author: WALLER, Justice,

text:
    In the Matter of the Enlargement and Extension of the MUNICIPAL BOUNDARIES OF the CITY OF SOUTHAVEN, Mississippi. City of Horn Lake v. City of Southaven, Mississippi.
    No. 2002-AN-00563-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2003.
    Rehearing Denied Feb. 12, 2004.

      Billy C. Campbell, Jr., William Austin Baskin, Jerry R. Wallace, attorneys for appellant.
    Jerry L. Mills, Ridgeland, Ronald Louis Taylor, Southaven, attorneys for appellee.
    Before SMITH, P.J., WALLER and CARLSON, JJ.
   WALLER, Justice,

for the Court.

¶ 1. The City of Horn Lake, Mississippi, appeals from the Chancery Court of DeSo-to County’s approval of the annexation of 310.24 acres in DeSoto County (the “Proposed Annexation Area” or “PAA”) by the City of Southaven, Mississippi. The first two issues raised by Horn Lake pertain to an agreement entered into by the city administrations of Horn Lake and Southa-ven wherein Southaven agreed not to object to an annexation of the PAA by Horn Lake and declared the property to be in Horn Lake’s natural path of growth. Horn Lake argues that, based on this agreement, equitable estoppel and judicial estoppel should bar Southaven’s annexation of the PAA. Horn Lake also argues that the chancellor’s decision to allow Sou-thaven’s annexation of the PAA was manifestly wrong and was not supported by substantial and credible evidence. Finding no merit in these issues, we affirm the chancellor’s decision to allow Southaven to annex the PAA.

FACTS

¶ 2. In the 1990s, Horn Lake, which lies to the west of 1-55, and Southaven, which lies to the east of 1-55, both experienced massive growth due to their proximity to the Memphis, Tennessee, metropolitan area. Horn Lake and Southaven each annexed large tracts of land to accommodate the residential and commercial growth. During this growth period, Southaven acquired, inter alia, some land which lay west of 1-55, but east of United States Highway 51.

¶ 3. In 1997, Southaven filed proceedings to annex certain land west of Highway 51. After five days of trial in early 1998, Sou-thaven and Horn Lake entered into an agreement whereby Southaven agreed not to annex the land west of Highway 51 and would “not object to any future annexation filed by the City of Horn Lake to annex any lands ... West of the West right of way of Interstate 55.” Southaven also stipulated that “the aforesaid tracts lie in the path of growth of the City of Horn Lake and should be considered as a part of Horn Lake’s annexation reserve area.”

¶ 4. After the agreement was made, Horn Lake annexed land lying to the south and west of Horn Lake, but did not seek annexation of the PAA in question.

¶ 5. Southaven filed annexation proceedings in 2001 to acquire the 310.24 acres which are the subject of this appeal. The 310.24 acres lies to the south and west of Southaven and are bisected by Highway 51. A little over half of the entire tract already lay within Southaven’s city limits. The PAA is owned in its entirety by the College Road Land Company and is described as “completely unimproved land consisting of uninhabited pasture land with scattered trees and rolling hills.” The owners requested Southaven to annex the property, because they wanted to develop the property as a single unit under the regulations of a single jurisdiction.

¶ 6. Horn Lake filed a motion to dismiss based on Southaven’s stipulation that land west of the 1-55 west right-of-way was in Horn Lake’s path of growth, and its agreement that it would not object to Horn Lake’s future annexation of land lying west of Highway 51. Southaven responded, stating that it was not bound by the 1998 agreement because it had been entered into by a previous administration which ended its term of office on June 30, 2001. Horn Lake countered that the “previous” administration was comprised of exactly the same people as the “current” administration, and that equity demanded that Southaven abide by the 1998 agreement.

¶ 7. In denying Horn Lake’s motion to dismiss, the chancellor noted he could not find, and Horn Lake had not cited, any authority which states that if the same city administration is reelected for a successive term, the principle that one city administration cannot bind a succeeding administration does not apply. The chancellor went on to find that Southaven’s annexation of the PAA was reasonable under the totality of the circumstances and in the best interest of the owners. From these orders, Horn Lake appeals.

DISCUSSION

STANDARD OF REVIEW

¶8. For questions of law, we employ a de novo standard of review and will only reverse for an erroneous interpretation or application of the law. T.T.W. v. C.C., 839 So.2d 501, 503-04 (Miss.2003).

¶ 9. Our standard of review for annexation is very limited. We may only reverse the chancery court’s' findings as to the reasonableness of an annexation if the chancellor’s decision is manifestly wrong and is not supported by substantial and credible evidence. Enlargement and Extension of Mun. Boundaries of City of Madison v. City of Madison, 650 So.2d 490, 494. (Miss.1995). We also stated “[wjhere there is conflicting, credible evidence, we defer to the findings below.” Bassett v. Town of Taylorsville, 542 So.2d 918, 921 (Miss.1989), “Findings ,of fact made in the context of conflicting, credible evidence may not be disturbed uníqss this Court can say.that from all the evidence that such findings are manifestly wrong, given the weight of the evidence.” Bassett, 542 So.2d at 921. “We only reverse where the chancery court has employed erroneous legal standards or where we are left with a firm and definite conviction that a mistake has been made.” Id.

I. WHETHER EQUITABLE ES-TOPPEL SHOULD BAR SOU-THAVEN’S ANNEXATION OF THEPAA.

¶ 10. Equitable estoppel is a doctrine “by which a person may be precluded by his act or' conduct, or silence when it is his duty to speak, from asserting a right he " otherwise would have.” BLACK’S LAW DICTIONARY 373 (6th ed. abr. 1991). A party asserting equitable estop-pel must prove a(l) belief and reliance on some representation; (2) change of position as a result of the representation; and (3) detriment or prejudice caused by the change of position. Mound Bayou School Dist. v. Cleveland School Dist., 817 So.2d 578, 583 (Miss.2002); Covington County v. Page, 456 So.2d 739, 741 (Miss.1984).

A. Whether Annexation is a Discretionary Act or a Ministerial Act

111Í. Southaven contends that neither equitable nor judicial estoppel apply because, where the act at issue is a discretionary one instead of a ministerial one, one city' administration cannot bind succeeding city administrations. Biloxi Firefighters Assoc. v. City of Biloxi, 810 So.2d 589, 593 (Miss.2002) (citing American Oil Co. v. Marion Co., 187 Miss. 148, 192 So. 296, 299 (1939); Tullos v. Town of Magee, 181 Miss. 288, 179 So. 557, 558 (1938); Edwards Hotel & City R. Co. v. City of Jackson, 96 Miss. 547, 51 So. 802, 805 (1910)).

¶ 12. Wé have never determined whether the power to annex is discretionary or ministerial, but the statute conferring the power to annex uses permissive language, not mandatory: “When any municipality shall desire to enlarge or contract the boundaries thereof by adding thereto adjacent unincorporated territory and, “In the event the municipality desires to enlarge such boundaries.... ” Miss.Code Ann. § 21-1-27 (Rev.2001) (emphasis added). The use of this permissive language leads to the conclusion that the power to annex is a discretionary act, not a mandatory act. Therefore, Biloxi Firefighters and the other cases would apply to an agreement whereby a city administration agrees not to annex a certain parcel of land, and that agreement would not be binding on successive administrations.

¶ 13. On February 8, 2000, the landowners wrote a letter to the DeSoto County Planning Commissioner in which they stated that they “intend[ed] to honor the current non-aggression agreement between Southaven and Horn Lake signed in 1998.” We find that this letter is without significance because the “non-aggression agreement” was not valid after Southa-ven’s city elections in 2001.

B. Limits on Equitable Estoppel

¶ 14. Horn Lake states that equitable estoppel is not limited by the precedent set out above. Yet at least one state has found that equitable estoppel does not apply where a governmental entity claims sovereign immunity, see, e.g., Indiana Dep’t of Envtl. Mgm’t v. Conard, 614 N.E.2d 916, 921 (Ind.1993), except where there is “clear evidence that [the government’s] agents made representations upon which the party asserting estoppel relied.” West Publ’g Co. v. Indiana Dep’t of Revenue, 524 N.E.2d 1329, 1333 (Ind. Tax Ct.1988). However, the party claiming equitable estoppel against a governmental entity “must show that estoppel is not inconsistent with the public interest, and this interest must be weighed and balanced against the equities of the circumstances.” Muncie Indus. Revolving Loan Fund Bd. v. Indiana Const. Corp., 583 N.E.2d 769 (Ind.Ct.App.1991).

¶ 15. The public interest for Southaven to annex the PAA is without question. Southaven a growing by leaps and bounds, and it needs more land in an area where land is at a premium. The cities of Sou-thaven, Horn Lake and Olive Branch are all jockeying for more land where undeveloped land is increasingly scarce. Therefore, Horn Lake cannot show that estoppel “is not inconsistent with the public interest:”

¶ 16. Horn Lake claims that it detrimentally relied upon the agreement because, believing that the PAA would eventually be annexed, it intentionally chose not to seek to annex the PAA when it had the opportunity to do so. We find this contention to be without merit because Horn Lake, which seeks equity, did not take affirmative steps to protect its rights under the Agreement. Horn Lake had a window of opportunity to annex the PAA and it did not act. Weighing the equities, we find that Horn Lake was “harmed” not by Southaven, but by its own negligence. This claim is without merit.

II. WHETHER JUDICIAL ESTOP-PEL SHOULD BAR SOUTHA-VEN’S ANNEXATION OF THE PAA.

¶ 17. Judicial estoppel is a doctrine of law applied by a trial court to a situation where a party asserts one position in a prior action or pleading but then seeks to take a contrary position to the detriment of the party opposite. Mississippi Power & Light Co. v. Cook, 832 So.2d 474, 482 (Miss.2002); Mauck v. Columbus Hotel Co., 741 So.2d 259, 264 (Miss.1999); Skipworth v. Rabun, 704 So.2d 1008, 1015 (Miss.1996). As we have stated:

[T]he doctrine “is based on expedition of litigation between the same parties by requiring orderliness and regularity in pleadings.” “[J]udicial estoppel will'be applied in civil cases where there is multiple litigation between the same parties and one party knowingly ‘assert(s) a position inconsistent with the position in the prior’ litigation.” However, ... where the first position asserted was taken as a result of mistake, judicial estoppel should not be invoked.

Mauck, 741 So.2d at 264-65 (citations omitted).

¶ 18. Horn Lake argues that Southaven is judicially estopped from annexing the PAA because of the Agreement. Horn Lake alleges that the Agreement was entered in Cause No. 95-10-1199 in the Chancery Court of DeSoto County, but a review of the record does not support this claim. No copy of the Agreement included in the record has the style of a case or a civil action number. The copies of the Agreement included in the record show only the signatures of representatives from Southaven and Horn Lake and do not show the signature of a judicial officer. Southaven does not- address this issue.

¶ 19, For the sake of argument, consent decrees cannot ordinarily be modified without agreement by all sides. Weeast v. Borough of Wind Gap, 153 Pa.Cmwlth. 330, 621 A.2d 1074 (1993). Nevertheless, municipalities that unilaterally request to be let out of an old consent decree may be given special consideration on the ground that an earlier city administration cannot bind succeeding administrations. Evans v. City of Chicago, 10 F.3d 474 (7th Cir.1993). Rule 60(b)(5) of the Mississippi Rules of Civil Procedure allows for relief from a judgment or order where “it is no longer equitable that the judgment should have prospective application.” Evans includes a worthwhile discussion of consent decrees and governmental entities ■and will be reproduced here at length:

Although the decree purports to last for all time — and the district court’s decision refusing to vacate the decree ... reflects a belief that the commitments ought to run perpetually — democracy does not permit public officials to bind the polity forever. What one City Council enacts, another may repeal; what one mayor decrées during his four-year term, another may revoke. Today’s lawmakers have just as much power to set public policy as did their predecessors. “Chicago” speaks through its elected representatives, and the people are free to upset even the most enlightened policies of earlier times. The current may- or wants to be free of his predecessor’s commitment, concluding that more flexibility over budgets will promote the public welfare. People of good will could be on either side- of this disagreement; each mayor may have correctly perceived the needs of the moment.
Governments are in this respect unlike corporations or other contracting parties. A corporate board of directors may enter into commitments that continue after new directors take office; a legislature may not. True, governments may form contracts (for example, to build a new road or repay a loan) and must keep these commitments by- virtue of the contract clause of the Constitution, Art. I, § 19, cl. 1. But temporary officeholders may not contract away the basic powers of government to enact laws — or in this case to adopt budgets— in the same way natural persons, may make enduring promises about their own future behavior....

10 F.3d at 478.

¶ 20. Because Horn Lake has failed to show that the Agreement was ever entered as a-consent decree in a cause of action, judicial estoppel does not apply. Furthermore, had the Agreement been entered in a cause of action, Southaven could have filed a motion for relief from judgment pursuant to M.R.C.P. 60(b)(6), which, under the above precedent, would probably have been granted. This claim is without merit.

III. WHETHER THE' CHANCELLOR ERRED IN DETERMINING THAT THE PROPOSED ANNEXATION WAS REASONABLE UNDER THE TOTALITY OF THE CIRCUMSTANCES.

¶ 21. We have set out a list of factors to guide the chancellor in his determination of the reasonableness of a city’s annexation request. “These factors, however, are only indicia of reasonableness, not separate and distinct tests in and of themselves.” Bassett v. Town of Taylorsville, 542 So.2d 918, 921 (Miss.1989). The chancellor must consider all of these factors and determine whether under the totality of the circumstances the annexation is reasonable. Id. at 921-22; In the Matter of the Extension of the Boundaries of the City of Vicksburg, 560 So.2d 713, 716 (Miss.1990); In re Enlargement of Corporate Boundaries of the City of Booneville v. City of Booneville, 551 So.2d 890, 892 (Miss.1989); In the Matter of the Extension of the Boundaries of the City of Jackson, 551 So.2d 861, 864 (Miss.1989).

¶22. A determination of “reasonableness” has taken on a rather dubious connotation in Mississippi jurisprudence:

As the law now stands, “The judicial function is limited to the question whether the annexation is reasonable.” Jackson, 551 So.2d at 863. Reasonableness is determined by analyzing twelve factors announced by this Court in prior cases to see what they “indicate.” Id. This approach has been criticized as arbitrary for failing to provide adequate guidelines for reaching the ultimate determination. See In the Matter of the Enlargement of the Corporate Limits and Boundaries of the City of Gulfport, 627 So.2d 292 (Miss.1993) (Smith, J., dissenting, “I am convinced that the test has been expanded so far that now it is absolutely meaningless.”); Matter of Boundaries of City of Vicksburg, 560 So.2d 713 (Miss.1990) (Sullivan, J. dissenting, “ ‘Reasonable’ is now determined by the length of the chancellor’s nose, or foot, if you prefer.”); Matter of the Boundaries of City of Jackson, 551 So.2d 861, 878 (Miss.1989) (Blass, J. dissenting, “[T]he proliferation of ‘indicia of reasonableness,’ ... can only lead one to the conclusion that ‘indicia of reasonableness’ are either now devoid of substance or so malleable as to be meaningless.”). Although we retain our “indicia” for the purposes of today’s decision, we emphasize that fairness to all parties has always been the proper focus of our reasonableness inquiry. Thus, we hold that municipalities must demonstrate through plans and otherwise, that residents of annexed areas will receive something of value in return for their tax dollars in order to carry the burden of showing reasonableness.

In the Matter of the Extension of the Boundaries of the City of Columbus, 644 So.2d 1168, 1171 (Miss.1994). The test of reasonableness, then, has evolved into the twelve indicia, as well as an emphasis on whether people in the annexed areas are to receive something in exchange for their tax dollars.

¶ 23. The twelve indicia, as found in Columbus, 644 So.2d 1168, 1173, as well as Jackson, 551 So.2d 861, 864, are as follows: (1) the need to expand; (2) the path of growth; (3) potential health hazards from sewage and waste disposal in the annexed areas, (4) the municipality’s financial ability to make the improvements and furnish municipal services promised; (5) the need for zoning and overall planning in the area; (6) the need for municipal services in the area sought to be annexed; (7) whether there are natural barriers between the city and the proposed annexation area; (8) past performance and time element involved in the city’s provision of services to its present residents; (9) economic or other impact of the annexation upon those who live in or own property in the proposed annexation area; (10) impact of the annexation upon the voting strength of protected minority groups; (11) whether the property owners and other inhabitants of the areas sought to be annexed have in the past, and the foreseeable future unless annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy economic and social benefits of the municipality without paying their fair share of taxes; and (12) any other factors that may suggest reasonableness.

A. The Need for Expansion

¶ 24. The chancellor found that Southaven was a rapidly developing area with a “population explosion.” Developments containing 4,614 residential lots had been created since 1990. Between 1997 and 2001, Southaven issued 3,782 building permits for residences. Southaven had experienced “unprecedented commercial growth,” including retail establishments, warehousing and light industrial projects. Southaven consisted of 34 square miles and the only vacant land left in the municipality had approved plans for development. State rebated sales tax revenues reflected strong growth, increasing 68% between 1995 and 2001.

If 25. Horn Lake does not question Sou-thaven’s rapid growth, but states that all municipalities within DeSoto County have had rapid growth. It further argues that Southaven has large vacant areas within the city limits, something which we have determined to be relevant. See, e.g., Extension of the Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548 (Miss.1995); In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d 270 (Miss.1999); In the Matter of the Extension of Boundaries of City of Columbus, 644 So.2d 1168, 1173 (Miss.1994). Horn Lake points to the testimony of Southaven’s planning director which revealed that, in the twelve subdivisions approved since 1997, there were 4,774 vacant lots. Horn Lake also argues that, when one compares the average of single family residence building permits over the last five years, 458, to the 4,774 vacant lots, Southaven has 10.4 years worth of vacant residential lots available for development. Furthermore, in 2001, Southaven issued its lowest number (28) of commercial building permits since 1997.

1126. Southaven contends that the numbers relied upon by Horn Lake were merely estimates and not “hard numbers.” Indeed, every response that Southaven’s planning director made to questions about •the current percentage of development in Southaven’s subdivisions included the word “probably.”

¶ 27. Horn Lake also argues that there is no “spillover” growth or development in the PAA, such as there was in Ridgeland, and that Southaven had not presented any plans for improving the PAA or to implement municipal services therein. Southa-ven responds that the uncontradicted evidence showed that the owners of the PAA expected to develop the land in the near future.

¶ 28. We find that the chancellor’s finding that this factor weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and credible evidence.

B. Path of Growth

¶ 29. Southaven, as originally incorporated, lay to the north and east of Horn Lake, between Horn Lake and the Tennessee state line. In three subsequent annexations, Southaven acquired tracts of land east and south of its city limits. In fourth and fifth annexations, Southaven acquired land west of its city limits up to U.S. Highway 51.

¶ 30. The chancellor found that, although a portion of the PAA lay within Horn Lake’s path of growth, it also lay within Southaven’s path of growth. He placed emphasis on the fact that, even though Horn Lake initiated annexation proceedings to double its size, the land to be annexed did not include the PAA: “Although the proposed area of annexation in this cause lies in extreme close proximity to the City of Horn Lake’s current boundaries, they did not seek to include it in that annexation, choosing instead to concentrate their efforts of annexation more'to the west than to the south.”

¶ 31. Horn Lake argues that Southa-ven’s Comprehensive Plan showed U.S. Highway 51 as the boundary of its annexation planning area, and that, therefore, the PAA was not in Southaven’s comprehensive plan.

¶ 32. Southaven responds that whether or not a tract of land is included in a plan for annexation is irrelevant to the issue of path of growth. Indeed, we have enumerated certain factors to be considered when determining whether a proposed annexation lies in the path of growth: (1) evidence that the PAA is immediately adjacent to the city, Biloxi, 744 So.2d at 280; (2) evidence that the PAA is accessible by in use public streets, highways and roads, id.\ (3) evidence that the PAA is experiencing spillover of urban development from the city, id.; Ridgeland, 651 So.2d at 556; (4) the limited area available for expansion, Biloxi, 744 So.2d at 279; (5) the geography, id.; (6) development in the PAA, id.; and (7) proposed subdivision development, Madison, 650 So.2d at 497.

¶ 33. Whether or not Southaven included the PAA in its comprehensive plan is irrelevant to the issue of whether the PAA was in Southaven’s path of growth. We find that the chancellor’s finding that this factor weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and credible evidence.

C. Potential Health Hazards

¶ 34. As the PAA is undeveloped with no residents and no structures, the chancellor found that there were no health hazards from sewage or waste disposal which would affect the question of annexation.

¶ 35. Horn Lake argues that this finding weighs against Southaven. We fail to follow the logic of this argument. In other annexation cases, we have weighed this factor in favor of the annexing municipality because the city’s sewage and waste disposal are superior to those in the PAA. See, e.g., Hattiesburg, 840 So.2d at 87. Because the PAA has no health hazards in the form of inadequately treated sewage or waste, we find that the chancellor’s finding that this factor weighed in favor of annexation was not manifestly wrong and that the finding was supported by substantial and credible evidence. However, taking into consideration Horn Lake’s argument that there are no health hazards or waste disposal problems in the PAA, this factor is at the least neutral.

D.Financial Ability

136. The chancellor found that Southaven’s willingness and financial ability to provide municipal services was “without . serious debate.” Southaven’s bond rating by Standard & Poor’s was A+. Sales taxes collections had increased. Assessed property taxes increased 58% from 1998 to "2002. Audits showed that Southa-ven was a well-run and fiscally responsible municipality. The mayor testified that the budget was based on conservative projections which resulted in a budgetary surplus. The chancellor found that, “Southa-ven’s record for providing services to its citizens in all respects [is] exemplary [and] above and beyond that which is required by law.”

¶ 37. Horn Lake contends that Southa-ven has absolutely no plans to provide any municipal services to the PAA. The Sou-thaven police testified that, since there were no residents'in the PAA, only cows, little police supervision was needed. The proposed Southaven fire station, which was near to but not within the PAA, would be more than adequate to respond to. any brush fires on the PAA. Moreover, Horn Lake supplies water and emergency medical coverage to the PAA. Because Miss. Code Ann. § 21-1-33 requires a chancellor to find that “reasonable public and municipal services will be rendered in the annexed territory within a reasonable time” before approving annexation, and because Southaven failed to present any plan for the implementation of municipal services, the chancellor’s decision was in error.

¶ 38. Because -the PAA contains only 310 acres and Southaven’s proposed police and fire protection are more than adequate for the PAA, and because Southaven has an excellent financial:record, we find that the chancellor’s finding that this factor weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and credible evidence.

E.Need for Zoning

¶ 39. The chancellor found that Southaven’s building and fire codes, zoning regulations, subdivision regulations and enforcement officers were more than adequate to service not only the existing city but also the proposed area of annexation. Since the PAA was totally unimproved and faced prospective development, it would benefit, from Southaven’s regulations. Furthermore, the PAA is only a part of the tract of land owned by College Road Land Company. The rest of the tract already lies within Southaven’s city limits. It would be prudent, and the owners wish, to subject the entire tract to only one set of regulations.

¶ 40. Horn Lake argues that its zoning provisions are' similar to Southaven’s. Therefore, there can be no reasonable finding that there is a need for zoning and planning in the PAA.

¶ 41. We find that .the chancellor’s finding that this, factor weighed in favor, of Southaven was not manifestly wrong and that the finding was supported by substantial and credible evidence. However, taking into consideration Horn Lake’s argument that the regulations are similar, this factor is, at the least, neutral.

F.Need for Municipal Services

¶42. After the owners of the PAA indicated that they planned to make a large residential or commercial development, the chancellor found that the PAA would indeed need the municipal services which Southaven offered such as fire and police protection, water and sewage services, brush and garbage removal and code enforcement. Southaven’s services exceeded those offered by DeSoto County. Included in Southaven’s annexation proposal was the plan to build a fire station less than half a mile from the PAA. Sou-thaven’s fire rating was 5 whereas the PAA’s fire rating was 10. The PAA’s fire rating would be lowered if the annexation were approved. The chancellor also noted that Southaven would be able to use radar to control speeding on Highway 51, something that, under state law, neither Horn Lake nor DeSoto County could do.

¶ 43. Horn Lake calls future development of the PAA “highly speculative” because the owners testified that there were no immediate or definite plans for development. In fact, the owners requested development over a twenty-year period. Therefore, the PAA does not require any municipal services now or in the foreseeable future.

¶ 44. If the chancellor’s decision was “highly speculative,” Horn Lake’s argument is “highly speculative” also. Much testimony supported the chancellor’s finding that development of the PAA would begin in the reasonable future. Also, the PAA had been partitioned between three groups of family members, and each of the three groups quitclaimed their interest to the newly-formed College Road Land Company to unify the three tracts so that development could take place. Finally, the owners had had the PAA rezoned from agricultural to “planned business” and hired an engineer to draw up a master plan for development which had been approved by the DeSoto County Planning Commission.

¶ 45. We find that the chancellor’s finding that this factor weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and credible evidence.

G. Natural Barriers

¶46. The chancellor noted that the PAA immediately adjoined Southaven, that the PAA was a portion of a tract of land, a part of which already was within Southaven’s city limits, that the east portion of the land shared a common owner with the west portion of the land. The PAA was intersected by U.S. Highway 51, which was not a barrier to annexation.

¶ 47. Horn Lake concedes that Highway 51 is not a barrier, but submits that there should be some kind of an effective and permanent barrier to divide cities. Highway 51 was one of the recognized barriers between Horn Lake and Southa-ven.

¶ 48. Horn Lake’s argument is without merit because the relevant inquiry is whether the PAA is divided by a natural or effective barrier, not, as Horn Lake suggests, whether, after annexation, natural or effective barriers exists between two municipalities. See, e.g., Prestridge v. City of Petal, 841 So.2d 1048, 1053 (Miss.2003); In re Extension of the Boundaries of the City of Batesville, 760 So.2d 697, 705 (Miss.2000).

¶ 49. Regardless, we have found that I-55 North was not a barrier to Southaven’s expansion. Matter of City of Horn Lake, 630 So.2d 10, 13 (Miss.1993). Therefore, Highway 51 should not be considered to be a barrier to Southaven’s expansion.

¶ 50. We find that the chancellor’s finding that this factor weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and credible evidence.

H. Past Performance

¶ 51. The chancellor found that, based on his earlier discussion, Southaven’s past performance in providing services was “not only acceptable, but beyond comparison.” The mayor testified that after the last major annexation in 1997, the city immediately began looking for appropriate locations for a temporary fire house, which was later turned into a permanent one. A police substation and a public works park facility were built.

¶ 52. Horn Lake counters that “Southa-ven’s annexation expert refused to testify that Southaven exceeded all other cities in the State in the fulfillment of promises, and therefore, there was simply no proof to support a finding that Southaven’s past performance has been “beyond comparison.” Horn Lake also points out that there have been “numerous and repeated ‘reportable conditions’ within Southaven’s audits, some of which were violations of State law.” However, Horn Lake finally admits that “the testimony of Southaven’s satisfactory fulfillment of its prior annexation promises was unrefuted, and accordingly, this indicia weighs in favor of annexation by Southaven:”

¶ 53. Because this issue is uncontro-verted, we find that the chancellor’s finding that this factor weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and credible evidence.

I.Impact Upon Residents or Owners

¶ 54. The chancellor found that no one.lived in the PAA, and the only owner had requested annexation by Southaven. A landowner’s right to use his land “as he sees fit” is “cherished” by the Court. Hall v. Wood, 443 So.2d 834, 838 (Miss.1983). See also Andrews v. Lake Serene Property Owners Assoc., 434 So.2d 1328, 1331, 1333 (Miss.1983). The landowner’s use and enjoyment of his property are limited only by the legitimacy of the purpose for which it is used. Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss.1970). “For these rights to be meaningful, each property owner’s use and enjoyment of his property must be shielded from unreasonable interference by others— these ‘others’ ranging from the faceless sovereign to one’s next door neighbor.” Hall, 443 So.2d at 838.

¶ 55. These principles apply to the case at bar. The landowners wished to be annexed by Southaven because the greater part of the tract of land had already been annexed by Southaven, and they did not want the tract to be divided by two governmental entities. These wishes should be followed' unless an objector can show that the landowners’ wishes are not legitimate. Annexation is certainly a legitimate purpose.

¶ 56. We find that the chancellor’s finding that this factor weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and credible evidence.

J. Impact on Minority Voting Strength

¶ 57. The chancellor found that, since no one lived in the PAA, this factor has no relevance. We find that the chancellor’s finding that this factor is neutral was not manifestly wrong and that the finding was supported by substantial and credible evidence.

K. Whether the Owners Would Benefit from Proximity to Southaven

¶58. The chancellor found that after the PAA is developed for residential or commercial purposes, and considering, Southaven’s rapid growth, the owners would enjoy a substantial increase in the value of the property.

¶ 59. Horn Lake points out that the PAA was a cow pasture. “Other than some occasional glances from Southaven’s police officers, there-was zero proof that either the cattle or the landowners are enjoying benefits froim Southaven without paying their fair share of taxes.”

¶ 60. It is true that the PAA has not benefited from Southaven’s provision of services because it is pasture land. Therefore, this factor should be in favor of Horn Lake.

L. Other Factors

¶ 61. The chancellor found that, considering Southaven’s long-standing relationship with the Horn Lake Water Association, which had the certificate rights to the water and sewer of the PAA, Southaven’s position was enhanced. A development which adjoined the PAA’s northeast corner, would enhance the PAA’s development.

¶ 62. Horn Lake argues that if the annexation were allowed, it would be yet another step toward the city being landlocked. However, in view of the fact that Horn Lake has annexed a substantial amount of land in the recent past, the Court should find that Horn Lake will not be in danger of being landlocked by Southaven’s annexation of the PAA.

¶ 63. We find that the chancellor’s finding that this factor weighed in favor of Southaven was not manifestly wrong and that the finding was supported by substantial and credible evidence.

CONCLUSION

¶ 64. We find that Horn Lake’s claims of equitable estoppel and judicial estoppel are without merit because of the prevailing law that succeeding city administrations cannot be bound by the actions of preceding city administrations. We further find that the chancellor’s dismissal of Horn Lake’s objections and his findings that Southaven’s proposed annexation was reasonable under all the circumstances were not manifestly wrong and that his findings were supported by substantial and credible evidence. Therefore, the trial court’s judgment is affirmed.

¶ 65. AFFIRMED.

SMITH, P.J., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. COBB, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. PITTMAN, C.J., AND DIAZ, J., NOT PARTICIPATING.

      . Highway 51 parallels and lies to the west of 1-55.

      . See also 56 Am.Jur.2d Municipal Corporations:
      Where the contract involved, relates to governmental or legislative functions of the council, or involves a matter ,of .discretion to be exercised by the council, unless the statute conferring power to contract clearly authorizes the council to make a contract extending beyond its own terms, no power of the council so to do exists, the council presently holding such powers is vested with no discretion to circumscribe or limit or diminish their efficiency, but must transmit them unimpaired to their successors ....

      . When asked what percentage each subdivision was "built out,” Southaven's planning director responded "probably á third"; "It's probably a little better than half”; "It’s probably better than a third built out”; "Oh, probably half. Right at a half”; "Probably half”; "Probably around a third”; and "It’s probably close to three-fourths built out.”


source: Caselaw Access Project

author: McRAE, Presiding Justice,

license: Public Domain

text:
    The ESTATE OF Johnnie Eloise Hodges DYKES, Deceased: Ginger Dykes Williams, Executrix v. The ESTATE OF Michael A. WILLIAMS, Deceased: Kathryn F. Tonguis, Executrix.
    No. 2002-CA-00944-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      Joan Elizabeth Lund, Gulfport, attorney for appellant.
    Gene Horne, Centreville, attorney for appellee.
    Before McRAE, P.J., EASLEY and CARLSON, JJ.'
   McRAE, Presiding Justice,

for the Court.

¶ 1. The Estate of Johnnie Eloise Hodges Dykes filed an action in the Chancery Court of Amite County to set aside a deed that Dykes had been executed to her grandson, Michael A. Williams. A trial was held before the chancellor, who refused to set aside the deed and ruled in favor of the defendant, Kathryn F. Ton-guis, former wife of the now deceased Michael A. Williams. Dykes’s estate appeals the decision of the chancellor and argues that the chancellor erred because (1) the deed was never delivered; (2) the deed was not properly executed, notarized, and acknowledged; (3) no consideration was paid by the grantee; (4) no power of attorney existed to properly convey the land; and (5) an agent acting under power of attorney cannot make a gift when the instrument conferring power of attorney does not authorize such. We affirm.

FACTS

¶2. In February of 1982, Johnnie E. Hodges Dykes (“Johnnie”) and her husband, Milford L. Dykes, executed a deed to their grandson, Michael A. Williams (“Michael”), conveying to him the family’s 80-acre hunting camp near Liberty, Mississippi, while reserving a life estate in the same property for themselves. The deed was filed in the land records of Amite County, Mississippi, that June. Michael, who was 18 at the time of the conveyance, paid nothing in exchange and never even knew of the conveyance. However, the deed did state that the grantor received “ten dollars ($10.00), cash in hand paid, and other good and valuable consideration, the receipt of which is hereby acknowledged.”

¶ 8. In October of 1998, Michael and his mother, Ginger Dykes Williams (“Ginger”), executed a quitclaim deed conveying the 80 acres back to Johnnie (Milford had previously died). The deed was filed for record that November and indicated that Michael and Ginger maintained the same address in Pensacola, Florida, while Johnnie maintained residence in Mississippi.

¶ 4. In June of 1995, Ginger executed a quitclaim deed conveying the 80 acres back to Michael. While the deed bore the name Johnnie Hodges Dykes as the grant- or, it was signed “Johnnie Hodges Dykes by Ginger D. Williams, Power of Attorney.”

¶ 5. The notary public in this instance, Michelle Musselwhite (“Michelle”), typed the following at the end of the acknowledgment: “Ginger D. Williams appeared for Johnnie E. Hodges Dykes by Power of Attorney.” The deed was executed in Es-cambia County, Florida, on June 1, 1995, and was filed in the Amite County land records on June 5,1995. Ginger continued to pay the taxes on the land until 1999.

¶ 6. Sometime after the June 1, 1995, execution of the deed, Johnnie passed away. On March 18, 1999, Michael married Kathryn (now Kathryn Tonguis, hereinafter “Kathryn”). Roughly four months later, Michael died. Shortly thereafter, Kathryn took over ownership and began paying taxes on the land.

¶ 7. On February 17, 2000, Ginger, as executrix of Johnnie’s estate (“the Estate”), filed a complaint against the Estate of Michael A. Williams in the Chancery Court of Amite County to cancel the 1995 deed. However, all responsive pleadings were filed by Kathryn. By agreement, Kathryn was later substituted as party defendant and waived any and all procedural errors.

¶ 8. At trial, the Estate sought to have the deed set aside as invalid on the grounds that (1) there was no consideration; (2) the deed was never delivered; (3) Dykes did not have the mental capacity to make a gift at the time of the deed’s execution; (4) no valid power of attorney existed at the time of the deed’s execution for Ginger to have properly conveyed the land; and (5) the alleged power of attorney was not recorded. On May 13, 2002, the chancellor found for Kathryn on all issues. The Estate subsequently filed its notice of appeal on June 11, 2002, after which, the case was assigned to this Court. While the Estate renews the argument that there was no valid power of attorney to effectuate the deed and the argument that the deed, itself, was invalid, we affirm the decision of the trial court that the land properly belongs to Kathryn.

STANDARD OF REVIEW

¶ 9. This Court will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous. In re Conservatorship of Bardwell, 849 So.2d 1240, 1245 (Miss.2003). If there is substantial evidence to support the chancellor’s findings of fact, those findings must be affirmed. Id. However, this Court reviews questions of law de novo. Morgan v. West, 812 So.2d 987, 990 (Miss.2002).

DISCUSSION

I. Whether a purported deed is void ab initio when it is not delivered by the Grantor to the Grantee during the lifetime of the Grantor?

¶ 10. For a deed to be valid in Mississippi, the grantor must deliver it to the grantee. Martin v. Adams, 216 Miss. 270, 62 So.2d 328, 329 (1953). To show that the delivery, itself, is valid, there must be (1) “a complete and unequivocal delivery of the deed” and (2) “an actual intent by the grantor to deliver the .deed,” shown by the words and acts of the grantor and the context of the transaction. Benton v. Harkins, 800 So.2d 1186, 1187 (Miss.Ct.App.2001). However, the recording of a deed creates the rebuttable presumption that it was delivered. In re Estate of Hardy, 805 So.2d 515, 518 (Miss.2002); McMillan v. Gibson, 222 Miss. 408, 76 So.2d 239, 240 (1954).

¶ 11. In Hardy, this Court noted that where grantors retain control and possession of a deed until death, without any indication of any- intent to deliver the deed, the deed is void for non-delivery. 805 So.2d at 518. There, a woman was found not to have delivered deeds to her children where the children not only denied ever accepting the deeds, but the deeds were found in the woman’s purse at the time of her death. Id.

¶ 12. A somewhat similar situation occurred in Grubbs v. Everett, 236 Miss. 698, 111 So.2d 923, 924 (1959). There, this Court affirmed the ruling of the chancellor, that there was no delivery where the purported deeds in question were found in the trunk of the deceased after his death and there was no evidence of his intention to have the deeds delivered until after his death. Id.

¶ 13. In the case at bar, the record is clear that the deed in question was executed in Pensacola, Florida, on June 1, 1995, and then recorded in Liberty, Mississippi on June 5, 1995. Therefore, the rebuttable presumption has been raised that there was a valid delivery of the deed to the son.

¶ 14. The Estate argues that Ginger’s testimony successfully defeated this presumption. Ginger stated “I did not record that deed. I did not. And if I need to take a lie detector test to swear — I don’t know how it got recorded. I did not record it.” The Estate claims that, since Kathryn failed to present any witness to rebut that testimony, Ginger’s testimony was uncontroverted and should have carried the day.

¶ 15. However, the chancellor found that Ginger’s testimony, itself, provided enough contradiction and, thus, Kathryn’s assistance was unnecessary. Because it was Ginger’s word versus the evidence, the chancellor was required to make a determination as to her credibility, which is well within his authority. See, e.g., Greenlee v. Mitchell, 607 So.2d 97, 106 (Miss.1992).

¶ 16. The chancellor took note of the inconsistencies between Ginger’s testimony and claims at trial compared to the actions that the evidence clearly showed that she took. It was also apparent to the chancellor that the Estate’s witnesses were not free of bias, and he found it notable that Ginger never challenged the validity of the deed during the four years between the execution and recording of the deed and her son’s death.

¶ 17. Again, because the deed was recorded, the presumption of delivery was raised, and the burden was placed on the Estate to rebut. However, despite the Estate’s contention that Ginger brought forth uncontroverted evidence that there was no delivery, it is clear that the chancellor considered such evidence and Ginger’s credibility and found them both wanting. Considering the deference given to a chancellor’s finding of fact, we affirm the chancellor’s finding that the deed was delivered.

II. Whether a purported deed is patently void when it is not properly executed, notarized, and acknowledged according to Mississippi Code Sections 87-3-3, 89-3-1, and 89-3-7 (f)?

¶ 18. An acknowledgment is simply a formal statement, made by the person executing a deed to an official who is authorized to take the acknowledgment, that the execution of the deed was of that person’s own free will and accord. See White v. Delta Foundation, Inc., 481 So.2d 329, 332 (Miss.1985). Not only must deeds be properly acknowledged before they may be recorded, but if the acknowledgment is for a conveyance of land by an attorney in execution of letters of attorney, the acknowledgment must reflect the representative capacity in which the signatory is acting. Miss.Code Ann. §§ 89-3-1, 87-3-3 (1999). The Legislature has even provided a form for acknowledgments dealing with real property. Miss.Code Ann. § 89-3-7(f) (Supp.2003). However, Mississippi gives a liberal interpretation to acknowledgments whereby an acknowledgment will not be held “fatal” for an omission that can be filled in from the body of the deed itself. See White, 481 So.2d at 333-34.

¶ 19. In White, this Court found an acknowledgment in an instrument defective because it was ambiguous and unclear. Id. at 334. There, the instrument was so ambiguous that it was not clear which of two possible corporations was executing the instrument. Id. Therefore, the acknowledgment was defective and the instrument void. Id.

¶20. In the case at hand, the Estate claims that the acknowledgment was defective not only for failing to strictly follow the form provided by statute, but also because Ginger did not write the acknowledgment on her own accord, but at the instruction of the notary. However, the chancellor found that Ginger signed the acknowledgment of her own free will. Additionally, the Estate fails to cite any authority that an acknowledgment is fatally defective for not precisely adhering to form.

¶ 21. Notwithstanding the failure to strictly follow form, the acknowledgment contains all the necessary information and, therefore, should not be held fatal pursuant to White. Furthermore, it is clear from the deed that Ginger was acting on behalf of Johnnie, the grantor, and, thus, there was no ambiguity. In addition, we are guided by the chancellor’s determination that Ginger signed the acknowledgment of her own free will and not at the command of Michelle, the notary.- Because the chancellor was not manifestly wrong, we affirm the chancellor’s finding as to this issue.

III. Whether a purported deed is void ab initio when no consideration is paid to the Grantor by the Grantee?

¶ 22. Offering a deed as a gift is a “perfectly respectable mode of conveyance.” Mullins v. Ratcliff, 515 So.2d 1183, 1190 (Miss.1987); Holmes v. O’Bryant, 741 So.2d 366, 370 (Miss.Ct.App.1999). Furthermore, one may execute a deed for any reason seen fit, such as “love, affection, gratitude, partiality, prejudice, or even a whim or caprice.” Herrington v. Herrington, 232 Miss. 244, 98 So.2d 646, 649 (1957); Holmes, 741 So.2d at 370.

¶ 23. As to this issue, the only legal theory provided by the Estate is an uncit-ed sentence that merely states that a deed is a form of a contract, followed by a citation to the rule of contract requirements. We find this issue without merit and uphold the ruling of the chancellor.

TV. Whether a purported deed is void ab initio when signed by a purported agent, where no power of attorney exists?

¶ 24. “[W]here a conveyance by an attorney is in execution of letters of attorney, so acknowledged or proved and recorded, it shall pass the interest of the principal though not formally executed in his name.” Miss.Code Ann. .§ 87-3-3 (1999). Before one operating through letters of attorney may execute and deliver a valid deed “prior in right to the interests of (a) subsequent purchasers for value and without notice or (b) subsequent judgment lien creditors, the written power of attorney must be acknowledged and recorded in conformity with the requirements generally applicable to instruments of conveyance of interests in land.” Kountouris v. Varvaris, 476 So.2d 599, 603 (Miss.1985).

¶ 25. However “[i]t is one of the oldest maxims of the law that no man shall, in a court of justice, take an advantage which has his own wrong as a foundation for that advantage.” Collins v. Collins, 625 So.2d 786, 789 (Miss.1993) (quoting Patterson v. Koerner, 220 Miss. 590, 71 So.2d 464, 466 (1954)). To employ this maxim, the conduct need not be of such a nature as to be criminal or justify any legal proceedings, but there must simply be a “wilful act concerning the cause of action which can be said to transgress equitable standards of conduct.” Id. (quoting Thigpen v. Kennedy, 238 So.2d 744, 746-47 (Miss.1970)).

¶ 26. In Kountouris, a man granted his son-in-law powers of attorney. Id. at 601. The son-in-law consequently deeded a parcel of the father’s land back in Greece to his wife, the man’s daughter. Id. Upon the father’s death, it , was noted that the father had actually devised the property to his son. Id. One of the major grounds upon which this Court nullified the transaction was that the son-in-law had failed to record the letters of attorney as required by § 87-3-3. Id. at 603-04.

¶27. In Collins, the plaintiff deeded property to the defendant in order to avoid having the state seize the property in collection of fines that had been levied against him. 625 So.2d at 789. Subsequently, this Court affirmed the chancellor’s finding that the plaintiffs challenge to the conveyance to the land should be denied due to the doctrine of unclean hands. Id. at 789-90.

¶ 28. The Estate argues that Kountouris mirrors the case at hand and, thus, the conveyance to Michael should be void because Ginger failed to record the letters of attorney. On the other hand, Kathryn contends that, as the chancellor held, to allow Ginger to discredit actions that she took flies in the face of the equity power with which the chancellor is vested.

¶ 29. It is plainly apparent that, since the letters of attorney were never recorded, that § 87-8-3 was not satisfied and that Ginger did not have the ability to “pass the interest of the principal.” While Kountouris appears to limit § 87-3-3 to a situation not found here, the language of the statute is simple and clearly stated. Therefore, Kathryn is not saved from Ginger’s failure to record simply because this transaction does not involve a third party.

¶ 30. However, as the chancellor pointed out, to allow Ginger to benefit from her behavior “flies in the face” of equity. While Collins is not on point, the general maxim stated therein appears applicable, nonetheless. Not only is Ginger (as executrix of the Estate) trying to discredit her own actions, the entire conveyance was performed to ensure that the government did not take the land as part of any Medicaid reimbursement that might be required of the Estate.

¶ 31. While the chancellor erred in his analysis of § 87-3-3, he was correct as to his analysis of the impact of equitable principles on this case, and we affirm the ruling of the chancellor as to,this issue.

V. Whether an agent, acting under a purported power of attorney, can make a gift of valuable real property of the principal, without any consideration whatsoever paid to the principal, where a “gift” is not expressly authorized in the instrument conferring power?

¶ 32. An agent is to act in the best interest of and not to the detriment of his principal. In re Estate of Hardy, 805 So.2d at 519. See also McKinney v. King, 498 So.2d 387, 388 (Miss.1986). In addition, general powers of attorney that authorize agents to sell and convey property imply a sale for the benefit of the principal. In re Estate of Hardy, 805 So.2d at 519.

¶ 33. In Hardy, an agent with power of attorney who had deeded most of a group of sisters’ interest in certain land to their brother was found to have acted outside the scope of her powers as those actions in no way helped the sisters, but only harmed them by taking their land and giving it to another. Id. at 519-20.

¶ 34. In McKinney, a wife had been granted power of attorney by her husband, who was dying of cancer. 498 So.2d at 388. The husband had willed that the property go to the daughter but that the wife be entitled to use and possession so long as she remained a widow and resided there. Id. Subsequently, the wife executed a deed granting her and her husband a tenancy in common with right of survivor-ship. Id. When pressed by the chancellor, she was unable to provide any argument as to how such a transaction was in the best interest of the husband. Id. Therefore, the chancellor canceled the deed. Id.

¶35. As the chancellor noted in the case at.hand, there had been an ongoing series of conveyances involving this land. Both grandparents had earlier conveyed a right of survivorship to Michael earlier. Subsequently, he and his mother conveyed his property rights back to Johnnie. The chancellor fairly concluded that Ginger was acting within her authority. There had long been manifested an intent for Michael to have the property when his grandparents were gone.

¶ 36. Ensuring that the land would go to Michael untouched by Medicaid protected the wishes and best interests of Johnnie. Therefore, it cannot be said that the chancellor committed manifest error by finding that Ginger was not acting against the best interests of Johnnie nor outside her scope of authority. We affirm the ruling of the chancellor.

CONCLUSION

¶ 37. The Estate has failed to show manifest error in any of the factual findings made by the chancellor. Furthermore, while the chancellor may have incorrectly analyzed the law in regards to recording letters of attorney, principles of equity still apply and prevent any relief to the Estate. Because the Estate has failed to invalidate either Ginger’s power of attorney or the deed itself, we find that the property properly belongs to Kathryn Tonguis and affirm the judgment of the chancellor.

¶ 38. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. COBB, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . This was done in an attempt to prevent the land from being taken to reimburse Medicaid expenses upon Johnnie's death.

      . Ginger is now Johnnie's only surviving heir and would inherit the property if the Estate's claim were successful.

      . This presumption, of course, disappears once it is shown that there was no delivery. McMillan v. Gibson, 222 Miss. 408, 76 So.2d 239, 240 (1954).

      . The Estate makes a short claim that the deed is void because it refers to both the Grandma and Ginger and thus creates a clear and manifest repugnance between two clauses. Therefore, according to this argument, the first clause would prevail, making Grandma Dykes the maker. See Martin v. Adams, 216 Miss. 270, 62 So.2d 328, 329. However, Martin continues to say that such rule cannot be invoked when, upon reading the entire document, there is but one interpretation. Id. Upon reading the entire document, the chancellor failed to find these clauses repugnant. The chancellor did not err in deciding this issue. '


author: SMITH, Presiding Justice,

text:
    John Coleman STEWART v. Lisa Gail STEWART.
    No. 2002-CA-01333-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      Paul E. Rogers, attorney for appellant.
    Julie Ann Epps, E. Michael Marks, Jackson, attorneys for appellee.
    Before SMITH, P.J., WALLER and COBB, JJ.
   SMITH, Presiding Justice,

for the Court.

¶ 1. In this domestic relations case we review the chancellor’s findings of marital assets and property division in a divorce proceeding. This Court is asked to determine whether the trial court erred in awarding the wife one-half of the value of the personal property, which the trial court classified as marital property and whether the trial court erred in awarding the wife twenty percent of the insurance proceeds from the fire loss of the marital home and twenty percent of the proceeds from the sale of the lot. We find no error and affirm the judgment of the trial court.

FACTS

¶ 2. Prior to June 9, 1999, John Coleman Stewart proposed marriage to Lisa, and she accepted. Lisa participated in choosing the house that John then purchased on June 9, 1999. On June 25, 1999, John and Lisa were married at the house John, purchased on June 9 for $140,000. The property included the house and five to -seven acres of land. John procured- the credit to finance the original loan, and later he obtained permanent financing.

¶ 3. In February 2000, Lisa signed a deed of trust. Lisa believed the house was hers as well as John’s- and expended her personal money and labor and that of her parents on improving the house. During the marriage, John and Lisa renovated the house and made additions to it with John providing most of the cash used for the additions and Lisa and her family providing much of the labor and some of the materials. John, testified that he spent $50,000 to $60,000 of his personal premarital funds on improvements.

¶ 4. The couple resided at that same house together until August 4, 2000, when they separated. Upon separation, John and Lisa divided their personal property. Without John’s objection, Lisa took the property that she brought into the marriage and the personal property that the parties had acquired during the marriage. Lisa moved back to the manufactured home in which she residéd prior to' the marriage. John remained in the home the couple shared as husband and wife and that he purchased just weeks prior to the marriage.

¶ 5. On August 17, 2000, Lisa sued John for divorce on grounds of uncondoned adultery, habitual cruel and inhuman treatment, and irreconcilable differences.

¶ 6. In October 2000, the home Lisa and John had lived in during their marriage was burned in a fire and completely destroyed. The home' was insured for $201,000, and the mortgage balance was $146,000. The contents were insured for $50,000. John received' $55,000 from the insurance company for the loss of the home after the mortgage was paid and $50,000 for the loss of the contents.

¶ 7. On February 21, 2001, Lisa filed by agreement of the parties an amended complaint for divorce, requesting one-half of the insurance proceeds generated from the fire loss. Lisa and John each had certain personal property, prior to the marriage, which he or she brought to the house and used together during the marriage. Also, the two acquired additional personal property during the marriage.

¶ 8. Before trial, John sold the lot upon which the home had been located for $42,000 to his sister^ though at trial, he had not received payment from his sister for the lot. John loaned $40,000 of the insurance money to a friend in Florida, purchased an automobile for more than $47,000, and spent the rest of the insurance money on travel.

¶ 9. Trial was held on October 8, 2001, and on October 16, 2001, a judgment for divorce was entered. A bench ruling was rendered on December 17, 2001, which was incorporated into the final judgment entered on January 18, 2002, awarding Lisa $34,579.00, representing twenty percent of the insurance proceeds for the loss of the home, twenty percent of the proceeds from the sale of the lot, and equal division of the personal property. On January 28, 2002, John filed a motion for reconsideration that the court heard on May 9, 2002, and on July 22, 2002, the court entered an order denying the motion. John then filed the appeal now before this Court.

STANDARD OF REVIEW

¶ 10. The standard of review for distribution of property in divorce cases has been clearly established by this Court, as outlined in Owen v. Owen, 798 So.2d 394, 397-98 (Miss.2001) and repeated in Bunyard v. Bunyard, 828 So.2d 775, 776-77 (Miss.2002):

Such division and distribution “will be upheld if it is supported by substantial credible evidence.” Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994).... The chancellor’s findings will not be disturbed “unless the Chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990).

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN AWARDING LISA ONE-HALF OF THE VALUE OF THE PERSONAL PROPERTY WHICH THE TRIAL COURT CLASSIFIED AS MARITAL PROPERTY.

¶ 11. John argues that he and Lisa did not commingle their funds and personal property, and for that reason, the chancellor erred in determining that his personal property prior to the marriage was marital property to be distributed equitably. John cites two Court of Appeals cases in support of his argument: Wilson v. Wilson, 820 So.2d 761, 763 (Miss.Ct.App.2002), and Brown v. Brown, 797 So.2d 253, 256 (Miss.Ct.App.2001). The Court of Appeals decisions are not binding on this Court, and there is ample authority from our prior cases to guide this Court’s decision.

¶ 12. The first step in property distribution as a result of divorce is to classify the property as either marital property or non-marital property based on Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994), which defined marital property for divorce proceedings as

any and all property acquired or accumulated during the marriage. Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor. We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic or otherwise are of equal value.

639 So.2d at 915. See also Waring v. Waring, 747 So.2d 252, 255 (Miss.1999). Separate property that has been “commingled with the joint marital estate” also becomes marital property subject to equitable distribution. Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994). See also Maslowski v. Maslowski, 655 So.2d 18, 20 (Miss.1995). “Assets which are classified as non-marital, such as inheritances, may be converted into marital assets if they are commingled with marital property or utilized for domestic purposes, absent an agreement to the contrary.” Boutwell v. Boutwell, 829 So.2d at 1221 (Miss.2002) (citing Heigle v. Heigle, 654 So.2d 895, 897 (Miss.1995); Johnson, 650 So.2d at 1286).

¶ 13. John argues that he and Lisa did not commingle their personal property and that they maintained separate checking accounts and filed separate tax returns; therefore, his personal property prior to the marriage should remain his separate property. The chancellor considered the facts in this case along with this Court’s prior rulings in Hemsley and Johnson in determining the marital or non-marital character of the personal property in question. Accordingly, the trial court found that

the personal property brought into the home of the parties on Monterey Road in Rankin County, all of which was subject to familial use, lost its character as premarital property and became marital property subject to equitable distribution, just as did the residence at Monte-rey Road.

The chancellor also found that both John and Lisa paid household bills and participated in maintaining the household. Evidence in the record supports these findings. When a chancellor makes findings that are not clearly erroneous, this Court will not disturb his findings. Bell, 563 So.2d at 596-97.

¶ 14. After the classifications have been established, the chancellor analyzes the case according to the following factors found in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994):

1. Substantial contribution to the accumulation of property
a. direct or indirect economic contribution
b. contribution to stability and harmony of the marital relationship measured by quality, quantity of time spent on family duties and duration of marriage.
c. contribution to the education, training bearing on the earning capacity of spouse accumulating assets.
2. Degree to which each spouse has expended, withdrawn, or otherwise disposed of marital assets and any prior distribution of assets.
3. Market value and emotional value of assets subject to distribution.
4. Value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse.
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution.
6. Extent to which property division may be utilized to eliminate periodic payments and other potential sources of friction.
7. Needs of the parties.
8. Any other factor which in equity should be considered.

¶ 15. The trial court made a detailed analysis of each of these factors in this case, and determined that though John and Lisa kept their monies separate and filed separate tax returns, they each contributed something to the marital home and intended familial use of their premarital property. Under the circumstances, the chancellor decided equity would best be served by a equal division of the personal marital property between Lisa and John. Finding that the evidence presented in the record is consistent with the trial court’s judgment, we affirm the trial court’s ruling as to the marital property division.

II. WHETHER THE TRIAL COURT ERRED IN AWARDING LISA TWENTY PERCENT OF THE INSURANCE PROCEEDS FROM THE HOUSE AND TWENTY PERCENT OF THE PROCEEDS FROM THE SALE OF THE LOT.

¶ 16. The trial court used the same case law as discussed above to analyze the character of the proceeds and real property, which he classified as marital in nature due to the lost home being the former marital home. That determination is in line with this Court’s holding in Bout-well that the wife’s inherited home was the marital home and as such should be considered marital property. See Boutwell, 829 So.2d at 1221.

¶ 17. Next, the trial court determined what distribution would be equitable. The trial court completed analysis of the facts using the Ferguson factors. Due to its consideration of the fact that John made a substantially larger monetary contribution to the purchase of the home and the insurance, the trial court found a property division of eighty percent to John and twenty percent to Lisa to be equitable. The chancellor gave some weight to Lisa’s help with improvements, payment of utility and some food bills, and contribution to harmony of the home in declaring her entitlement to twenty percent of the insurance proceeds and lot sale proceeds.

¶ 18. This Court, finding no error in the property distribution, affirms the trial court’s judgment.

CONCLUSION

¶ 19. The trial court followed the guidelines we provided in Boutwell, which followed Hemsley, Johnson, and Ferguson, in classifying and distributing property in divorce proceedings. We hold that the trial court did not err in awarding Lisa one-half of the personal property that the chancellor correctly classified as marital property, nor did the chancellor err in awarding Lisa twenty percent of the insurance proceeds from the marital home destroyed by fire and twenty percent of the proceeds from the sale of the lot upon which the marital home was located. - The trial court judgment is affirmed in its entirety.

¶ 20. AFFIRMED.

PITTMAN, C.J., McRAE, P.J., WALLER, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. COBB, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J„ NOT PARTICIPATING.


author: EASLEY, Justice,

text:
    Mike MOORE; Phillip Martin, The Mississippi Band of Choctaw Indians; Thomas E. Jolly, Jr.; N.L. Carson; Robert Rogers; and H. Eagle Day v. BELL CHEVROLET-PONTIAC-BUICK-GMC, LLC; Bill Ethridge Lincoln Mercury, Inc.; Don Davis Chevrolet, Inc.; Ed Davis Motors, Inc.; Griffis Ford-Mercury, Inc.; Killens Chevrolet-Oldsmobile-Pontiac, Inc.; Marshall Ford Company, Inc.; Starkville Ford-Lincoln-Mercury, Inc.; Tom Brooks Auto Sales Inc.; And Triple M Motors, Inc. Mike Moore; Thomas E. Jolly, Jr.; N.L. Carson; Robert Rogers and H. Eagle Day v. Bell Chevrolet-Pontiac-Buick-GMC, LLC; Bill Ethridge Lincoln Mercury, Inc.; Don Davis Chevrolet, Inc.; Ed Davis Motors, Inc.; Griffis Ford-Mercury, Inc.; Marshall Ford Company, Inc.; Starkville Ford-Lincoln-Mercury, Inc.; Tom Brooks Auto Sales, Inc. And Triple M Motors, Inc.
    Nos. 2002-CA-00536-SCT, 2002-M-00531-SCT.
    Supreme Court of Mississippi.
    Jan. 15, 2004.

      Glenn Sturdivant Swartzfager, Ridge-land, Peter W. Cleveland, Gulfport, James P. Streetman, Jackson, attorneys for appellants.
    David Sanders Humphreys, J. Kevin Watson, W. Robert Jones, Jackson, attorneys for appellees.
    Before SMITH, P.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the court.

STATEMENT OF THE CASE

¶ 1. On January 4, 2002, the Mississippi Band of Choctaw Indians (the M.B.C.I.) applied to the Mississippi Motor Vehicle Commission (the Commission) for a dealership license to purchase and operate Frontier Ford, an automobile dealership located in Leake County, Mississippi. On February 20, 2002, the Commission voted to grant a dealership license to the M.B.C.I. The Mississippi Automobile Dealers (the Dealers) petitioned, on February 22, 2002, for and were granted a hearing before the Commission on their objection and verified complaint filed with the Commission. The complaint sought revocation of the license issued to the M.B.C.I.

¶ 2. In this separate action, the Dealers also sought the equitable relief of discovery in the Chancery Court- of Rankin County in conjunction with the administrative proceeding .before the Commission by filing a complaint for discovery on March 6, 2002. In the complaint for, discovery, the Dealers sought discovery from Attorney General Mike Moore (Moore), Chief Phillip Martin (Chief Martin) 'of the M.B.C.I., three of the Commission’s commissioners, Thomas E. Jolly, Jr. (Jolly), N.L. Carson (Carson), and Robert Rogers. (Rogers), and the Commissions’ executive director, H. Eagle Day (Day), collectively known as “the Defendants.”. On March 22, 2002, the chancellor ordered that venue was proper in Rankin County and granted the Dealers’ request for discovery. The Defendants filed a Motion for Reconsideration and for Other Relief and a Memorandum of Law in support of their motion on April 1, 2002. On the same day, the Dealers propounded their written discovery requests to the Defendants.

¶ 3. On April 3, 2002, the Dealers filed a motion to compel discovery and response to the motion for reconsideration, and simultaneously, noticed depositions of Day, the M.B.C.I. and Moore. The- trial court entered its order on April 4, 2002, denying the motion to reconsider and the Defendants’ request to stay the decision pending appeal.

¶ 4. On April 5, 2002, the Defendants filed a notice of appeal to this Court, along with a motion-seeking an emergency stay of the trial court’s discovery order. This Court issued a temporary stay. The Dealers filed an opposition to the emergency stay, and'this Court subsequently entered a second order which stayed the chancellor’s discovery order pending the outcome of this appeal. The Dealers state that this Court’s ruling in effect ended their discovery attempts and overruled the trial court’s ruling.

¶ 5. On April 17, 2002, the Dealers proceeded with their hearing before the Commission without the benefit of discovery, and the Commission denied the relief requested by the Dealers. The Commission’s decision-was not appealed, and the applicable statutory time period for appeals has expired. .

¶ 6. On appeal from the Chancery Court of Rankin County, the Defendants raise the following issues:

I. Whether this matter which is moot on its face fits within the doctrine of capable of repetition yet evading review.
II. Whether venue was proper in Rankin County.
III. Whether the administrative proceeding before the Commission for which discovery was sought in this ancillary action was invalid.
IV. Whether a complaint for discovery was proper in this instance.
V. Whether the information sought was protected.

DISCUSSION

I. Mootness

¶ 7. The M.B.C.I. has already been granted its license to purchase and operate Frontier Ford. The Commission’s order which denied the relief requested by the Dealers was filed on April 17, 2002. No appeal was taken from that decision. Therefore, we consider whether this appeal from the chancery court’s judgment in the action for discovery is now moot.

¶ 8. The Defendants and the Dealers request that this Court address the issues raised on appeal even though the parties admit that this appeal will have no bearing on the Commission’s hearing for which the discovery was sought as the dealership license was granted to the M.B.C.I. The Dealers argue that the Court should decide the appeal in order to provide “further guidance regarding the interplay between administrative proceedings.” Likewise, the Defendants contend that the issues are not moot and seek review by this Court on appeal, stating:

[T]here is no doubt that the Attorney General may in the future be the subject to a bill of discovery in an administrative hearing. Furthermore, the matter is of great public interest in that it involves significant questions concerning the administration of justice regarding venue, the validity of the administrative proceedings in question and the applicability of the different privileges raised in the case at bar.

¶ 9. The parties ask this Court to address the issues raised on appeal under the “capable of repetition yet evading review” exception to the mootness doctrine relied on by this Court in State Oil & Gas Bd. v. McGowan, 542 So.2d 244 (Miss.1989). McGowan involved a complaint for discovery filed in the Chancery Court of Hinds County, requesting discovery from the Board in connection with a pending matter before the Board. Id. at 245.

¶ 10. In McGowan, this Court found that even though the hearing on the discovery bill had already been held, “and that question is now moot as to this suit,” this issue should be addressed as “within the exception to the mootness rule where the activity is of short duration, but the length of time required to file an appeal is lengthy.” Id. at 249. The Court stated that the “issue [was] capable of repetition, but would otherwise evade judicial review.” Id. at 250 (citing Bd. of Trustees of Pascagoula Mun. Sep. Dist. v. Doe, 508 So.2d 1081 (Miss.1987); Strong v. Bostick, 420 So.2d 1356 (Miss.1982)).

¶ 11. Therefore, this Court finds that this case clearly falls within the criteria established in McGowan to qualify as an exception to the mootness rule and should be addressed.

II. Venue

¶ 12. In the trial court’s order dated March 22, 2002, venue was determined to be “proper in Rankin County, regardless of whether this is a suit against Mike Moore in his official capacity, because Mike Moore is ‘householder and resident citizen’ of Rankin County.”

¶ 13. The trial court relied on Bd. of Trustees of State Insts. of Higher Learning v. Van Slyke, 510 So.2d 490 (Miss.1987), and Holyfield v. State Adams, 194 Miss. 91, 10 So.2d 841 (1942), in reaching its decision. The standard of review employed by this Court in reviewing claims of improper venue is abuse of discretion. Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 135 (Miss.1989). The Defendants argue that venue should have been in Hinds County where the Attorney General’s office is located. The Dealers contend that the complaint for discovery was not an official capacity suit. The Dealers further argue that even if it was an official capacity suit against Moore, venue was proper in Rankin County because it is where he resides.

¶ 14. In Van Slyke, this Court rejected Van Slyke’s argument that venue was proper in any county where the defendant Board did State business by stating that “no venue statute is . so broad.” Van Slyke, 510 So.2d at 493. In rejecting Van Slyke’s argument, the Court determined that since the conduct of the Board affects all of the people in Mississippi and it does business in all eighty-two counties, the Board could be subject to defending suits in all eighty-two counties. Id. The Court held that in an action against the Board which is a “public body” located in Hinds County, venue did not lie in Forrest County because the Board conducted business in Forrest County and remanded the case for an order removing the case to Hinds County. Id. at 492-93. The Defendants contend that the Van Slyke decision regarding venue did not turn on the residence of the individual defendants, but rather upon where the Board was located. While it is true that the Court determined Hinds County to be the proper venue because it is where the Board is located, the Court did note that Van Slyke’s complaint also set forth the names of various parties, the trustees and the executive secretary, none of whom were residents of Forrest County. Id. at 492.

¶ 15. In Holyfield, Rose Adams, as ad-ministratrix of the estate of Eddie Adams, filed suit against Holyfield and the United States Fidelity & Guaranty Company (USF & G), a non-resident corporation, surety on Holyfield’s bond as Sheriff of Rankin County, to recover damages for the death of Eddie allegedly cause by a wrongful act attributed to the Sheriff. Holyfield, 10 So.2d at 841-42. Certain residents of Pike County were joined as garnishee defendants based on the allegation that they were indebted to, or had in their possession property on effects of, the non-resident surety. Id. Holyfield and his bondsman and two other defendants, residents of Rankin County, made a motion to change venue to Rankin County. Id. at 842. The chancellor. denied the motion. Id..

¶ 16. This Court in Holyfield determined that the chancellor erred in not granting the change of venue, stating:

The office of sheriff and the proper performance of his duties are very important to the public welfare. If he could be sued in any county where some one may owe, or have property of his bondsman, then he could be forced to any and all parts of the State to defend litigation, with or without merit, and be greatly hampered in the discharge of his official duties. State ex rel. Weems v. United States Fidelity & Guaranty Co., 157 Miss. 740, 128 So. 503. See, also, City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223.

¶ 17. The Defendants argue that Holy-field is not applicable to the case sub judi-ce because of the Court reliance on Chapter 248, General Laws of Mississippi 1940, page 417. Chapter 248, as cited in Holyfield, provides:

Chapter 248, General Laws of Mississippi 1940, page 417, provides: “Venue of actions, what county generally-actions against public officer to be brought in county of his residence.* * * If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, or if a public officer be sued in any such action, out of the county of his household and residence, although a surety or sureties, or some of the sureties, on his bond, or other joint defendant, sued with him, be found or be subject to action in such county, the venue shall be changed, on his application, * * * to the county of his household and residence,”.

Holyfield, 10 So.2d at 842. (emphasis added).

¶ 18. As the Defendants note, Holyfield is distinguished as the statute, Chapter 248, was not carried forward to the Mississippi Code Annotated of 1972, and therefore, Holyfield is not applicable to the case sub judice.

¶ 19. M.R.C.P. 82(b) provides that “except as provided by this rule, venue of all actions shall be as provided by statute.” See also Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992). Miss.Code Ann. § 11-5-1 (Rev.2002) which governs the proper venue for an action filed in chancery court states:

Suits to confirm title to real estate, and suits to cancel clouds or remove doubts therefrom, shall be brought in the county where the land, or some part thereof, is situated; suits against executors, administrators, and guardians, touching the performance of their official duties, and suits for an account and settlement by them, and suits for the distribution of personalty of decedents among the heirs and distributees, and suits for the pay-, ment of legacies, shall be brought in the chancery court in which the will was admitted to probate, or letters of administration were granted, or the guardian was appointed; other suits respecting real or personal property may be brought in the chancery court of the county in which the property, or some portion thereof, may be; and all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found; and in all cases process may issue to any county to bring in defendants and to enforce all orders and decrees of the court.

(emphasis added).

¶ 20. In the Dealers’ complaint, the discovery sought from Moore was information regarding a verbal agreement he had with the M.B.C.I. regarding its submission to the jurisdiction of the State of Mississippi. The Dealers alleged in the complaint that Moore had represented to their attorneys that the M.B.C.I. had submitted to the State’s jurisdiction. The Dealers argue that such information was in the exclusive knowledge or possession of Moore, and Moore had denied the Dealers’ request for a voluntary deposition. The Dealers’ memorandum in support of their motion to compel discovery and response to the Defendants’ motion for reconsideration, state “in the case of Mike Moore, we simply want to know the result of one of his official actions, namely what agreements he reached in his private dealings with the M.B.C.I.” (emphasis added).

¶ 21. The trial court’s order stated that “whether this is an action against Mike Moore for acts conducted in his official capacity is, at the least, open for debate in that this action is merely a prayer for discovery of material information exclusively in the knowledge or possession of the named defendants, including Mike Moore.” However, we find that clearly the information sought from Moore was information gathered in his official capacity as Attorney General. Without any question, the Defendants are correct that any communication Moore had with the M.B.C.I. regarding the purchase and operation of Frontier Ford would have obviously not been personal in nature. See Brown v. Ford, 112 Miss. 678, 73 So. 722, 723 (1917) (while a suit purported to be against the land commissioner, M.A. Brown, the decree was against the state in its sovereign capacity).

¶ 22. Therefore, the issue before this Court is whether venue was proper in Rankin County on a complaint for discovery brought against the Attorney General’s Office. Miss.Code Ann. § 11-45-1 (Rev.2002) provides that:

Any person having a claim against the State of Mississippi, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant on the treasurer in payment of such claim, may, where it is not otherwise provided, bring suit therefor against the state, in the court having jurisdiction of the subject matter which holds its sessions at the seat of government; and, if there be no such court at the seat of government, such suit may be instituted in such court in the county in which the seat of government may be.

(emphasis added).

¶ 23. Clearly, the proper county in which to have sued the Attorney General’s Office, which is a state agency, is the county in which the seat of government is located. Miss. Const, art. 4, § 101 states that the seat of state government shall be the City of Jackson which is located in Hinds County. Accordingly, this Court finds that venue should have been Hinds County. We find that the trial court erred in its determination that “venue [was] proper in Rankin County, regardless of whether this is a suit against Mike Moore in his official capacity.” Venue should have been moved to Hinds County.

III. Validity of the Administrative Proceeding

¶24. The Defendants argue on appeal that no statutory authority existed to support the Commission’s decision that the Dealers had a right to intervene in the administrative licensing. process. If the Dealers had no right, to participate in the Commission’s administrative hearing, the Defendants contend that the discovery sought by the Dealers in trial court was not proper. In response, the Dealers argue that the Commission’s decision to grant them a hearing was entirely proper and warranted under the applicable statutes involving proceedings before the commission. Both parties argue their interpretation of Miss.Code Ann. §§ 63-17-89 and 63-17-91, which provide for hearings before the Commission as well as Miss. Code Ann. § 63-17-99 which provides the procedure in which to appeal a decision rendered by the Commission.

¶ 25. Neither party appealed any decision rendered by the Commission. The Dealers were allowed a hearing on its objection to the issuance of the license, and the M.B.C.I.’s license to purchase and operate the dealership was not revoked. As the subject of this appeal is strictly limited to the complaint for discovery filed in the Chancery Court of Rankin County, .this Court finds that this issue is not properly before the Court.

IV. Complaint for Discovery

¶ 26. The Defendants contend that the trial court erred in finding that the Dealers’ complaint for discovery was the proper avenue to obtain the requested discovery. The Defendants argue that the information sought by the Dealers could have been obtained by other sources and “less-intrusive means.” The Dealers allege that the information they sought was in the exclusive possession of commissioners Jolly, Carson, and Rogers, executive director Day and Attorney General Moore. According to the briefs, they sought information from the aforementioned commissioners and director as to whether the makeup of the Commission met statutory requirements. The Dealers alleged a conflict of interest by the commissioners. The Dealers further sought information from Moore as to any verbal agreements he had entered into with the M.B.C.I. as Attorney General regarding a waiver of sovereign immunity as to state court jurisdiction and state taxation of the M.B.C.I.’s operation of the dealership.

¶ 27. The Defendants allege that there was no need for discovery from the commissioners because the information was readily available through obtaining the records and minutes recorded when the vote was taken. The Defendants state that the Commission’s records, which speak for themselves, are kept by the Commission’s Executive Director and are available to the public. Further, the Defendants argue that on March 15, 2002, the M.B.C.I. passed a resolution submitting to the jurisdiction of the Commission by its passage of a Tribal Council Resolution. They also argue that the tribal resolution spoke for itself, eliminating a need for discovery from Moore. The Dealers counter that the tribal resolution was only received just prior to the hearing on its complaint for discovery, and it still contained various inadequacies and uncertainties. On April 19, 2002, Chief Martin, on behalf of M.B.C.I., entered into a second tribal resolution which the Dealers contend addressed many of their concerns. The Dealers also argue that as a result of their efforts, a letter dated March 22, 2002, from Chief Martin was also sent to Moore, as Attorney General, as written confirmation to the earlier agreement, made as to state taxation of the dealership operation.

¶28. As to the request for discovery, the trial court ruled:

[Tjhis action for discovery is the proper means for [the] Plaintiffs to obtain the discovery necessary for preparation of their case before the Mississippi Motor Vehicle Commission on April 17, 1002, and, without this discovery, [the] Plaintiffs’ (sic) will be denied due process in these administrative proceedings and subsequent appeals, if necessary.

¶ 29. In the case sub judice, the Dealers sought relief in the trial court solely on the equity of the discovery. The Dealers did not seek to have the trial court assume jurisdiction of the whole controversy on the complaint for discovery. Watson, attorney for the Dealers, argued to the trial court that they experienced difficulty in obtaining a copy of the waiver of sovereign immunity.

¶ 30. Cleveland, as attorney for the Attorney General’s Office, sent letters dated February 25, 2002, February 26, 2002, and February 27, 2002, to Watson, attorney for the Dealers, indicate refusal by Day, Moore and Carson, respectively, to submit voluntarily to being deposed.

¶ 31. In McGoivan, this Court addressed the viability of maintaining a complaint for discovery in equity practice stating:

The bill of discovery is one of the ancient bills used in equity practice ...
It is true that the nomenclature of the legal practice was changed by the abolition of the names of the old writs and procedural names. M.R.C.P. Rule 2. See Dye v. State Ex Rel. Hale, 507 So.2d 332, 337 n. 4 (Miss.1987).... The power and authority of the Chancery Court to grant the substantive relief of “discovery” remains viable and available although it has been broadened and simplified by M.R.C.P. 26-37.
Judicial review may be had of any final rule, regulation or order of the Board. Prior to an appeal from a final rule, regulation, or order, as contemplated by the statute, the Chancery Court has no jurisdiction to participate in the administrative process and it was error to do so when the effect amounted to an intervention in the pending proceeding. However, a litigant is not shut off from all remedies for discovery merely because the rules of civil procedure do not apply or because the role of the administrative agency do not promote it. In appropriate cases a “pure bill for discovery” will lie and statutory remedies may be available to the end that due process be afforded.

542 So.2d at 248-49.

¶ 32. Griffith Mississippi Chancery Practice § 429 at 232 (2000 ed.), provides that “[t]he power and the authority of the chancery court to grant the substantive relief of ‘discovery’ is not only viable and available, but it has been broadened and simplified by the rules.” (footnote omitted). Griffith, § 429 goes on to discuss the four requirements which must be present in order for the chancery court to assume jurisdiction of the whole controversy on a complaint for discovery when there are no other equitable issues present. However, as this is not the situation at hand, § 430 of Griffith provides guidance to the case sub judice.

¶ 33. Griffith § 430, at 234 states in pertinent part:

If the equity of the case depends solely upon the equity of the discovery, the complaint must show that the plaintiff has been diligent and has made reasonable efforts to obtain the information. Accordingly, discovery is not available when it is not shown that the plaintiff has sought to obtain the information by other means, as where he has not called on a public officer who has the facts. Diligence is a general condition to any application to a court of equity. It is not allowable to invoke the aid of the court to procure for the plaintiff that which by reasonable efforts he could himself procure without the court’s aid.
One of the requisites to the plaintiffs showing of diligence ought to be — although the rule has not been so strict in actual practice — that he has applied to the defendant and that a material part of the information sought has been refused or withheld or has been untruly furnished.

(footnote omitted & emphasis added).

¶ 34. This Court finds that the trial court erred in allowing the Dealers’ complaint for discovery. A complaint for discovery exists as a proper means to seek discovery in conjunction with administrative proceedings. However, this Court finds that the Dealers did not demonstrate that they were diligent or made reasonable efforts to exhaust other avenues of obtaining the information without proceeding in trial court on a complaint for discovery.

V. Attorney-Client Privilege.

¶ 35. The trial court entered its order dated March 22, 2002, allowing the Dealers to conduct their discovery in a timely manner not later than April 8, 2002. Cleveland, on behalf of Moore, filed a motion for reconsideration on April 1, 2002, raising on objection to the allowance of discovery. One of the objections raised for the first time in the motion for reconsideration was that “the information sought is protected by the attorney-client, work product and deliberative process privileges.”

¶ 36. The trial court never specifically addressed the privilege objection raised by the Defendants on reconsideration. The trial court entered an order dated April 4, 2002, denying the motion for reconsideration and finding that the Court’s prior order was a final appealable order. The trial court did not grant a stay of any of the proceedings or discovery. As this Court finds that the complaint for discovery was not proper as discussed in issue IV, this issue is moot.

CONCLUSION

¶ 37. This Court finds that venue was not proper in Rankin County. Venue should have been in Hinds County. We further find that the Dealers did not demonstrate that they exercised diligence or reasonable efforts to obtain the information without the need of proceedings on its complaint for discovery. The judgment of the trial court is hereby reversed and rendered.

¶ 38. REVERSED AND RENDERED.

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

      . While Jim Hood succeeded Mike Moore as Attorney General-of Mississippi on January 8, 2004, we refer to Mike Moore for the sake of . simplicity.