Lackey Memorial Hospital in Forest, Mississippi. While there, Noblin’s doctors determined he had widespread liver and pancreatic cancer. Shortly after this diagnosis, Burgess drove Noblin to Baptist Hospital in Jackson, Mississippi. Soon after Noblin’s arrival, his physicians determined he had no treatment options other than taking medication to control his pain. Noblin remained at Baptist Hospital from September 29 until he died on October 3. Burgess and McDill attended to Noblin during these five days and took turns spending the night with him.

¶ 7. On October 1, 2003, Burgess called Todd Sorey, an attorney back home in Smith County. The call was placed from Noblin’s hospital room, where only Noblin and Burgess were present. According to Burgess, he contacted Sorey at Noblin’s request. Burgess asked Sorey to draft Noblin’s will, and Sorey agreed to do so. Both McDill and Burgess testified that it was Noblin’s idea, and not their own, to make the will. Noblin never spoke with Sorey directly over the phone. Instead, Burgess talked to Sorey on the phone and relayed information back and forth between Sorey and Noblin. According to Burgess, McDill, and Sorey, Noblin had a severe hearing problem and was unable to personally speak to Sorey over the telephone.

¶ 8. Sorey testified he could hear Noblin responding to his questions. He also heard Noblin speaking about the information he wanted in his will. According to Sorey, he had known Noblin most of his life and was familiar with his voice. Sorey claimed that he could hear Noblin’s voice over the phone. He recognized the tone, vernacular, and accent as Noblin’s. Sorey maintained he had no doubt that he was speaking to Noblin, albeit with Burgess as an intermediary. Sorey testified that he heard Noblin express his desire to leave all his property to Burgess and McDill.

¶ 9. After this phone conversation, Sorey drafted a will leaving Noblin’s entire estate to Burgess and McDill. McDill picked up the will at Sore/s office on October 2 and brought it back to the hospital in Jackson. Burgess then asked Noblin’s nurse, Lynn Thornton, to find hospital employees to witness the will. Thornton herself agreed to witness the will. She recruited Corley Callum, also a registered nurse, to fill the role of the other attesting witness.

¶ 10. Of the two attesting witnesses, only Callum testified at trial. According to Callum, immediately before witnessing the will, she had a conversation with Nob-lin. Though she could not remember the exact exchange, she satisfied herself that Noblin’s will reflected his intent. Callum testified that through her conversations with Noblin at the time the will was executed, she was able to verify that “what was taking place was what he wanted to do.”

¶ 11. Noblin executed his will on the afternoon of October 2 some time between 12:00 p.m. and 3:00 p.m. He died at 12:10 a.m. on October 3.

PROCEEDINGS AND DISPOSITION IN THE TRIAL COURT

¶ 12. Following Noblin’s death, Burgess and McDill initiated probate proceedings in the Smith County Chancery Court. The contestants filed a will contest and requested a jury trial. The chancellor then transferred the case to Smith County Circuit Court, where a jury trial was held.

¶ 13. The trial judge granted a directed verdict in favor of the proponents on the issue of testamentary capacity. The trial court later gave a peremptory instruction for the jury to find the testator possessed the requisite capacity to make a will. The court, however, submitted to the jury the issues of (1) whether a presumption of undue influence arose by virtue of a confidential relationship between the testator and the proponents, and (2) whether clear and convincing evidence existed to overcome the presumption of undue influence. The trial court denied the contestants’ request for a peremptory instruction on issue (1).

¶ 14. Following a three-day trial, the jury found in favor of the proponents, and the trial court entered a judgment reflecting the jury’s decision.

STANDARD OF REVIEW

¶ 15. In reviewing a jury verdict, we apply the following standard:

[An appellate court] resolves all conflicts of evidence in the appellee’s favor and determines all reasonable inferences from testimony given towards the appel-lee’s position. Reversal occurs only where the facts presented are so overwhelming in the appellant’s position that reasonable jurors could not have found for the appellee. When an appellant challenges the sufficiency of evidence to support a jury’s verdict, the appellate court’s scope of review is limited. All evidence must be reviewed in the light most favorable to the appellee. An appellate court may only reverse a jury verdict when the facts considered in that light point so overwhelmingly to the appellant’s position that reasonable men could not have arrived at a contrary verdict. In the event that evidence is conflicting, a jury is the sole judge of the credibility of witnesses and the weight of their testimony.

In re Estate of Dabney v. Hataway, 740 So.2d 915, 919 (¶ 11) (Miss.1999) (internal citations and quotation marks omitted).

DISCUSSION

I. Undue Influence

¶ 16. The contestants’ first and main contention is that the proponents presented insufficient evidence to overcome the presumption of undue influence, which they allege arose by virtue of a confidential relationship. On this ground, they ask this Court to reverse and render the judgment of the trial court.

A. Presumption of Undue Influence

¶ 17. In Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959), our supreme court crafted the confidential relationship doctrine applicable to wills contested on the basis of undue influence. Robert A. Weems, Wills and Administration of Estates in Mississippi § 8: 18 (3rd ed. 2003). The Croft court held a presumption of undue influence arises where: (1) a confidential relationship existed between the testator and a beneficiary, and (2) the beneficiary in the confidential relationship was actively involved in some way with preparing or executing the will. Croft, 237 Miss. at 722-23, 115 So.2d at 686. A confidential relationship is present where “one person is in a position to exercise dominant influence upon the other because of the latter’s dependency on the former arising either from weakness of mind or body, or through trust.” In re Estate of Laughter v. Williams, 23 So.3d 1055, 1063 (¶ 31) (Miss.2009) (citation omitted).

B. Overcoming the Presumption of Undue Influence

¶ 18. Croft also established that once the required showing is made to raise the presumption of undue influence, the burden shifts to the proponents to rebut the presumption by clear and convincing evidence. Croft, 237 Miss. at 723, 115 So.2d at 686.

¶ 19. In order to overcome the presumption of undue influence, the proponents must show by clear and convincing evidence: (1) the beneficiary acted in good faith; (2) the testator had “full knowledge and deliberation” in executing the will; and (3) the testator exhibited “independent consent and action.” In re Last Will and Testament and Estate of Smith v. Averill, 722 So.2d 606, 612 (¶ 22) (Miss.1998). Factors to be considered in assessing the beneficiary’s good faith include:

(1) who initiated the procurement of the will;
(2) where the testator executed the will and who was present at the execution;
(3) what consideration was paid and who paid it; and
(4) whether the execution was done in secrecy or openly.

See id. Factors to be assessed in determining the testator’s knowledge and deliberation in executing the will include:

(1) whether the testator was aware of his total assets and their worth;
(2) whether the testator understood who his “natural inheritors” were;
(3) whether the testator understood how his action would legally affect prior wills;
(4) whether the testator knew non-relative beneficiaries would be included; and
(5) whether the testator knew who controlled his finances and the method used:
(a) how dependent the testator is on persons handling his finances; and
(b) how susceptible the testator is to be influenced by any such persons.

See id.

¶ 20. Regarding the testator’s “independent consent and action,” unlike the other two prongs, there is no express list of factors. The supreme court has in the past required a showing that the testator acted on “[a]dvice of ... [a] competent person, ... disconnected from the [beneficiary] and ... devoted wholly to the ... testator’s interest.” Murray v. Laird, 446 So.2d 575, 578 (Miss.1984). Though still a relevant consideration, this requirement has been absolved by more recent precedent, which has instead required “a showing of the grantor’s ‘independent consent and action’ based on all of the surrounding facts and circumstances.” Vega v. Estate of Mullen, 583 So.2d 1259, 1264 (Miss.1991).

1. Good Faith

¶ 21. Other than inferences that might be drawn from circumstances surrounding the will’s procurement, the contestants produced no evidence that Burgess or McDill influenced Noblin’s decision to make a will or suggested the terms of the will. In fact, the evidence points to the contrary. Burgess and McDill both testified that the idea of making a will originated with Noblin. Burgess testified Noblin wanted him to contact Sorey to draft a will. Sorey testified he could clearly identify Noblin’s voice over the phone, and Noblin expressed his desire to leave all of his property to Burgess and McDill. So-rey explained he was satisfied the will embodied Noblin’s wishes. And just prior to the will’s execution, Callum had a conversation directly with Noblin. Through this conversation, she ascertained the will’s provisions reflected his intent.

¶ 22. While we recognize much of this testimony is self-serving, our law is clear that -witness credibility determinations are for the jury. See, e.g., Solanki v. Ervin, 21 So.3d 552, 568 (¶ 41) (Miss.2009). Burgess, McDill, and Sorey, in particular, were all vigorously eross-exam-ined about the circumstances surrounding the making of the will.

¶ 23. It is not disputed that Noblin executed his will in a hospital room. Nob-lin signed the will in the presence of Burgess and McDill, as well as the two subscribing witnesses, Callum and Thornton. Gail Young, a hospital employee, was present to notarize documents. As to the consideration paid, Sorey testified he would have sent the bill for Noblin to pay but was unable to do so. According to Sorey, no one ever told him they would pay his fee for drafting the will, and no one ever paid it. Finally, there is no indication the execution was done in secrecy. The issue here is not whether the heirs had knowledge of the will’s execution, but whether the “the physical place the will was executed was in plain view of the witnesses.” Estate of Smith, 722 So.2d at 613 (¶ 23). Here, Callum testified she saw Noblin sign the will. The contestants offered no contrary evidence to show the execution was in any way concealed from the view of the attesting witnesses or done in a secretive manner.

2. Knowledge and Deliberation

¶ 24. Under this prong, the proponents offered a great deal of evidence that Noblin managed and controlled his own personal affairs and finances. At least eight witnesses testified in support of the fact that Noblin was an extraordinarily independent person. Several of the contestants even testified to this fact. For example, contestant Henry Clay Noblin described Noblin as an “independent[] loaner [sic], off to his self [sic] fellow, [who] did his own work.” According to contestant Diane Boykin, Noblin “made up his own mind about things,” and “[i]t was his way or no way. So, if you asked him something and he answered, that was ... law.” Finally, contestant Ronnie Noblin described Noblin as “strong-willed.”

¶ 25. Two non-relative acquaintances of Noblin’s also echoed these sentiments. According to David Gainey, who had known Noblin since childhood, Noblin “pretty much stuck to himself as far as his business was concerned” and “made up his own mind.” Joe Rigby, a friend of Burgess’s, testified that Noblin “was [the] kind of person that stayed to himself and took care of Bob.” As contestant Boykin put it, Noblin had garnered the nickname — “one way Bob.”

¶ 26. According to McDill and Burgess, this independence extended to financial matters as well. Although we find no specific proof of what Noblin knew of his total assets, the testimony of Burgess and McDill supports that Noblin took care of his own finances. Both Burgess and McDill asserted they did not own a joint account with Noblin or assist Noblin in writing checks.

¶ 27. There is little or no proof to show Noblin either did or did not understand who his intestate heirs were. Also, no prior wills existed for the subject will to effect.

3. Independent Consent and Action

¶ 28. Again, other than inferences that might be drawn from the procurement of the will, especially from Burgess’s telephone call to Sorey, the evidence points to the fact that Noblin exercised his own independent consent and action with regard to the making of the will and its terms. Callum’s testimony, as a disinterested person, is of course very significant on this factor. Callum testified to the following:

Q: Okay. Once you walked into the room, did you have any conversations with Mr. Noblin?
A: I don’t remember the exact words or exact conversation that I had with Mr. Noblin, but I did have a conversation with him, yes.
Q: Okay, what were your conversations about?
A: I’m sure the usual exchanges of, you know, hey, Mr. Noblin, how are you doing, that kind of thing took place originally; and then, you know, verifying that what was taking place was what he wanted to do.
Q: Okay. And did you satisfy yourself that that’s what he wanted to do?
A: I did, through the questions that I asked him, yes.

Callum remained in the room for approximately thirty minutes during the execution of the will. During cross-examination, Callum added, “I’m not going to sign my name to any document that I feel is deceitful. I read the will[,] and I made my own judgment based on the questions that I asked Mr. Noblin.” After reading the will, remaining in the room for half an hour, and having a conversation with Noblin, Callum “satisfied [herself] knowing that [she] was doing what Mr. Noblin wanted done.” She then observed Noblin sign his will.

¶ 29. Under these circumstances, we find a factual question on which reasonable minds could differ. The trial court did not err in refusing to hold the presumption of undue influence could not be overcome as a matter of law. The trial court properly submitted this issue to the jury.

II. Testamentary Capacity

¶ 30. The trial judge granted a directed verdict on testamentary capacity, finding Noblin possessed the requisite capacity to make a will. The judge later granted a peremptory instruction to that effect. The contestants argue reasonable minds could differ over the question of whether the testator had capacity. They contend this issue should have been submitted to the jury.

¶ 31. We review de novo the trial court’s grant or denial of motion for a directed verdict. Solanki, 21 So.3d at 557 (¶ 10). The applicable standard of review is as follows:

In deciding whether a directed verdict should be granted, the trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested. He will take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party, and, if it could support a verdict for that party, the directed verdict should not be given. If reasonable minds might differ as to this question, it becomes a jury issue.

Id. at 556 (¶ 8). The same standard applies to ruling on a peremptory instruction. Id. at 557 (¶ 10).

¶ 32. For a will to be valid, the testator must possess testamentary capacity. For testamentary capacity to be present, the testator must be of “sound and disposing mind” at the time of the will’s execution. Miss.Code Ann. § 91-5-1 (Rev.2004); In re Estate of Edwards v. Edwards, 520 So.2d 1370, 1372 (Miss.1988); Weems, at § 4:3. The requirement of a sound and disposing mind does not mean the testator’s mind must be as good as it ever was. Weems, at § 4:3. Rather, the relevant test centers on the time the will is executed. At that time, the testator must: “understand and appreciate the nature and effect of his act [of making a will,] the natural objects or persons to receive his bounty and their relation to him, and [be] able to determine what disposition he desires to make of his property.” In re Estate of Mask v. Elrod, 703 So.2d 852, 856 (¶ 17) (Miss.1997).

¶ 33. Our supreme court has explained the burden of proof on the issue of testamentary capacity as follows:

The proponents of the will meet their burden of proof by the offering and receipt of the will into evidence and the record of probate. The proponents make a prima facie case solely on this proof. The burden then shifts to the contestants to overcome the prima facie case, but the burden of proof remains with the proponents to show by a preponderance of evidence that the testator had capacity.

Estate of Holmes, 961 So.2d at 679-80 (¶ 13) (internal citations omitted). Here, the proponents offered the will, subscribing witness affidavits, and the record of probate into evidence. Thus, a prima facie case of testamentary capacity arose, shifting the burden to the contestants.

¶ 34. To support their argument on this issue, contestants direct our attention to the notes of Dr. Grace Shoemaker, Noblin’s oncologist. These notes indicate Noblin was “lethargic” and “jaundiced” on October 2 — the date Noblin signed the will. They also point to testimony that Noblin had been given pain medicine off and on during his stay at Baptist Hospital and that he did not eat on October 1 or 2. The contestants also rely on nursing notes, taken in the two days before the will was signed, which indicate that Noblin hallucinated and heard voices after receiving medication.

¶ 35. Dr. Shoemaker testified “lethargic” means “sleepy, decreased level of consciousness.” She testified her October 2 entry would have been made between 8 a.m. and 9 a.m. Nurse’s notes taken on the morning of October 2 at 7:45 a.m. indicate Noblin was “[v]ery lethargic” but “[e]asily aroused.” According to Dr. Shoemaker, “easily aroused” means “with any kind of stimulus, either talking to them or touching ... them, they [would] wake up and ... respond to you.” Although Noblin was lethargic, Dr. Shoemaker explained, he would “wake up and talk” when stimulated. In addition, when asked whether a lethargic person can continue to conduct their own business, Dr. Shoemaker responded: “There are lots of degrees of lethargy, yes.” When asked directly about whether Noblin was of sound mind when the will was made, Dr. Shoemaker did not make an assessment. The following exchange occurred:

Q: Okay. And as far as Bob Noblin’s mental status between the hours of 12:00 noon and 2:00 in the afternoon, are you able to give an opinion based upon a reasonable degree of medical probability as to whether or not Mr. Noblin was mentally able to understand and appreciate what he was doing and signing?
A: I’m not sure what date you’re talking about. But my memory of that, completely, I’d have to rely on what I’ve written in the record.
Q: Okay. And would you also rely on what a nurse, as far as the nurse’s assessment of the patient?
A: I would rely on a nurse’s ability to assess that, yes.
Q: Well, what about — you indicated you recall Ms. Corley Callum.
A: Vaguely.
Q: Okay. Would you rely on her assessment?
A: I assume I would, yes.

¶ 36. This Court addressed a similar factual scenario in In re Estate of Pigg v. McClendon, 877 So.2d 406 (Miss.Ct.App.2003). In Estate of Pigg, this Court reversed a trial court’s decision to submit the issue of testamentary capacity to the jury. Id. at 411 (¶ 23). The testatrix executed her will on April 10, 1997, leaving all her property to siblings and half-blood siblings but making no provision for one of the contestants, her brother. Id. at 408-09 (¶¶ 2-4). One witness testified by deposition that the testatrix had experienced hallucinations during the month of April, slightly over one week prior to executing the will. Id. at 410 (¶ 14). In addition, the testatrix’s treating physician, who saw her both the day before (April 9) and the day after (April 11) she executed the will, testified that “someone who had that many multiple problems, certainly they felt bad, and I’m not sure that they would be thinking rationally. I’m thinking in general terms.” Id. at (¶ 15). However, Judge Southwick writing for this Court pointed out her physician did not have any record of seeing her on April 10 — the date she executed the will — and offered no opinion on her mental status on that date. Id. at (¶ 16).

¶ 37. On the other hand, two witnesses — one being the attorney who drafted the will and the other being the attorney’s wife who occasionally worked in her husband’s law office — testified at trial that they witnessed the will’s execution. Both acknowledged the testatrix appeared to be in physical discomfort the morning she signed the will. Id. at 410-11 (¶ 20). But they further testified they went over the dispositive paragraphs of the will with her, and she responded to questions appropriately. Id. at 411 (¶ 20).

¶ 38. The trial judge submitted the issue of testamentary capacity to the jury, which this Court found to be reversible error under these circumstances. Id. at (¶ 23). In reaching this decision, the Court noted: “At the close of their case, the contestants had produced no evidence that [the testatrix] failed to have sufficient mental capacity on the critical date of April 10, 1997.” Id. at 410 (¶ 18). This Court emphasized the importance of testimony of the attesting witnesses regarding the testatrix’s responsiveness on the date in question, and the fact that the testatrix made a natural disposition of her property. Id. at 411 (¶ 22).

¶ 39. In another instructive case, Hayward v. Hayward, 299 So.2d 207, 210-11 (Miss.1974), our supreme court likewise reversed the trial court’s decision to submit the issue of testamentary capacity to the jury. In Hayward, when the testator executed his will on May 15, 1970, he was elderly, almost totally deaf and blind, in poor physical condition, and suffering from arteriosclerosis. Id. at 207. The contestants alleged the testator lacked capacity to make a will. As support, they offered the testimony of two doctors and several lay witnesses. Id. at 208. One of the doctors, who had treated the testator in 1969, testified that he had seemed “lethargic” and had “no appetite.” Id. The physician opined “it was unlikely that Hayward would have had ‘testamentary capacity’ on the date of the execution of the will[.]” Id. Based on the testator’s arteriosclerosis, the physician explained he “wouldn’t ‘expect’ [the testator] to have had ‘testamentary capacity.’” Id. A second physician, who had been the testator’s family physician for around twenty-five years, had seen the testator 4 or 5 times from 1968 to 1970. Id. This physician testified: “ T have an opinion, but this is not a fact. I do not think [the testator] was mentally competent” at the time he executed the will. Id. The basis for this assessment also focused on the testator’s arteriosclerosis. Id. However, the family physician did not see the testator on the date of the will’s execution. Id. Finally, several lay witnesses testified that, due to the testator’s severe blindness and deafness, he often failed to recognize people unless they were very close to him, and he often had extreme difficulty communicating with people. Id.

¶ 40. To rebut the contestants’ witnesses, the proponents offered several witnesses who claimed the testator was of sound mind when executing the will. Id. at 209. The attorney who drafted the will “testified unequivocally that the testator was fully aware of the natural objects of his bounty ... and knew the nature and extent of the property owned by him.” Id. The attorney also claimed “the provisions incorporated in the [will] were given to him by [the testator] who instructed him as to how he wished to leave his property.” Id. The attorney testified that after he drafted the will, the testator read the will and expressed that it memorialized his wishes. Id.

¶ 41. The supreme court, quoting a previous decision favorably, emphasized the significance of “the crucial moment when evidence of testamentary capacity attains its maximum and controlling relevancy, that is, ... the time of the will’s execution.” Id. at 209-10 (quoting Ward v. Ward, 203 Miss. 32, 37, 33 So.2d 294, 295 (1948)). The Hayward court held:

We have concluded ... that the evidence offered as tending to establish a lack of testamentary capacity ... amounts to no more than a scintilla and is wholly incapable of supporting the charge. It was error for the chancellor to submit to the jury the issue [of] testamentary capacity[,] and [the proponents’] request for a directed verdict on that issue ... should have been granted.

Id. at 210-11.

¶ 42. In the present case, just as in Estate of Pigg and Hayward, only the proponents presented probative evidence of testamentary capacity at the precise time the will was executed. Callum’s testimony is highly probative of the testator’s mental capacity at this critical time. We have discussed Callum’s testimony at length and do not repeat it here, except to add the following exchange:

Q: Now, [in] the affidavit ... paragraph three claims that ... Noblin was then and there of sound and disposing mind and memory. Were you satisfied with that statement before you signed the affidavit?
A: I was.
Q: And what did you base that upon?
A: Through conversations I had with Mr. Noblin that day.
Q: And you don’t recall the specifics of the conversation?
A: I do not.
Q: As a nurse in the oncology department, is that something that you would regularly do, is to check the mental status of a patient?
A: I would say absolutely. Any time you encounter a patient, you assess their mental status.
Q: Okay. And you satisfied yourself that Mr. Noblin was of sound and disposing mind?
A: I was satisfied or I would not have signed my name.

¶ 43. We recognize the importance of the supreme court’s instruction that: “[Tjestimony of subscribing witnesses is entitled to greater weight than the testimony of witnesses who were not present at the time of the will’s execution or did not see the testator on the day of the will’s execution.” Estate of Edwards, 520 So.2d at 1373. Further, “the subscribing witnesses to a will may testify as experts on the question of testamentary capacity.” Id.

¶ 44. Here, Callum, the only subscribing witness who testified, maintained that Noblin had capacity at the critical time he executed the will. Her testimony is supported by other witnesses as well, including McDill, who testified that Noblin put on his glasses and read the will before signing it. We further note that Noblin’s will reflected a natural disposition of his property to his stepson and stepdaughter, whom the record indicates he considered to be his own children, though he never adopted them.

¶ 45. The contestants claim the evidence of Noblin being lethargic, jaundiced, on medication, and allegedly hallucinating and hearing voices on days prior to signing the will created a jury question on the issue of testamentary capacity. Similar contentions were raised in Estate of Pigg and Hayward. And in both cases, the trial court committed reversible error by submitting the issue of testamentary capacity to the jury based upon unsubstantiated inference, where the attesting witnesses indicated the testator had capacity at the crucial and controlling moment of the will’s execution. We find the contestants’ proof insufficient to create a jury issue about the testator’s capacity to make a will at the critical time of execution. Therefore, the trial court properly granted a directed verdict and later a peremptory instruction in favor of the proponents on this issue.

III. Peremptory Instruction

¶46. At trial, counsel for the contestants submitted proposed jury instruction C-9 — a peremptory instruction directing the jury to find a confidential relationship existed between the testator and the proponents. The trial judge denied the peremptory instruction. The contestants argue the instructions given by the trial judge impermissibly permitted the jury to determine whether a confidential relationship existed, when, they contend, a confidential relationship was established as a matter of law. The proponents respond that the jury instructions taken as a whole fairly announced the law and created no injustice, and any error in the denial of the peremptory instruction is harmless.

¶ 47. We review de novo the trial court’s grant or denial of a request for a peremptory instruction. Solanki, 21 So.3d at 557 (¶ 10). The following standard is the same for reviewing the trial court’s ruling on a motion for a directed verdict:

The rule for determining whether a peremptory instruction is appropriate requires that all evidence favorable to the party against whom the peremptory instruction is requested must be accepted as true, all evidence in favor of the party requesting the peremptory instruction in conflict with that of the other party must be disregarded, and, if the evidence and the reasonable inferences to be drawn from same will support a verdict for the party against whom it is requested, then the peremptory instruction should be refused.

In re Last Will and Testament of Dickey v. Dickey, 542 So.2d 903, 904 (Miss.1989).

¶ 48. Here, as the parties point out, the trial judge initially informed the attorneys, outside of the presence of the jury, that:

Clearly the active participation by the beneficiaries in the procurement, preparation and delivery of the will, to which the proponents testified themselves, fits squarely within the definition of a confidential relationship as defined in the jury instructions submitted by the proponents] and the contestants].... Such actions seem to invite a will contest, but whether the actions of the proponents are sufficient to support a verdict of undue influence remains to be seen.

Nevertheless, it appears he later changed his mind and denied instruction C-9, which stated: “The Court instructs the jury that you shall find that a confidential relationship existed between the testator ... and the proponents!.]”

¶ 49. The initial matter that we must consider is the fact that counsel for the proponents conceded, albeit with some hesitation, after questioning at oral argument before this Court that a confidential relationship existed. We are certainly wary of resting our decision on a concession made during appeal, which we ultimately determine is not supported by the record. Although matters stipulated at trial are procedurally barred from being appealed, see State ex rel. Holmes v. Griffin, 667 So.2d 1319, 1327 (Miss.1995), this issue was not stipulated at trial. The fact remains that the trial judge considered conflicting evidence on the existence of a confidential relationship. The concession aside, we find the trial court ultimately arrived at the correct decision to submit the issue to the jury.

¶ 50. Our supreme court has described a confidential relationship as one where “a fiduciary relation exists as a fact, in which there is a confidence reposed on one side and the resulting superiority and influence on the other.” Davion v. Williams, 352 So.2d 804, 807 (Miss.1977) (quoting Croft, 237 Miss. at 725, 115 So.2d at 687); see also Estate of Laughter, 23 So.3d at 1063 (¶ 31) (A confidential relationship is present where “one person is in a position to exercise dominant influence upon the other because of the latter’s dependency on the former arising either from weakness of mind or body, or through trust.”); Taylor v. Welch, 609 So.2d 1225, 1231-32 (Miss.1992) (“In order for a litigant to prove a confidential or fiduciary relationship from which undue influence arises, the relationship must reflect ‘a dominant, overmastering influence which controls over a dependent person or trust justifiably reposed.’ ”); Norris v. Norris, 498 So.2d 809, 812-13 (Miss.1986) (“[A] confidential relationship is not confined to any specific association of persons but arises any time there appears on the one side an overmastering influence or, on the other, weakness, dependence, or trust, justifiably reposed.”). The supreme court has also held that “[t]he basis of this relationship need not be legal; it may be moral, domestic, or personal.” Hendricks v. James, 421 So.2d 1031, 1041 (Miss.1982).

¶ 51. It is well settled that “the burden of establishing the existence of a confidential relationship lies with the party asserting it” — the contestants. In re Will and Testament of Launius v. Warden, 507 So.2d 27, 31 (Miss.1987). The contestants must show that a confidential relationship existed at the time the will was executed by clear and convincing evidence. In re Will and Testament of Boyles v. Tadlock, 990 So.2d 230, 236 (¶ 22) (Miss.Ct.App.2008). The following factors should be considered in assessing the existence of a confidential relationship:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

Estate of Dabney, 740 So.2d at 919 (¶ 12). If reasonable minds can differ over the existence of a confidential relationship, the question is one for the jury. Davion, 352 So.2d at 807-08.

¶ 52. In the context an inter vivos transfer, the supreme court has held that “a familial relationship is not intrinsically one of confidence.” Foster v. Ross, 804 So.2d 1018, 1023 (¶17) (Miss.2002). In this same vein, we have stated: “[A] deed from a parent to a child alone and of itself raises no presumption of undue influence since, in the absence of evidence to the contrary, the parent is presumably the dominant party. This is true even though the parent is aged, or aged and infirm.” In re Estate of Summerlin v. Summerlin, 989 So.2d 466, 477 (¶ 37) (Miss.Ct.App.2008). Here, we are guided by these principles, given that the relationship between Noblin and his stepchildren was in essence a parent/child relationship, as evidenced by his IRA applications completed in 1989 wherein he referenced them as his “son” and “daughter.” Even the tombstone purchased by Noblin in 1994 had the word “father” inscribed above Noblin’s name. Noblin had no natural children of his own and could only have been referencing his relationship with his stepchildren. Further, Sorey testified Noblin told him Burgess and McDill were his “son” and “daughter.”

¶ 53. In Davion, the supreme court found reversible error in peremptorily instructing the jury to find the existence of a confidential relationship, where the question was one over which reasonable minds could differ. Davion, 352 So.2d at 807-08. There, the testatrix executed two wills purporting to be her last will and testament. Id. at 805-06. The first will left the testatrix’s entire estate to her brother. Id. The second will left her entire estate to her neighbor. Id. at 806. The brother sought to probate the first will, which the neighbor contested on the ground that it had been revoked by the second will. Id. at 805. The brother answered, arguing the latter will was the product of undue influence. Id. After the close of the evidence, the trial court granted two instructions, peremptory in character, placing the burden of proof on the neighbor to show by clear and convincing evidence that the second will was not the product of undue influence. Id. at 806-07. The peremptory instructions assumed that a confidential relationship was present with regard to the second will. Id. The sole issue on appeal was whether the trial court committed reversible error in not submitting the issue of the existence of a confidential relationship between the testatrix and the neighbor to the jury.

¶ 54. The neighbor, who stood as the contestant of the first will but the proponent of the second, lived next door to the testatrix for many years and was a close personal friend to her. Id. at 806. The brother lived “a good distance away” in another state. Id. The neighbor went to the office of the lawyer who drafted the will and provided some of the details to put into the will. Id. Around six days after the second will was drafted, the testatrix placed the neighbor’s family’s names on her checking account so that they could attend to her business if anything happened to her, according to a bank official. Id. However, multiple witnesses testified to the testatrix’s strong-willed nature. Id. Furthermore, the evidence was clear that “on the occasion of the execution of the second [w]ill, she was under no disability and no misapprehensions, but that her mind was clear and that she had control of all of her faculties and knew exactly what she wanted to do concerning her property[.]” Id. Given the conflicting evidence, the supreme court found the trial court’s failure to submit the issue of the existence of a confidential relationship to the jury was reversible error, reasoning:

In the present case, concerning a relationship between neighbors, given the testimony as to the strong[-]willed nature of [the testatrix], her independent execution of the [w]ill, and testimony at least indicating the beneficiary occupied a subservient role in the relationship; it must be held that a question arose particularly suitable for determination by a jury.

Id. at 808.

¶ 55. Here, we reiterate that the contestants were required to show by clear and convincing evidence the existence of a dominant, overmastering influence on the part of the beneficiaries over the testator. Taylor, 609 So.2d at 1231-32; Will and Testament of Boyles, 990 So.2d at 286 (¶ 22). If reasonable minds could differ over whether this showing has been made, the trial court must submit the issue to the jury. Davion, 352 So.2d at 807-08. While we certainly agree under the unusual fact of this case that there was evidence of such a dominant influence, we cannot ignore the evidence supporting the opposite proposition. No less than eight witnesses, including three of the contestants, testified to Noblin’s independent nature. Much of this testimony centered on his insuscepti-bility to be influenced by others in his decision making and his practice of tending to his own business and financial affairs. We also cannot ignore Callum’s testimony as a disinterested witness that Noblin’s will reflected his wishes. Although doctor’s and nurse’s notes tended to show Noblin’s mental weakness soon before the will’s execution, Callum’s testimony certainly supported the opposite at the critical time of the will’s execution. And her testimony was uncontradicted on this point. Furthermore, the contestants presented no evidence that Noblin maintained any joint account with another person or that there existed any power of attorney between him and another person.

¶ 56. Under these facts, we conclude the contestants failed to establish the existence of a confidential relationship by clear and convincing evidence as a matter of law. Due to conflicting evidence on this issue, we find reasonable minds could differ over whether a confidential relationship existed between Noblin and Burgess and McDill. Therefore, we find no error in the trial court’s submission of this issue to the jury.

¶ 57. Accordingly, we affirm the judgment of the trial court.

¶ 58. THE JUDGMENT OF THE SMITH COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . The contestants comprise seven of Noblin's twenty-one or more heirs at law.

      . See generally Robert A. Weems, Wills and Administration of Estates in Mississippi § 1:9 (3rd ed. 2003).

      . At the time, Burgess was living with Noblin and had been for about two years. Burgess testified that he had moved in with his stepfather because Burgess had just gotten divorced.

      .Sorey readily conceded that he would have preferred to have met with Noblin personally, but explained that a personal meeting never took place because he was leaving town the afternoon of October 1, 2003.

      . We note that Mississippi’s chancery courts have full jurisdiction over "matters testamentary and of administration.” In re Estate of Hathorne v. Griffin, 987 So.2d 486, 489 (¶ 13) (Miss.Ct.App.2008) (quoting Miss. Const. art. 6, § 159). Although subject-matter jurisdiction was proper in the chancery court, neither party has taken issue with the circuit court's lack of jurisdiction. But even if either party complained on this ground, article 6, section 147 of the Mississippi Constitution prohibits reversal of a circuit or chancery judgment solely on the ground of either court’s lack of subject-matter jurisdiction. See also Tillotson v. Anders, 551 So.2d 212, 215 (Miss.1989). Therefore, absent some other error, we need not visit this issue.

      . Though “the testimony of the proponents or interested parties is not sufficient to rebut the presumption of undue influence,” In re Estate of Holmes, 961 So.2d 674, 681 (¶ 19) (Miss.2007), we note that Callum had no interest in the will.

      . The testator must also be of sufficient age to possess testamentary capacity. See Miss.Code Ann. § 91-5-1 (Rev.2004).

      . The contestants also claim Noblin’s signature on the will did not match a signature on a September 29 hospital record. However, the contestants have not made a sufficient showing that the signature on the hospital record was Noblin's. We find this allegation insufficient to create a jury question as well.


author: GRIFFIS, J.,

text:
    Diann Wright GOODEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00027-COA.
    Court of Appeals of Mississippi.
    Oct. 5, 2010.
    Rehearing Denied Feb. 15, 2011.

      Brandon Isaac Dorsey, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Diann Gooden was convicted of two counts of fraud under Mississippi Code Annotated section 97-7-10 (Rev.2006). On appeal, she argues that: (1) the circuit court improperly denied her motion to suppress; (2) her motion for a directed verdict at the close of the State’s evidence should have been granted; and (3) the verdict is against the overwhelming weight of the evidence for Counts II and III. We find no error and affirm.

FACTS

¶ 2. Gooden was a deputy clerk at the Washington County Tax Collector’s Office. The tax collector’s office issues vehicle registrations and car tags. Car-tag fees are charged according to the taxing district where the person resides. For instance, a person living inside a city is charged a higher fee for a tag than a person living outside the city. This higher fee is due to the municipal taxes for citizens who live inside the city limits. The tax collector’s office also collects penalties when a person renews a car tag after the expiration date. This penalty is waived if the driver can show that the car was being repaired while it did not have a current tag.

¶ 3. In 2006, the Attorney General’s Office received complaints about a deputy clerk at the Washington County Tax Collector’s Office. The complaints alleged that a deputy clerk was changing customers’ addresses to false addresses, which were located in a lower-valuation taxing district.

¶ 4. The Attorney General’s Office opened an investigation. Karl Pree, the chief investigator, interviewed 4,200 people. Five out of the 4,200 stated that Gooden had changed their addresses to lower taxing districts.

¶ 5. On July 12, 2007, Officer Pree interviewed Gooden. During the interview, Gooden admitted that she had changed several customers’ addresses to other districts so the customer could pay a lower fee for his or her car tag. She also described how she kept blank forms to give to customers to escape the penalty associated with late tag registration. These forms listed a car-repair shop which did not exist. When a customer came in, Goo-den would fill out the service number and customer’s automobile VIN, and then she would write in that the engine was being repaired. The customer would then have the form notarized and return it to the tax collector’s office. Gooden admitted that she had accepted at least $2,000 for her services.

¶ 6. A grand jury indicted Gooden on four counts of fraud under section 97-7-10. Gooden filed a motion to suppress her statements in the interview. The circuit court denied her motion.

¶ 7. The State called Bernard Marsalis to testify about a car tag he had purchased in August 2006. The August 2006 tax receipt and accompanying affidavit indicated that Marsalis’s car tag was expired because his car had been in the repair shop for engine work.

¶ 8. Marsalis admitted that his registration had lapsed, but it had lapsed while he was attempting to sell the car and not because the car was in a repair shop. Marsalis testified that when he finally went to the tax collector’s office to renew his car tag and pay his penalty, the deputy clerk handed him a form to sign and have notarized. The form stated that his car had been at Moore’s repair shop. Gooden filled in Marsalis’s car’s information, which stated that the car had been at the repair shop for engine work.

¶ 9. Marcus Cannon testified that he purchased his car tags from Gooden. He recommended her to people. Cannon had worked at the tax collector’s office in the past. He knew that she would give him a discount.

¶ 10. Gooden moved for a directed verdict at the close of the State’s evidence. The circuit court denied her motion. The jury found Gooden guilty of two counts of fraud. Gooden filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied by the circuit court. Gooden now appeals.

ANALYSIS

1. Whether the circuit court erred when it denied Gooden’s motion to suppress.

¶ 11. Gooden argues that Officer Pree tricked her during the interview and that her confession should be suppressed because her Miranda rights had been violated. The State responds that the circuit court did not err when it denied Gooden’s motion to suppress because the interview was not a custodial interrogation and did not require the procedural safeguards of Miranda.

¶ 12. Miranda warnings are needed once the suspect is subject to “custodial interrogation.” Compton v. State, 460 So.2d 847, 849 (Miss.1984). To be subject to custodial interrogation, the suspect must be both in custody and undergoing interrogation. A suspect is in custody when his right to freely leave has been restricted. Roberts v. State, 801 So.2d 859, 861 (Miss.1974). The accused is subject to interrogation when he is questioned by the police or the functional equivalent. Pierre v. State, 607 So.2d 43, 52 (Miss.1992). The functional equivalent is any sort of activity that the police reasonably believe will produce an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

¶ 13. Once the defendant alleges that the confession was in violation of her Miranda rights, the prosecution shoulders the burden of proving beyond a reasonable doubt that the confession was voluntary. Haymer v. State, 613 So.2d 837, 839 (Miss.1993). This “burden is met and a prima facie case made out by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward.” Chase v. State, 645 So.2d 829, 838 (Miss.1994) (quoting Cox v. State, 586 So.2d 761, 763 (Miss.1991)). “When the trial court has overruled a motion to suppress a defendant’s confession, we will reverse the trial court’s decision only if the trial court’s ruling is manifest error or contrary to the overwhelming weight of the evidence.” O’Halloran v. State, 731 So.2d 565, 570 (¶ 17) (Miss.1999) (citation omitted).

¶ 14. Gooden argues that she was a suspect from the beginning of the interview and should not have been questioned without Miranda warnings. “The mere possibility of incrimination does not mean that a custodial interrogation occurred in violation of Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ].” Drake v. State, 800 So.2d 508, 514 (¶ 17) (Miss.2001) (citation omitted).

¶ 15. The interview occurred at an office of the Washington County Tax Collector during normal working hours. Gooden was there voluntarily and under no restraints. Two investigators were present. The interview lasted approximately one and one-half hours. No evidence was presented that there was any violence, threats of violence, or offers of reward to induce her confession.

¶ 16. After a suppression hearing, the circuit court found that Gooden had not been subject to custodial interrogation. The court found that: “As to coercion, there was no testimony by the accused of any threats, offers of reward, violence or threats of violence to induce her confession. Officer Pree testified none of the above was done [ ]or offered.” We find no evidence to the contrary. Accordingly, we find that the circuit court did not err in finding that there was no violation of Goo-den’s Miranda rights. This issue is without merit.

2. Whether there was sufficient evidence to support Gooden’s conviction.

¶ 17. Gooden argues that her motion for a directed verdict should have been granted at the close of the State’s case. Specifically, she contends that the State did not prove every element of the offense charged because no one actually saw Gooden falsify information on any document. The State responds that the evidence was sufficient to support the conviction.

¶ 18. When reviewing the denial of motion for a directed verdict based on an objection to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted).

¶ 19. To support a guilty verdict, the State was required to prove every element of the crime. Section 97-7-10(1) provides:

Whoever, with intent to defraud the state or any department, agency, office, board, commission, county, municipality or other subdivision of state or local government, knowingly and willfully falsifies, conceals or covers up by trick, scheme or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall, upon conviction, be punished by a fine of not more than Ten Thousand Dollars ($10,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment.

¶20. The State argues that the evidence that supported Gooden’s convictions on Counts II and III was presented through the testimony of Officer Pree and two of Gooden’s “customers.”

¶21. Officer Pree testified about his interview with Gooden. Gooden admitted she had changed the addresses for the taxing districts to reduce the fees paid for car tags. She also admitted to him that she had supplied a made-up repair shop listed on the penalty waiver form to enable customers to have their late penalties waived.

¶ 22. Marsalis, the subject of Count II, testified that he was provided a blank form by a deputy clerk at the Washington County Tax Collector’s Office when he was late renewing his car tag. The form stated that his truck had been in the repair shop when his tags came up for renewal. The State also presented physical evidence of the transaction when the tax registration receipt, accompanying penalty-waiver form and affidavit were shown at trial. Marsal-is testified that his truck had never been to the repair shop, and he had let his tags expire while he was trying to sell his car. The State also established that the repair shop listed on the form never existed. Marsalis testified that the clerk who gave him the blank form and the clerk who gave him his registration receipt were one in the same. The initials on the registration receipt were “DG.”

¶ 23. Cannon, who is the subject of Count III, testified that Gooden knowingly and willfully falsified documents. Cannon testified that he had bought numerous car tags from Gooden. When he purchased his tags, he only gave Gooden his car information because Gooden provided a false address on his tax receipt. At the time of the purchase, Cannon lived in the City of Leland. However, at trial, the State presented a tax receipt that stated that he lived at a P.O. Box in the county— a lower-valuation taxing district.

¶24. Although no one witnessed Goo-den firsthand falsify the documents, reasonable inferences may be drawn from this evidence to support the conviction. Viewing all the evidence in a light most favorable to the State, we find that a rational jury could find beyond a reasonable doubt that Gooden knowingly committed fraud. Accordingly, this issue has no merit.

3. Whether the verdict is against the overwhelming weight of evidence.

¶ 25. Gooden argues that the verdict is against the overwhelming weight of the evidence. Specifically, Gooden asserts that the State failed to show that she aided Marsalis since Marsalis could not identify Gooden as the deputy clerk who had sold him his tag and failed to show that she purposefully wrote in wrong addresses because no one witnessed her firsthand falsify the receipt. The State responds that there is ample evidence to support the jury’s verdict.

¶ 26. On a motion for a new trial, we determine whether the jury verdict is against the overwhelming weight of the evidence. Montana v. State, 822 So.2d 954, 967 (¶ 61) (Miss.2002). In Montana, the supreme court concluded that:

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

Id. at 967-68 (¶ 61) (internal citation omitted). Finally, it must also be remembered that it is the duty of the jury to assess the credibility of witnesses. Smith v. State, 821 So.2d 908, 910 (¶ 4) (Miss.Ct.App.2002).

¶ 27. The offense of fraudulent statements and representations required that the State prove that Gooden, “with intent to defraud the state or any department, agency, office, board, commission, county, municipality or other subdivision of state or local government, knowingly and willfully falsifie[d], concealed] or cover[ed] up by trick, scheme or device a material fact, or ma[de] any false, fictitious or fraudulent statements or representations, or ma[de] or use[d] any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry. ...” Miss.Code Ann. § 97-7-10.

¶ 28. There was sufficient evidence to establish that Gooden intended to defraud the state when she provided Marsalis the form with the made-up repair shop. She admitted that she gave persons, who were late and subject to penalties, improper forms and filled in a made-up repair shop and made-up repairs. Marsalis testified that he had taken advantage of this “service” offered by one of the deputy clerks. The initials “DG” were signed on his receipt. He testified that the same person who gave him his receipt was the person who also provided him with the form.

¶ 29. Since no one saw Gooden fill out the information, she claims that the State failed to prove that she did it. “[A]ll the proof need not be direct and the jury may draw any reasonable inferences from all the evidence in the case.” Campbell v. State, 278 So.2d 420, 423 (Miss.1973).

¶ 30. It was the jury’s duty to assess the credibility of each witness and to draw its own conclusions from the circumstantial evidence. In light of the witnesses’ testimonies and evidence presented, the logical inference is that Gooden knowingly filled out false information knowing that the writing was false when Cannon and Mar-salis purchased their car tags. The jury’s finding that Gooden did defraud the State of Mississippi by making fraudulent statements and misrepresentations is not against the overwhelming weight of evidence. Accordingly, this issue is without merit.

¶ 31. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT II, FRAUD, AND SENTENCE OF FIVE YEARS; AND COUNT III, FRAUD, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Gooden was found not guilty of Count I, and the State dismissed Count IV of the indictment.