author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana in the Interest of B.T.
    No. 2011-CA-0155.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 2011.
    Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, LA, for Appellant, B.T.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

hOn November 4, 2010, the Orleans Parish Juvenile court adjudicated B.T. delinquent as a result of having committed the crime of illegal carrying of a weapon, second conviction, a violation of La. R.S. 14:95(C). The court entered a disposition of commitment to the Department of Public Safety and Corrections for a period of time not to exceed one year, to run consecutively with a disposition rendered in an earlier case in which B.T. was also adjudicated delinquent for illegally carrying a weapon. B.T. now appeals the adjudication and disposition.

On the afternoon of June 22, 2010, Officers Ray Jones and Kareem Jefferson of the New Orleans Police Department, members of the Special Operations Division Crime Abatement Team, were dressed in plain clothes and patrolling in an unmarked car on North Villere Street. According to their testimony, they spotted B.T. and three other males walking in the street. As B.T. separated from the group and moved toward the sidewalk, Officer Jones saw him remove a |2handgun from his waistband underneath his shirt. Office Jones then told Officer Jefferson what he had just seen.

After Officer Jones saw B.T. remove the handgun, the officers temporarily lost sight of him when he walked between a truck and another vehicle. They regained sight of him a couple of car lengths away, as he appeared to be standing up after being in a bent over position next to a vehicle. At that point, the officers called out to B.T. to stop, and placed him under arrest. B.T. did not have a weapon on his person at that time. Two of the other three males with B.T. were patted down to make sure they had no weapons, and the third male ran off when the officers approached.

After placing B.T. under arrest, Officer Jones went over to the vehicle that B.T. was near when they regained sight of him, and found a handgun on the ground near the vehicle. He rendered the gun safe, taking the rounds out of the chamber and the bullets out of the magazine.

One of the young men with B.T. on the afternoon of his arrest also testified. D.S. stated that B.T. never separated from the rest of the group as they walked on North Villere Street. D.S. also said he did not see B.T. remove a handgun from his waistband, and that B.T. did not have a gun with him that day. D.S. said the reason he knew that B.T. did not have a gun with him is because B.T. would have told him that he had a gun when D.S. told B.T. that he (D.S.) was in possession of a gun that day.

|sThe defense presented the testimony of Ms. Felicia Parish who lives on the block where this incident occurred. Ms. Parish stated that at the time of the incident, she was inside of her house looking out of her window because she was waiting for someone who was coming to pick her up. She saw four young males walking down the street and said she did not see any of the males separate from the group and did not see any of them with a gun. As she saw the four males walking, Ms. Parish saw an unmarked police car driving the wrong way on North Villere Street, which is a one-way street. She said she then saw the four males put their hands up in the air, at which time the officers jumped out of their car and proceeded to “manhandle” them. Ms. Parish testified that she did not know B.T.

The State ,of Louisiana filed a petition requesting that B.T. be adjudicated delinquent for violating La. R.S. 14:95(C), relative to illegal carrying of a weapon, second offense, after having been previously adjudicated delinquent for illegal carrying of a weapon in Case No.2010-041-01-DQ-F on March 25, 2010. B.T. filed a motion to quash, arguing that juveniles cannot be charged as second offenders under La. R.S. 14:95(C). The trial court denied the motion to quash, and proceeded to the adjudication hearing. At the conclusion of the hearing, the trial court found that the State proved its case and adjudicated B.T. delinquent as charged.

On appeal, B.T. argues in his sole assignment of error that the trial court erred in denying his motion to quash. We find that B.T.’s argument has merit.

|4La. R.S. 14:95(A)(1) provides, in pertinent part, that “the intentional concealment of any firearm ... on one’s person” constitutes the illegal carrying of a weapon. La. R.S. 14:95(C) states that “[o]n a second conviction, the offender shall be imprisoned with or without hard labor for not more than five years.” In the recent decision of State of Louisiana in the Interest of I.P., 2010-0882 (La.App. 4 Cir. 12/8/10), 58 So.3d 658, writ denied, 2011-0066 (La.5/20/11), 63 So.3d 973, this Court concluded that by the clear terms of La. R.S. 14:95(C), which requires a prior conviction, a juvenile cannot be charged with an offense under that statute. In reaching this conclusion, this Court cited the Louisiana Supreme Court case of State v. Brown, 2003-2788, p. 20 (La.7/6/04), 879 So.2d 1276, 1289, which stated that “[a] juvenile adjudication is not a conviction of any crime.”

In this case, B.T. was improperly charged under La. R.S. 14:95(C). While he has a prior adjudication as delinquent based on the illegal carrying of a weapon, he does not have a prior conviction as required under La. R.S. 14:95(C). For the reasons set forth in State of Louisiana in the Interest of I.P., supra, we find that the trial court erred in denying B.T.’s motion to quash the charge against him of the violation of La. R.S. 14:95(C).

Although the charge of a violation of La. R.S. 14:95(C) against B.T. was improper, we find that there is sufficient evidence in the record to support an adjudication of delinquency based on a charge of illegal carrying of a weapon in violation of La. R.S. 14:95(A). See La.C.Cr.P. article 815(2). Accordingly, we |samend the adjudication of delinquency to reflect that finding, and remand this matter to the Juvenile Court for resentencing on the amended adjudication.

AMENDED, AND AS AMENDED, AFFIRMED; REMANDED FOR RE-SENTENCING

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, the initials of the juveniles involved in this matter will be used instead of their names.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Evelyn CROSBY, Widow of Errol Jeansonne v. WAL-MART STORES, INC., and Van Oriental Food, Inc., Travelers Lloyds Insurance Company of Connecticut, Travelers Insurance Company and Metlife Insurance Company of Connecticut Successor or Assignee of Travelers Insurance Company, and Travelers Lloyds Insurance Company of Connecticut.
    No. 10-CA-1015.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.
    Rehearing Denied July 18, 2011.
    George B. Richard, Attorney at Law, Marrero, Louisiana, for Plaintiff/Appellant.

      Michael F. Grennan, Attorney at Law, Metairie, Louisiana, for Defendants/Appel-lees.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

|2This is an appeal by plaintiff from the trial court’s granting of summary judgment in favor of defendants, dismissing all claims. For the following reasons, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

On August 27, 2006, Evelyn Crosby, plaintiff, purchased two packages of egg rolls from the Wal-Mart store in Marrero, Louisiana. She cooked the egg rolls when she arrived home and ate them around 3 p.m. She began experiencing nausea, vomiting, diarrhea, and cramps around 11 p.m., after she went to bed. She experienced these symptoms all night. The next morning she awoke to severe and intensive pain. She called 911 and was taken by ambulance to West Jefferson Medical Center. Dr. Sandra Spedale treated Crosby in the emergency room for gastritis and dehydration. Crosby was hospitalized for three days.

On May 24, 2007, Crosby filed a petition for damages against Wal-Mart, Van Oriental Foods, the manufacturer of the egg rolls, and Travelers Insurance, as the insured for both Wal-Mart and Van Oriental. The plaintiff claimed she ^suffered damages as a result of eating contaminated food and suffering food poisoning.

On May 11, 2010, defendants filed a motion for summary judgment, which was heard by the trial court on July 30, 2010. The trial court granted the motion in open court stating that the court sympathized with what the plaintiff suffered, but it’s the plaintiffs burden to establish essential elements of the case and the plaintiff will not be able to that. Plaintiff now appeals this judgment arguing that she has proven a prima facie case and there are genuine issues of material fact, therefore, summary judgment was not appropriate. For the reasons which follow, we affirm the trial court’s granting of summary judgment.

DISCUSSION

This is an appeal from the granting of a summary judgment in favor of defendants. It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Landreneau v. Copeland’s Cheesecake Bistro, L.L.C., 08-647 (La.App. 5 Cir. 1/13/09), 7 So.3d 703. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. LSA-C.C.P. art. 966; Id. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(C)(1); Id. The mover has the burden of establishing the absence of a genuine issue of material fact. However, when a motion for summary judgment has been filed and supported by evidence, the adverse party may no longer rely on the mere allegations or denials of his Lpleadings, but his responses, through affidavits or otherwise, must set forth evidence demonstrating that there is a genuine issue for trial. LSA-C.C.P. art. 967; Id. Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Landreneau, supra.

To meet his or her burden of proof in a food poisoning case, the plaintiff must prove that the deleterious condition existed in the product when it was purchased. Landreneau, supra. The plaintiff must further prove the existence of a causal relationship between the illness or injury and the consumption of the food. Id. In fulfilling this burden of proof, “it is not necessary for the consumer to negate every conceivable cause but he must show that it is more likely than not that the food’s condition caused the injury of which he complains.” Id.

According to her affidavit, Crosby claimed the only food she consumed on the day she became ill were the egg rolls she purchased from Wal-Mart. She stated in her affidavit that she consumed the egg rolls around 3 p.m. and became ill with nausea, vomiting, diarrhea, and cramps around 11 p.m. She reported to the emergency room of West Jefferson Medical Center the next day and was treated by Dr. Sandra Spedale.

Dr. Spedale’s report, dated June 20, 2006, indicates that she diagnosed Crosby with acute gastritis with diarrhea, nausea, and vomiting. Dr. Spedale stated in her report that Crosby had possible food poisoning. A discharge summary was then completed by Dr. Spedale on June 23, 2006 which indicated that tests for shigella, salmonella, vibrio and e-coli were all negative.

Dr. Spedale testified by deposition and when asked if she could say to a reasonable medical certainty or more probably than not that the Crosby’s illness was caused by food poisoning, Dr. Spedale answered “No, I don’t think I can.” | sDr. Spedale explained that Crosby was diagnosed with gastritis, which is basically a description of the symptoms she suffered, which could have been caused by exposure to a virus or from exposure to a toxin in food.

Based on Dr. Spedale’s testimony, we find the trial court correctly found that Crosby could not meet her burden of proving her illness was caused by food poisoning from the consumption of the egg rolls purchased at Wal-Mart. Accordingly, we find the trial court correctly granted summary judgment in favor of defendants and correctly dismissed all claims against defendants.

AFFIRMED


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Johnnie CAUSEY.
    No. 2010-KA-1466.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 16, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State/Ap-pellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defen-danVAppellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

\ STATEMENT OF CASE

On July 17, 2009, the State charged the defendant, Johnnie Causey, by bill of information with possession of marijuana, fourth offense, a violation of La. R.S. 40:966. He pled not guilty at his arraignment on September 10, 2009.

The case proceeded to trial on January 13, 2010, and at the time, the defendant withdrew his prior plea and entered a plea of guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). On June 1, 2010, the court sentenced the defendant to twenty years at hard labor with credit for time served. The State multiple billed the defendant as a quadruple offender based on prior convictions for possession of cocaine, possession of a stolen automobile, and possession of marijuana, third offense. At the multiple bill hearing that same day, the defendant was adjudicated a quadruple offender. The trial court vacated the defendant’s prior sentence and resentenced him to twenty | ¡>years at hard labor without benefit of probation, parole or suspension of sentence, with credit for time served. This Appeal follows.

STATEMENT OF FACT

The recitation of facts in this case is taken from the narrative contained in the NOPD Gist Sheet bearing item number E-25776-09 and dated May 19, 2009:

On Tuesday May 19, 2009, at about 8:38 p.m. officers Laron Stewart and Stephanie Caldwell unit 1184 of the First District Task Force were on proactive patrol in the 4000 block of D’Hemecourt when they smelled a strong odor of burning marijuana in the air. The officers then observed two unknown black males standing in the block with a cloud of smoke in their area. The officers then elected to stop the subjects and investigate. Upon the officers exiting their vehicles the officers approached the subjects and the smell became stronger. As the officers interviewed subjects, the officers observed the subject later identified as Johnathan M. Arnold, B/M, 8/10/1988 and Johnnie Causey, B/M, 11/18/1984 speaking with slurred speech and blood shot eyes. The officers then elected to arrest the subjects for drug incapacitation. The officer then advised them of their rights as per Miranda and placed them in handcuffs to the rear.
Search incident to the arrest officer Stewart located two small clear plastic bags containing a green vegetable matter which the officers believed to be marijuana in the front right pocked of Johnnie Causey. The officers then re-advised him of his rights as per Miranda and the additional charges.
The officers tested the green vegetable matter and learned that it was positive for marijuana.

See New Orleans Police Department — Gist Sheet, Rec. p. 54.

ERRORS PATENT

A review for error patent on the face of the record reveals one concerning the defendant’s sentencing as a fourth felony offender. That error is discussed in Assignment of Error Number 1 herein.

ASSIGNMENT OF ERROR NUMBER 1

In the multiple bill of information filed against the defendant, the State averred that in addition of having been convicted of possession of marijuana, fourth offense, on January 13, 2010, the defendant had three prior convictions. |3The predicate convictions listed in the multiple bill were a 2002 guilty plea to possession of cocaine (case #430-428), a 2002 guilty plea to possession of a stolen automobile valued in excess of $500.00 (case #431-201), and a 2004 guilty plea to possession of marijuana, third offense (case # 452-669).

In this assignment, the defendant argues that the evidence is insufficient to prove beyond a reasonable doubt that he was the person convicted of possession of cocaine in 2002 as alleged in the multiple bill. He further claims that the 2004 possession of marijuana, third offense, conviction in case #452-669 was improperly used to enhance both his status as a narcotics offender and his status as a habitual offender. He also argues that he was deprived of his right to a jury trial on the multiple bill.

In 1993, the Louisiana Legislature enacted La. R.S. 15:529.1(D)(l)(b) to establish “the procedure to be followed to attack the validity of a prior conviction” and “to set forth burdens of proof.” La. Acts 1993, No. 896. La. R.S. 15:529.1(D)(l)(b) provides as follows:

Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

To prove that a defendant is a multiple offender, the state must establish by competent evidence that there is a prior felony and that the defendant is the same Lperson who was convicted of the prior felony. State v. Chaney, 423 So.2d 1092 (La.1982). Where the prior conviction resulted from a plea of guilty, the state must show that the defendant was advised of his constitutional rights and that he knowingly waived those rights prior to this plea of guilty, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The Louisiana Supreme Court adopted a scheme for burdens of proof in habitual offender proceedings in State v. Shelton, 621 So.2d 769 (La.1993). This scheme was succinctly summarized in State v. Conrad, 94-232, pp. 3-4 (La.App. 5 Cir. 11/16/94), 646 So.2d 1062, 1064, as follows:

If the defendant denies the multiple offender allegations then the burden is on the State to prove (1) the existence of a prior guilty plea, and (2) that defendant was represented by counsel when the plea was taken. Once the State proves those two things, the burden then shifts to the defendant to produce affirmative evidence showing (1) an infringement of his rights, or (2) a procedural irregularity in the taking of the plea. Only if the defendant meets that burden of proof does the burden shift back to the State to prove the constitutionality of the guilty plea. In doing so, the State must produce either a ‘perfect’ transcript of the Boykin colloquy between the defendant and the judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an ‘imperfect’ transcript. If anything less than a ‘perfect’ transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary.

Various methods are available to prove that the defendant is the same person convicted of the prior felony offense, including testimony from witnesses, expert opinion regarding the fingerprints of the defendant when compared with those in the prior record, or photographs in the duly authenticated record. State v. Henry, 96-1280 (La.App. 4 Cir. 3/11/98), 709 So.2d 322.

To support the predicate cocaine conviction in this case, the State introduced the following evidence from that conviction: the bill of information; the guilty plea form executed by defendant; the minute entry reflecting that the defendant | /¡entered a plea of guilty; the docket master; the screening action form; and the arrest register. The State also called Officer George Jackson, a custodian of arrest registers for the NOPD and an expert in taking and analyzing fingerprints. At the hearing on the multiple bill on June 1, 2010, Officer Jackson testified that he fingerprinted the defendant in court on May 28, 2010, the date originally set for the multiple bill hearing, for purposes of comparison. The officer identified the fingerprints he took on May 28, 2010, as State’s Exhibit 1. Moreover, Officer Jackson testified that the fingerprints contained in the arrest registry relating to the cocaine conviction (case No. 430-418) matched the fingerprints on State’s Exhibit 1.

Nevertheless, the defendant argues that the State failed to carry its burden of proof that he was one and the same person convicted in 2002 of possession of cocaine because the bill of information in the cocaine ease does not contain any fingerprints. He claims that the fingerprints from the authenticated arrest registry are insufficient to establish identity beyond a reasonable doubt. The defendant argues the only source of fingerprints capable of satisfying the evidentiary standard are those on a bill of information. The defendant is mistaken.

In State v. Anderson, 99-1407 (La.App. 4 Cir. 1/26/00), 753 So.2d 321, the defendant argued that because the fingerprints on the bill of information for a forgery conviction were not suitable for identification, the State failed to meet its burden. However, the State produced the arrest register for the offense, which contained fingerprints that an officer was able to identify as fingerprints belonging to the defendant. In addition, the State was able to match the arrest register with the certified copy of the forgery conviction through the | ^defendant's name, date of birth, date of offense, and case number and complaint’s name. In addition, defendant’s name, date of birth, social security and bureau of identification numbers were the same as the person who pled guilty to the forgery charge. This court found this information was sufficient, and that the State met its burden of proving that the defendant was the same person who pled guilty to the forgery charge.

This portion of the defendant’s assignment of error lacks merit.

Next, the defendant complains that his conviction of possession of marijuana, third offense, in case number 452-669 was used both to elevate his status to a fourth offender under La. R.S. 40:966 and as a predicate offense to enhance his status under the Habitual Offender Law to a quadruple offender constituting double enhancement.

It should be noted that the defendant herein did not object to the multiple bill or file a motion to reconsider sentence, this issue was not preserved for appellate review. Nevertheless, the defendant’s double enhancement claim has merit. The State concedes the error in the defendant’s multiple offender status. The State also requests that this Court vacate the fourth offender adjudication, enter an adjudication as a third offender, and remand for resentencing as a third offender.

The defendant in this case pled guilty to possession of marijuana on May 19, 2009. He pled to the same offense in case numbers 431-217G, 431-290G and 452-669L, making the charge a fourth offense possession. In the same case, he was charged as a fourth felony offender based, in part, on being a third offense felony offender in case number 452-669L, which also relied on case numbers 431-217G and 431-290G. A review of the original bill and the multiple bill shows that the 17October 21, 2004, possession of marijuana, third offense, conviction in case number 452-669 is listed in both bills. Using the same prior convictions to enhance a misdemeanor to a felony and then to enhance the sentence on the felony is not permissible because what would be a misdemeanor as a first offense is elevated to the status of a felony in subsequent offenses, a conviction for repeated possession of marijuana is not subject to being further enhanced under the Habitual Offender Law. Possession of marijuana, fourth offense, is already an enhanced offense. See State v. Davis, 02-2061 (La.App. 4 Cir. 10/08/03), 859 So.2d 776. See also State v. Sanders, 337 So.2d 1181 (La.1976). The defendant’s sentence must be vacated and the matter remanded to the trial court for resentencing.

As for the defendant’s assertion he was denied a jury trial on the issue of his being a habitual offender, there is no constitutional right to a jury trial in multiple billing proceedings. State v. Smith, 05-0375, pp. 3-5 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, 839-840, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-2363. Under Apprendi and its progeny, neither a defendant’s status as a habitual offender, nor the existence of prior convictions necessary to prove that status, is required to be submitted to a jury. This Court has repeatedly rejected this same argument |Radvanced by the defendant. See State v. Dunbar, 06-1030 (La.App. 4 Cir. 3/19/08), 981 So.2d 51. This argument is without merit.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, the defendant complains that his sentence is excessive. The discussion in Assignment of Error Number 1 concerning the defendant’s double enhancement of his sentence in Assignment of Error Number 1 renders this assignment moot.

ASSIGNMENT OF ERROR NUMBER 3

In a final assignment of error, the defendant contends that the trial judge erred in denying his pre-sentence Motion to Withdraw Alford Plea. The defendant explains that his attorney arrived late for trial and had raised the ire of the trial judge. Further, defendant says that his attorney was scheduled to appear at another hearing in Jefferson Parish at the same time and was unprepared in this case. The defendant maintains that he was advised to enter the guilty plea by conflicted, unprepared and ineffective counsel.

La.C.Cr.P. art. 559 provide in pertinent part that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” The Louisiana Supreme Court in State v. Lewis, 421 So.2d 224 (La.1982) considered this issue and held that a trial court may permit the withdrawal of a guilty plea after sentencing when the trial court finds that the guilty plea was not entered freely and voluntarily or that the Boykin colloquy was inadequate, and, therefore, the plea is constitutionally infirm. The withdrawal of a guilty plea is within the discretion of the trial court, and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569 (La.1981).

I flFor a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation and right against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). However, the entry of a knowing and intelligent plea of guilty involves more than an understanding and a waiver of the basic triad of rights. In determining whether the defendant’s plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but may also look at other factors which may have a bearing on the decision. State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982).

In addition to the basic three rights enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), in order to make a knowing and intelligent decision to plead guilty the defendant must be apprised of the possible range of sentences for the offense to which he pleads guilty. State ex rel. Curry v. Guillory, 441 So.2d 204 (La.1983).

In the case at bar, the transcript of the plea hearing reflects compliance with Boy-kin. The trial judge fully explained the defendant’s rights and questioned him as to whether the pleas were knowing and voluntary. The judge explained the maximum sentence the defendant could receive. He advised the defendant of his right to a speedy trial, his right to a jury, his right to representation, and his right to confront his accusers. Additionally, the trial judge specifically informed the defendant that the State intended to file a multiple bill against him and explained the possible sentences depending on his adjudication as a multiple offender. The defendant said that he understood the rights and that he had no questions. When asked if anyone had forced, threatened, or coerced him into pleading guilty, he 1 inanswered negatively, and when asked if he was satisfied with his attorney, he answered affirmatively. The waiver of rights form is signed by the defendant, his attorney, and the judge.

While defense counsel in this case did explain his lateness and scheduling difficulties, when the trial judge asked him if he was prepared for trial, counsel responded affirmatively. Counsel further informed the trial court that he had discussed the guilty plea with the defendant and the defendant’s family and that they thought it was in the defendant’s best interest to enter the plea.

After considering all the factors involved in a valid and voluntary guilty plea, the trial judge did not abuse her discretion in finding that there was no rational basis for the defendant’s motion to withdraw his plea. This assignment has no merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction, vacate the fourth offender adjudication and sentence and remand to the trial court for resentencing the defendant as a triple offender.

CONVICTION AFFIRMED, FOURTH OFFENDER ADJUDICATION AND SENTENCE VACATED AND REMANDED FOR RESENTENCING

      . The defendant pled guilty to possession of cocaine on June 7, 2002, in proceedings bearing No. 430-428 "L” of the docket of the Orleans Parish Criminal District Court.

      . The defendant pled guilty to possession of a stolen automobile on August 9, 2002, in proceedings bearing No. 431-201 "L" of the docket of the Orleans Parish Criminal District Court.

      . The defendant pled guilty to drug possession on October 21, 2004, in proceedings bearing No. 452-669 "L” of the docket of the Orleans Parish Criminal District Court.

      . La. R.S. 15:529.1(D)(1)(b) places the burden of challenging a predicate conviction in a multiple bill proceeding on the defendant. State v. Cossee, 95-2218 (La.App. 4 Cir. 7/24/96), 678 So.2d 72. The defendant in this case did not file a written response to the multiple bill of information, nor did he object at the multiple bill hearing as to any of the prior convictions. Accordingly, this argument was not preserved for appeal.

      . In Davis, this Court noted that the repeated violations of the offense of possession of marijuana subjected an offender to enhanced penalties under La. R.S. 40:966(E) and raised the offense from a misdemeanor to a felony. The Court said, “Because what would be a misdemeanor as a first offense is elevated to the status of a felony in the case of a second offense, a conviction for possession of marijuana, second offense is not subject to being further enhanced under the Habitual Offender Law. Possession of marijuana, second offense, is already an enhance offense.”


author: JAMES F. McKAY III, Judge.

text:
    Kirsten GUY and Brittany Johnson v. Gary S. BROWN, Robert T. Weimer, IV, and Gary S. Brown, LLC.
    No. 2011-CA-0099.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 6, 2011.
    Rehearing Denied July 28, 2011.

      Jeffrey A. Mitchell, Deborah E. Lavender, The Cochran Firm Metairie LLC, Me-tairie, Louisiana, for Plaintiffs/Appellants.
    E. Phelps Gay, Kevin R. Tully, Elizabeth S. Cordes Christovich & Kearney, LLP, New Orleans, Louisiana, for Defendants/Appellees.
    (Court composed of Judge JAMES F. MeKAY III, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   JAMES F. McKAY III, Judge.

Lin this legal malpractice action, the plaintiffs, Kirsten Guy and Brittany Johnson, appeal the trial court’s maintaining of an exception of no cause of action filed by the defendants, Gary S. Brown, Robert T. Weimer, IV, and Gary S. Brown, LLC, and the dismissal of their lawsuit. We affirm.

FACTS AND PROCEDURAL HISTORY

On May, 12, 2000, John Johnson, Jr. was a patient at Tulane Medical Center. He allegedly made certain complaints on that date to a nurse who allegedly did not document his complaints or notify a physician. Hours later, Mr. Johnson suffered the onset of paraplegia. Thereafter, Mr. Johnson and his wife, Desiree Johnson, filed a medical malpractice claim against the nurse and Tulane. On August 21, 2008, Mr. Johnson died. His wife then amended her lawsuit to assert a claim for wrongful death.

Sometime after August 21, 2008, Kirsten Guy retained the law firm of Gary Brown, LLC to represent her in establishing her filiation to John Johnson, Jr., as her biological father in Orleans Parish. This action was successful. On April 7, |22009, Ms. Guy and Brittany Johnson retained the law firm of Gary S. Brown, LLC and attorneys Gary S. Brown and Robert T. Weimer, IV to represent their interests as heirs of John Johnson, Jr. in their father’s succession. On September 22, 2009, Kirsten Guy was appointed administratrix of her father’s succession in the matter of the Succession of John Johnson, Jr. However, Desiree Johnson, the surviving spouse, filed a separate petition for possession in the 19th Judicial District Court. This was done on her behalf by attorney, Paul Sterbcrow. Desiree Johnson’s petition for possession prayed for judgment recognizing the surviving spouse and recognizing that half of Mr. Johnson’s estate belongs to his child from a previous marriage, Brittany Johnson. A judgment of possession was signed on September 28, 2009. Neither Mr. Brown, nor Mr. Sterbcrow was aware of the actions taken by the other.

At some point, a misunderstanding arose between Kirsten Guy and Brittany Johnson with Mr. Brown. Mr. Brown believed that he and his law firm were hired to represent Ms. Guy’s and Ms. Johnson’s interests in the succession of their father. However, Ms. Guy and Ms. Johnson believed that this also included the filing of a wrongful death claim/medical malpractice action. Based on this misunderstanding and a potential conflict of interest in representing both Ms. Guy and Ms. Johnson, Mr. Brown withdrew as counsel of record in February of 2010.

Ms. Guy and Ms. Johnson allege that Mr. Brown and his law firm negligently failed to file a wrongful death action within one year of Mr. Johnson’s |sdeath, causing them to lose all rights to recover damages they sustained from their father’s death. On April 5, 2010, Ms. Guy and Ms. Johnson instituted a legal malpractice claim against Mr. Brown and his law firm. On June 8, 2010, the defendants filed exceptions of no cause of action and prematurity. A hearing was held on the exceptions on August 12, 2010; on November 12, 2010, the trial court granted the exception of no cause of action and dismissed the plaintiffs’ lawsuit, with prejudice. It is from this judgment that plaintiffs now appeal.

DISCUSSION

On appeal, the plaintiffs raise the following assignments of error: 1) the trial court erred in granting defendants’ exception of no cause of action and dismissing plaintiffs’ legal malpractice claims on the basis that the plaintiffs’ claims for the wrongful death of their father, caused by medical malpractice, were prescribed eight years before he died; 2) the trial court erred in holding that La. R.S. 9:5628(A) controls the period of time by which a suit for wrongful death involving medical malpractice must be filed; and 3) the trial court erred in holding that Warren v. Louisiana Medical Mutual Insurance Co., 2007-0492 (La.12/2/08), 21 So.3d 186 (rehearing granted 2/13/09) impliedly overruled the Louisiana Supreme Court’s decision of Taylor v. Giddens, 618 So.2d 834 (La.1993), which expressly held that the correct time period during which a medical malpractice suit must be filed is controlled by La. C.C. art. 3492 — the one year period applicable to delictual wrongful death actions.

In Warren v. Louisiana Medical Mutual Insurance Co., 2007-0492 (La.12/2/08), 21 So.3d 186 (rehearing granted 2/13/09), the Louisiana Supreme Court dealt with the issue as to whether or not the provisions of La. C.C.P. art. 1153 allowed for a plaintiff’s belated wrongful death claims to relate back to the timely filed claim by other plaintiffs with similar claims, avoiding prescription of the belated claim. In Warren, the Supreme Court re-emphasized that medical malpractice claims are strictly governed by the prescriptive and peremptive periods set forth in La. R.S. 9:5628. That statute reads in part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The provisions of this Section shall apply to all healthcare providers listed herein or defined in R.S. 40:1299.41 ...

La. R.S. 9:5628.

In the instant case, the alleged act, omission, or neglect occurred at Tulane Medical Center on May, 12, 2000. Ms. Guy and Ms. Johnson did not file a claim or lawsuit within one year of the act, omission, or neglect, nor did they do so within three years of the act, omission or neglect. Therefore, by the time they contacted Mr. Brown sometime after August 21, 2008, any claims they had against |fiany healthcare provider were forever prescribed. The defendants cannot be held hable for claims that prescribed prior to their representation of the plaintiffs began in 2008. The plaintiffs’ reliance upon Taylor v. Giddens, 618 So.2d 834 (La.1993) is misplaced. Accordingly, we find no error in the trial court’s judgment.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s maintaining of the defendants’ exception of no cause of action.

AFFIRMED

      . Case No. 04-2500

      . No. P89931, Section 23, 19th Judicial District Court, Parish of East Baton Rouge.

      . No. 89331.


text:
    Janice JENKINS, Robert Jenkins, Michael Kiper, James Chapel Baptist Church, Inc., Claude Spruel, Curtis W. Mimms and David Johnson v. The GRAY INSURANCE COMPANY and Wallace C. Drennan, Inc.
    No. 2011-CA-0035.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 6, 2011.
    Rehearing Denied July 22, 2011.

      Jack M. Alltmont, April L. Watson, Sessions Fishman Nathan & Israel, L.L.P., New Orleans, LA, for Plaintiffs/Appellants.
    Richard S. Vale, Pamela F. Noya, Blue Williams, L.L.P. Metairie, LA, for Defendants/Appellees.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   JAMES F. McKAY III, Judge.

|, The plaintiffs, Janice Jenkins, Robert Jenkins, Michael Kiper, James Chapel Baptist Church, Inc., Claude Spruel, Curtis W. Mimms and David Johnson, appeal the trial court’s granting of exceptions of no right of action and no cause of action in favor of the defendants, Wallace C. Dren-nan, Inc. and The Gray Insurance Company on an oblique action. Drennan and Gray answered the appeal and assert that the trial court should have also granted their exceptions of res judicata, preclusion, prescription and peremption. We affirm.

FACTS AND PROCEDURAL HISTORY

The Sewerage and Water Board (S & WB) contracted with Drennan to dig a three-foot deep trench, install new duct banks, and re-pour asphalt over a ditch. The plaintiffs’ homes and or businesses were damaged during this construction project. The plaintiffs previously brought suit against the S & WB and Drennan. Following both a bench trial and a jury trial, the district court rendered a verdict in favor of the plaintiffs and against both Drennan and the S & WB and assessed each Lwith fifty percent (50%) fault. Based on a motion for a new trial, the district court issued an amended judgment which stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that because of “inverse condemnation,” defendant Sewerage & Water Board of New Orleans is responsible to plaintiffs for the entire 100% of their loss, but this liability of Sewerage & Water Board of New Orleans should be reduced by 50% after payment to plaintiffs by Wallace C. Drennan, Inc., for their negligence responsibility under the Jury’s Verdict; in default of payment by Wallace C. Dren-nan, Inc. for any reason, the Sewerage <& Water Board of new Orleans shall be fully responsible as above stated.

This judgment is now a final judgment. Drennan and The Gray Insurance Company have paid that portion of the judgment that applies to Drennan.

The plaintiffs then filed an oblique action against Drennan and Gray, arguing Drennan and Gray should pay the S & WB’s portion of the earlier judgment because the S & WB is insolvent. The trial court granted exceptions of no right of action and no cause of action and dismissed the plaintiffs’ lawsuit. It is from this judgment that plaintiffs now appeal. The defendants have also answered the appeal.

DISCUSSION

On appeal, the plaintiffs raise the following assignments of error: 1) the trial court erred in granting defendants’ exceptions of no cause of action and no right of action, and it further erred in denying plaintiffs’ motion for new trial as to those exceptions; 2) the trial court erred in holding that, in order to proceed against Gray Insurance as the insurer of the Sewerage & Water Board, plaintiffs must, under the direct action statute, prove that the S & WB is insolvent; 3) the trial court erred in holding that in order to proceed against Dren-nan under the oblique action, plaintiffs must first allege and prove that the S & WB is in fact insolvent. Where lathe S & WB is incapable of paying the judgment at any time in the foreseeable future and where plaintiffs are statutorily barred from enforcing their judgments against the S & WB, the S & WB is essentially insolvent such that plaintiffs should be allowed to proceed against Drennan under the oblique action without proving complete insolvency of the S & WB; and 4) the trial court erred in not allowing plaintiffs to amend their petition so as to state on information and belief that the S & WB is actually insolvent. Although, as set forth in item 3 above, proof of actual insolvency should have been allowed to amend to so aver and then take discovery as to the actual insolvency of the S & WB. In their answer to the appeal, the defendants contend that the trial court erred in not granting their exceptions of res judicata, preclusion, prescription and peremption.

The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La.3/17/06), 929 So.2d 1211; See also La. C.C.P. art. 927. The exception of no cause of action determines whether, based on the facts alleged in the four corners of the petition, the law affords the plaintiff a remedy. The court accepts the allegations of the petition as true, and decides whether the plaintiff is legally entitled to the relief claimed in the petition. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). In the instant case, there is no judgment ruling that the S & WB has a valid contractual claim for defense and indemnity against Drennan or Gray. These claims have never been judicially determined. Accordingly, plaintiffs cannot step into the S & WB’s shoes and enforce an alleged debt.

14As stated above, the plaintiffs have filed an oblique action, in which they attempt to step into the shoes of the S & WB, and bring claims on behalf of the S & WB against Drennan and Gray. However, Louisiana Civil Code Article 2044 allows an oblique action only when there is “insolvency” caused or increased by the debtor’s failure to exercise a right. There has been no showing made that the S & WB is insolvent or that it has failed to exercise a right against Drennan or Gray. Accordingly, the plaintiffs’ oblique action fails. The plaintiffs’ claims under the direct action statute also fail because the plaintiffs already filed a direct action against Gray in their earlier lawsuit.

With regards to the defendants’ arguments concerning res judicata, preclusion, prescription and peremption, we need not address these issues because they were not ruled on by the trial court and our consideration of them would not change the outcome of this case.

CONCLUSION

For the foregoing reasons, the judgment of the court below is affirmed.

AFFIRMED

      . 2001-5872, 2001-7644 and 2001-11236


author: KITCHENS, Justice,

text:
    INTOWN LESSEE ASSOCIATES, LLC; InTown Lessee Services, LLC; IT Tenant RBS, LLC; and Timothy Tucker v. Michael Keith HOWARD, Individually, and Shannon Poole, Individually.
    No. 2009-CA-01987-SCT.
    Supreme Court of Mississippi.
    June 30, 2011.
    Rehearing Denied Aug. 25, 2011.

      William ‘Trey’ Jones, III, Joseph Anthony Sclafani, attorneys for appellant.

      James Ashley Ogden, James W. Smith, Jr., Wendy Michelle Yuan, attorneys for appellee.
   KITCHENS, Justice,

for the Court:

¶ 1. Michael Howard and Shannon Poole were awarded a four-million-dollar jury verdict against InTown, an extended-stay motel, for injuries each sustained as victims of an armed robbery in the motel. Aggrieved, InTown appealed. Finding no error, this Court affirms the trial court’s judgment.

Facts

¶ 2. Michael Keith Howard and Shannon Poole had rented a room at InTown in June 2008, where the couple temporarily resided while waiting for a home to become available in Belhaven, a residential area in Jackson, Mississippi. On June 27, 2008, at approximately 9:30 p.m., Howard left the motel room to take his dog for a walk. As he was returning to the room, three men burst through the door, demanded money from the couple, and ransacked the room. One of the assailants hit Howard in the face with a hand gun, then pointed the gun at Poole’s head and demanded money. Howard and Poole denied having money in the room. Undeterred, one of the assailants flipped the mattress off the bed, while Poole was on top of the mattress, causing her to be pushed against a wall. The men found between $700 and $900 under the mattress. The assailants took the money, Howard’s and Poole’s drivers’ licenses, and Poole’s cell phone. Following the altercation, Howard and Poole were treated for various injuries that each had sustained during the attack. Initially, Howard was treated for broken bones in his face and numerous contusions and lacerations to his body. Prior to trial, Howard had to undergo facial reconstructive surgery. Poole sustained contusions and bruises in the attack, followed by soreness and severe psychological damage. Howard and Poole were under the continuing care of physicians and psychiatrists. No arrests were made in connection with the armed robbery and physical assaults.

¶ 3. Howard and Poole filed their joint complaint against the defendants on July 18, 2008, alleging: (1) that they were invitees of InTown; (2) that they were seriously injured because the defendants had failed to fulfill their joint, several, and collective duties to use reasonable care and to take adequate and reasonable security precautions or measures to protect invitees of InTown, including the plaintiffs, from foreseeable harm and danger, including the harm suffered by Plaintiffs; (3) that, before June 27, 2008, InTown knew or should have known that it had inadequate security, that strangers, trespassers and loiterers frequently came onto its property, that the wooden fence surrounding part of its property was in disrepair, that the locks on the guest room doors were not working properly, and that the property was not reasonably safe; (4) that InTown had failed to remedy or repair the unsafe conditions and inadequacies of the property; (5) that InTown had a duty to the plaintiffs to make sure that the facilities, including all common areas, as well as guest rooms, were secure, safe, and fit for their particular purposes, that reasonable security measures were provided and maintained, that the property, including the fences surrounding part of the property and the locks on all guest room doors, were properly maintained, and that general upkeep of the property was performed; (6) that InTown had specific control and authority to make management decisions material to the personal safety and security of the plaintiffs; (7) that InTown had specific control and authority to make management decisions pertaining to the hiring, firing, and suspension of employees or security at the motel; (8) that InTown’s agents and/or employees had warranted and/or covenanted that the property where Howard and Poole were staying as invitees was secure, safe, fit for its particular purpose, properly maintained, under proper upkeep, and reasonable security measures were provided and maintained for the plaintiffs, that security would be adequate to both protect the room where the plaintiffs were staying, as well as control and maintain the property and enforce security procedures, including but not limited to stopping loiterers and trespassers from entering the property and/or removing trespassers and loiterers from the property; (9) that InTown had failed to provide adequate first aid to the plaintiffs and had failed to instruct its employees on providing first aid to the plaintiffs; and (10) that InTown had failed to warn Howard and Poole of the atmosphere of violence that existed on and around the property, had failed to provide notice of the prior crimes occurring on and around the property, and had failed to warn the plaintiffs of the previous assaults and robberies occurring on and around the property.

¶ 4. Trial commenced on September 21, 2009, and the jury returned a general verdict in favor of Howard and Poole on September 23, 2009.

¶ 5. Numerous Jackson police officers testified at trial regarding calls for service at InTown. One officer had been called to InTown Suites as many as thirty times to respond to “armed robberies, auto burglaries, car jackings, just auto thefts; different things of that nature ... primarily major crimes.” The officer had advised the manager of InTown that the crime problem on the property could be eliminated by hiring professional security.

¶ 6. A lieutenant with the Jackson Police Department testified that “InTown Suites ... had a number of problems on their property. Specifically they’ve had robberies. They’ve had burglaries. Cars have been stolen. There’s prostitution, drugs on the property; just anything you can think of.” The lieutenant testified that he was “advised that [InTown] had a courtesy officer. He was not a security officer, nor a security guard.... [T]he difference is a courtesy officer, he was not armed and was not properly trained to handle any type situations that would come up. He was only to call the police ... if he saw something there on the property criminal in nature.” The lieutenant also testified that he had told the manager of InTown that off-duty officers “would be more than willing to come out there and work off duty after we got off work to patrol the property....” The lieutenant further testified that he had instructed the manager that InTown should be informing its customers of the problems that had been occurring on the property, and that the manager had indicated that InTown would have no customers if such a warning were given.

¶ 7. Another officer testified that he was a part of the “delta strike force,” which the Jackson Police Department had formed in an effort to deter crimes along the Interstate 55 corridor. He testified that InTown Suites was a target area that the delta strike force was to patrol. He explained that the delta strike force’s duty was to “go through [InTown’s] parking lot, make sure there was no cars broke into, no illegal happenings on the streets or on the property itself. Mostly we were there to try to answer calls and be quick as possible in responding to calls that may happen at InTown Suites or other locations.” He also testified that, when the task force was on InTown property, no criminal activity transpired. He further testified that he had informed the manager of InTown that there was a crime problem on its property and that “they should try to go ahead and get a professionally trained security service” to solve the crime problem on the property.

¶ 8. Charles Campbell, the property manager of InTown Suites in Jackson on the date that Howard and Poole were attacked in their room, testified that one of InTown’s duties was “to ensure that customers were provided adequate protection from crime that would occur on the property.” He also testified that he was in contact with his regional manager on a daily basis and that he often informed regional and corporate officials that there was a crime problem at the Jackson property. Campbell testified that he had asked his regional manager to provide security at the Jackson location of InTown Suites on more than one occasion, and that the regional manager always had told him that InTown had insufficient funds to hire armed security.

¶ 9. Several expert witnesses also were called to testify. Kenneth Goodrum, a commander with the Jackson Police Department, was accepted without objection as a plaintiffs’ expert “in the area of security with emphasis in the area of premises.” Commander Goodrum testified that he had reviewed “all the documentation and the evidence that was given to [him,] as well as the depositions and offense reports” in this case. Commander Goodrum had completed a crime history report of the Jackson location of InTown, and was able to determine that, in the two-and-a-half-year period prior to Howard and Poole’s injuries, “eight armed robberies, 32 auto thefts, 55 auto burglaries, six hold-up alarms, 15 simple assaults ... three armed robberies of businesses, four men with a gun, two vandalisms, 48 disturbances and 12 threats” had occurred on the property of InTown. Without objection, Commander Goodrum testified that the assault of Michael Howard and Shannon Poole “was preventable. And my opinion is that if they would have hired off-duty police officers or armed security guards to patrol that parking lot and patrol their property, it would have been able to be prevented.”

¶ 10. Plaintiffs deposed David Groves, a regional director of operations for InTown. Groves testified that approximately twelve InTown properties have armed security on the property, and that the decision to provide armed security guards at a particular property is decided on a case-by-case basis. Groves said that the general manager would have to request that armed security be provided, and then the decision to provide security personnel would be up to InTown’s corporate officials. Part of Groves’s deposition was read into the record at trial. InTown objected, but the trial court reasoned that “it still is a part of that testimony which shows notice with reference — and it goes to the issue of foreseeability, which is an issue in this case. And I think it probably deals with the issue of security in its entirety. As such, I’m going to allow the testimony with reference to ... Groves.”

¶ 11. The plaintiffs offered an economist, who testified regarding Poole’s claim for future loss of wages. The economist opined that Poole’s future loss of income ranged from $574,209 to $1,922,589. In-Town did not object at trial to the testimony or methodology of the economist. Dinesh Goel, M.D., a board-certified general surgeon and accepted expert in the fields of general surgery and family medicine, testified at trial. Dr. Goel had treated both Howard and Poole for their injuries sustained after being attacked at InTown. Dr. Goel testified that Howard was treated for a fractured cheek bone and orbit bone of his left eye, which required multiple surgeries. Dr. Goel did not perform Howard’s surgeries; however, he had reviewed the surgical records. Dr. Goel further testified that Howard would need additional surgeries to correct those injuries completely. Dr. Goel said that the estimated cost of Howard’s future surgery would be between $5,000 and $8,000.

¶ 12. Dr. Goel testified that, in addition to Howard’s badly broken cheek bone and orbit bone, he had suffered a broken jaw, a head injury, and a bulging disk. Additionally, Howard had suffered post-traumatic stress disorder as a result of the attack at InTown. As a result of his injuries and post-traumatic stress disorder, Howard had headaches, nightmares, sleep loss, and exhibited symptoms of depression, for which Dr. Goel had referred Howard to a psychiatrist for treatment. Dr. Goel further testified that he did not “expect [Howard’s symptoms] to get cured, but they’re going to wax and [wane]. They’re going to get better at times, they’re going to get worse at times, but he’s going to live with it.”

¶ 13. Regarding Dr. Goel’s future treatment of Howard, he testified that Howard would “need a follow-up on a monthly basis and even quarterly later on,” and that the cost of that treatment would be approximately $3,000 to $4,000 per year, plus the cost of medications.

¶ 14. Dr. Goel testified that Poole had suffered head, back, and neck injuries as a result of being attacked at InTown on June 27, 2008. He said that he initially had treated her with pain medications, and later referred her to a psychiatrist for treatment of her post-traumatic stress disorder, headaches, nightmares, and sleep loss. Dr. Goel said that Poole would need to have medical follow-ups on a regular basis, and that the future cost of her medical care would be approximately $1,000 to $2,000 per year. Further, Dr. Goel said that her condition is “going to wax and [wane], but it’s not going to go away. It’s been more than a year she’s been hurting and suffering with it. I think she’s going to stay with it.”

¶ 15. Krishan Gupta, M.D., a psychiatrist, treated Howard and Poole for post-traumatic stress disorder. Dr. Gupta testified that his initial diagnosis of Howard was “adjustment disorder and acute stress disorder. As time progresses, we can find the signs and symptoms of post traumatic stress disorder. • And we gave a diagnosis of post traumatic stress disorder.” Dr. Gupta also testified that Howard was “doing a little better, but still needs continuous psychotherapy and medication management.” Dr. Gupta further testified that post-traumatic stress disorder “is a psychological scar in the brain. This will not go away. It’s not a physical injury you can see like [Howard’s] face was reconstructed, but psychological cannot be. So they’re going to be there as long as [Howard] is living on this earth.”

¶ 16. Dr. Gupta said that “in the initial evaluation [Poole] was very anxious, so I gave her a diagnosis of acute stress disorder. As the time progressed as we understand more about [Poole], we gave a diagnosis of post traumatic stress disorder later on.” Dr. Gupta said that Poole had suffered from panic attacks, but that most of the panic attacks were from her post-traumatic stress disorder. Further, Dr. Gupta testified that Poole was “not making much progress. She needs more counseling, and she needs more intensive therapies which will help her to come out and function like [Howard] is doing right now. [Howard] is holding a job at this time. [Poole] is not able to do that at this time at all.” He also said that Poole would need continued treatment with medication.

¶ 17. Dr. Gupta testified that, over the lifetime of both Howard and Poole, the cost of each individual’s psychiatric treatment would be, at a minimum, $500,000.

¶ 18. At the close of the plaintiffs’ casein-chief, InTown rested without presenting evidence. The jury returned a general verdict in the amount of $2,000,000 for Howard and $2,000,000 for Poole.

Issues

¶ 19. On appeal, InTown raises the following issues:

I. Whether the trial court erred in denying InTown’s motion for directed verdict and motion for JNOY.
II. Whether InTown owed a duty to Plaintiffs to warn them of the alleged generalized “atmosphere of violence” on and around the Jackson property.
III. Whether the cumulative effect of the admission of irrelevant and inadmissible evidence was highly prejudicial to InTown.
IV. Whether the trial court erred by refusing InTown’s comparative negligence instructions.
V. Whether the trial court failed to comply with the statutory cap on noneconomic damages; alternatively, whether the trial court erred in denying InTown’s request for remit-titur.

Discussion

I. Whether the trial court erred in denying InTown’s motion for directed, verdict and motion for JNOV.

¶ 20. At the close of all of the evidence, InTown moved for a directed verdict on the issue of causation. InTown began its argument with the following statement: “I realize the plaintiffs have established a duty was owed, and that’s admitted. But I believe the plaintiffs have failed to establish ... that regardless of security that was present or regardless of any actions that were taken, the plaintiff failed to show that any additional security or any additional acts could have prevented the event from happening.” The trial court denied InTown’s motion for directed verdict. In-Town filed a post-trial “Motion for Judgment Notwithstanding the Verdict, or in the alternative, Motion for a New Trial, or, in the alternative, Motion for a Remittitur and/or Motion to Amend the Verdict,” arguing that “[t]he jury’s verdict reflected a finding that the alleged inadequacy of security was the proximate cause of the Plaintiffs’ [injuries]” because “the evidence presented at trial failed to establish that this alleged inadequate security was the sole cause of the subject incident.” The trial court denied InTown’s post-trial motion.

¶ 21. On appeal, InTown argues that Howard and Poole “failed to meet their burden to establish that the proximate cause of their assault was the failure of InTown to employ an armed, off-duty JPD officer to provide security at the Jackson property.” InTown argues that the plaintiffs “were required to proffer sufficient evidence to establish that the failure of InTown to employ an armed, off-duty JPD officer was a substantial factor in bringing about their injuries, and had InTown employed an armed, off-duty JPD officer the harm would not have occurred.” Further, InTown alleges that “[t]he only record evidence on the issue of whether InTown’s failure to employ an armed, off-duty officer was the proximate cause of Plaintiffs’ assault is the conclusory statement of Plaintiffs’ proffered ‘expert’ JPD Officer Kenneth Goodrum.” InTown argues that the plaintiffs failed to meet that burden; therefore, it was entitled to a judgment notwithstanding the verdict. We disagree and affirm the trial court on this issue.

¶22. “The standard of review for the denial of a motion for a judgment notwithstanding the verdict (JNOV) is de novo.” United Services Auto. Ass’n (USAA) v. Lisanby, 47 So.3d 1172, 1176 (Miss.2010) (citing U.S. Fid. and Guar. Co. of Miss. v. Martin, 998 So.2d 956, 964 (Miss.2008)). “A motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a JNOV if there is substantial evidence to support the verdict.” Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 948 (Miss.2008) (citing Johnson v. St. Dominies-Jackson Mem’l Hosp., 967 So.2d 20, 22 (Miss.2007)). “This Court will con sider the evidence in the light most favorable to the appellee, giving the party the benefit of all favorable inference[s] that may be reasonably drawn from the evidence.” Spotlite Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364, 368 (Miss.2008) (quoting Ala. Great S. R.R. Co. v. Lee, 826 So.2d 1232, 1235 (Miss.2002)). “In essence, judgments as a matter of law present both the trial court and the appellate court with the same question-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.” USAA, 47 So.3d at 1176 (quoting White v. Stewman, 932 So.2d 27, 32 (Miss.2006)). “[T]his Court applies the same standard of review as it applies when reviewing the denial of directed verdict or JNOV.” Solanki v. Ervin, 21 So.3d 552, 557 (Miss.2009).

¶23. The substantial evidence submitted by the plaintiffs was more than legally sufficient, and included a stipulation that InTown’s management and employees had been the victims of three armed robberies that had closely preceded these attacks. InTown rested without calling a single witness to rebut the plaintiffs’ substantial lay and expert witness testimony. By the presentation of their lay and expert witnesses, the plaintiffs had created a question sufficient for the jury’s determination. The evidence, as applied to the plaintiffs’ case, is not “so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” USAA, 47 So.3d at 1176.

II. Whether InTown owed a duty to the plaintiffs to warn them of the alleged generalized “atmosphere of violence” on and around the Jackson property.

¶ 24. InTown argues for the first time on appeal that the trial court erred in giving a jury instruction that provided that the jury could find against InTown if it found that InTown had failed “to warn Michael Keith Howard and Shannon Poole of the existence of a known dangerous condition.” InTown argues that Jury Instruction Number 11 “improperly permitted the jury to find InTown liable if the jury agreed with Plaintiffs’ novel theory and believed that InTown breached a duty to warn Plaintiffs of the generalized ‘atmosphere of violence’ on and around the Jackson property.”

¶ 25. This Court “has held that unless substantial rights are affected, issues not presented to the trial judge are procedurally barred from being raised for the first time on appeal.” Ill. Cent. R.R. Co. v. Byrd, 44 So.3d 943, 948 (Miss.2010) (citing Dora v. State, 986 So.2d 917, 925 (Miss.2008)). InTown did not make a contemporaneous objection to jury instruction number 11. InTown was afforded an opportunity to object to the plaintiffs’ theory of liability and supporting jury instruction before the trial court; however, InTown failed to avail itself of that opportunity, and is procedurally barred from attempting to do so for the first time on appeal. Id.

III. Whether the cumulative effect of the admission of irrelevant and inadmissible evidence was highly prejudicial to InToum.

¶ 26. InTown argues that the “trial court erred in admitting testimony regarding (a) the profitability of the Jackson property; (b) armed security provided by InTown at other locations across the South without requiring Plaintiffs to lay a proper foundation that the circumstances surrounding those other properties were similar to the circumstances surrounding the Jackson property; and (c) the alleged motive/reason why InTown did not employ an armed, off-duty JPD officer at the Jackson property.”

¶ 27. “The standard of review regarding admission or exclusion of evidence is abuse of discretion. Where error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’” Whitten v. Cox, 799 So.2d 1, 18 (Miss.2000) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)).

A. Whether the trial court erred in allowing Howard and Poole to offer evidence regarding the financial condition/profitability of the Jackson property.

¶ 28. InTown argues that it was highly prejudicial for the trial court to allow the plaintiffs to adduce testimony regarding the profitability of InTown for the year preceding the armed robbery of Howard and Poole. However, InTown failed to make a contemporaneous objection to this line of questioning at trial. Our longstanding case law is clear “that the failure to make a contemporaneous objection to the evidence waives the issue on appeal.” Hyundai Motor America v. Applewhite, 53 So.3d 749, 755 (Miss.2011). Because InTown did not make a contemporaneous objection to the plaintiffs’ eliciting InTown’s profitability for the year 2007, it is procedurally barred from pursuing the issue for the first time on appeal.

B. Whether the trial court erred in allowing Howard and Poole to offer evidence regarding armed security provided by InTown at other locations across the South without requiring them to lay a proper foundation for such evidence.

¶ 29. Portions of the deposition of David Groves were read in the presence of the jury, over InTown’s objection. The trial court allowed the evidence to be presented to the jury, reasoning that “it still is a part of that testimony which shows notice with reference — and it goes to the issue of foreseeability, which is an issue in this case. And I think it probably deals with the issue of security in its entirety. As such, I’m going to allow the testimony with reference to ... Groves.” Assuming, arguendo, that the admission of this evidence was in error, the remaining evidence of foreseeability and need for additional security was clearly established, and was not contested by the appellants. The admission of that portion of Groves’s deposition did not affect a substantial right belonging to InTown. See Whitten, 799 So.2d at 13.

C. Whether the trial court erred in allowing Howard and Poole to offer evidence regarding the alleged motive/reason why InTown did not employ an armed, off-duty JPD officer at the Jackson property.

¶ 30. InTown argues that plaintiffs’ counsel improperly argued that InTown’s motive for not employing an armed security officer was because InTown did not want to provide the funding for such an officer. InTown argues for the first time on appeal that plaintiffs’ counsel made inappropriate comments during opening arguments. InTown did not make a contemporaneous objection to plaintiffs’ counsel’s opening argument.

¶ 31. InTown also complains of the following questions by plaintiffs’ counsel and Charlie Campbell’s responses:

Q. Did [InTown’s regional manager] ever ask about security at the property?
A. No. We talked about it, but I mean it really didn’t do any good to talk about it because the answer was always we don’t have the money.
Q. What, if anything, did you ask from corporate after the second robbery?
A. I asked if they could either get me a bullet proof glass up there or armed security.
Q. What was corporate’s response to your request as the manner of In-Town Suites?
A. We don’t have the money for that.
All right. Is there any doubt in your mind that the information you’re sending to corporate, that it’s getting there? &

A. Oh, yes, it was getting there.

Q. How do you know it’s getting there?

A. Because of discussions with my boss at the time.

Q. What discussions were you having?

A. I mean I would ask — if he’d come by, I’d ask, you know, what are we going to do about security. And his answer was always we don’t have the money, you know. And I finally asked do we have the money for my life, you know, and didn’t get an answer.

InTown failed to interpose a contemporaneous objection to that line of questioning. Because of its failure to make a contemporaneous objection to the opening statement or the questions on cross-examination, In-Town waives the issue on appeal; InTown is procedurally barred from raising this issue. Hyundai 53 So.3d at 755.

IV. Whether the trial court erred by refusing InTown’s comparative negligence instructions.

¶ 32. InTown argues that it was entitled to a comparative fault instruction because the jury could have apportioned the Plaintiffs “some fault for their personal injuries.” InTown argues that Howard and Poole should have immediately given their money and possessions to the three assailants who had broken into their room, rather than insisting that they did not have money. InTown argues that the plaintiffs’ injuries would have been less severe if they had done as the robbers had insisted.

¶ 33. “It is well settled that jury instructions generally are within the discretion of the trial court, so the standard of review for the denial of jury instructions is abuse of discretion.” Newell v. State, 49 So.3d 66, 73 (Miss.2010). “Jury instructions must fairly announce the law of the case and not create an injustice against the defendant. This rule is summed up as follows: ‘In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.’ ” Davis v. State, 18 So.3d 842, 847 (Miss.2009) (quoting Milano v. State, 790 So.2d 179, 184 (Miss.2001)).

¶ 34. Mississippi Code Section 11-7-15 provides that:

In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.

Miss.Code Ann. § 11-7-15 (Rev.2004). Moreover, our case law provides that “[evidence of the plaintiffs own negligence may operate to reduce the plaintiffs damages. Indeed, we have a number of cases where we have sensitively assessed a plaintiffs own negligence when he makes the charge that the jury’s damage award is grossly insufficient.” Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1162 (Miss.1992). However, we have no case law that supports InTown’s argument that the victims of this armed robbery had a duty to mitigate their damages by abiding by the robber’s demands. The cases from other states cited by InTown in support of their argument are clearly distinguishable. To penalize a crime victim for his failure to cooperate with his assailant would constitute a bizarre and perverse misapplication of the doctrine of comparative fault. The trial court did not abuse its discretion in denying InTown’s request for a comparative negligence instruction.

V. Whether the trial court failed to comply with the statutory cap on noneco-nomic damages; alternatively, whether the trial court erred in denying InTown’s request for remittitur.

¶ 35. In its post-trial “Motion for Judgment Notwithstanding the Verdict, or in the alternative, Motion for a New Trial, or, in the alternative, Motion for a Remittitur and/or Motion to Amend the Verdict,” In-Town attacked the expert testimony used to calculate the plaintiffs’ economic damages, although it had not objected to that testimony at trial. It further argued that “[t]he fact that these two [plaintiffs were awarded the exact same amount [of damages] after presenting such differing testimony as to how they were affected by this incident, and that their alleged economic losses were significantly different should be overwhelming evidence of bias, passion or prejudice. As a result, the judgment should be reduced.” InTown then argued that “Plaintiffs are capped in their recovery for non-economic damages, the judgment is excessive in light of the relevant testimony and Defendants respectfully move [the trial court] for a remittitur or a new trial on the issue of damages.” Finally, InTown moved the trial court “for a remittitur or, in the alternative, to amend the judgment to properly reflect an amount in damages which is substantiated by the evidence in law, and to amend the judgment to comply with Mississippi statutory and case law.” The trial court denied InTown’s post-trial motion.

¶ 36. On appeal, InTown argues that the trial court should have given the jury “a verdict form that would require the jury to segregate economic damages from non-economic damages[,] enabling the trial judge to perform her statutory duty to apply the $1,000,000 cap on non-economic damages.” InTown also argues that “the failure of the trial judge to either submit to the jury a verdict form that would require the jury to segregate economic damages from non-economic damages, or to inquire of the jury post-verdict how it arrived at its damage calculation requires a new trial.” InTown did not object to the jury instruction on the form of the verdict, and InTown did not request a jury instruction that the form of the verdict should segregate economic damages from noneco-nomic damages.

¶ 37. Finally, on appeal, InTown attacks the plaintiffs’ experts’ testimony and argues that “[g]iving [the plaintiffs] the benefit of the full $1,000,000 cap on non-economic damages, the maximum amount of damages, based on the trial testimony, that could have been awarded to Howard is $1,692,400,” and the maximum amount of damages “that could have been awarded to Poole is $1,853,800.” InTown argues that the trial court erred in denying its remittitur, and that this Court should “order the trial court [to] reduce [the plaintiffs’] damage award.... ”

A. Whether the trial court failed to comply with the statutory cap on noneconomic damages.

¶ 38. Mississippi Code Section 11-1-60 provides, in pertinent part, that:

(2)(b) In any civil action filed on or after September 1, 2004, other than those actions described in paragraph (a) of this subsection, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneco-nomic damages.
(c) The trier of fact shall not be advised of the limitations imposed by this subsection (2) and the judge shall appropriately reduce any award of noneconomic damages that exceeds the applicable limitation.

Miss.Code Ann. § 11 — 1—60(2)(b), (c) (Supp. 2010).

¶ 39. InTown argues that the jury returned a verdict in which it is unable to determine what amount was awarded for economic damages and what amount was awarded for noneconomic damages, and because the two types of damages were indistinguishable, the trial court “erred by failing to take sufficient steps to enable her to discharge her statutory duty to apply the cap on noneconomic damages and reduce the jury verdict in accordance with Miss.Code § 11 — 1—60(2)(b).” InTown further argues that “[w]hile in some cases it may be possible for the appellate court to review the trial testimony and make a determination regarding the amount of economic and non-economic damages awarded by the jury, in this case, the jury awarded each Plaintiff exactly $2,000,000 in damages based on testimony that provided a range of possible amounts for each element of damages calculation, as opposed to exact amounts for each element of the damage calculation.” InTown alleges that “it is not possible for this Court to determine with any degree of accuracy how much the jury awarded each Plaintiff for economic damages and non-economic damages thus enabling this Court to apply the statutory cap on non-economic damages,” and asserts that “it should not be deprived of its right to have the statutory cap on non-economic damages applied to Plaintiffs]’ damage awards due to the error of the trial judge.”

¶ 40. Jury Instruction Number 12 provided that:

You are instructed that “damages” is the word which expresses in dollars and cents the injury sustained by Michael Keith Howard and Shannon Poole, if any, that you find by a preponderance of the evidence.
In order to recover damages, they must be shown with reasonable probability both as to their nature and as to their cause. However, a plaintiff does not lose his/her right to recover damages because he/she is unable to prove with absolute certainty the mathematical value of his/her injury. If the cause of the injury is reasonably probable, you may reasonably estimate the damages, and the assessment thereof is with[in] the sole discretion of the jury.

¶ 41. Jury Instruction Number 18 provided that:

The Court instructs the jury that if your verdict be for the Plaintiffs Michael Keith Howard and Shannon Poole of (sic) in this cause, in arriving at the amount of your verdict, you may take into consideration any or all of the following elements of damages, if any, which you find from a preponderance of the evidence in this case to have resulted from the negligence, if any, of the Defendants.
(a) All past present and future pain, suffering and mental anguish, if any, sustained by the Plaintiffs.
(b) All past and future lost earnings, if any, proximately resulting from Plaintiff Shannon Poole’s injuries.
(c) Any past and future medical costs and surgeries if any.
In arriving at the amount of your verdict, you may award the plaintiffs Michael Keith Howard and Shannon Poole such an amount of money which you feel will adequately and reasonably compensate the Plaintiffs for any and all of the above listed elements of damage, if any, which you find from a preponderance of the evidence in this case to have resulted from the negligence, if any, of the Defendants.

¶ 42. Jury Instruction Number 14 provided that:

You are instructed that if you find for Plaintiffs, Michael Howard and Shannon Poole, in this case, you are not authorized to find for any amount beyond reasonable compensation for the injuries sustained, if any. You are not authorized to award any damages in the nature of a penalty or attorney’s fees, nor are you bound by any estimates of damages made by the attorneys representing the parties in this suit. If you find for the Plaintiffs, you must therefore confine your verdict to a reasonable compensation for the injuries actually sustained, if any, by the Plaintiffs as a result of the incident in question. You are further instructed that these Defendants are not responsible for any physical or mental problems that the Plaintiffs might have had prior to the incident in question, nor any physical or mental problem that is not related to any injury the Plaintiffs might have suffered as a result of the incident in question.

¶ 43. Jury Instruction Number 18 provided that:

The Court instructs you that if you find for the Plaintiffs and against the Defendants your verdict should be in the following form:
“We the jury, find for the Plaintiffs and against Defendants Intown Lessee Associates, LLS; Intown Lessee Services, LLS; IT Tenant RBS, LLC and Timothy Tucker compensatory damages in the amount of $_ to Michael Keith Howard and compensatory damages in the amount of $ _ to Shannon Poole.” And you will write your verdict upon a separate piece of paper.
If you find against the Plaintiffs and in favor of the Defendants, then the form of your verdict shall be as follows: “We the jury find in favor of the Defendants.”

¶44. InTown did not object to these jury instructions. Because it did not object to the form of the verdict jury instruction at trial, InTown is procedurally barred from doing so on appeal. See Hyundai, 53 So.3d at 755. Additionally, because In-Town did not ask the trial court to give a jury instruction that separated economic and noneconomic damages, it cannot complain on appeal that such an instruction was not given. See King v. State, 857 So.2d 702, 720 (Miss.2003) (Defendant is “procedurally barred from asserting the absence of an individualized instruction,” and “a trial judge will not be put in error on a matter which was not presented to him for his decision.”). This Court does not engage in speculation or conjecture, and it would be nothing more than supposition for us to try to guess what amount the jury awarded in economic damages and what amount it awarded in noneco-nomic damages.

B. Whether the trial court erred in denying InTown’s request for a re-mittitur.

¶ 45. Alternatively, InTown argues that the trial court erred in denying its motion for a remittitur. InTown argues that Howard’s damages should be remitted from $2,000,000 to $1,692,400, and Poole’s damages should be remitted from $2,000,000 to $1,853,800. InTown argues that Howard’s economic damages ranged from $651,800 to $692,400, which would make his damages, at most, $1,692,400, including noneconomic damages, and that Poole’s economic damages ranged from $813,400 to $853,800, which would make her damages, at most, $1,853,800.

¶ 46. “The standard of review for trial court decisions regarding a remittitur is the abuse of discretion standard.” U.S. Fid. and Guar. Co. of Miss., 998 So.2d at 969. However, this Court has held that it “has the responsibility to see that such judicial discretion is exercised soundly and, if not, to reverse.” Id. (quoting Holmes County Bank & Trust Co. v. Staple Cotton Coop. Assoc., 495 So.2d 447, 451 (Miss.1986)). The standard for granting an additur or remittitur is whether or not “the court finds that the jury was influenced by bias, prejudice, or passion or ... if the damages were contrary to the overwhelming weight of credible evidence.” Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 944 (Miss.1992).

¶ 47. InTown does not cite any law supporting its contention that it is entitled to a remittitur. See Bowen v. State, 607 So.2d 1159, 1161 (Miss.1992) (“An argument unsupported by competent authority will not be considered on appeal”); M.R.A.P. 28(a)(6) (“The argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.”). Moreover, in light of the general verdict and In-Town’s failure to request a special verdict or special interrogatories, we cannot conclude that the trial judge abused her discretion in denying the remittitur.

¶ 48. Accordingly, the judgment of the Circuit Court of the First Judicial District of Hinds County is affirmed.

¶ 49. AFFIRMED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      . InTown Lessee Associates, LLC, InTown Lessee Services, LLC, IT Tenants RBS, LLC, and Timothy Tucker will collectively be referred to as ''InTown.”

      . These armed robberies occurred on November 6, 2007, January 3, 2008, and May 23, 2008.

      . InTown objected to plaintiffs’ counsel leading the witness during that line of question-mg, but failed to object to the substance of the questions and answers.

      . Appellants' motion for directed verdict was based on causation, see supra ¶ 22.