author: EASLEY, Justice,

text:
    John M. CLARK v. BRASS EAGLE, INC.
    No. 2003-CA-00369-SCT.
    Supreme Court of Mississippi.
    Feb. 26, 2004.
    Dana J. Swan, Clarksdale, attorney for appellant.
    Arnulfo Ursua Luciano, Gerald H. Jacks, attorneys for appellee.
    Before PITTMAN, C.J., EASLEY and DICKINSON, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. John M. Clark (Clark) filed this products liability action in the Circuit Court of Coahoma County, Mississippi, against Brass Eagle, Inc. (Brass Eagle) and Chris Rico (Rico). The suit arose out of an incident which occurred on or about January 21, 1999, when Rico aimed a paintball gun manufactured by Brass Eagle at Clark shooting him while Clark rode past Rico in his car. The suit sought compensatory and punitive damages alleging that the Brass Eagle Talon paintball gun was defectively designed by Brass Eagle and contained inadequate warnings. The trial court granted Brass Eagle’s motion for summary judgment finding the paintball gun did not malfunction and performed exactly as Clark and Rico expected. The trial court also determined that Clark and Rico understood and appreciated the inherit danger of using paintball guns without protective eyewear. Finding no genuine issues of material fact, the trial court granted summary judgment in favor of Brass Eagle and dismissed Brass Eagle from the case with full prejudice on December 19, 2002.

FACTS

¶ 2. Clark testified in his deposition that he purchased a paintball gun from a pawnshop approximately one to two weeks prior to the incident on January 21, 1999. Clark had practiced with the gun in his backyard and knew how to screw in the cartridge, pump the gun and use its safety and trigger. Clark hunted and had taken a course in hunter safety education. Clark had seen the paintball protective ■ eye masks at Wal-Mart when he purchased his cartridges and paintballs and knew the masks were for some sort of protection.

¶ 3. Clark stated that he first learned about paintball when everybody else did and when everybody else was getting them. He bought the same kind that Rico used to injure him, Clark did not remember seeing any writing on the side of the paintball gun before the incident, but he stated he guessed that there was warnings on the side of the gun. Clark purchased the paintballs and the C02 cartridges from Wal-Mart. ■ He did not read any warnings on any of the packages of the paintballs or on the C02 cartridges he purchased. He bought his gun because everyone else had one. The only thing that he had heard that people did with the guns was shoot at cars. The game consisted of riding around and shooting at cars to mark them with the paintball guns. The object of the game was to shoot at the car and not to shoot at open windows. No one Clark was shooting at was wearing the protective masks. Clark understood and appreciated the danger of shooting at people as is evident in his statement that it was “common sense” not to shoot anyone in the face with the paintball gun.

¶ 4. Clark had seen protective masks for sale at Wal-Mart after he had purchased the gun. Clark testified that before he bought his paintball gun he had seen other people drive by shooting at other vehicles. Clark then decided to purchase one. Clark stated that they only shot paint balls at other vehicles that might have paintball guns. He testified that generally he had knowledge of the other guys that had paintball guns. Clark stated that his parents knew he had the paintball gun. In fact, Clark told his parents that he used his paintball gun to shoot at his friends’ cars.

¶ 5. Clark stated that he did not shoot at another person because he did not want to get shot back. According to Clark, “I figured if I shot somebody, they were going to shoot me back.” “If you shoot somebody, they would shoot you back, that’s pretty much how it went.” On January 21, 1999, Clark and his friends were riding around Clarksdale carrying two paintball guns in the vehicle with them. Clark was driving and had his paintball gun underneath his driver’s seat.

¶ 6. Rico testified in his deposition that on same night he and his friends were also riding around Clarksdale with two paintball guns in their vehicle. Rico also knew that the protective masks were sold by Brass Eagle and that the masks were for eye protection. Rico testified that he had purchased a Brass Eagle paintball gun the day of the incident for himself. In fact, Rico testified that a friend of Beth Burn-ham, who is a friend of Rico’s, purchased the paintball gun Rico borrowed that night and used to shoot Clark. Rico’s dad purchased his paintball gun because he was not 18 and could not purchase it himself. He had not read the warning on the package on his paintball gun. Rico stated that he was sure he looked at the warnings or instructions on the side of the gun, but he did not “study” them. Rico further stated that he did not read any warnings in the manual, but he was sure that he saw the manual because it was “right there.”

¶ 7. According to Rico, “paint ball wars” were played by several people in each car riding by and shooting paintballs at the other’s moving or parked car. Rico also stated that his paintball gun never malfunctioned, and it operated properly. Rico had also taken hunter safety education classes and was knowledgeable about how the paintball gun operated. Rico knew it was dangerous to shoot someone in the eye with the paintball gun and knew that there were protective masks available to protect the eyes and face from a paintball injury.

¶ 8. According to Rico, at some point in the evening while he was parked at an area on West Second Street, Clark’s vehicle pulled into the parking lot, and a passenger in Clark’s vehicle shot a paintball hitting Rico’s vehicle. In turn, Rico shot his paintball gun several times at Clark’s vehicle. Clark testified that all he remembered about the incident was being hit in the eye. He did not recall anyone shooting at Rico’s car. When he got home, he was rushed to the emergency room where he had surgery. Rico testified that he was “pretty sure” he and Clark had shot at each other earlier the night of the incident. Rico stated that he and Clark were acquaintances and not enemies. Rico testified that he never intended to shoot Clark, but to shoot the outside of the vehicle. However, Rico stated that he had in the past been shot through the car window in the arm. Clark testified that no one had shot at his car that evening before the incident in question.

¶ 9. In his deposition, Michael Small (Small), a retired Brass Eagle manufacturing engineer, testified that Brass Eagle Talon paintball gun was designed as an entry level paintball marker/gun generally used for target shooting and pump tournament play. The paintball gun is used primarily for playing the sport of paintball. Small knew of no hazards associated with the Brass Eagle Talon paintball gun when used as it is designed and intended to be used. Small testified that nothing he saw or read indicated there was any manufacturing defect in this particular model of paintball gun.

¶ 10. Besides the depositions of Clark, Rico and Small, Brass Eagle also attached to its memorandum brief in support of its motion for summary judgment a copy of the safety warning information, operating instructions and consumer notice, that comes with the Talon paintball gun. The warning stated on the front page of the owner’s manual:

WARNING: This is not a toy. Misuse may cause serious injury or death. Eye protection designed for paint ball use must be worn by the user and any person within range. Recommend at least 18 years old to purchase, 14 years old to use with adult supervision, or 10 years old to use on paint ball fields meeting ASTM-Standard F1777-97. Read operation manual before using.

¶ 11. Clark’s expert witness, Dr. Richard Forbes (Forbes), Professor of Me-, chanical Engineering at Mississippi State University, testified that he reviewed the depositions taken in this case from Clark, Rico and Small, Brass Eagle’s SEC filings and documents produced by Brass Eagle. Forbes concluded that within a reasonable degree of certainty, “the manufacturer should have provided videotape instructions and goggles for everyone in the vicinity of paint ball guns and their use.” Forbes also concluded that unless a better design alternative is “utilized, this paint ball gun was simply too dangerous to be given to the general public for use outside of controlled situations.”

¶ 12. In granting summary judgment for Brass Eagle, the trial court found that:

According to the deposition testimony of Plaintiff John Clark and Defendant Chris Rico, the Brass Eagle product, namely the paint ball marker,. did not malfunction, and operated to their expectations. Plaintiff Clark has offered no credible evidence to show otherwise.
Additionally, Plaintiff Clark admitted that he knew and understood the dangerous propensity of the gun through hunter education safety courses, his knowledge and understanding as to how to operate the paint ball marker, his practice in operating the marker and knowledge and understanding of the harm of shooting another person along with the possibility of being shot at' and injured by another person. The Plaintiff and Co-Defendant Rico knew and appreciated the danger inherent in the use of paint ball guns without wearing protective eye wear.
The Court concludes there is no genuine issues of material fact as to the Defendant Brass Eagle, Inc. Accordingly, summary judgment is proper in this ease and judgment is entered in favor of Defendant Brass Eagle, Inc., and Defendant Brass Eagle, Inc., is hereby DISMISSED FROM THIS CASE WITH FULL PREJUDICE.

¶ 13. Clark, now appeals arguing that the trial court erred in determining that summary judgment was proper.

DISCUSSION

I.Summary Judgment

¶ 14. Clark argues that the trial court erred in granting summary judgment in favor of Brass Eagle because Forbes’s affidavit created a triable issue.

¶ 15. This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). This Court is governed by the same standard used by the circuit court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Cothern v. Vickers, Inc., 759 So.2d 1241, 1245 (Miss.2000); Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Berry, 669 So.2d at 70. If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be granted in the moving party’s favor. Cothern, 759 So.2d at 1245; Brown, 444 So.2d at 362. The burden of demonstrating that no genuine issue of material fact exists is on the moving party. Id. And any doubt as to whether a fact issue exists should be resolved in favor of the non-moving party. The trial court’s decision to grant summary judgment will be reversed where triable issues of material fact exist. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997).

¶ 16. The Mississippi Legislature passed the Products Liability Act, Miss. Code Ann. § 11-1-63, codifying strict liability law. Smith v. Mack Trucks, Inc., 819 So.2d 1258, 1261 (Miss.2002). While the procedural provisions of the Act became effective for all cases pending on July 1, 1993, the substantive provisions were not effective until July 1, 1994. Id. The Act created a “hodgepodge mixture of the consumer expectations and risk utility tests,” for a manufacturer or seller to pass in order to obtain protection if the product causes harm. Id. at 1266-67 (Smith, P.J., dissenting). Miss.Code Ann. § 11-1-63(a)(i-iii) provides that in order for a manufacturer or seller of a product to be liable, a claimant must prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:

(i) 1. The product was defective because it deviated in a material way from the manufacturer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

¶ 17. Miss.Code Ann. § ll-l-63(b) further states:

A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product’s usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.

¶ 18. In Wolf v. Stanley Works, 757 So.2d 316, 319 (Miss.Ct.App.2000), the Court of Appeals correctly recognized Miss.Code Ann. § 11-1-63 as the “starting point” for a products liability claim:

A plaintiff has the burden of showing that the defect that allegedly was the proximate cause of injury existed at the time that the product left the hands of the manufacturer, and that the defect rendered the product unreasonably dangerous. Accordingly, the proof must support that no material change in that product occurred after leaving the manufacturer’s control.

¶ 19. Furthermore, in any action alleging a product is defective “the manufacturer or seller shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.” Miss.Code Ann. § 11 — 1—63(d)(i—iii).

¶ 20. The Minnesota Court of Appeals has denied recovery where one paintball player, Stephen Schneider, 17, sued another paintball player, Jake Erickson, age 16, after being shot in the eye by a paintball gun purchased at a Wal-Mart. Schneider v. Erickson, 654 N.W.2d 144 (Minn.Ct.App.2002). In Schneider, the court found that the injured player, Schneider, who was not wearing eye protection, appreciated the dangers involved and assumed the risk by not wearing eye protection. Id. at 151, The court found that while the other player owed a' duty of care, the well-known inherent risks associated with the sport relieved the shooter of his duty of care. The court found that the risk of being shot in the eye with a paintball is inherent to the game of paintball. Id. The court affirmed the summary judgment as to the shooter finding that summary judgment was proper finding that the evidence was conclusive as to whether the risk of eye injury is inherent in the sport of paintball thereby leaving ■ no issues for a jury to decide. Id. at 151-53.

¶ 21. Based on the depositions of Clark and Rico, we find that the trial court did not err in granting summary judgment in favor of Brass Eagle. The facts do not support any other conclusion.

¶ 22. Clark offered no proof that the paintball gun used in the incident failed to function as expected and offered no feasible design alternative which, to a reasonable probability, would have prevented what happened to him. In fact, Clark’s testimony is detrimental to his claim. Clark testified that he was aware that there was protective eyewear available for purchase at Wal-Mart, but he chose not to do so. He was an active participant in shooting paintballs at. other vehicles. The evening of the incident at issue here Clark and his friends in his car carried their paintball guns with them for that purpose.

¶23. Clark testified that his parents were aware that he had purchased a paintball gun and engaged in shooting paint-balls at other friends’ cars. Clark appreciated that there was a danger in shooting at people evidenced by his statement that it was “common sense” not to shoot anyone in the face with a paintball gun. Clark said that he guessed it was “common sense” to not shoot anyone in the eye. No one playing-the “game” wore protective masks or eyewear.

¶ 24. Rico’s testimony further supports the trial court’s decision to grant summary judgment as to Brass Eagle. While Rico used a friend’s paintball gun to shoot Clark, Rico’s dad had bought a Brass Eagle Talon paintball gun for him the day of the incident. Rico chose not to read any of the warnings or instructions on the side of the gun, in the manual or on the package. Rico was familiar with the paintball gun, having used other identical paintball guns in the past. Rico stated that “paint ball wars” were played by several people by riding around shooting paintballs at each others parked or moving cars.

¶ 25. Rico testified that he knew it was dangerous to shoot someone in the eye with a paintball gun. Rico acknowledged that he knew protective masks were available. Rico also did not use any protective eyewear. Rico stated that he knew the purpose of the protective mask was to protect the eyes and the face from paint-balls.

¶26. The most crucial testimony occurred when Rico stated the paintball gun he was using never malfunctioned. According to Rico, the paintball gun functioned properly. Rico testified that his mom discarded the paintball gun he used. Rico’s mother also threw away the paintball gun which his dad had recently purchased for him. The paintball gun in question was never examined by an expert. After summary judgment was granted to Brass Eagle, the lawsuit against co-defendant Rico was dismissed by consent between the parties.

¶ 27. The trial court relied heavily upon the testimony of Clark and Rico in making its decision. Based on their deposition testimony, the trial court determined that the Brass Eagle paintball gun did not malfunction and operated to their expectations. The trial court found that Clark did not present any credible evidence that any genuine issues of material fact existed and, accordingly, granted summary judgment in favor of Brass Eagle dismissing the case with prejudice.

¶ 28. Based on this record, the trial court did not err in granting summary judgment to Brass Eagle.

CONCLUSION

¶ 29. For these reasons, we affirm the judgment of the Circuit Court of Coahoma County granting summary judgment to Brass Eagle, Inc.

¶ 30. AFFIRMED.

PITTMAN, C. J., SMITH AND WALLER, P.JJ., COBB, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . Thereafter, on February 17, 2003, Rico was dismissed by consent order.

      . Clark purchased his paintball gun from a pawnshop because he was looking for the cheapest price. Clark went to more than one pawnshop before he found one. The pawnshop where he purchased the paintball gun has since closed.

      .C02 cartridges are used to propel the paint-balls.

      . Clark testified that while in elementary school he had engaged in B.B. gun wars where he shot other people and other people shot him.

      . According to Clark, West Second Street was the strip where kids rode up and down looking for friends.

      . Small testified that he retired from Brass Eagle in October of 2000.

      . Rico discarded the actual paintball gun he used to shoot Clark. According to Rico, the paintball gun was thrown away by his moth-


source: Caselaw Access Project

author: SMITH, Presiding Justice, DICKINSON, Justice,

license: Public Domain

text:
    GANNETT RIVER STATES PUBLISHING CORPORATION, INC., d/b/a The Clarion-Ledger v. CITY OF JACKSON, Harvey Johnson, In his Official Capacity as Mayor of the City of Jackson; Margaret Barrett, In Her Official Capacity as President of the Jackson City Council; and Ben Allen, Leslie McLemore, Kenneth Stokes, William “Bo” Brown, C. Daryl Neely and Allen “Chip” Reno, Jr., In their Official Capacity as Members of the Jackson City Council.
    No. 2002-CA-02032-SCT.
    Supreme Court of Mississippi.
    Feb. 26, 2004.

      Leonard D. Van Slyke, Jr., Laura L. Gibbes, Jackson, attorneys for appellant.
    Ronald Dewayne Bailey, Terry Wallace, Jackson, attorneys for appellees.
   SMITH, Presiding Justice,

for the Court.

¶ 1. This case involves the interpretation of two important state statutes, the Open Meetings Act, Miss.Code Ann. §§ 25-41-1 to -17 (Rev.2003), and the Mississippi Public Records Act, Miss.Code Ann. §§ 25-61-1 to -17 (Rev.2003). ■ Gannett River States Publishing Corporation, Inc. d/b/a The Clarion-Ledger (Gannett), accused the Jackson City Council of denying the public and the press access to -a meeting held during regular business hours and refusing to release the minutes of the meeting to the public. The trial court found that the meeting was merely a social gathering and that neither statute was violated. Gannett appeals the ruling on three issues. We hold that the trial court erred in finding that the October 5, 2000, meeting was a social gathering and thus, not subject to the requirements of the Open Meetings Act. We reverse and remand the case to the trial court for further proceedings consistent with this opinion to determine whether the Public Records Act was violated and whether any civil penalties or expenses should be assessed.

FACTS

¶ 2. A gathering took place on October 5, 2000; present were the Mayor, six council members, the City Attorney, an Assistant City Attorney, the Chief City Administrator, the Chief of Staff, the City Clerk, and several other city employees. Also present at the event was Claudette Romious, a communications consultant and facilitator. The public was not given notice of the event, but a reporter for The Clarion-Ledger, Gregg Mayer, learned of the meeting from a city employee the morning of the meeting. Mayer went to the meeting two hours after it had begun, but he was not allowed to stay and observe.

¶ 3. Through his employer, The Clariorir-Ledger, Mayer contacted an attorney, Mark Fijman, who later accompanied Mayer back into the meeting, asking that Mayer be allowed to stay. Fijman informed the city officials that they were in violation of the Open Meetings Act. City officials still refused to allow Mayer to stay in the meeting.

¶ 4. On November 1, 2000, The Clarion-Ledger made a written request to the City of Jackson for the minutes and other information relating to the event of October 5, 2000. On November 8, 2000, the city responded that the event was closed and no minutes were taken because it was not an “official meeting.”

¶ 5. Gannett filed a complaint against the City of Jackson and the members of the Jackson City Council (City), averring that the Jackson City Council held an “unannounced closed meeting on October 5, 2000,” in violation of the Open Meetings Act, Miss.Code Ann. § 25^11-3(a). The complaint was filed on January 31, 2001, in the Hinds County Chancery Court, seeking a permanent injunction requiring the City to comply with the Open Meetings Act, and the Public Records Act. Gannett also sought penalties, reasonable attorney’s fees, and expenses associated with bringing suit.

¶ 6. The City filed its answer and affirmative defenses to Gannett’s complaint, and a motion to dismiss the official capacity defendants. The trial court did not dismiss the official capacity defendants.

¶ 7. Depositions were taken of reporter Gregg Mayer, and the seven city council members: Ben Allen, Margaret Barrett, William Brown, Leslie McLemore, Daryl Neely, Chip Reno, and Kenneth Stokes. These depositions were presented and admitted at trial as Exhibit One, which also included the stipulated facts.

¶ 8. On September 28, 2001, Gannett filed a motion for summary judgment. The City responded to the motion on October 21, 2001. Gannett replied to the response on the next day. On March 5, 2002, the chancery court denied the summary judgment motion, finding a material issue regarding whether the October 5, 2000, event was an official meeting.

¶ 9. The case was tried on November 6, 2002. The City of Jackson maintained that the event was a social gathering and not an official meeting of the city council. The parties stipulated to the basic facts in the case. The only real issue of material fact was the categorization of the gathering that took place on October 5, 2000. After hearing the evidence, the chancellor agreed with the city that the event was a social gathering. On November 18, 2002, the trial court found that the October 5, 2000, event was a social function to which the Open Meetings Act did not apply. The trial court denied all relief requested by Gannett, stating public policy was not offended by the event because no city business was conducted. Gannett filed a motion for clarification of the court’s opinion and order dated March 5, 2002, and to amend the order to include certification. The court subsequently denied this motion.

¶ 10. Gannett filed an appeal, asking this Court to review three issues.

STANDARD OF REVIEW

¶ 11. While this Court will always review a chancellor’s findings of fact, it will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard. Morgan v. West, 812 So.2d 987, 990 (Miss.2002) (citing Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)). When reviewing questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of the law. Id. (citing Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992); Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990)).

¶ 12. In this case, the chancellor found that “the event of October 5, 2000 was not a ‘meeting’ under the' meaning of Miss. Code Ann. § 25-41-1, et seq.” Since we review the chancellor’s interpretation and application of the law, the de novo standard of review applies.

DISCUSSION

¶ 13. We have interpreted and applied the Open Meetings Act in only three cases; however, the decisions are thorough in their statutory interpretation discussion. Basically, a “public body” holding a “meeting” must-make the meeting open to the public unless an “executive session” is called, where the Legislature has defined “public body” and “meeting” and has outlined the procedure for holding an “executive session” in Miss.Code Ann: § 25-41-1, et seq. While we recognize the admirable goal of the Jackson City-Council and applaud its efforts to work as a more cohesive unit, we must be mindful that good intentions do not distract us from correctly interpreting the Open Meetings Act or allow us to compromise its narrowly tailored exceptions.

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE OCTOBER 5, 2000, MEETING OF THE JACKSON CITY COUNCIL WAS NOT SUBJECT TO THE REQUIREMENTS OF THE OPEN MEETINGS ACT, MISS. CODE ANN. § 25-41-1, ET SEQ; AND WHETHER THE COURT ' FURTHER ERRED IN FAILING ■ TO FIND THAT THE MEETING DID NOT COMPLY WITH THE REQUIREMENT THAT THE MEETING BE CONDUCTED IN AN OPEN AND PUBLIC MANNER.

¶ 14. The trial court found that the event on October 5, 2000, was not a meeting but was a purely social gathering and, as such, was not-governed by § 25-41-1. The Legislature has defined “meeting” as “an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power ...,” where “public body” means “any executive or administrative board, commission, authority, council, department, agency, bureau or any other policy making entity ... of the state of Mississippi, or any political subdivision or municipal corporation of the ... which is supported wholly or in part by public funds or expends public funds ...” Miss. Code Ann. § 25 — 41—3(a)(i), (b) (emphasis added).

¶ 15. There is no dispute that the Jackson City Council is a public body. The six of seven council members who were present at the event composed a public body then that could have taken official acts because a quorum was present. The City argues that since no official acts were taken, the gathering could not have been an official meeting; however, the wording in the statute is “official acts may be taken.” The Legislature does not indicate that official acts must be taken in order for the gathering to be considered a meeting.

¶ 16. Closer examination. of our prior interpretation of § 25-41-7(4) shows that “official acts” includes action relating to formation and determination of public policy, but excludes purely social functions. Bd. of Trustees of State Insts. of Higher Learning v. Miss. Publishers Corp., 478 So.2d 269, 278 (Miss.1985). As outlined by this Court in Board of Trustees, the factors to be considered in the determination of whether an activity is business or social within the context of the open meetings requirement include the activity that takes place at the function, the advance call or notice given to the members, an agenda, the claim for per diem and travel expenses by the Board members, and other pertinent factors. Id. In Board of Trustees, this Court found that a luncheon between the Board and the student body presidents of the colleges and universities was not a purely social affair. This Court said official acts occurred because a written program was distributed and discussions were conducted that pertained to the “formation of public policy.” Id. This Court also noted that it was unclear in Board of Trustees, whether public funds were used to pay for the food service. Id. Here, it is clear Council Member Ben Allen ultimately paid the bill, but some members of the council were under the impression the City was going to fund the gathering and Allen did not originally intend to pay the bill.

¶ 17. In the present case, the activity was the gathering of a quorum of the board members, the mayor, his staff, and city attorney led by a facilitator. The members were given advance call or notice, according to their depositions. The members, including non-attendee Kenneth Stokes, knew of the gathering several weeks in advance, and they were asked to suggest good dates for holding the event. The chancellor found that there was no agenda at the event; however, the evidence indicates otherwise. The facilitator apparently had a plan for how the day would progress according to depositions of William Brown and Daryl Neely. Brown said the facilitator “kind of led the ... well, she conducted obviously, you know, the seminar or the ... session.” Neely said the facilitator had a “flip chart writing down bullet points, ideas to discuss.” According to the American Heritage Dictionary of the English Language, 24 (1981), agenda means a “list of things to be done, especially the program for a meeting,” and the facilitator’s flip chart is indicative of an agenda.

¶ 18. The record does not indicate that any claims for per diem or travel expenses were made; however, since the event was held at the Jackson School District’s Environmental Learning Center, it seems unlikely travel expenses would be incurred. There is no indication that the city employees took leave from work; therefore, they were most likely being paid for their work that day. In her deposition, when asked if she attended the retreat as part of her duties with the council, Margaret Barrett responded, “Yes. I would have done this with any group, board, any committee ... that you are trying to get to know better and work with.” Furthermore, the depositions of Brown and Kenneth Stokes, who did not attend the event, indicate that several council members were under the impression that the city was paying the tab for the day’s activities. When asked if he was aware of how the facilitator was paid, Brown responded, “Well, she was paid through — through—through the council’s training budget.” When questioned further, Brown said, “Well, that’s how we paid the other one.... ” When Stokes was asked if he knew how the facilitator was paid, he said, “I think they were paid through the — through the city.” In fact, one may infer from the record that Ben Allen only picked up the bill because of the impending lawsuit and legal issues.

¶ 19. The depositions also indicate that some written notice was given to those invited to the event. Leslie McLemore, Ben Allen, Chip Reno, and Kenneth Stokes each indicated in their separate depositions that they received some written notice of the scheduled event in advance.

¶ 20. Additionally, in their depositions, two council members indicated the City Council had attended similar retreats in the past. In reference to a retreat held in about 1998 at Hinds Community College Eagle Ridge Conference Center, Reno stated in his deposition,

I do know there was some media there .... one of the news stations came, and they were not — they were allowed to take some video of — B role is what I call it, just around the room while we were talking ... And they may have gotten a quote or two outside the conference room we were working in at the time.-

When William Brown was asked about the prior retreats in his deposition, he stated, “I don’t think the public was excluded from none of them.” Further Brown stated he didn’t recall whether any of the public was in attendance at the Eagle Ridge retreat but that, “we might have had a guest or two come through.”

¶21. Also pertinent to the determination of the social or business nature of the event is the fact that no spouses, family members, or friends of the council members or city employees were present or invited. The stated purpose of the function was to improve the ability of those present to work together through learning-more about each other.

¶ 22. In Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 123 (Miss.1989), this Court examined the nature of a function attended by a public board, finding that whether a function was informal or impromptu, it is a “meeting” within the meaning of the Open Meetings Act only when there are to occur deliberative stages of the decision-making process that lead to formation and determination of public policy. Thus, “[a] public board should be available for social functions with charities, industries and businesses, at which no action is taken and their only function is to listen, without being subjected to the Act.” Id. (emphasis added). Clearly, as indicated in the record, the persons present at the October 5, 2000, event were not merely listening to the facilitator; they were interacting with each other and with the facilitator. Had they been only listening, they would not have voiced concerns about the media’s or the public’s presence hindering their ability to speak freely. According to Barrett’s deposition, she thought “there was pretty much agreement we wouldn’t be able to discuss openly our personality types and all that with- [Mayer] there.”

¶ 23. In Hinds County Board of Supervisors, we reaffirmed our decisions in Mayor & Aldermen of City of Vicksburg v. Vicksburg Printing & Pub. Co., 434 So.2d 1333 (Miss.1983) (Vicksburg) and Board of Trustees, 478 So.2d 269, regarding the Open Meetings Act. The first of those decisions, Vicksburg, was the first time this Court interpreted the Open Meetings Act. In Vicksburg, 434 So.2d at 1336, we acknowledged “we live in an age when secrecy in government generates suspicion and mistrust on the part of our citizenry.” Noting that the government must have the confidence of the public being served in order to govern effectively, we recognized that though openness may be inconvenient sometimes, “it is the legislatively decreed public policy of this state.” Id.

¶24. Just two years later, the Open Meetings Act was again before us. In Board of Trustees, 478 So.2d at 276, we repeated our holding in Vicksburg, stating, “The Open Meetings Act was enacted for the benefit of the public and is to be construed liberally in favor of the public.”

¶25. Our opinion in Hinds County Board of Supervisors, 551 So.2d 107, is directly on point in this case, as the following excerpt indicates:

No doubt there are occasions when board members would speak more frankly on some matter if only the board members were present, and no doubt there are instances in which a board member would personally prefer to speak only to his colleagues. Of far greater importance, however, is that all public business be open to the public. Every member of every public board and commission in this state should always bear in mind that the spirit of the Act is that a citizen spectator, including any representative of the press, has just as much right to attend the meeting and see and hear everything that is going on as has any member of the board or commission. Miss.Code Ann. § 25-41-1; Mayor & Aldermen of Vicksburg, supra; Board of Trustees v. Miss. Publishers Corp., supra.
A citizen spectator or news reporter is not a participant. He has no right to intrude or interfere in any manner with the discussion, deliberation or decision-making process. Miss.Code Ann. § 25-41-9; Wood v. Marston, 442 So.2d 934, 941 (Fla.1983). But he does have a right enforceable at law to be there and see and hear everything.

Additionally, informal sessions may be considered “meetings” within statutory definition, according to Board of Trustees, 478 So.2d at 278.

¶ 26. All the deliberative stages of the decision-making process of the public body that lead to formation and determination of public policy are “meetings” within the meaning of Section 25-41-7(4) which requires that all meetings of a public body be public except when in executive session. Board of Trustees, 478 So.2d at 278. While the exceptions to the statute are to be construed narrowly, the statute is to be construed liberally to keep public meetings open. However, as we stated in Hinds County Board of Supervisors, “We are not prepared to say that every informal or impromptu meeting which the Board members may attend automatically comes under the purview and mandate of the Act.” 551 So.2d at 122-23. For example, the Jackson City Council might decide to charter a bus to take all of them, but only them, to a college football game out of town. On that trip, the bus driver might ask them when some topic will be heard by the council. A short exchange might follow between the council members before the topic turns to something else. This would be an example of an impromptu meeting that is not covered by the Open Meetings Act.

¶ 27. The city council should have held the meeting in an open and public manner. If it became apparent that the public needed to be excluded for ’a legislatively approved reason, the council could have then voted to go into executive session after stating a specific reason. The reason given must be sufficient in specificity to inform those present that there is in reality a specific, discrete matter or area which the public body has determined should be discussed in executive session. Hinds County Bd. of Supervisors, 551 So.2d at 110-12. The Legislature has outlined the procedure for holding an executive session in Miss.Code Ann. § 25-41-7(4). This Court has interpreted that statute and has also outlined the procedure for holding an executive session in Hinds County Board of Supervisors, 551 So.2d at 110-12. The council could have entered into executive session by specifically identifying a particular area related to personnel matters, which they wanted to discuss privately. The executive session procedure may be cumbersome, but it can be followed to protect certain private matters when necessary. While the entire retreat may not be deemed a legitimate exception under the Open Meeting Act, certainly portions of the day involving disclosure of personal matters relating to personnel would be covered and could be protected by executive session.

¶28. We find that the trial court did err in its characterization of the event as a purely social gathering. The event was in fact a meeting and should have been conducted as such, following the requirements of the Open Meetings Act for allowing the public access, keeping minutes, and entering an executive session, as needed.

II. WHETHER THE TRIAL COURT ERRED IN ITS FINDING THAT THE MINUTES OF THE OCTOBER 5, 2000, MEETING OF THE JACKSON CITY COUNSEL WERE NOT REQUIRED TO BE RECORDED OR PRODUCED FOR PUBLIC INSPECTION PURSUANT TO THE MISSISSIPPI PUBLIC RECORDS ACT, MISS. CODE ANN, § 25-6L-1, ET SEQ.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO AWARD CIVIL PENALTIES AND EXPENSES, INCLUDING ATTORNEYS FEES, TO APPELLANT PURSUANT TO MISS. CODE ANN. § 25-1-15.

¶ 29. The trial 'court denied the relief requested concerning these two issues because it found that the event was not a meeting; thus, it concluded these statutes would not apply and no relief-would be available to Gannett. The City concedes that if the event was a meeting, the Public Records Act would apply. Both of these issues rest on the result of the first issue. These issues must first be resolved in the trial court "with the understanding that the event was a meeting under the meaning of Miss.Code Ann. § 25-41-1, before we would have anything to review with regard to the trial court’s handling of these issues.

CONCLUSION

¶ 30. We hold that the gathering on October 5, 2000, was a meeting and, as such, was governed by Miss.Code Ann. §§ 25-41-1, et seq. and §§ 25-61-1. Therefore, we reverse the judgment of the Hinds County Chancery Court, and we remand the case to the trial court for further proceedings consistent with this opinion.

¶ 31. REVERSED AND REMANDED.

PITTMAN, C.J., WALLER, P.J., COBB, CARLSON AND DICKINSON, JJ., CONCUR. DICKINSON, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, C.J., SMITH, COBB AND CARLSON. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

DICKINSON, Justice,

Concurring:

¶ 32. Although I concur with the result and reasoning set forth by the majority, I am compelled to write separately, for I believe there exist certain principles so essential to a free society that they must be protected from even the slightest erosion or compromise. Of those principles, none is more important or necessary than the right of the citizenry to be fully informed of the deeds, and misdeeds, of those entrusted with public business.

¶ 33. It cannot be doubted that the natural tendency of governmental power-— at every level — is to proliferate and protect itself and to increase at whatever pace, and to whatever extent, the public will abide. Nor can it be doubted that the best protection against such governmental excess, and the best assurance of fair, honest, accountable public officials, is the right of the public to be informed as to the acts and actions of those public officials when they discuss, perform and carry out the business of the public.

¶ 34. Few citizens have the time and expertise to monitor and investigate the acts of public officials. For this reason, citizens depend upon the news media to perform these functions and report their findings. However, they cannot report what they are not allowed to hear.

¶ 35. This fundamental concept was not lost on our Legislature which, in response to the public’s right to governmental accountability, passed the Open Meetings Act, giving citizens — including members of the press — the right to attend “public body” meetings. Miss.Code Ann. § 25-41-5 (Rev.2003).

¶ 36. The importance placed by the Legislature on the Open Meetings Act, as well as its stated purpose, is as follows:

It being essential to the fundamental philosophy of the American constitutional form of representative government and to the maintenance of a democratic society that public business be performed in an open and public manner, and that citizens be advised of and be aware of the performance of public officials and the deliberations and decisions that go into the making of public policy, it is hereby declared to be the policy of the State of Mississippi that the formation and determination of public policy is public business and shall be conducted at open meetings except as otherwise provided herein.

Id. § 25-41-1.

¶ 37. This clear purpose, together with several previous decisions of this Court, should have served notice on the City of Jackson, its officials, and the trial court that the October 5, 2000, meeting was within the purview of the Act.

¶ 38. Two decades ago, this Court was called upon for the first time to interpret the provisions of the Open Meetings Act. Justice James L. Robertson’s superb opinion for the Court included the following statement:

Governmental service ought be noble, if not heroic. Local self-government ... remains the essence of our democracy. Our legislature has decreed that its acts ought be conceived in the open air. That our statutes may be judged by some to have fallen short of the poet’s perfection does not undercut the power of their policy. Openness in government is the public policy of this state.

Mayor & Aldermen of the City of Vicksburg v. Vicksburg Printing & Pub. Co., 434 So.2d 1333, 1336 (Miss.1983) (footnote omitted).

¶ 39. Additionally, this Court has held that “the Act is to be construed liberally in favor of public access.” Hinds Cty. Bd. of Sup’rs v. Common Cause of Miss., 551 So.2d 107, 110 (Miss.1989) (citing Bd. of Trustees of State Insts. of Higher Learning v. Miss. Publishers Corp., 478 So.2d 269, 276 (Miss.1985)).

¶ 40. This Court has further noted that “[ejvery member of every public board and commission in this state should always bear in mind that the spirit of the Act is that a citizen spectator, including any representative of the press, has just as much right to attend the meeting and see and hear everything that is going on as has any member of the board or commission.” Hinds Cty. Bd. of Sup’rs, 551 So.2d at 110 (emphasis added).

¶ 41. The Open Meetings Act specifically prohibits any attempt to use an executive session to “circumvent or defeat the purposes” of the Act. Miss.Code Ann. § 25-41-7 (Rev.2003). This Court has previously set forth factors to be considered where, as here, public bodies attempt to use a “social function” to circumvent or defeat the purposes of the Act. See Board of Trustees, 478 So.2d at 278, construing Miss.Code Ann. § 25-41-17. The majority provides an excellent analysis of the factors from Board of Trustees as applied to the facts here. Upon review of that analysis, I do not find this case at all difficult to decide. The defendants violated the Act when they denied the public and the press access to the meeting and when they refused to release the minutes of the meeting. No doubt, some public bodies in this state, from time to time, may use the labels, “executive session,” and “social gathering,” in artful attempts to circumvent the clear mandate of the Act. They shouldn’t, and they should be on notice that this Court has a duty to ensure that the legislative intent of the Act is followed by rejecting such attempts, creative though they may be. We will.

PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ. JOIN THIS • OPINION.

      . An egregious example of this immutable truth occurred only seven years following ratification of the Bill of Rights when, in 1798, Congress passed the Sedition Act which, among other things, made it a criminal act to speak out against the Congress.


author: THOMAS, J., SOUTHWICK, P.J.,

text:
    Cindy Ann (Scott) ROBERTS, Appellant, v. David Hale ROBERTS, Appellee.
    No. 2002-CA-00352-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.
    Certiorari Denied Feb. 5, 2004.

      H.R. Garner, Hernando, attorney for appellant.
    Steven Glen Roberts, attorney for appel-lee.
   MODIFIED OPINION ON MOTION FOR REHEARING

THOMAS, J.,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor. Cindy Ann Roberts filed for divorce against David Roberts in DeSoto County and a judgment for divorce was entered granting the divorce. Cindy later filed a petition to set aside the divorce for lack of jurisdiction. Her petition was denied. Aggrieved she asserts the following:

I. THE CHANCELLOR ERRED IN FAILING TO SET ASIDE THE JUDGMENT OF DIVORCE WHICH WAS VOID FOR LACK OF JURISDICTION IN VIOLATION OF MISS. CODE ANN. § 93-5-11 (SUPP.2002).

II. THE COURT ERRONEOUSLY HELD THAT THE APPELLANT WAS IN CONTEMPT OF COURT OF A VOID JUDGMENT.

III. THE COURT ERRED IN AWARDING ATTORNEY’S FEES AND EXPENSES FOR THE CONTEMPT OF A VOID ORDER AGAINST THE APPELLANT.

IV. THE COURT ERRED IN AWARDING ATTORNEY’S FEES AGAINST THE APPELLANT WHICH DID NOT MEET THE “MCKEE” STANDARDS.

Finding reversible error as DeSoto County Chancery Court lacked jurisdiction, we reverse and remand.

FACTS

¶ 2. David and Cindy Roberts were married in 1987 in Louisiana. They are the natural parents of two minor children. They established residency in Tate County where they separated in February of 1999. Cindy filed for divorce in Tate County and David filed an answer and counter complaint. The chancellor denied the Rob-ertses a divorce but granted custody of the two minor children to David.

¶ 3. Cindy Roberts moved to DeSoto County and filed for divorce there charging as grounds for divorce adultery, habitual cruel and inhuman treatment and irreconcilable differences. David Roberts executed a waiver of process, entering his appearance in DeSoto County. Cindy was awarded a divorce and attached to the divorce decree was the Tate County order referencing child custody along with a property and child support agreement. On March 27, 2000, a final decree for divorce with the Tate County order was entered in DeSoto County. The court adopted and approved the property settlement agreement entered by the parties.

¶ 4. On June 21, 2001, David Roberts filed a petition for citation of contempt against Cindy in the Chancery Court of DeSoto County for her failure and refusal to execute a quitclaim deed pursuant to the property settlement agreement. In response to David’s petition, Cindy filed a petition to set aside the divorce for lack of jurisdiction and other relief. On September 18, 2001, an order was entered finding the petition to set aside the divorce to be without merit. Cindy subsequently executed a quitclaim deed for her interest in the marital home. She was later found to be in contempt of the court’s previous order but purged herself from being held in contempt by executing the quitclaim deed; however, David was awarded attorney’s fees.

I. THE CHANCELLOR ERRED IN FAILING TO SET ASIDE THE JUDGMENT OF DIVORCE WHICH WAS VOID FOR LACK OF JURISDICTION IN VIOLATION OF MISS. CODE ANN. § 93-5-11 (SUPP.2002).

¶ 5. Cindy Roberts argues strict conformation of the statute is required. Cindy contends that even though she brought the action in DeSoto County and David waived process and voluntarily attempted to submit to the jurisdiction, jurisdiction cannot be agreed on. Cindy further argues that though this is an appeal based on improper venue for Title 93 purposes venue is integrated into jurisdiction and the rules for jurisdictional requirements apply. She claims this would render a judgment void.

¶ 6. Mississippi Code Annotated Section 93-5-11 (Rev.1994) addresses the filing of divorce complaints: Mississippi Code Annotated Section 93-5-11 is patterned after Section 2738 of the Code of 1942. If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted. If one party is not a resident of this state, then the complaint shall be filed in the county where the resident party resides. Miss.Code Ann. § 93-5-11 (Rev.1994). “This statute is not a mere statute of venue that may be waived but one of jurisdiction of subject matter of the suit.” Price v. Price, 202 Miss. 268, 274, 32 So.2d 124 (1947). “The words ‘or may be found at the time’, relative to the general statute, applies either to a non-resident of the State or to a citizen of this State who has no actual domicile or fixed place of residence.” Ross v. Ross, 208 So.2d 194, 196 (Miss.1968).

¶ 7. In domestic relations cases filed under Title 93 of the Mississippi Code of 1972, the Mississippi Supreme Court has held that if proper venue is lacking, a bill for divorce must be dismissed, not transferred. Price v. Price, 202 Miss. 268, 274, 32 So.2d 124, 126 (1947); Cruse v. Cruse, 202 Miss. 497, 500, 32 So.2d 355, 355 (1947) (emphasis added). If the court is without jurisdiction — subject matter or personal — no one is bound by anything the court may say regarding the (de)merits of the case. Petters v. Petters, 560 So.2d 722, 723 (Miss.1990). A valid judgment requires (1) jurisdiction of subject matter, or of parties and (2) due process of the law. Bryant v. Walters, 493 So.2d 933, 938 (Miss.1986). If a court lacks jurisdiction or the requirements of due process are not met, the judgment is void and must be vacated. Id. at 937-38.

¶ 8. In Duvall v. Duvall, 224 Miss. 546, 80 So.2d 752, 755 (1955), this Court said: “We consider the sole question of whether the court ha[s] jurisdiction of the subject matter.” “It is well settled that a judgment rendered by a court having no jurisdiction of the subject matter is void, not merely voidable, and may be attacked directly or collaterally, anywhere, and at any time. Such a judgment is a usurpation of power and is an absolute nullity.” Id. (citations omitted).

¶ 9. Based on a substantial amount of black letter law this Court must reverse the decision of the DeSoto County Chancery Court. The court exercised jurisdiction over the parties that it did not have. As a matter of law no judgment exists and therefore the case, in its entirety, must be dismissed. We are compelled to reverse and remand this case with instructions to the chancellor to dismiss.

¶ 10. However, before the chancellor dismisses this case, a hearing should be held to determine if there is justification for the imposition of sanctions against Cindy Roberts and/or the attorney who represented her in the DeSoto County divorce proceeding, which appears to have been a frivolous action. Mississippi Rule of Civil Procedure 11 allows for sanctions to be imposed for frivolous and harassing pleadings. The extreme waste of time and resources of this State and David Roberts was caused by Cindy Roberts’ attempted manipulation of the judicial system; unhappy with the contempt proceedings, but satisfied, until then, with the divorce. There can be no doubt of the authority of our trial courts to assess reasonable attorney fees when in the opinion of the court a motion or pleading is frivolous. “More substantively, a pleading or motion is frivolous vrithin the meaning of Rule 11 only when, objectively speaking, the pleader or movant has no hope of success.” Tricon Metals & Services, Inc. v. Topp, 537 So.2d 1331, 1335 (Miss.1989). “Frivolous filings impose substantial and unnecessary costs upon both litigants and the courts, and ultimately upon the public.” Id. If sanctions are ever proper, this is certainly one of those times.

¶ 11. The divorce action in DeSoto County appears to have been little, if any, short of frivolous, and therefore justifies consideration by the chancery court as to the appropriateness of sanctions pursuant to MRCP.

II. THE COURT ERRONEOUSLY HELD THAT THE APPELLANT WAS IN CONTEMPT OF COURT OF A VOID JUDGMENT.

¶ 12. A void judgment is just that, void. A litigant cannot be held in contempt of a void judgment. McKinney v. McKinney, 374 So.2d 230, 232 (Miss.1979).

III. THE COURT ERRED IN AWARDING ATTORNEY’S FEES AND EXPENSES FOR THE CONTEMPT OF A VOID ORDER AGAINST THE APPELLANT.

¶ 13. Attorney’s fees cannot be awarded as the court had no jurisdiction to hear the case; therefore, there is no judgment for Cindy to be held in contempt of and likewise no attorney’s fees from a contempt proceeding. That is not to say as we said before, on a hearing hereafter the trial court, if it finds, may award attorney’s fees to David if the trial court finds a Rule 11 violation.

¶ 14. In view of the disposition of issues one, two and three we need not address the remaining issue.

¶ 15. THE ORIGINAL OPINION IS WITHDRAWN, AND THIS OPINION IS SUBSTITUTED THEREFOR. THE JUDGMENT OF THE DESOTO COUNTY CHANCERY COURT IS REVERSED, RENDERED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPEL-LEE.

KING, P.J., BRIDGES, LEE, MYERS AND CHANDLER, JJ„ CONCUR. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., IRVING AND GRIFFIS, JJ.

SOUTHWICK, P.J.,

DISSENTING:

¶ 16. The chancellor held that Mrs. Roberts, the procurer of the divorce in the wrong county, was estopped from asserting its invalidity. I agree and therefore respectfully dissent to this reversal.

¶ 17. The majority is correct to reject precedents cited by Mr. Roberts that in many kinds of suits, unless error in venue is raised, the issue is waived. A divorce is treated differently. Other than for a divorce based solely on irreconcilable differences, when “the defendant be a resident of the state, the complaint shall be filed in the county in which such defendant resides....” Miss.Code Ann. § 93-5-11 (Supp.2002). A spouse’s “residence” under this statute has long been held to be the same as the person’s domicile. E.g., Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772, 775 (1938). This divorce instead was filed in the residence of the plaintiff-wife. The divorce was there granted without any objection. Under existing precedents, only the proper county in a contested divorce has jurisdiction. Price v. Price, 202 Miss. 268, 272, 32 So.2d 124, 126 (1947).

¶ 18. One reason for the significance of statutory venue is that the state constitution makes general statutes controlling as to changing venue for suits. Miss. Const art. 4, § 90(c) (1890). The legislature has established venue for chancery suits. Miss.Code Ann. §§ 11-5-1 and 11-5-3 (Rev.2002). It has also incorporated by reference the court-created Rules of Civil Procedure for a change of venue in cases in which a jury will be used. Miss.Code Ann. § 11-5-5 (Rev.2002). None of these just-cited statutes establish venue for divorce actions. Instead, that is controlled by Section 93-5-11. Statutory rules for change of venue may not constitutionally be altered by court rule.

¶ 19. This constitutional command does not answer whether a venue error can be waived. The Supreme Court in Price and later cases has given that answer. For the reasons there explained, proper venue is a jurisdictional issue. It therefore would not be subject to waiver.

¶ 20. Despite the constitution and the easelaw already cited, I find that the chancellor was correct in refusing to set aside the divorce that Mrs. Roberts herself filed for and obtained in the wrong county. Not permitting venue to be waived in divorce suits protects against late-discovered error by a defendant. What the chancellor first, and now this Court on appeal, must decide is whether the person who brought the suit is similarly always able to raise the same error. Precedents support that a void judgment can be attacked whenever, wherever and however the issue arises. Goodsell v. Delta & Pine Land Co., 72 Miss. 580, 18 So. 452, 453 (1895) (whenever and however); Hamilton v. Homer, 46 Miss. 378, 388 (1872) (whenever and wherever). What I cannot find is any case that holds that the judgment may be set aside by whomever brings the challenge to it. Instead, estoppel is applied even to challenges to void judgments.

¶21. I start with the key precedent that announced that bringing a divorce suit in the proper county is a jurisdictional issue. Price, 32 So.2d at 126. The Supreme Court found that none of its prior precedents resolved the matter. However, a “review of the authorities to the effect that a divorce suit brought in the wrong county goes to the jurisdiction, and is not a mere matter of venue, is found ih Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834, 130 A.L.R. 87, and the annotations in the volume last cited.” Price, 32 So.2d at 126. Since Haygood and the annotation are cited approvingly as the central authorities for the decision, we too should make a review of these sources for evidence of the breadth of the rule.

¶22. Haygood certainly supports the rule that Price drew from it. Oddly, the Haygood court quoted only the headnotes from a precedent in order to find that a divorce judgment was “void, for the reason that the husband could sue only in the county of his wife’s residence.” Haygood, 9 S.E.2d at 838, quoting a headnote in Odum v. Odum, 132 Ga. 437, 439, 64 S.E. 470, 471 (1909). However, the court in Haygood went on to discuss at some length two cases in which void judgments were not permitted to be set aside since the complaining parties were estopped:

In McConnell v. McConnell, 135 Ga. 828, 70 S.E. 647; Fuller v. Curry, 162 Ga. 293, 133 S.E. 244; the principles announced above were recognized, but on the principle of estoppel it was held that the defendant, who had participated in the divorce suit by acknowledging service and jurisdiction of the court, could not afterward come into equity and ask the affirmative relief of setting aside the verdicts and decree for want of jurisdiction. In the McConnell case it was said that in the circumstances the plaintiff in the equity suit did not come with clean hands. This is different from the instant case, where no such facts appear upon which to deny the defendant entry to the court of equity.

Haygood, 9 S.E.2d at 839. A later Georgia case relied on these same precedents, the ones that also were foundational for Mississippi’s Price decision, to mark this distinction:

[Though] a void judgment may be attacked in any court and by any person, these Code sections must be construed in the light of equally well established principles of law and equity to the effect that “He who would have equity must do equity”; that he who comes into a court of equity with unclean hands must be denied relief; that one will not be permitted to take advantage of his own ..wrong....

Musgrove v. Musgrove, 213 Ga. 610, 100 S.E.2d 577, 578 (1957) (citations omitted).

¶ 23. Those who wished to understand the Price reasoning were referred not only to Haygood but also to “the annotations in the volume last cited.” Price, 32 So.2d at 126, referring to Annotation, “Decree of Divorce or Separation as Subject to Attack Because Suit was Brought in Wrong County or Judicial District,” 130 A.L.R. 94 (1941). In this ten-page annotation was a page and a half section on estoppel. Id. at 101-03. That section was introduced with the statement that in “some circumstances, it has been held that the party attacking a decree of divorce because it was filed in the wrong county or judicial district is estopped to do so.” Id. at 101. All the cases that are then discussed, which include McConnell, found that there was estoppel.

¶ 24. The Price court did not necessarily endorse everything in the two principal authorities that it cited, but at least it can be said that the sources for the Price rule clearly embraced estoppel.

¶ 25. Estoppel of a plaintiff who is responsible for procuring a void judgment has been the rule in Mississippi. One important precedent on this issue is Harrison v. G & K Investment Co., 238 Miss. 760, 115 So.2d 918 (1959). There, ownership of oil and gas rights would be determined by the validity of a divorce twenty-five years prior to the suit. Joseph Knox and Alpha Bryant were married in 1923. Mrs. Knox was committed to a mental hospital in 1928. The next year, her husband married another woman without acquiring a divorce. In 1930, Mr. Knox procured the signature of his incompetent first wife to divorce pleadings. He was then granted a divorce based on her being-insane at the time of their marriage. Mr. Knox almost immediately underwent a second marriage to the woman he had attempted to wed the previous year. His first wife, Alpha Knox, died in 1934 and left no surviving children or other spouse. Harrison, 115 So.2d at 920.

¶26. Many years after that, in 1958, suit was brought because of mineral interests that the first Mrs. Knox had owned when she died, interests whose value was not appreciated for decades. The ex-husband or widower, as the case would decide, argued that the divorce has been obtained only because of criminal charges brought against him for bigamy. The argument followed that the divorce was void because it was based on coercion. The court did not address the factual validity of that assertion, but only held that “a husband could not have a divorce decree set aside where it was rendered at his instance, with knowledge, actual or presumed, of its irregularity.” Id. at 923. To support that statement, the court relied on a precedent that dealt with a potentially defective notice by publication, which was “not void, having been rendered by a court of general jurisdiction.” Cratin v. Cratin, 178 Miss. 881, 174 So. 255, 255 (1937), cited in Harrison, 115 So.2d at 923.

¶ 27. Then the court made this statement about void decrees, not just irregular ones:

It is true that our cases hold that an absolute void decree, order or judgment may be assailed anywhere on collateral attack, but the right to do so is limited to those who are not estopped by affirmative conduct, laches or some other equitable doctrine.

Harrison, 115 So.2d at 923. This language is dicta, as there was no finding that the 1930 divorce was void because of coercion.

¶ 28. The Harrison court did not identify any precedents on estoppel. Examining some of the prior caselaw, I find one decision cited in Harrison for a different proposition to contain this statement: “a wife was estopped to claim a share in her late husband’s estate, as a widow, although a divorce obtained from her in a suit brought by the guardian for the insane husband was absolutely void, [since] she had accepted alimony under the decree and had contracted a subsequent marriage.” Minor v. Higdon, 215 Miss. 513, 529, 61 So.2d 350, 355-56 (1952), cited in Harrison, 115 So.2d at 922-23. Citing several authorities, the Supreme Court in another precedent found that “it is settled law here, that the acceptance of the distributive share of the purchase money realized on a sale for partition under a void decree estops.” Keel v. Jones, 93 Miss. 244, 47 So. 385, 385 (1908).

¶29. The source of the estoppel in some of the precedents is the receipt of money or other direct benefits under a void decree. Estoppel also arises, though, from the “clean hands” doctrine as noted in the Georgia McConnell case used in the precedent on which the Mississippi Price decision relied.

¶ 30. A later decision paraphrased Harrison with these words:

As a general rule, a void decree, order or judgment may be assailed anywhere on a collateral attack, but the right to do so is limited to those who are not es-topped by affirmative conduct which caused or resulted in the decree sought to be set aside.

Krohn v. Migues, 274 So.2d 654, 657 (Miss.1973). In Krohn, the natural mother of a minor child sought to use habeas corpus proceedings to overturn an adoption decree. The case turned on whether the failure of the mother to include the child’s natural father in the earlier adoption proceedings rendered the judgment void. The natural mother’s failure to join the father would have estopped her, but then the adoptive mother also failed to challenge his exclusion despite her knowledge of him. The estoppels cancelled each other and the voidness of the judgment could be shown. Krohn, 274 So.2d at 658. I find it to be critical that there was a third individual whose absence created the voidness. To estop either participant would cause the fraud on the missing father to remain uncorrected: The first judicial opportunity to provide redress needed to be seized.

¶ 31. I do not find that the principle of double estoppel should extend beyond facts such as in Krohn. Both spouses here actively participated in the divorce litigation. Some of the Georgia precedents relied upon in Price would estop both parties who participated in a divorce gained in the wrong county from setting it aside. E.g., McConnell, 70 S.E. at 647. We need not address whether the defendant in a divorce would be estopped from seeking later to set it aside. Our issue is whether the plaintiff-spouse who brought the suit would be. There is no missing third party here as in the Krohn adoption proceedings. Krohn apparently was a collusive lawsuit in which the two parties agreed not to notify the father in order to facilitate the adoption. I would conclude that it is the missing father’s interests in Krohn that required consideration of the fact that the decree was void.

¶32. To determine if estoppel should apply here, we need to determine the core requirements for the doctrine. The Supreme Court has declared the “modern definition of an estoppel is said to be: ‘The preclusion of a person from asserting a fact, by previous conduct inconsistent therewith, on his own part or the part of those under whom he claims, or by an adjudication upon his rights which he cannot be allowed to call in question.’ ” Reliance Mfg. Co. v. Barr, 245 Miss. 86, 99, 146 So.2d 569, 574 (1962) (quoting Bouviee’s Law DiCtionary, 1929 Ed., p. 365).

¶ 33. It is true that estoppel often is based on concealment of facts. “The essential elements of estoppel are conduct and acts, language or silence, amounting to a representation or concealment of material facts, with knowledge or imputed knowledge of such facts, with the intent that representation or silence, or concealment be relied upon, with the other party’s ignorance of the true facts, and reliance to his damage upon the representation or silence.” Crowe v. Fotiades, 224 Miss. 422, 443-44, 80 So.2d 478, 486 (1955). Here there was no concealment, as the complaint for divorce stated that the defendant was a resident of Senatobia, which is in Tate County. The jurisdictional issue apparently was simply overlooked by the trial court. Yet as the Supreme Court has noted, “estoppels have been and are the subject of many definitions.” Perrien v. Mapp, 374 So.2d 794, 797 (Miss.1979). I find compelling on the issue before us, that the party who through ignorance or boldness brought the suit in the wrong county would be using her own error to seek the return of something she had earlier asked the court to take, namely, her marriage.

¶ 34. I do not find that the chancellor’s failure to notice the jurisdictional defect alters the operation of estoppel. The plaintiff asserted that the court had jurisdiction even though an alert reading of her complaint would have revealed that the court did not. The court proceeded to grant her what she requested that she be given. The former husband has since relied on that divorce, which the former wife seeks to improve upon in this new suit.

¶ 35. To see if the principle of estoppel is consistent with the Mississippi decision in Price (the case holding void a divorce decree in the wrong county) and its offspring, I have examined Price and the eases that have cited it. Price itself was not a case in which estoppel was relevant. The divorce complaint had been dismissed because it was filed in the wrong county. The petitioning spouse appealed. The Supreme Court noted that a decree of divorce would have been void, but there was no divorce decree to set aside. Price, 32 So.2d at 125.

¶ 36. There are only eight Mississippi divorce cases that have cited Price. Three of them, like Price itself, were appeals of the dismissal of complaints not brought in the defendants’ home counties. Stark v. Stark, 755 So.2d 31 (Miss.Ct.App.1999); Ross v. Ross, 208 So.2d 194 (Miss.1968); Cruse v. Cruse, 202 Miss. 497, 32 So.2d 355 (1947). No potential for estoppel there.

¶ 37. Two of the cases discussed the issue but found that the divorce action had been brought in the proper county. Miller v. Miller, 323 So.2d 533 (Miss.1975); Carter v. Carter, 278 So.2d 394 (Miss.1973). Again, no potential for estoppel arose.

¶ 38. Three others cited Price for propositions other than that the decree was void if the divorce action is filed in a county other than that of the defendant’s residence. Joiner v. Joiner, 739 So.2d 1043 (Miss.Ct.App.1999); Wells v. Roberson, 209 So.2d 919 (Miss.1968); Moran v. Moran, 252 Miss. 890, 173 So.2d 916 (1965).

¶ 39. The only court that has discussed Price in a fact situation such as we have before us was an intermediate Louisiana appellate court, which was considering whether to give full faith and credit to a Mississippi divorce. Porter v. Hawkins, 240 So.2d 912, 913 (La.Ct.App.1970). There, the spouse seeking to set the divorce aside had been the defendant in the Mississippi action. A contested divorce had been granted to the plaintiff-husband in Madison County, Mississippi, when that was not the county of residence for either spouse. The Louisiana court agreed that on these facts, the divorce would be set aside. This may be inconsistent with the Georgia McConnell case, relied upon in the precedents cited in Price, which would es-top either spouse who actively participated in the earlier divorce. However, an equally reasonable application of estoppel is to limit it to the party who brought the action in the wrong county.

¶ 40. Many divorce cases have approved the doctrine of estoppel though not necessarily applied it. Most of the divorce decrees in the following precedents were simply invalid: Kolikas v. Kolikas, 821 So.2d 874 (Miss.Ct.App.2002) (no estoppel of defendant in divorce who had not indicated reliance on decree); Scribner v. Scribner, 556 So.2d 350 (Miss.1990) (estop-pel because of remarriage in rebanee on divorce); Zwerg v. Zwerg, 254 Miss. 8, 179 So.2d 821 (1965) (estoppel to assert invalidity of decree because of admitted cohabitation after it was entered); Joy v. Miles, 190 Miss. 255, 199 So. 771 (1941) (decree abegedly obtained by husband without wife’s knowledge, but wife estopped to set aside because she remarried); Cratin v. Cratin, 178 Miss. 881, 174 So. 255 (1937) (“may become estopped from complaining of a defective ... decree by accepting the benefit thereof’); Hester v. Hester, 103 Miss. 13, 60 So. 6 (1912) (estoppel from long acquiescence).

¶ 41. My concern is that parties not misuse the court system. The purpose of the related doctrine of judicial estoppel, which is not directly applicable, is to prevent parties from playing “ ‘fast and loose with the courts’ which has been emphasized as an evil the courts should not tolerate. Scarano v. Central Railroad Co., 203 F.2d 510, 513 (3d Cir.1953). The basic premise behind the doctrine is that parties should not be permitted to assert inexplicably contrary positions in separate lawsuits.” Illinois Central RR. Co. v. Haymer, 96-CA-01234 (Miss.Ct.App. Oct. 27, 1998) (unpublished opinion). Later in this opinion, we stated “what this doctrine of judicial estoppel is trying to prevent is the misuse of the courts by inconsistent representations, in which litigants choose case by case what representations may do them the most good.”

¶ 42. In the divorce matter before us, I find fast and loose practices. So does the majority. The difference is that I find a more direct manner in which to deal with the sleight-of-hand that is being practiced before our eyes. It is to deny the relief that Mrs. Roberts requests.

¶43. Leaving a void judgment untouched should not be viewed as a revolutionary concept. Estoppel to complain of the judgment has the same effect as an absence of “standing.” Not everyone can complain about what a court has done, no matter how errant it might be. A stranger to the judgment, i.e., someone whose interests are in no way affected, generally cannot. Similarly, the person who intentionally filed in the wrong county, thereby causing the void judgment to be entered, must suffer the consequences unless there is someone else willing to take up the issue. The only person here complaining is the former plaintiff. Her own actions gained her no right to complain.

¶ 44. Since this is an effort to undo a divorce, the image the attempt conjures up is the reverse of “having made your bed, you must lie in it.” The effect is the same, though. The person who brought the suit that unmade the bed cannot later assert her own error in an attempt to remake it.

McMILLIN, C.J., IRVING AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


author: CHANDLER, J.,

text:
    Carl MUSGROVE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00487-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Robert H. Koon, Gulfport, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before McMILLIN, C.J., MYERS, CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Carl Musgrove was convicted of sexual battery and sentenced to serve a term of fifteen years’ imprisonment.-' He appeals asserting that the Circuit Court of Harrison County erred in denying his motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. Finding no error, we affirm.

DISCUSSION

¶2. A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). A reviewing court must consider as true all credible evidence consistent with the defendant’s guilt, and the State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. This Court may only reverse where, with respect to one or more of the elements of the offense, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 3. A motion for a new trial challenges the weight of the evidence, and implicates the discretion of the trial court. McClain, 625 So.2d at 781. The trial court should only grant a new trial motion when 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. Wetz, 503 So.2d at 812. This Court, on appeal, will reverse and order a new trial only upon a determination that the trial court abused its discretion,. accepting as true all evidence favorable to the State. Id.

¶ 4. In this case, the victim, J.S., testified that Musgrove engaged in sexual intercourse with her without her consent on the evening of Friday, September 6, 1996. J.S. was thirty-seven years old at the time of crime, and was born with cerebral palsy, which rendered her unable to walk. She was a resident of Saraland, which is a retirement home for elderly and disabled people, where Musgrove also resided in an apartment with -his grandmother. J.S. testified that Musgrove sometimes “did her hair.” On the evening of the crime, J.S. was asleep in her nightgown when she was awakened by Musgrove knocking on her apartment door. She let Musgrove into her apartment, and after he had washed her hair, Musgrove carried her to a couch where they watched television for approximately one hour. As they sat on a couch, Musgrove got on top of J.S., removed her panties and began having sex with her. She testified that she told him that she had ■a boyfriend and asked him to leave. She also testified that she said, “I don’t want you to hurt me,” and was afraid of Mus-grove. Musgrove ignored her protests and continued having sex until he ejaculated. After which, he told her not to tell anyone what he had done. J.S. testified that she was afraid of Musgrove, and consequently she did not tell anyone of the assault until the following Monday, when she told Saraland’s assistant manager, Rose Harrien, that she had been “raped.”

¶ 5. Musgrove contends that no physical evidence supported J.S.’s testimony, and the lack of such evidence, coupled with inconsistencies in her testimony, are insufficient to support the verdict. Mus-grove specifically contends that the evidence could not support a finding of either penetration or lack of consent. There was no physical evidence to show that Mus-grove committed the sexual battery. However, where a victim’s testimony is not so discredited or contradicted by other evidence that it becomes unbelievable, that testimony alone is sufficient to sustain a guilty verdict. Collier v. State, 711 So.2d 458(¶ 15) (Miss.1998). See also Mabus v. State, 809 So.2d 728(¶16) (Miss.Ct.App.2001); Riley v. State, 797 So.2d 285(¶10) (Miss.Ct.App.2001). In this case, the record shows that while J.S. had a disability and little education, she did convey a consistent, credible account of what occurred on the evening of the crime. J.S. testified to penetration, “[h]e stuck his private up in me.” J.S. testified to lack of consent, “I said, you supposed to come and do my hair, I said, not to have sex with me.” She further testified, “I was fighting him off.” Other witnesses, including Harrien and two investigating police officers, testified that she was distraught and acting consistently with regard to being a victim of sexual battery.

¶ 6. Based on this record, there was evidence tending to support all elements of the crime. Consequently, the evidence was sufficient to return a guilty verdict, and the circuit court correctly denied the motion for a JNOV. A motion for a new trial is directed to the circuit court’s discretion, and the standard is whether the evidence is so slight that it would be unjust to allow the conviction to stand. See Wetz, 503 So.2d at 812. In this case, the circuit court viewed the witnesses, and was better situated to judge credibility than an appellate court viewing the cold record. Moreover, while Musgrove was under no compunction to testify, it cannot escape notice that his only witness was a forensic scientist from the Mississippi Crime Lab, and the substance of her testimony was simply the lack of physical evidence. Musgrove’s defense did not contradict J.S.’s testimony. Given these facts, it cannot be said that the circuit court abused its discretion in denying the motion for a new trial.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. HARRISON COUNTY IS ASSESSED ALL COSTS OF THIS APPEAL.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR.


author: IRVING, J.,

text:
    Charles TORNS, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00431-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2003.
    Rehearing Denied Feb. 24, 2004.

      Charles Torns, Jr., Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorneys for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   IRVING, J.,

for the Court:

¶ 1. Charles Torns filed a pro se motion for post-conviction collateral relief alleging that his convictions and sentences were unconstitutional and that he was entitled to relief on the basis of due process and equal protection. The trial court denied Torns’s motion as having no merit. Feeling aggrieved, Torns appeals and argues that the trial court erred in denying his motion.

¶ 2. We determine that the trial court did not have jurisdiction in this case. Consequently, Torns’s appeal conferred no jurisdiction upon this court. Therefore, we dismiss this appeal.

FACTS

¶ 3. On September 30, 1993, Torns was convicted by a Hinds County jury of one count of mail fraud and one count of uttering a forgery. In sentencing Torns as a habitual offender, the circuit court used, as a predicate for sentence enhancement, a September 1986 conviction that Torns had acquired through his plea of guilty to uttering a forgery. Consequently, the circuit court sentenced Torns to terms of fifteen and five years, both to be served concurrently. Upon Torns’s appeal of this decision, this Court affirmed his convictions. Torns v. State, 687 So.2d 770 (Miss.Ct.App.1996).

¶ 4. On March 29, 2001, Torns filed a motion for post-conviction relief in the Circuit Court of Hinds County. The motion’s heading only listed his 1986 conviction. In his motion, Torns challenged his 1986 conviction but also attacked the enhanced sentences he received for his 1993 convictions. The trial court reviewed Torns’s motion on April 3, 2001, and considered it to be a challenge to both his 1986 and 1993 convictions. It held that Torns was statutorily estopped from challenging two judgments in the same motion for post-conviction relief. The trial court declined to consider Torns’s motion as it related to his 1993 convictions and dismissed that portion of the motion without prejudice. The trial court also found that, since Torns’s 1993 convictions had been appealed and affirmed by this Court, he could not file a petition for post-conviction collateral relief without first getting permission from the Mississippi Supreme Court. See Miss. Code Ann. § 99-39-7 (Supp.2003). As to the 1986 conviction, the trial court determined that consideration of it was barred by the three-year statute of limitations. Consequently, it dismissed with prejudice Torns’s motion for relief regarding his 1986 conviction. Torns subsequently filed a motion to alter or amend the circuit court’s April 3, 2001 judgment; however, the circuit court denied the motion as being untimely filed.

¶ 5. On May 15, 2001, Torns filed in the Mississippi Supreme Court a motion for leave to proceed in post-conviction relief. While this motion contained the same verbatim challenges as did Torns’s post-conviction relief motion before the trial court, this motion listed both his 1986 and 1993 convictions in its heading. By an order of August 9, 2001, our supreme court determined that Torns’s motion was a challenge to the validity of his 1986 guilty plea. It consequently denied Torns’s motion after holding that Torns was required to first present his challenge to the trial court where the conviction occurred. The supreme court did not address Torns’s 1993 convictions or the timeliness of his motion regarding the 1986 conviction.

¶ 6. On August 30, 2001, Torns filed a second motion for post-conviction relief in the Circuit Court of Hinds County. Unlike his first motion for post-conviction relief, his second motion’s heading contained both his 1986 and 1993 convictions. While incorporating the same challenges listed in his initial motion, the second motion differed only as to the inclusion of an argument that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), constituted an “intervening decision” for purposes of post-conviction relief as relating to his 1986 conviction and sentence.

¶ 7. On February 20, 2002, the circuit court issued an order denying Torns’s second motion for post-conviction relief and dismissing the motion with prejudice. The order stated that “it plainly appears from the face of the motion in the present case that the Petitioner, after careful deliberation, is not entitled to the relief requested and the motion should be denied.”

DISCUSSION AND ANALYSIS OF THE ISSUES

¶ 8. As he has consistently done with his previous two motions before the circuit court and the single motion before the Mississippi Supreme Court, Torns challenges both his 1986 and 1993 convictions. Since Torns never obtained permission from our supreme court to file a post-conviction relief motion with respect to his 1993 convictions, we have no jurisdiction to address his allegations regarding those convictions. See Miss.Code Ann. § 99-39-7 (Supp.2003). Therefore, we will not discuss them in this opinion.

¶ 9. In regards to Torns’s 1986 conviction, the record clearly indicates that the Circuit Court of Hind County issued its judgment of conviction on September 25, 1986, upon Torns’s submission of a plea of guilty. Therefore, it was incumbent upon Torns to file his motion for post-conviction relief in that court within three years after entry of the judgment of conviction. However, Torns did not file his motion with the trial court until March 29, 2001, approximately fourteen and a half years after his 1986 conviction. On April 3, 2001, the circuit court found that Torns’s motion was not filed within the statute of limitations and dismissed the motion with prejudice. Torns then had thirty days to file an appeal of the judgment; however, he did not file an appeal until March 18, 2002, over eleven months after the circuit court had denied his motion for post-conviction relief. See M.R.A.P. 4(a). Therefore, Torns’s pursuit of this appeal in regard to his 1986 conviction is untimely, and this Court has no jurisdiction to address the appeal. See Mosby v. State, 880 So.2d 661 (¶ 6) (Miss.Ct.App.2002).

¶ 10. We are aware that Torns filed a second post-conviction relief motion, making essentially the same allegations as he had made in the first motion and that the trial court dismissed this second motion on February 20, 2002, without making any reference to it being a second or successive post-conviction relief motion. Even treating this appeal as an appeal from that order, we must still find that the trial court was correct in dismissing Torns’s motion because the filing of such motion was a second post-conviction relief motion which is barred by Mississippi Code Annotated section 99-39-23(6) (Supp.2003).

¶ 11. We further note that Torns has not been in custody on account of his 1986 conviction since December 21, 1987. He is presently in the custody of the Mississippi Department of Corrections as a result of his 1993 convictions. Because he is not serving any sentence under the 1986 conviction, he is also barred from bringing a post-conviction relief motion regarding that conviction. See Miss.Code Ann. § 99-39-5 (Rev.2000). Therefore, the trial court was without jurisdiction to consider Torns’s post-conviction relief motion challenging his 1986 conviction, and since the trial court was without jurisdiction, we are likewise lacking in jurisdiction. See Graves v. State, 822 So.2d 1089, 1091(¶ 6) (Miss.Ct.App.2002) (“no jurisdiction is conferred upon this Court if none was in the court below”).

¶ 12. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS ARE TAXED TO HINDS COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . According to the trial judge's September 26, 1986 order, Torns was initially sentenced to a suspended term of five years in the custody of the Mississippi Department of Corrections, with three years' supervised probation for his conviction of uttering a forgery. However, on December 21, 1987, the trial judge amended Torns's sentence to fourteen months in the custody of the Mississippi Department of Corrections with credit for time served from October 22, 1986, to the date of entry of the amended order, December 12, 1987. Therefore, Torns's sentence expired on December 12, 1987, upon the issuance of the amended order.