author: RANDOLPH, Justice, DICKINSON, Presiding Justice,

text:
    SEARS, ROEBUCK & COMPANY v. Lisa LEARMONTH.
    No. 2011-FC-00143-SCT.
    Supreme Court of Mississippi.

      Aug. 23, 2012.
    Gregory E. Ostfeld, Francis A. Citera, Tanisha R. Jones, H. Gray Laird, III, attorneys for appellant.
    Robert Kevin Hamilton, Joe Clay Hamilton, Robert S. Peck, Meridian, attorneys for appellee.
   RANDOLPH, Justice,

for the Court:

¶ 1. In August 2005, Lisa Learmonth sustained severe injuries in an auto/truck collision with a vehicle owned by Sears, Roebuck & Company (“Sears”) and driven by its employee. Learmonth filed suit against Sears in the United States District Court for the Southern District of Mississippi — Eastern Division (“district court”). The jury returned a unanimous general verdict for Learmonth in the amount of $4 million. The “Special Interrogatory and Jury Verdict” form submitted to the jury did not instruct the jury to itemize the compensatory damages into separate categories.

¶ 2. In Sears’ post-trial “Motion for New Trial, or Alternatively, for a Remittitur” (“Motion for New Trial”), it posited that $2,218,905.60 of the jury verdict was for noneconomic damages. Learmonth used that same figure in post-trial responses. Sears’ figure was accepted by both the district court and the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) in their respective analyses. Regarding Sears’ “Motion for New Trial,” the district court held, in pertinent part, that it “cannot conclude that the jury verdict is so excessive, so ‘contrary to right reason, as to warrant a new trial or remittitur.” (Emphasis added.) Nonetheless, based on Mississippi Code Section 11 — 1—60(2)(b), the district court “remitted]” $2,218,905.60 of the verdict to $1 million, and entered judgment for $2,781,094.40. See Miss.Code Ann. § 11 — 1—60(2)(b) (Supp.2011).

¶ 8. Sears appealed that judgment to the Fifth Circuit. Learmonth cross-appealed and challenged the constitutionality of Section 11 — 1—60(2)(b) under the separation-of-powers and right-to-jury-trial provisions of the Mississippi Constitution. See Miss. Const. art. 1, §§ 1, 2; art. 8, § 31 (1890). The Fifth Circuit found that this was an “important question of state law ... for which there is no controlling precedent from the Supreme Court of Mississippi.” Learmonth, 631 F.3d at 739. Pursuant to Mississippi Rule of Appellate Procedure 20, the Fifth Circuit certified the following question to this Court, “[i]s Section 11 — 1— 60(2) of the Mississippi Code, which generally limits non-economic damages to $1 million in civil cases, constitutional?” Id. at 739^40.

¶4. Following certification, this Court handed down its decision in InTown Lessee Associates, LLC v. Howard, 67 So.3d 711 (Miss.2011). In InTown Lessee, two plaintiffs each were awarded $2 million general jury verdicts. See id. at 713, 717. On appeal, the defendant (InTown) faulted the trial court, arguing it should have provided the jury with “a verdict form that would require the jury to segregate economic from non-economic damages[,] enabling the trial judge to perform her statutory duty to apply the [$1 million limitation] on non-economic damages.” Id. at 722. Yet InTown, like Sears in this case, “did not object to the jury instruction on the form of the verdict, and ... did not request a jury instruction that the form of the verdict should segregate economic damages from noneconomic damages.” Id. We found that InTown “cannot complain on appeal that such an instruction was not given.” Id. at 724 (citing King v. State, 857 So.2d 702, 720 (Miss. 2003)). This Court added that it would “not engage in speculation or conjecture, and it would be nothing more than supposition for us to try to guess what amount the jury awarded in economic damages and what amount it awarded in noneco-nomic damages.” Id. at 724. Accordingly, this Court unanimously affirmed the judgment of the trial court. See id.

¶ 5. Thereafter, we entered an order for supplemental briefing in the case sub judi-ce. It stated, in pertinent part, that:

Section 11 — 1—60(2)(b) provides that “(b) In any civil action filed on or after September 1, 2004, other than those actions described in paragraph (a) of this subsection, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000) for noneconomic damages.” Miss.Code Ann. § 11 — 1— 60(2)(b) (Supp.2011) (emphasis added). In the case sub judice, the record reflects that “the jury found Sears liable for Learmonth’s injuries and awarded her $4 million in compensatory damages. The verdict on its face did not divide the award into separate categories.... ” [Learmonth, 631 F.3d at 730] (emphasis added). However, Sears and Lear-month have stipulated that the total award included $2,218,905[.60] in non-economic damages. See id. at [739]. Supplemental briefing is required to address the following issue:
(1) In light of the language in [Section] ll-l-60(2)(b) that “the trier of fact” cannot “award the plaintiff’ more than $1 million for noneconomic damages, this Court’s recent pronouncement on the effect of failing to request a jury instruction that segregated economic damages from noneco-nomic damages [InTown Lessee ], and the statement that the jury did not divide the award into separate categories to distinguish between economic and noneconomic damages, what fact(s) and/or legal authority exist for this Court to accept a stipulation regarding the amount of noneconomic damages found by the jury?

(Emphasis in original.)

¶ 6. In supplemental briefing, the parties disputed the existence, vel non, of a post-trial stipulation regarding noneconomic damages. On that point, no one alleges that a written or oral stipulation was entered before the jury completed its deliberations and rendered its verdict. The record reveals just the opposite. The “Pretrial Order” provided only that the following facts “are established by the pleadings or by stipulation or admission”:

[t]he accident occurred at the intersection of Highway 15 and Highway 485 on August 26, 2005. [Learmonth] was operating her green Chevrolet automobile at the time of the accident. [The Sears employee] was acting as the agent and employee of [Sears]. [Learmonth] was taken from the scene of the accident to Neshoba General Hospital, and was thereafter air-lifted via helicopter to University Medical Center, where she was hospitalized for several days as a result of injuries she sustained in the subject accident.

The “Pretrial Order” added that the “contested issues of fact” included “[t]he nature, extent, duration and cause of [Lear-month’s] alleged injuries.” At trial, Sears stridently contested not only damages, but also liability. The jury was then properly instructed, which included the following:

any statements ... or arguments made by lawyers are not evidence in the ease.[] ... [I]t is your ... interpretation of the evidence that controls in the case.[]
[Y]ou are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In other words, you may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in the case.
Now, I have said that you can consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You are the sole judges ... of ... the weight to be given to ... testimony.
You may ... accept or reject the testimony of any witness in whole or in part.
[In] arriving at [Learmonth’s] damages you must determine an amount that is fair compensation for all of [Lear-month’s] damages.
If you decide to award compensatory damages, you should be guided by dispassionate common sense. Computing damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. On the other hand, the law does not require that the plaintiff prove the amount of her losses with mathematical precision but only with as much definiteness and accuracy as the circumstances permit.
You must use sound discretion in affixing an award of damages and in drawing reasonable inferences where you find them appropriate from the ... evidence.

As to the “elements of damages,” the jury specifically was instructed that Learmonth had incurred “past medical expenses” of $90,098.42. But it was further instructed to determine the following, as “you find them proved by a preponderance of the evidence”: “[m]edical expenses which you believe from the evidence that [Lear-month] will likely incur in the future discounted to net present value[,]” and “[l]oss of future wage-earning capacity, ... discounted to net present value.” Before the jury began its deliberations, a special interrogatory and verdict was requested, but it did not request a finding to establish as fact the matter now at issue, i.e., a jury-finding of noneconomic damages in an amount in excess of $1 million. Therefore, while Learmonth curiously did acquiesce to Sears’ presumptive calculations in her post-trial filings, we find no proof that the parties entered into a binding stipulation. Moreover, neither party requested a special verdict segregating economic from noneconomic damages, which may be requested under Rule 49 of the Federal Rules of Civil Procedure. See Fed. R.Civ.P. 49. Compare with Miss. R. Civ. P. 49.

¶ 7. After considering the briefs and arguments and reviewing the entire record presented, we conclude that, because the “trier of fact” (the jury) entered a general verdict of $4 million, we cannot know with any degree of assurance that “they” (the jury) awarded Learmonth more than $1 million for noneconomic damages. Miss.Code Ann. § 11-1-60(2)(b). Thus, under InToum Lessee, our ruling upon the constitutionality of Section 11—1— 60(2)(b) in this case would require engaging in “speculation[,]” “conjecture[,]” “supposition[,]” and guesswork regarding “what amount the jury [may have] awarded in economic damages and what amount it [may have] awarded in noneconomic damages.” InTown Lessee, 67 So.3d at 724. While the Fifth Circuit is bound only by Mississippi substantive law, we decline to answer a certified constitutional question outside the clear context of its application. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 2219, 135 L.Ed.2d 659 (1996). In other words, consistent with our holding in In-Toum Lessee, we decline to answer a certified question which, if the case were directly appealed to this Court, would not be reached under the facts presented. The constitutionality of a statute is not to be addressed “abstractly, speculatively, or in the manner of an academic discussion[,]” but rather in the context of its clear application. 16 Am.Jur.2d Constitutional Law § 117. See also U.S. v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963) (quoting U.S. v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)) (“The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases[.]”); Gov’t & Civic Employees Org. Comm., CIO v. Windsor, 353 U.S. 364, 366, 77 S.Ct. 838, 839, 1 L.Ed.2d 894 (1957) (citing Rescue Army v. Mun. Court of City of Los Angeles, 331 U.S. 549, 575, 584, 67 S.Ct. 1409, 1423, 1427, 91 L.Ed. 1666 (1947)) (in the interest of avoiding “the adjudication of abstract, hypothetical issues[,] ... courts will not pass upon constitutional contentions presented in an abstract rather than in a concrete form.”); Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389-90, 89 L.Ed. 1725 (1945) (internal citations omitted) (the “considered practice” of the United States Supreme Court is “not to decide abstract, hypothetical or contingent questions, ... or to decide any constitutional question except with reference to the particular facts to which it is to be applied.... ”).

¶ 8. The “form” of the “constitutional contentio[n]” presented here is hardly “concrete,” but more akin to the Yazoo Clay native to our region, a substance of great plasticity. Windsor, 353 U.S. at 366, 77 S.Ct. 838. What the jury should have, could have, may have, and/or possibly accepted as worthy evidence, and the component parts of their resulting general verdict, is known only to them. For this Court, post-trial pleadings and arguments based on Sears’ hypotheses are not a sufficiently reliable basis for us to undertake a decision declaring Section 11—1—60(2)(b) constitutional or unconstitutional. See Jones v. Harris, 460 So.2d 120, 122 (Miss.1984) (quoting Western Line Consol. Sch. Dist. v. Greenville Mun. Separate Sch. Dist., 433 So.2d 954, 958 (Miss.1983)) (“Courts have a solemn duty to avoid passing upon the constitutionality of any law expressed by the people through their Legislature unless compelled to do so by an issue squarely presented to and confronting a court in a particular case.”). Had Sears taken the precautionary step to query the jury regarding the amount of noneconomic damages in a special interrogatory or special verdict, then we would possess knowledge of this indispensable element, required to exist before the statutory limitation is considered. Absent knowledge of the jury’s finding, we lack the omniscient power to ascertain what we consider an essential, contested, requisite fact, contrary to the dissent’s assertion otherwise. As we conclude that the issue was not “squarely presented” by the parties, our consideration of the certified question is foreclosed, and the request to answer the certified question is declined. Jones, 460 So.2d at 122 (quoting Western Line, 433 So.2d at 958). See also Miss. R.App. P. 20(a) (“The Supreme Court may, in its discretion, decline to answer the questions certified to it.”).

¶9. CERTIFIED QUESTION DECLINED.

WALLER, C.J., CARLSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

DICKINSON, Presiding Justice,

dissenting:

¶ 10. The United States Court of Appeals for the Fifth Circuit has asked us to advise whether the Mississippi Legislature unconstitutionally limited the amount of noneconomic damages a plaintiff may -recover in a tort case. In my view, this Court should address and answer the question.

¶ 11. In the case from which the question arose, after the jury entered a general verdict of $4 million, the plaintiff, the defendant, the trial court, and the appellate court all agreed that — based on the federal court’s approved method of calculation— the jury had awarded $2,218,905.60 in non-economic damages. Still, the majority says the federal court had no right to make this finding because it was not “factual.” I disagree.

¶ 12. The method used by the federal court to reach its factual conclusion — while not this Court’s method of choice — was certainly not unorthodox. The court deducted all claimed and proven economic damages in the amount of $1,781,094.40 from the total award of $4 million, to arrive at the noneconomic award of $2,218,905.60. In third grade, I was asked: “If a farmer has ten apples and sells six, how many apples does he have left?” Neither my answer of four apples, nor the district court’s mathematical calculation — according to the majority’s logic— was “factual.”

¶ 13. It is disturbing that what seems so clear to me appears to the majority as “apples and oranges.” The jury was instructed on all the elements of damages— economic and noneconomic — it was allowed to award. Since the total amount of economic damages requested and proved was $1,781,094.42, the jurors could not have awarded more than that, unless they failed to follow their instructions. And all that was left above that number was noneco-nomic damages. So it is a mathematical fact that they either awarded $2,218,905.60 in noneconomic damages or they failed to follow their instructions. And it is well-settled that we presume juries follow their instructions.

¶ 14. It is true that what I call a fact is solely supported by circumstantial evidence. But this Court seems to be untroubled when circumstantial evidence rises to the level of “beyond a reasonable doubt”— even in death-penalty cases. So it seems odd that anyone would be troubled by applying circumstantial evidence to the question presented here. And given the mathematical certainty involved here (again, assuming the jurors followed their instructions), I have no trouble stating as a fact that the jury awarded $2,218,905.60 in noneconomic damages. No “apples or oranges” involved.

¶ 15. In rejecting the federal court’s method of determining facts, the majority relies on InTown Lessee Assocs., LLC v. Howard, in which we announced a procedural requirement for our state trial courts that a jury’s noneconomic damage award must be specified in a special-verdict form.

¶ 16. While I agree with our decision in InTown, our procedural requirements are not binding on the federal courts. And this Court should not second-guess the method chosen by the federal courts to determine the nature and amount of damages awarded by a federal-court jury. The issue that controls the majority’s decision is not contested by any party to the litigation, and is not even before us or the Fifth Circuit on appeal.

¶ 17. The United States district judge, finding the statutory damages limitation to be constitutional, applied it to reduce the jury’s award. The issue is on appeal before the Fifth Circuit — the same court that certified the question to us. So, unlike our decision in InTown — a case in which we determined the statute did not apply — the Fifth Circuit has determined that in the case pending there, the statute does apply. That is. their call, not ours. And before affirming or reversing the district court’s reduction in damages, the Fifth Circuit simply wants us to tell them whether or not the statute is constitutional. We should tell them, rather than leaving them to guess.

¶ 18. This Court’s special-verdict form is not binding on the federal courts, so I cannot agree with the majority’s characterization of the issue before the Fifth Circuit as “abstract” or “hypothetical.” As already stated, I firmly believe we should address the question. And because the majority refuses to do so, I respectfully dissent.

      . Regarding Sears’ direct appeal, the Fifth Circuit affirmed "the judgment of the district court insofar as it denied a new trial....” Learmonth v. Sears, Roebuck & Co., 631 F.3d 724, 740 (5th Cir.2011).

      . Kitchens, J., writing. Carlson and Dickinson, P.JJ., Randolph, Lamar, Chandler, Pierce, and King, JJ., concurring. Waller, C.J., not participating.

        .See Miss. R.App. P. 20(f) ("additional briefing will be upon directive of the Supreme Court.”).

      . This point seems lost on the dissent, which adopts the "mathematical certainty” of $1,781,094.40 in economic damages based upon an “argumen[t] made by lawyers....” (Dis. Op. atffll 13-14).

      . The dissent posits that we are "rejecting the federal court’s method of determining facts...." (Dis. Op. at ¶ 15). But absent stipulation or agreement, facts in a jury trial are determined by juries, not courts (federal or otherwise).

      . Therefore, unlike "past medical expenses,” the jury was not instructed to follow an "approved method of calculation” (or the dissent's perceived "mathematical certainty”) regarding the amount of such damages. (Dis. Op. at ¶¶ 11, 14). Of course, if the district court had determined that the verdict was "so excessive, so ‘contrary to right reason,’ as to warrant a new trial or remittitur[,]” then Sears had a remedy — a new trial or remitti-tur.

      . The dissent conclusively maintains that "the jurors could not have awarded more than [$1,781,094.40 in economic damages], unless they failed to follow their instructions.” (Dis. Op. at ¶ 13). Is the dissent suggesting, contrary to the instructions provided, that the jury was not "permitted to draw such reasonable inferences from the testimony and exhibits” as they felt were "justified in the light of common experience” and/or that the jury was prohibited from making "deductions and reaching] conclusions which reason and common sense” led them "to draw from the facts ... established by the testimony and evidence[?]”
      For example, expert testimony regarding the "household services figures” was based on the assumption of paying a person minimum wage, which was an assumption that the jury was free to reject and determine that the services could not be procured for minimum wage. The "common experience” of the jurors may have been contrary to that assumption.
      As to loss of future wage-earning capacity, Learmonth’s expert testified that the average earnings of a high-school graduate were $28,631 per year and of a junior-college graduate were $36,021 per year, and took the average of those two figures of $32,326. No credible expert opines that the specific plaintiff necessarily would have earned an exact maximum amount, but only that their opinion reflects the projected earnings that a person in the same cohort group would likely receive, based on countless variables (subject to a net present value calculation, which is often the subject of debate between qualified experts who cannot agree on the discount rate).
      Regarding the net present value of future medical expenses, Learmonth accurately contends that the jury’s "common experience,” "reason,” and "common sense” could have led it to "determine that — based upon the rapidly rising cost of medical care — the future-medical-care figure should be larger than the gross-medical-care figure, given the fact that ... medical inflation is outpacing general inflation.”
      In sum, the jury’s province is to make independent determinations on such matters, which may be based upon its "common experience,” "reason,” and "common sense.” Apart from excessiveness, outrageousness, bias, etc., its general verdict should remain undisturbed. See Foradori v. Harris, 523 F.3d 477, 504 (5th Cir.2008) (quoting Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir.1983)). All of those bases for reduction were specifically rejected by the district court.

      . The dissent is confusing apples and oranges. Neither its answer, nor the district court’s "mathematical calculation[,]” reveals or discloses the finding of the trier of fact, the jury, in which it was instructed to exercise its "common experience,” "reason,” and "common sense.” (Dis. Op. at ¶ 12).

      .A "fact” is defined as "2. Something objectively verified. 3. a. Something with real, demonstrable existence.” Webster's II New College Dictionary 401 (2001). See also Black’s Law Dictionary 706 (4th ed.1968) (defining "fact” as "[a] thing done; an action performed or an incident transpiring; an event or circumstance; an actual occurrence. An actual happening in time or space or an event mental or physical.... That which has taken place, not what might or might not have taken place.”) (emphasis added).

      . See Miss.Code Ann. § 1 l-l-60(2)(b) (Supp. 2011).

      . Learmonth proffered evidence of the following categories and amounts of economic damages: Past Medicals = $90,098.42; Future Medicals = $483,510.00; Loss of Wage-Earning Capacity = $1,207,486.00; Total Economic Damages = $1,781,094.42.

      . Grayson v. State, 879 So.2d 1008, 1020 (Miss.2004) (quoting Williams v. State, 684 So.2d 1179 (Miss.1996)).

      . InTown Lessee Assocs., LLC v. Howard, 67 So.3d 711, 724 (Miss.2011).

      . Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).


source: Caselaw Access Project

author: CARLSON, Presiding Justice, CHANDLER, Justice,

license: Public Domain

text:
    Eddie Ray JONES v. STATE of Mississippi.
    No. 2010-CT-00202-SCT.
    Supreme Court of Mississippi.
    Aug. 23, 2012.

      Eddie Ray Jones, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Henry Taylor and Eddie Ray Jones were tried jointly for aggravated assault and possession of a firearm by a felon. Taylor was found guilty on both charges, and Jones was acquitted on the latter charge but convicted on the former charge. Jones appealed his aggravated-assault conviction, and the Court of Appeals affirmed Jones’s conviction and sentence. After the Court of Appeals denied his motion for rehearing, Jones filed a petition for writ of certiorari which we granted to consider, inter alia, Jones’s claims of inconsistent verdicts and erroneous jury instructions. We now find that Jones’s claims of error are without merit; thus we affirm the judgments of the Court of Appeals and the Circuit Court for the Second Judicial District of Bolivar County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. At the outset, we mention that the State’s theory at trial was that Jones and Taylor committed aggravated assault, individually or as aiders and abettors, in connection with firing the bullet that struck Camisha Cleveland.

¶ 3. We set out the facts of today’s case in the light most favorable to the jury verdict as to the aggravated-assault conviction. At approximately 6:30 p.m. on March 22, 2007, a shooting occurred on White Street in Cleveland, near the intersection of White Street and Highway 61. Latoya Sellers was driving her white Nissan Altima east on White Street. Her boyfriend, Maurice Williams, was in the passenger seat. They passed a large crowd of people heading west toward Highway 61. According to Sellers, someone in the crowd hollered what unquestionably would be considered an inflammatory remark. Williams jumped out of the car with a gun and said “what did you say?” Then Williams started firing shots west toward the intersection of White Street and Highway 61. At that point, a person or persons in the crowd returned fire, shooting in an easterly direction, and struck Camisha Cleveland, who was driving her car west on White Street. The bullet traveled through the windshield of Cleveland’s car, shattered Cleveland’s cheekbone, and damaged her ear. The State sought to prove that Jones or Taylor individually had fired the shot that struck Cleveland, and that the other had aided and abetted in the crime.

¶ 4. Several witnesses testified about what they had observed. Frank Edwards testified that it was daylight when the shooting occurred. He was outside a trailer on White Street when he saw the crowd and spotted Taylor and Jones in the crowd. He saw Taylor point a gun in an easterly direction. He did not see Jones or anyone else with a gun. Michael Whit-ten, who worked at a package store on the corner of Highway 61 and White Street, heard five to seven gunshots and then saw Taylor running with something short and silver in his hand. Whitten did not see Jones at all. Virginia Hunter, who lived on White Street, saw Taylor pointing a gun away from Highway 61. She did not see Jones.

¶ 5. Cedrick Hampton testified that he was not present at the shooting, but that he had seen Jones and Taylor in a car prior to the shooting. He admitted he had given a statement to the police in which he had stated that, when he had seen them, Taylor and Jones had guns. Hampton testified that he had lied to the police because he had been angry with Jones and Taylor due to a misunderstanding. He testified that, in fact, he had not seen Taylor and Jones with guns.

¶ 6. Sellers testified that she had given three statements to the police. In her first and second statements, she had omitted the fact that Williams had a gun. She testified that she had lied because she had been trying to protect herself from prosecution. In her third statement, Sellers stated that Williams and Jones had guns. She stated that, after Williams jumped out of her car, she quickly glanced in the rear-view mirror and saw Jones running behind her car, holding a gun. She heard shooting. She said Williams never fired his gun, and that her statements were not an effort to protect Williams. Jones’s counsel cross-examined Sellers, using her prior inconsistent statements in an effort to impeach her testimony before the jury. Sellers was unable to say whether Jones had been wearing a shirt, and she was unable to describe the gun.

¶ 7. George Serio, Investigator for the Cleveland Police Department, testified that Jones, Taylor, Williams, and Sellers had been arrested and charged in connection with the shooting. He stated that Jones and Taylor had tested negative for gunshot residue, and Williams’s test was ambiguous. He testified that another person had confessed to the shooting, but that the investigation had discredited that person’s confession.

¶ 8. Jones and Taylor stipulated to their prior felonies. During the defendants’ case-in-ehief, several relatives of the defendants testified that they had been in the crowd, and that neither Jones nor Taylor had been involved in the shooting. The jury found Taylor guilty of aggravated assault and possession of a firearm by a felon, and it found Jones guilty of aggravated assault but acquitted him of possession of a firearm by a felon. Jones was sentenced to serve twenty years as a habitual offender in the custody of the Mississippi Department of Corrections. Jones appealed, and this Court assigned his appeal to the Court of Appeals.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 9. Before the Court of Appeals, Jones raised two issues: (1) whether, during voir dire, the trial court erred in reading the portion of Count II of the indictment concerning Jones’s prior conviction of sale of cocaine as an element of the crime of possession of a firearm by a convicted felon; and (2) whether the evidence adduced at trial was legally sufficient to sustain his aggravated-assault conviction. In a majority opinion authored by Judge Carlton, the Court of Appeals discussed the issues, found them to be without merit, and affirmed. Jones v. State, 95 So.3d 672, 674-80, ¶¶1-22 (Miss.CtApp.2011), r’hg denied (November 29, 2011).

¶ 10. Judge Russell, joined by Presiding Judge Irving, dissented, finding the evidence insufficient to sustain a guilty verdict for aggravated assault; Judge Russell opined that Jones’s aggravated-assault conviction should be reversed and a judgment of acquittal rendered in Jones’s favor. Additionally, although Jones did not challenge on appeal the jury instructions or the weight of the evidence, Judge Russell, in applying plain-error review, found fault with the aiding-and-abetting language of the aggravated-assault instruction which the trial court submitted to the jury, and she found that the guilty verdict was contrary to the weight of the evidence, thus requiring at least a reversal of the judgment of conviction and sentence and a remand to the trial court for a new trial. Jones, 95 So.3d 672, 680-84, ¶¶ 23-41, (Russell, J., dissenting, joined by Irving, P.J.)

¶ 11. Once the Court of Appeals denied his motion for rehearing, Jones filed his petition for writ of certiorari, which we granted. Jones v. State, 82 So.3d 620 (Miss.2012).

DISCUSSION

¶ 12. In his petition for writ of certiora-ri, Jones asserts: (1) during voir dire, the trial court erred in reading to the jury that portion of Count II of the indictment (convicted felon in possession of a firearm) concerning Jones’s prior conviction for sale of cocaine; (2) the evidence was legally insufficient to sustain the conviction for aggravated assault; (3) more specifically, the evidence was legally insufficient to sustain the jury’s finding that Jones had aided and abetted Henry Taylor in committing the crime of aggravated assault; and (4) by applying plain-error review on appeal, the trial court had erred in giving the tendered aggravated-assault instruction with the faulty “aiding-and-abetting” language, and the jury’s guilty verdict as to the aggravated-assault charge was contrary to the weight of the evidence.

¶ 13. As noted supra, Jones raises several issues in his petition for writ of certiorari; but this Court may limit the issue(s) we wish to address upon a grant of certiorari. McCain v. State, 81 So.3d 1055, 1059 n. 5 (Miss.2012); Glidden v. State, 74 So.3d 342, 345 (Miss.2011); see M.R.A.P. 17(h). Thus, today, we will discuss those issues we deem appropriate.

I. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN JONES’S CONVICTION FOR AGGRAVATED ASSAULT.

¶ 14. Challenging the sufficiency of the evidence, Jones argues that, viewed alongside Taylor’s convictions, his acquittal on felony possession of a firearm meant that the jury had found that he (Jones) had not possessed or fired a gun. The Court of Appeals rejected this argument, reasoning that, when the verdicts are inconsistent, the reviewing court properly considers whether evidence was sufficient to support only those counts on which a conviction is returned. Jones, 95 So.3d 672, 679, ¶ 17. Because Sellers’s testimony that she had seen Jones facing east holding a gun and then had heard gunshots was sufficient to support his conviction of aggravated assault, the Court of Appeals affirmed. Id. at 680, ¶22. The Court of Appeals majority noted that “where a multi-count verdict appears inconsistent, the appellate inquiry is limited to a determination of whether the evidence is legally sufficient to support the counts on which a conviction is returned. What the jury did with the remaining counts is immaterial.” Jones v. State, 95 So.3d 672, 679, ¶ 17 (Miss.Ct.App.2011) (citing Edwards v. State, 797 So.2d 1049, 1058 (Miss. Ct.App.2001) (citation omitted)).

¶ 15. In her dissent, Judge Russell took issue with the majority’s conclusion that the evidence was sufficient to support Jones’s aggravated-assault conviction, stating:

The fact that the jury acquitted Jones for possession of a firearm would indicate that they did not believe Sellers and rejected her testimony that she saw Jones with a gun. In the absence of Jones possessing a gun, it would be an illogical conclusion that he could have fired the shot that injured Cleveland. Absent other proof, the evidence is insufficient to find Jones individually liable for aggravated assault.

Jones v. State, 95 So.3d 672, 679 ¶ 17 (Russell, J., dissenting) (citation omitted). Judge Russell further opined that the record was devoid of evidence that Jones in any way assisted, encouraged, incited, or planned with Taylor to shoot into the crowd. Id. at 681-82.

¶ 16. But we agree with the Court of Appeals majority that, when verdicts are inconsistent, the reviewing court properly considers whether evidence was sufficient to support only those counts on which a conviction is reached. Jones v. State, 95 So.3d 672, 679, ¶ 17. This Court has held that inconsistent or even contradictory verdicts are not, in and of themselves, reasons to overturn a criminal conviction. See Holloman v. State, 656 So.2d 1134, 1141 (Miss.1995). We therefore find that the Court of Appeals majority reached the right result on this-question.

¶ 17. In Sanders v. State, 63 So.3d 497, 504 (Miss.2011), after a grant of certiorari, this Court agreed with the Court of Appeals’ reasoning, consistent with our case-law that, in addressing a verdict of guilty that appears to be inconsistent with a verdict of not guilty as to another count in the indictment, we will focus only on the guilty verdict under attack on appeal to determine whether that verdict is supported by legally sufficient evidence and/or the weight of the evidence. Id. at 504. In Sanders, the defendant killed his grandfather and then his grandmother in their home in a matter of minutes, and the jury returned a verdict finding the defendant not guilty by reason of insanity for the murder of his grandfather, and a verdict finding the defendant guilty for the murder of his grandmother. We stated:

In sum, the Court of Appeals said, “[w]hen analyzing the weight of the evidence that supports a jury’s verdict, we are simply prohibited from considering, in any way, what the jury did on another count. It is irrelevant and immaterial. It is as if it never happened.” [] We agree with the well-reasoned analysis of the Court of Appeals on this point. We will not consider the jury’s deliberation or its conclusions on another count of the indictment, because doing so would be speculative and unreliable. Like the Court of Appeals, we will examine the evidence presented at trial, as we would do in any other case in which the issue of weight has been raised.

Id. In the end, we determined that Sanders’s conviction for the murder of his grandmother was not against the overwhelming weight of the evidence. Id. at 506.

¶ 18. When reviewing the sufficiency of the evidence, an appellate court “views the evidence in the light most favorable to the prosecution and asks if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Gilbert v. State, 48 So.3d 516, 520 (Miss.2010) (quoting Bush v. State, 895 So.2d 836, 843 (Miss.2005)). A person is guilty of aggravated assault if he “attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.... ” Miss.Code Ann. § 97-3-7(2)(a) (Rev.2006).

¶ 19. The fact that the jury found Jones not guilty of felony possession of a firearm is immaterial to our review of the jury’s determination that Jones committed aggravated assault. The uncontradicted evidence was that the shot which injured Cleveland came not from Williams, who was shooting westward, but from an individual or individuals returning fire, shooting toward the east. Hampton testified at trial that he had not seen Taylor or Jones with guns on the day of the shooting. Hampton also testified that he had lied in a statement given to law-enforcement officials that Taylor and Jones did have guns on the day of the shooting, with the motive for the false statement being that he was angry with Jones and Taylor “due to a misunderstanding.” The trial testimony of Sellers was that Jones did have a firearm and was near the scene of the incident just before the shooting. Sellers further testified that Jones was running behind her holding a gun, and that she then heard shooting. She never stated that she actually saw Jones fire the weapon, but her testimony constitutes circumstantial evidence to that effect.

¶ 20. Sellers was impeached at trial with her prior inconsistent statements and with her inability to describe the weapon or to state whether Jones was wearing a shirt; and Hampton later recanted his original statement to the police that Jones had a firearm in his possession just before the shooting. But the jury, by its verdict, apparently chose to disregard, or not believe, this evidence, which it had every right to do as the fact-finder. In reviewing the weight of the evidence supporting a verdict, this Court will not “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Massey v. State, 992 So.2d 1161, 1163 (Miss.2008) (citing Moore v. State, 933 So.2d 910, 922 (Miss.2006)). Reviewing the evidence in the light most favorable to the State, we find sufficient evidence exists for any reasonable trier of fact to have found beyond a reasonable doubt that Jones was guilty of aggravated assault. As to the weight of the evidence, in reviewing the evidence in the light most favorable to the verdict, we find that the verdict is not so contrary to the overwhelming weight of the evidence that to allow it to stand would bring about an unconscionable injustice. Sanders, 63 So.3d at 503 (citing Bush, 895 So.2d at 844). We find that this issue is without merit.

II. WHETHER THIS COURT SHOULD ADDRESS THE TRIAL COURT’S GRANT OF THE AGGRAVATED-ASSAULT INSTRUCTION ON THE BASIS OF PLAIN ERROR.

¶ 21. In his petition for writ of certiorari, Jones concedes that, on appeal, he “did not challenge the jury instructions or the weight of the evidence.” These issues thus are procedurally barred. See, e.g., Jackson v. State, 684 So.2d 1213, 1226 (Miss.1996). However, this Court “may, at its option, notice a plain error not identified or distinctly specified.” M.R.A.P. 28(a)(3). “When a defendant fails to make a proper objection at trial, and thus fails to preserve the issue for appellate review, we will reverse if the error involved a fundamental and/or substantive right and resulted in a ‘manifest miscarriage of justice’ or ‘seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.’ ” Blanchard v. State, 55 So.3d 1074, 1077 (Miss.2011) (citation omitted). Judge Russell, in her Court of Appeals dissent, found that plain error had occurred because the jury was given an erroneous instruction on the elements of aggravated assault. Jones v. State, 95 So.3d at 683, ¶ 31 (Russell, J., dissenting). In today’s case, the dissent adopts this argument, and would reverse and remand the case on this basis. We do not find plain error and, since the issue was not raised at trial or on direct appeal, we find the issue to be procedurally barred.

¶22. Notwithstanding the procedural bar, we will discuss the merits of the issue raised by Jones in his petition for writ of certiorari. “When a jury is given instructions which are in hopeless conflict this Court is compelled to reverse because it cannot be said that the jury verdict was founded on correct principles of law.” Johnson v. State, 908 So.2d 758, 764 (Miss. 2005) (citations omitted) (emphasis in original). The dissent considers both the jury instruction on the elements of aggravated assault and the trial court’s oral explanation of these instructions to be confusing. However, jury instructions are read “as a whole and not in isolation.” Harden v. State, 59 So.3d 594, 608 (Miss.2011).

¶ 23. Specifically, Instruction Number S-1A, the jury instruction on the elements of aggravated assault stated in pertinent part:

In Count 1, if you believe from the evidence in this case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that:
(1) On or about March 22, 2007, the defendants, EDDIE RAY JONES and HENRY TAYLOR A/K/A “MAIN”, individually or while aiding and abetting and/or acting in concert with each other, did purposely, knowingly or recklessly, under circumstances manifesting extreme indifference to the value of human life, cause serious bodily injury to Camisha Cleveland, and
(2) said injury was caused by the shooting into the street or traffic thereby hitting Camisha Cleveland causing injury to the right side of her head and/or her right ear,
then you shall find the defendants EDDIE RAY JONES and HENRY TAYLOR, guilty of aggravated assault in Count 1.
If the State has failed to prove any one or more of the above elements beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence, then you shall find the defendants not guilty in Count 1.

The trial judge orally explained the jury instructions with the statement that “[Taylor and Jones] are charged with Ag[gra-vated] Assault, and that will be either guilty or not guilty for two defendants .... ” He also stated that “[Taylor and Jones] are both charged with aggravated assault together — well, in one indictment.”

¶ 24. We disagree with the dissent’s interpretation that this language, read as a whole, instructed the jury that if it found that Taylor had acted alone, then it should find Jones guilty. Importantly, the Court also gave an aiding-and-abetting instruction. Instruction Number S-2 stated in pertinent part:

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

¶ 25. In reading the aiding-and-abetting instruction together with the aggravated-assault instruction, it is clear that the jury was instructed appropriately on the applicable law. The jury was informed adequately via these instructions that if one of the defendants were to be found guilty individually, his codefendant could not be found guilty individually without deliberately associating himself in some way with the crime and participating in it. The references in the aggravated-assault instruction to finding “Eddie Ray Jones and Henry Taylor” guilty certainly informed the jury adequately, reading the instructions as a whole, that it could find both defendants guilty only if the jury found that one of these defendants aided and abetted and/or acted in concert with the other in committing the crime of aggravated assault.

¶ 26. Finally, of significant import is the form-of-the-verdict instruction given by the trial judge. This instruction set out all the options available to the jury as to each defendant as to each count of the indictment. We set out here, verbatim, the portion of Instruction Number C-18 concerning the jury’s options for Jones and Taylor as to Count I of the indictment:

The guilt or innocence of each Defendant must be considered separately by you on the evidence and the law. All twelve of you must agree on a verdict as to each defendant in this case.
You will return a separate verdict as to each defendant and each count of the indictment.
Your verdicts as to each count should be written on a separate sheet of paper, need not be signed by you, and may be in either of the following forms:
1 a) If you find the defendant Eddie Ray Jones guilty of Aggravated Assault as charged in the indictment, then the form of your verdict shall be:
“We, the jury, find the defendant, Eddie Ray Jones, guilty of Aggravated Assault as charged in the indictment.”
b) If you find the defendant Eddie Ray Jones not guilty of Aggravated Assault as charged in the indictment, then the form of your verdict shall be:
“We, the jury, find the defendant, Eddie Ray Jones, not guilty of Aggravated Assault as charged in the indictment.”
3 a) If you find the defendant Henry Taylor guilty of Aggravated Assault as charged in the indictment, then the form of your verdict shall be:
“We, the jury, find the defendant, Henry Taylor, guilty of Aggravated Assault as charged in the indictment.”
b) If you find the defendant Henry Taylor not guilty of Aggravated Assault as charged in the indictment, then the form of your verdict shall be:
“We, the jury, find the defendant, Henry Taylor, not guilty of Aggravated Assault as charged in the indictment.”

(Emphasis added.) In reading all the instructions together as a whole, and specifically Instructions S-1A, S-2, and C-18, it is readily apparent that the jury clearly understood that it had to consider each count of the indictment separately as to each defendant and that, as to Count I, the jury could find both defendants guilty, both defendants not guilty, or one defendant guilty and the other defendant not guilty, as to each count.

¶ 27. Nor do we find that the judge’s oral statements explaining the instructions muddied the law; rather, we find that they clarified it. The statement that the charge of aggravated assault “will be either guilty or not guilty for two defendants” clearly separates the verdict between the two individuals. The statement that the defendants “are both charged with aggravated assault together — well, in one indictment[,]” would not lead the jury mistakenly to understand that it could not find one defendant guilty of the crime, and the other not guilty. It must be recalled that this Court reads jury instructions as a whole and not in isolation. Harden, 59 So.3d at 608. Any lingering doubt as to the adequacy of these instructions is removed by the fact that the jury was properly instructed that “[b]efore any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.... ”

¶ 28. Again, as to the second issue, we find the issue to be procedurally barred, but procedural bar notwithstanding, based on our discussion, the issue has no merit.

¶ 29. As to the remaining issues discussed by the Court of Appeals and raised by Jones in his petition for writ of certio-rari, we find that the Court of Appeals very ably discussed these issues and appropriately applied the law to the facts contained in the record; thus, we adopt the Court of Appeals’ analyses as to these remaining issues, which we also find to be without merit. See Glidden, 74 So.3d at 345.

CONCLUSION

¶ 30. Based on today’s discussion, we conclude that Eddie Ray Jones’s conviction for the crime of aggravated assault and his sentence of twenty years as a habitual offender to be served in the custody of the Mississippi Department of Corrections must be affirmed. Thus, we affirm the judgments of the Court of Appeals and the Circuit Court for the Second Judicial District of Bolivar County.

¶ 31. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT COURT FOR THE SECOND JUDICIAL DISTRICT OF BOLIVAR COUNTY ARE AFFIRMED. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAY ALL COURT COSTS, AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.

WALLER, C.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND KING, JJ.

CHANDLER, Justice,

dissenting:

¶ 32. The jury instructions in this case did not correctly announce the applicable law. Instead, an erroneous aggravated-assault jury instruction allowed the jury to find Jones guilty upon a finding that Taylor had acted individually. Reading the jury instructions as a whole, the other instructions did not cure the error — at best, the jury was left with conflicting and confusing instructions. Under these circumstances, there can be no confidence in the jury’s verdict. Therefore, I respectfully dissent. I would reverse and remand for a new trial at which the jury would be correctly instructed.

¶ 33. The jury was given the following instruction on the elements of aggravated assault:

The defendants, Eddie Ray Jones and Henry Taylor a/k/a “Main” have been charged by indictment with the crimes of aggravated assault and possession of a firearm by a convicted felon.
In Count I, if you believe from the evidence in this case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that:
(1) On or about March 22, 2007, the defendants, Eddie Ray Jones and Henry Taylor a/k/a “Main,” individually or while aiding and abetting and/or acting in concert with each other, did purposely, knowingly or recklessly, under circumstances manifesting extreme indifference to the value of human life, cause serious bodily injury to Camisha Cleveland, and
(2) said injury was caused by shooting into the street or traffic thereby hitting Camisha Cleveland causing injury to the right side of her head and/or right ear, then you shall find the defendants Eddie Ray Jones and Henry Taylor, guilty of aggravated assault in Count I.
If the State has failed to prove any one or more of the above elements beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence, then you shall find the defendants not guilty in Count I.

(Emphasis added.) As emphasized by the italicized language, this jury instruction directed the jury to find Jones guilty even if it found that Taylor had acted individually.

¶ 34. “[T]he main ‘purpose of jury instructions is to tell the jury what facts they have to find and who has the burden of proving or disproving those facts.’” Neal v. State, 15 So.3d 388, 397 (Miss.2009) (quoting Hams v. State, 861 So.2d 1003, 1016 (Miss.2003)). “This Court reads jury instructions as a whole and not in isolation.” Harden v. State, 59 So.3d 594, 608 (Miss.2011). If, so read, “the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Williams v. State, 803 So.2d 1159,1161 (Miss.2001).

¶ 35. The aggravated-assault instruction erroneously instructed the jury to find Jones guilty upon a finding that Taylor had acted individually. Although the aiding-and-abetting jury instruction approved by this Court in Milano v. State was given at the State’s request, this instruction did not negate the effect of the erroneous aggravated-assault instruction. See Milano v. State, 790 So.2d 179, 185 (Miss.2001). The aiding-and-abetting instruction provided, in pertinent part:

Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

While the aiding-and-abetting instruction informed the jury that, to find guilt, the defendant had to participate in the commission of the offense, the aggravated-assault instruction told the jury to find Jones guilty even if it found Taylor had acted individually. Thus, the two jury instructions conflicted. “When a jury is given instructions which are in hopeless conflict this Court is compelled to reverse because it cannot be said that the jury verdict was founded on correct principles of law.” Johnson v. State, 908 So.2d 758, 764 (Miss.2005). Because the aggravated-assault instruction and the aiding-and-abetting instruction were in hopeless conflict, the jury verdict was not founded on correct legal principles.

¶36. Further confusion resulted when the trial court explained to the jury just prior to instructing it: “[w]e’ve got three charges. [Taylor and Jones] are charged with Ag[gravated] Assault, and that will be either guilty or not guilty for two defendants, and then you’ve got an individual charge of possession of a firearm.” (Emphasis added.) Then, during the trial court’s reading of the form of the verdict instruction, the court explained “[Taylor and Jones] are both charged with aggravated assault together — well, in one indictment. Then they individually have possession charges of a firearm.” It is plain that these statements reinforced that the jury could reach one of two possible aggravated-assault verdicts: guilty for both Taylor and Jones, or not guilty for both Taylor and Jones. The form-of-the verdict instruction itself could only have compounded the confusion.

¶ 37. I would find that the granting of the aggravated-assault instruction resulted in plain error. The aggravated-assault instruction erroneously charged the jury to find Jones guilty even if it believed Taylor had acted individually. Reading the jury instructions as a whole, the aiding-and-abetting jury instruction was in hopeless conflict with the aggravated-assault instruction, and the two cannot be reconciled. As succinctly stated by Judge Russell in her dissent for the Court of Appeals, if the jury believed Taylor had acted alone, “the jury instructions negate[d] any opportunity for the jury to acquit Jones of aggravated assault.”

¶ 38. The inconsistent verdicts demonstrate a substantial probability that the jury actually relied on the erroneous instructions. The jury found Jones guilty of aggravated assault but also found he had not possessed a firearm. Logically, the jury must have found that Taylor had fired the shot that struck Cleveland, while Jones was an aider and abettor. But the State presented no evidence besides the testimony that Jones had possessed a gun to support the conclusion that Jones was an aider or abettor. Yet, the jury acquitted Jones of possession of a firearm. Because there was no other evidence supporting the jury’s finding that Jones was an aider or abettor, there is a substantial probability that the jury relied on the erroneous instruction to convict Jones. The jury instructions did not “fairly announce the law of the case,” and they resulted in a manifest miscarriage of justice. I would reverse and remand for a new trial.

DICKINSON, P.J., KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . The indictment also alleged that Jones was a habitual offender under Mississippi Code Section 99-19-81 and described Jones's alleged prior felony convictions. The habitual-offender language of the indictment was not read to the jury during voir dire.

      . But we question whether the verdicts in today’s case were inconsistent. If the jury found from the evidence that Jones had aided and abetted Taylor and/or acted in concert with Taylor in committing the aggravated assault, it would not be necessary for the jury to find Jones to have been in possession of a firearm in order to find Jones guilty, along with Taylor, for the crime of aggravated assault.

      . In Sanders, only the weight of the evidence (and not the legal sufficiency of the evidence) was raised in attacking the jury verdict of guilty in killing the grandmother. Id. 503-06.

      . Sanders v. State, 63 So.3d 554, 560-62 (Miss.Ct.App.2010).

      . While we disagree with the dissent’s conclusion that "[fjurther confusion resulted” when the trial judge offered to the jury an oral explanation of the jury instructions prior to the reading of the instructions, we suggest to trial judges that they be cautious in talking with juries concerning the jury instructions. While it is quite appropriate to make general remarks to the jury, either prior to or during the jury-instruction charge, trial judges should always remain vigilant to the ever-present possibility that oral statements to the jury during the jury-instruction charge may be inconsistent with the pronouncements of law contained in the jury instructions. See, e.g., Martin v. State, 415 So.2d 706, 709 (Miss.1982) ("instructions to the jury should be presented in written form only, where possible”); Pearson v. State, 254 Miss. 275, 291, 179 So.2d 792, 799 (1965) ("[Cjircuit judges must give instructions in writing- This mandate to him can not be nullified by his permitting counsel to give an oral instruction for him, or orally alter one already given by him.”).

      . Count I of the indictment charged both Jones and Taylor with aggravated assault concerning the shooting of Camisha Cleveland; Count II charged Jones with being a felon in possession of a firearm; and Count III charged Taylor with being a felon in possession of a firearm.


author: KING, C.J.,

text:
    BRITTON & KOONTZ BANK, N.A. and AmFed National Insurance Company, Appellants v. Florence TOWNSEND, Appellee.
    No. 2010-WC-00535-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied May 22, 2012.
    Certiorari Denied Aug. 23, 2012.
    Daniel Paul Culpepper, James M. Anderson, Ridgeland, attorneys for appellants.
    John T. Ball, Natchez, attorney for ap-pellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   KING, C.J.,

for the Court:

¶ 1. The Mississippi Workers’ Compensation Commission (Commission) ordered Britton & Koontz Bank (Employer) and its workers’ compensation carrier, AmFed National Insurance Company (Carrier), to pay Florence Townsend (Claimant) a lump-sum award of $90,891.47 and interest in the amount of $3,882.15. The Employer/Carrier refused to pay the interest, and the Claimant filed a motion with the Commission seeking to compel payment. The Commission ordered the payment of interest, and the Employer/Carrier appealed to the Adams County Circuit Court. The circuit court affirmed the award of interest, and the Employer/Carrier appeals raising the following issues: (1) whether the Commission has authority to assess the Employer/Carrier with interest and (2) if so, whether the Commission erred in assessing interest to the Employer/Carrier in this matter without an award constituting a final judgment.

¶ 2. Finding the Employer/Carrier did not timely appeal, we dismiss this appeal for lack of jurisdiction.

FACTS

¶ 3. On April 29, 2002, the Claimant, while employed as a bank teller, tripped over a bag of nickels and injured her knee and shoulder. As a result of the injuries, the Claimant required medical attention, including surgery.

¶ 4. On November 12, 2003, Dr. Robert Haimson stated that the Claimant was at maximum medical improvement, but she would still need future care. As a result, a functional-capacity evaluation was conducted on December 16-17, 2003, which resulted in permanent impairment ratings of 0% to the left leg and 12% to the right arm. Because of the Claimant’s impairment ratings to the scheduled members, the Employer/Carrier accepted liability and voluntarily made compensation payments until December 3, 2004, when it unilaterally ceased making payments.

¶ 5. Subsequently, the Claimant’s condition further deteriorated, and on August 16, 2006, Dr. Haimson determined that the Claimant would be limited in returning to work because of the constant pain in her knee and shoulder. Following Dr. Haim-son’s determination, the parties agreed to attempt to resolve the liability on a discounted permanent total disability lump-sum settlement.

¶ 6. On June 7, 2007, the Commission directed the Employer/Carrier to make a lump-sum payment to the Claimant representing the total compensation due to the Claimant for permanent total disability. The Claimant was awarded $90,891.47 in award and $3,882.15 in interest. The Commission found that the Claimant was entitled to interest at the legal rate on compensation payments due from December 2004 until the lump-sum settlement was paid.

¶ 7. The Employer/Carrier paid the Claimant $90,891.47, and on August 3, 2007, counsel for the Employer/Carrier mailed a letter informing the Claimant that there would not be another payment for the amount of interest due. Counsel for the Employer/Carrier explained: “Since this case never went to order, it is our position that the imposition of interest is the equivalent to paying interest on a judgment which does not exist in this particular case.” In response, on May 30, 2008, the Claimant filed a motion to compel payment. On June 24, 2008, a notice of final payment was filed with the Commission, showing the total settlement payments to be $90,891.47. On October 23, 2008, the Commission granted the Claimant’s motion to compel payment. On November 21, 2008, the Employer/Carrier appealed the Commission’s decision to the circuit court. The Commission’s decision was affirmed, and the Employer/Carrier appeals.

ANALYSIS

¶ 8. We need address only one issue, the Employer/Carrier’s failure to file timely an appeal of the Commission’s approval of the lump-sum settlement, which provided the Claimant was entitled to compensation for permanent total disability and interest on those compensation payments. “[T]he timely filing of a notice of appeal is jurisdictional.” Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 929 (Miss.2006) (internal quotations omitted). This case arises from an order issued by the Commission on June 7, 2007. An order of the Commission will be conclusive and binding unless, within thirty days of the date it is entered, a party files a notice of appeal to the circuit court of the county in which the injury occurred. Miss.Code Ann. § 71-3-51 (Rev.2000). Neither party timely appealed the Commission’s order approving the lump-sum settlement. Instead, the Employer/Carrier merely paid the Claimant $90,891.47 and informed her it would not pay the interest assessed.

¶ 9. Because the issue of whether the assessment of interest was proper or not is not timely raised on appeal, neither the circuit court nor this Court has jurisdiction to consider the merits of this case. Therefore, we must dismiss this appeal for lack of jurisdiction. See Busby v. Anderson, 978 So.2d 637 (Miss.2008); Leake County Coop. v. Barrett’s Dependents, 226 So.2d 608 (Miss.1969); Dudley v. Harris, 979 So.2d 692 (Miss.Ct.App.2007).

¶ 10. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


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

text:
    CITY OF JACKSON, Mississippi, Appellant v. Myrt Naylor RHALY, and Sons, Henry Crawford Rhaly, Jr., John Thomas Rhaly, William DeWitt Rhaly, Bill Alan Wilson, and Wife, Linda Gay Wilson, Mary Sue Creel, Hilda Louise Ferron and Amy Jo Baxter, Appellees.
    No. 2009-CA-00350-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.
    Rehearing Denied Aug. 23, 2011.

      Pieter John Teeuwissen, Claire Barker Hawkins, attorneys for appellant.
    William Joseph Kerley, John G. Clark, Pascagoula, attorneys for appellees.
   ISHEE, J.,

for the Court:

¶ 1. Myrt Naylor Rhaly, Henry Crawford Rhaly Jr., John Thomas Rhaly, William DeWitt Rhaly, Bill Alan Wilson, Linda Gay Wilson, Mary Sue Creel, Hilda Louise Ferron, and Amy Jo Baxter (collectively, the Rhalys) were owners of property in Jackson, Mississippi, located near Eubank’s Creek, an improved drainage ditch. The Rhalys brought suit against the City of Jackson, alleging that its failure to maintain the ditch had caused their properties to flood on two separate occasions. Shortly before trial, the trial court struck the City’s answer for a discovery violation. The Rhalys were awarded a default judgment, and the City appeals.

FACTS

¶ 2. The Rhalys’ homes were flooded twice — first on July 30, 2002, and again on April 6, 2003. After the first flood, the Rhalys brought suit against the City, alleging that the ditch had not been properly maintained, and against BFI, Inc. and Waste Management of Mississippi, Inc., alleging that they each negligently placed a dumpster too close to the ditch. The Rhalys alleged that both dumpsters had been carried into the ditch by runoff, where they had combined with silt, vegetation, and debris to obstruct the ditch at the State Street bridge. The obstruction, the Rhalys alleged, had caused the ditch to overflow and flood their nearby properties. After the 2003 flood, the Rhalys brought another suit, alleging that the second flood had been caused the same way, except that it involved only a single dumpster owned by Waste Management. The trial court consolidated the two cases.

¶ 3. The City timely filed answers to the Rhalys’ suits, but the trial court struck the answers as a sanction for a discovery violation. In their discovery requests, the Rhalys had asked for the production of “[a]ny standard operating procedure[s] (SOPs) which govern the site of the subject incident.” The City’s response was that none existed. About a week before the scheduled trial date, the Rhalys discovered that the City had been operating under a manual, titled as “Streets, Bridges, and Drainage Division of the Public Works Departmeni/City of Jackson, Mississippi/Operations and Maintenance/Policy Manual.” The Rhalys found the manual while reviewing the trial court record in another flood case, City of Jackson v. Internal Engine Parts Group, Inc.

¶ 4. In the Internal Engine Parts case, the City originally intended to use the manual as part of its defense. The manual was first produced in that action as an exhibit to the testimony of a proffered witness for the City. However, the City did not disclose that witness (and six others) until approximately one week before trial, and the trial court did not allow the newly identified witnesses to testify. The trial court did, however, allow the plaintiffs to introduce the manual into evidence at the trial. A city employee, who had previously been designated as the City’s Rule 30(b)(6) representative, testified that the manual had been in use by the City at the time of the August 9, 2001, flood at issue in that case. The manual’s use in the Internal Engine Parts case was a contested issue both in the trial and the subsequent appeal. In short, the record from that case demonstrated that the manual had been in use by the City prior to both floods in the Rhaly case and that the City — both its employees and its counsel — had been aware of the manual at the time it made the false discovery responses to the Rha-lys.

¶ 5. After uncovering the manual, the Rhalys sought sanctions against the City for the discovery violation. The trial court found that no evidence had been produced that the City intentionally concealed the manual from the Rhalys. The trial court concluded, however, that the City’s false responses reflected at least a “gross indifference” to its discovery obligations. The trial court sanctioned the City by striking its answer and entering a default judgment for $149,872.10. The Rhalys were also awarded $31,226.84 for attorneys’ fees and $3,862.54 for expenses.

¶ 6. Appeals were taken by the City from the default judgment entered against it and by the Rhalys from the summary judgment granted to Waste Management. This Court deconsolidated the case on appeal. In the Waste Mgmt. appeal, we reversed the summary judgment granted to Waste Management, finding genuine issues of material fact as to whether the dumpster had been negligently left unsecured near the ditch and whether it had been a substantial factor in causing the floods. Rhaly v. Waste Management of Miss., Inc., 43 So.3d 509 (Miss.Ct.App. 2010). The present case concerns only the default judgment granted against the City.

DISCUSSION

¶ 7. Whether to impose sanctions for discovery abuses is entrusted to the trial court’s discretion. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 948 (¶ 24) (Miss.2000). “The power to dismiss is inherent in any court of law or equity, being a means necessary to the orderly expedition of justice and the court’s control of its own docket.” Id. The trial court has great latitude in determining what sanctions are appropriate. Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss.1997). Nonetheless, “the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances.” Id.

¶ 8. “Rule 37 of the Mississippi Rules of Civil Procedure is designed to vest with the trial court great latitude in deciding when and what sanctions will be imposed for a discovery violation.” Marshall v. Burger King, 2 So.3d 702, 706 (¶ 8) (Miss.Ct.App.2008). Consequently, we review the trial court’s decision to grant discovery sanctions for an abuse of discretion. Pierce, 688 So.2d at 1388. If the trial court applied the correct legal standard, we will affirm unless we have a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Id.

¶ 9. The Mississippi Supreme Court has held that:

[Dismissal is to be used as a sanction only as a last resort. Lower courts should be cautious in either dismissing a suit or pleadings or refusing to permit testimony.... The reason for this is obvious. Courts are courts of justice not of form. The parties should not be penalized for any procedural failure that may be handled without doing violence to court procedures.

Robert v. Colson, 729 So.2d 1243, 1247-48 (¶ 28) (Miss.1999) (internal quotations omitted). The Court has outlined four factors to assist in evaluating whether dismissal is an appropriate sanction for a discovery violation. These factors “are considerations and not four absolute requirements.” Marshall, 2 So.3d at 706 (¶ 9). They are:

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

Id. (quoting Pierce, 688 So.2d at 1389).

¶ 10. The City contends that the trial court abused its discretion in awarding the “death penalty” sanction. Its principal argument is that the discovery response at issue was not, in fact, false. It also claims that the manual was disclosed in discovery and promised to be produced, but, as a result of a simple oversight, was never actually produced.

¶ 11. The full text of the Rhaly’s request for production of documents and the City’s responses are as follows:

REQUEST NO. 2: Any standard operating procedure (SOPs) which govern the site of the subject incident.
RESPONSE NO. 2: None. Will supplement upon receipt of any information.
SUPPLEMENTAL TO RESPONSE NO. 2: There was no standard operating procedure which governed water quantity control in the City of Jackson at the time of the incident. Matters were handled by exterior or interior complaint with routine inspections made before and after rain events on problem areas. Beginning November 26, 2004, the City adapted from the Operations and Maintenance Manual prepared for water quality requirements of the EPA a Storm Water Drainage Maintenance Plan for water quantity purposes. A copy is produced.

¶ 12. The City admits that the manual was a “standard operating procedure” and that it should have been produced. It also admits that the manual was not actually produced. The contention, however, is that the manual was disclosed and a copy was promised, but inadvertently, it was not produced. The City accuses the Rhalys of ignoring a “clear reference” to the manual in discovery and “playing gotcha games” on the eve of trial.

¶ 13. We are satisfied that is not the case. Clearly, the City’s initial response falsely stated that there were no standard operating procedures. It was followed by a supplemental response that specifically and unequivocally stated: “There was no standard operating procedure which governed water quantity control in the City of Jackson at the time of the incident.” This was also false. Acknowledging this, the City contends that the supplemental response must be considered in its entirety. It claims that the last two sentences contain a “clear reference” to the manual and a promise that it would be produced.

¶ 14. The City’s response did mention an “Operations and Maintenance Manual,” but if this is a reference to the manual at issue, it is not a clear one. The response describes the manual only as having been “prepared for water quality requirements of the EPA.” Not only did this fail to inform the Rhalys of its relevance (since water quality was not at issue in the Rha-lys’ suit), but if it is describing the manual at issue, that description appears to be inaccurate. The manual says almost nothing about “water quality,” and the record contains no reason to believe it was prepared for the EPA. According to the manual, its “purpose ... is to provide the Streets, Bridges[,] and Drainage Division of the Public Works Department of the City of Jackson with operation and maintenance policies for the management of the City’s storm water drainage system.” The maintenance it discusses pertains almost exclusively to controlling erosion and keeping the City’s drainage system free of obstructions. If anything, the manual appears to address water “quantity” rather than “quality” as claimed in the response. Additionally, contrary to the City’s contention, it is plain that the document the City stated would be produced in its response is not the manual, but the “Storm Water Drainage Maintenance Plan,” which was not relevant because it was adopted after the floods at issue. We cannot say that the trial court erred in finding the City’s discovery response to be false.

¶ 15. The City next attacks the legal standard applied by the trial court. The City asserts, correctly, that the trial court was required to find that its discovery failure was a product of wilfulness in order to support the severe sanction of dismissal. Our supreme court has held that “dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply.” Wood ex rel. Wood v. Biloxi Pub. Sch. Dist, 757 So.2d 190, 193 (¶ 9) (Miss.2000). The trial court specifically found that there was no evidence the City had intentionally concealed the manual, and the City argues that this precludes a finding of wilfulness. We do not agree.

¶ 16. The supreme court has held that “[a] finding of willfulness may be based upon either a willful, intentional, and bad faith attempt to conceal evidence or a gross indifference to discovery obligations.” Amiker, 796 So.2d at 951 (¶ 34) (quoting Pierce, 688 So.2d at 1388). The trial court specifically found that the City’s false response, though not proven to be intentional, reflected at least a “gross indifference to discovery obligations.” Our supreme court stated in Amiker that gross indifference is the functional equivalent of wilfulness. Id. The New Mexico Supreme Court, reaching the same conclusion, elaborated on its holding:

[Wjhether [the] original failures to make ... discovery were the result of a willful, intentional and bad faith attempt to conceal evidence, as the trial court found, or were due to a gross indifference to its discovery obligations, is immaterial. The willfulness required to sustain the severe sanction [of dismissal] may be predicated upon either type of behavior. The two types of misconduct differ only in degree as to culpability, and they differ not at all in terms of the adverse effects ... on the due process rights of [the other party] and the integrity of the truth-seeking function of the trial court.

United Nuclear Corp. v. Gen. Atomic Co., 96 N.M. 155, 629 P.2d 231, 314 (1980) (citations omitted). Wilfulness was required to support the dismissal sanction, but this does not require an intentional attempt to conceal the evidence. A finding of a gross indifference to discovery obligations is sufficient to satisfy the wilfulness requirement.

¶ 17. The Mississippi Supreme Court has also stated that “dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.” Pierce, 688 So.2d at 1389. The trial court apparently did accept the city attorney’s representation that the discovery failure was attributable to its office, but there are two important things to note. First, this is only one factor to be considered by the trial court, in its discretion; the supreme court stated that dismissal may be inappropriate if the discovery failure is plainly attributable to the attorney. Second, the attribution of fault to the city attorney is not at all clear or plain in the record. It stems only from a bare representation by the City’s counsel in arguments that the false response was a product of staff turnover during the prior city attorney’s administration. The City has never offered a more detailed explanation, and it has never offered a basis for even this representation. Instead, it appears to be speculation by the City’s present counsel. The City has not produced testimony or affidavits from counsel that was actually involved in composing the discovery response, nor has it offered testimony from City employees or representatives. In fact, despite an offer from the trial court, the City declined to offer any evidence whatsoever to explain its discovery failure. We cannot say from the record that the fault is “plainly” attributable to counsel.

¶ 18. The City next contends that the trial court erred in not determining the probative value of the manual. One of the factors we are to consider is whether the Rhalys’ preparation for trial was substantially prejudiced. Pierce, 688 So.2d at 1388.

¶ 19. According to the manual, it “specified] responsibilities and procedures for the inspection of and maintenance of storm water systems” within the City of Jackson. It defined routine maintenance as “removal of debris, accumulated sediment, trash, naturally occurring vegetation and other obstructions which might reduce the flow.” The manual also included a schedule for routine inspection of drainage ditches and procedures for handling and recording complaints. As we said, the Rhalys’ suits alleged that the City negligently failed to maintain Eubanks Creek, an improved drainage ditch. The record in the Internal Engine Parts case established that the manual had been adopted by the City prior to both floods in the present case.

¶ 20. The City is correct that the probative value of the manual is not readily apparent from the record. Nonetheless, the relevant concern is not the probative value of the manual. Discovery in this case proceeded for about three years, and the Rhalys contend that they were wrongfully denied the use of the manual in investigating the case, deposing witnesses, and so forth. The trial court found “substantial prejudice” to the Rhalys, but the court did not make specific findings on this factor. However, the supreme court has stated that “there is no requirement that the defendant be substantially prejudiced by the absence of evidence.” Pierce, 688 So.2d at 1391. The supreme court continued: “When a party has frustrated the orderly judicial process by false or erroneous responses to interrogatories, that party should not be able to argue that its own conduct has removed it beyond the reach of sanctions.” Id. at 1390. “It would be ridiculous to allow a party who completely thwarts discovery to escape penalty simply because it could not be proven that other litigants were in fact deceived by such misconduct or actually relied upon it.” Id.

¶ 21. Finally, the City contends that the trial court did not have the authority to order a sanction under Rule 37 of the Mississippi Rules of Civil Procedure without first entertaining a motion to compel discovery. The City asserts that it was entitled to an opportunity to cure the discovery failure before sanctions could be awarded. We think this argument is plainly without merit. While some of the language in Rule 37 does suggest that sanctions may only be awarded following an order compelling discovery, Rule 37(e) has no such requirement. It states:

In addition to the application of those sanctions, specified in Rule 26(d) and other provisions of this rule, the court may impose upon any party or counsel such sanctions as may be just, including the payment of reasonable expenses and attorneys’ fees, if any party or counsel (i) fails without good cause to cooperate in the framing of an appropriate discovery plan by agreement under Rule 26(c), or (ii) otherwise abuses the discovery process in seeking, making or resisting discovery.

Moreover, as we have previously stated, the trial court also possesses the inherent authority to dismiss a case as part of its power to control its own docket. Amiker, 796 So.2d at 948 (¶ 24).

¶ 22. “Dismissal with prejudice is a sanction that should be imposed only in those rare instances where the conduct of a party is so egregious that no other sanction will meet the demands of justice.” Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 997 (¶26) (Miss.1999). Nonetheless, “[t]he control of discovery is a matter committed to the sound discretion of the trial judge.” Holland v. Mayfield, 826 So.2d 664, 673 (¶ 37) (Miss.1999). After a detailed discussion of the relevant factors, the trial court concluded that lesser sanctions would not suffice. This has not been shown to be an abuse of discretion. We must therefore affirm the trial court’s judgment.

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

LEE, C.J., BARNES, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, P.J., AND MAXWELL, J. MYERS, J., NOT PARTICIPATING.

IRVING, P.J.,

Dissenting:

¶ 24. This appeal concerns the propriety of sanctions granted against the City of Jackson for failing to produce a document sought by the appellees during discovery. The circuit court granted sanctions against the City in the amount of $184,961.48, plus interest at the rate of 8 percent. This amount represents the total amount of damages, plus attorneys’ fees and expenses, allegedly suffered by the appellees as a result of the City’s negligence that caused the flooding of appel-lees’ property. Effectively, the circuit court granted a default judgment against the City.

¶ 25. The majority finds no abuse of discretion and affirms. With due respect, I find that on the unique facts presented here, the circuit court abused its discretion in granting such draconian sanctions and that the majority errs in affirming that abuse. While I believe some sanctions were appropriate, I cannot agree that the sanctions ordered by the circuit court were appropriate. Therefore, I dissent. I would reverse and remand for less severe sanctions.

¶ 26. The appellees sued the City, seeking damages allegedly suffered by them when Eubanks Creek overflowed and flooded their property. According to the appellees’ complaint, the City negligently allowed the channel of Eubanks Creek to be blocked by garbage dumpsters, and this blockage caused the creek to overflow.

¶ 27. In the course of prosecuting their lawsuit, the appellees propounded discovery to the City wherein they sought the production of “any standard operating procedure (SOPs) [sic] which govern [sic] the site of the subject incident.” The City responded that it had none but that it would supplement upon receipt of any information. It later supplemented its response with the following:

There was no standard operating procedure which governed water[-]quantity control in the City of Jackson at the time of the incident. Matters were handled by exterior or interior complaint with routine inspections made before and after rain events on problem areas. Beginning November 26, 2004, the City adapted from the Operations and Maintenance Manual prepared for water[-]quality requirements of the EPA [Environmental Protection Agency] a Storm Water Drainage Maintenance Plan for waterf-]quantity purposes. A copy is produced.

(Emphasis added). However, the referenced document was not produced, and neither a follow-up request for production nor a motion to compel was filed by the appellees. It is my understanding from the record that the document referred to by the City in its supplemental response is a document entitled, “Streets, Bridges, and Drainage Division of the Public Works Department: City of Jackson, Mississippi Operations and Maintenance Policy Manual” (operations manual). The City’s supplemental response was made on February 4, 2005. The matter was not scheduled for trial until April 7, 2008. It is not entirely clear to me from the record when the request was made of the City, but it appears that the request was made on July 12, 2004, approximately four months prior to the period of time referenced in the City’s supplemental response.

¶ 28. While examining the file of another case filed against the City, the appellees discovered the operations manual in an evidence cabinet in the circuit clerk’s office. This discovery occurred seven days prior to trial.

¶ 29. It is clear that the City did not possess “any standard operating procedure (SOPs) [sic] which govern [sic] the site of the subject incident,” that being Eubanks Creek. The operations manual was broader in scope, as it addressed “operation and maintenance policies for the management of the City’s storm[-]water[-]drainage system.” However, I do not intend to suggest that this discrepancy in title provides justification for the City not producing the manual. It does not. Rather, I think that it may explain, at least in part, why, given the constant turnover in the City’s legal department, it could have easily and innocently been overlooked by someone who did not have a long history in the legal department.

¶ 30. While it is undisputed that the City did not produce the manual, the production of which was required by the discovery that the appellees sought, it is clear to me that the evidence does not support a finding that the City’s failure to produce the manual was either wilful, intentional, or indicative of a gross indifference to its obligation to produce it. In its order granting sanctions, the circuit court stated: “The court does not find that the City intentionally concealed or knowingly concealed the document as the [c]ourt is aware that some turnover of personnel exists in the City Attorney’s Office.” In his bench opinion, the circuit judge noted that there “ha[s] been a change in personnel!,] as shown by the record!,] in the City [Attorney's [0]ffice over the last several years.” Notwithstanding this finding, the circuit court granted the sanctions, as it found that the City showed “gross indifference to its discovery obligations.” The circuit court based its decision to grant the “death!-] penalty” sanction upon the holdings in Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss.1997) and Smith v. Tougaloo College, 805 So.2d 633 (Miss.Ct. App.2002). In my judgment, the holding in neither of these cases require the result reached by the circuit court, because the evidence does not show that the City acted with gross indifference to its discovery obligations.

¶ 31. While the City’s supplemental response did not specifically identify the operations manual by title, it was at least as specific as the appellees’ request. Neither the appellees’ request nor the City’s response was specific. The importance of the City’s imperfect supplemental response is that it militates against a finding that the City was grossly indifferent to its discovery obligation. Otherwise, the City would not have identified a document, which arguably is the document in question even though the title utilized in the City’s response is not the precise title of the document. Importantly, there has been no showing that the City’s supplemental response was referring to a document other than the operations manual. The majority infers that the City’s supplemental response did not provide to the appellees any notice of the operations manual because their lawsuit was not about water quality. I agree with the majority that the appellees’ lawsuit was not about water quality, but neither was the City’s response. Properly read, the City stated in its supplemental response that beginning in November 2004, it had adapted a “Storm Water Drainage Maintenance Plan for water[-]quantity purposes” from the Operations and Maintenance Manual prepared for water[-]quality requirements by the EPA. I interpret this to mean that the City utilized the EPA’s Operations and Maintenance Manual for Water Quality as a pattern to prepare the City’s storm-water-drainage-maintenance plan for water quantity, not maintenance plan for water quality, as interpreted by the majority. Clearly, the appellees were placed on notice by the City’s supplemental response that the City possessed a storm-water-drainage-maintenance plan for water quantity. Water quantity in the context of a storm[-]water-drainage-maintenance plan can only mean, in my judgment, a plan for managing the flow, or quantity, of storm water through the City’s drainage systems.

¶ 32. For the reasons discussed, I dissent. I would reverse the judgment of the circuit court and remand this case to the court for less severe sanctions that would allow proper punishment for the City’s failure to produce the document but not prevent the City from defending against the appellees’ complaint in a trial to be had in the matter.

GRIFFIS, P.J., AND MAXWELL, J., JOIN THIS OPINION.

      . We shall refer to it simply as "the manual.”

      . The case was heard on appeal as City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60 (Miss.2005).

      . See M.R.C.P. 36(b).

      . The city attorney represented during oral argument before this Court that no one presently employed in his office was there at the time the false discovery responses were made.