source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    COASTAL HARDWARE AND RENTAL COMPANY, LLC, Appellant/Cross-Appellee v. CERTAIN UNDERWRITERS AT LLOYDS, LONDON, Appellees/Cross-Appellants.
    No. 2011-CA-00765-COA.
    Court of Appeals of Mississippi.
    March 26, 2013.

      J. Brad Pigott,. Jackson, attorney for appellant.
    Whitman B. Johnson III, Michael F. Myers, Jackson, Paul L. Fields Jr., Richard E. Zelonka Jr., attorneys for appellees.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This ease involves a dispute between a hardware store leveled by Hurricane Katrina and its insurer, who denied coverage for the wind damage. The trial judge granted summary judgment in the store’s favor on the wind-coverage issue, and the case proceeded to trial on damages. A jury returned a verdict of $1.17 million in the store’s favor on its insurance-contract claim against the insurer. But the trial judge directed a verdict in the insurer’s favor on the store’s tort claim for lost net profits allegedly caused by the insurer’s denial of insurance proceeds. The trial judge also denied the store’s post-trial request for attorney’s fees and pre-judgment interest. Both parties appeal.

¶ 2. As to the wind-coverage issue, we affirm the grant of partial summary judgment. The damage occurred after the insurer issued the store a written binder for all-risk coverage but before a more formal policy was delivered. Based on the circumstances surrounding the formation of this agreement to be bound to coverage and the language of the written binder and quote, we cannot find that wind was an excluded risk.

¶ 3. We also affirm the grant of a directed verdict against the hardware store for failure to prove its tort claim against the insurer. We find the trial judge properly exercised her gatekeeper role when excluding expert testimony about the hardware store’s lost net profits. Without this testimony, the store lacked evidence of the only extra-contractual damages it alleged were proximately caused by the insurer’s bad-faith refusal to pay under the contract.

¶ 4. Finally, we affirm the trial judge’s denial of the hardware store’s request for attorney’s fees and pre-judgment interest, which it sought in a post-judgment motion. As the Mississippi Supreme Court recently held, the award of attorney’s fees is not a collateral matter that the judge can address through a post-trial motion. We acknowledge the trial judge’s authority to award pre-judgment interest had she found the insurer’s denial of wind coverage was in bad faith. But we find she did not abuse her discretion in finding that an ambiguity in the binder and quote gave the insurer a legitimate basis to deny wind coverage.

Background Facts

¶ 5. Coastal Hardware (Coastal) is located in Kiln, Mississippi. Prior to Hurricane Katrina, Coastal operated a 22,000 square foot retail space, containing lumber, hardware, and some clothing. Certain Underwriters at Lloyds, London (the Underwriters) are a group of underwriters that subscribed to the Certificate No. JA000700Y/0040, the particular policy that was to be issued to Coastal.

¶ 6. In July 2005, Coastal worked with its insurance agent, Dan McManus of Statewide Insurance, to renew its insurance that was to expire at the end of the month. For the previous policy year (July 2004-July 2005), Coastal had obtained through Lloyds, London a named-risk policy in which flood, earthquake, and wind were not named risks. Coastal had a separate wind policy with XL Specialty Insurance. Coastal had renewed its wind policy with XL Specialty Insurance for the July 2005-July 2006 policy year but let it lapse through nonpayment after it negotiated a new contract with the Underwriters.

¶ 7. Instead of offering another named-perils policy, the Underwriters had quoted an “all-risk” policy that expressly excluded flood, earthquake, and mold. Wind was not expressly listed as an excluded risk. However, in several places, when deductibles were addressed, the quote either stated wind was “excluded” or “not required.” McManus called the Underwriters’ American agent, John Hulen, and asked if wind was covered under the offered all-risk policy. Hulen refused to state a position but instead advised Mc-Manus to read the quote himself. On July 14, McManus sent XL Specialty a fax informing the insurer that, after renewing the wind policy, Statewide had “obtain[ed] a renewal quote on [Coastal’s] fire policy [in which] we were able to include wind and hail.” McManus asked for advise on the best way to cancel the separate wind policy and, prior to Katrina, intentionally allowed the wind policy to lapse due to nonpayment of the premium.

¶ 8. Coastal accepted the Underwriters’ quote and paid the $9,800 premium. The Underwriters agreed to bind coverage beginning July 23, 2005. On July 29, the Underwriters’ agent issued a two-page written binder for an “all perils” policy, listing “mold” as the only notable exclusion. But the binder did state that Coastal should “READ THIS CONFIRMATION CAREFULLY AND COMPARE IT WITH ANY QUOTE AND SUBMISSION DOCUMENTS AND REVIEW THE POLICY FORMS FOR THE ACTUAL COVERAGE PROVIDED.” The binder also stated: “THIS INSURANCE BINDER WILL BE TERMINATED AND SUPERSEDED UPON DELIVERY OF THE FORMAL POLICY(IES) ISSUED TO REPLACE IT.” (Emphasis added).

¶ 9. According to Hulen’s records, on Wednesday, August 24, Hulen received an electronic copy of the formal policy — which contained a wind exclusion — from the Underwriters. Hulen purportedly printed a hard copy and mailed the policy to Statewide. But a representative of Statewide claimed Statewide neither received the policy nor delivered it to Coastal. By Friday, August 26, the Mississippi Gulf Coast was bracing for Hurricane Katrina. Statewide closed its office early that day, having never checked the mail. When the storm struck Monday, August 29, both Statewide’s office and the U.S. post office in Kiln were destroyed. The mailed policy was never recovered.

¶ 10. The storm also destroyed Coastal’s 22,000 square foot building, forcing the hardware store to operate out of a much smaller building during hurricane recovery. Several weeks after the storm, Coastal contacted Hulen to make a claim. In a brief phone conversation, Hulen told Coastal that the policy did not cover wind damage and that Coastal should make a claim with its wind carrier.

Procedural History

¶ 11. Coastal sued the Underwriters, seeking both damages under the insurance contract and tort damages. Both parties moved for partial summary judgment on the issue of coverage under the insurance contract.

¶ 12. Mississippi Rule of Civil Procedure 56(c) directs that summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “Under Mississippi law, the interpretation of an insurance policy is a question of law, not one of faet[,]” so this issue was appropriate for summary judgment. Shelter Mut. Ins. v. Simmons, 543 F.Supp.2d 582, 585 (S.D.Miss.2008) (citing Noxubee Cnty. Sch. Dist. v. United Nat’l Ins., 883 So.2d 1159, 1165 (¶ 13) (Miss.2004)). The day before trial, the trial judge granted partial summary judgment in Coastal’s favor, finding that, through the insurance binder, the Underwriters had agreed to cover wind damage.

¶ 13. With coverage deemed established, trial proceeded on the issue of contract damages — what amount Coastal was owed under the policy. The jury heard evidence on this issue and awarded Coastal $1.17 million under the insurance policy. But Coastal’s tort claim for lost net profits never reached the jury.

¶ 14. As to Coastal’s tort claim — that the Underwriters’ willful and/or negligent failure to pay Coastal under the policy led to lost profits it would have realized if it had been able to timely invest the insurance proceeds it was due — the trial judge held Coastal’s accounting expert could not testify about lost net profits. Coastal’s tort claim for lost profits was separate from its claim for losses due to business interruption, a loss covered under the insurance contract. The trial judge excluded the expert’s testimony on lost net profits, finding the accountant could not identify the differences between business-interruption loss and lost net profits in a way that would not confuse the jury. The judge also found the expert, in his report and deposition, had failed to address lost net profits but instead opined about lost market share and lost gross sales.

¶ 15. The only tort damages Coastal sought to prove to the jury were damages for lost profits. And having excluded Coastal’s only evidence of lost net profits proximately caused by the Underwriters’ allegedly negligent denial of coverage, the trial judge directed a verdict in the Underwriters’ favor on Coastal’s tort claim.

¶ 16. The trial judge did submit the issue of punitive damages to the jury, which found punitive damages should not be assessed against the Underwriters.

¶ 17. After a judgment was entered, Coastal moved to alter and amend the judgment, seeking an award of prejudgment interest, attorney’s fees, and litigation expenses. See M.R.C.P. 59(e). Because the jury did not find the Underwriters’ denial of coverage warranted punitive damages, and because the trial judge likewise found no bad faith, she denied Coastal’s request. Coastal also moved for a new trial on its tort claim, arguing its expert testimony on lost net profits was wrongly excluded. This motion was also denied.

¶ 18. Both sides now appeal. Coastal claims the trial judge improperly excluded expert testimony on lost net profits and thereby wrongly granted a directed verdict on its tort claim. Coastal also appeals the denial of its post-trial motion to alter or amend the judgment to include pre-judgment interest and attorney’s fees.

¶ 19. The Underwriters cross-appeal the partial grant of summary judgment on the coverage issue.

Discussion

I. Coverage Under the Insurance Contract

¶ 20. We begin with the Underwriters’ cross-appeal and the issue of coverage, reviewing the grant of summary judgment de novo. See Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 762 (Miss.1989) (citation omitted).

A. Recognizing the Binder as the Insurance Contract

¶ 21. We must first clarify that the undelivered policy was not the insurance contract in force at the time of Hurricane Katrina—the binder was.

¶ 22. “[A] binder is a contract for temporary insurance, until either a permanent policy can be written or its issuance approved or disapproved by the insuror.” Miss. Farm Bureau Mut. Ins. v. Todd, 492 So.2d 919, 929 (Miss.1986) (citations omitted). “A binder is not an insurance policy but is generally taken to be a contract providing for interim insurance effective as of the date of the application and terminating at either completion or rejection of the principal policy.” 1A Stephen Plitt, Daniel Maldonado, & Joshua D. Rogers, Couch on Insurance § 13:1 (Rev. ed.2010). Mississippi recognizes binders as enforceable insurance contracts. See Todd, 492 So.2d at 929. “Although a binder may be sketchy and informal in comparison with the policy contemplated for issuance and delivery in the future, it is a contract of insurance [at present], subject only to the conditions that it imposes.” 1A Couch on Insurance § 13:1.

¶ 23. The Underwriters argue the trial judge erred by finding the written binder, which incorporated the quote, was “the final insurance contract.” We do agree that the binder anticipated a future formal policy. But the binder expressly stated it did not terminate “until delivery” of that policy. Since it is undisputed that the Underwriters’ 2005-2006 policy was never delivered, the binder never terminated. So the trial court was correct that the binder was the temporary insurance contract effective at the time of Coastal’s loss.

B. Construing the Binder

1124. Because the binder expressly “incorporate^] the terms of the prospective policy,” the question becomes—What was the scope of the policy Coastal intended to purchase and the Underwriters intended to issue? See Alea London Ltd. v. Bono-Soltysiak Enters., 186 S.W.3d 403, 410 (Mo.Ct.App.2006) (“When a loss occurs after coverage has been bound but before the issuance of a policy, the question of the scope of coverage is resolved by determining the amount of coverage contemplated by the binder.”).

¶ 25. We cannot answer this question by simply looking to the terms of the undelivered, unaccepted formal policy. As the Eighth Circuit has observed:

[ I]f binders are always to be read as including all of the limitations and exclusions that may turn up in the written policy when eventually issued, and if this rule is applied even to written policies issued after the occurrence of a loss, then the oral contract can be rendered completely nugatory by the unilateral act of one party to it, the insurance company.

Hilt Truck Lines, Inc. v. Riggins, 756 F.2d 676, 678 (8th Cir.1985).

¶ 26. Instead, we are guided by Mississippi Supreme Court precedent, which has looked to the circumstances surrounding the formation of the binder as well as the language of the written binder to determine coverage. Todd, 492 So.2d at 930; Gulf Nat'l Bank v. Hartford Fire Ins., 264 So.2d 401, 403 (Miss.1972). And after considering the relevant circumstances and language, we, like the trial judge, conclude that the binder covered Coastal’s wind damage.

1. The Circumstances

¶ 27. The Underwriters argue that, in finding the binder covered wind damage, the trial judge ignored the past dealings between Coastal and the Underwriters. As support, the Underwriters latch to the following language from Todd: “The general rule permits the essential terms of an insurance binder to be supplied by implication, but these terms must be readily infer-able from the prior course of dealing between the parties[.]” Todd, 492 So.2d at 930. They argue that to find the insurance contract covered wind damage would be to infer a term not in the binder. And because wind was not covered in the 2004-2005 policy, such an inference is not “readily inferable from the prior course of dealings.”

¶28. While this general rule perhaps applies where prior dealings mirror recent negotiations, here they do not. The contract for coverage in 2005-2006 was not merely a “renewal” of the 2004-2005 named-peril policy. Rather, the undisputed evidence showed Coastal was instead receiving expanded coverage through an all-risk policy.

¶ 29. This was certainly a distinctive change. “ ‘Named perils’ or ‘specific perils’ policies provide coverage only for the specific risks enumerated in the policy and exclude all other risks. ‘All-Risk’ policies provide coverage for all risks unless the specific risk is excluded.” Robichaux v. Nationwide Mut. Fire Ins., 81 So.3d 1030, 1039 n. 5 (Miss.2011) (quoting 7 Stephen Plitt, Daniel Maldonado, & Joshua D. Rogers, Couch on Insurance § 101:7 (3d ed.2006)). Further, with named-peril coverage, the insured “has the burden of proving that any losses were caused by a peril covered by the policy.” Tuepker v. State Farm Fire & Cas. Co., 507 F.3d 346, 356 (5th Cir.2007) (citing Lunday v. Lititz Mut. Ins., 276 So.2d 696, 699 (Miss.1973)). But with all-risk coverage, while the insured “still has the basic burden of proving his right to recover[,] ... the insurer bears the burden of proving that a particular peril falls within a policy exclusion[.]” Id. (quoting Leonard v. Nationwide Mut. Ins., 499 F.3d 419, 429 (5th Cir.2007)).

¶ 30. Consequently, the question of wind-damage coverage cannot be resolved by simply looking at the 2004-2005 named-perils policy, in which wind was not a named peril. By offering an all-risk policy, the Underwriters were offering to cover all risks, unless specifically excluded. So it is actually the Underwriters, not Coastal, that ask us to infer from the prior dealings that wind was an excluded risk from the all-risk coverage being offered.

¶ 31. Looking at the course of dealings between the parties, we cannot make such an inference. We note that Coastal’s agent, McManus, specifically asked the Underwriters’ agent, Hulen, if the 2005 quote for an expanded all-risk policy included wind. And Hulen admitted he did not inform McManus that wind was a specifically excluded risk. Hulen instead directed McManus to the language of the written binder to answer his question about wind-damage coverage. Thus, we cannot readily infer from the circumstances that the Underwriters intended to exclude wind, when they chose to rely on the written language of the binder and quote.

2. The Language of the Binder

¶ 32. Looking to the language of the binder, which incorporated the language of the quote by reference, the trial judge found that, at best, there was an ambiguity as to whether wind was an excluded risk. See Todd, 492 So.2d at 930 (looking to express terms of written binder to supply terms for oral binder); Gulf Nat’l Bank, 264 So.2d at 403 (looking to “the language of the binder itself’ in addition to “the circumstances” to find coverage); see also Hartford Nat’l Bank & Trust Co. v. United Truck Leasing Corp., 24 Mass.App.Ct. 626, 511 N.E.2d 637, 640 (1987) (“The binder contract ... is to be read in accordance with its terms and not in accordance with unexpressed terms which a party later wishes had been written into it.”).

¶ 33. The quote stated the Underwriters were offering “All risk of Physical Loss or Damage excluding Flood and Earthquake.” In addition to listing flood and earthquake as exclusions in the quote, the binder listed “mold” as the only “notable exclusion.” But neither the binder nor the quote specified that wind was an exclusion. It is only in sections of the quote and binder not dealing with exclusions but rather deductibles that the deductible for wind is listed as “excluded.” And in another section, the quote stated “not required” next to the line item for “WindStorm Cover.” We agree this creates an ambiguity.

¶ 34. The Underwriters argue the trial judge erred in construing the ambiguity against the drafter (the Underwriters) and in favor of coverage — finding wind was not a specifically excluded risk. In particular, the Underwriters insist that trial judges should not apply the canons used to construe insurance policies to the language of an insurance binder. We disagree.

¶ 35. Indeed, the general rule is that “a contract of temporary insurance is subject to the same rules of construction as any ordinary contract of insurance.” 1A Couch on Insurance § 13:6 (Rev. ed.2010).

¶ 36. Under these rules of construction:

• when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written;
• any ambiguities in an insurance contract must be construed against the insurer and in favor of the insured and a finding of coverage; and
• provisions that limit or exclude coverage are to be construed liberally in favor of the insured and most strongly against the insurer.

Simmons, 543 F.Supp.2d at 585 (citing Noxubee Cnty. Sch. Dist., 883 So.2d at 1165 (¶ 13); Nationwide Mut. Ins. v. Garriga, 636 So.2d 658, 662 (Miss.1994)).

¶ 37. And the rule that ambiguity is construed in favor of the insured and a finding of coverage applies to binder language just as it would to formal policy language. 1A Couch on Insurance § 13:6 (Rev. ed. 2010) (“In accordance with the general rule of construction, a binding receipt that is ambiguous is to be construed in favor of the insured.”); see also Sparks v. Shelter Life Ins., 838 F.2d 987, 989 (8th Cir.1988) (“Binding or conditional receipts are subject to the rules of construction generally utilized in interpreting insurance policies; if the provisions are ambiguous, making them susceptible to two reasonable constructions, one favorable to the insurer and one favorable to the insured, the latter will be adopted.”); Alea London Ltd., 186 S.W.3d at 412 (“With respect to the construction of binders in particular, a binder which is ambiguous should be construed in favor of the insured.”); DeFoure v. MFA Life Ins., 268 Ark. 829, 596 S.W.2d 7, 9 (Ark.Ct.App.1980) (“It is settled law that ambiguities in insurance contracts will be construed against the insurer who prepared it. Binding or conditional receipts are subject to this rule of construction.”).

¶ 38. Thus, we find nothing radical in the trial judge’s approach where she resolved the ambiguity in favor of the insured and applied the same principles to find in favor of Coastal on the issue of coverage. While the Underwriters argue this approach unfairly penalizes insurers for not listing in the temporary contract every exclusion that will appear in the later formal policy, we find no such penalty arising under these circumstances. When Hulen was given the opportunity to explain to Coastal’s agent whether the Underwriters intended to exclude wind, Hulen did not discuss the future policy but instead relied on the language of the binder and quote, without any further comment. According to the Underwriters’ own representative, the answer about wind coverage could be found in the binder and quote. And because the language of the binder and quote did not plainly and unambiguously specify wind as an excluded risk, we, like the trial judge, construe the binder in favor of the insured and find wind was a covered risk.

¶ 39. We affirm the judgment for $1.17 million in contract damages based on the trial judge’s grant of partial summary judgment on the coverage issue.

II. Exclusion of Expert Testimony

¶ 40. We now address Coastal’s issues on appeal.

¶ 41. Coastal seeks reversal of the grant of a directed verdict against Coastal on its tort claim and urges that we remand this claim for a new trial. Specifically, Coastal argues the directed verdict was improper because it resulted from an erroneous evidentiary ruling. While we review a grant of a directed verdict de novo, Solanki v. Ervin, 21 So.3d 552, 556 (¶ 8) (Miss.2009), “[o]ur well-settled standard of review for the admission or suppression of evidence is abuse of discretion.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003).

A. Coastal’s Tort Claim

¶ 42. In addition to its insurance-contract claim, Coastal sought extra-contractual damages, alleging the Underwriters’ grossly negligent and/or willful refusal to pay under the insurance contract rose to the level of an independent tort, or “bad faith.” See United Servs. Auto. Ass’n (USSA) v. Lisanby, 47 So.3d 1172, 1178 (¶ 18) (Miss.2010) (explaining level of malfeasance an insured must show to be entitled to extra-contractual damages); see also Fulton v. Miss. Farm Bureau Cas. Ins., 105 So.3d 284, 288 (¶ 20) (Miss.2012) (citing Universal Life Ins. v. Veasley, 610 So.2d 290, 295 (Miss.1992)) (discussing extra-contractual damages as an “intermediate form of relief1' between contractual and punitive damages). The only type of extra-contractual damages Coastal alleged and sought to prove at trial were lost profits it would have realized post-Katrina, had the Underwriters paid under the contract and had Coastal been able to use that money to reopen a 22,000 square foot retail space, instead of operating out of a much smaller building.

¶ 43. Lost profits are recoverable as extra-contractual damages “as long as such profits are proved with reasonable certainty, not based on speculation or conjecture.” Lovett v. E.L. Garner, Inc., 511 So.2d 1346, 1353 (Miss.1987). The particular lost profits that must be proved are “net profits as opposed to gross profits.” Id. (citations omitted) (“To ascertain net profits, a party must deduct such items as overhead, depreciation, taxes and inflation”).

¶ 44. Coastal sought to prove lost net profits through its accounting expert. The trial judge had accepted the expert as a qualified expert in accounting and permitted him to testify about Coastal’s contractual damages due to business-interruption loss. But the trial judge excluded his testimony about any extra-contractual damages in the form of lost net profits.

¶ 45. Without this testimony, Coastal had no evidence to prove lost net profits to a reasonable certainty. See id. Coastal does not dispute that without this evidence a directed verdict was proper. See Troupe v. McAuley, 955 So.2d 848, 858 (¶ 28) (Miss.2007) (holding directed verdict was proper because, “when considering all the evidence offered during the plaintiffs casein-chief, as well as all reasonable inferences which could be drawn from the evidence, all in the light most favorable to the plaintiff, the plaintiff was unable to make out a prima facie case”). Rather, Coastal argues that, but for the trial judge’s abusing her discretion and excluding the evidence, its tort claim would have survived the Underwriters’ motion for a directed verdict.

B. Tidal Judge’s Evidentiary Ruling

¶ 46. “The trial judge assumes the critical role as a gatekeeper in assessing the value of [proffered expert] testimony.” Webb v. Braswell, 930 So.2d 387, 397 (¶ 16) (Miss.2006) (citing McLemore, 863 So.2d at 39 (¶ 21)). “The trial judge has the sound discretion to admit or refuse expert testimony; ... [and] the judge’s decision will stand unless the discretion he used is found to be arbitrary and clearly erroneous.” Troupe, 955 So.2d at 856 (¶ 19) (quoting Poole v. Avara, 908 So.2d 716, 721 (¶ 8) (Miss.2005)). Because we find the trial judge’s decision to refuse the expert testimony on lost net profits was neither arbitrary nor clearly erroneous, the judge’s evidentiary ruling stands. And consequently, so does the grant of a directed verdict on Coastal’s tort claim.

¶ 47. To get past the gatekeeper, expert testimony must be both relevant and reliable. See M.R.E. 702. To be relevant, and thus admissible, expert testimony must “assist the trier of fact to understand the evidence or to determine a fact in issue[.]” Id.; see also Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 370 (Miss.1992). Here, the judge found the expert’s lost-net-profits testimony would not assist the jury to do either.

¶ 48. First, the judge found the expert failed to connect his projected lost profits to the Underwriters’ failure to pay under the insurance contract. Thus, the judge was skeptical whether his testimony would assist the jury in determining whether any damages were proximately caused by the Underwriters’ alleged bad faith refusal to pay. See Se. Med. Supply, Inc. v. Boyles, Moak & Brickell Ins., 822 So.2d 323, 328 (¶ 14) (Miss.Ct.App.2002) (citation omitted) (“requir[ing] that both the existence of lost profits damages as well as the showing that the cause of the lost profits is due to the breach must be shown with reasonable certainty”).

¶ 49. Second, the judge found the expert’s lost-net-profits testimony too confusing to aid the jury in understanding the evidence. The trial judge was troubled that the expert could not distinguish lost-net-profits from business-interruption losses in a way that would assist the jury in determining extra-contractual damages, versus contractual damages. Further, the expert could not explain how he arrived at a net-loss figure, versus a gross-loss figure, in a way that would assist the jury.

¶ 50. Interestingly, Coastal’s argument for why the trial judge erred in excluding the lost-net-profits evidence was that the judge “misunderstood” how the expert had calculated lost net profits. Coastal also asserts the trial judge improperly stepped into the role of fact-finder when excluding the evidence. Though Coastal describes the misunderstanding as a factual disagreement between the judge and expert about what expenses to subtract in arriving at a net figure, we disagree and instead find the trial judge was properly exercising her role as gatekeeper.

¶ 51. To be admissible, expert testimony has to “assist the trier of fact to understand the evidence.” M.R.E. 702. And by Coastal’s own characterization, the way its expert presented the issue of lost net profits created a misunderstanding about whether his figures were for lost net profits, lost gross profits, or lost gross sales. Because of this potential for confusion, we find the trial judge did not abuse her discretion by excluding this evidence under Rule 702.

¶ 52. The exclusion of Coastal’s expert’s testimony was also based on his failure to disclose his lost-net-profits calculations in his pretrial expert report or deposition, as required under Mississippi Rule of Civil Procedure 26(b) and (f). Recently, the Mississippi Supreme Court held a trial judge failed in his gatekeeper role when he permitted an expert to testify about future medical expenses “when the substance of his opinion in that regard was not provided to [opposite] counsel prior to trial.” Bailey Lumber & Supply Co. v. Robinson, 98 So.3d 986, 997-98 (¶¶-29-31) (Miss.2012). The supreme court explained that the expert-testimony-disclosure requirement of Mississippi Rule of Civil Procedure 26(b)(4)(A)(i) “means that the substance of every fact and every opinion which supports or defends the party’s claim or defense must be disclosed and set forth in meaningful information which will enable the opposing side to meet it at trial.” Bailey Lumber, 98 So.3d at 997 (¶ 30) (quoting Nichols v. Tubb, 609 So.2d 377, 384 (Miss.1992)).

¶ 53. Coastal suggests that, because of the way its expert addressed overhead expenses, what its expert called “gross profits” in his report and deposition were also the “net profits.” So as Coastal sees it, the Underwriters were by no means ambushed because Coastal’s lost-net-profits figures had already been disclosed. But Rule 26(b) requires an expert’s disclosure to be “set forth in meaningful information which will enable the opposing side to meet it at trial.” Bailey Lumber, 98 So.3d at 997 (¶ 30). And here, the judge found the disclosures for lost net profits were not presented in a meaningful way since it appeared the expert was only calculating lost gross profits and not the required lost net profits. Also, the fact it was not readily apparent from the expert’s report or deposition whether he was presenting lost-net-profits calculations — versus those for lost gross profits, lost net sales, or lost market share — further underscores the judge’s decision that his testimony was confusing and would not help the jury decide if extra-contractual damages were warranted.

¶ 54. Having evaluated the trial judge’s reasons for excluding the testimony about lost-net-profits evidence, we find no abuse of her discretion in exercising her role as gatekeeper and excluding the proposed expert testimony. Thus, we affirm the grant of a directed verdict against Coastal on its tort claim.

III. Denial of Post-Judgment Motion

¶ 55. Coastal’s final issue is with the trial judge’s denial of its Rule 59 motion to alter or amend the $1.17 million judgment to add attorney’s fees, expenses, and pre-judgment interest. See M.R.C.P. 59(e) (governing post-trial motions to alter or amend filed within tens days of the entry of the judgment). Our review of the denial a Rule 59 motion is limited to abuse of discretion. Fulton, 105 So.3d at 287 (¶ 9).

A. Attorney’s Fees and Expenses

¶ 56. Coastal argues the trial judge legally erred by holding that she would not award attorney’s fees and expenses because the jury had not awarded punitive damages. Coastal relies on Universal Life Insurance Company v. Veasley, which holds attorney’s fees may be awarded to insureds as extra-contractual damages when there is no arguable basis to deny coverage, even though the circumstances do not warrant punitive damages. See Veasley, 610 So.2d at 295.

¶ 57. Considering the procedural posture of Coastal’s request, we turn to a recent, factually similar case, where the supreme court distinguished Veasley because it did not address a post-judgment request for attorney’s fees. Fulton, 105 So.3d at 290 (¶ 20). In Veasley, the jury had awarded extra-contractual damages, even though it declined to award punitive damages, and the supreme court affirmed the award. Veasley, 610 So.2d at 292, 295. But in Fulton, the insured, who had prevailed against his insurer at trial but had not been awarded punitive damages, had requested attorney’s fees in a Rule 59 motion to alter or amend. Fulton, 105 So.3d at 286 (¶ 7), 287-88 (¶¶ 13-19). While the supreme court acknowledged that “Veasley permits an award of attorney’s fees without an award of punitive damages,” the court clarified that “Veasley does not stand for the proposition that attorney[’s] fees may be awarded post-trial[.]” Id. at 290 (¶ 27).

¶ 58. Instead, when an insured, like any other successful litigant, requests attorney’s fees and expenses post-judgment, “[a]bsent some statutory authority or contractual provision, attorneys’ fees cannot be awarded unless punitive damages are also proper.” Id. at 287-88 (¶ 16) (quoting Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (¶ 40) (Miss.2002)). “If independent grounds for attorney’s fees exist, a trial judge may award such fees collaterally. But if the jury does not award punitive damages, attorneys’ fees are clearly not to be awarded by the trial judge.” Id. at 288 (¶ 16) (internal citations an quotations omitted).

¶ 59. Here, no statute or contractual provision created the right to attorney’s fees. And the supreme court in Fulton emphasized that “Veasley does not create an independent right to attorney’s fees.” Fulton, 105 So.3d at 290. Because the jury did not award punitive damages, the trial judge had no authority to award attorney’s fees as a collateral matter post-judgment. See id. at 287-88 (¶¶ 14-19).

¶ 60. Since Coastal had no post-judgment right to attorney’s fees and expenses, its request fell under the standard for a Rule 59(e) motion to alter or amend. Id. at 287 (¶ 15). “[T]o succeed on a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice. Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss.2004). Coastal makes no argument that any of those three circumstances are present here.

¶ 61. Thus, we find no abuse of discretion in the trial judge’s denial of Coastal’s request for attorney’s fees and expenses.

B. Pre-judgment Interest

¶ 62. In contrast to attorney’s fees and expenses, “Mississippi [does] ree-ognize[] judicial authority to award prejudgment interest to a prevailing party in a breach of contract suit.” Moeller v. Am. Guar. & Liab. Ins., 812 So.2d 953, 958 (¶ 11) (Miss.2002) (citation omitted); see also Arcadia Farms P’ship v. Audubon Ins., 77 So.3d 100, 105 (¶ 18) (Miss.2012) (“As a general rule, ‘in actions for a breach of contract of insurance, when the amount which the insured is entitled to under the contract is withheld after payment is due, interest on such amount can be allowed as damages.’ ” (quoting State Farm Mut. Auto. Ins. v. Bishop, 329 So.2d 670, 673 (Miss.1976))). “For interest to be allowed, the amount due must have been liquidated when the claim was originally made, or the denial of the claim must have been frivolous or in bad faith.” Arcadia Farms P’ship, 77 So.3d at 105 (¶ 18) (citing Moeller, 812 So.2d at 958 (¶ 11)). Conversely, “interest may be denied where there is a bona fide dispute as to the amount of damages as well as the responsibility for the liability therefor.” Id. (quoting Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1380 (Miss.1990), abrogated on other grounds by Upchurch Plumbing, Inc. v. Greenwood Utils. Comm’n, 964 So.2d 1100, 1118 (¶ 45) (Miss.2007)).

¶63. “The purpose of prejudgment interest is not to penalize wrongdoing,” but rather to “compensate[ ] insureds for the time value of money.” Id. at (¶ 19) (citations omitted). “The decision to award such interest rests within the trial [judge]’s discretion.” Id.

¶ 64. The trial judge found there was a bona fide dispute not only over the amount of damages but also over whether the Underwriters were responsible to pay for wind damages. Though the trial judge held that, because of this ambiguity, the Underwriters were bound to provide Cos-tal coverage for wind damage, the judge reasoned that the ambiguity did create a legitimate reason for the Underwriters to dispute coverage. In United States Fidelity & Guaranty Company of Mississippi v. Martin, 998 So.2d 956, 971 (¶ 50) (Miss.2008), the supreme court held “that an insurance company could legitimately deny coverage under a policy that has ambiguous provisions for coverage.” Because we too find the binder and quote were ambiguous as to whether wind was an excluded risk, we find the trial judge did not abuse her discretion by finding the Underwriters did not act frivolously or in bad faith in denying coverage. We thus affirm the denial of pre-judgment interest.

¶ 65. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL SHALL BE DIVIDED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND THE APPELLEES/CROSS-APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Fulton v. Miss. Farm Bureau Cas. Ins., 105 So.3d 284, 288 (¶ 16) (Miss.2012).

      . Lloyds, London is not an insurance company but instead provides a market for the buying and selling insurance risk among its individual members. Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857-58 (5th Cir.2003). So Coastal's insurer was not Lloyds but instead the members, or underwriters, who agreed to buy the risk of insuring Coastal’s property.

      . McManus died in 2007, prior to giving any sworn testimony in this case.

      .Further, "[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.” M.R.C.P. 56(c).

      . Coastal's $1.17 million award included $20,000 for losses for business interruption.

      . Coastal additionally moved for a new trial on the issue of punitive damages but appeals neither the denial of this aspect of its post-trial motion nor the underlying jury verdict denying punitive damages.

      . The Underwriters also claim in their cross-appeal that the trial judge erred in prohibiting their representative at trial from speaking with their counsel after the representative had testified as an adverse witness. Because we find there are no issues to remand, we do not address this issue.

      . Because we find that Coastal failed to present evidence of damages, we decline to address whether Coastal presented a prima facie case on the required element of bad faith.


author: ISHEE, J., CARLTON, J.,

text:
    Christal J. CARPENTER, Appellant v. Robert L. LYLES a/k/a Robert Layne Lyles, Appellee.
    No. 2011-CP-01772-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.
    Rehearing Denied Sept. 3, 2013.
    Christal J. Carpenter, appellant, pro se.
    Vanessa Winkler Price, attorney for ap-pellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Robert Lyles filed a contempt petition against Christal Carpenter for violating the agreed order detailing the custody arrangements for their minor child. The DeSoto County Chancery Court found Carpenter in contempt for her wilful failure to advise Lyles regarding the child’s extracurricular activities. Carpenter now appeals arguing the chancery court erred by finding her in contempt. Finding no error, we affirm.

PACTS

¶ 2. Carpenter and Lyles are the parents of a minor child, Emily Lyles, born on October 31, 2000. The parties were never married. On September 16, 2010, the parties entered into an agreed order detailing the custody arrangement for the minor child.

¶ 3. On August 22, 2011, Lyles filed a contempt petition in the chancery court against Carpenter. He alleged that she was in wilful violation of their agreed order. Lyles claimed that Carpenter (1) refused to follow the set visitation schedule of alternating weekends; (2) failed to advise him regarding Emily’s extracurricular activities; and (3) refused to comply with the permitted telephone conversations. Lyles also requested attorney’s fees.

¶ 4. A hearing was held on September 19, 2011. On November 2, 2011, the chancellor entered an order detailing the rulings he had made from the bench during the hearing. The chancery court ordered the parties to alternate weekends with the child and to determine the weekend schedule beginning on September 30, 2011. The chancery court further ordered that the noncustodial parent be permitted to call the child between 7:00 p.m. and 8:00 p.m. every night when Emily is in the custodial parent’s care. The chancery court did not find Carpenter in contempt for either of those issues. However, with regard to her failure to advise Lyles about Emily’s extracurricular activities, the chancery court found Carpenter in contempt and ordered her to pay $1,000 of Lyles’s attorney’s fees. Carpenter now appeals arguing the chancery court erred by finding her in contempt.

DISCUSSION

¶ 5. “The decision to hold a person or entity in criminal or civil contempt ... is a discretionary function of the [chancery] court.” Corporate Mgmt., Inc. v. Greene Cnty., 23 So.3d 454, 466 (¶ 32) (Miss.2009) (quoting In re Spencer, 985 So.2d 330, 337 (¶ 20) (Miss.2008)). “Regarding a determination of contempt, a [chancery] court[,] due to its temporal and physical proximity to the parties[,] ‘is infinitely more competent to decide the matter.’ ” Id. (quoting R.K. v. J.K., 946 So.2d 764, 777 (¶ 39) (Miss.2007)). When considering civil contempt, “the standard of review is the manifest-error rule.” Id. at (¶ 33) (citing In re Williamson, 838 So.2d 226, 237 (¶ 29) (Miss.2002)).

¶ 6. Carpenter argues the chancery court erred by finding her in wilful contempt for failing to notify Lyles regarding Emily’s extracurricular activities. The agreed order states: “[S]ehool and extracurricular activities of the minor child shall be communicated to the other parent when the receiving parent first receives notice of the event and any associate[d] preparation dates, including [the] date, time[,] and place so as to allow both parties to attend when possible.” She claims that the parent picking the child up from school had the responsibility of checking the child’s bookbag for notices and grades. According to Carpenter, notices were sent home in Emily’s bookbag on several of the days in which Lyles was the receiving parent. Thus, if he would have properly checked the child’s bookbag, he would have been advised of the extracurricular activities. Before the chancery court, Lyles asserted that he did not know he was supposed to check Emily’s bookbag after school; therefore, he did not receive any of the notices.

¶ 7. We find the chancery court did not manifestly err by finding Carpenter in contempt. In reaching its decision, the chancery court stated:

[ T]he reason it was wilful is because you assume that he should go through the backpack of your daughter ... and find that document out, find that information out by himself. That [is not] what the Order says. It says as soon as you find out about that, you need to notify him. You [cannot] assume he got it from somewhere.

Lyles only picked the child up from school every other Tuesday and every other Friday. Accordingly, Carpenter was the receiving parent far more often than Lyles. Furthermore, Lyles testified that he did not know he was supposed to check Emily’s bookbag for notices of extracurricular activities. Therefore, he never received notice of her activities. Carpenter clearly had notice of the events, as she took Emily to her extracurricular activities. She should have informed Lyles about the activities when she first received notice, per the agreed order. This issue is without merit.

¶ 8. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY JAMES, J.

CARLTON, J.,

dissenting:

¶ 9. I respectfully dissent from the majority’s opinion. I would reverse the order of contempt due to ambiguity in the provisions of the agreed order and because the record reflects Carpenter complied with the agreed order as written.

¶ 10. I would remand the case to the chancellor to clarify the terms of the agreed order to ensure the order facilitates both the award of joint legal custody and the child’s best interests. The ambiguity of the provisions of the order as to the parties’ method of communicating, and as to what activities of the child must be communicated, allows for continuing conflict. Moreover, with joint legal custody, no need exists to require Carpenter to inform Lyles of school managed, sanctioned, or supervised activities.

¶ 11. Lyles, who was awarded joint legal custody, complains that he lacked knowledge about extracurricular “school” events in which his daughter participated because Carpenter did not tell him about these events. As explained by the majority, the trial court held Carpenter in contempt for Lyles’s lack of knowledge about these school-related events, and in support of the contempt finding, the trial court explained its basis by stating Carpenter “did not know for sure that Lyles knew about the events.” The trial court held Carpenter in contempt for Lyles’s failure to know about school-related activities, even though as a parent with legal custody, Lyles possessed just as much authority to have contact and to communicate with the school as Carpenter. Additionally, under the terms of the agreed order, Carpenter possessed no duty to notify Lyles since he constituted the “receiving parent” of the disputed information about school or school-related activities.

¶ 12. As acknowledged, the agreed order fded on September 16, 2008, provides that Lyles and Carpenter will share joint legal custody of their daughter, with Carpenter being awarded primary physical custody. Lyles’s claims reflect that he places upon Carpenter his own responsibilities as a parent to communicate with his child’s teacher and school and also to review the child’s school papers during visitation. Lyles is mistaken that the award of physical custody to Carpenter somehow relieves him of his responsibilities during visitation and of his authority and rights of legal custody under the law and the terms of the agreed order. The agreed order sets forth a visitation schedule with respect to weekends, holidays, and summers. Then, paragraph 8 of the agreed order provides that the father, Lyles, shall also have visitation with the minor child every other Tuesday beginning after school when he shall pick up the child at school and continuing until the parties meet at a designated location at 7:30 p.m. The agreed order also provides for additional visitation as the parties mutually agree.

¶ 13. Paragraph 10 provides that school and extracurricular school activities of the minor child shall be communicated to the other parent when the “receiving parent” first obtains notice of the event and any associated preparation dates. The agreed order provides that the parties are to communicate about these extracurricular activities by email. The ambiguity of what constitutes a “receiving parent,” and responsibilities of that receiving parent, creates confusion and hostility.

¶ 14. Lyles cites three events in which his daughter participated without his knowledge. Lyles complains that he was not informed of the school reading fair at his daughter’s school and that his daughter participated in a school chess tournament unbeknownst to him. He also complains that his daughter participated in a school-sponsored piano audition also without his knowledge. However, on cross-examination, Lyles admitted that he picked his daughter up from school during the past year on Tuesdays and that, when doing so, he also had access to her backpack. The cross-examination of Lyles reflects that he picked his daughter up from school and had her backpack during the time period of the reading fair and the chess tournament, but he chose to not look into his daughter’s backpack.

¶ 15. Lyles explained on cross-examination that he did not check his daughter’s backpack out of respect for his daughter’s personal space, and that he expected his daughter to tell him if she possessed something in her backpack. Lyles admitted that he had access to the backpack, but he chose not to review its contents for anything, much less significant school notices or letters regarding school-related events. Carpenter’s testimony reflects that the school sent information, such as notices of test grades, home in the backpack. In the exercise of his visitation, Lyles fails to embrace that access to the child during visitation must be exercised with good judgment, keeping in mind always the child’s best interests. See McCracking v. McCracking, 776 So.2d 691, 694-95 (¶ 11) (Miss.Ct.App.2000) (affirming chancellor’s elimination of midweek visitation of noncustodial parent due to stress and instability on child). Lyles faced the consequences of his own poor choices and actions by missing these school-related events because he failed to review his daughter’s folder and notices in her backpack during his visitation.

¶ 16. Lyles testified that since he did not get an email from his daughter’s school, he did not know to go through her backpack. Lyles failed to comply with his obligations as the “receiving parent” as required by the agreed order and was allowed to also blame the school for not emailing him. With respect to the reasonableness of Lyles’s expectation of an email from the school, no evidence in the record reflects that the school ever utilized email to parents to inform them of daily, weekly, or other school events or of homework assignments or test grades. No evidence in the record shows Lyles contacted the school to request email notice of events. Perhaps such an assumption relates to Lyles’s judgment and parenting skills as related to his ability to fulfill his responsibilities cooperatively as a parent with legal custody.

¶ 17. With respect to further evidence of inability to communicate cooperatively, Lyles admitted to receiving an email from Carpenter informing him of the piano audition and subsequent award ceremony, and he testified that he indeed attended the piano award ceremony. He complained that he did not attend the piano audition event itself because, as he testified, he did not understand Carpenter’s verb tense in the context of her email to him. Upon review of the record, I note that the testimony shows that no spectators were allowed into the piano audition. The record shows that Carpenter provided the child transportation to the audition but stayed outside, and that only the four judges and the child were allowed in to the audition. Lyles’s inclusion of missing the piano audition is without merit since no spectators were allowed.

¶ 18. Lyles’s attempt to place blame on Carpenter for him missing this non-event due to the verb tense of her email gives insight to his ability to communicate cooperatively in his child’s best interest. This evidence reflects an absence of an intent by Lyles to cooperate in good faith for his child’s best interest. Similarly, his avoidance of his responsibilities as receiving parent to check for school information in his daughter’s backpack during visitation reflects a lack of intent by Lyles to comply with the agreed order.

¶ 19. I turn to address the ambiguity of the provisions of the agreed order pertaining to the receiving parent and to address the evidence showing Carpenter in compliance and Lyles in breach. As discussed previously, the testimony in the record reflects that test folders were sent home from school on Tuesdays during the school year in issue and that Lyles picked the child up from school on Tuesdays. The test folders contained the information and notices regarding the child’s school events in dispute. While Lyles constituted the “receiving parent” in accordance with the terms of the agreed order, he has escaped responsibility for fulfilling his duties, not only as a responsible parent, but also as the receiving parent per the agreed order. Since he was the “receiving” parent, Lyles was actually in breach of the agreed order in failing to notify Carpenter of those events. His choice to not open the child’s backpack, or school folders therein, fails to relieve him of his responsibilities under the agreed order. Again, Lyles’s actions and testimony display that Lyles lacked an intention of commitment to fulfill his obligations under the agreed order. See Pulliam v. Smith, 872 So.2d 790, 794-95 (¶ 8) (Miss.Ct.App.2004).

¶ 20. At trial, Carpenter asked the chancellor why she should inform Lyles of these school-sponsored events where he already had the information in his possession as the receiving parent, via the backpack and test folder. In explaining her understanding of the agreed order, Carpenter stated that since Lyles already had the information, she did not think that she would have to give him the information again since they communicated badly with each other. The trial court responded to her during the court’s examination of her, and the chancellor explained that she was required to inform Lyles because she did not know for sure that Lyles had gotten the information. The contempt order lacks a basis in the evidence and constitutes an erroneous application of the law. The evidence shows that Lyles was the receiving parent and failed to comply with his duties under the order. The evidence also fails to show any willful noncompliance by Carpenter. I would therefore reverse the finding of contempt and remand to the chancellor to revisit the propriety of the terms of the agreed order.

¶ 21. The terms of the order fail to facilitate cooperative joint custody. The events about which Lyles complains constituted school-sponsored or school-sanctioned events. The school reading fair occurred during school and appears to be a curricular school event. As a father with legal custody, albeit joint, Lyles possesses the authority to communicate with the school and his daughter’s teacher without the assistance, knowledge, or consent of Carpenter. Lyles’s responsibilities as legal custodian during visitation also impose some parental duties and responsibilities upon Lyles if he so chooses to exercise such visitation rights. Moreover, Lyles possesses the authority to contact the school himself to determine when school events are to occur and to learn about test folders, and their contents, that come home to parents in backpacks. Lyles bears the responsibility to inform himself as to his own responsibilities while exercising visitation and as to his own authority of legal custody. The chancellor should clarify ambiguity regarding how to exercise duties as a “receiving parent” under the agreed order, and the chancellor should clarify how, when, and specifically what activities are to be communicated.

¶ 22. Mississippi statutory law and jurisprudence recognize that the chancellor may indeed allocate decision-making and duties to each parent sharing joint legal custody. In cases where decision making was apportioned, courts have determined that joint legal custody, including the communication required in support of such relationship, requires no moment-to-moment input or veto power over every large and small decision on child rearing but permits the nonresidential parent to participate in important decisions affecting the child. Goudelock v. Goudelock, 104 So.3d 158, 165 (¶¶ 29-30) (Miss.Ct.App.2012); Purviance v. Burgess, 980 So.2d 308, 312-13 (¶¶ 18-20) (Miss.Ct.App.2007); see also 24A Am.Jur.2d Divorce and Separation § 858 (joint custody allows parents to have an equal voice in decision making). Jurisprudence clearly recognizes that in an award of visitation privileges, the rights of parents as to reasonable access to the child should be exercised with good judgment, keeping always in mind the best interest of the child. See Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982). Lyles c eom-plains of missing the extracurricular school events, but he raises no claim that Carpenter excluded him from some decision-making in which he was entitled to participate pursuant to the award of legal custody.

¶ 23. Contempt is only appropriate where the contemnor willfully and deliberately ignores the order of the court. See Goudelock, 104 So.3d at 164-65 (¶¶ 26-28). Here, due to the ambiguity of the terms used in the agreed order, the contempt finding fails for lack of sufficient notice to Carpenter of her duties thereunder. Additionally and as previously addressed, the record reflects Carpenter complied with the face of the agreed order and evidenced no willful noncompliance with it, and the record shows that Lyles breached his responsibilities as the receiving parent during visitation. The contempt finding relieves Lyles of his responsibilities under the agreed order as the receiving parent and penalizes Carpenter for Lyles’s failure to fulfill his obligations under the agreed order and responsibilities as a parent with legal custody. See Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997); Elliott v. Elliott, 877 So.2d 450, 456-57 (¶¶ 26-30) (Miss.Ct.App.2003). I would also remand the agreed order to the chancellor due to ambiguity therein for the chancellor to clarify the ambiguity to facilitate the award of joint legal custody herein in light of the hostile communication and relations of the parties. See Giannaris v. Giannaris, 960 So.2d 462, 469 (¶ 12) (Miss.2007) (allowing changes in noncustodial home to cause the court to revisit original court orders is impermissible).

¶ 24. Based on the foregoing, I respectfully dissent from the majority’s decision.

JAMES, J., JOINS THIS OPINION IN PART.

      . See Miss.Code Ann. § 93-13-1 (Rev.2004); Miss.Code Ann. § 93-5-24 (Rev.2004); see also Ballard v. Ballard, 843 So.2d 76, 80 (¶ 15) (Miss.Ct.App.2003) (addressing responsibilities of noncustodial parent during visitation and finding custodial parent not expected to share costs of travel with the noncustodial parent as noncustodial parent exercises rights of visitation).

      . Paragraph 3 of the agreed order quotes Mississippi Code Annotated section 93-5-24 for the statutory definition of joint legal custody. Section 93-5-24(3) provides, in part, as follows: "[JJoint custody may be awarded, in the discretion of the court, upon application of one or both parents.” Section 93-5-24(5)(e) describes "joint legal custody” by stating the following:
      [T]he parents or the parties shall share the decision-making rights, the responsibilities and the authority relating to the health, education, and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education, and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.

      . See generally Cox v. Moulds, 490 So.2d 866, 870 (Miss.1986).

      . See White v. Thompson, 569 So.2d 1181, 1185 (Miss.1990) (addressing that parent being given custody of child may exercise these privileges and responsibility in a more direct fashion than noncustodial parent, but noncustodial parent may exercise these rights when child is in his or her lawful custody); Kees v. Fallen, 207 So.2d 92, 94 (Miss.1968); see also 31 A.L.R.3d 1182 (1970).

      . The parent-child relationship is for the benefit of the child, not the parent, and should therefore serve the best interest of the child. Blakely v. Blakely, 88 So.3d 798, 803 (¶ 15) (Miss.Ct.App.2012).

      . Evans v. Evans, 75 So.3d 1083, 1087 (¶ 14) (Miss.Ct.App.2011).

      . See Westerburg v. Westerburg, 853 So.2d 826, 828 (¶ 6) (Miss.Ct.App.2003) ("A citation of contempt is proper when 'the contemner has willfully and deliberately ignored the order or the court.' ”).

        . See Wheat v. Koustovalas, 42 So.3d 606, 613 (¶ 21) (Miss.Ct.App.2010) ("‘Legal custody’ means more than simply having information about one's child; such responsibility and authority means sharing of 'decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child.' ”).

      . Many school activities and school-related activities during non-instructional time benefit the development of the child mentally, physically, emotionally, and culturally. Such activities may include football practice and games after school or school approved or sponsored music or band concerts. Such activities fall within the school’s curricular activities, even though they occur during non-instructional time. See Morgan v. Swanson, 659 F.3d 359, 375 (5th Cir.2011) (acknowledging that activities that are school sponsored or school sanctioned or approved are not considered extracurricular but fall within the school's curricular activities). School employees, like coaches, perform official functions in supervising and managing these school sponsored or approved after-school activities. See Covington Cnty. Sch. Dist. v. Ma-gee, 29 So.3d 1, 7-8 (¶ 14) (Miss.2010); Clein v. Rankin Cnty. Sch. Dist., 78 So.3d 384, 388-89 (¶¶ 14-17) (Miss.Ct.App.2012); see Miss. Code Ann. § 37-7-301(q) (Supp.2012) (directing schools to provide athletic programs and other programs and requiring schools to regulate their establishment and operation); Miss.Code Ann. § 37-7-301(s) (Supp.2012) (authorizing school activity funds to be used to support school’s official or extracurricular school programs); Miss.Code Ann. § 37-9-71 (Rev.2007) (school possesses authority to suspend or prohibit students from participating in these school related-events occurring during non-instructional time or after school).

      . See Evans, 75 So.3d at 1087 (¶ 14).

      . Section 93-5-24(5)(e) clearly explains that legal custody means decision-making rights, and the responsibility and authority relating to the health, education, and welfare of the child. Lyles seeks the authority to enjoy the rights of legal custody and visitation, but he does not comply with the responsibilities required to fulfill those rights of legal custody and of physical custody while his daughter is in his care during visitation.


author: GRIFFIS, P.J.,

text:
    John T. GRAHAM a/k/a John Graham a/k/a John Thompson Graham, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00303-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.

      W. Daniel Hinchcliff, George T. Holmes, Jackson, Jerry Campbell, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. John T. Graham appeals his conviction of sexual battery of a victim under the age of fourteen, in violation of Mississippi Code Annotated section 97 — 3—95(l)(d) (Supp.2012). Graham asserts two errors. First, he argues that the prosecutor’s arguments were improper and amounted to misconduct. Second, Graham argues that the trial court erred by failing to make a finding as to the competency of the four-year-old witness and that the witness should not have been allowed to testify while she sat with her father. We find no error and affirm.

FACTS

¶ 2. On May 26, 2010, Graham was seventeen years old. Graham’s older sister, Cynthia Graham, regularly babysits the children of Daniel Doe. Graham was often present when the Doe children were in Cynthia’s care.

¶ 3. On May 26, 2010, Daniel picked up his four-year-old daughter, Jane, from his mother’s house. Jane appeared upset. Daniel asked her what was wrong. Daniel testified that Jane responded that “Johnny T. touched her pee-pee.” Daniel did not know anyone called “Johnny T.” Daniel’s mother told him that “Johnny T.” was “[a] guy at the baby-sitter’s, I guess related to Cynthia Graham, who was the baby-sitter.” Daniel also testified that Jane told him that Johnny T. had “dug into her pee-pee.”

¶ 4. Daniel called Jane’s mother, who then took Jane for a medical examination. Dr. Lashunte Jones, the examining physician, testified that the medical exam did not reveal any physical evidence of sexual battery. Dr. Jones did not perform invasive testing, because Jane had been to a water park immediately after the incident. Dr. Jones testified that Jane said “touch,” not “dug.” Dr. Jones specifically testified that she did not remember Jane using the word “dug.”

¶ 5. Jane testified while sitting on Daniel’s lap. Jane testified that she knew her private parts were her “wee-wee and butt.” She testified that her babysitter was “Miss Cynthia” and that “Johnny T.” touched her private parts “inside” with his finger. When asked if “Johnny T.” was in the courtroom, the record indicated that Jane pointed, but the record does not indicate where she pointed or that she identified Graham. Jane testified that she only told her mother and father.

¶ 6. On cross-examination, Jane testified that “he” dug his finger inside of her and it hurt. She was confused by questions regarding whom she told afterwards. In fact, she claimed she never stayed with her grandmother, even though her grandmother picked her up from daycare. She agreed she had gone to the water park with “J.T.” and others.

1Í 7. The ease was investigated by Stacy Rollison and Todd Dykes. Rollison went to the hospital where Jane was being examined. She took a recorded statement from Jane, which was played for the jury.

¶ 8. Dykes interviewed Graham, and a recording of the interview was played for the jury. In this interview, Graham stated, “I’m going to tell them that I touched her when I was playing with her like I did all the rest of the kids.” Graham denied any contact with Jane but later conceded that there may have been accidental touching.

¶ 9. Cynthia testified for the defense. On May 26, 2010, Cynthia left her brother with the Doe children so that she could pick up a child getting out of school. Cynthia was gone for forty-five minutes. Jane was awake when Cynthia returned. Cynthia took a picture of the Doe children sitting on her couch. Jane had her hands in her lap for the picture, which was usual for her. The pictures were admitted into evidence.

¶ 10. Cynthia then took the children to a water park. She testified that Jane appeared normal and played with the other children at the water park. Jane rode with Graham from the water park. Afterward, her paternal grandmother picked her up.

¶ 11. Amy Doe also testified for the defense. Amy was in a relationship with Cynthia and was at the water park that day. Amy testified that Jane appeared excited and not "withdrawn. Amy further stated that Jane was a truthful person.

¶ 12. Abby Graham, Graham’s mother, was also at the water park. She testified that Jane appeared happy and wanted Graham to play with her and the other children. According to her, Jane wanted to ride back with Graham. Likewise, Leslie Duncan, Graham’s brother, testified that he was at the water park and saw Jane running, laughing, and playing.

¶ 13. Graham testified. Graham had completed ninth grade and was working on his GED. He would go to his sister’s home every now and then to help with the kids, but he had never been accused of anything like this. Graham testified that he was alone with the Doe children that day for about forty-five minutes. He said that, during that time, he did not put his finger inside of Jane. He showed the jury his reportedly large hand. He also testified that he played with the children all the time. Graham agreed that his hand could have slipped under Jane’s underwear, while he was playing and throwing her into the air. Graham’s final words to the jury were that he did not touch Jane, nor gratify any lustful urge with her.

¶ 14. The jury was instructed and closing arguments were made. The jury returned a verdict of guilty. The circuit judge sentenced Graham to a term of twenty-five years, with seven years suspended, in the custody of the Mississippi Department of Corrections. Graham was also sentenced to five years of post-release supervision and was required to register as a sex offender. It is from this judgment that Graham now appeals.

ANALYSIS

1. Whether the multiple instances of improper argument constituted prosecutorial misconduct, requiring reversal.

¶ 15. In the first issue, Graham claims error in the prosecutor’s arguments during opening statements and closing arguments. Graham argues that where the “natural and probable effect of the prosecutor’s improper statements was the creation in the minds of the jurors of an extra-legal burden of accountability to the State prejudicial to the rights of the accused,” the reviewing court must reverse the conviction and judgment of the trial court. Sheppard v. State, 777 So.2d 659, 662 (¶ 10) (Miss.2001).

¶ 16. Graham’s argument begins with the prosecutor’s opening statement. Graham claims that the prosecutor improperly argued that Graham, by exercising his right to trial, had forced a four-year-old to come to court and take the stand. The prosecutor stated, “Unfortunately, [Jane] is going to have to take the witness stand.”

¶ 17. Graham claims that in closing arguments, the prosecutor made the following improper arguments:

So what do we know about four-year-olds? Generally, they are brutally honest ... [Tjhey’re usually pretty honest when asked questions.
And another thing that stuck out in this trial that I think has been — it has not been disputed. One of defense counsel’s own witnesses, when asked, “Is [Jane] an honest child? Is [Jane] a truthful child?” What did that witness say? Yes, [Jane] is a truthful child. Nothing has been brought forward to you to make you think [Jane] is anything but truthful.
To me, her statement is enough.... But in this case [Jane’s] statement is enough for me.
I submit to you [Jane] has probably been the most credible witness I’ve seen this week.
If you don’t believe [Jane,] then go home and tell your children, if somebody touches you, don’t even bother to tell me.

¶ 18. Graham’s trial counsel only objected to the last statement. The trial court sustained the objection. As a result, any error as to the last statement was cured at this point. “When a trial court sustains an objectionf,] it cures any error.” Holland v. State, 705 So.2d 307, 335 (¶ 91) (Miss.1997). Further, Graham’s counsel did not ask for any type of limiting instruction.

¶ 19. As to the other arguments by the prosecutor, Graham’s counsel did not make an objection. We must recognize that attorneys are allowed wide latitude in arguing cases to the jury. “However, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Sheppard, 777 So.2d at 661 (¶ 7) (citing Hiter v. State, 660 So.2d 961, 966 (Miss.1995)). “The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Sheppard, 777 So.2d at 661 (¶ 9) (citing Ormond v. State, 599 So.2d 951, 961 (Miss.1992)).

¶20. “A contemporaneous objection must be made ... for this Court to consider claims of improper or erroneous comments” by a prosecutor during arguments, or the objection is waived. Hampton v. State, 815 So.2d 429, 432 (¶ 11) (Miss.Ct.App.2002) (citing Lanier v. State, 533 So.2d 473, 478 (Miss.1988)). Although, “if a comment is so inflammatory that the trial court should have objected on [its] own motion, the point may be considered.” Id. Following this standard, we do not find that the prosecutor’s statements require us to reverse the conviction. Indeed, we find no merit to this assignment of error.

£ Whether the trial court erred in its determination of the competency of a four-year-old witness where no showing was made of the child’s understanding of the importance of telling the truth and where the witness was allowed to sit with her father during her testimony.

¶ 21. In the second issue, Graham challenges Jane’s competency to testify. However, Graham recognizes that Jane’s age does not disqualify her as a competent witness. With certain exceptions, Mississippi Rule of Evidence 601 provides that “[e]very person is competent to be a wit-ness_” Graham argues that the testimony of a four-year-old witness must demonstrate the specified minimum standards of competency before the testimony is received against a defendant accused of a felony.

¶ 22. While the trial court is not obligated to conduct a separate voir dire of a young witness, Graham contends that it is incumbent upon the State to preliminarily demonstrate competency. See Burbank v. State, 800 So.2d 540, 544 (¶ 6) (Miss.Ct.App.2001). This should be done by “a detailed series of questions aimed at determining [the child’s] ability to comprehend the nature of providing truthful testimony...." Davis v. State, 760 So.2d 55, 58 (¶ 11) (Miss.Ct.App.2000). The trial court then should make its determination of competency. Not only is an understanding of the importance of telling the truth indispensable to a showing of the competency of a young child, but the child must also appreciate the seriousness of the criminal charge and of the legal proceedings. See Edmond v. State, 35 So.3d 536, 539 (¶ 13) (Miss.Ct.App.2009).

¶23. Graham claims that nothing in the questioning of Jane by the State provided any basis to form an opinion concerning the young child’s competency. At the time her testimony was given and the court made its determination, the court was without sufficient information to determine competency. “In order to prevail in its effort to exclude the testimony of a child witness, the party opposing the testimony must show that at the time the court made its initial decision that it was apparent that the witness did not meet the criteria for testifying....” Williams v. State, 859 So.2d 1046, 1049 (¶ 14) (Miss.Ct.App.2003).

¶ 24. Graham also recognizes that no objection was made as to the competency of Jane. Nevertheless, Graham argues that the lack of an objection should not relieve the trial court of its duty, “[bjefore allowing the child to testify, ... [to] determine ‘that the child has the ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness.’ ” Mohr v. State, 584 So.2d 426, 431 (Miss.1991). Graham claims that the ultimate onus, then, is on the trial court.

¶25. Graham asserts that the only question by the prosecutor to establish Jane’s competency was: “Do you understand what a lie is, [Jane]?” Jane did not offer a verbal response, but the record reflects that she nodded her head. Graham claims that this was not a sufficient showing.

¶26. Graham also argues that it was error for Jane to testify while sitting in her father’s lap. Graham argues that any witness’s testimony should be her own, and not influenced, directly or indirectly, by any outside source. To support this claim, Graham argues the legal principle that “all testimony must be that of the witness, and not that of counsel.” Moffett v. State, 540 So.2d 1313, 1318 (Miss.1989). Interestingly, Graham’s brief argues that “[t]he trial court lacked sufficient basis for allowing the testimony of the young witness in this matter and should not have permitted her testimony, sua sponte.”

¶ 27. “Any analysis challenging the competency of a witness begins with the assumption that every person is competent to give evidence, subject to certain exceptions based on considerations of policy unrelated to the capacity of the witness to comprehend and relate relevant information.” Woulard v. State, 832 So.2d 561, 564 (¶ 8) (Miss.Ct.App.2002) (citing Barnett v. State, 757 So.2d 323, 328 (¶ 13) (Miss.Ct.App.2000)). As this Court noted in Burbank, 800 So.2d at 544 (¶ 6), “[although the court did not conduct a preliminary [interrogation] of the child to determine competency, it was not required to do so.” The determination of competency is left to the discretion of the trial court. Id. (citing Barnett, 757 So.2d at 329 (¶ 16)). Here, Graham has shown no abuse of that discretion in the trial court’s ruling. Therefore, we find no merit to this assignment of error.

¶ 28. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHTEEN YEARS TO SERVE AND SEVEN YEARS SUSPENDED, FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $5,000 FINE, AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

LEE, C.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT.

      . The statement of the facts provided by the Attorney General is as follows:
      Defendant stuck his finger “inside” a four-year-old girl[’]s “wee-wee.” Tr. 94. The jury year [sic] the testimony of the four-year-old and defendant testified on his own behalf. Also the jury heard the interviews of defendant with the police. The jury returned a verdict of guilty beyond a reasonable doubt.
      We urge the Attorney General to review Rules 28(a)(4) and (c) of the Mississippi Rules of Appellate Procedure and comply with these requirements in future cases on appeal. This Court expects the Attorney General’s brief to state that it is either satisfied with the appellant's statement of facts or to provide a "statement of facts relevant to the issues presented for review, with appropriate references to the record.” Id. The statement offered by the Attorney General fails to meet the requirements of Rule 28.

      . To protect the identity of a victim of sexual abuse, we use fictitious names to identify the victim and her family members in this opinion.

      . Amy was Daniel’s sister and Jane’s aunt.


author: FAIR, J.,

text:
    Sharon LACY, Appellant v. JACKSON STATE UNIVERSITY and Mississippi Institutions of Higher Learning, Appellees.
    No. 2012-WC-00975-COA.
    Court of Appeals of Mississippi.
    Sept. 3, 2013.

      Sharon Lacy, appellant, pro se.
    Joseph T. Wilkins III, Jackson, attorney for appellees.
    Before IRVING, P.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Sharon Lacy petitioned for workers’ compensation benefits, claiming work-related mental disability caused by her employment as director of payroll for Jackson State University (JSU). From the final denial of her petition by the Mississippi Workers’ Compensation Commission following an unfavorable ruling by the administrative judge (AJ), she appeals to this Court. Finding no error, we affirm.

FACTS

¶ 2. Lacy graduated from Grambling State University in 1975. Thereafter, she worked about ten different jobs, most of them lasting around one to three years. Lacy’s first job at JSU began in November 2005. She became executive assistant to the associate vice president for business and finance. Shortly after the director of payroll, Jerry Mitchell, retired in December 2006, Lacy took his place. At the hearing, Lacy testified that the payroll staffs lack of training caused continuous problems. Lacy also claimed that the department had “improper and illegal payroll practices,” which she reported to upper management.

¶ 8. On April 3, 2009, Lacy was demoted to the position of purchasing agent, reducing her salary to half of what she had been making as payroll director. She took a few days off and started the job on April 15, 2009. After one week, she left work complaining of heaviness in her chest. She went to her home in Ruston, Louisiana, and saw her family physician on April 27, 2009. She then decided to take a few weeks off work. Those few weeks became four months, at the end of which, on August 29, 2009, she filed for workers’ compensation benefits, claiming work-related mental disability.

¶ 4. Her attorney withdrew from representation in June 2011 and she continued on, representing herself pro se at the hearing before the AJ, which took place on October 14, 2011. Several witnesses, including Lacy, testified to her behavior during her employment at JSU. Lacy testified that she had no psychological problems before April 3, 2009. Lacy stated that she saw Dr. Lionel Guillaume, a psychiatrist in Shreveport, Louisiana, from June to September 2009 and then Jacqueline Danzell, a licensed social worker in Shreveport, from September 2009 to June 2010. Lacy stated that she was treated by Dr. Guill-aume and Danzell for major depression and post-traumatic stress disorder from her work at JSU. More specifically, Lacy stated that her demotion in 2009 caused her to suffer mental and emotional distress, such as work anxiety, stress, depression, and paranoia. Lacy attempted to offer her medical records from Dr. Guill-aume and Danzell as exhibits without sworn affidavits as required by Mississippi Workers’ Compensation Procedural Rule 9. They were not admitted into evidence and instead were marked for identification only.

¶ 5. Lacy admitted at the hearing she underwent testing for sleep apnea at the Baptist Medical Center in June 2008. However, she stated that the sleep apnea did not cause her any problems at work. Her medical records of the Mississippi Baptist Medical Center, the Sleep Disorders Center of Mississippi, were admitted into evidence.

¶ 6. Dr. Mark Webb from the Mississippi Neuropsychiatric Clinic in Ridgeland, Mississippi, testified for JSU and the Mississippi Institutions of Higher Learning (MIHL). At the request of JSU/MIHL, he had interviewed Lacy on July 20, 2010. Dr. Webb had also reviewed the medical records of Lacy’s family doctor, Dr. Guill-aume, and Danzell. In his report issued on July 20, 2010, Dr. Webb noted Lacy’s family psychiatric history, including her mother’s prior psychiatric hospitalization. He concluded his report finding that Lacy has maladaptive personality traits, which have caused her trouble in different settings, including but not limited to JSU. He went on to say that Lacy’s employment at JSU gave her no psychiatric illness or injury, nor did it prolong her preexisting psychiatric complaints. After watching Lacy at the hearing, he did not change his diagnoses from those he put in his report. His testimony and report, both subject to cross-examination, represented the only expert testimony introduced into evidence before the Commission.

¶ 7. The AJ entered an order denying Lacy workers’ compensation benefits. The AJ noted that even if the medical records Lacy attempted to put into evidence had been admitted, the information in those records was not sufficient to overcome the evidence presented by JSU/ MIHL, including Dr. Webb’s expert testimony. The Commission affirmed the decision of the AJ and denied the admission of Lacy’s proffered records and documents into evidence.

STANDARD OF REVIEW

¶ 8. This Court may determine only whether the decision of the Commission is supported by substantial evidence and whether the law was correctly applied. See Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). Because our review is limited, this Court “will only reverse the Commission’s rulings where issues of fact are unsupported by substantial evidence and matters of law are clearly erroneous.” Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 448 (¶ 8) (Miss.Ct.App.1999).

DISCUSSION

¶ 9. “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 authorities, statutes, and parts of the record [relied] on.’ ” Birrages v. Ill. Cent. R.R., 950 So.2d 188, 194 (¶ 14) (Miss.Ct.App.2006) (quoting M.R.A.P. 28(a)(6)). “Failure to comply with [Rule] 28(a)(6) renders an argument procedurally barred.” Birrages, 950 So.2d at 194 (¶ 14). Not only has Lacy failed to reference any part of the record, she does not cite a single case in support of her argument. The only evidence offered by Lacy in support of her claim was her own unsupported assertions and various documents not admitted into evidence in the record. Because Lacy failed to comply with Rule 28(a)(6), her claim is procedurally barred.

¶ 10. Notwithstanding the procedural bar, we find no merit to Lacy’s argument. When alleged mental injury is unaccompanied by physical trauma, the employee “must prove by clear and convincing evidence that she suffers from a disabling mental injury which was either caused, contributed to or aggravated by some unusual occurrence or untoward event in order [for the mental injury] to be compensable.” Kirk v. K-Mart Corp., 838 So.2d 1007, 1010 (¶ 17) (Miss.Ct.App.2003); Miss.Code Ann. § 71-3-3(b) (Rev.2011); see Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988). “The causal connection between the claimant’s injury and disability must be proven with competent medical proof and based upon a reasonable degree of medical probability.” Airtran, Inc. v. Byrd, 953 So.2d 296, 299 (¶ 3) (Miss.Ct.App.2007) (citations omitted). Lacy failed to present any medical proof showing a causal connection between her employment at JSU and her alleged mental condition. JSU/MIHL’s expert witness, Dr. Webb, a certified psychiatrist, evaluated Lacy prior the administrative hearing. He testified that, in his expert opinion, Lacy did not suffer a work-related injury during her employment at JSU.

¶ 11. The Commission acts as the ultimate fact-finder, and it “enjoys the presumption that it made proper determinations as to the weight and credibility of the evidence.... [I]ts factual findings are binding on this Court[,] ... provided the findings are supported by substantial evidence.” Spencer v. Tyson Foods, Inc., 869 So.2d 1069, 1073 (¶ 15) (Miss.Ct.App.2004) (citations omitted). We find that the evidence in the record supports the Commission’s decision finding no causal link between Lacy’s employment and her injury. Therefore, we affirm the decision of the Commission.

¶ 12. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND JAMES, JJ., CONCUR.

      . That rule requires a sworn statement of either the physician or the physician's medical-records custodian in addition to the medical records presented.