author: RUSSELL, J., for the Court:

text:
    CIRCUS CIRCUS MISSISSIPPI, INC. d/b/a Gold Strike Casino Resort, Appellant v. Fendley Joy CUSHING, Appellee.
    No. 2011-CA-00961-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2012.
    Rehearing Denied Dec. 11, 2012.
    Certiorari Denied March 7, 2013.

      Scott Burnham Hollis, Courtney Leyes. Tomlinson, Olive Branch, attorneys for appellant.

      Christopher Ethan Kittell, attorney for appellee.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   RUSSELL, J., for the Court:

¶ 1. Gold Strike Casino Resort (Gold Strike) appeals the Tunica County Circuit Court’s order denying its motion for a new trial or, in the alternative, a remittitur. Gold Strike asserts that a new trial should have been granted because two jurors failed to respond to certain voir dire questions. In the alternative, Gold Strike argues that the circuit court erred in failing to grant a remittitur. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 1, 2007, Fendley Cush-ing and her family visited the Gold Strike Casino. During their visit, Cushing slipped and fell on some water on the floor of a buffet room, breaking her right elbow. As a result of her fall, Cushing incurred medical expenses of $6,708 and lost wages of $6,926.07, for a total of $13,634.07 in actual damages. On July 21, 2009, Cush-ing filed suit against Gold Strike on premises-liability theories. On March 14 and 15, 2011, a trial was held, and the jury returned a $250,000 verdict for Cushing.

113. After the trial, on March 25, 2011, Gold Strike filed a motion for a new trial, or in the alternative, a remittitur. Gold Strike argued that: (1) a new trial was warranted because two jurors failed to disclose that they had previously worked for Gold Strike; and (2) a remittitur was warranted because the jury’s verdict was the product of the jury’s bias, prejudice, and passion.

¶ 4. Gold Strike filed a motion for a new trial after learning jurors were its former employees and had failed to disclose this fact during voir dire. Thus, Gold Strike argued that these two jurors would have been disqualified from the jury because had they disclosed such information, the circuit court would have struck them from the jury just as it struck all other Gold Strike employees for cause.

¶ 5. The employment records obtained by Gold Strike after the trial revealed that Juror 4 was a former Gold Strike security officer, employed by Gold Strike from February 20, 2006, to October 4, 2006. Juror 4 worked in the same department as witnesses Ray Trudeau and Mary Young, who were both security officers at Gold Strike at the time of Cushing’s fall. Juror 4’s personnel records indicated that she resigned in order to work elsewhere with her husband.

¶ 6. The employment records of Juror 11 revealed that he was a former bus boy at Gold Strike’s Atrium Café, which is located near the buffet where Cushing fell. Juror 11 was employed by Gold Strike from February 20, 2003, to September 19, 2006, in the same department as the former buffet manager and Gold Strike witness, Harold Wolfe. According to Juror ll’s personnel file, he arrived late for his shift on January 6, 2006. Upon arrival, Juror 11 attempted to unilaterally change the Atrium Cafe’s floor plan to avoid working with, and busing tables for, a particular waitress. Juror ll’s supervisor confronted him about being late to work and told him that he was not authorized to change waitresses. Juror 11 ultimately walked out on his shift and was placed on suspension without pay pending an investigation. While on suspension, Juror 11 resigned. According to his resignation letter, he “dot [sic] like work in the resturat [sic].”

¶ 7. Then, in May 2011, Gold Strike suspected that Juror 11 was related to a decedent (decedent) who was the subject of a wrongful-death suit filed against Gold Strike shortly after the trial of this case. On May 9, 2011, a hearing was held on Gold Strike’s motion for a new trial. At this hearing, Gold Strike informed the circuit court that it had been served with the complaint in a wrongful-death suit on May 2, 2011, and that it suspected Juror 11 had not disclosed a familial relationship with the wrongful-death decedent. At the hearing, the circuit court granted Gold Strike fifteen days to investigate this alleged relationship.

¶ 8. On May 18, 2011, Gold Strike filed an addendum confirming that Juror 11 and the decedent were first cousins. Gold Strike discovered that the decedent was an employee of a custodial-housekeeping vendor called FSS, but she was working inside the Gold Strike hotel on the day she died. Gold Strike attached to the addendum an affidavit, which was completed by Juror ll’s relative. The relative attested that: (1) Juror ll’s aunt was the representative for the wrongful-death beneficiaries of the decedent and the administratrix for the estate of the decedent; and (2) Juror 11 and the decedent were first cousins. Gold Strike also attached the wrongful-death complaint to its addendum. According to the allegations in the wrongful-death complaint filed against Gold Strike and FSS, the decedent “was intentionally, willfully, or wantonly prevented from leaving work to seek medical care by employees of Gold Strike and/or FSS, and as a result, suffered injuries and ultimately died” on May 28, 2010.

¶ 9. Based on the post-trial discovery of the two jurors’ former employment with Gold Strike, and Juror ll’s familial relationship with the decedent, Gold Strike argued a new trial should have been granted because the two jurors failed to disclose such information during voir dire. On June 23, 2011, the circuit court entered an order denying Gold Strike’s motion for a new trial or, in the alternative, a remitti-tur. Gold Strike appealed.

DISCUSSION

I. Whether the circuit court should have granted a new trial due to jury members’ failure to respond to certain questions during voir dire.

¶ 10. Mississippi Rule of Civil Procedure 59(a) states that “[a] new trial may be granted to all or any of the parties and on all or part of the issues ... in an action in which there has been a trial by jury ... for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of Mississippi^]” Our supreme court has set forth the following test to determine whether a juror’s failure to respond to voir dire questioning warrants a new trial:

The failure of a juror to respond to a relevant, direct, and unambiguous question leaves the examining attorney uninformed and unable to ask any followup questions to elicit the necessary facts to intelligently reach a decision to exercise a peremptory challenge or to challenge a juror for cause. Therefore, we hold that where ... a prospective juror in a criminal case [] fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for [a] new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (8) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered. It is, of course, a judicial question as to whether a jury is fair and impartial!,] and the court’s judgment will not be disturbed unless it appears clearly that it is wrong.

Odom, v. State, 355 So.2d 1381, 1383 (Miss.1978).

¶ 11. In Odom, counsel for the defendant asked the prospective jurors during voir dire whether any of them had a close relative who was involved in law enforcement. Id. at 1382. A juror failed to respond to this question, but evidence later established that the juror’s brother was one of the police officers who was involved in the investigation of the crime with which the defendant was charged. Id. The same juror also failed to respond to the inquiry of whether there was any reason why any member of the panel could not render a fair and impartial verdict. Id. Counsel for the defendant argued that if the juror had responded to either of these questions, he would have used a peremptory challenge against the juror. Id. He also argued that the juror’s “lack of candor made it impossible for him to intelligently exercise his peremptory challenge!,] all in violation of Mississippi Code Annotated section 13-5-69[J” Id. Applying the above test, the Odom court reversed the judgment and sentence and remanded the case for a new trial. Id. at 1383.

¶ 12. In Burroughs v. State, 767 So.2d 246, 250 (¶ 16) (Miss.Ct.App.2000), several questions were asked during voir dire regarding whether any prospective juror knew any of the witnesses. The circuit court called the names of all of the witnesses and asked the following:

[I]s there anything about your knowledge of or your acquaintance with either of the parties in this case or [the] witnesses or the attorneys!,] whether it’s a matter of like or one of dislike or whether it arises from friendship, personal association, business association, fraternal association!,] or otherwise!,] that will make it difficult or embarrassing for you to serve as a juror in this case?

Id. at 250-51 (¶ 16). The State also asked whether any of the jurors knew any of the witnesses. Id. at 251 (¶ 16). One juror failed to respond to these questions. Id. at (¶ 17). After the trial, the defendant’s counsel learned that the juror had previously employed two of the assault victims, whom the defendant was charged with assaulting. Id. This Court noted that “a juror is ‘disqualified’ within the meaning of [Mississippi Code Annotated section 13-5-67 (Rev.2002) ] where on voir dire examination he or she has withheld information or misrepresented material facts.” Burroughs, 767 So.2d at 252 (¶ 19) (citing Myers v. State, 565 So.2d 554, 558 (Miss.1990)). We noted that under Odom, a new trial is warranted where “the question propounded to the juror was (1) relevant to the voir dire examination; (2) unambiguous; (3) the juror had substantial knowledge of the information sought to be elicited[;] and (4) prejudice in selecting the jury could reasonably be inferred from the juror’s failure to respond.” Id. (citing Odom, 355 So.2d at 1383). We further stated:

We need to be clear about the nature of the Odom rule. It imports an objective test: in the face of a clearly worded question propounded on voir dire examination, one that bears relevance to the case at bar, has the juror withheld substantial information or misrepresented material facts? Voir dire examination is often the most crucial crucible in forging our primary instrument of justice: the fair and impartial jury. Like a fine suit of clothes, a jury must be tailored to fit, and the court and counsel examine prospective jurors under settled rules tending toward that fit. When offering challenges for cause and challenges peremptory, parties and their lawyers must rely on the objective candor and responsiveness of prospective jurors, and nothing turns on who asks the question, so long as it was clearly worded. Following a jury’s verdict, where a party shows that a juror withheld substantial information or misrepresented material facts, and where a full and complete response would have provided a valid basis for challenge for cause, the trial court must grant a new trial, and, failing that, we must reverse on appeal. We presume prejudice.

Id. at (¶ 20) (internal citations omitted). We found that the juror’s failure to disclose the fact that he had previously employed the two assault victims warranted a new trial. Id. at 253 (¶ 22).

¶ 13. In this case, several questions were asked during voir dire, which Gold Strike contends should have elicited responses from Jurors 4 and 11. Gold Strike points to the following questions:

[VOIR DIRE BY THE COURT:]
Who all works at Gold Strike Casino? [ (Several jurors responded, but not Jurors 4 or 11.) ]
Y’all actually are employed with Gold Strike Casino. [ (Several jurors responded in the affirmative, but not Jurors 4 or 11.) ]
Y’all are excused.... I’m not going to make you sit here and go through this whole thing when I know I’m going to excuse you anyhow. [ (The jurors who answered affirmatively to the above questions were excused and left the courtroom.) ]
All right, we’ve talked about those that are employed at Gold Strike.... Anybody know Ms. O’Keefe? ... All right, how about Ms. Johnson?
All right, we have Mr. John Cushing, John Cushing, II, Mary Young, Ray Tr[u]deau, Harold Wolfe, and Dr. Charles Clark. Any of y’all related by blood or marriage to any of those witnesses? ... Any of you just know any of them? Just know them.

A broad question: Is there anything about your knowledge or your acquaintance 'with either the parties, the witnesses, the lawyers, whether it is a matter of like or dislike or whether it arises from friendship, personal association, business association, fraternal affiliation, church membership, or otherwise, that would in any manner affect you in the trial of this case? If you haven’t already spoken up, speak up now.... All right, I see no hands.

How many of you — I’ve talked about people that are employed with Gold Strike. How many of y’all have relatives or loved ones that are working at Gold Strike? Oh, a lot of you. [ (Several jurors respond affirmatively, including Juror 11.) ]

[Juror 11]: First Cousin.

All right. Those of you that just responded — I’m not going to go individually — but those of you who just responded that have loved ones working out there, whether aunt, sister, cousin, whatever, the defendant in this case is Gold Strike Casino. You don’t work for them but you’ve got loved ones that work for them. Is there anything about the fact that you have these people in your life that have this affiliation with Gold Strike Casino that would in any way affect you as far as being a fair and impartial juror in this case? Anybody? [ (Two jurors respond affirmatively, but Juror 11 remained silent.) ]

All right. Anybody else? Nobody else? [ (Juror 11 remained silent.) ]

Also it was brought to my attention there are certain businesses in town that have some sort of — -maybe in town or not — business affiliation with the defendant. What did you say, like FSS? [Counsel for Gold Strike]: Yes, sir, FSS is one, Branstein is one, there’s a number.

[The court]: I’m sure there are. Any of you have any significant business affiliation with Gold Strike Casino? I don’t see any hands at all. All right.

Any of you had any loved ones that sued somebody? I see no hands.

Anybody have any interest in the outcome of this case favoring one side or the other? I see no hands. Are you aware of any bias or prejudice for or against either side in this case? If you are, now is the time to speak up. I don’t see any hands.

[VOIR DIRE BY CUSHING’S ATTORNEY:]

If there is a question I ask or the judge has asked or the other attorney asks that makes you think maybe that applies to me or maybe I should answer that, that probably means you should. So please go ahead and answer for us.

So please just let us know if you feel for any reason that you just can’t be fair in this particular case[,] and no one will think bad of you at all.

If this was your case, if you were my client or ... the defendant in this case, would there be any reason why you wouldn’t want yourself on the jury? Or someone just like you? For whatever you’re thinking right now, is there something nagging in the back of your head that I haven’t asked about or the judge hasn’t asked about? Is there someone saying maybe I just shouldn’t be a juror on this case, not because you would rather go home, but because there is some nagging doubt you have about your qualifications to be a juror on this case? No hands.

[VOIR DIRE BY GOLD STRIKE’S ATTORNEY:]

Now Judge Webster has already asked you some questions about whether you worked at Gold Strike, whether anybody you know works at Gold Strike, whether your family works at Gold Strike. And you all have been very responsive thus far. Let me turn that question around a little bit. Is there anybody here that has ever been laid off, terminated, or otherwise let go from Gold Strike? Nobody? The same question with regard to the outside vendors, the other companies like FSS or Ronstadt or Sun Landscaping. Anybody ever worked at Gold Strike and been let go, terminated, laid off, because of something that happened at Gold Strike Casino?

So is there anybody out there who has a reason to not like Gold Strike Casino for any reason? For example, anybody ever lost a lot of money at Gold Strike? Sometimes that happens. Sometimes you have a bad experience as a customer. You don’t like the way a waitress treated you, they messed up your hotel reservation, you thought you might have been entitled to a free buffet but you weren’t. Anything like that would cause anybody out there to have a little bit of a bad, bad feeling towards Gold Strike Casino?

Anybody other than [Juror 1] have any kind of bad experience, bad taste in your mouth about my client[,] Gold Strike Casino? [ (No response from Juror 11.)]

¶ 14. After everyone was finished asking questions during voir dire, the circuit judge stated in chambers to the attorneys: “I’m excusing everybody that was employed with Gold Strike for cause.” (emphasis added).

¶ 15. The circuit court denied Gold Strike’s motion for a new trial, reasoning as follows:

The difficulty in the instant case is that the questions asked by the court and counsel focused upon either those members of the jury venire who were currently employed with Gold Strike or who had been laid off, terminated [,] or otherwise let go from Gold Strike. The facts are undisputed that both juror no. 4 and juror no. 11 resigned their respective employment with [Gold Strike]. In this court’s view, the phrase “laid off, terminated!,] or otherwise let go” — used in the context of employment — suggests an employee who has been involuntarily separated from employment, a situation where the employee is fired or for whatever reason does not leave on his/her own volition. According to the evidence presented, neither of the subject jurors were “laid off, terminated[,] or otherwise let go from Gold Strike.” Both of the subject jurors left employment with Gold Strike of their own volition — they resigned. In addition, defense counsel argues that jurors no. 4 and 11 should have responded to the question regarding anyone having a “significant business affiliation with Gold Strike Casino.” The court well recalls the context in which the “business affiliation” question was posed. In the opinion of the court, this question did not call upon jurors who had been previously employed with Gold Strike, but rather attempted to identify any prospective jurors who might have been employed with or had some interest in one of those companies that had a significant business affiliation with [Gold Strike].
As indicated earlier, the test for determining if a juror improperly failed to respond to a question asked during voir dire is whether the questions was [sic] (1) relevant to the voir dire examination; (2) was the question unambiguous; and (3) did the juror have substantial knowledge of the information sought to be elicited.... Certainly the questions asked during voir dire were relevant to the voir dire examination. However, within the context of what information defense counsel argues should have been divulged — that jurors no. 4 and 11 were former employees of [Gold Strike]— those questions regarding employment which were asked during voir dire must be considered ambiguous. No direct, unambiguous question was asked of the jury venire regarding former employment with Gold Strike.... As such, this court cannot find that either juror no. 4 or juror no. 11 failed to respond to a pertinent question during voir dire. This claimed error is without merit.

¶ 16. We agree with the circuit court’s resolution here. Upon a thorough review of the record, it is clear that the jurors were never asked whether they were former employees of Gold Strike; rather, the closest question was whether any juror had been terminated, fired, or otherwise let go from Gold Strike. The personnel records of both Juror 4 and Juror 11 indicated they resigned. Therefore, because there was no unambiguous question pertaining to the jurors’ former employment with Gold Strike, this issue is without merit.

¶ 17. As to Juror ll’s failure to disclose the wrongful-death lawsuit, the circuit court found as follows:

Gold Strike asserted that juror no. 11 was biased on the basis that a wrongful[-]death lawsuit had been filed against Gold Strike for the alleged wrongful death of the juror’s first cousin — also a former employee of [Gold Strike]. Based upon Gold Strike’s assertion, the court allowed Gold Strike additional time to develop evidence regarding this allegation. The evidence produced by Gold Strike clearly suggests that juror no. 11 is in fact the first cousin [of] the decedent for whom the wrongful[-]death action has been filed. Notwithstanding, and despite the protestations of Gold Strike, such information, in and of itself, does not necessarily require a new trial. The court has reviewed the wrongful[-]death pleadings filed on the behalf of the wrongful[-]death decedent. According to the [c]omplaint, the wrongful[-]death beneficiaries are the children of the decedent. As such, juror no. 11 would have no financial interest in the outcome of the wrongful[-]death action. In fact, an argument could be made that if juror no. 11 was influenced by the fact that a wrongful[-]death action was being planned by his relatives against [Gold Strike], it would behoove the wrongful[-]death action that Gold Strike not be required to pay a money judgment prior to the resolution of the wrongful[-]death action.
Gold Strike’s argument of juror bias is persuasive only if you assume that the responses or lack of responses by juror no. 11 were intended to advance a hidden agenda to somehow get back at [Gold Strike] for perceived complicity in the death of his relative. Absolutely no proof has been brought forward to substantiate any such assertion. While Gold Strike may have its suspicions, it has not produced the proof necessary to set aside the verdict of this jury on this ground.

¶ 18. We agree with the circuit court’s reasoning as to Juror 11. We further note that there was no evidence that Juror 11 “had substantial knowledge of the information sought to be elicited,” in that there was no evidence that Juror 11 knew of his cousin’s death at the time of voir dire or that Juror ll’s aunt planned to file a wrongful-death suit against Gold Strike. Burroughs, 767 So.2d at 252 (¶ 19) (quoting Odom, 355 So.2d at 1388). We note that Juror 11 did respond to the question: “How many of y’all have relatives or loved ones that are working at Gold Strike?” Juror 11 stated: “First cousin.” Interestingly, at the time of voir dire, Juror ll’s first cousin had already passed away. And during the post-trial proceedings, the parties did dispute whether Juror 11 knew of his cousin’s death at the time of voir dire. However, neither side presented any admissible evidence as to whether Juror 11 knew about his cousin’s death or the wrongful-death suit filed after voir dire. There was no proof that Juror 11 “had substantial knowledge of the information sought to be elicited” as required under Odom and Burroughs. Id. This issue is without merit.

II. Whether the circuit court erred in denying Gold Strike’s motion for a remittitur.

¶ 19. Gold Strike argues that the circuit court should have granted its motion for a remittitur because the $250,000 verdict was excessive where Cushing incurred medical expenses of $6,708 and lost wages of $6,926.07. “A motion for [a] re-mittitur is in the discretion of the trial judge and will not be reversed unless the trial judge abused that discretion.” Kmart Corp. v. Lee, 789 So.2d 103, 108-09 (¶ 26) (Miss.Ct.App.2001) (citing Roussel v. Robbins, 688 So.2d 714, 724 (Miss.1996)). Cushing, “as the injured party, has the burden of going forward with sufficient evidence to prove her damages by a preponderance of the evidence.” Cade v. Walker, 771 So.2d 403, 406 (¶8) (Miss.Ct.App.2000). In determining whether Cush-ing met her burden in establishing her damages for “present, past, and future pain and suffering, mental anguish[,] and past medical expenses, we are required to view the evidence in the light most favorable to the jury’s verdict, giving her the benefit of all favorable inferences that may reasonably be drawn.” Cade, 771 So.2d at 407 (¶ 8).

¶ 20. Our remittitur statute provides:

The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for [a] new trial or affirm on direct or cross[-]appeal, upon condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted[,] then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross[-]appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

Miss.Code Ann. § 11-1-55 (Rev.2002) (emphasis added). Under this statute, a “re-mittitur can be awarded by the court finding that either: (1) the jury or trier of fact was influenced by bias, prejudice, or passion, or (2) the damages awarded were contrary to the overwhelming weight of credible evidence.” Cade, 771 So.2d at 407 (¶ 10). These two standards essentially are one and the same:

The overwhelming weight of credible evidence standard is objective and applied by reference to the law on recoverable damages when applied to the evidence in the case. Such matters are reviewed on appeal for abuse of discretion. The bias, prejudice^] or passion standard is purely a circumstantial standard since we obviously have no way of knowing what was in the jury’s mind. When this Court reviews the action of the jury after the trial court has refused to grant a new trial on the question of damages, the question then becomes whether the verdict was either so excessive or inadequate as to shock the conscious and to indicate bias, passion[,] and prejudice on the part of the jury, or, whether the jury failed to respond to reason. Evidence of corruption, passion, prejudice^] or bias on the part of the jury is an inference, if any, to be drawn from contrasting the amount of the verdict with the amount of the damages. The Mississippi Supreme Court has stated that while pain and suffering is, to a large degree, not susceptible to monetary qualification, the jury necessarily has especially broad leeway. It, nevertheless, recognized that the sky is not the limit.

Id. at 407-08 (¶ 11) (internal citations omitted). “We thus review a claim of exces-siveness ... by comparing the awards at issue with rulings in other factually similar cases decided under controlling law.” Id. at 408 (¶ 12). “The jury’s award will be disturbed only if it is entirely disproportionate to the injury sustained.” Id.

¶ 21. “Due to the uncertainty of the monetary value placed on pain and suffering and future damages, we have affirmed damages up to fifty-one times the actual damages shown.” Kroger Co. v. Scott, 809 So.2d 679, 684 (¶11) (Miss.Ct.App.2001) (citing Cade, 771 So.2d at 410 (¶ 20)). In fact, our supreme court has upheld a jury’s verdict that was nearly 100 times the medical expenses where the injured person suffered headaches, soreness, dizziness, recurring nightmares, depression, and post-traumatic stress syndrome after being shot. See Gatewood v. Sampson, 812 So.2d 212, 223-24 (¶¶ 26, 29) (Miss.2002); see also Dorrough v. Wilkes, 817 So.2d 567, 575 (¶30) (Miss.2002) (upholding a jury’s verdict 38.5 times the medical expenses); Edwards v. Ellis, 478 So.2d 282, 289 (Miss.1985) (upholding a jury’s verdict 40 times the medical expenses).

¶ 22. In APAC Miss., Inc. v. Johnson, 15 So.3d 465, 479 (¶38) (Miss.Ct.App.2009), this Court upheld a jury’s verdict that was 27.7 times the medical expenses where the injured person suffered fractures, wore a neck brace, experienced ongoing neck pain, had trouble sleeping, and was required to take pain medication. Further, the injury prevented her from participating “in several activities — attending college, being a band booster (i.e., assisting the local high school band with fund raisers, ordering t-shirts, chaperoning band trips), and taking care of her grandchildren due to the pain she was experiencing.” Id.

¶ 28. In this case, the jury awarded $250,000, and Cushing incurred medical expenses of $6,708 and lost wages of $6,926.07. This verdict is about 87 times her medical expenses, or only 18 times her actual damages. Cushing broke her right elbow as a result of the fall. She testified that the pain was “as excruciating as passing a kidney stone.” She was required to take pain medication and undergo physical therapy. She stated that her elbow still hurts her every day, and that stirring a pot of beans is painful. Cushing also testified that her elbow injury adversely affected her at work:

I had a difficult time at work. My manager even counseled me, even though they knew I was having problems when I came back to work. I couldn’t lift. And my cases are large cases. They’re as large as those on that table that we had to carry for our taxpayers. And I had to have other people help me carry my case. I had to have other people pick up my slack on my work load. And my manager actually recommended that I go to the union and apply for disability. I did go to the union. But I was too proud to apply for disability.

¶ 24. Cushing testified that because of her elbow injury, she could no longer rake leaves. She also testified that she used to enjoy taking care of her vegetable garden, but she is unable to garden at all since her elbow injury. She stated that she loves to iron, but her husband must iron the clothes now because she is unable to do so with her elbow injury.

¶ 25. Cushing stated that she was unable to clean her house like she used to:

I love to clean. I know that sounds crazy, but we lived in like a 1973 mobile home[,] and it was old and ... wasn’t in real good shape. So I felt like if I kept it clean, it wouldn’t look so bad[,] and I thought that was good for my kids and myself and all of us. So even though I worked, I had three kids to raise, and I would come home and ... clean like two hours at night[,] and I would clean on the weekend. I just did that. I like to do that. I’m real picky like that.... [Now] I don’t. I try. Like trying to scrub with your left hand is kind of hard to do, ya’ll. You can’t do that. So [my husband] does.

¶ 26. Cushing stated that her elbow injury adversely affected her in the bathroom:

Q: What other things can’t you do now that you could do before your injury?
A: This is embarrassing, but when I have to go to the bathroom, I can’t wipe myself off very well. Because I have to use my left hand. And sometimes I don’t get my pants down fast enough. And I have an accident. I never had that problem ever.
Q: But how often does that happen?
A: Every day. Especially when you’re at work it is very embarrassing. I would have to bring clean underwear with me to work.
Q: And the reason you can’t use your right hand to do it is why?
A: Because it — it’s not because of the hurting. It won’t reach.... I can’t reach to pull them down all the way with the right hand. I have to use the left hand and I’m right-handed. It won’t pull them down.
Q: It won’t reach because it won’t straighten out?
A: Exactly.
Q: What about when you shower? Does it affect your ability to take a shower?
A: Yes, sir, the same thing. When you’re trying to wash behind you, you know, I’m right — handed[,] so I have to use my left[.] I probably don’t get as clean as I should.
Q: What about washing your hair?
A: Same thing. I used to put my hands on my head. I have to use the left hand most of the time[,] and I can’t reach back here and stuff.

¶ 27. Cushing testified that her injury affected her sexual relationship with her husband:

Q: [Sjexually with your husband, how has your injury affected you?
A: ... Um, my husband and I have been married for 40 years. And we’ve had a good marriage. And for the past four years, I’ve not been able to take care of my husband sexually. I believe I should be able to do that.
Q: And is that due to your injury to your elbow?
A: Yes, sir. I’m depressed a lot. Because I can’t do that. And I have pain in my elbow[,] and there’s [sic] things that you do with your husband sexually[,] that you want to be able to satisfy your husband[,] and you can’t. And that’s wrong.

¶28. Cushing stated that her injury affected her ability as a mother:

Q: How [do] the problems with not being able to cook like you used to ... and clean like you used to ... and help around the house like you used to ..., how does that make you feel?
A: Well, I'm the mama[,] and I believe mamas are supposed to be able to take care of everything. And it is real hard for me to have my kids see that I can’t do things. Because, like I said, you know, your kids come to mama for help. It’s not supposed to be your kids helping you. You know, you’re supposed to be doing this for your kids. And I have a lot of pride[,] and it really bothers me that I can’t do those things.

¶ 29. We note that “[i]t is the jury that determines the weight of the testimony and the credibility of the witnesses at trial, and it is the primary province of the jury to determine the amount of damages to award.” Rhodes v. Raffeo, 74 So.3d 915, 918 (¶ 13) (Miss.Ct.App.2011). Viewing the evidence presented and the verdict awarded in the light most favorable to Cushing, we cannot say that the verdict “shock[s] the conscious.” Cade, 771 So.2d at 407-08 (¶ 11). Further, there is no evidence of passion, prejudice, or bias on the part of the jury in reaching its verdict. Id. Therefore, we affirm the circuit court’s denial of Gold Strike’s motion for a remit-titur.

¶ 30. THE JUDGMENT OF THE TU-NICA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Trudeau worked at Gold Strike from February 25, 1999, to July 22, 2010.

      . Young began working at Gold Strike on June 15, 2001, and was still employed there at the time of the trial.

      .Wolfe worked at Gold Strike from July 21, 1994, to February 23, 2009.

      . FSS was also named as a co-defendant in the wrongful-death suit filed against Gold Strike.

      . We note that the Odom test is "equally applicable to allegations of juror misconduct in civil suits.” Mariner Health Care, Inc. v. Estate of Edwards, 964 So.2d 1138, 1147 (¶ 17) (Miss.2007).

      . Mississippi Code Annotated section 13-5-69 (Rev.2002) states that "the parties or their attorneys in all jury trials shall have the right to question jurors who are being impaneled with reference to challenges for cause, and for peremptory challenges!.]”

      . The decedent passed away on May 28, 2010. Voir dire took place on March 14, 2011, nearly one year later. The wrongful-death suit was filed on April 15, 2011, about one month after voir dire.

      . Counsel for Cushing improperly obtained affidavits from several jurors after the trial, which we will not consider due to the impropriety of such affidavits under Rule 606(b) of the Mississippi Rules of Evidence and Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 419 (Miss.1993).


source: Caselaw Access Project

author: FAIR, J., for the Court:

license: Public Domain

text:
    Roger L. CAPLINGER, Appellant v. Gina L. CAPLINGER (Julian), Appellee.
    No. 2011-CA-01278-COA.
    Court of Appeals of Mississippi.
    Feb. 12, 2013.

      Jason Brooks Purvis, David C. Goff, attorneys for appellant.
    M. Channing Powell, attorney for appel-lee.
   FAIR, J., for the Court:

¶ 1. The Hancock County Chancery Court found Roger Caplinger in contempt for failure to pay child support and uncovered medical bills. Roger now appeals claiming the chancellor erred in interpreting the parties’ child-support agreement, finding Roger in contempt, and awarding attorney’s fees to Gina Caplinger (Julian). We find the chancellor’s interpretation of the escalation clause in their agreement, his adjudication of Roger’s contempt, and his award of attorney’s fees supported in the record. However, we find that the chancellor erred in determining the support order was a global order and in ordering Roger to pay half of the medical bills. Therefore, we affirm in part and reverse and remand in part.

FACTS

¶ 2. Roger and Gina were divorced in 1994. Pursuant to their child-custody, support, and property-settlement agreement, Gina had custody of the two children, Ashley and Christen. Roger was to pay child support, provide health insurance for the children, and pay half of any deductibles.

¶ 8. In 2007, Ashley was seventeen and became pregnant. Around the end of December, she lived with her father before moving into an apartment -with her boyfriend in August 2008. The parties agree that Ashley was emancipated beginning in 2008. In June 2008, Christen was fifteen and moved in with her father for a few months prompting Roger to file for modification of custody. Gina counterclaimed for contempt and to modify child support. Ultimately, Christen moved back to her mother’s in September, and Roger withdrew his motion.

¶ 4. Gina proceeded on the counterclaim, and after a trial, the chancellor found Roger in contempt of the property-settlement agreement. Explaining that the agreement was ambiguous, the chancellor interpreted it and determined Roger was $52,713 in arrears. The chancellor ordered him to pay the arrearage and attorney’s fees of $9,784.28.

¶ 5. Roger now appeals arguing that the chancellor erred in construing the property settlement agreement, refusing to acknowledge the divisible support order, finding Roger in contempt, and awarding attorney’s fees. Roger asserts that the chancellor’s findings were against the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶ 6. “Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000) (citation omitted). This Court will not “interfere with the chancellor’s findings of fact unless they were manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001) (citation omitted). However, the chancellor’s application of the law is reviewed under a de novo standard. Id.

DISCUSSION

1. Property-Settlement Agreement

¶ 7. Roger agrees that the property-settlement agreement is ambiguous but challenges the interpretation of two specific clauses. Each will be addressed in turn.

a. Periodic Increase

¶ 8. Roger claims the chancellor failed to follow the rules of construction and improperly interpreted the following escalation clause:

Periodic Increase: Husband shall increase his payment to Wife, for child support, with each raise, such increase to be twenty (20%) percent of his increase in pay.

¶ 9. The interpretation of an ambiguous writing is a question of fact for determination by the fact-finder. Dennis v. Searle, 457 So.2d 941, 945 (Miss.1984). The cardinal rule of construction is to “give effect to the mutual intentions of the parties.” Hoerner v. First Nat’l Bank of Jackson, 254 So.2d 754, 759 (Miss.1971). Any ambiguity found in the writing is construed more strongly against the party who prepared it. Right v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989). The construction that the parties have placed upon the contract, or how they behave under it, is “relevant extrinsic evidence, and often the best evidence of what the contract requires them to do.” Id.

¶ 10. The chancellor found that the periodic increase was enforceable because its language was clear, and Roger had voluntarily increased his payment from $400 to $500 in 1996. The chancellor also found that the periodic increase was related to the statutory guidelines and was intended to keep payments at twenty percent of Roger’s adjusted gross income (AGI) for the two children. To calculate the arrear-age, the chancellor determined Roger’s adjusted gross income for each year and found that twenty percent of that figure should have been paid as child support. Due to decreases in Roger’s earnings, which are not contemplated in the periodic-increase clause, the chancellor began calculating arrearages for increased support from 2004, when Roger’s yearly income returned to over $50,000.

¶ 11. After reviewing the evidence presented, we find that the chancellor’s interpretation was supported by the plain language of the agreement and the parties’ conduct. Roger and Gina both testified to their understanding of the periodic-increase clause. Each understood that when Roger received a raise, he should increase his support payments equal to twenty percent of that raise. And Roger voluntarily increased his payment by $100 in 1996. Further, the chancellor’s determination that the clause referenced the child-support guidelines is both logical and practical. For the last thirteen years, neither party ensured that the periodic increases happened. Instead of attempting to reach back in time and determine exactly what raises Roger received on what dates, the chancellor determined Roger’s adjusted gross income and applied the statutory twenty percent. Generously, the chancellor determined that because the clause did not provide for decreases in salary, the arrearage should only be calculated from 2004. We cannot say that the chancellor abused his discretion in interpreting the periodic-increase clause.

¶ 12. This Court has held that property-settlement agreements are not treated the same as support ordered by a chancellor. In Wing v. Wing, 549 So.2d 944, 947 (Miss.1989), the Mississippi Supreme Court reaffirmed its prior holding in Tedford v. Dempsey, 437 So.2d 410 (Miss.1983), and set out four factors to which escalation clauses must be tied when established by a chancellor. The court noted the problems related to drafting enforceable escalation clauses and urged the bar to:

(a) specify -with certainty the particular cost of living or consumer price index which is to be utilized (there are many);
(b) show the applicable ratio (present CPI is to ascertainable CPI as present award is to future award); (c) calculate the base figure as of the date of judgment; (d) establish frequency of adjustments (we suggest nothing less than yearly); and (e) establish an effective date for each adjustment (e.g. anniversary of date of judgment).

Wing, 549 So.2d at 947.

¶ 13. But more recently, in Speed v. Speed, 757 So.2d 221 (Miss.2000), the supreme court considered an escalation clause related to periodic alimony payments. The property-settlement agreement provided alimony of $1500 per month and read: “In addition to the foregoing said payments herein above provided shall increase or decrease directly in relation to the increases and the cost of living as determined by the U.S. Department of Commerce Consumers Cost of Living Index, to be adjusted annually.” Id. at 223 (¶ 2). The supreme court held that the clause was enforceable and explained: “Mr. Speed assumed the risk of having to make the escalated payments.... No evidence of fraud, mistake, or overreaching was shown by Mr. Speed to have influenced the execution of the property settlement agreement by the parties....” Id. at 226 (¶¶ 14-15).

¶ 14. This Court has also considered escalation clauses in the context of child-support agreements in irreconcilable differences divorce settlements. In Rogers v. Rogers, 919 So.2d 184 (Miss.Ct.App.2005), the father argued that his agreement to pay fourteen percent of any future bonuses or salary increases was an unenforceable escalation clause. Finding that the argument lacked merit, we held: “[Pjarties may in fact agree of their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.” Id. at 189 (¶ 19). Further, Stigler v. Stigler, 48 So.3d 547 (Miss.Ct.App.2009), directly addressed this issue. In Stigler, the father attempted to invalidate an escalation clause that was part of his property-settlement agreement because it was not based on the four Wing factors. Id. at 551 (¶ 9). In holding that the escalation clause was enforceable, this Court again pointed out “there is a different standard when the parties enter into an agreement.” Id.

¶ 15. Roger agreed to a periodic increase in child-support payments based on a percentage of periodic increases in his net income. There was no evidence of fraud, mistake, or overreaching in the execution of the parties’ property-settlement agreement. Roger simply agreed to do more than the law required for his children, and the chancellor required him to live up to his promises. This agreement is enforceable.

b. Per-Child Support Order

¶ 16. Roger argues that the chancellor erroneously determined that because he increased his support payments to $500, he converted the divisible support award into a global support award and could not arbitrarily divide the new amount when one child was emancipated.

¶ 17. For global child-support payments, the emancipation of one child does not automatically reduce the lump-sum payment. Varner v. Varner, 588 So.2d 428, 433 (Miss.1991). But if a support order specifies that a certain amount is payable per child, then support terminates as to a child upon emancipation of that child. See Ligon v. Ligon, 743 So.2d 404, 408 (¶ 11) (Miss.Ct.App.1999). In Ligon, we found that a mother was properly ordered to reimburse a father for payments he made after one child was emancipated because the support order in question provided $100 per month for each child. Id.

¶ 18. Here, the support order states: “Husband shall pay to Wife, as child support, the sum of Two Hundred Dollars ($200.00) per month, per child, for a total of Four Hundred Dollars ($400.00).... ” This is a divisible support order. As we find that the property-settlement agreement is clear and unambiguous as to this issue, the chancellor erred in determining that Roger’s conduct created a global support award. The support order was and remains divisible.

2. Uncovered Medical Bills

¶ 19. Roger claims that the chancellor’s finding of contempt regarding his failure to pay half of the children’s medical bills is not supported by the record.

¶ 20. The property-settlement agreement reads: “Husband shall be solely responsible for the payment of any and all insurance policies covering ... [the] minor children ..., and any deductibles not covered by insurance will be split by the parties.” The chancellor found that Roger had not paid his portion of the medical bills prior to trial and held him in contempt.

¶ 21. There is no language in the property-settlement agreement about uncovered medical bills. The agreement specifically provides for insurance coverage and deductibles. Though it may be Roger’s moral obligation to pay half of the children’s uncovered medical bills, he was not required to do so by the plain language of the property-settlement agreement. We find that the chancellor was manifestly wrong in construing the agreement to require Roger’s payment of half of the children’s uncovered medical bills.

3. Contempt

¶ 22. Roger asserts that the chancellor erroneously held him in contempt for his failure to pay child support. He argues that he could not have known how much support to pay prior to the chancellor’s construction of the agreement.

¶ 23. A payor’s failure to comply with a court order is prima facie evidence of contempt. Rainwater v. Rainwater, 236 Miss. 412, 421, 110 So.2d 608, 611 (1959). Civil contempt must be proven by clear and convincing evidence. Masonite Corp. v. Int’l Woodworkers of Am,., 206 So.2d 171, 180 (Miss.1967). Contempt cannot be sustained “where the final decree is insufficient to advise the party affected in clear and unequivocal language of that which he has been ordered to do.” Switzer v. Switzer, 460 So.2d 843, 846 (Miss.1984). But an order need only be reasonably specific. In Davis v. Davis, 829 So.2d 712, 714-15 (¶ 10) (Miss.Ct.App.2002), this Court found that an order for a husband to pay all but three specific debts was not too ambiguous for compliance. Though the order did not say, affirmatively, that he was to pay the remaining debts, we found that there was no other reasonable explanation. Id.

¶ 24. Here, Roger testified that he understood he was supposed to increase his support payments by twenty percent of each raise he received. It is undisputed that he deliberately failed to do so. He cannot now, after thirteen years, argue that he was insufficiently advised of what he was ordered to do. That he could not anticipate the exact amount of his arrear-age is not relevant to his willful disregard of the support order. Because Roger has made no attempt since 1996 to increase his payments or document his raises, it is naturally difficult to determine exactly what his support should have been. That is not the fault of the chancellor, and it does not excuse Roger’s contumacious conduct.

¶ 25. Further, we note that it is error, as a matter of law, for a chancellor not to award interest on a judgment for past-due support. Ladner v. Logan, 857 So.2d 764, 772-73 (¶ 30) (Miss.2008). In Brand v. Brand, 482 So.2d 236, 237-38 (Miss.1986), the Mississippi Supreme Court held that interest accrues on each payment from the date it became due. On remand, we instruct the chancellor to assess interest at a fair rate under the circumstances. See Miss.Code Ann. § 75-17-7 (Rev.2009).

4. Attorney’s Fees

¶ 26. Roger argues that there was no basis for the chancellor’s award of attorney’s fees. We disagree. An award of attorney’s fees is appropriate when there has been a finding of contempt. Gardner v. Gardner, 795 So.2d 618, 619 (¶ 4) (Miss.Ct.App.2001). A showing of inability to pay under the McKee factors is not required. See Mount v. Mount, 624 So.2d 1001, 1005 (Miss.1993). “To hold otherwise would cause no peril to those restrained from certain conduct if they violate the orders of a court.” Smith v. Little, 843 So.2d 735, 738 (¶ 13) (Miss.Ct.App.2003) (citation omitted). The chancellor did not abuse his discretion in awarding attorney’s fees.

CONCLUSION

¶ 27. The chancellor did not abuse his discretion in interpreting the periodic-increase clause, finding Roger in contempt for his failure to pay child support, or ordering Roger to pay attorney’s fees. It was error to find that the divisible child-support award had been, converted into a global award, and to find Roger in contempt for his failure to pay the children’s uncovered medical bills. On remand, we direct the chancellor to recalculate Roger’s arrearage and current support obligations based on a divisible support order and to assess interest on the arrearage at a fair rate under the circumstances.

¶ 28. THE JUDGMENT OF THE HANCOCK COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      . Roger's AGI was determined from his Social Security Administration earnings report using an effective overall tax rate of twenty-five percent.

      . We note that under a strict construction of the contract’s language, Roger would not be entitled to any reduction of support during the years his salary fell below $50,000. Had the chancellor not been so generous, Roger would be obliged to pay a substantially higher arrearage.


author: MAXWELL, J., for the Court:

text:
    Carl Ray BRANDON a/k/a Carl Brandon, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-01483-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J., for the Court:

¶ 1. Carl Ray Brandon’s motion for post-conviction relief (PCR) violated the statutory requirement that a motion may only attack one judgment. While multiple judgments require multiple motions, Brandon’s singular motion attacked four convictions in two separate cause numbers following both guilty verdicts and a guilty plea. But because the specially appointed judge found Brandon’s PCR motion lacked merit, we find no harm in the judge’s consideration of the multiple judgments in a single motion.

¶ 2. However, each judgment challenged in Brandon’s motion was subject to its own time limitation. And we find Brandon was procedurally barred from challenging the conviction resulting from his plea of guilty to manslaughter because he failed to file his PCR motion within three years of entering the plea. The' one-judgment rule prohibited Brandon from circumventing this bar by bringing the untimely PCR challenge in the same motion as timely challenges to his convictions following the jury verdicts.

¶ 3. Since the manslaughter-conviction challenge was untimely and because the judge did not clearly err in finding Brandon failed to show he was entitled to relief from any of his remaining convictions, we affirm the judgment denying Brandon’s PCR motion.

Background

¶ 4. In March 2006, Brandon, a former Claiborne County employee, went on a shooting rampage, killing the county attorney, injuring another county employee, and shooting into the home of the county administrator. In Claiborne County Circuit Court Cause No.2006-40, Brandon was indicted for three crimes: (1) murder of the county attorney, (2) aggravated assault of the county administrator, and (3) discharging a firearm into the occupied dwelling of the county administrator. In Cause No.2006-41, Brandon was indicted for a fourth crime: aggravated assault of the county employee.

¶ 5. Brandon was tried for all four crimes in the same trial. The Mississippi Supreme Court appointed Judge Frank G. Vollor to preside as special judge. The jury found Brandon guilty of both counts of aggravated assault and guilty of discharging a firearm into an occupied dwelling. But the jury was hung on the murder charge. Two weeks later, Brandon pled guilty to the reduced charge of manslaughter. Judge Vollor accepted Brandon’s guilty plea and — following the State’s recommendation based on the plea bargain— entered consecutive sentences for all four convictions, for a total of seventy years’ imprisonment.

¶ 6. In a single PCR motion, Brandon sought relief from all four convictions. The supreme court again appointed Judge Vollor to preside as special judge over Brandon’s PCR matter. On the first day of the PCR hearing, Brandon orally moved for Judge Vollor’s recusal, which was denied. During the hearing, Brandon moved for a continuance, which was also denied. After considering Brandon’s evidence that his trial counsel was constitutionally ineffective, Judge Vollor denied Brandon’s PCR motion.

¶7. Brandon appeals. He challenges not only the denial of his PCR motion but also the denials of his motions for recusal and continuance made during the PCR hearing.

Discussion

¶8. On appeal, we do what Brandon should have done — treat as separate motions his attacks on the validity of multiple judgments. See Miss.Code Ann. § 99-39-9(2) (Supp.2012). In doing so, we find that Brandon’s attack on the validity of his manslaughter conviction is procedurally barred as untimely. Thus, we reject all of his appellate issues solely related to his manslaughter conviction as time-barred.

¶ 9. For the remaining convictions, we find no manifest abuse of discretion in the judge’s denying Brandon’s motion to re-cuse and no error in the judge’s finding Brandon failed to show he was entitled to post-conviction relief.

I. Procedurally Barred Issues

¶ 10. Section 99-39-9(2) clearly limits a PCR motion “to the assertion of a claim for relief against one (1) judgment only.” This means that “a separate motion for post-conviction relief must be filed for each cause number or conviction.” Bell v. State, 2 So.3d 747, 749 (¶ 5) (Miss.Ct.App.2009). So while Brandon was sentenced for all four convictions in the same sentencing order, he could not attack all four convictions in the same PCR motion. See Hundley v. State, 803 So.2d 1225, 1229 (¶ 9) (Miss.Ct.App.2001) (noting that section 99-39-9(2) required separate PCR motions to attack guilty pleas in two different cause numbers, even though the pleas were taken in the same hearing).

¶ 11. As we did in Bell, we find no harm in Judge Vollor’s consideration of Brandon’s single PCR motion, filed in violation of section 99-39-9(2), because he found there was no merit to the PCR motion. See Bell, 2 So.3d at 749 (¶ 5); see also Mock v. State, 76 So.3d 223, 225 (¶ 10) (Miss.Ct.App.2011) (holding the judge’s “ruling on the judgments raised in a single motion caused no harm”). But Brandon’s PCR motion also violated another PCR statute, Mississippi Code Annotated section 99-39-5(2) (Supp.2012), at least in part. And this violation we cannot overlook.

¶ 12. Under section 99-39-5(2), a movant has three years to file a PCR motion, and failure to file a PCR motion within the three years is a procedural bar. White v. State, 59 So.3d 633, 635 (¶ 6) (Miss.Ct.App.2011) (citations omitted). The point in time that this three-year period begins to run differs depending on whether the conviction was based on a guilty plea or a jury verdict. Miss.Code Ann. § 99-39-5(2). “[I]n case of a guilty plea,” the movant has three years “after entry of the judgment of conviction.” Id. But with a jury verdict, if no direct appeal was taken, the movant has three years from when “the time for taking an appeal from the judgment of conviction or sentence has expired.” Id.

¶ 13. Because section 99-39-9(2) required separate motions for separate convictions, each of Brandon’s convictions is subject to its own time-bar under section 99-39-5(2). Though the sentencing order for all four convictions was entered the same day, July 9, 2007, when the three-year period began — and ended — for each conviction was not the same. The time to file a PCR motion for the manslaughter conviction ended July 9, 2010 — three years after the judgment of conviction based on Brandon’s guilty plea. See Miss.Code Ann. § 99-39-5(2). But the time to file for the remaining convictions was not until August 8, 2010 — three years after the time to appeal the judgment based on the jury’s verdict expired. See id.; see also Steward v. State, 18 So.3d 895, 897 (¶ 5) & n. 2 (Miss.Ct.App.2009) (noting a PCR movant, who was sentenced in May 2001 and did not directly appeal, had until May 2004 to file a PCR motion if he pleaded guilty and June 2004 if he were found guilty by a jury). Brandon filed his motion on August 5, 2010. While his motion presented timely challenges to his aggravated-assault and discharging-a-firearm convictions, any claim for relief against his manslaughter conviction was barred under section 99-39-5(5).

¶ 14. Consequently, many of the issues raised in Brandon’s appeal are barred because they relate solely to the challenged manslaughter conviction. Brandon claims he was entitled to post-conviction relief because his trial counsel was constitutionally ineffective. See Hill v. State, 60 So.3d 824, 826-27 (¶5) (Miss.Ct.App.2011) (citing Strickland v. Wash ington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)) (discussing the two-prong test of (1) deficiency and (2) prejudice required to show ineffective assistance). One of Brandon’s main theories of why his counsel was ineffective is that his counsel failed to investigate and call as a defense witness at trial a man that Brandon alleges saw the county administrator remove a gun from the body of the county attorney.

¶ 15. Though not fully articulated, presumably Brandon is asserting that his trial counsel was deficient for not putting on evidence of self-defense. As this defense would have been solely to the murder charge, to which Brandon pled guilty to the lesser-offense of manslaughter, we find Brandon’s claim proeedurally barred. We further note Brandon’s claim that his counsel failed to call certain witnesses goes to his counsel’s trial strategy, which we will only second guess in exceptional circumstances not present in this case. See Shorter v. State, 946 So.2d 815, 819 (¶ 15) (Miss.Ct.App.2007) (citations omitted) (“The decision of whether or not to call a witness to the stand falls within the ambit of trial strategy.”). As Judge Vollor noted, Brandon’s trial counsel made the strategic choice to put forward an insanity defense, versus self-defense. And the judge was correct that it is not the role of the court to second guess that choice.

¶ 16. Likewise, as Brandon’s motion for a continuance was made so that he could present additional evidence about this theory, we find this motion was properly denied. Not only did Brandon seek a continuance for a barred PCR claim, he also failed to show the denial of a continuance was manifestly unjust, as the record shows it was Brandon’s lack of diligence that led to a witness not appearing and the wrong transcript being brought to the PCR hearing. See In re Dissolution of Marriage of Profilet, 826 So.2d 91, 93 (¶ 6) (Miss.2002) (citations omitted) (“The decision to grant or deny a motion for a continuance is within the discretion of the trial court and will not ... [be] reversed] unless shown to have resulted in manifest injustice.”).

II. Remaining Issues

A. Recusal Motion

¶ 17. We also find Brandon’s motion requesting that Judge Vollor re-cuse from the PCR matter was properly denied. A trial judge is presumed to be unbiased. Hathcock v. S. Farm Bur. Cas. Ins. Co., 912 So.2d 844, 848 (¶9) (Miss.2005). While this presumption may be overcome by evidence producing a reasonable doubt as to the judge’s impartiality, Brandon produced no such evidence. See Tubwell v. Grant, 760 So.2d 687, 689 (¶ 7) (Miss.2000).

¶ 18. Brandon accuses the judge of failing to disclose his close friendship with the slain county attorney but cites no evidence showing a close friendship or calling into doubt the judge’s impartiality. Judge Vollor acknowledged that he knew the county attorney — as he knew all the attorneys who practiced before him in the Claiborne County Circuit Court — but not closely enough to affect his impartiality. The decision of impartiality belonged to the judge, and we find no manifest abuse of discretion. See Hathcock, 912 So.2d at 849 (¶ 11) (‘When a judge is not disqualified under the constitutional or statutory provisions, the propriety of his or her sitting is a question to be decided by the judge, and on review, the standard is manifest abuse of discretion.” (quoting Farmer v. State, 770 So.2d 953, 956 (¶ 6) (Miss.2000))).

¶19. Brandon also alleges the judge’s exclusion of certain evidence at his 2007 trial shows the judge is biased. A record of these rulings are not part of the PCR record, so this allegation is totally unsupported. But even if the rulings were part of the record, “[a] trial judge will not be found to be biased just because a defendant does not agree with a judge’s ruling.” Freshwater v. State, 794 So.2d 274, 278 (¶ 11) (Miss.Ct.App.2001) (holding PCR movant had “failed to produce any evidence lending credence to his assertion that the judge was prejudiced against him merely because he was the same judge that had dealt with his case from the beginning”).

¶ 20. Brandon’s last allegation of bias is based on the denial of his motion to continue the PCR hearing. Brandon told the judge he needed a continuance because the wrong witness was subpoenaed and he did not have a transcript he wished to read into evidence. However, the judge found the missing witness and transcript were due completely to Brandon’s lack of diligence. Brandon did not attempt to secure the witness’s attendance until two days before the hearing, and he had the transcript but failed to ensure he brought it to the hearing. “The decision to grant or deny a motion for a continuance is within the discretion of the trial court and will not ... [be] reversed] unless shown to have resulted in manifest injustice.” In re Dissolution of Marriage of Profilet, 826 So.2d 91, 93 (¶ 6) (Miss.2002) (citations omitted). As there was no manifest injustice to cure, the denial of a continuance was not an abuse of discretion — and certainly not an example of judicial bias.

¶ 21. Given the presumption of impartiality, the judge’s discretion over this issue, and Brandon’s lack of evidence to substantiate his bias claims, we find no error in the denial of recusal.

B. PCR Motion

¶ 22. Finally, in additional to being procedurally barred, we find that Brandon’s PCR motion was properly denied on the merits.

¶ 23. Brandon’s PCR motion claimed he was entitled to relief because trial counsel was constitutionally ineffective. After the PCR hearing, the judge found all of Brandon’s examples of alleged ineffective assistance did not meet the two-part test of Strickland. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (holding that, to prove ineffective assistance of counsel, a movant must show: (1) his attorney’s performance was deficient, and (2) the deficiency was prejudicial); see also Miss.Code Ann. § 99-39-23(7) (Supp.2012) (placing burden on the PCR movant to show by a preponderance he is entitled to relief). And we can find no clear error in the judge’s findings. See McDonald v. State, 16 So.3d 83, 84 (¶ 4) (Miss.Ct.App.2009) (citation omitted) (holding the denial of a PCR motion will only be overturned if based on clearly erroneous factual findings).

¶ 24. Brandon attacks the judge’s finding on the claim that Brandon’s trial counsel was deficient for not discovering that the Port Gibson Police Department’s officer who investigated Brandon’s crime had a lapsed certification. Brandon argues his counsel’s deficiency prejudiced him because Brandon could have used this fact to attack the officer’s credibility as a witness for the State. But the judge found there was no legal requirement that the investigating officer had to hold certain certifications in order to investigate the crimes or testify at trial. Further, the evidence showed the investigator had been trained and certified. And though his certification had lapsed at the time Brandon went on his shooting spree, the officer had his certification renewed a few months later. Thus, we find no error in the judge holding that any attack Brandon’s counsel could have made on the officer’s credibility would not have affected the outcome of the trial. See Hill, 60 So.3d at 827 (¶ 5) (“For prejudice to exist, there must be a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

¶ 25. Also, Brandon claims the judge denied him his “reserved right” to present “supplemental claims” at the PCR hearing. But the PCR statutes do not provide an unfettered right to present claims not alleged in the PCR motion. Instead, the relevant statute requires that a PCR motion contain a “concise statement of the claims or grounds upon which the motion is based.” Miss.Code Ann. § 99-39-9(l)(c) (Supp.2012). And a motion to amend the PCR motion must be made within thirty days of filing. Williams v. State, 98 So.3d 1090, 1092 (¶ 11) (Miss.Ct.App.2012) (citing Faye v. State, 859 So.2d 393, 394 (¶¶ 5-6) (Miss.Ct.App.2003)). Thus, we find no error in the judge’s refusal to allow Brandon to present claims that were not contained in his PCR motion or a timely motion to amend.

¶ 26. Because we find no error in the judge’s denial of Brandon’s PCR motion, we affirm.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., AND JAMES, J„ NOT PARTICIPATING.

      . See Miss.Code Ann. § 99-39-9(2) (Supp.2012).

      . Brandon received twenty years for manslaughter, twenty years for aggravated assault of the county administrator, ten years for discharging a firearm into an occupied dwelling, and twenty years for aggravated assault of the county employee — for a total sentence of seventy years in the custody of the Mississippi Department of Corrections.

      . While there are statutory and fundamental-rights exceptions to the time-bar, it is the movant’s burden to prove an exception applies. White v. State, 59 So.3d 633, 635 (¶ 8) (Miss.Ct.App.2011) (citations omitted). Here, Brandon has not addressed the time-bar at all — let alone shown why an exception applies.

      . This is not a case where the judge had a prohibited relationship with either party requiring him to recuse. The Mississippi Constitution prohibits a judge from presiding over a case where he is related by blood or marriage to either party or where he is interested in the case. Miss. Const. art. 6, § 165; see also Hathcock, 912 So.2d at 850 (¶ 13) (explaining what constitutes a prohibited relationship of "affinity” and "consanguinity”). And the Mississippi Code prohibits presiding over a case where the judge is related by blood or marriage to either party, has an interest in the outcome of the case, or may have been of counsel — meaning may have "actually participated in the prosecution or defense of the case in controversy.” Hathcock, 912 So.2d at 850 (¶ 15) & n. 3 (citing Miss.Code Ann. § 9-1-11 (Rev.2002)).

      . Further, we note these "supplemental claims” related primarily to Brandon’s manslaughter-conviction challenge, which we find untimely.


author: PER CURIAM.

text:
    Ex parte STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. (In re State Farm Mutual Automobile Insurance Company v. Charles Baggett).
    1100578.
    Supreme Court of Alabama.
    Sept. 21, 2012.
    William W. Watts III of Pipes, Hudson & Watts, LLP, Mobile; and Mark R. Ul-mer of Ulmer, Hillman & Ballard, Mobile, for petitioner.
    Edward Massey of Clay, Massey & Associates, Mobile, for respondent.
   PER CURIAM.

In December 2005, Charles Baggett and Diana Morris were involved in an automobile accident, as a result of which Baggett was injured. Baggett subsequently sued Morris, who was insured by Sagamore Insurance Company (“Sagamore”). Baggett added his underinsured-motorist (“UIM”) carrier, State Farm Mutual Automobile Insurance Company (“State Farm”), as a party to the action. The limit of State Farm’s UIM policy was $60,000. Before Baggett commenced the action against Morris, State Farm, pursuant to the procedure authorized by Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala.1991), advanced Baggett the sum of $25,000, the limit of the liability policy issued by Sagamore to Morris, to protect its potential subrogation interest against Morris. At the time State Farm advanced the $25,000 to Baggett, Baggett executed an agreement entitled an “Advancement of Funds to Protect Future Subrogation Rights.”

State Farm opted out of the action pursuant to Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988). Following a jury trial, Baggett obtained a judgment against Morris for $181,046. Therefore, Baggett was entitled to $85,000 — the total of the limits of both the Sagamore policy ($25,000) and the State Farm policy ($60,-000). Sagamore paid $25,000; State Farm, rather than paying Baggett $35,000 and receiving credit pursuant to the “Advancement of Funds” agreement for the $25,000 it had advanced, mistakenly paid $60,000, resulting in an overpayment to Baggett of $25,000. As a result of the overpayment, the trial court ordered Baggett to reimburse State Farm $25,000, less a one-third attorney fee under the common-fund doctrine. State Farm appealed. The Court of Civil Appeals affirmed the trial court’s judgment, without an opinion. State Farm Mut. Auto. Ins. Co. v. Baggett (No. 2100221, Feb. 4, 2011), 97 So.3d 816 (Ala.Civ.App.2011) (table). State Farm petitioned this Court for a writ of certiora-ri, which we granted.

Both parties’ arguments assume that this case involves the application of the common-fund doctrine. This Court, however, has determined that this case is simply one in which an insurer inadvertently paid $25,000 in excess of its policy limits, and the insurer is entitled to a refund of that excess amount. If an attorney fee was due Baggett’s attorney with respect to all or part of the $85,000 actually owed in the aggregate by Sagamore and State Farm, then the fee should be taken from the $85,000, not from the $25,000 State Farm overpaid and as to which it is entitled to be reimbursed. Baggett obtained a judgment against Morris for $181,046. Sa-gamore paid $25,000, the limit of its insured’s policy. Including the $25,000 State Farm had advanced to Baggett, State Farm paid $85,000, $25,000 more than its policy limit of $60,000. Thus, State Farm is entitled to the reimbursement of its overpayment. Because we conclude that State Farm overpaid Baggett, we reverse the judgment of the Court of Civil Appeals and remand the case to that court for it, in turn, to remand the case to the trial court with instructions that the trial court order Baggett to reimburse State Farm the amount of $25,000.

REVERSED AND REMANDED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and AVISE, JJ., concur.


author: THOMPSON, Presiding Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Charles BAGGETT.
    2100221.
    Court of Civil Appeals of Alabama.
    Oct. 26, 2012.
    William W. Watts III of Pipes, Hudson & Watts, LLP, Mobile; and Mark R. Ul-mer of Ulmer, Hillman & Ballard, Mobile, for appellant.
    Edward Massey of Clay, Massey & Associates, Mobile, for appellee.
   After Remand from the Alabama Supreme Court

THOMPSON, Presiding Judge.

This court, on February 4, 2011, affirmed the trial court’s judgment, without an opinion. 97 So.3d 816 (Ala.Civ.App.2011) (table). This court’s judgment has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte State Farm Mut. Auto. Ins. Co., 108 So.3d 1008 (Ala.2012). In compliance with the Supreme Court’s opinion, the judgment of the trial court is reversed for that court to order Baggett to reimburse State Farm in the amount of $25,000.

REVERSED AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.


author: SHAW, Justice.

text:
    Ex parte George D. GREEN and Wanda Green. (In re George D. Green and Wanda Green v. Garth Morris and Paul Battle).
    1110779.
    Supreme Court of Alabama.
    Oct. 19, 2012.

      J. Milton Coxwell, Jr., Monroeville, for petitioners.
    Garth W. Morris, pro se.
    Jeffrey W. Smith of Ryals, Plummer, Donaldson, Agricola & Smith, P.C., Montgomery; and Amanda Hines of Thompson, Garrett & Hines, L.L.P., Brewton, for respondent Paul Battle.
   SHAW, Justice.

The petitioners, George D. Green and Wanda Green, the plaintiffs in a personal-injury action pending in the Monroe Circuit Court, petition for a writ of mandamus directing that court to vacate its order transferring the underlying action to the Conecuh Circuit Court. We grant the petition and issue the writ.

The complaint seeks damages for assault and battery; it alleges that the defendants Paul Battle and Garth Morris “shot[] [George] with a shotgun.” George seeks damages for physical injuries and mental anguish; Wanda seeks damages for loss of consortium. The complaint further alleges that the Greens and Morris are residents of Conecuh County and that Battle is a resident of Pensacola, Florida.

Battle filed a motion seeking, among other things, a transfer of the case to Conecuh County. The grounds stated for the motion were as follows:

“MOTION TO DISMISS
“COMES NOW Paul Battle, by and through his attorneys of record, and moves this Court to dismiss the above captioned action.... [T]his defendant would state that this cause is filed in an improper venue and, because of this, is due to be dismissed.
“MOTION FOR CHANGE OF VENUE
“In the event that this Court denies the above Motion to Dismiss, this defendant moves for a change of venue to the Circuit Court of Conecuh County. As grounds, the undersigned would show as follows:
“1. Plaintiffs are residents of Cone-cuh County. (See Complaint)
“2. Co-Defendant Garth Morris is a resident of Conecuh County. (See Complaint)
“3. This defendant is a resident of Pensacola, Florida. (See Complaint)
“4. The alleged incident which forms the basis of this action occurred in Cone-cuh County. (See Complaint)
“Notwithstanding the above, Plaintiffs have filed this case in the Circuit Court of Monroe County, Alabama. The parties and the allegations have no connection with Monroe County and the proper venue for this action is the Circuit Court of Conecuh County.
“WHEREFORE, premises considered, Defendant Paul Battle moves this Court to transfer the above captioned action to its proper venue, the Circuit Court of Conecuh County.”

(Capitalization in original.)

Morris, acting pro se, also filed a motion to dismiss, stating:

“The alleged incident and facts described by the plaintiffs in this complaint occurred in Conecuh County, none of it occurring in Monroe County.
“None of the parties in this lawsuit live in Monroe County.
“Monroe County has no claim to jurisdiction and Monroe County has no claim to venue either and both claims [are] unfair and improper.”

The trial court entered an order stating: “Motion for change of venue/transfer filed by Battle Paul [sic] is hereby granted in part. This case is hereby transferred to Conecuh County.” Morris has filed a pleading in this Court asserting that the trial court has not yet ruled on his motion for a change of venue.

The Greens petitioned for mandamus review, and this Court ordered answer and briefs.

“ ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).
“ ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002).

In their petition, the Greens contend that the trial court erred in transferring this case to Conecuh County because, they say, “[v]enue of a legal action against a non-resident individual defendant is properly laid in any county of the State.” In support of this argument, the Greens cite Ex parte McCord, 896 So.2d 493, 494 (Ala.2004) (“Indeed, it is well established that an action against a nonresident individual can be brought in any county of the State.”), and Ex parte Del Mercado, 723 So.2d 19, 21 (Ala.1998) (noting that Rule 82(b)(2), Ala. R. Civ. P., adopted “ ‘ “the common law rule of venue as to actions at law against nonresident defendants ... [which] allowed suit to be brought against nonresident individuals in any county in the state” ’ ” (quoting Ex parte Jones, 681 So.2d 1062, 1063 (Ala.1996), quoting in turn Ex parte Cummings, Gazaway & Scott, Inc., 386 So.2d 732, 735 (Ala.1980))). Both decisions indicate that venue as to Battle, a nonresident, would be proper in Monroe County. Thus, the trial court’s transfer of the case to Conecuh County was erroneous.

In response to the mandamus petition, Battle contends that the trial court properly transferred the action pursuant to Ala.Code 1975, § 6-3-21.1, the Code section providing for transfers on the basis of the doctrine of forum non conveniens. Battle then provides an argument supporting a transfer of the case under that doctrine. However, the Greens contend that no such argument was raised in the trial court. In Ex parte Del Mercado, supra, the respondent to a mandamus petition challenging a transfer of a case based on improper venue argued that the doctrine of forum non conveniens provided an alternate basis to support the trial court’s transfer. However, the forum non conve-niens argument was raised for the first time after the case had been transferred. 723 So.2d at 21. Thus, we held that “[w]hether the forum non conveniens statute would support the trial court’s order is not an issue before this Court.” Id. See also Ex parte Harper, 934 So.2d 1045, 1048 (Ala.2006) (refusing to address an alternate argument that a transfer was proper under the doctrine of forum non conve-niens because “the trial court did not address this ground for transferring the action in its order”). We similarly hold that the issue whether the transfer of this case to Conecuh County on the basis of the doctrine of forum non conveniens was proper is not before us.

Conclusion

Venue is proper in Monroe County; the Greens have thus demonstrated clear error in the trial court’s transfer and a clear legal right to mandamus relief. We grant the petition and direct the trial court to vacate its order transferring the action to the Conecuh Circuit Court.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and STUART, PARKER, and WISE, JJ., concur.

      . It is unclear whether the trial court transferred the entire case, including the claims against Morris. Nevertheless, the Greens have named Morris as a respondent, and Morris has filed an answer to their petition.

      . Rule 82(c), Ala. R. Civ. P., provides that "[wjhere several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.” Thus, "because venue in [Monroe] County was proper as to [Battle], pursuant to the pendent venue provision of Rule 82(c), venue there was also proper as to [Morris]...." Ex parte McCord, 896 So.2d at 494.

      . In the trial court, both Battle and Morris contended that venue in Monroe County was "improper.” Although both Battle’s ■ and Morris’s motions obliquely mention the lack of "connection” between the action and Monroe County, which is one possible factor to be considered in a transfer on the basis of forum non conveniens, none of the parties’ filings in the trial court reference the doctrine or cite any applicable authority. For all that appears, no evidence supporting the applicability of the doctrine of forum non conveniens was received in the trial court, and the Greens did not have the opportunity to challenge the invocation of the doctrine.