author: KITCHENS, Justice,

text:
    MISSISSIPPI VALLEY SILICA COMPANY, INC. v. Gwendolyn M. REEVES, Individually and as Wrongful Death Beneficiary of Robert B. Reeves, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Robert B. Reeves, Deceased.
    No. 2012-CA-01702-SCT.
    Supreme Court of Mississippi.
    April 17, 2014.
    Rehearing Denied July 17, 2014.

      Andy Lowry, Ridgeland, Charles G. Copeland, John D. Cosmich, Michael D. Simmons, Lakeysha Greer Isaac, Jackson, for Appellant.
    David Neil McCarty, Robert Allen Smith, Jr., Timothy W. Porter, Patrick Malouf, Ridgeland, John Timothy Givens, Jackson, for Appellee.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Robert Reeves, a career employee of Illinois Central Railroad, sued Mississippi Valley Silica, Inc. (Valley) for lung injuries that allegedly were caused by his inhalation of silica (a component of sand) while employed with Illinois Central. The case was dismissed without prejudice in 2006, and the present suit was filed against thirty-two named defendants in the Circuit Court of the Second Judicial District of Jones County in 2007. Robert Reeves died in 2010, before the litigation was concluded, and the case then was pursued by his wrongful death beneficiaries. After trial in May 2012 against the sole remaining defendant, Valley, the jury found economic damages in the amount of $149,464.40 and noneconomic damages of $1.5 million, with Valley 15% at fault. The jury also awarded punitive damages of $50,000, and the trial court awarded attorney fees of $257,701.50. Although Valley was found only 15% at fault, the trial court determined that the law in place in 2002, when the original complaint was filed, should apply. Accordingly, the statutory caps on punitive and noneconomic damages enacted in 2004 were inapplicable and Valley was jointly and severally liable for 50% of the judgment. Ultimately, the court determined that Valley owed the Reeves beneficiaries $824,732.20, plus $50,000 in punitive damages, and $257,701.50 in attorney fees, for a total of $1,132,433.70. Valley appealed. We hold that the plaintiff failed to present sufficient evidence to identify Valley’s sand as the proximate cause of Robert Reeves’s injuries as a matter of law. Therefore, we reverse the judgment of the trial court and render judgment in favor of Mississippi Valley Silica.

FACTS AND PROCEDURAL HISTORY

¶ 2. Robert B. Reeves (R.B.) was born in 1926 and worked as a brakeman, then as a conductor, for the Illinois Central Railroad from 1947 to 1991. In his capacity as a brakeman, he “had to break up the cars, switch with the switch engine, make up trains and deliver trains.” While the train was in motion, he was required to keep his head out of the window to look for problems down the line. As a result, his face was exposed to “a lot of sand, cinders and everything.” R.B. was exposed to sand and dust because sand was used for wheel traction in braking and to prevent locomotives’ wheels from spinning when trains encountered grades steep enough to require its use. R.B. explained:

You had an air brake, an air gauge on that engine. A big tank was filled up with sand, and the engineer mashed that brake, it would spray that rails to keep the train from slipping. In other words, it — I don’t know whether people know how they spin anyway. But he pops that sand on there. Well, that sand blows up in his face, my face and everybody else’s. And if you are switching boxcars, you are always right by that engine, where all that sand, everything else comes down on you.

¶ 3. R.B. explained that he was exposed to crushed sand and dust every day. When asked how often during the day sand was blown onto the tracks, he responded, “Continuously, in some cases. You either had a lot to pull, or you are going up an incline, or you had weight back there that you couldn’t pull that goes to spinning, the sand-some engines now, it automatically goes on.” He never wore any type of respiratory protection. Although later in his career he became a conductor, he stated that it was “all the same” in terms of the conditions for sand exposure. R.B. also worked for eight years at the railroad switchyard in the Masonite plant in Laurel, where he claimed he was exposed to asbestos as well as silica from sandblasting. He smoked “a pack a day or better” of cigarettes for forty-two years until he had heart surgery in 1986, at which point he quit.

¶ 4. R.B. married Gwendolyn Reeves (Reeves) in February 2002. She testified that he was in “pretty good health” when the two first married. In 2003, he began having some coughing problems, and he developed heart arrhythmia. In 2004, after increasing congestion and difficulty breathing, R.B. was diagnosed with fibrosis, or scarring of the lungs. By 2006, R.B. required the assistance of an oxygen tank to breathe adequately, and his condition gradually deteriorated over the next four years. By March 2010, he was constantly on oxygen and was confined to his home. In June 2010, his physicians informed him there was nothing more they could do, and he was told to get his affairs in order and try to stay as comfortable as possible. He died on August 1, 2010, of what his treating physician called interstitial pulmonary fibrosis. Essentially, his lungs had become scarred over time, contracting until he could not breathe enough oxygen to support his life.

¶ 5. Prior to his serious decline in health, in 2002, R.B. and others filed a multiplaintiff case against numerous defendants in the Circuit Court of the Second Judicial District of Jones County, alleging that he was afflicted with silicosis, a lung disease “caused by exposure to respirable crystalline silica....” In 2006, this Court handed down its decision in Canadian National v. Smith, et al., 926 So.2d 839, 845 (¶ 23) (Miss.2006), in which it disallowed an improperly joined multiplaintiff action and permitted refiling of separate actions by individual plaintiffs. Accordingly, the mul-tiplaintiff action in which R.B. was involved was dismissed without prejudice with instructions to refile the case in a proper venue pursuant to this Court’s holding in Canadian National. In 2007, R.B. timely refiled his case in the Circuit Court of the Second Judicial District of Jones County against thirty-two defendants, including Valley. After he died in 2010, his widow and wrongful death beneficiary Gwendolyn Reeves was substituted for R.B. and she filed an amended complaint materially similar to the original that had been filed by R.B. in 2007. The amended complaint sought wrongful death and survival damages.

¶ 6. When trial finally commenced on May 29, 2012, Valley was the sole remaining defendant. Reeves’s position is that R.B.’s injuries and death were caused by mixed-dust pneumoconiosis (MDP) due to his exposure to asbestos and silica. Because R.B. previously had filed a suit for asbestosis damages, in this case, Reeves, his widow, was seeking damages due only to “the silica component of the mixed-dust disease.” The facts surrounding R.B.’s exposure to silica and his resulting illness are gleaned from the testimony of several witnesses, some who testified by video deposition and some who testified at trial. Reeves produced witnesses to testify about R.B.’s exposure to silica, Valley’s failure properly to warn about the dangers of silica exposure, and how R.B.’s exposure to silica had caused silicosis and ultimately, his death. We address only the evidence adduced to prove that Valley sold the sand that allegedly injured and killed R.B.

¶ 7. At trial, the then-deceased R.B. testified via video deposition about his routine and regular exposure to sand and dust that was sprayed onto tracks traversed by trains on which he worked for more than forty years, as well as his exposure to asbestos and silica at the Masonite plant in Jones County, where he had worked switching trains for eight years. R.B. testified that he specifically remembered using Valley bags of sand during a flood in Jackson in the 1970s. He seemed to be trying to say that Valley sand was used at other times and for other purposes, but he did not recount another specific instance of his having used Valley sand. Additionally, on cross-examination, R.B. testified that he did not fill the large sand tanks on locomotives from which sand was sprayed onto the rails, and therefore, he rarely dealt with the actual sand bags from which such tanks were filled.

¶ 8. A.J. Bohannon, who worked on the same crew with R.B. for more than thirty years, testified for Reeves. Bohannon testified about the conditions he and R.B. had faced when their job took them to the Masonite plant at Laurel, Mississippi. He testified that, when the train went through the boiler room, the workers on the train would be exposed to sand dust and “excess waste stuff that comes out down there.” Bohannon also testified about the conditions in the cab when sand was sprayed on the tracks to prevent wheel slippage. The sand cut on automatically when the train was in a “heavy pull,” and with the “traction motors ... pulling air through the cab of the engine,” the sand would get sucked up into the cab where Bohannon and R.B. were located. Bohannon also testified that the two were exposed to sandblasting three days a week in a Mobile, Alabama, switching yard. This exposure occurred throughout their entire careers. In the yard, R.B. and Bohannon could be anywhere from twenty-five feet to one hundred yards away from sandblasting activities. According to Bohannon, Valley sand was used for sandblasting at the switch yard, and it was used for traction sand by Illinois Central.

¶ 9. Dr. Vernon Rose, a certified industrial hygienist, testified about the total amount of silica exposure to which R.B. was subjected over his career. He testified that traction sand is pulverized into fine dust when it is crushed between the wheels of a train and the track, and that sandblasting pulverizes sand particles in a similar way. According to Rose, both sandblasting and traction sand create res-pirable silica. Respirable silica consists of the microscopic sand particles which actually get into persons’ lungs and cause disease. After hearing the testimony of R.B. and Bohannon, Rose estimated that R.B. had been exposed to respirable silica for more than 1,500 hours during the course of his career, both in the form of traction sand and sandblasting exposure. This amounted to significant exposure, according to Rose. He also referenced several studies conducted after Valley went out of business which determined that railroad crews were exposed to substantial levels of total silica dust, although the amount of respirable silica to which they were exposed was not measured.

¶ 10. Valley offered the testimony of Earl Gregory, a certified industrial hygienist, to counter the exposure testimony offered by Reeves. Gregory emphasized that the studies relied upon by Rose did not measure respirable silica, which undis-putedly is the only type of silica that can cause damage to the lungs. He disputed the accuracy of the total dust measurements found in those studies, stating that the method of determining the amount and type of dust was wrong. He also testified that R.B.’s and Bohannon’s exposure to sandblasting was intermittent and brief, and that their distance from sandblasting operations meant that their exposure to silica from sandblasting would be so minute as to be undetectable.

Verdict

¶ 11. The jury found for Reeves. It awarded $149,464.40 in actual economic damages and $1.5 million in noneconomic damages. The jury attributed fifteen percent liability to Valley. The jury also awarded $50,000 in punitive damages. The trial court determined that, since the original action was filed in 2002, Valley was responsible for fifty percent of Reeves’s total compensable damages pursuant to Mississippi Code Section 85-5-7(2) (Rev.2002). The court also found that the $1 million statutory cap on noneconomic damages, enacted in 2004, did not apply to this case. Accordingly, the court ordered Valley to pay half of the roughly $1.65 million verdict, or $824,732.20. Finally the trial court awarded attorney fees and costs to Reeves in the amount of $257,710.50. The total damages assessed to Valley amounted to $1,132,433.70.

¶ 12. After the plaintiff had presented its case, Valley moved for a directed verdict. After trial, Valley moved for judgment notwithstanding the verdict (JNOV). Both motions were denied. Valley timely perfected its appeal and argues:

I. The trial court erred in denying Valley’s motion for JNOV, as the evidence was insufficient to support the jury’s verdict.
II. The trial court erred in awarding punitive damages and attorney fees.
III. The trial court erred in awarding damages based upon the law in place in Mississippi in 2002.
IV. Remittitur should have been granted.

¶ 13. Because we hold issue one to be dispositive, our review is limited to the sufficiency-of-the-evidenee issue.

STANDARD OF REVIEW

¶ 14. When reviewing the denial of a motion for JNOV, this Court will reverse only “[i]f the facts are so overwhelmingly in favor of the appellant that reasonable and fair-minded jurors could not have arrived at a contrary verdict....” Solanki v. Ervin, 21 So.3d 552, 566 (Miss.2009) (¶ 35) (quotation omitted). Errors of law are reviewed de novo. Madison HMA, Inc. v. St. Dominic-Jackson Mem’l Hosp., 35 So.3d 1209, 1215 (¶17) (Miss.2010).

ANALYSIS

The trial court erred in denying Valley’s motion for JNOV because Reeves adduced insufficient evidence to identify Valley as the source of the sand that killed R.B. as a matter of law.

¶ 15. In any tort case, identifying and proving the source of the harm that proximately caused a plaintiffs injuries is essential. “Recoverable damages mu[st] be reasonably certain in respect to the efficient cause from which they proceed, and the burden is on claimant to show by a preponderance of the evidence that the person charged was the wrongful author of that cause.” Jackson v. Swinney, 244 Miss. 117, 124, 140 So.2d 555, 557 (1962) (emphasis added). “The defendant’s wrongful conduct must be a cause in fact of plaintiffs injury before there is any liability.” Id. The plaintiff bears the burden of proof, in a product liability suit, to prove by a preponderance of the evidence that the product which caused the alleged injuries suffered from a defect “at the time the product left the control of the manufacturer or seller.... ” Miss.Code Ann. § ll-l-63(a) (Rev.2002). This language clearly indicates that the product must have originated from the manufacturer or seller, and if it did not, then no claim in tort may be sustained. Accordingly, Reeves’s burden at trial was to prove that some of the sand that injured R.B. came from Valley.

¶ 16. The evidence adduced to show that Valley had supplied sand to Illinois Central was, at best, sparse. Valley argues that R.B. identified Valley sand as the sand that he used on the railroad only after leading questions by his attorney.

Q: And did you have a chance to see any of the names that were on the bags that this railroad used that you think you were exposed to?
A: Yes. I think so. I could.
Q: Do you remember the names of the bags, the names of the sands or the names that were on the bags of sand that you saw and were exposed to?
A: All right. Let me get my mind. Clark Valley. Clark Valley or ...
Q: Well, let’s take the first one.
A: Clark.
Q: Let’s take Clark.
Q: And you mentioned another bag of sand that you used out at the railroad. What was the name of it? You said Valley.
A: Valley. Valley State — wait a minute. State — let’s see. Oh, that’s a college. Mississippi State.
Q: What was the name of the sand?
A: Mississippi State — Mississippi Valley.
Q: Mississippi Valley. Okay.

(Emphasis added.)

¶ 17. R.B. clearly had difficulty remembering the brand of sand that was used by Illinois Central. He specifically remembered using Valley sand on only one occasion, during a flood in Jackson in the 1970s. Further, R.B. never personally loaded the sand into the tanks used for traction sanding. When discussing who had loaded the sand into the tanks, R.B. testified that there was only one instance when he put the sand into such a tank.

Q: Who was responsible for taking the sand and putting it into a tank?
A: Well, that was done in the shops. That’s just only one instance that I remember that I put the sand in there.

¶ 18. Reeves also attempted to connect Valley to the traction sand through the testimony of A.J. Bohannon, R.B.’s longtime locomotive engineer. On direct, Bo-hannon testified that Valley sand was used as traction sand throughout the 1960s and 1970s to the best of his knowledge. He testified that he knew that Valley sand was used for sandblasting operations in a switching yard in Mobile because he saw it unloaded from boxcars. However, on cross examination, he admitted that he did not recall the name of the sand used for traction.

Q: Mr. Bohannon, do you recall telling me that you did not know the names of any of the sands that would have been used on the tracks? Do you recall that?
A: Well I may not have known them, but I know that we had it shipped in boxcars. And whenever I was in the Mobile yard we had to stop the boxcars up in Frascati shop to be unloaded. And that’s whenever they told me [that it was Valley sand].

¶ 19. No other testimony was adduced regarding Valley’s having sold sand specifically to Illinois Central for any purpose, let alone for use as traction sand. No invoices or other relevant records from either Illinois Central or Valley were put into evidence to show how often or how much sand was sold to the railroad by Valley. Reeves offered no witnesses who actually had put sand into Illinois Central locomotives to testify that they used Valley sand. Further, Reeves’s industrial hygiene expert, Dr. Rose, determined that R.B. was exposed to silica for more than 1,500 hours. However, no proof was adduced to establish how much of that time he was breathing in Valley sand or Clark sand or anyone else’s sand. Dr. Rose’s exposure testimony provides no proof that any of the sand of which he spoke had come from Valley. No evidence was adduced which linked any sale of Valley sand to Illinois Central.

¶20. Reeves urges this court to defer to the jury’s verdict, arguing that, since there was at least some proof that, at one point, sand from bags labeled Valley was used by Illinois Central, the evidence supports a verdict in which fifteen percent of fault for R.B.’s death is allocated to Valley. Additionally, Reeves argues that Bohan-non’s statement that Valley sand was used as traction sand throughout the 1960s and 1970s should be given great weight. However, Bohannon admitted that he did not know the name of the sand used for traction braking.

¶ 21. We find that Reeves failed to prove that R.B. was exposed to Valley sand for any significant period of time, and that the plaintiff failed to prove that Valley was at fault for R.B.’s injuries as a matter of law. There was no basis for the expert calculations of exposure offered by the plaintiff, as they merely measured total sand exposure and did not establish that the sand inhaled by R.B. was purchased from Valley. This is not a case in which there was a dispute about how much sand Valley had sold to Illinois Central, or for how long. Rather, Reeves failed to show that Valley ever sold sand to Illinois Central, with the possible exception of the single bag of Valley sand which R.B. recalled. Reeves failed to present sufficient evidence from which a jury could make a determination of how much of the sand inhaled by R.B. over his forty-four-year career had come from Valley. Reeves produced sufficient evidence to show that R.B. was exposed to sand, to be sure, but not Valley sand. The product liability statute requires that the plaintiff prove by a preponderance of the evidence that the product in question “left the control of the manufacturer or seller....” Miss.Code Ann. § 11 — 1—63(a) (Rev.2002). The dearth of substantive evidence showing that Valley sold any of the sand that made its way in to R.B.’s lungs leads us to conclude that “the facts are so overwhelmingly in favor of the appellant that reasonable and fair-minded jurors could not have arrived at a contrary verdict....” Solanki, 21 So.3d at 566 (¶ 35) (Miss.2009) (quotation omitted). Because Reeves did not present sufficient evidence to support a finding that Valley caused R.B.’s injuries, we must reverse the judgment of the trial court and render a verdict in favor of Valley.

CONCLUSION

¶ 22. The plaintiff failed to adduce sufficient evidence from which a jury reasonably could conclude that any appreciable amount of the silica inhaled by Robert B. Reeves over the course of his career was supplied by Valley. His testimony that he had handled one bag of Valley sand in the 1970s, despite his having worked for the railroad for more than forty years, is insufficient to tie Valley to his silicosis. No evidence of invoices or other records detailing sale of Valley sand to Illinois Central was adduced; no testimony by workers who actually filled the sand tanks on the locomotives was forthcoming. Bohan-non’s testimony that he was told by unknown railyard workers that Valley sand was used on trains does not amount to evidence which we find sufficient to support the jury’s verdict. As insufficient proof exists to show that Mississippi Valley Silica sand injured Robert Reeves, the plaintiffs case must fail. Accordingly, we reverse the verdict of the Circuit Court of the Second Judicial District of Jones County and render judgment in favor of the defendant, Mississippi Valley Silica.

¶ 23. REVERSED AND RENDERED.

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

      . Valley went out of business in 1978. This case is being defended by its insurer.

      . This means that he had breathed in both asbestos dust and respirable silica and his illness was a result of his exposure to that mixture of dust.

      . For example, when asked if a picture of a Valley bag of sand looked like what was used when he worked for the railroad, R.B. stated, "I'd say that’s it.” When asked if that sand had been used for a long period of time by the railroad, R.B. replied, "Yes. I would say that it was.” However, he did not specifically identify a time other than the flood when he witnessed the sand being used.

      .Frank Bogran, former president of Valley, specifically remembered selling sand to the Masonite plant. None of his testimony indicated that Valley sold to Illinois Central.

      . They are less then ten micrometers, or 10 ~ meters, in diameter, smaller than the width of a human hair.


source: Caselaw Access Project

author: LAMAR, Justice,

license: Public Domain

text:
    Gregory Stalling HOPKINS a/k/a Gregory S. Hopkins a/k/a Gregory Hopkins a/k/a Greg Hopkins v. STATE of Mississippi.
    No. 2013-KA-00301-SCT.
    Supreme Court of Mississippi.
    May 1, 2014.
    Rehearing Denied July 17, 2014.

      Office of State Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Brad A. Smith, attorney for appellee.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Gregory Stalling Hopkins was convicted as a habitual offender of possession of cocaine with intent to distribute. In his appeal, he challenges the sufficiency and the weight of the evidence as well as the admission of evidence of his prior bad acts. Finding no error, we affirm.

FACTUAL BACKGROUND

¶ 2. On December 11, 2009, the Biloxi Police Department conducted an undercover drug operation at Hopkins’s residence located at 224 Bowen Street in Biloxi, Mississippi. The police enlisted the help of a confidential informant (Cl) who called Hopkins and requested $50 worth of crack cocaine. Hopkins agreed to the sale. Officer Ricky Allen and Officer Mike Mason drove the Cl to Hopkins’s residence, searched her, wired her purse with audio surveillance equipment, and gave her $50 in prerecorded bills to complete the buy. Police officers stationed around the property watched the Cl approach Hopkins’s residence and lost sight of her only when she approached his door. After ten minutes, the Cl returned with two purses, no money, and one rock of crack cocaine, which she handed directly to the investigator. The audio surveillance equipment recorded the entire transaction and revealed that Hopkins would not let the Cl into his residence but brought her a second purse and the crack cocaine. Once the rock tested positive for crack cocaine, the investigator signaled to secure the house. Upon entering the house, the police found Hopkins and a woman named Hope Black in the bathroom trying to stuff a crack pipe down the sink drain after flushing-something down the toilet. A third person, Darryl Daniels, was found in the yard and brought inside. After securing the house, Sergeant Aldon Helmert prepared a search warrant requesting permission to search the house for crack cocaine, confidential funds, drug paraphernalia, and anything listed in Exhibit A of the warrant. Once the judge granted the warrant, the police began a search of the house.

¶ 3. In addition to the crack pipe found while securing the house, the police found: money, paperwork, and sandwich bags in the master bedroom; crack cocaine in the living room; crack cocaine and a digital scale in the kitchen; and $500 in Hopkins’s pocket, fifty of which was from the Cl. Each of these items was recorded on the search warrant.

¶ 4. The money found in the bedroom totaled $3,604 in cash and $38.56 in change. The money was found wrapped in a hat and concealed under other clothing in the bedroom dresser. Also in the bedroom dresser was a bank card with Hopkins’s name on it and a car title certificate. The title had been issued to Hopkins three months before the undercover operation occurred and listed 224 Bowen Street as his address. The sandwich bags found in the bedroom were identified by an officer at trial, without objection, as the type typically used to package and distribute narcotics.

¶ 5. The rock found in the living room and the substance found in the kitchen were confirmed by a drug analyst with the Mississippi Crime Laboratory to be crack cocaine. The rock weighed .1 gram but the substance in the kitchen was only a trace amount, as it was in powder form and lacked weight. Additionally, the digital scale found in the kitchen was identified by an officer as the type of scale typically used to weigh out individual crack cocaine rocks.

¶ 6. The police arrested and charged Hopkins, Black, and Daniels. Hopkins was charged with possession of cocaine with intent to distribute.

PROCEDURAL HISTORY

¶ 7. A grand jury indicted Hopkins a little more than a month after the undercover operation and, on the same day, his attorney filed a motion to suppress evidence of his prior bad acts. One month later, his attorney filed a request for discovery, a demand for speedy trial, and additional motions to suppress.

Pretrial Motions

¶ 8. Exactly one year after he was indicted, Hopkins went to trial. Defense counsel filed a motion to suppress/in limine under Mississippi Rule of Evidence 404(b) to keep out any evidence of prior bad acts to show conformity. Specifically, defense counsel sought to exclude three of Hopkins’s prior convictions: a 2005 conviction for possession of a controlled substance; a 2003 conviction for transfer of a controlled substance; and a 1989 conviction for two counts of possession of a controlled substance. The State claimed that it intended to use only the 2003 transfer conviction. After considering several cases and conducting a Rule 403(b) balancing test, the court denied the motion to suppress with regard to Hopkins’s 2008 transfer conviction. Testimony regarding the conviction was elicited by the State during its direct examination of Sergeant Freeman, and a certified copy of Hopkins’s 2003 sentencing order was admitted into evidence.

¶ 9. The defense also sought to suppress the search warrant, alleging: 1) that the officer requesting the warrant relied solely on information from other officers and failed to conduct an independent investigation, and 2) that the warrant was based on hearsay and an audio recording of an unreliable Cl. The judge denied the motion to suppress but limited Helmert’s testimony to what brought the police to Hopkins’s residence and expressly prohibited testimony about the hearsay statements in the Cl’s recording.

Motions for Mistrial

1110. Defense counsel moved for mistrial three times. The first motion occurred during voir dire when a prospective juror said that he knew the defendant from being in jail. The second occurred when Helmert testified that the undercover operation involved Hopkins, and the third occurred when Helmert testified that Hopkins’s address was in the police records database. The judge denied all three motions.

Motion for Directed Verdict

¶ 11. After the State rested, the defense asked for a directed verdict, arguing that no evidence, other than mere speculation, had been presented to show that Hopkins possessed the crack cocaine and intended to sell it. The court denied the motion.

Jury Verdict

¶ 12. After two days of testimony presented by the State and no testimony from the defense, the jury reached a unanimous verdict that Hopkins was guilty of possession of cocaine with intent to distribute.

Post-Trial Motions and Procedure

¶ 13. Hopkins’s defense counsel timely moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, challenging the sufficiency and the weight of the evidence because:

A. There were other people in the living room with the crack cocaine when the house was secured;
B. There was a very small amount of crack cocaine;
C. The jury was unfairly and unduly prejudiced by information of a 2003 and a 1989 conviction; and
D. The police relied upon information from a prostitute, referring to the Cl, who said she went into the house.

A year later, the trial judge denied both the motion for JNOV and the motion for a new trial.

LAW AND ANALYSIS

¶ 14. Hopkins presents three issues on appeal: 1) whether the evidence was sufficient to support the jury’s verdict; 2) whether hearsay evidence regarding Hopkins’s prior bad acts violated his right to confrontation and Rules 403 and 901 of the Mississippi Rules of Evidence; and 3) whether the verdict was against the overwhelming weight of the evidence.

A. The evidence presented was sufficient to support the jury’s verdict.

¶ 15. Hopkins claims that the State failed to present sufficient evidence to support his conviction, and that the trial court subsequently erred in denying his motion for judgment notwithstanding the verdict (JNOV). When determining whether to grant or deny a motion for JNOV, the court must view the evidence “in the light most favorable to the State.” A trial court’s ruling is reversed only when the evidence fails to show “beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.” If any of the elements point in the defendant’s favor to the extent that a reasonable jury could not have found that the defendant was guilty, then this Court should reverse and render.

¶ 16. For a charge of possession of cocaine with intent, the State had to prove that Hopkins “knowingly or intentionally” possessed crack cocaine, a Schedule II Controlled Substance, with the intent to transfer or distribute it. There is no dispute that crack cocaine was found at Hopkins’s residence. Instead, Hopkins questions whether the evidence was sufficient to show that: 1) he possessed the crack cocaine, and 2) he intended to distribute it.

Possession

Possession of a controlled substance may be actual or constructive. Constructive possession may be established where the evidence, considered under the totality of the circumstances, shows that the defendant knowingly exercised control over the contraband. The defendant’s proximity to the drugs is a factor in establishing constructive possession, but it is not determinative. Other incriminating circumstances must be present to establish constructive possession .... [T]his Court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.

¶ 17. Hopkins argues that he could not constructively possess the house or any of its contents because he did not own the house, and other people visited the house occasionally. This argument lacks merit. There is both physical evidence as well as testimonial evidence that he had control over 224 Bowen Street. The police found a bank card with his name on it and a car title issued to him that listed 224 Bowen Street as his address in the bedroom. In addition, Helmert and Freeman testified that Hopkins’s address in the police database was 224 Bowen Street. Freeman also testified that he had interacted with Hopkins numerous times at that address and that it was clear the house was under Hopkins’s control. In considering this evidence in the light most favorable to the State, there is sufficient evidence that Hopkins controlled 224 Bowen Street to an extent that he knew or should have known that the crack cocaine was there. This is especially true since the crack cocaine was found in plain view in the living room and in the kitchen. Therefore, the evidence supports a finding that Hopkins had constructive possession of the crack cocaine found at 224 Bowen Street.

Intent

¶ 18. This Court must next determine whether there is sufficient evidence to support the finding that Hopkins had the intent to transfer or distribute the crack cocaine.

¶ 19. This Court has long held that intent may be proven through circumstantial evidence. According to Mississippi caselaw, “both the quantity of the contraband seized, as well as its nature, ■will be determinative.” In order to uphold a conviction of possession with intent, this Court considers “evidence in the light most favorable to the State and all reasonable inferences that may be drawn from that evidence.” As this Court said in Stringfield v. State:

[P]roof of possession with an intent to distribute or sell should not be based solely upon surmise or suspicion. There must be evidentiary facts which will rationally produce in the minds of jurors a certainty, a conviction beyond reasonable doubt that the defendant did in actual fact intend to distribute or sell the cocaine, not that he might have such intent. It must be evidence in which a reasonable jury can sink its teeth.

In addition to the quantity and nature of the controlled substance, incriminating evidence indicating some involvement in the drug trade and the presence of packaging materials also are considered. Each of these factors must be evaluated on a case-by-case basis.

¶20. This Court has said that neither the amount of drugs recovered nor the defendant’s prior involvement in the drug trade alone is enough to establish intent. In Jowers v. State, the police seized:

A. One large freezer bag of marijuana weighing 219 grams (7.7 oz.).
B. A small bag of marijuana weighing 84.5 grams (<3 oz.).
C. A small bag of marijuana weighing 19.9 grams (<1 oz.).
D. Two sets of portable scales.
E. A surgical tool.
F. Rolling papers.
G. $856 cash.

This Court held that the recovery of those items clearly established possession but, alone, was insufficient to establish intent to distribute. Similarly, in Holland, this Court held that evidence of “[pjast [drug] sales alone is insufficient to prove an intent to distribute.”

¶ 21. However, when paired with additional evidence, both the amount of drugs recovered and the defendant’s prior involvement in the drug trade can be used to support a conviction of possession with intent. For instance in Boyd, an officer saw Boyd in a high-drug area and noticed that he acted in a manner that was “typical of a drug deal.” When asked to stop, Boyd ran away to his house and threw something across his bed to the floor. A detective looked behind the bed and found two rocks of crack cocaine and $101 cash in Boyd’s pockets. Another officer testified that “sales of drugs were routinely conducted in the area with the seller having only one or two rocks of cocaine in his possession so that if police happened upon the sale, the seller could swallow or throw the contraband.” This Court found the evidence was sufficient to sustain Boyd’s conviction for possession with intent, because “[t]he facts ... cast [the case] into that category of cases where a small quantity of drugs alone is not the controlling factor in deciding intent of the defendant.”

¶ 22. This Court reached a similar conclusion in Swington v. State. In Swing-ton, officers purchased a rock of crack cocaine from Antron Reed during a controlled drug buy. Reed identified Swing-ton as the source and said Swington was waiting for him in a local café. The officers approached Swington in the café and discovered he had one rock of crack cocaine in his possession. As a result, Swington was convicted of possession of cocaine with intent to distribute. On appeal, “Swington argue[d] that there was no evidence of intent to distribute other than that of Reed, an admitted cocaine addict [and that] ... one rock of crack cocaine. ... was insufficient to establish intent to distribute.” This Court disagreed, finding that “[i]t was the function of the jury to pass upon the credibility of Reed” and that “there was ample evidence, which if believed by the jury,' justified the verdict.” Swington’s conviction was affirmed.

¶ 28. Unlike in Jowers and Holland, the evidence against Hopkins consists of more than just his possession of a small amount of cocaine or his prior involvement in the drug trade. Rather, there is evidence of both Hopkins’s drug possession and his prior involvement in the drug trade, along with additional circumstantial evidence including Hopkins’s possession of a scale, packaging materials, and the buy money from the undercover operation. As in Boyd, possession of a small quantity of drugs was not the only evidence of intent presented by the State. And, as in Swing-ton, there was direct evidence of a drug sale between Hopkins and the Cl from the undercover operation.

¶ 24. Based on the totality of the circumstances and viewing the evidence in the light most favorable to the State, any reasonable and fair-minded juror could have found that the State proved each element of the charge of possession of cocaine with intent. Accordingly, the evidence is sufficient to support the jury’s guilty verdict.

B. The trial judge properly limited testimony in order to prevent any hearsay evidence; therefore, there was no violation of the Confrontation Clause, Rule 403, or Rule 901 of the Mississippi Rules of Evidence.

¶ 25. Hopkins also argues that the trial court erred by allowing the State: 1) to admit evidence regarding the undercover operation through hearsay gained from the Cl; and 2) to refer to 224 Bowen Street as Hopkins’s residence. The standard of review for the admission or exclusion of evidence is abuse of discretion, and this Court will reverse only if prejudice to the accused occurs.

¶ 26. The conversation between an informant and a trial witness “is generally inadmissible hearsay where it is part of the State’s development of its proof on the merits in a criminal case, but not in other circumstances where probable cause for an arrest or search is at issue.” In Swindle, the trial judge overruled an objection similar to the one at issue here on the ground that the officer could give an explanation as to his presence at the scene. This Court upheld that ruling saying that an informant’s tip is admissible to the extent required to show why an officer acted as he did and was at a particular place at a particular time.

¶ 27. Hopkins relies heavily on the Donerson case, in which the Court of Appeals noted “that evidence of a prior sale of cocaine can be used to show intent to distribute, as long as this evidence is not considered prejudicial and is accompanied by a limiting instruction.” In Donerson, a Cl bought crack cocaine in a store’s restroom as part of an undercover police operation. An officer monitoring the operation recognized Donerson’s voice and testified that he had sold crack cocaine to the CL As a result of the voice recognition, police arrested Donerson and then obtained a search warrant for Donerson’s home. According to the officer, the arrest, in addition to the information received from the Cl, was the probable cause for the search warrant. Before trial began, the trial judge decided that “evidence of the prior sale would be allowed into evidence; however, to prevent prejudice, the seller in the prior sale could not be identified as Donerson.” The officer then testified during trial that “there was a drug sale on the day in question, and based upon the sale, [he] was able to get a search warrant for Donerson’s residence.” According to Donerson, these facts were statements from the Cl who should have been forced to testify; therefore, they should not have been admitted into evidence because they were based on hearsay and violated his confrontation rights. The Court of Appeals held that the officer’s testimony was not hearsay because he testified from personal knowledge about things he had observed or knew would happen. Donerson also argued that the judge erred by not giving “the jury a limiting instruction stating the evidence of the sale of cocaine could only be considered as evidence of intent.” The Court of Appeals held that it was sufficient that the prosecution was prevented “from identifying the seller involved in the sale as Donerson,” even though it was not as direct as a jury instruction.

¶ 28. Like Donerson, Hopkins attempted to exclude evidence of his sale to the Cl through a motion to suppress. The trial judge properly conducted a hearing in which Helmert, the officer who obtained the search warrant, said that he did not see the actual sale but monitored it via audio surveillance equipment. When Hel-mert could not recall the specifics of the transaction on cross-examination, he was allowed to listen to the recordings of the telephone call that led to the transaction and to the transaction itself. Neither of these recordings was put into evidence. Based on Donerson and Helmert’s testimony, the trial judge ruled that, since the Cl was not going to testify, the officers could testify only as to why they were at Hopkins’s residence and could not testify to specifics of the sale without personal knowledge. The judge specifically agreed that the officers could talk about why they were at Hopkins’s house, the undercover buy operation; the events leading up to the undercover buy operation; the audio of the transaction; the C.I.’s return with a substance that tested positive for crack cocaine; and the arrest, including the buy money in Hopkins’s pocket, because those events were the basis of the search warrant that led to a search of Hopkins’s residence and his subsequent arrest.

¶ 29. We agree with Hopkins that this case is different from Donerson, but this is not because the trial court did not go far enough in its limiting instructions. Rather, the trial court here actually went further than the trial court in Donerson. First, the State could not refer to the seller as Hopkins per the ruling in Doner-son. Second, the judge provided a limiting instruction to the jury that directly addressed the issue of prior bad acts and intent. While there is a difference in selling drugs in a house and selling drugs in a store, there is enough evidence outside of this one transaction, as shown in the sufficiency-of-the-evidence analysis, that referring to 224 Bowen Street as Hopkins’s residence is not based solely on statements made by the Cl.

¶ 30. Accordingly, the judge acted entirely within his discretion to prevent any unfair prejudice to Hopkins. No hearsay evidence was introduced, and Hopkins’s confrontation rights were not violated. Moreover, the trial court conducted proper Rule 403(b) balancing tests during the pretrial hearing and in response to Hopkins’s motions for mistrial. Because no hearsay evidence was introduced, the trial court correctly determined that the probative value of Helmert’s testimony was not outweighed by its prejudicial effect.

¶ 31. Hopkins also challenges the authentication of the audiotape of his transaction with the Cl for the first time on appeal. Each officer mentioned at least once that there was an audiotape of the transaction and that the Cl had kept in touch with police through audio surveillance. Failure to object to any of these instances on both direct and cross-examination “constitutes a waiver of any error subsequently assigned.” But, assuming arguendo that this issue was properly preserved, the State never attempted to admit the audio surveillance tape into evidence. This Court has held that no authentication is required if the audiotape is not being admitted into evidence. Either way, Rule 901 of the Mississippi Rules of Evidence was not violated.

C. The jury verdict was not against the overwhelming weight of the evidence.

¶ 32. Finally, Hopkins argues that the jury’s verdict is against the overwhelming weight of the evidence and that the trial court mistakenly denied his motion for new trial. Like a motion for JNOV, “[a] motion for new trial is addressed to the discretion of the trial court.” A motion for new trial “falls within a lower standard ... [by challenging] the weight of the evidence.” While “the evidence should be weighed in the light most favorable to the verdict,” a new trial will be ordered if “the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand, would be to sanction an unconscionable injustice.”

¶ 33. Hopkins claims that the State’s case was based solely on hearsay and speculation. However, for the reasons heretofore stated, we find that allowing the jury’s guilty verdict to stand will not sanction an unconscionable injustice against Hopkins.

CONCLUSION

¶ 34. Gregory Stalling Hopkins was convicted as a habitual offender for the possession of cocaine with intent to distribute. No error resulted from the admission of prior-bad-acts evidence. In addition, the trial court appropriately denied Hopkins’s motion for JNOV or, in the alternative, a new trial, because the jury’s verdict was sufficiently supported by the evidence and not against the overwhelming weight of the evidence. The judgment of the Harrison County Circuit Court is affirmed.

¶ 35. CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER AND SENTENCE OF TWELVE (12) YEARS TO SERVE DAY FOR DAY, WITHOUT THE HOPE OF PAROLE OR PROBATION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS AN HABITUAL OFFENDER, AFFIRMED. CREDIT SHALL BE GIVEN FOR ANY TIME SERVED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Hopkins resides at 224 Bowen Street in Biloxi, Mississippi. The residence is owned by his neighbor, who is also Darryl Daniels's mother. However, the Biloxi Police Department lists 224 Bowen Street as Hopkins's residence and the police have had numerous interactions with Hopkins there.

      . The Cl was a well-known crack cocaine user. Prior to the operation, she signed a contract detailing what she could and couldn't do, how the operation would work, and what she was and wasn’t supposed to say. The contract also explained that she wasn’t allowed to use drugs or participate in any other illegal activity during the operation.

      . Each of the bills given to the Cl had been copied before the sale and then was copied again after being recovered from Hopkins’s pocket.

      . Hopkins’s 2003 transfer conviction was the product of a guilty plea and resulted in a sentence of ten years.

      . Following the denial, defense counsel requested a limiting instruction per Mississippi Rule of Evidence 105. The instruction was was provided in the jury instructions.

      . Defense counsel made a continuing objection to the line of questioning, which the judge overruled in conformity with his pretrial rulings.

      . Defense counsel argues that he included the language "all the time,” but that phrase was not in the record.

      . Following this statement, the judge stopped Helmert and sent the jury out to confirm that the testimony sought was proper. Defense counsel claimed Hopkins was still entitled to a mistrial because specifics about the sale were mentioned in opening statements, the jury had already heard Helmert say that the operation involved Hopkins, and a prospective juror had said that he had seen Hopkins in jail. The judge noted that he stopped Hel-mert’s testimony only because he was afraid that Helmert was going to say something directly contradictory to the court’s previous ruling. He did not stop Helmert because his testimony was improper.

      .Defense counsel argues that Helmert said that he knew Hopkins’s address "because it was found in our database system from domestic calls and whatnot where Mr. Stallings was arrested.” The record, however, shows that Helmert did not say anything about domestic violence.

      . The 1989 conviction was never introduced into evidence; in fact, the State stipulated that it would not offer that conviction into evidence.

      . Stringer v. State, 131 So.3d 1182, 2014 WL 561994, *7 (Miss. Feb.13, 2014).

      . Id. (quoting Knight v. State, 72 So.3d 1056, 1063 (Miss.2011)).

      . Johnson v. State, 81 So.3d 1020, 1023 (Miss.2011).

      . Miss.Code Ann. § 41-29-139 (Rev.2013).

      . Knight v. State, 72 So.3d 1056, 1063 (Miss. 2011) (citing Dixon v. State, 953 So.2d 1108, 1112 (Miss.2007)) (internal citations and quotations omitted).

      . Hollingsworth v. State, 392 So.2d 515, 517 (Miss.1981).

      . Coyne v. State, 484 So.2d 1018, 1021 (Miss. 1986).

      . Id. at 1022 (distinguishing between Bryant v. State, 427 So.2d 131 (Miss.1983), and Breckenridge v. State, 472 So.2d 373 (Miss.1985)).

      . Stringfield v. State, 588 So.2d 438, 440 (Miss.1991).

      . Jackson v. State, 580 So.2d 1217, 1220 (Miss.1991).

      . Dixon v. State, 953 So.2d 1108, 1111 (Miss.2007) (finding that individually wrapped rocks that were similar in size and street value supported intent to distribute them).

      . See Jowers v. State, 593 So.2d 46, 47 (Miss.1992); Holland v. State, 656 So.2d 1192, 1196 (Miss.1995).

      . Jowers, 593 So.2d at 47.

      . Id. (holding that the evidence created only a suspicion of intent and that more than a mere suspicion is required).

      . Holland, 656 So.2d at 1196.

      . See Boyd v. State, 634 So.2d 113, 115 (Miss. 1994) (noting that surrounding circumstances must be looked at in order to show criminal intent); Swington v. State, 742 So.2d 1106, 1109 (Miss.1999).

      . Boyd, 634 So.2d at 114.

      . Id.

      . Id.

      . Mat 116.

      . Id.

      . Swington, 742 So.2d at 1119.

      . Id. at 1109.

      . Id.

      . Id.

      . Id. at 1109-10.

      . Id. at 1119.

      . Id.

      . Id.

      . The evidence included the police recovering the $50 in buy money from Hopkins’s pocket and the Cl delivering a rock of crack cocaine to the police after visiting Hopkins’s residence.

      . The jury instructions included both a definition of constructive possession and the following list of factors that could be considered when determining intent: "(1) The quantity of the substance possessed, (2) The manner of packaging of the substance, (3) Evidence of the typical number of dosage units that could be made from the substance, (4) The street value of the substance.”

      . Palmer v. State, 939 So.2d 792, 794-95 (Miss.2006).

      . Swindle v. State, 502 So.2d 652, 657 (Miss. 1987).

      . Id.

      . Id. at 658; see also Gillett v. State, 56 So.3d 469, 504 (Miss.2010) (adding that these statements are nonhearsay if used to show the effect on the listener).

      . Donerson v. State, 812 So.2d 1081, 1086 (Miss.Ct.App.2001).

      . Id. at 1084.

      . Id.

      . Id.

      . Id. at 1086.

      . Id.

      . Id.

      . Id.

      . Id. (stating "[h]e did not testify to anything that would be solely within the first hand knowledge of the confidential informant. Therefore, his testimony was not hearsay based on the confidential informant’s statements. Because of this, Wilson's testimony can stand on its own; it is not hearsay in which the confidential informant would have to testify to get the evidence in”).

      . Id.

      . Id. at 1087 (finding that, by not being identified as the seller, Donerson was shielded from any prejudice that may have resulted from the introduction of the crack cocaine sale into evidence).

      . Miss. R. Evid. 103(a)(1); Mariner Health Care, Inc. v. Estate of Edwards, 964 So.2d 1138, 1150 (Miss.2007).

      . Liddell v. State, 7 So.3d 217, 220 (Miss.2009).

      . Weeks v. State, 123 So.3d 373, 380 (Miss.2013) (quoting Weatherspoon v. State, 56 So.3d 559, 564 (Miss.2011)).

      . Holloway v. State, 809 So.2d 598, 606 (Miss.2000).

        .Long v. State, 33 So.3d 1122, 1125 (Miss.2010) (citations omitted).


author: MAXWELL, J., IRVING, P.J.,

text:
    Tammala W. RAVENSTEIN, Individually, and Reagan E. Ravenstein, A Minor, By and through Tammala W. Ravenstein, Her Natural Mother, Adult Next Friend, and Guardian Ad Litem, Appellants v. COMMUNITY TRUST BANK f/k/a Madison County Bank and Madison County Financial Corporation, Appellees.
    No. 2012-CA-00659-COA.
    Court of Appeals of Mississippi.
    Aug. 6, 2013.
    Rehearing Denied Nov. 12, 2013.
    Certiorari Dismissed June 26, 2014.

      Jim Warren III, Jacob Thomas Evans Stutzman, Jackson, attorneys for appellants.
    Keith R. Raulston, April Reeves Freeman, Lindsay Conway Thomas, Jackson, attorneys for appellees.
   MAXWELL, J.,

for the Court:

¶ 1. Tammala Ravenstein (Tammy) was listed as the joint owner with her then-husband, Ronald Ravenstein (Ronnie), on four certificates of deposit (CDs). Under the identical terms of each CD, only one endorsement was necessary for a person who had signed the signature card to request a “transfer,” which the CDs defined as a change in ownership. Ronnie, who had signed the signature card, without Tammy’s knowledge, transferred the four CDs to his sole ownership. Ronnie then pledged the CDs as collateral for a loan from the bank that he defaulted on, triggering the bank’s right to apply the CDs against the balance of the loan.

¶2. Aggrieved by the loss of the CDs, Tammy has not sued Ronnie. Instead, she has sued the bank for allowing the transfer. She claims the bank breached her contractual rights. But the unambiguous terms of the CDs permitted the bank to consent to a transfer requested by one person who had signed the signature card, without obtaining the other owner’s consent. And contrary to Tammy’s assertion, under the clear terms of the CDs, the bank was under no obligation to Tammy to require Ronnie surrender the certificates, which were in Tammy’s possession, or notify Tammy of Ronnie’s request, before consenting to the transfer.

¶ 3. Because the bank did not breach the terms of the CDs or violate Tammy’s ownership rights in the CDs, we affirm the circuit court’s judgment granting summary judgment in favor of the bank on all of Tammy’s claims, which included breach of contract and conversion.

Background

¶ 4. In February and March 2006, Ronnie opened four CDs with Madison County Bank (the Bank). For three of the CDs, each in the amount of $100,000, both Ronnie and Tammy were listed as joint owners with the right of survivorship. For the fourth, in the amount of $50,000, Ronnie, Tammy, and their daughter, Reagan, were listed as joint owners with the right of survivorship.

¶5. With the exceptions of ownership rights, the amounts in the CDs, and the maturity dates, all four CDs had identical provisions. Under the “Primary Agreement” section:

You [ (defined as “the depositor”) ] agree to keep your funds with us [ (the issuer of the account) ] until the maturity date.... You may not transfer this account without first obtaining our written consent. You must present this certificate when you request a withdrawal or a transfer.

The CDs defined “transfer” as “any change in ownership, withdrawal rights, or survivorship rights, including (but not limited to) any pledge or assignment of this account as collateral.” Under the “Withdrawals and Transfers” section:

Only those of you who sign the permanent signature card may withdraw funds from this account.... The specific number of you who must agree to any withdrawal is written on page one in the section bearing the title “Number of Endorsements.” This means, for example, that if two of you sign the signature card but only one endorsement is necessary for withdrawal then either of you may request withdrawal of the entire account at any time.
These same rules apply to define the names and the number of you who can request our consent to transfer.

On page one of each CD the “number of endorsements needed for withdrawal or any other purpose” was “1.” And only one person signed the signature card — Ronnie.

¶ 6. In April 2006, Ronnie requested a transfer — that the ownership of all four CDs be changed so that he was the sole owner and either Tammy or his two daughters were pay-on-death beneficiaries. The Bank consented to the change of ownership, even though Ronnie had not presented the certificates, which Tammy attests were in her possession.

¶ 7. Four months later, Ronnie obtained a $450,000 loan from the Bank for working capital for a car dealership in North Carolina that Ronnie had purchased. Ronnie pledged his interest in the four CDs as collateral for the loan. Both the CDs and the loan agreement gave the Bank the right to set off any indebtedness owed to the Bank with money in any deposit account for which Ronnie had the right of withdrawal. So when Ronnie defaulted on the loan in May 2007, the Bank exercised its right to set off and applied the money in the CDs to the loan’s balance.

¶ 8. In February 2010, Tammy, who is now divorced from Ronnie, sued the Bank and its holding company, Madison Financial Corporation, on her and Reagan’s behalf. She alleged the Bank, by not requiring Ronnie to present the certificates when he changed ownership and by not notifying her about the change in ownership, was responsible to Tammy and Reagan for the loss of the money in the CDs. The circuit court granted the Bank and Madison Financial Corporation summary judgment on all of Tammy’s claims. Tammy timely appealed.

Discussion

¶ 9. On appeal, we consider de novo whether the Bank was entitled to summary judgment in its favor. See Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002). Under Mississippi Rule of Civil Procedure 56(c), summary judgment should be granted “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.” Here, there are no material facts in dispute. So the issue is whether the circuit court rightly found the Bank was entitled to a judgment as a matter of law.

¶ 10. “Summary judgment must be granted when the nonmoving party”— in this case, Tammy — “‘fails to make a showing sufficient to establish the existence of an element essential to [her] case and on which [she] bears the burden of proof at trial.’ ” Kitchens v. Dirtworks, Inc., 50 So.3d 388, 389 (¶ 4) (Miss.Ct.App. 2010) (emphasis added) (quoting Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009)). Looking at the three claims that Tammy argues should have survived summary judgment, we agree with the circuit court that Tammy failed to make a sufficient showing to establish triable claims for breach of contract, breach of the duty of good faith and fair dealing, and conversion.

I. Breach of Contract

¶ 11. To prove breach of contract, Tammy had the burden to prove (1) the existence of a valid and binding contract and (2) the Bank’s breach. Bus. Commc’ns, Inc. v. Banks, 90 So.3d 1221, 1224-25 (¶¶ 10-11) (Miss.2012) (overruling Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992)). While the four CDs formed contracts, giving Tammy and Reagan certain contractual rights, none of those rights were violated by the Bank when— without requiring Ronnie present the CDs and without giving Tammy notice — it consented to Ronnie’s request for a transfer.

A. Existence of Contracts

¶ 12. The four CDs were non-negotiable. This means that they were not instruments governed by Article 3 of Mississippi’s Uniform Commercial Code. Miss. Code Ann. § 75-3-102 (Rev.2002); see Estate of Isaacson v. Isaacson, 508 So.2d 1131, 1134 (Miss.1987) (holding CDs that preclude transfer, by stating they are “not transferable,” “not negotiable,” or “nonnegotiable,” are not subject to Article 3). Instead, the terms and provisions of the CDs created contracts, governed by contract law. See Epperson v. SOUTHBank, 93 So.3d 10, 16 (¶ 15) (Miss.2012) (citations omitted). Neither Tammy nor the Bank dispute that each CD created a contract and that contract law controls. See id.

¶ 13. The Bank does, however, dispute Tammy and Reagan were parties to the contracts, based on the fact they did not sign the signature cards. The fact that Tammy and Reagan did not sign the signature card did affect their rights under the contract. Significantly, it meant they, in contrast to Ronnie, could not request a withdrawal or a transfer. But we do not find it kept either from being a party to the contract. Under this court’s precedent, a CD in which “[t]he ownership stated on the face of the certificate is that of joint tenancy” is a contract between the bank and joint owners. Thornhill v. Chapman, 748 So.2d 819, 823 (¶ 13) (Miss.Ct.App.1999). Page one of all four CDs listed Tammy as a joint owner (and Reagan as an additional joint owner on the fourth CD). Thus, Tammy and Reagan were parties to the respective contracts created by the CDs. See id.

B. Breach

¶ 14. While we reject the argument that Tammy and Reagan, as non-signatories, had no rights under the contract, we affirm summary judgment because Tammy has failed to show the Bank violated any of those rights.

¶ 15. For the second element of her claim, Tammy had to show the Bank “breached” the terms of the CDs. See Bus. Commc’ns, Inc., 90 So.3d at 1224-25 (¶¶ 10-11). A “breach of contract” is a “[vjiolation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance.” Black’s Law Dictionary 200 (8th ed.2004). Here, Tammy claims the Bank breached the terms of the CDs because (1) it did not require Ronnie to present the certificates; and (2) it did not notify her of the changes in ownership of the CDs.

¶ 16. Factually, both of these statements are true — Ronnie did not present the CDs, and the Bank gave no notification to Tammy of the change. But legally, these actions were not breaches by the Bank because neither was a failure of the Bank to perform a promise it made to Tammy under the terms of the CDs. Contrary to Tammy’s assertion, the Bank did not promise Tammy that it would require Ronnie to surrender the certificates or notify her before allowing a transfer.

1. Presentment

¶ 17. Tammy acknowledges that, under the terms of the CDs, only one signature was necessary to request a change in ownership of the CDs, without any other owner’s agreement. She also acknowledges that Ronnie, who had signed the signature card, was the only person at the time who could have requested a transfer and was in fact the person who did request the transfer. So she is not arguing the Bank breached the terms of the CDs by consenting to a transfer by someone other than the person authorized to request a transfer or without the necessary number of endorsements.

¶ 18. Instead, she is arguing the Bank breached the provision of the CDs in which the Bank required the person requesting a transfer to “present the certificate” at the time of the request. She claims this provision obligated the Bank to require presentment in order to protect her as joint owner. She further claims she relied on this provision to her detriment, believing that, so long as she retained possession of the certificates, Ronnie could not exercise his right of withdrawal or transfer.

¶ 19. But we find neither the language of the provision requiring presentment nor the terms of the CDs as a whole support Tammy’s contention. See Epperson, 93 So.3d at 16 (¶ 17) (holding that, when a contract is unambiguous, the court will enforce the plain meaning of the contract as the intention of the parties).

¶ 20. Page two of the CDs begins with defining “we” and “you,” the terms used throughout the CDs to identify the parties. “We” and “us” refers to the “issuer of the account.” And “you” refers to “the deposi-tóos).” The provision Tammy relies on does not state that “we” — i.e., the Bank— “must.” Instead, it states that “you” — i.e., the depositor — “must.” It provides: “You must present this certificate when you request a withdrawal or a transfer.” (Emphasis added). So this provision imposes an obligation on the depositors to present the certificates. It does not impose an obligation on the Bank to require the certificates be presented.

¶ 21. The obligation to present the certificates to the Bank was for the Bank’s protection, as part of its right to restrict early withdrawals. See Epperson, 93 So.3d at 19 (¶ 27) (discussing presentment as a right owed to the Bank, not an obligation the Bank owes to joint depositors). This provision gave the Bank the right to refuse to consent to Ronnie’s request for transfer because he did not present the certificates. See id. But it did not obligate the Bánk to require presentment. See 13 Williston on Contracts § 39:17 (4th ed.2000) (noting a party may voluntarily waive a contractual condition that has been inserted for his benefit). “[I]t is simple contract law that a party may waive the protections of any provision of a contract.” Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 837 (¶ 23) (Miss.2003); see also 13 Williston on Contracts § 39:14 (discussing “the general principle of contract law that either party to a contract may waive virtually any contractual provision or right in his or her favor”). Thus, by not requiring presentment, the Bank was waiving a contractual protection, not breaching a contractual obligation.

¶ 22. Further, by looking at all the terms of the CDs, it is clear that the way for a joint owner like Tammy to protect against withdrawal or transfer without her consent was to be on the signature card and be among the number of required endorsements — and not to merely possess the CDs. Had Tammy been on the signature card and had the CDs required two endorsements for a transfer, the Bank’s consent to Ronnie’s request for a transfer would have been a breach. But Tammy concedes that only one signature was required and Ronnie was authorized to give his signature. Assured that Ronnie was authorized to make the transfers without Tammy’s agreement, the Bank could waive the presentment requirement and consent to the transfers without breaching any contractual obligation to Tammy. See 13 Williston on Contracts § 39:24 (“[I]t is well settled that a contracting party may unilaterally waive a provision of the contract, including ... any condition precedent, which has been placed in the contract for his or her benefit.”).

2. Notice

¶ 23. Tammy next argues that the Bank breached the terms of the CDs because it did not notify her that the Bank was “changing the terms” of the CDs. To support her argument, Tammy relies on language in the “Primary Agreement” section:

We may change any term of this agreement. Rules governing changes in interest rates have been provided on page 1. For other changes we will give you reasonable notice in writing or by any other method permitted by law.

Tammy argues that, by consenting to Ronnie’s request in April 2006, the Bank “changed the terms” of the CDs without giving her reasonable notice. Had she been given notice, she claims she could have stopped the changes from occurring.

¶ 24. But what happened in April 2006 was not a change in the terms of the CDs. It was a change in ownership, which the CDs clearly define as a “transfer.” And the CDs do not require the Bank to notify joint owners of a request for a transfer made by someone who signed the signature card, as long as the necessary number of endorsements were met. Because under the clear terms of the CDs, only one endorsement was required, the Bank was under no obligation to notify Tammy in these circumstances. Thus, the lack of notice does not support her claim for breach of contract.

¶ 25. We agree with the circuit court that Tammy’s breach-of-contract claim fails as a matter of law.

II. Breach of the Duty of Good Faith and Fair Dealing

¶ 26. Related to Tammy’s breach-of-contract claim was her claim that the Bank, by waiving presentment and not notifying her, breached its duty of good faith and fair dealing.

¶27. “All contracts contain an implied covenant of good faith and fair dealing in performance and enforcement.” Limbert v. Miss. Univ. for Women Alumnae Ass’n, 998 So.2d 993, 998 (¶ 11) (Miss.2008) (citing Morris v. Macione, 546 So.2d 969, 971 (Miss.1989)). Good faith means “the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party.” Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992). In contrast, bad faith requires “a showing of more than bad judgment or negligence; rather, ‘bad faith’ implies some conscious wrongdoing ‘because of dishonest purpose or moral obliquity.’” Univ. of S. Miss. v. Williams, 891 So.2d 160, 170-71 (¶ 24) (Miss.2004) (quoting Bailey v. Bailey, 724 So.2d 335, 338 (¶ 9) (Miss.1998)). However, a party does not breach the “implied covenant of good faith and fair dealing when the party ‘took only those actions which were duly authorized by the contract.’ ” Limbert, 998 So.2d at 999 (¶ 14) (quoting Gen. Motors Accep tance Corp. v. Baymon, 732 So.2d 262, 269 (¶ 29) (Miss.1999)).

¶28. As discussed in the previous section, the unambiguous terms of the CDs clearly authorized the Bank to consent to a transfer requested by one person who was on the signature card. So the Bank was not acting in bad faith when it consented to Ronnie’s request. Further, by waiving the presentment requirement and not notifying Tammy, the Bank was not being dishonest or immoral towards Tammy but instead was merely exercising its own judgment regarding its contractual right to restrict withdrawal.

¶ 29. We agree with the circuit court that Tammy’s bad-faith claim also fails as a matter of law.

III. Conversion

¶ 30. Finally, Tammy argues she made a sufficient claim for conversion. “To establish the tort of conversion, ‘there must be proof of a wrongful possession, or the exercise of a dominion in exclusion or defiance of the owner’s right, or of an unauthorized and injurious use, or of a wrongful detention after demand.’” Stevens v. Smith, 71 So.3d 1230, 1233 (¶ 9) (Miss.Ct.App.2011) (quoting Cnty. Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 772-73 (¶10) (Miss.2004)). Here, Tammy fails to show how the Bank wrongfully possessed the funds in the CDs or exercised dominion over the funds in exclusion or defiance of her rights.

¶ 31. The terms of the CD permitted change in ownership based on one person’s request, so long as he had signed the signature card. By permitting Ronnie to transfer the CDs, the Bank was not exercising dominion over the funds in the CDs in a way that defied Tammy’s rights.

¶ 32. Further, included in the terms of the CDs was the Bank’s right to set off:

You each agree that we may (without prior notice and when permitted by law) set off the funds in this account against any due and payable debt owed to us now or in the future, by any of you having the right of withdrawal, to the extent of such person’s or legal entity’s right to withdraw.

The CDs gave Ronnie the right to withdraw all the funds of the CDs. Thus, the CDs also gave the Bank the right to set off all the funds in the CDs against Ronnie’s debt, which was $100,000 greater than the collective amount of the CDs. As a “you” for purposes of the CDs, Tammy cannot deny that she agreed to the Bank’s right to set off. Thus, she cannot claim that the Bank, having exercised the right to set off, somehow converted her jointly owned funds when it applied the funds to Ronnie’s defaulted loan. Any claim she may have had for conversion would have been against Ronnie, not the Bank. See Stevens, 71 So.3d at 1237 (¶ 23) (affirming the grant of summary judgment in favor of two joint owners of a CD against a third joint owner for converting the CD’s funds, which he withdrew).

¶ 33. We agree with the circuit court that Tammy’s conversion claim against the Bank also fails as a matter of law.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

IRVING, P.J.,

dissenting:

¶ 35. I disagree with the majority’s conclusion that the Bank was entitled to summary judgment on Tammy’s breach-of-contract claim. Therefore, I dissent. I would reverse the circuit court’s judgment and remand this case for a trial on the merits.

¶ 36. I agree with the majority that Tammy is a party to the deposit contracts covering the CDs and that the contracts between the Bank, Tammy, and Ronnie are unambiguous. I also agree that Tammy’s rights pursuant to those contracts were limited as a result of her failure to sign the signature card. However, I cannot agree with the majority’s interpretation of the contracts and the consequences that flow therefrom.

A. Breach of Contract

1. Presentment

¶ 37. Using Epperson as its guide, the majority concludes that the provision “You must present this certificate when you request a withdrawal or a transfer” allows the Bank to exercise its discretion when determining whether presentment is necessary. In my opinion, that conclusion is not only contrary to a finding that the CDs are unambiguous, but it is also contrary to our supreme court’s statement in Epper-son that “[i]f the contract is unambiguous, the intention of the contracting parties should be gleaned solely from the wording of the contract!.]” Epperson v. SOUTH-Bank, 93 So.3d 10, 16 (¶ 17) (Miss.2012) (quoting Turner v. Terry, 799 So.2d 25, 32 (¶ 16) (Miss.2001)) (internal quotation marks omitted).

¶ 38. The contracts do not state that a depositor may be required to present the certificates prior to a transfer or withdrawal, and there is no additional language in the contracts governing the CDs similar to the provision in Epperson — that the Bank may require presentment. Through use of the term “must,” the contracts require presentment prior to a withdrawal or a transfer and prevent the depositor from doing either without first presenting the certificates to the Bank. By allowing Ronnie to transfer the CDs without first requiring that he present the CDs, the Bank operated in clear contradiction to the wording of the contract, and, consequently breached its contractual obligation to Tammy as a co-depositor.

¶ 39. Citing 13 Williston on Contracts § 39:17 and quoting Sanderson Farms, Inc. v. Gatlin, 848 So.2d 828, 837 (¶ 23) (Miss.2003), the majority states that “a party may voluntarily waive a contractual condition that has been inserted for his benefit.... ‘It is simple contract law that a party may waive the protections of any provision of a contract.’” Maj. Op. at (¶ 21). While this is generally true, the problem here is that there are three parties to the contract: Tammy, Ronnie, and the Bank. While the provision regarding presentment may be primarily for the Bank’s protection, it cannot be legitimately argued that it does not also provide protection for a depositor not requesting a withdrawal or transfer, as was the case here, in a multi-depositor situation where only one depositor requests a transfer. After all, are not all parties to a contract entitled to the benefit of all contractual provisions, unless otherwise specified in the contract? If the Bank were going to waive the requirement of presentment, it had to do so with all parties being informed. Clearly, Ronnie was informed, as he was the one seeking the transfer without first presenting the CDs. Since Tammy, a depositor, was not present, the Bank was required to give her notice even though it would not have been required to do so had she been with Ronnie when he requested the transfer. The fact that Tammy had other ways, of which she did not take advantage, of protecting her interest does not mean that she forfeited the protections afforded by the plain wording of the contracts governing the CDs.

2. Notice

¶40. Tammy’s rights pursuant to the CDs were only limited in that she could neither withdraw the funds from the CDs nor transfer them because she had not signed the signature cards. I believe that the majority errs, however, in determining that, despite Tammy’s status as a party to the contracts, she was not entitled to notice, as the Bank did not change any of the terms of the contracts governing the CDs. See Maj. Op. at (¶ 24).

¶ 41. A “term” is a provision that defines a contract’s scope, its conditions, or its stipulations. See Black’s Law Dictionary 1510 (8th ed.2004). As stated, the contract language governing the CDs is unambiguous. Therefore, the terms of the CD contracts governing the transfer and the conditions required for a transfer, including presentment, limited the operational scope of the Bank in dealing with the CDs. While the contracts governing the CDs state that the Bank “may change any term of [the] agreement,” the contracts also obligate the Bank to “give [the depositors] reasonable notice” of the changes, except as to changes involving interest rates. To find that the Bank did not violate the terms of the agreements when it failed to require Ronnie to present the original CDs prior to the transfer is to also find either that the contractual provisions governing presentment and transfer are ambiguous or that the Bank changed the terms of the agreements to permit a transfer without presentment. It is undisputed that the Bank did not give Tammy any notice of any changes being made to the terms concerning the transfer of the CDs, and the Bank did not provide any evidence that she, as a party to the contract, was not entitled to notice.

¶ 42. While I do not dispute that Ronnie had the sole right, as a result of his signing the signature card, to transfer or withdraw the funds in the CDs, the Bank has failed to present any evidence that Tammy, as a result of not signing the signature card, was not entitled to the notice that she was assured under the terms of the contracts governing the CDs. Accordingly, the Bank was not entitled to summary judgment, as it did not demonstrate that it had not breached any of the terms of the contracts governing the CDs.

B. Statute of Limitations

¶ 43. Both sides agreed that, normally, breach-of-eontract claims are subject to the three-year statute of limitations outlined in Mississippi Code Annotated section 15-1^49(1) (Rev.2012). Although the majority chooses not to address this issue on the merits, I feel the need to do so, for if the Bank’s contention with respect to the running of the statute of limitations has merit, Tammy still loses. The Bank contends that Tammy’s claims against it are barred by the statute of limitations because her injury was not latent and could have been discovered through the exercise of reasonable diligence.

¶ 44. The CDs at issue here had a listed maturity date of March 8, 2007, approximately twenty days after Tammy learned that the Bank had allowed Ronnie to remove her name from the CDs and pledge them as collateral for a loan. There is no evidence that anything occurred prior to February 18, 2007, the date that Tammy discovered the transfers, that would have put Tammy on notice that something was amiss with the CDs or would have prompted her to inquire with the Bank about her ownership of the CDs.

¶45. Further, our supreme court has stated that

[t]he question of whether a statute of limitations is tolled by the discovery rule often turns on the factual determination of what the plaintiff knew and when. Thus, occasionally the question of whether the suit is barred by the statute of limitations is a question of fact for the jury; however, as with other putative fact questions, the question may be taken away from the jury if reasonable minds could not differ as to the conclusion.

Stringer v. Trapp, 30 So.3d 339, 342 (¶ 12) (Miss.2010) (internal citations and quotation marks omitted). Here, it is not disputed that Tammy was originally listed as a depositor on the CDs. The contracts governing the CDs clearly state that presentment is necessary to transfer any of the CDs, and that the Bank is obligated to give notice if it is going to change any of the provisions. There is no evidence that Tammy knew anything about the transfers prior to February 18, 2007. What she should have known, if anything, prior to that date is a question of fact that must be resolved in light of the existing contractual provisions that did not give her any reason to suspect anything or put her on notice that she needed to check periodically to see if the CD funds had been withdrawn or transferred. Accordingly, I believe that the circuit court erred in granting summary judgment in favor of the Bank, as I believe there is a genuine issue of material fact as to whether the Bank breached its contractual obligations to Tammy with respect to its handling of the CDs.

¶ 46. For the reasons stated, I dissent.

      . Madison County Bank is now known as Community Trust Bank.

      . Two of the CDs were opened on February 3, 2006, and had a maturity date of February 3, 2007. The other two CDs were opened on March 8, 2006, and had a maturity date of March 8, 2007.

      . In her complaint, Tammy had brought thirteen claims against the Bank, ranging from violations of the Uniform Commercial Code to negligence and fraud. But by only raising and arguing three of those claims on appeal, Tammy abandoned the other ten claims. See M.R.A.P. 28(a)(3), (6); Shavers v. Shavers, 982 So.2d 397, 401 (¶ 21) (Miss.2008).

      . For example, the Bank cannot argue Tammy could not have enforced her rights of survivorship, had Ronnie died, because she did not sign the CDs.

      . Because we find summary judgment was proper based on the merits, we need not address the Bank's alternative argument that the claims Tammy brought on her behalf were untimely based on the running of the three-year statute of limitations.