author: ROBERTS, J.,

text:
    Q.A., a Minor, by and Through D.W. and S.W., His Grandparents and Guardians, as Next Friend, Appellant v. PEARL PUBLIC SCHOOL DISTRICT, Appellee.
    No. 2010-CA-01610-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.
    Rehearing Denied Feb. 14, 2012.
    Certiorari Denied May 10, 2012.

      Carroll Rhodes, Hazlehurst, attorney for appellant.
    Roy A. Smith Jr., Jackson, Steven James Griffin, Flowood, attorneys for ap-pellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Through his grandparents and guardians, Q.A. sued the Pearl Public School District (PPSD) after Q.A. was injured during an after-school activity. The Rankin County Circuit Court granted PPSD’s motion for summary judgment on the basis that PPSD was immune from suit by virtue of the discretionary-function provision of the Mississippi Tort Claims Act (MTCA). Aggrieved, Q.A. appeals and argues that the circuit court erred when it concluded that there were no genuine issues of material fact that the discretionary-function provision of the MTCA applied. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Q.A.’s injury occurred after a meeting of the Naval Junior Reserve Officer’s Training Corps (ROTC) at Pearl High School. Q.A., then seventeen years old, and T.B. were both cadets in the ROTC, an after-school activity for which they received course credits. Before an ROTC meeting, T.B. moved his car from the student parking lot to an area characterized as the “bus parking lot” so it would be closer when the ROTC meeting was over. During his deposition, T.B. explained that a portion of that parking lot was “where the teachers would normally park during school hours, but it was empty, so [ROTC cadets] parked there.”

¶ 3. After the ROTC meeting, T.B. left the school building and walked to his car so he could leave the campus for the day. The events that followed led to Q.A.’s lawsuit. During his deposition, T.B. testified:

And so myself and several of the other cadets who had pulled to the front or were waiting on rides went to the bus parking lot, and we all just kind of sat around and talked momentarily. Some of the students, their parents came and picked them up, and so I got — we were talking, [Q.A.] and I were, and he had sat on my car.
And so I got in my car, and I was telling him, you know, “[Q.A.], I’m fixing to go.” And he was sitting on my car, and he wouldn’t get off. And I thought he was kidding at first. You know, we were just playing around like boys do. And I told him several — repeatedly several, several times, “[Q.A.], I’m leaving.” And I can’t remember exactly to the extent of what he had said, but he was like, “No, [I am] not getting off your car.” Just, you know — and I said, “[Q.A.], I’m fixing to crank up my car. I [have] got to go.”
And I cranked it up, and he still wouldn’t get off. I told him several times again, and I said, “Look, man, I’m changing to my song. I’m going home. I’m flipping through the radio. As soon as the song comes on, I’m getting out of here.” And he just sat on my car. And so the song came on, and I gently put the car into reverse and backed up. And he still wouldn’t get off, and [I] pulled it into drive.
And as I started pulling away, [Q.A.] was sitting Indian style, and he had ahold [sic] onto one of my windshield wipers. And as I pulled away, I made a slight turn, and I guess he just wasn’t prepared for it. And he lost his grip, and he fell off the hood of my car and hit his head on the asphalt. And as soon as I saw that he wasn’t — he was laying [sic] there and was not getting up, I immediately turned around, came back, parked the car, shot it into park and turned it off and got out there beside him, waited [until] the proper help came just to — I didn’t know what was going on, but I knew something bad had happened.

¶ 4. Beverly Glover had been parked nearby. While waiting on her granddaughter to be dismissed from a different after-school activity, Glover saw the events that led to Q.A.’s injury. During her deposition, she testified as follows:

[T.B.] was walking to his car, and [Q.A.] was walking with him. And they were just kind of — [Q.A.] mostly was jumping around and laughing and carrying on.
And [T.B.] got in the car, and [Q.A.] was jumping around at the door of the car and stuff. And [T.B.] said, “Man, I’ve got to go.” And [Q.A.] jumped up on the hood sitting down — just jumped up and sat down on the hood of [T.B.]’s car.
And [T.B.] kept saying — leaning out the window saying, “Come on, man, I’ve got to go. Get off the car. I’m not kidding. You’re going to make me late. I’m going to get in trouble.”
And he cranked the car up, and I think he even opened the door and got back out and said, “[Q.A.], man, get off the car. Seriously, you’re going to get me in trouble and make me late. I have got to go.” And [Q.A.] wouldn’t get off. He just kept laughing at [T.B.] and stuff.
So [T.B.] got back in the car, and he put the car in reverse. And I think I turned around then to see what they were doing. Instead of just looking in the mirror, I had turned around and was watching them. And [T.B.] was slowly backing the car up, as if to say to [Q.A.], “I’m serious that I’ve really got to go. Get off the car.” He was just backing up slow, to get him to get off, I guess.... And so [Q.A.] kind of rolled across the hood of the car, like he was going to roll across and stand up. But when he rolled across the hood of the car, then I didn’t see him anymore. He was on the ground.

¶ 5. During his own deposition, Q.A. explained that he had no memory of the events that led to his injury. However, he also explained that other students had told him that he was merely leaning on T.B.’s car, instead of sitting on it, but none of those students were deposed. In any event, Q.A.’s notice of claim described Q.A.’s injuries as follows:

[Q.A.] had a concussion and bleeding on the brain. He underwent brain surgery. [Q.A.] has a titanium plate at the surgery site. [He] was in the hospital for more than one week, and he missed about three additional weeks of school. [He] was unable to return to school until the first of November, 2007.[He] endured re-occurring headaches for a while. He had seizures while in the hospital, and he had problems with short term memory. [Q.A.] has undergone a period of depression, and he still suffers bouts of depression. He also suffers anxiety, anger, embarrassment[,] and humiliation, and he has a permanent scar as a results [sic] of his injury.

Although not mentioned in Q.A.’s notice of claim, Q.A. stated during his deposition that he lost his senses of taste and smell when he hit his head.

¶ 6. Through his grandparents and guardians, Q.A. sued PPSD and claimed that it was negligent because it had failed to monitor the student parking lot or have “teachers, campus security, or administrators present after [ROTC] practice; and [it][had] fail[ed] to block the parking lot and deny access after school hours.” Q.A. requested approximately $970,000 in damages. PPSD denied that it was liable. It later filed a motion for summary judgment and argued that there were no genuine issues of material fact regarding whether it was immune from suit by virtue of the MTCA. The circuit court agreed, granted Pearl’s motion for summary judgment, and dismissed Q.A.’s suit with prejudice. Aggrieved, Q.A. appeals.

STANDARD OF REVIEW

¶ 7. Under the circumstances, our standard of review is as follows:

This Court utilizes a de novo standard to review the trial court’s grant or denial of summary judgment. Evidence will be analyzed in the light most favorable to the party opposing the motion. The pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, properly before the trial court, will be reexamined by this Court in order to determine if there is any genuine issue of material fact. Summary judgment is proper if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Strange ex rel. Strange v. Itawamba County Sch. Dist., 9 So.3d 1187, 1189 (¶ 5) (Miss.Ct.App.2009) (internal citations and quotations omitted).

ANALYSIS

¶ 8. This appeal turns on the application of the MTCA, which provides that the State of Mississippi and its political subdivisions “are not now, have never been and shall not be liable, and are ... immune from suit” for its wrongful or tortuous acts or omissions. Miss.Code Ann. § 11-46-8(1) (Rev.2002). However, the MTCA waives sovereign immunity for claims arising out of the torts of governmental entities and their employees while acting within the course and scope of their employment. Miss.Code Ann. § 11-46-5(1) (Rev.2002).

¶ 9. A school district is considered a “political subdivision” and a “governmental entity” under the MTCA. Miss.Code Ann. § ll-46-l(g) and (i) (Supp.2011). The MTCA provides that certain circumstances are exempted from this waiver of immunity; thus, the governmental entity is not liable. See Miss.Code Ann. § 11-46-9 (Supp.2011). One such instance is when a governmental entity and its employees, acting within the course and scope of their employment, have a claim against them “[b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee ... whether or not the discretion be abused.” Miss.Code Ann. § ll-46-9(l)(d) (Supp. 2011).

¶ 10. We must, therefore, determine whether PPSD’s duty to monitor parking lots while after-school activities are being dismissed implicates a discretionary duty. In Jones v. Mississippi Department of Transportation, 744 So.2d 256, 260 (¶ 11) (Miss.1999) (citing United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)), the Mississippi Supreme Court adopted the two-part “public policy function” test to determine if governmental conduct is discretionary. First, it must be determined whether the act at issue involved “an element of choice or judgment.” Id. at 260 (¶ 10) (citation omitted). If so, it must then be determined “whether the choice involved social, economic, or political policy.” Id.

¶ 11. We conclude there is no genuine issue of material fact regarding whether the decision to supervise the parking lot at issue in this case involved an element of choice or judgment. As PPSD notes, no Mississippi statute mandates that a school district monitor a parking lot more than an hour after school. Similarly, no Mississippi statute requires that a school district assume that students leaving an after-school activity are behaving in a disorderly manner when there are no reports of such behavior. It is important to note there is no evidence that PPSD ignored reports that ROTC students engaged in disorderly conduct after being dismissed from ROTC meetings. In fact, there is no evidence in the record to contradict the conclusion that Q.A.’s injury was the first such report of any conduct that could be described as disorderly.

¶ 12. We further find that there are no genuine issues of material fact regarding the second prong of the discretionary-function test. That is, there are no genuine issues of material fact regarding whether PPSD’s decision not to have teachers or administrators monitoring the parking lot at issue involved economic policy. The second prong protects:

discretionary actions or decisions based on considerations of public policy. The purpose is to “prevent judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” The pertinent inquiry, then, is whether the decision “implicates the exercise of a policy judgment of a social, economic, or political nature.”

Strange, 9 So.3d at 1191 (¶ 11) (quoting Dotts v. Pat Harrison Waterway Dist., 933 So.2d 322, 327 (¶ 15) (Miss.Ct.App.2006)) (internal citations omitted). This Court further noted that it was mindful that “application of the public policy prong of the discretionary function test does not require proof of the thought processes of pertinent decision makers. Rather, the focus is on the nature of the actions taken, and whether they are susceptible to policy analysis.” Id. at (¶ 12) (quoting Dotts, 933 So.2d at 328 (¶ 16)) (internal citations omitted). “[0]nly those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” Id. (quoting Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1047 (¶ 11) (Miss.2002)).

¶ 13. PPSD would be forced to pay employees overtime to monitor the parking lot and every other conceivable place where students could engage in disorderly conduct during after-school hours until verifying that every single student had left the campus. Alternatively, PPSD would be required to cut the time that employees could allocate to after-school activities because it would be necessary for teachers and administrators to spend a significant amount of time attempting to monitor the numerous places where students could be after being dismissed from after-school activities. Consequently, PPSD had to apply its discretion when deciding whether it should require teachers and/or administrators to remain on the school’s campus to monitor students who were being dismissed from after-school activities. It follows that PPSD is immune from suit by virtue of the MTCA’s provision regarding immunity for discretionary functions.

¶ 14. Q.A. argues that PPSD’s duty to supervise students was ministerial, based on the following language contained within Mississippi Code Annotated section 37-9-69 (Rev.2007), which states:

It shall be the duty of each superintendent, principal, and teacher in the public schools of this state to enforce in the school the courses of study prescribed by law, or by the state board of education, ... and to observe and enforce the statutes, rules[,] and regulations prescribed for the operation of schools. Such superintendents, principals^] and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.

It bears mentioning that section 37-9-69 requires that school administrators and teachers “hold ... pupils to strict account for disorderly conduct ... on the way from school.” Section 37-9-69 does not require administrators and teachers to guarantee that no students will be injured due to unforeseeable disorderly conduct.

¶ 15. Nevertheless, this Court recently rejected a similar argument regarding ministerial duties in Strange, 9 So.3d at 1193 (¶ 20). The plaintiff in Strange had been injured after he fell out of the back of a pickup truck while riding from class to football practice. Id. at 1188 (¶2). Arguing that the school had a ministerial duty to supervise students, the plaintiff in that case claimed, based on L.W. v. McComb Separate Municipal School District, 754 So.2d 1136, 1145 (¶ 37) (Miss.1999): “7‘there [was] a ministerial aspect’ because state and federal law place a duty of ordinary care on school personnel to minimize risk of personal injury and to provide a safe school environment.” Strange, 9 So.3d at 1192 (¶ 13). This Court held:

[Wjhile there may be a fact issue regarding whether “surfing” (not just riding) in the back of a pickup truck could be considered “disorderly conduct” within the meaning of the statute, we find this analysis improper. First, there is no evidence that the school’s personnel knew students were committing the behavior at issue, as they did in L.W. and merely did nothing about it. If the District personnel had actually seen [the student] surfing in the back of a moving pickup and done nothing to stop it, there may have been a fact issue regarding whether they used ordinary care to prevent disorderly conduct under section 37-9-69.

Id. at 1192-93 (If 19). In L.W., the supreme court found that the discretionary-function exemption of Mississippi Code Annotated section ll-46-9(l)(d) did not apply because: two teachers had heard one student threaten another student during two separate instances; those two teachers did nothing about those two threats; and after school on the same day that the aggressor student had made the threats, the aggressor student beat and sexually assaulted the other student whom he had threatened. Id. at 1137 (¶¶2-3), 1142 (¶ 27). The supreme court found that Mississippi Code Annotated section 37-9-69 applied and that school personnel could have and should have prevented the disorderly conduct at the school. Id. at 1142 (¶ 25). The school’s knowledge of the threats by one student against another student — and the school’s failure to do anything to hold the aggressor student accountable for his disorderly conduct— eliminated any discretionary function by the school, so the application of the statute made the decision “ministerial,” and the school was not immune. Id. at 1142 (¶ 27). Similarly, in Lang v. Bay St. Louis/Waveland School District, 764 So.2d 1234 (Miss.1999), the Mississippi Supreme Court held that a school district had a ministerial duty to “hold students to strict account for disorderly conduct at school” after a student who had been sitting on a seven-foot wall fell and injured himself while attempting to avoid an altercation with other students. Id. at 1235 (¶ 3), 1241 (¶ 29). Although not discussed as part of the supreme court’s reasoning that the discretionary-function provision did not apply in Lang, there was evidence in that case that: students frequently sat on the wall; there were no written rules or signs that prohibited students from sitting on the wall; and students were sometimes told to get down from the wall. Id. at 1242 (¶ 34).

¶ 16. Here, there is no evidence PPSD had notice or reason to believe ROTC cadets or any other students were behaving in a disorderly manner in the parking lot at issue after ROTC meetings. There is, likewise, no evidence PPSD had reason to believe that students who parked in the parking lot at issue behaved in a manner that required supervision. Having found there are no genuine issues of material fact regarding either of the two-prong tests outlined in the discretionary-function test, we find that the discretionary-function provision of the MTCA provides PPSD with immunity from Q.A.’s claim. It follows that we affirm the judgment of the circuit court.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, CARLTON AND RUSSELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. MAXWELL, J„ NOT PARTICIPATING.


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Willie Joe ROSS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01651-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.
    Willie Joe Ross, appellant, pro se.
    Office of the Attorney General by Laura H. Tedder, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Willie Joe Ross appeals the trial court’s denial of his motion for post-conviction relief (PCR) as time-barred pursuant to Mississippi Code Annotated section 99-39-5 (Supp.2011). Ross raises the following assignments of error: whether (1) his claim of an illegal sentence is excepted from the time bar; (2) the trial court lacked jurisdiction to accept his guilty plea without an indictment from the grand jury on the charge of grand larceny; and (3) he improperly pleaded guilty to the charges in the multi-count indictment because the larceny charge merged with the burglary charge causing burglary to be the actual charge. Finding that Ross untimely filed his PCR motion, we affirm the trial court’s denial of the PCR motion filed by Ross.

FACTS

¶ 2. On February 1,1999, the grand jury before the Lowndes County Circuit Court indicted Ross for three counts of burglary and larceny of a dwelling and one count of attempted burglary of a dwelling. On September 5, 2000, Ross entered a guilty plea to one count of burglary of a dwelling (count one) and to one count of grand larceny (count two). In exchange for Ross’s guilty pleas in counts one and two, counts three and four were retired to the files. The trial court sentenced Ross to ten years for the crime of burglary (count one) and to a concurrent term of five years for the crime of grand larceny (count two), both in the custody of the Mississippi Department of Corrections (MDOC). In addition, the trial court recommended that Ross participate in the Regimented Discipline Program (RID) and retained jurisdiction of the case until re-sentencing pending Ross’s successful completion of the program.

¶ 3. Ross completed RID, and on August 21, 2001, the trial court entered an order which suspended the execution of the previously imposed sentences and placed Ross on probation for a period of five years. Subsequently, on May 23, 2002, Ross’s probation was revoked because he violated the probation terms. The trial court ordered Ross to return to the custody of the MDOC to serve five years for his burglary conviction in count one and five years for his grand larceny conviction in count two, with the sentences to run concurrently.

¶ 4. On August 12, 2010, Ross filed a “Petition to Vacate Illegal Sentence,” which the trial court treated as a PCR motion. On September 1, 2010, the trial court entered an order denying Ross’s PCR motion as time-barred pursuant to section 99-39-5. Aggrieved, Ross appeals.

STANDARD OF REVIEW

¶ 5. The standard of review in cases involving the trial court’s denial of a PCR motion is well established: “When reviewing a lower court’s decision to deny a petition for post-conviction relief, an appellate court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss.Ct.App. 2010) (citation omitted).

DISCUSSION

¶ 6. The trial court found that Ross filed his PCR motion outside of the three-year statute of limitations as provided for in Mississippi Code Annotated section 99-39-5; thus, it was time-barred. We agree. According to section 99-39-5(2), a PCR motion following a guilty plea shall be made “within three (3) years after entry of the judgment of conviction.” Here, Ross pleaded guilty on September 5, 2000. Ross filed his “Petition to Vacate Illegal Sentence,” which the trial court properly treated as a PCR motion, on August 12, 2010, well past the three-year statute of limitations. “Section 99-39-5(2) provides for some exceptions to the statute of limitations, such as those cases where there has been an intervening state or federal supreme court decision that would adversely affect the outcome of the conviction, new evidence not reasonably available at the time of trial which would cause a different result in conviction, or an expired sentence.” Chandler v. State, 44 So.3d 442, 443 (¶ 6) (Miss.Ct.App.2010). In this case, the trial court found no such exceptions apply, and we agree.

¶ 7. Ross, however, argues that the filing of his PCR motion is excepted from the time bar because a fundamental constitutional right is at stake. Specifically, Ross asserts that his convictions and sentences are illegal because the trial court lacked jurisdiction to accept his guilty plea without an indictment from the grand jury on the charge of grand larceny. Ross also claims that he improperly pleaded guilty to the charges in the multi-count indictment because the larceny charge merged with the burglary charge causing burglary to be the actual charge. Lastly, Ross claims he pleaded guilty to what he assumed was burglary; however, he was sentenced for the crime of grand larceny.

¶ 8. “It is true that the statute of limitations does not apply to ‘errors affecting fundamental constitutional rights.’ ” Chandler, 44 So.3d at 444 (¶ 8) (citation omitted). However, “the mere assertion of a constitutional right violation is not sufficient to overcome the time bar. There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Id. (quoting Stovall v. State, 873 So.2d 1056, 1058 (¶ 7) (Miss.Ct.App.2004)).

¶ 9. We find no merit to Ross’s claims that he received an illegal sentence. As stated previously, Ross was indicted on three counts of burglary and larceny of a dwelling and one count of attempted burglary of a dwelling. Ross subsequently entered two separate guilty pleas, one count of burglary of a dwelling and one count of grand larceny. The trial court’s sentencing orders show that Ross’s guilty pleas were accepted by the trial court after the court had satisfied itself by interrogation of the defendant that his pleas of guilty were freely and voluntarily given and that he understood the consequences of his pleas. The trial court further noted that Ross fully understood the nature of the charges against him and admitted the commission of the offenses. Moreover, we recognize that the Mississippi Supreme Court in Jefferson v. State, 556 So.2d 1016 (Miss.1989), previously found that a defendant, who was originally indicted for burglary, waived his right to be indicted for grand larceny, to which he pleaded guilty, where the defendant was properly indicted for the crime of burglary under the jurisdiction of the trial court and voluntarily entered a guilty plea to grand larceny. See Young v. State, 797 So.2d 239, 242-44 (¶¶ 4-9) (Miss.Ct.App.2001). Thus, Ross waived his claimed deficiency with the indictment when he pleaded guilty to grand larceny in count two of the indictment.

¶ 10. Accordingly, we find that none of the statutory exceptions under section 99-39-5(2) apply to Ross’s case. We further find that nothing contained in Ross’s PCR motion moved it beyond the procedural bar of section 99-39-5(2). The trial court did not err in denying Ross’s PCR motion as time-barred.

¶11. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.

      . Ross is currently serving a twenty-five year sentence in the custody of the MDOC for a subsequent conviction for burglary. He has filed two PCR motions based on that conviction, which the trial court dismissed. Both dismissals were subsequently affirmed by the Mississippi Court of Appeals. See Ross v. State, 19 So.3d 108 (Miss.Ct.App.2009); Ross v. State, 936 So.2d 983 (Miss.Ct.App.2006).

      . The trial court’s order denying Ross’s PCR motion states that Ross entered his guilty pleas and was sentenced on May 23, 2002. However, the record includes the trial court's sentencing orders which show that the guilty pleas were entered on September 5, 2000. Thus, for purposes of this appeal, we have used September 5, 2000, as the date Ross entered his guilty pleas and was sentenced.

      . In support of his argument, Ross points to Box v. State, 241 So.2d 158 (Miss.1970). Box, however, has been overruled by Jefferson v. State, 556 So.2d 1016, 1021 (Miss.1989).

      . Ross cites Newburn v. State, 205 So.2d 260, 264 (Miss.1967) for the proposition that, ("[T]wo crimes may be charged in [a] burglary indictment in a single count where, in fact, two crimes have been committed. If, however, burglary and larceny are charged in one count in an indictment as two distinct crimes, the crime of larceny is merged in burglary in the sense that the accused, if found guilty, can be sentenced for burglary though not for larceny; but if acquitted of burglary, he may be convicted and sentenced for the larceny.”) (internal citation omitted).


text:
    WACKENHUT CORPORATION (Incorrectly Identified As Wackenhut Security) and Rozivito Hoskins, Appellants. v. Ernie FORTUNE, Appellee.
    No. 2010-CA-00480-COA.
    Court of Appeals of Mississippi.
    April 10, 2012.

      Matthew Anderson, Taylor David, Lee Gladden Jr., Jamie Leigh Heard, attorneys for appellants.

      James Ashley Ogden, Jackson, Robert Farley Wilkins, attorneys for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Hinds County Circuit Court found Wackenhut Corporation and Rozivito Hoskins 75% at fault for injuries Ernie Fortune sustained at a McDonald’s restaurant. The jury awarded Fortune $1,000,000 in damages. Aggrieved, Wackenhut appeals and raises ten issues. Wackenhut claims the circuit court erred when it: (1) allowed Fortune’s expert witness economist to use the “earnings-capacity approach” to calculate Fortune’s future lost wages; (2) prohibited Wackenhut from presenting evidence regarding Fortune’s alcohol abuse; (3) allowed Fortune to claim he was entitled to damages for a future surgery; (4) allowed Fortune to substitute an expert witness at trial; (5) redacted medical bills after they had been entered into evidence; (6) refused Wackenhut’s proffered jury instruction on contributory negligence; (7) refused Wackenhut’s proffered jury instruction on reasonable force; (8) prohibited Wackenhut from introducing evidence of Fortune’s prior convictions; (9) prohibited Wackenhut from introducing evidence that Fortune was “homeless”; and (10) prohibited Wackenhut from introducing evidence of Fortune’s collateral sources of medical care.

¶ 2. Fortune concedes it was improper for his expert economist to calculate his future lost wages according to the “earnings-capacity approach.” Fortune also concedes the circuit court erred when it refused Wackenhut’s proffered instruction on contributory negligence. Consequently, Fortune agrees we must reverse the circuit court’s judgment and remand this matter for a new trial. However, Fortune claims there is no merit to Wackenhut’s other claims. For the sake of judicial economy, we choose to address Wacken-hut’s remaining issues that are reasonably likely to arise again upon retrial.

¶ 3. After careful consideration, we find the circuit court also erred when it prohibited Wackenhut from introducing evidence of Fortune’s alcohol use to demonstrate the likelihood of Fortune’s decreased life expectancy. We further find that the circuit court erred when it allowed Fortune’s expert witness to testify that Fortune should receive damages for a future surgery when there was no evidence that Fortune met the necessary qualifications for the surgery. Furthermore, we find the circuit court erred when it refused Wack-enhut’s proffered jury instruction on contributory negligence. Accordingly, we reverse the judgment of the circuit court and remand this matter for a new trial consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 4. At approximately 8:30 p.m. on July 27, 2008, fifty-one-year-old Ernie Fortune went into a McDonald’s restaurant in Jackson, Mississippi. Fortune did not want to buy anything. Instead, he intended to use the self-serve drink machine to get a free refill of ice in a McDonald’s cup he had obtained hours earlier that day.

¶ 5. Tracey Luckett, McDonald’s manager on duty at that time, told Fortune McDonald’s policy prohibited him from refilling a cup after he had left the restaurant. Fortune believed he should be allowed to refill a cup he had acquired hours earlier that day. Although there are different versions of the tone and character of the discussion between Fortune and Luckett, it is undisputed that Fortune became frustrated and left the restaurant without refilling his cup or purchasing anything.

¶ 6. A short time later, Fortune went back inside the restaurant and tossed one dollar to Luckett. Fortune explained he did not want to buy anything for himself. Fortune told Luckett the dollar was for the next customer who wanted a cup of ice. According to Luckett, Fortune was cursing, disruptive, agitated, and confrontational. Subsequent blood testing hours later revealed that Fortune’s blood-alcohol level was .276.

¶ 7. My Joy, Inc., the owner of the McDonald’s franchise at issue, had entered into a contract for security services with Wackenhut Corporation. At that time, Hoskins was the Wackenhut security officer on duty at McDonald’s. The record contains contrasting versions of events regarding what happened next. However, it is undisputed that Hoskins shoved Fortune outside, where Fortune fell to the ground. Hoskins claimed he had acted in self-defense when he pushed Fortune outside because Fortune had a knife. Fortune denied having a knife, but Detective Reginald Cooper of the Jackson Police Department later testified that according to a police report, a knife was recovered from the scene.

¶ 8. Fortune claimed Hoskins stomped and kicked him multiple times. But according to Hoskins, he merely stepped over Fortune, who was lying on the ground. It is undisputed that Fortune broke the humerus bone in his right arm at some point during the altercation. Fortune was hospitalized. He required surgery that involved stabilizing his broken arm with an “intramedullary nail.”

¶ 9. Fortune sued Wackenhut, Hoskins, My Joy, Inc., McDonald’s, and Luckett. On November 30, 2009, the parties went to trial. The jury found Wackenhut and Hos-kins 75% liable for Fortune’s injuries and awarded Fortune $600,000 for pain and suffering, $194,000 for lost past and future earnings, $106,000 for past and future medical expenses, and $100,000 for Fortune’s “physical impairment and/or functional limitations” for a total award of $1,000,000. After unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial or remittitur, Wackenhut and Hoskins appeal.

ANALYSIS

I. EARNINGS-CAPACITY APPROACH

¶ 10. Wackenhut argues that this case should be reversed and remanded for a new trial because Fortune’s expert witness, Dr. Glenda Glover, used the earnings-capacity approach to calculate Fortune’s loss of future earnings. Fortune concedes we should reverse the circuit court’s judgment and remand this case for a new trial pursuant to the Mississippi Supreme Court’s decision in Rebelwood Apartments RP, LP v. English, 48 So.3d 483 (Miss.2010). In Rebelwood, the supreme court held that the same expert, Dr. Glover, should not have been permitted to utilize the earnings-capacity approach when calculating a plaintiffs loss of future earnings because Dr. Glover’s testimony was not based on sufficient facts or data. Id. at 496 (¶ 58).

¶ 11. Dr. Glover used the same methodology in this case as she used in Rebel-wood. As Fortune concedes, this case must be reversed and remanded for a new trial. Accordingly, the judgment of the circuit court is reversed and this matter is remanded for a new trial, in which neither Dr. Glover nor any other expert witness may calculate Fortune’s loss of future earnings based on the earnings-capacity approach, which is not founded on sufficient facts or data. For the sake of judicial economy, we address those issues that may become relevant on remand.

II. FORTUNE’S ALCOHOL ABUSE

¶ 12. Fortune filed a motion in limine to exclude “irrelevant information in medical records.” To be precise, Fortune wanted to exclude “medical records that reference ... Fortune’s past alcohol use or having alcohol in his system at the time of the incident.” Wackenhut argued that evidence of Fortune’s past alcohol abuse was relevant because Fortune sought lost wages and implicitly claimed he had a preexisting wage earning capacity that was interrupted when he was injured at McDonald’s. Wackenhut reasoned it should be allowed to submit evidence demonstrating Fortune was not working prior to the incident at McDonald’s because Fortune had a series of pre-existing injuries that involved alcohol consumption. Wackenhut also argued Fortune’s past alcohol abuse was admissible to demonstrate Fortune had a diminished life expectancy for the purposes of calculating Fortune’s earning capacity for the remainder of his lifetime. The circuit court disagreed with Wacken-hut and held evidence of Fortune’s past alcohol abuse was inadmissible because it was irrelevant. However, Wackenhut was allowed to submit evidence that Fortune’s blood-alcohol level was .276 immediately before his surgery the night of the incident. Wackenhut was not allowed to discuss Fortune’s being administered beer at the hospital to prevent the onset of delirium tremors arising from his chronic alcoholism. Wackenhut proffered Fortune’s medical records and brief testimony from Fortune’s expert physician, Dr. Howard Katz.

¶ 13. Wackenhut claims the circuit court erred because Fortune’s history of alcohol abuse was relevant to his claim for past and future medical treatment and lost wages. Wackenhut further argues Fortune “opened the door” to evidence of his past alcohol abuse.

¶ 14. We will reverse a circuit court’s decision regarding the relevance and admission or exclusion of evidence if the circuit court abused its discretion and caused a party to suffer prejudice. Walker v. Benz, 914 So.2d 1262, 1267 (¶17) (Miss.Ct.App.2005). “Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. Thus, the question is whether Fortune’s history of alcohol abuse tends to make a consequential fact more or less probable.

¶ 15. In Carroll v. Morgan, 17 F.3d 787, 791 (5th Cir.1994), records from a treatment center for alcohol and drug abuse were admissible on the issue of damages. The Fifth Circuit held that the defendant in that case was entitled to show the plaintiff “was not a healthy person and that his intemperance might have resulted in a reduced life expectancy.” Id. Furthermore, the Mississippi Supreme Court has held that a defendant “has the right to show [a plaintiffs] physical condition and that [the plaintiff] was not a healthy person” when the plaintiff seeks damages based on what he or she might have earned for the remaining portion of his or her lifetime. Pharr v. Anderson, 436 So.2d 1357, 1360 (Miss.1983).

¶ 16. Fortune argues that evidence of his alcohol use was inadmissible pursuant to Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 620 (¶ 31) (Miss.2001). In that case, the Mississippi Supreme Court addressed a defendant’s claim that evidence of a plaintiffs drug use should have been admissible to refute mortality tables used to calculate damages because drug use would have an impact on life expectancy. Id. The supreme court held evidence of the plaintiffs drug use was not admissible because: (1) the defendant had not sufficiently proffered the excluded evidence by merely offering “that there was some evidence of prior drug use (including one page of a doctor’s handwritten notes and [a] toxicology report ...)” and a doctor’s statement that did not causally relate the plaintiffs prior drug use to the plaintiffs illness; (2) the defendant failed to demonstrate that exclusion of the evidence adversely affected a substantial right; (3) the evidence was irrelevant; and (4) “such evidence would have far-reaching and severe prejudice.” Id. at (¶ 32).

¶ 17. As mentioned, Wackenhut proffered Fortune’s medical records outside of the jury’s presence during Dr. Katz’s testimony. Dr. Katz conducted an independent medical evaluation of Fortune. Dr. Katz’s report included notations of Fortune’s past medical treatment. Dr. Katz noted Fortune had sought medical treatment from multiple hospitals in Jackson for intoxication or symptoms associated with alcohol abuse at least forty times between July 1999 and January 2009. On March 16, 2002, Fortune underwent a CT scan, which reported Fortune had “cerebral and cerebellar atrophy greater than expected for [his] stated age.” There are numerous references to Fortune suffering from “chronic cirrhosis of the liver.” Dr. Katz also noted:

Mr. Fortune states mostly he has been drinking constantly since he was thirteen years old and [has] never stopped drinking. He has been hit twice by cars that were hit and run while he was walking down the street intoxicatedf,] and [he] walked off a platform [o]nto a concrete floor while he was intoxieated[,] which caused multiple fractures. Mr. Fortune has difficulty remembering most of his life because he [has] spent most of his life intoxicated.

Evidence of Fortune’s history of alcohol abuse tends to make it more probable that he has a diminished life expectancy when compared to someone who does not have a similar history of alcohol abuse. Therefore, evidence of Fortune’s alcohol abuse is particularly relevant when calculating Fortune’s earnings for the remainder of his work life.

¶ 18. “[Mississippi Rule of Evidence] 403 is the ultimate filter through which all evidentiary objections eventually flow.” Ware v. Entergy Miss., Inc., 887 So.2d 763, 774 (¶29) (Miss.2003). “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. Undoubtedly, evidence of Fortune’s extensive history of chronic alcohol abuse is prejudicial to him. “It is inherent that nearly all evidence is prejudicial to a party in one way or another. The inquiry as it regards admissibility is whether that prejudice is unfair.” Abrams v. Marlin Firearms Co., 838 So.2d 975, 981 (¶ 22) (Miss.2003). Fortune’s history of alcohol abuse has significant probative value regarding his remaining life expectancy. Where an error involves an evidentiary matter, an appellate court “will not reverse unless the error adversely affects a substantial right of a party.” James v. Carawan, 995 So.2d 69, 75 (¶ 22) (Miss.2008) (citations omitted). Given the precise circumstances of this case, Wackenhut had a substantial right to rebut Fortune’s claim for lost future earnings for the remainder of Fortune’s life expectancy. We, therefore, find the circuit court abused its discretion when it prohibited evidence regarding Fortune’s alcohol abuse. Upon remand, Wackenhut may introduce evidence of Fortune’s alcohol abuse to demonstrate the likelihood that Fortune has a diminished life expectancy or employability, or will experience future pain and suffering. However, it is not necessary to belabor the point by drawing the jury’s attention to each individual instance Fortune sought medical treatment for intoxication or symptoms of alcoholism. Such a presentation would unduly prejudice Fortune when the evidence is only admissible to demonstrate the likelihood Fortune has a diminished life expectancy for the purpose of calculating Fortune’s expected earnings for the remainder of his life. Additionally, should Fortune request an appropriately worded limiting instruction, the circuit court may give an instruction informing the jury it may not consider evidence of Fortune’s alcohol abuse for any purpose except as it relates to Fortune’s claims for damages.

¶ 19. Based on our resolution of this issue, Wackenhut’s claim that Fortune opened the door to evidence of his alcohol abuse is moot.

III. EVIDENCE OF FUTURE SURGERY

¶ 20. Wackenhut claims the circuit court erred when it allowed Fortune to introduce evidence he should recover damages for future surgery he may not actually have. Like the previous issue, this issue pertains to testimony from Dr. Katz. Dr. Katz sought to testify that Fortune would need approximately $25,000 in damages to compensate him for future surgery to remove the intermedullary pin that was placed in Fortune’s humerus. Wackenhut objected and claimed Dr. Katz’s testimony regarding future surgery was based on speculation.

¶ 21. Wackenhut voir dired Dr. Katz outside the presence of the jury. During voir dire, Dr. Katz testified:

[T]o a reasonable degree of medical certainty!,] [Fortune] would benefit from future surgery. I can’t say that it will be performed because I don’t know that Mr. Fortune would agree to it.... But as far as what would benefit him, there’s no question in my mind that he would be benefit[t]ed by surgery.

Dr. Katz then explained that in order for Fortune to have the surgery, Fortune would first have to stop drinking for a period of time and pass a complete medical evaluation, “including a liver function test.” Fortune’s attorney indicated Fortune had been sober for approximately one year. But Wackenhut’s attorney pointed out a lack of evidence to support Fortune’s attorney’s claim. Ultimately, the circuit court denied Wackenhut’s motion in limine and allowed Dr. Katz to testify Fortune would benefit from “arthroscopic surgery and ... a capsulectomy and probably remove the hardware [in Fortune’s humerus] at the same time.” Dr. Katz also testified those procedures would cost approximately $25,000.

¶ 22. Wackenhut claims the circuit court erred. According to Wackenhut, Dr. Katz’s testimony was based on speculation that Fortune would be a candidate for future surgery. “[T]o be recoverable, damages must be shown with reasonable certainty and not left to speculation and conjecture.” Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1164 (Miss.1992) (citations omitted). When a physician who had not practiced surgery for eight or nine years “guessed” that surgery would cost $20,000, that testimony was insufficient to establish substantial, credible evidence to support a $20,000 award for future surgery. City of Jackson v. Spann, 4 So.3d 1029, 1039 (¶ 34) (Miss.2009) (citation omitted).

¶ 23. “The admission of expert witness testimony is within the discretion of the trial judge.” Kidd v. McRae’s Stores P’ship, 951 So.2d 622, 626 (¶ 17) (Miss.Ct.App.2007) (citation omitted). Mississippi Rule of Evidence 702 states that if expert testimony “will assist the trier of fact to understand the evidence” and the witness is qualified, the expert testimony will be admitted. But if “an expert’s opinion is not based on a reasonable degree of medical certainty, or the opinion is articulated in a way that does not make the opinion probable, the jury cannot use that information to make a decision.” Kidd, 951 So.2d at 626 (¶ 19) (citing Catchings v. State, 684 So.2d 591, 597 (Miss.1996)). “It is the intent of the law that if a physician cannot form an opinion with sufficient certainty so as to make a medical judgment, neither can a jury use that information to reach a decision.” Id. (internal quotation omitted).

¶ 24. In Kidd, this Court held that a trial court correctly prohibited testimony from a physician who opined that a plaintiff might possibly benefit from two surgeries because the physician never testified that in his opinion, within a reasonable degree of medical certainty, the plaintiff would actually require those surgeries. Id. at 627 (¶ 20).

¶ 25. The issue in this case is not whether Fortune would benefit from the surgery, but whether he would be a candidate for the surgery. During the proffer, Dr. Katz testified that Fortune would have to meet certain conditions before he could be considered a candidate for surgery. Specifically, Dr. Katz testified:

[I]f I were the doctor who was making these decisions, I would first of all have a certain period of time that I would have expected him to no longer be drinking and have the AA to approve it. I also would ... do a complete medical evaluation of him including a liver function test and make sure that I thought that it was safe.

The following exchange then transpired:

Q. But just so we’re clear on this, your opinion that he might benefit from surgery requires as a condition foreseen to that surgery ... that he shall appear in sobriety and [obtain] a token from AA. Correct?
A. I would say yes. And also that he — again, if I were the doctor that he made a verbal commitment to[,] and ... I believed that commitment from him that he would continue to be sober for a minimum of another ten weeks and that he was willing and would assure me that he would participate in physical therapy for at least ten weeks.
Q. Ten weeks. And so based on your review of his medical records, again, you cannot state to a reasonable degree of certainty that he would satisfy any of these conditions proceeding surgery?
A. Well, you can see in my report that I was hesitant, and what I said was that to a reasonable degree of medical certainty he would benefit from surgery; however, to a reasonable degree of medical certainty — well, I didn’t say it quite that way. Let’s see what I said. “Although he’s at increased risk requiring additional surgery to his right upper extremity, to try to improve the range of motion to [his] right shoulder, I cannot anticipate any of those to the reasonable degree of medical certainty.” For one thing, Mr. Fortune choosing to have surgery, it would take him to choose, and when I say choose that includes all those things that [we have] talked [about] that he has to agree to remain sober and that we have a strict plan as far as how he’s going to handle the pain, etc. I do believe he could benefit from shoulder surgery at some point to improve range of motion, meaning that if he agrees to all of those things, then he can benefit from surgery, but without that, he cannot.
Q. And again, that speculates as to a number of issues including his recovery and his compliance with the doctor’s orders?
A. That would be correct. And it would require probably about in addition to the period of time that he’s sober prior to surgery, a good ten weeks after surgery, but I’d say a good 12 weeks of compliance, three solid months of compliance, of doing things just as he’s told to do from a medical perspective.
Q. And again, this is speculation at this point. Correct?
A. I guess so. I’m just answering your question.

¶ 26. Dr. Katz’s opinion was clear: If Fortune remained sober for a long enough period and had an acceptable liver-function test, he would be a candidate for further surgery. Fortune’s attorney later represented that Fortune had been sober for approximately one year. However, defense counsel noted that there was no evidence to support Fortune’s attorney’s claim.

¶ 27. We find the circuit court erred when it allowed Dr. Katz to testify that Fortune should receive $25,000 for a future surgery when there is no evidence Fortune would meet the conditions Dr. Katz mentioned. It is certainly speculative to say Fortune will have the surgery because he will only do so if: (1) he chooses to have the surgery, (2) he has been sober long enough, and (3) he passes a liver-function test. Although Fortune’s attorney stated Fortune had been sober for one year, statements by attorneys are not evidence. As it stands, there is no evidence Fortune qualified for future shoulder surgery. Upon remand, Fortune should only be allowed to recover damages for future surgery if an expert testifies to a reasonable degree of medical certainty that Fortune will require that surgery and Fortune meets the qualifications for that surgery.

IV. SUBSTITUTION OF FORTUNE’S EXPERT WITNESS

¶ 28. At trial, Fortune’s expert economist, Dr. Glover, was unavailable due to an illness. Over Wackenhut’s objection, the circuit court allowed Fortune to substitute James Henley for Dr. Glover. Henley adopted Dr. Glover’s testimony and her expert opinion regarding Fortune’s future lost wages. According to Wackenhut, because Fortune did not preserve Dr. Glover’s testimony by deposing her before the trial, Fortune had no relief when his expert witness became unavailable during trial. Because this issue is unlikely to arise upon remand, we decline to address it.

V. REDACTION OF DOCUMENTS

¶ 29. Next, Wackenhut claims the circuit court erred when it redacted documents after they had been entered into evidence. To be precise, Wackenhut argues the circuit court erred when it removed references to Fortune’s treatment for alcoholism from medical records that had been entered into evidence. This issue is also unlikely to arise again on remand. Furthermore, based on our conclusion that the circuit court erred when it prohibited evidence of Fortune’s alcohol abuse to demonstrate the likelihood of Fortune’s diminished life expectancy, this issue is moot.

VI. PROFFERED JURY INSTRUCTION D-ll

¶ 30. Wackenhut claims the circuit court erred when it refused its proffered jury instruction on contributory negligence. “The general rule with regard to jury instructions is that the trial court has considerable discretion when instructing the jury, and the instructions are to be read as a whole.” Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450, 474 (¶ 78) (Miss.2010) (citation omitted). No reversible error will be found so long as the instructions actually given fairly announce the law of the case and create no injustice when read as a whole. Walr-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 390 (¶ 20) (Miss.2001) (citation omitted). “Furthermore, each party is entitled to embody its theory of the case in the jury instructions provided there is testimony to support it, but only if made conditional upon the jury’s finding that such facts existed.” Id. (citation and internal quotation omitted). “However, a trial judge may refuse a proposed jury instruction that is an incorrect statement of the law, repeats a theory covered in other instructions, or has no proper foundation in the evidence before the court.” Utz, 32 So.3d at 474 (¶ 78) (citation omitted).

¶ 31. The proffered jury instruction at issue, designated as D-ll, states:

The Court instructs the jury that “contributory negligence” is conduct on the part of a person contributing as a cause to the harm he ... has suffered and falling below the standards to which [he] is required to perform in his ... best interests. You are further instructed that [Fortune] is not entitled to recover damages for the harm that [he] could have avoided by the use of due care, nor from the harm which proximately resulted from his own conduct, if any, which contributed to his damages.
If you find from a preponderance of the evidence that, in coming [onto] the subject premises, attempting to obtain My-Joy products without payment, engaging in a verbal altercation with the employees of MyJoy, Inc. and/or Wackenhut Corporation, remaining on the subject premises after being asked to leave, or brandishing a weapon-like object before, during or after the subject incident, [Fortune] failed to act as a reasonably careful person in his own best interests, and that such acts or omissions on the part of [Fortune] were a proximate contributing cause of [Fortune’s] damages, then you shall allocate a percentage of fault to [Fortune].

¶ 32. Wackenhut claims the circuit court improperly refused to instruct the jury on its theory of the case. Fortune concedes that the circuit court erred. We agree. There was evidence that Fortune went into McDonald’s to refill -a cup with ice. Fortune testified that he had purchased the cup hours earlier. Luckett testified . that Fortune did not attempt to make a new purchase. That is, Fortune only wanted to refill his cup with ice from the self-serve drink machine. McDonald’s policy does not allow people, without making a contemporaneous purchase, to bring cups into a restaurant and refill them with ice. Luckett testified that she informed Fortune of McDonald’s policy, and Fortune became combative. Fortune left the restaurant and returned shortly thereafter. Although there was some dispute regarding the nature of Fortune’s behavior, Luckett testified that Fortune acted in a confrontational manner when he attempted to give her one dollar, stating it was for the next customer who came in to get a cup of ice. Hoskins testified that he had asked Fortune to leave. Hoskins further testified he had approached Fortune while asking him to leave, and Fortune had brandished a weapon Hoskins described as a knife. Detective Cooper of the Jackson Police Department testified that according to a police report, a knife was recovered from McDonald’s.

¶ 33. Based on the testimony discussed above, we find there was evidence to support proffered instruction D-ll on contributory negligence. It follows that the circuit court abused its discretion when it refused to instruct the jury according to proffered instruction D-ll. Accordingly, we reverse the circuit court’s judgment. Upon remand, Wackenhut should be allowed to instruct the jury according to its theory of the case if the evidence supports such an instruction.

VII. PROFFERED JURY INSTRUCTION DH-26

¶ 34. Next, Wackenhut claims the circuit court erred when it refused its proffered jury instruction which, in part, purports to define “reasonable force.” The proffered jury instruction at issue was designated as DH-26, which states:

[Fortune] has alleged that Rozivito Hos-kins used a level of force which was unreasonable under the circumstances. However, the decision to use any amount of force must be judged from the perspective of the security officer or other citizen involved and not with the advantage of 20/20 hindsight. Any person may use that amount of force which is reasonably perceived under the circumstances to be necessary to eliminate a threat. In this instance, Rozivito Hos-kins alleges that he perceived a level of threat and that his response was consistent with a response of other reasonable security officers. Judge not with the advantage of hindsight, but from the position of an officer at that time under those same set of conditions.

¶ 35. Although Wackenhut’s argument may have merit, it failed to support its argument with any authority. “Arguments advanced on appeal must contain the contentions of the Appellant with respect to the issues presented and the reasons for those contentions with citations to the authority, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6). Failure to cite authority to support an argument renders an issue procedurally barred. Read v. S. Pine Elec. Power Ass’n, 515 So.2d 916, 921 (Miss.1987) (citations omitted). Accordingly, we will not consider this issue on appeal.

VIII. EVIDENCE OF FORTUNE’S PRIOR CONVICTIONS

¶ 36. Fortune filed a motion in limine to exclude evidence of his prior convictions, which include driving under the influence, numerous instances of public drunkenness, and at least one prior conviction for burglary of a business. Fortune argued that his prior convictions were inadmissible pursuant to Mississippi Rules of Evidence 402, 404(b), and 609(b). The circuit court granted Fortune’s motion in limine and prohibited the introduction of any evidence of Fortune’s prior convictions. During a proffer, Wackenhut submitted a “summary and the supporting documentation and records behind ... Fortune’s criminal history.” Wackenhut claims the circuit court erred when it prohibited evidence of Fortune’s prior convictions.

¶ 37. Wackenhut argues that Fortune’s criminal record is relevant to his employability since Fortune sought damages for future lost wages and loss of wage-earning capacity. Noting that Fortune’s last reported earnings were during 2001 — when he was required by court order to work for Stuart C. Irby Company, Inc. as restitution for burglary of the company — Wackenhut also argues that Fortune’s conviction for burglary is relevant to his credibility. Furthermore, Wackenhut claims Fortune’s criminal record of alcohol-related offenses is probative of his alcohol dependence and is, therefore, relevant to Fortune’s request for damages. According to Wackenhut, it was clearly prejudiced “by not being allowed full cross-examination on an element of damages which goes directly to assumptions utilized by Dr. Glover in her calculation of lost wages.”

¶ 38. Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This is not a Rule 404(b) question. Wack-enhut did not seek to introduce evidence of Fortune’s criminal history for the purpose of proving Fortune’s character. Likewise, Wackenhut did not seek to prove that Fortune acted in conformity with his character. Moreover, Wackenhut did not seek to introduce evidence of Fortune’s criminal history for the purpose of one of the contemplated exceptions to Rule 404(b). Wackenhut sought to prove that Fortune had limited employment opportunities because of his criminal history.

¶ 39. Wackenhut was allowed to thoroughly cross-examine Fortune regarding his work history. However, Wackenhut made no proffer indicating that Fortune’s criminal record had or had not adversely impacted his ability to find work. It is true that Fortune’s criminal history could adversely impact his ability to obtain regular employment. In that sense, Fortune’s criminal history could tend to make it less probable that he would actually earn the future wages that Dr. Glover calculated. However,- Fortune testified that he had been able to obtain regular employment at Furniture Zone. Accordingly, Fortune’s criminal record does not render it impossible for Fortune to find work. It simply limits his opportunities to find work in that some employers may choose not to hire someone with prior convictions.

¶ 40. Due to the lack of a proffer on the subject, we cannot definitively rule on this issue. There simply is not sufficient information in the record. Accordingly, the admissibility of Fortune’s criminal record will be left to the sound discretion of the trial judge upon remand.

IX. EVIDENCE OF FORTUNE’S “HOMELESS” STATUS

¶ 41. Wackenhut claims the circuit court erred when it granted Fortune’s motion in limine to exclude any evidence of his being “homeless.” Wackenhut proffered Fortune’s application to the Mississippi Department of Human Service’s “Temporary Assistance for Needy Families” (TANF) program. Wackenhut notes that Fortune indicated he was “homeless” in that application. Wackenhut also notes Fortune’s testimony that he applied for benefits from the Mississippi Supplemental Nutrition Assistance Program. Wacken-hut reasons that because Fortune described himself as “homeless” in his TANF application, that status is relevant to Fortune’s claim for lost wages.

¶ 42. Wackenhut failed to cite authority to support its position. Accordingly, we will not consider this issue on appeal.

X. EVIDENCE OF COLLATERAL SOURCES OF TREATMENT

¶43. The circuit court granted Fortune’s motion in limine to exclude any evidence of collateral sources of medical treatment. According to Wackenhut, Fortune opened the door to cross-examination on his ability to pay for medical treatment when he testified that he did “not have the money to go get the right side of [his] body x-rayed.”

¶ 44. To paraphrase the exchange between Fortune and Wackenhut’s attorney, during cross-examination, Wackenhut’s attorney asked Fortune whether he had gone to a doctor for his arm during the prior year. Fortune responded that he did not have enough money to get the “right side of his body x-rayed.” Wackenhut’s attorney then asked Fortune whether he was testifying that the cost of medical treatment was preventing Fortune from actually seeking treatment. Fortune’s attorney objected. Wackenhut’s attorney argued that because Fortune testified he has not been able to afford to get treatment, Wackenhut should be allowed to address Fortune’s access to medical care.

¶ 45. During further discussions, the circuit court asked Wackenhut’s attorney for Mississippi authority that supported Wackenhut’s position. Wackenhut told the circuit court that it would have a case supporting its position when the trial resumed the following morning. The circuit court recessed for the day. When Wack-enhut’s attorney resumed cross-examination of Fortune the next morning, Wacken-hut’s attorney stated, “Thank you, Your Honor. I would just move on to a new question.” Wackenhut’s attorney did not address Fortune’s claim that he could not afford to get “the right side of [his] body x-rayed.”

¶ 46. Despite the fact that Wackenhut appears to have abandoned its cross-examination on the subject of Fortune’s access to medical treatment, this issue turns on Wackenhut’s failure to cite authority in support of its argument on appeal. Consequently, this issue is also procedurally barred.

¶ 47. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. RUSSELL, J., CONCURS IN PART AND IN THE RESULT.

      . The knife was not entered into evidence. Other witnesses characterized the knife as a "fingernail file.”

      . After Wackenhut had filed its appeal, Fortune moved to remand this case to the circuit court for a new trial. Fortune reasoned it is unnecessary for this Court to resolve Wacken-hut’s other claims because Fortune concedes that the circuit court erred when it refused Wackenhut’s proffered jury instruction on contributory negligence. The Mississippi Supreme Court subsequently entered an order finding that Fortune’s "motion to remand should be passed for consideration with the merits of the appeal.”

      .Due to the tedious nature of referring to Wackenhut and Hoskins collectively, we refer to them simply as “Wackenhut.”


text:
    Anthony TRAPANI, Jolynne Trapani and Trapani’s Eatery, Inc., Appellants v. David TREUTEL and Treutel Insurance Agency, Inc., Appellees.
    No. 2011-CA-00092-COA.
    Court of Appeals of Mississippi.
    April 24, 2012.

      Gerald Maples, Carl Dwight Campbell III, attorneys for appellants.
    Paul J. Delcambre Jr., Gulfport, Patricia Ann Bailey, attorneys for appellees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Jolynne and Anthony Trapani and Trapani’s Eatery, Inc. appeal the decision of the Hancock County Circuit Court granting a directed verdict in favor of David Treutel and Treutel Insurance Agency, Inc. On appeal, the Trapanis assert the following assignments of error by the circuit court:

(1) Whether the trial court erred by directing a verdict for [Treutel] by failing to consider the testimony of [Jolynne] and take all reasonable inferences in her favor as required by [Mississippi Rule of Civil Procedure] 50.
(2) Whether the trial court improperly redacted page five of [the Trapanis’] exhibit P-15 as hearsay.
(3) Whether the trial court improperly redacted portions of [the Trapanis’] exhibit P-16.
(4) Whether the trial judge improperly excluded [the Trapanis’] exhibit P-17 as not being the best evidence.
(5) Whether the trial judge erred in excluding [the Trapanis’] expert Peter Quave.
(6) Whether the trial court improperly allowed [Treutel] to claim a defense never asserted by the insurer.

Finding no error, we affirm the circuit court’s judgment granting a directed verdict in favor of Treutel.

FACTS

¶ 2. Jolynne and Anthony Trapani owned Trapani’s Eatery, Inc., a restaurant located in Bay St. Louis, Mississippi. Pri- or to its destruction by Hurricane Katrina, the restaurant was located in a building along Beach Boulevard in Bay St. Louis at a lower-risk “C” flood zone.

¶ 3. After observing the devastation after Hurricane Ivan, Jolynne testified that she contacted her insurance company, Treutel Insurance Agency, to inquire about increasing the current coverage limits on the restaurant. Over the course of three or four meetings from late May to early July 2005, insurance agent David Treutel and Jolynne discussed a series of changes to the restaurant’s policies. Jo-lynne testified that she saw a need to increase the wind/hail policies coverage limits, and she asked that David make the following changes, among others: to increase the structure coverage from $149,477 to $300,000; to increase the contents coverage from $76,794 to $150,000; and to increase the business interruption coverage from $35,000 to $300,000. The other suggested changes remain undisputed.

¶ 4. Then, on August 29, 2005, Hurricane Katrina devastated Bay St. Louis, leaving virtually nothing remaining of Trapani Eatery’s structure. In her appellate brief, Jolynne claims that after Katrina, she learned for the first time that David had failed to increase the wind policy’s limits on the structure, contents, business interruption, as she requested. David disputes Jolynne’s claims that she asked him to make any other changes to the policies other than the changes he made. David claims that he made the following changes after his meeting with Jolynne in the summer of 2005: he increased the limits of coverage under the fire insurance policy to $150,000 for personal property and to $200,000 for loss of business income; and he increased the windstorm insurance policy coverage from $35,000 to $200,000 for loss of business income. David states that the Trapanis also had purchased flood insurance for the first time — $100,000 of coverage on the building and $100,000 for their personal property. David further states that he did not increase the limits of coverage for the building and the personal property under the windstorm policy. David also states that he did not increase the limit of coverage for the building structure under the fire insurance policy. The Trapanis claim that the total payments paid on them flood and wind policies failed to compensate them for all their losses.

¶ 5. The Trapanis filed suit against Treutel in Hancock County Chancery Court on December 2, 2005. The matter eventually went to trial in the Hancock County Circuit Court. During the trial, the circuit judge struck one of the Trapan-is’ exhibits in its entirety and also redacted two of the Trapanis’ exhibits. Additionally, the circuit judge disqualified the Tra-panis’ expert, Peter Quave, after finding that Quave lacked sufficient training and experience in property and casualty insurance sales to qualify as an expert. After the Trapanis rested, Treutel moved for a directed verdict claiming the Trapanis had failed to prove that they had suffered any damage proximately caused by the acts of Treutel. The circuit judge granted the motion, finding that the Trapanis had failed to prove damages. The Trapanis now appeal.

STANDARD OF REVIEW

¶ 6. Appellate courts review a circuit court’s grant or denial of a motion for directed verdict de novo. Solanki v. Ervin, 21 So.3d 552, 556 (¶ 8) (Miss.2009). A motion for directed verdict tests the legal sufficiency of the plaintiffs evidence. Bankston v. Pass Rd. Tire Ctr., Inc., 611 So.2d 998, 1003 (Miss.1992). The supreme court has stated:

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

White v. Thomason, 310 So.2d 914, 916-17 (Miss.1975) (citations omitted).

¶ 7. The Mississippi Supreme Court has also held that “[i]n considering the evidence and all reasonable inferences, the court must determine whether the evidence is so overwhelmingly against [the nonmovant] that no reasonable juror could have found in her favor.” Fox v. Smith, 594 So.2d 596, 603 (Miss.1992) (citations omitted). The appellate court considers “whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.’ ” Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364, 368 (¶ 10) (Miss.2008) (quoting White v. Stewman, 932 So.2d 27, 32 (¶ 11) (Miss.2006)).

¶ 8. Additionally, we review a trial court’s decision regarding the admission or suppression of evidence for abuse of discretion. Miss. Tramp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003).

DISCUSSION

I. Whether the circuit court erred in directing a verdict for Treutel when it failed to consider the testimony of Jolynne and take all reasonable inferences in her favor as required by Rule 50.

¶ 9. The Trapanis argue that the circuit judge erred by directing a verdict for Treutel after he determined the Tra-panis had failed to present sufficient proof of their losses. They also claim the judge erred by determining that the Trapanis had suffered any damage proximately caused by the acts of Treutel. The Tra-panis claim that Jolynne was qualified to testify about the value of the restaurant structure and its contents, as well as the restaurant’s income and expenses. Thus, they claim the circuit judge should have considered her testimony regarding the issue of damages. The Trapanis submit that expert testimony was not required to prove damages for the value of the structure, contents, and business interruption losses. However, Treutel argues that since the Trapanis received compensation in excess of the amount of damages established at trial by the Trapanis, then the circuit court properly granted the directed verdict.

¶ 10. As stated, appellate courts review de novo a circuit court’s grant or denial of a motion for directed verdict. Solanki, 21 So.3d at 556 (¶ 8). When ruling on Treu-tel’s motion for a directed verdict, the circuit judge stated:

With regard to the loss of income, that must be a loss that would be a covered peril under the policy. There has been no proof before the Court as to how much of the loss was caused by wind storm and how much was caused by flood. Any loss caused by flooding would be excluded under this policy.
This is a case against the agent, not a case against the insurance company. Under Mississippi law a case against an agent is a case that sounds in negligence. The ... elements of a case of negligence are that there has to be a duty, a breach of that duty, and causing damages. And here the Court finds that the proof is not sufficient to show that any loss of income was caused by a covered peril of wind storm. Consequently, the court finds that the motion for a directed verdict will be sustained.

¶ 11. The record shows that the Tra-panis’ insurance policy defined the evidence necessary to establish a claim for loss of business income. Under the terms of the policy, the Trapanis were not entitled to recover the value of the property; rather, they were only entitled to recover the “actual cash value” as defined in the policy. The policy states that “actual cash value will be determined based on the replacement cost of the property less depreciation.” As to the loss of business income, the insurance policy entitled the Trapanis to recover the properly documented “net income” that would have been earned had such physical loss or damage not occurred, plus continuing normal operating expenses incurred by the Trapanis, including payroll, after such physical loss or damage. The policy defines “net income” as “net profit before taxes, a positive amount; or net loss before taxes.”

¶ 12. The Trapanis admitted at trial that their account records existed and were available to document income and expenses for the purposes of establishing the elements of a claim for loss of business income, but the Trapanis failed to produce these records and also failed to offer the account records into evidence at trial. Instead, the Trapanis offered evidence of gross sales and sought to establish expenses and profit through the testimony of Jolynne at trial. The Trapanis cite to LaCombe v. A-T-O, Inc., 679 F.2d 431, 434 (5th Cir.1982), submitting that the owner of property is qualified by her ownership alone to testify as to her property’s value. In LaCombe, the United States Court of Appeals for the Fifth Circuit reasoned that the owner’s testimony is “subject to attack through cross-examination or independent evidence refuting the owner’s estimate ... with the jury as fact-finder shouldering the responsibility of judging the credibility of the witness, resolving the conflicting evidence, and assessing the weight of opinion testimony.” Id. The Trapanis assert that Jolynne, as co-owner of the restaurant, was thoroughly familiar with the business and its lost assets, and her testimony, therefore, should have been admitted as proper testimony based on personal knowledge. The Tra-panis submit that Jolynne was the best person to testify about the restaurant’s contents, as well as its income and expenses. While Treutel admits that the business owner can testify to value of his or her business, Treutel clarifies that the actual issue in controversy was the replacement cost necessary to rebuild the structure or replace the personal property, and loss of business income as defined by the policy — not the value of the business.

¶ 13. The record shows the Trapanis were paid the policy limits under both the windstorm and flood coverage. The record reflects that the Trapanis received the following insurance payments under the policy: $100,000 for damage to the structure under the flood policy; $100,000 for personal property under the flood policy; $200,000 for loss of business income under the windstorm policy; $76,794 for loss of personal property under the windstorm policy; and $149,477 for damage to the structure under the windstorm policy. The record also shows that the Trapanis received $10,000 for the loss of inventory. Thus, the total payment the Trapanis received under their insurance policies amounted to $636,271. The circuit judge found that the Trapanis also received $179,866 in compensation from the policies for the contents of the restaurant, of which the pre-storm value amounted to only $172,266.44. Additionally, the circuit judge noted that the Trapanis received the sum of $255,456 in coverage benefits for the restaurant’s building, which was valued at $149,477. with the replacement cost of the building ranging from $153,000 to $153,600. Thus, the record reflects that the Trapanis’s losses, which they established at trial, amounted to less than the amount of compensation they received from the insurance policies. Treutel asserts that based upon the testimony at trial, including Jolynne’s, the circuit judge correctly found that the Trapanis failed to prove damages since the Trapanis were fully compensated for the losses established.

¶ 14. Additionally, Treutel submits that since this case involves a claim of negligence, the Trapanis bore the duty of proving that: (1) they requested David to increase to a particular amount their insurance coverage for certain perils; (2) the coverage was available; (3) David failed to secure the coverage; (4) as a proximate cause of that failure they suffered a loss; and (5) the specific amount of damages they sustained. See Mladineo v. Schmidt, 52 So.3d 1154, 1164 (¶ 35) (Miss.2010). Treutel argues the Trapanis failed to produce sufficient evidence establishing any one of those elements. Treu-tel asserts that the circuit court therefore correctly directed a verdict for Treutel.

¶ 15. Regarding the evidence presented in a claim to recover damages, the Mississippi Supreme Court has stated:

It is absolutely incumbent upon the party seeking to prove damages to offer into evidence the best evidence available [as to] each and every item of damage. If he has records available, they must be produced. While certainty is not required, a party must produce the best that is available to him.

Eastland v. Gregory, 530 So.2d 172, 174 (Miss.1988). See M.R.E. 1002 (“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by law.”). After reviewing the record, we find that the Trapanis failed to provide sufficient proof, as required by them insurance policy, to support their claim for damages. The record reflects that despite the accounting records’ admitted availability, the records — which would have documented all of the income and expenses necessary to establish the elements of a claim for loss of business income — were not produced or offered into evidence by the Trapanis. Therefore, in taking all reasonable inferences in favor of the Trapanis, we find no error in the circuit judge’s grant of a directed verdict in favor of Treutel. White, 310 So.2d at 916-17. This issue is without merit.

II. Whether the circuit court improperly redacted page five of Trapan-is’ exhibit fifteen as hearsay.

¶ 16. After an objection by Treu-tel, the circuit judge ordered the redaction of a portion of the Trapanis’ exhibit fifteen. Specifically, the judge ordered the removal of page five of that exhibit, a letter written by the Trapanis that was attached to a Small Business Administration (SBA) Disaster Business Loan Application. The Trapanis argue that the redaction of this letter was error, and they assert that the letter should have been admitted under the business-records exception found in Mississippi Rule of Evidence 803(6).

¶ 17. The record shows that on page five of exhibit fifteen, the Trapanis state, without any supporting documentation, that the SBA estimated the cost to rebuild the restaurant to be $720,000. The Tra-panis also stated that an unnamed contractor provided an estimate of over $1,000,000. Treutel claims that the Tra-panis failed to provide proper foundation for this letter, and he submits the letter is both irrelevant and hearsay. After Treu-tel’s objection, the circuit judge agreed that the letter contained estimates of contractors without supporting documentation or evidence. The circuit judge ultimately determined the letter constituted hearsay. As previously recognized, we review a trial court’s decision regarding the admission or suppression of evidence for abuse of discretion. McLemore, 863 So.2d at 34 (¶ 4).

¶ 18. In Kroger v. Scott, 809 So.2d 679, 687 (¶ 24) (Miss.Ct.App.2001), a slip-and-fall case, this Court affirmed the trial judge’s ruling to redact portions of an incident report of a store manager at Kroger who did not actually witness the plaintiffs injury. This Court held that “much of the content provided on the second and third pages of the incident report[,] including [the manager’s] opinion of negligence[,] were hearsay due to the fact that [the manager] was not the original source of the information.” Id. Similarly, the Tra-panis’ letter to the SBA in exhibit fifteen did not have any support or documentation from the contractors for their estimates. Therefore, we find that the circuit judge did not abuse his discretion in redacting the letter from exhibit fifteen due to his determination that the letter contained hearsay statements. This issue is without merit.

III. Whether the circuit court improperly redacted portions of Trapanis’ exhibit sixteen due to lack of relevance.

¶ 19. The Trapanis next argue that circuit judge erred in ordering the redaction of portions of exhibit sixteen, which the Trapanis labeled “Asset Detail,” listing a number of items described as contents of the restaurant. Specifically, the circuit judge ordered the redaction of all items that he found were leasehold improvements and not assets. The Tra-panis assert that these items should not have been redacted, as they contained some evidence as to the loss to the building’s fixtures, as well as the structure itself.

¶ 20. The record reflects that the Tra-panis prepared exhibit sixteen for the purpose of establishing damages they suffered regarding the loss of business personal property. After hearing the parties’ arguments on the matter, the circuit judge admitted exhibit sixteen into evidence. However, based on Treutel’s objection, the circuit judge ordered that portions of the exhibit be redacted. The redacted portions pertained to the items under the section labeled Leasehold Improvements, which the circuit judge determined did not qualify as contents for the purpose of proving loss of business-personal-property damages pursuant to the insurance policy.

¶ 21. The Trapanis’ insurance policy defined “business personal property” as:

Stock; materials and supplies usual or incidental to the Operations of the Named Insured and like property of others in the Named Insured’s care; custody or control and for which the Named Insured is legally liable: furniture, fixtures, equipment and machinery that are the property of the Named Insured ....

In our review of the record, we observe that the leasehold improvements the circuit judge redacted from exhibit sixteen included items such as construction, flooring, concrete, and plumbing. After reviewing the language in the insurance policy, we agree with the circuit judge’s findings that the items redacted do not fall under the definition of business personal property pursuant to the insurance policy, and we therefore find no abuse of discretion in the circuit judge’s redaction of these items from exhibit sixteen. This issue is without merit.

IV. Whether the circuit court improperly excluded Trapanis’ exhibit seventeen as not being the best evidence of business income as defined in the insurance policy.

¶ 22. The Trapanis also argue that the circuit court improperly excluded exhibit seventeen, which contained daily receipts from the Trapanis’ restaurant, after determining that the receipts were not the best evidence of business income, as defined by the insurance policy.

¶28. The Trapanis cite to Casey v. Valentour, 218 So.2d 863, 865 (Miss.1969), and submit that the best-evidence rule, Mississippi Rule of Evidence 1002, does not preclude a witness from testifying from personal knowledge. The Trapanis further argue that the best-evidence rule does not require the introduction of books of account or other documentary evidence where the business owner is “intimately familiar with [her] business and could speak with sufficient accuracy about the costs and relative volumes of business.” Lynn v. Soterm, Inc., 802 So.2d 162, 171 (¶ 34) (Miss.Ct.App.2001). The Trapanis submit that Jolynne was familiar with the sales and expenses of her business and actively involved with the restaurant’s finances and record keeping. Thus, they contend she was competent to testify regarding the business’s income.

¶ 24. After examining exhibit seventeen, the circuit judge found:

[W]hat we have in [exhibit seventeen] for [identification] is only the gross income from the business on a monthly-basis for several months before the storm and for several months after the storm. Since the policy requires that [the Trapanis] prove the net income, the best evidence of net income would be the gross receipts minus operating expenses. And that best evidence would be bills, wage statements or other information that would be prepared by an accountant. And before the Court at this time there is no such documentation, so I’m going to sustain the objection, that this is not the best evidence and way to prove loss of business income according to the policy.

¶ 25. As stated, we review a trial court’s decision regarding the admission of evidence for abuse of discretion. McLemore, 863 So.2d at 34 (¶ 4). The record shows the Trapanis received $200,000 for the loss of business income under their insurance policy. At trial, they sought to recover an additional $100,000 by submitting into evidence a schedule of the gross sales of the restaurant for the period of January 2005 through November 2006, as proof of their loss of business income. The record reflects that the Trapanis’ insurance policy requires proof of net income when making a claim to recover for loss of business income. As previously noted, the transcript reveals that although the Tra-panis had access to bills, monthly expenses, and other items prepared by an accountant — the best evidence of loss of business income — the Trapanis failed to produce these documents at trial. We recognize a business owner may testify as to his or her personal knowledge of costs and relative volumes of business. Lynn, 802 So.2d at 171 (¶ 34). Although the Trapanis bore the burden of proving loss of business income, Jolynne only provided testimony as to the gross sales. We thus find no abuse of discretion by the circuit judge in excluding exhibit seventeen after determining the Trapanis failed to present the type of proof required by the insurance policy regarding their claim for loss of business income. Id. This issue is without merit.

V. Whether the circuit court erred in excluding testimony from Tra-pani’s proposed expert, Quave, because he was unqualified to testify on the proffered subject matter.

¶ 26. The Trapanis next assert as error the circuit judge’s ruling that the Trapani’s proposed insurance expert, Quave, could not testify regarding the lack of diligence on the part of David in securing Jolynne’s allegedly requested increases in the policies. The Trapanis claim that Quave’s requisite knowledge and experience in the insurance field gave him knowledge regarding what insurance products were available, when they were available, and any industry standards concerning placing the coverage.

¶ 27. The Mississippi Supreme Court has established the standard of review for the admission or exclusion of evidence, such as expert testimony, is an abuse of discretion. Investor Resource Services, Inc. v. Cato, 15 So.3d 412, 416 (¶2) (Miss.2009). Mississippi Rule of Evidence 702, which concerns the admissibility of expert testimony, provides:

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

¶ 28. The Mississippi Supreme Court has adopted the test provided in Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and modified by Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), to determine admissibility of expert witness testimony. McLemore, 863 So.2d at 35 (¶ 5). Expert testimony is admissible pursuant to Rule 702 if it is relevant and reliable. Id. at 38 (¶ 16). In other words, (1) “the witness must be qualified by virtue of his or her knowledge, skill, experience or education,” and (2) “the witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue.” Id. at 35 (¶ 7). The supreme court clarified that Rule 702 “does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of knowledge.” Id. The trial judge is the gatekeeper who assesses the value of the testimony. Id. at 39 (¶ 21).

¶ 29. In the case before us, Treutel objected to Quave’s testimony on the ground that Quave lacked the requisite qualifications to render an opinion on insurance-agency operations — namely, that Quave had never worked as a casualty underwriter. The circuit judge sustained the objection, noting:

In order to be qualified as an expert witness in a certain field, the testimony of a witness must be relevant and reliable. The witness must have sufficient training to render such an opinion, and such an opinion must be helpful to the trier of fact, which is the jury in this case.
The qualifications before the court at this time is that the practical experience regarding the issues involved in this particular lawsuit of procuring property and casualty insurance for clients is very limited. As a matter of fact, ... Quave said that his experience is limited to one year when he first started in the insurance industry some years ago. Most of his practice has been as a claims adjuster and as a file reviewer for a law firm.
He may very well be qualified to give opinions as to claims handling procedures and standards[;] however the court does not feel that he is qualified to give opinions under the Daubert standard as to insurance agency procurement of property and casualty insurance and the standards that go along with those fields. So I’m going to sustain the objection.

¶ 30. Treutel claims that the circuit judge’s ruling did not constitute error. They cite to Lovett v. Bradford, 676 So.2d 893, 895 (Miss.1996), where the Mississippi Supreme Court found no error in the circuit judge’s exclusion of expert testimony in a suit against an insurance agent over the failure of the agent to obtain proper coverage. The supreme court explained:

Indeed, “expert testimony is required ‘to support an action for malpractice of a professional man in those situations where special skills, knowledge, experience, learning or the like are required.’ ” Wirtz v. Switzer, 586 So.2d 775, 780 (Miss.1991) [ (abrogated on other grounds by Upchurch Plumbing, Inc. v. Greenwood Utils. Comm’n, 964 So.2d 1100, 1118 (¶ 45) (Miss.2007) ]) (involving accounting profession) (citations omitted); Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1160 (Miss.1992) (involving aviation profession); Hickox By and Through Hickox v. Holleman, 502 So.2d 626, 635 (Miss.1987) [(superseded by rule as stated in Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 35 (¶ 8) (Miss.2003) ]) (involving legal profession); Dean v. Conn, 419 So.2d 148, 150 (Miss.1982) (involving legal profession).
However, this Court has not held that insurance salesmen belong to such a profession. In addition, there is no evidence that “special skills, knowledge, experience, learning or the like” were required in this case. See Wirtz, 586 So.2d at 780. Therefore, regardless of whether expert testimony should be required in most cases against insurance agents, this does not appear to be a case that involves underwriting or actuarial tables or anything so complicated as to necessitate the testimony of an expert witness. Rather this is a negligence case based on [Roger] Bradford and [Jimmy] Lovett’s discussion of Bradford’s application for insurance—a matter that a layman can understand based on common sense and practical experience. See Palmer v. Anderson Infirmary Benev. Ass’n, 656 So.2d 790, 795 (Miss.1995); see also M.R.E. 702. Therefore, expert testimony was not necessary to establish the standard of care in this case.

Id.

¶ 31. This Court must limit an expert’s testimony to matters within his demonstrated area of expertise. Seal v.. Miller, 605 So.2d 240, 247 (Miss.1992). In General Motors Acceptance Corp. v. Baymon, 732 So.2d 262, 272 (¶¶ 49-53) (Miss.1999), the supreme court found reversible error where experts were improperly allowed by the trial judge to testify to areas outside of their stated fields of expertise. Therefore, after reviewing the test for the admissibility of expert testimony, we find that the circuit judge in this case committed no abuse of his discretion by excluding Quave’s testimony after finding him unqualified to testify as an expert. This issue is without merit.

VI. Whether the circuit court improperly allowed Treutel to claim a defense it never asserted.

¶ 32. Finally, the Trapanis claim that the circuit judge improperly shifted the burden to them to prove that they could have recovered for wind damages if David had placed the requested windstorm limits of $300,000 on the structure and contents. The Trapanis argue that because Treutel did not refuse to pay policy limits on wind damage, it waived any dispute as to causation.

¶ 33. Alternatively, the Trapanis submit that they only bore the burden of proving that Treutel could have raised the coverage limits as requested, and that the Trapanis sustained damages equal to or greater than the policy limits that David allegedly negligently failed to raise.

¶ 34. The record reflects that the Tra-panis’ restaurant suffered significant wind and flood damage during Hurricane Katrina. The Trapanis’ insurance policies paid the respective limits under the windstorm policy, including $149,477 for damage to the structure, $76,794 for personal property loss, and $35,000 for loss of business income. As stated previously, the Trapan-is assert that prior to Hurricane Katrina, Jolynne requested for David to increase the windstorm policy limit for the structure to $300,000, for personal property to $150,000, and for business income to $300,000.

¶ 35. Our supreme court reiterated in Robichaux v. Nationwide Mutual Fire Insurance Co., 81 So.3d 1030, 1040 (¶ 28) (Miss.2011), that the insured bears the burden of proving that his property “suffered accidental, direct, physical loss as a result of one of the enumerated perils, namely windstorm.” Additionally, the plaintiff bears the burden of proving the elements for a negligence claim, including damages. Holliday v. Pizza Inn, Inc., 659 So.2d 860, 864 (Miss.1995).

¶ 36. After hearing testimony in this case, the circuit judge found that “there has been no proof before the court as to how much of the loss was caused by wind storm,” and he held that the Trapanis failed to prove that the restaurant sustained damages exceeding the policy limit due to windstorm. After reviewing the record before us, we find no abuse of discretion by the circuit judge in finding that the Trapanis failed to provide sufficient admissible evidence that they sustained damages in excess of the amount Treutel paid the Trapanis under the insurance policy. This issue is without merit.

¶ 37. After reviewing the record before us and taking all reasonable inferences in favor of the Trapanis, we find no error in the circuit judge’s grant of a directed verdict in favor of Treutel. See White, 310 So.2d at 916-17. Accordingly, we affirm the circuit court’s judgment.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. LEE, C.J., AND ISHEE, J., NOT PARTICIPATING.

      . For the purposes of this opinion, we refer to the appellants collectively as the Trapanis, unless the context requires otherwise.

      . For the purposes of this opinion, we refer to the appellees collectively as Treutel, unless the context requires otherwise.