source: Caselaw Access Project

author: McRAE, P.J., SMITH, P.J,

license: Public Domain

text:
    MISSISSIPPI TRANSPORTATION COMMISSION v. HIGHLAND DEVELOPMENT, LLC and Highland Development General Partnership.
    No. 2001-CA-00883-SCT.
    Supreme Court of Mississippi.
    Dec. 5, 2002.
    Rehearing Denied Feb. 6, 2003.

      Barry Stuart Zirulnik, Jackson, Holla-man Martin Raney, Clarksdale, Billy Don Hall, Jackson, attorneys for appellant.
    Paul R. Scott, Hernando, attorney for appellees.
    Before McRAE, P.J., EASLEY and GRAVES, JJ.
   McRAE, P.J.,

for the court.

¶ 1. A jury in the Special Court of Eminent Domain in DeSoto County awarded Highland Development, LLC and Highland Development General Partnership (“Highland” collectively) damages in the amount of $2,300,000 for the condemnation of 37.3 acres of its land for public use and damages to the remaining property. On appeal, the Mississippi Transportation Commission (“MTC”) asserts that the trial court erred in (1) denying a new trial because the jury award is not based on credible facts and is so excessive as to evince bias, passion and prejudice, (2) allowing portions, of Highland’s expert testimony, (3) denying its motion for a new trial because Highland’s valuation expert allegedly failed to adhere to proper appraisal principles, and (4) refusing to strike for cause potential jurors.

¶ 2. While this was not the best tried case, we find no prejudicial error or any abuse of discretion that warrants reversal. The disparity in the experts’ valuations alone is not indicative of bias, passion and prejudice. Both expert opinions were attacked through direct and cross-examination and with rebuttal testimony in the presence of the jury. A close review of the record indicates fault in both opinions, and the jury decided whether the respective testimony was credible. More importantly, the jury had the opportunity to view the property and assess their own damages independent of the experts’ opinions. We find no reason to disturb those findings. Finally, we find that the trial court did not impede upon MTC’s right to exercise peremptory challenges. We, therefore, affirm the judgment based on the jury verdict.

FACTS

¶ 3. Neil Burckart, a principal of Highland, obtained an option to purchase 462.3 acres in DeSoto County for residential development. Currently, 134 acres of the land is developed, and 328 acres contains a 102 acre lake and is otherwise undeveloped. Nine lots were sold from August through December of 1994, seventeen in 1995, seventeen in 1996, thirteen in 1997, two in 1998, and two in 1999. In 2000, MTC initiated condemnation proceedings for 37.3 acres to be used in the relocation and reconstruction of Mississippi Highway 304. At that time, there were 79 unsold subdivision lots which were from 1/5 to"3/4 mile away from the highway.

¶ 4. MTC’s expert valuation appraiser, Dan Loflin, Jr., estimated the before value of the entire tract to be $2,813,700. He valued the undeveloped 226 acres, excluding the lake, at $4,000 per acre for a total of $906,500. He valued the unsold lots at $29,500 each and allowed for an absorption period of 4 years at a sales rate of 18 lots per year to reach the estimated net present cash value of the unsold lots at $1,907,200.

¶ 5. Loflin’s total after value estimation is $2,615,925. He found that the value of the subdivision lots and the remaining undeveloped acres was unaffected by the project. He valued the 189 remaining acres (226 acres minus the acquired 37 acres) at the same $4,000 per acre for a total of $757,200. Loflin determined that the cost of relocating the sewage lagoon, including engineering and design costs to be $48,475. The difference between Loflin’s before ($2,813,700) and after ($2,615,925) values equals $197,775, his estimation of just compensation. Loflin attributed the drop in lot sales to varying topography, competition from other developments, or interest rates.

¶ 6. Kip Walker, Highland’s valuation expert, estimated the total value of the land before the taking to be $4,260,000. He valued the 79 developed lots at $32,000 per lot totaling $2,528,000; 211.6 acres of undeveloped land at $8,000 per acre totaling $1,693,298; 15 acres with low elevation at $2,500 per acre totaling $37,500; and gave no value to the 102 acre lake.

¶ 7. Walker estimated the total value after the taking to be $1,960,000. This figure includes the 79 developed lots at $17,500 per lot totaling $1,382,500; 50 acres of undeveloped land south of the new highway within 750 feet of the new highway line at $2,500 per acre totaling $125,000; 109.34 acres of undeveloped land south of the new highway fronting on Green River Road at $4,000 per acre totaling $437,344; 20 acres of undeveloped land north of the new highway at $1,000 per acre totaling $20,000; 15 acres of land with low elevation at $2,500 per acre totaling $37,500; and no value to the 97 acres left of the lake for a subtotal of $2,002,344. From this subtotal, Walker subtracted $45,000 for the cost to reconstruct the sewer lagoon for the rounded total of $1,960,000. The difference between Walker’s before ($4,260,000) and after ($1,960,-000) values equals $2,300,000, his estimation of just compensation.

¶ 8. Hartley Fairchild, an expert, rebutted much of Walker’s testimony. He basically concluded that the subdivision was poorly planned and that the remaining lots did not sell because the topography made grading more expensive and the lots less desirable. He also testified that the highway plans had a positive impact on the subdivision due to close proximity.

¶ 9. MTC filed several motions in limine and a motion to strike much of Walker’s testimony, all of which the trial court denied. After viewing the property and hearing testimony for five days, the jury unanimously awarded Highland $2.3 million as just compensation and damages to the remainder. In accordance with the verdict, the trial court entered judgment for Highland. After being denied a new trial, MTC timely appealed to this Court.

DISCUSSION

I. Whether the jury award of $2,300,000 was based on conjecture, supposition or mere possibilities and was so grossly excessive as to evince bias, passion and prejudice.

¶ 10. We review the denial of a new trial for abuse of discretion. Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 722 (Miss.2001). Also, in eminent domain cases, we must be satisfied that the award was not so excessive as to evince bias, passion, or prejudice and that it is supported by competent facts, not conjecture, supposition, or mere possibilities. Miss. State Highway Comm’n v. Viverette, 529 So.2d 896, 900 (Miss.1988)

¶ 11. This entire ease boils down to a battle of the experts. MTC argues that the disparity in valuations evinces bias, passion and prejudice or at least raises a red flag of doubt as to whether the jury was furnished -with a reasonable basis upon which to fix the value of the property. To support this contention, MTC submits that Walker’s testimony was based on conjecture, supposition or mere possibilities. MTC complains that Walker used “judgment” where there was no factual data, and therefore he was speculating. The trial court allowed Walker’s testimony noting that Walker could be questioned on cross-examination.

¶ 12. MTC notes that this Court has held that a “disparity in value could only have bias and prejudice for the jury in them duty of reaching a fair valuation.” McDuffie v. Miss. State Highway Comm’n, 239 Miss. 518, 522, 124 So.2d 284, 285-86 (1960). No explanation is provided for the holding. There were two witnesses for the State whose valuations were within $50 of each other. The landowners’ witness testified that the property was worth almost five times as much. Id. at 285. However, in the case sub judice only two valuation experts testified; there was not a third expert to corroborate or discount the two experts’ figures.

¶ 13. MTC also cites four other cases where this Court has reversed the jury award or suggested a remittitur when there has been a vast discrepancy in valuation amounts. See Miss. Power Co. v. Walters, 204 So.2d 471 (Miss.1967); Miss. State Highway Comm’n v. Trammell, 252 Miss. 413, 174 So.2d 359 (1965); Miss. State Highway Comm’n v. Hillcrest Farm, Inc., 252 Miss. 154, 171 So.2d 491 (1965); Miss. State Highway Comm’n v. Pepper, 250 Miss. 347, 164 So.2d 911 (1964).

¶ 14. However, more recently we have noted that it is not uncommon for damages estimates to vary widely in condemnation cases. State Highway Comm’n v. Warren, 530 So.2d 704 (Miss.1988), Smith v. Miss. State Highway Comm’n, 423 So.2d 808 (Miss.1982). Also, we have hesitated to interfere with jury verdicts in eminent domain cases especially when the jury has viewed the land. Miss. Transp. Comm’n v. Bridgforth, 709 So.2d 430, 441 (Miss.1998); State Highway Comm’n v. Havard, 508 So.2d 1099, 1105 (Miss.1987).

¶ 15. MTC claims that it was merely taking 37 acres of undeveloped land and was doing no damage to the remainder. Highland asked the jury to consider damage to the whole property. We have noted that

the rule in this State is that when a part of a larger tract of land is taken for public use, the owners should be awarded the difference between the fair market value of the whole tract immediately before the taking and the fair market value of the remaining property immediately after the taking, without considering the general benefits or injuries to the use of the taken land.

Miss. State Highway Comm’n v. Hancock, 309 So.2d 867, 870 (Miss.1975). Also in eminent domain cases we are “not at liberty to order a new trial unless the verdict is so at variance with the evidence as to shock the conscience of the court ...” Id. Further, if there is any substantial evidence supporting the award, we will not interfere, especially when the jury has viewed the property. See Bridgforth, 709 So.2d at 441; Miss. State Highway Comm’n v. Franklin County Timber Co., 488 So.2d 782, 787 (Miss.1986) (citing City of Jackson v. Landrum, 217 Miss. 10, 63 So.2d 391 (1953)).

¶ 16. The jury members are all taxpayers, and they know that the money paid in eminent domain proceedings essentially comes out of their pockets. Further, the jury is not bound by the opinions of the experts; the jury is free to assess its own damages independently of the opinions offered. See Franklin County Timber Co., 488 So.2d at 787 (citing Miss. State Hwy. Comm’n v. Terry, 288 So.2d 465, 466 (Miss.1974)).

¶ 17. The verdict here is supported by the evidence and is not outrageous or extravagant. Indeed, there was considerable testimony by both experts, and the award is the exact amount that Walker opined to be just compensation. The fact that the two experts have differing opinions as to the valuation of the property does not on its face indicate that there was bias or prejudice. See Franklin County Timber Co., 488 So.2d at 788.

¶ 18. Every complaint on appeal regarding Walker’s testimony, and Burc-kart’s for that matter, was brought out at trial in front of the jury either through direct examination, cross-examination or with rebuttal testimony. The jury viewed the land, heard the experts’ opinions along with the extensive cross-examination and rebuttal testimony, and made an assessment. We find no reason to disturb these findings.

II. Whether the trial court erred in allowing portions of Walker’s testimony.

¶ 19. MTC contends that it was error for the trial court to allow Walker and Burckart to attribute damages to the announcement of the proposed plans claiming that it violated the before and after rule. The trial court denied MTC’s motion in limine and objections at trial to the allowance of their testimony in this regard.

¶ 20. In Pearl River Valley Water Supply Dist. v. Wood, 252 Miss. 580, 172 So.2d 196 (1965), this Court held that the date of the taking is the date the condemnation proceedings are initiated. This is the date from which the before and after values should be determined, not the date of publication or announcement of plans. In Wood, lot prices increased immensely after condemnation plans were announced. Nevertheless, the date the proceedings were commenced, three years later, was the date from which valuations should have been based. Id.

¶ 21. Just as a developer’s decision to stop development in a subdivision upon learning of a potential condemnation proceeding cannot be used in the valuation process, the effects on property values after an announcement is made but before proceedings are initiated cannot be attributed to damages. See Jackson County Dev., Inc. v. Miss. State Highway Comm’n, 262 So.2d 416 (Miss.1972). This Court has clearly rejected evidence of enhancement or diminution in value due to publication of plans in arriving at the before value. See Wood, 252 Miss. 580, 172 So.2d 196.

¶ 22. Burckart testified that the 1997 announcement of the proposed highway plans may have been one of the reasons for the decline in sales especially since once he learned of the plans, he told prospective buyers of them. Burckart also testified that there were other possible causes and did not merely limit his reasoning for the decline in sales to the announcement of the project. His testimony as to the valuation and damage to his land is allowed as long as he does not hold himself out as an expert. See Potters II v. State Highway Comm’n, 608 So.2d 1227, 1235 (Miss.1992). There is no indication that Burckart’s testimony was in violation of this principle.

¶ 23. Walker testified that the value of the lots in 1997 was $17,500 and that he increased the value per lot to $32,000 per lot “because of the stagnation in lot sales, and the fact that the subdivision was not successful in selling lots past that point, and because it was typical or common for other subdivision lots in the county for the value or prices to increase along with the value of the raw land.” He claimed that the highway plans were not part of his analysis of the property value. Walker was questioned and cross-examined at length about this and other statements. The issue then became one of credibility, not admissibility, and Walker’s credibility was certainly attacked at every corner. MTC was denied no opportunity to discredit his testimony.

¶ 24. Loflin, too, was questioned at length about his appraisal. The record is riddled with testimony that indicates that it is not unreasonable for the jury to have discounted Loflin’s opinions and given more weight to Walker’s. “It is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.” Clark v. Ill. Cent. R.R., 794 So.2d 191, 198 (Miss.2001). Therefore, the trial court did not err in admitting Walker’s testimony. See Franklin County Timber Co., 488 So.2d at 787.

III. Whether the trial court erred in denying MTC’s motion for new trial since Walker did not use certain appraisal principles in deriving fair market value.

¶ 25. MTC argues that Walker applied an improper appraisal methodology and as a consequence, did not provide the jury with fair market values thereby yielding grossly inflated figures. Because of this, MTC contends that it was error for the trial court to deny it a new trial.

¶ 26. Specifically, Walker testified that if he was appraising the value of the subdivision for a buyer or a lender for mortgage purposes, he would apply a discount rate because the buyer or lender would factor a reasonable time for 79 lots to sell, i.e. an absorption rate. He explained that the value in those appraisal circumstances would be discounted back to present value. He stated that in eminent domain proceedings discounting is not appropriate because the “buyer” is acquiring the land at one time, as of the date of the taking.

¶ 27. The standard for determining the fair market value is

the sales price that would be negotiated between knowledgeable and self interested persons, one who wants to purchase and one who wants to sell, the seller being under no obligation or compulsion to sell, and the buyer being under no necessity of having the property.

Potters II, 608 So.2d at 1231.

¶ 28. Highland submits that the issues were not properly preserved for appeal as no contemporaneous objection was made and it was not included in MTC’s motion to strike Walker’s testimony. Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709 (Miss.2001). Rather, this issue was not specifically raised until MTC filed a motion for judgment not withstanding the verdict or new trial. MTC counters that its motion to strike Walker’s testimony for generally failing to adhere to the before and after included the proper legal standard for valuing property.

¶ 29. Pursuant to Miss. R. Evid. 103(d), we may address this issue, even though it may not have been specifically preserved through objection at trial, if there was plain error. See also State Highway Comm’n v. Hyman, 592 So.2d 952, 957 (Miss.1991). We find no error.

¶ 30. Walker appraised the property as of the date of the taking. Therefore, it is not necessary to take into account an absorption rate when the property is being “sold” as of that date. The knowledgeable buyer in this case was buying the property on that date. This holding is not in contravention to Potters II.

IV. Whether the trial court’s refusal to strike for cause potential jurors effectively abrogated MTC’s rights under Miss. R. Civ. P. 47.

¶ 31. MTC requested that thirteen jurors be stricken for cause, but only two were stricken. Five others were removed with MTC’s peremptory challenges. The trial court declined to excuse the others. Two of them actually served on the jury, and a third served as an alternate. MTC contends that by failing to strike the jurors for cause, the trial court forced MTC to use its peremptory challenges, and thereby effectively abridged MTC’s right to exercise peremptory challenges pursuant to Miss. R. Civ. P. 47(c).

¶ 32. MTC relies upon United States v. Nell, 526 F.2d 1223 (5th Cir.1976), where the court reversed a jury verdict for failure to excuse individuals for cause. In Nell, the defense was forced to strike juror Bougher with a peremptory challenge after the trial court refused to strike him for cause even though his strong opinions and prejudices were acknowledged. Id. at 1228. Another juror had personal knowledge regarding one of the claims, and even though he stated he could be impartial, the trial judge did not question him as to the possibility or the depth of his potential prejudice. Id. at 1229.

¶ 33. MTC also cites City of Live Oak v. Townsend, 567 So.2d 926 (Fla.Dist.Ct.App.1990) in which similar questions were posed during voir dire, but the potential jurors were more adamant and zealous about their opinions, and most of them stated that they would not follow instructions contrary to their opinions regarding eminent domain. Id. at 927.

¶ 34. We have noted that “[a] trial court has wide discretion in determining whether to excuse prospective jurors, including those challenged for cause.” Smith v. State, 802 So.2d 82, 86 (Miss.2001). Further, the trial judge “due to his presence during the voir dire process, is in a better position to evaluate the prospective juror’s responses ...” Id. (citing Wells v. State, 698 So.2d 497, 501 (Miss.1997)). Therefore, we will not set aside a determination that a juror is fair and impartial unless the trial judge was clearly wrong. Id. (citing Wells, 698 So.2d at 501).

¶ 35. The circumstances in Nell and Townsend are not comparable to this case. Here, none of the potential juror’s expressed rigidness in their opinions. After being polled individually by the judge, they each vowed that they would remain impartial and follow the law and instructions of the court. Ample measures were taken to ensure a fair and impartial jury. See Tighe v. Crosthwait, 665 So.2d 1337, 1339-40 (Miss.1995). Hence, the trial court did not abuse its discretion in declining to strike certain jurors for cause; and therefore it did not impede upon MTC’s right to exercise peremptory challenges.

CONCLUSION

¶ 36. The disparity in the experts’ valuations alone is not indicative of bias, passion and prejudice. Both expert opinions were attacked through direct and cross-examination, and with rebuttal testimony in the presence of the jury. A close review of their testimony indicates fault in both opinions. More importantly, the jury had the opportunity to view the property and assess their own damages. Quite simply, the jury gave more credibility to Highland’s expert, and we find no reason to disturb that finding. Also, we find the trial court did not abuse its discretion in declining to strike certain jurors for cause, and therefore it did not impede upon MTC’s right to exercise peremptory challenges. Finding no reversible error or abuse of discretion, we hereby affirm the trial court’s judgment entered on the jury verdict.

¶ 37. AFFIRMED.

DIAZ, EASLEY AND GRAVES, JJ, CONCUR. SMITH, P.J, DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WALLER AND COBB, JJ. PITTMAN, C.J, AND CARLSON, J„ NOT PARTICIPATING.

SMITH, P.J,

dissenting:

¶ 38. In my view, the trial court erred in denying MTC’s motion for new trial on all issues raised. The majority’s discussion, analysis and results are incorrect as to every issue. I am therefore compelled to dissent.

¶ 39. Proper exercise of this Court’s judicial function does not require it to believe the incredible. The total disregard of any factual basis for the assigned damages were so extreme, that in testifying to $2,300,00 in damages, the appraiser for Highland, Kip Walker, did not even bother to review construction plans concerning Highway 304 as it relates to the subject property. Because of the extreme, unreasonable, and unsupported valuations which Walker placed on damages to the land, there is no believable evidence to support the verdict in this case. The jury was allowed to .consider a myriad of possibilities as to why lot sales fell, to speculate and surmise, but had no competent, factual basis to award damages so grossly excessive as to most assuredly evince bias, passion and prejudice.

¶ 40. By his own admission, Walker lacked any factual data to support the tremendous amount of damages he assigned to the remainder land. He presented no comparable sales. Preferring to look at the “big picture,” Walker proceeded to assign damages of a 45% reduction-in value ($14,500) per lot to each of the unsold lots for a total of $1,145,000. He damaged an additional 109 acres of undeveloped land by 50% of its value, again, regardless of distance from or view to the highway. This added another $437,344 in damages to the remainder. Continuing to admit he had no supporting data, another $275,000 in damages was assigned to 50 acres (a 69% reduction in value) within 750 feet of highway right of way. Indeed, comparable sales within a few hundred feet of 1-55 were utilized by Walker to derive a before value of $8,000 per acre for undeveloped land; the same land he would then testify to be worth only $2,500 in the after condition due to highway proximity— the same price he testified that land next to a sewage lagoon.

¶ 41. The Court has previously addressed cases where a tremendous gap existed, though few if any as wide as presented here. In McDuffie v. Mississippi State Highway Commission, 239 Miss. 518, 522, 124 So.2d 284, 285 (1960), this Court noted the condemnee’s valuations before the taking were two and a half times those of the Commission’s witnesses. This Court said: “Such disparity in value could only have bias and prejudice for the jury in their duty of reaching a fair valuation. The disparity is shocking to the enlightened conscience.” Id. The same language was quoted in Mississippi State Highway Commission v. Hillcrest Farm Inc., 252 Miss. 154, 164, 171 So.2d 491, 495 (1965), where the Court was presented with the Commission’s valuation in the range of $11, 850 to $22,300 versus the landowner’s range of $103, 692 to $125,880. First noting that the landowner’s witnesses figured damages six to seven times higher, the court observed that as in Mississippi State Highway Commission v. Pepper, 250 Miss. 347, 380, 164 So.2d 911, 926 (1964),

It is astonishing to note the vast gulfs of difference between the respective appraisals of appellant’s and appellee’s witnesses. It is incomprehensible that reasonable men, who are unbiased and qualified to make impartial appraisals can objectively be as far apart in their deliberate conclusions as is reflected in this schedule.

In Mississippi State Highway Commission v. Trammell, 252 Miss. 413, 415, 174 So.2d 359, 361 (1965), the Court noted that it “sometimes appears that the witnesses are testifying about entirely different property.” With damage figures of approximately $4,000 from the Commission witnesses and $35,212 to $55, 591 from the landowner, the Court noted:

It may be seen readily that the difference in value testified to by witnesses for the Commission and those.for the landowners is so great that the testimony really does not furnish the jury with a reasonable basis on which to fix the value of the property to be taken and the resulting damages. A jury, after considering the testimony and viewing the property, must fix a value, and it is not surprising that under such testimony as we have here its verdict in many cases is grossly excessive.

174 So.2d at 361.

¶ 42. In Mississippi Power Co. v. Walters, 204 So.2d 471 (Miss.1967), the Court, faced once again with a great disparity in values ($1,700 versus $18,000 to $23,700) which it described as a “great gulf of Laza-rían proportions,” explained that “becomes necessary to consider the nature, adequacy and worth of all the testimony offered by the litigants with reference to damages sustained by the Appellees.” Id. at 473.

¶ 43. The acquisition in the case sub judice was of 37 acres of undeveloped wooded land taken from a 462 acre tact with extremely steep topography. Of the $2,300,000 award, $1,997,844 was for damages to the remainder land. Neil Burc-kart, a Highland principal, failed to testify to adverse effects on his improvements. Burckart acknowledged that the topography of the remaining lots, the increase in market competition and rising interests rates were other possibilities for a decline in sales. While Burckart acknowledged these factors as his client, Walker testified that he could not think of any other possibilities.

¶ 44. Walker’s only assertion was that the decline in lot sales and values resulted from the announcement of highway plans. This does not give rise to an allowable damage claim. Neither Walker’s qualifications as an expert witness nor the discretion normally afforded the trial court can justify the unreasonable and factually unsupported valuations Walker placed on the remainder land.

¶ 45. Highland says it has presented substantial and compelling evidence in support of the $2,300,000 award. Reviewing the record demonstrates the award to be beyond all measure, unreasonable, and so shocking to the conscience that it evinces bias, passion and prejudice on the part of the jury. State Highway Comm’n v. Warren, 530 So.2d 704, 707 (Miss.1988). In sum, the record clearly demonstrates that Walker’s testimony at best, is based on nothing more than conjecture, supposition or mere possibilities when attributing dwindling subdivision sales and extrapolated diminished undeveloped land values to the announcement of Highway 304 plans.

¶ 46. Second, considering the erroneously admitted evidence, it is clear that the before value was derived by including a non-compensable claim to damages resulting from announcement of highway plans. The before and after rule was violated and the values were based on speculative, inadmissible evidence.

¶ 47. Highland’s approach violates the before and after rule and allowing such evidence was error as a matter of law. This Court has explained that whether the trial court erred in allowing evidence departing from the before and after rule is a question of law and that the proper standard of review of questions of law is de novo. Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997). The Court must reverse for erroneous interpretations or applications of the law. Where a court has exercised its discretionary authority in such a way that it misperceives the correct legal standard for admitting evidence, the deference customarily afforded trial courts in decisions concerning admissibility of evidence is precluded, because the error has become one of law. Id.

¶ 48. Additionally, the privilege to testify as an expert is not without bounds. This Court, under M.R.E. 702 remains the gatekeeper to assure that what is testified to has a requisite degree of general acceptance and reliability. As this Court has explained:

Rule 702 does .not relax the standard that the expert must indeed be qualified to speak an opinion on a matter within his alleged field ok knowledge, nor does it relax the requirement that the scientific principle from which the expert’s opinion is derived must be sufficiently established to have gained general acceptance in the particular field to which it belongs.

Kansas City So. Ry. v. Johnson, 798 So.2d 374, 382 (Miss.2001)(citing M.R.E. comment) (quoting Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)). See also Bernhardt v. Richardson-Merrell, Inc., 723 F.Supp. 1188, 1192 (N.D.Miss.1988), aff'd, 892 F.2d 440 (5th Cir.1990)(“Trial courts cannot accept uncritically any sort of opinion by an expert merely because his credentials render him qualified to testify... .Whether an expert’s opinion has an adequate basis and whether without it an evidentiary burden had been met are matters of law for the court to decide.”).

¶ 49. Walker acknowledges no factual data to support his opinion that the remainder property was damaged 50% and more. Nor did Walker offer any appraisal rule, principle or affidavits indicating that his allegations of extensive damages was even remotely established to have gained general acceptance in the field of appraising. Absent the above, Walker left the realm of expert and crossed the line into inadmissible speculation. In fact, throughout the course of his examination, the court repeatedly requested Highland’s counsel to establish admissible evidence forming the basis for Walker’s opinion in accordance with M.R.E. 705.

¶ 50. When the court overruled MTC’s motion in limine and continuing objections at trial, the court erred in allowing Burc-kart and Walker to attribute alleged damages to the announcement of proposed plans for Highway 304 in 1997.

¶ 51. Mississippi jurisprudence makes clear that the date of the fihng of the complaint is the date as to which the land derives its immediately before and after value for assessment of damages. The law rejects claimed damages due to diminution of property values based on announcement of highway plans. The court erroneously allowed the landowners to calculate damages based on values as of 1997 rather than the date of fihng. Evidence erroneously admitted, and upon which the jury’s verdict was based, was not directed to the time of taking on March 22, 2000, resulted in a violation of the before and after rule in measurement of just compensation.

¶ 52. Walker’s testimony circumvented the before and after rule, testifying that lot values in 1997 and thereafter to be $17,500. Rather than adopting this figure (assuming factual support) as his immediately before value as of March 22, 2000, Walker increased the value per lot to $32,000, testifying that but for the prospective presence of Highway 304, land appreciation should have brought these prices by March 2000. His estimations of value immediately before and after publication of highway plans were derived from 1997. He testified to them as if it were immediately before and after March 22, 2000. He was allowed over objection to testify that the value of the lots immediately after March 22, 2000 was $17,500. There is no escape from the fact that his claim of damages occurred in 197 and this purported after value was in reality Walker’s before value. At the trial, Highland acknowledged that Walker’s approach selected values three years earlier and assigned these values to March 22, 2000, but maintained the approach was proper.

¶ 53. The Court has addressed the issue of claimed enhancement or diminished property value as a result of public announcement of projects in Pearl River Valley Water Supply District v. Wood, 252 Miss. 580, 172 So.2d 196 (1965). This Court has made clear that publication of such plans and the making of those plans available for the public comment are not binding on the Commission, do not constitute any degree of certainty with respect to the final location of the project and do not constitute the binding notice for purposes of the taking of property and calculation of just compensation. Id. at 203. The legal notice is the date of institution of the suit in the Special Court of Eminent Domain. Id. In Pearl River, this Court clearly rejected publication of plans to constitute a taking so as to allow the jury 'to consider evidence of enhancement or diminution of value of property in arriving at the “immediately before” value, the Court ruled:

Thereafter, if the appellant had not agreed and stipulated that June 1, 1964 was the date of the taking, a day almost two years subsequent to the date of institution of the eminent domain suit on October 18, 1962, the latter date would have constituted the date of this taking, but certainly not March 19, 1959, the date of the publication of the District’s authorization and contemplated condemnation.

Id. at 201.

¶54. In Highway Development Co. v. Mississippi State Highway Commission, 343 So.2d 477, 479 (Miss.1977), the Court reiterated that neither the newspaper publication of plans nor plans viewed at the Commission offices nor even stakes in a field are binding on the Commission as a taking and that the date as to which land derives its before and after value is the date of filing of the condemnation suit.

¶ 55. Our Court’s decisions are in accord with federal jurisprudence on this issue. In Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240 (1939), the federal government sought to condemn a perpetual easement of flowage-in connection with the Mississippi Flood Control Program. The decision explains that “just compensation” for property taken for public purpose is, as in Mississippi, the value of the property at the time of the taking. Danforth, 308 U.S. at 283, 60 S.Ct. 231. The landowner argued that the passage of the Flood Control Act immediately diminished the value of his property due to its contemplated use as a flood way and that the Fifth Amendment required just compensation be measured from that date. The Supreme Court responded “a reduction or increase in the value of the property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership. They cannot be considered as a ‘taking’ in the constitutional sense.” Id. at 285, 60 S.Ct. 231. The United States Supreme Court rejected announcement of plans to constitute a taking for valuation purposes for much the same reasons of uncertainty as does this Court, explaining: “The mere enactment of legislation which authorizes condemnation of property cannot be a taking. Such legislation may be repealed or modified or appropriations may fail.” Id. at 286, 60 S.Ct. 231.

¶ 56. In Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984), a manufacturer of forest products sought compensation for claimed diminished value of land as a result of the publication of plans and initiation of the condemnation proceeding. In rejecting this argument and denying compensation for reduced land values, the U.S. Supreme Court explained that while the initiation of condemnation proceedings and publication of lis pendens notice may have reduced the selling price of the land, impairment of the market value of the property incident to otherwise legitimate governmental action ordinarily does not result in a taking and did not do so in that case. Id. at 15, 104 S.Ct. 2187. Noting that identification of the time a taking of land occurs is crucial to determination of the amount of compensation to which a landowner is constitutionally entitled, the United States Supreme Court explained:

The fling of a complaint in condemnation and a notice of lis pendens, petitioner contends, has the effect of preventing the owner of unimproved land thereafter from making any profitable use of it, or of selling it to another private party... .Such a thoroughgoing abrogation of the owner’s rights, petitioner submits, surely constitutes a taking as soon as abrogation is effective, regardless of when the land is officially appropriated under the terms of the statute.... However, we do not find, prior to the payment of the condemnation award in this case, in [sic] interference with petitioner’s property interests severe enough to give rise to a taking under the foregoing theory. Until title passed to the United States, petitioner was free to make whatever use it pleased of its property.... Nor did the Government abridge petitioner’s right to sell the land if it wished. It is certainly possible, as petitioner contends, that the initiation of condemnation proceedings, publicized by filing of a notice of lis pendens, reduced the price that the land would have fetched, but impairment of the market value of real property incident to otherwise legitimate government action ordinarily does not result in a taking. At least, in absence of an interference with an owner’s legal right to dispose of his land, even a substantial reduction of the attractiveness of the property to the potential purchasers does not entitle the owner to compensation under the Fifth Amendment.

Id. at 13-15, 104 S.Ct. 2187 (footnotes and citations omitted).

¶ 57. In sum, Walker’s testimony as to value did not follow the before and after rule and was not directed to the time of the taking on March 22, 2000, but rather to the time of the newspaper articles and publication of the highway plans three years earlier, in 1997. In determining fair market value, the Court, even under the most liberal interpretation of the work “immediately” has rejected construing such to mean fair market value three years earlier than the date that the eminent domain suit was filed.

¶ 58. Walker also failed to present any admissible and legally sufficient evidence for his assigned lot value of $17,500 immediately after March 22, 2000. The only value given was listings to which the trial court sustained an objection to such use and instructed the jury to disregard the listing prices. Another objection was overruled by the trial court which allowed Walker to testify to claimed damages to undeveloped land within 750 feet of the right of way after he admitted to having “no solid factual date to base that on.” The trial court expressed hope that he would add to his testimony. However, he never gave any basis and said that “nobody knows what it’s going to be like once the road is actually finished.” This testimony did not go to the valuation of the property immediately before and after March 22, 2000. An objection was also sustained to this testimony as speculative. Highland simply moved on to his “opinions” without any factual basis given for the after value than the reason objected to and properly sustained, the fear in 1997 of the unknown effect of the presence of Highway 304. The comment by the trial court that it knew Walker would give some factual basis to his after value only enhanced the likelihood of an excessive verdict. The trial court erred as a matter of law in failing to strike Walker’s “after” value testimony once the lack of foundational facts and evidence required under M.R.E. 705 was demonstrated. Thirdly, I also disagree with the majority in considering Walker’s testimony, incorrectly carving out an exception to proper appraisal methodology. Walker admitted that he failed to apply proper appraisal principles and methodology when valuing the damage to the unsold subdivision lots at $1,145,500. Acknowledging that the price that a knowledgeable buyer would be willing to pay for these lots must be discounted to present cash value to allow time for the lots to sell, i.e. absorption rate, Walker excused his failure to do so based upon the erroneous assumption that different rules apply in eminent domain cases. Of course, this is not true and, by definition, fair market value is the price a knowledgeable buyer would be willing to pay. In failing to apply a discount rate, the claimed damage assigned to unsold lots was inflated by hundreds of thousands of dollars which the jury, in accepting Walker’s testimony, fully awarded. As a matter of law, fair market value was not presented by Walker’s testimony and the trial court erred in refusing to grant a new trial.

¶ 59. Walker acknowledged that proper appraisal principles in determining fair market value of the 79 subdivided lots required both discounting the derived before and after values to net present value. Walker explained that the discount rate is required to recognize that a knowledgeable buyer, in arriving at the purchase price for subdivision lots, would make allowance for a period of time to sell those lots. He referred to this time as the absorption period. Walker then testified that though this approach is required for buyers or mortgage lenders, “it is not appropriate to do it [in eminent domain] when you are doing an appraisal as of he date of taking and condemnation.” In excusing his failure to do a proper appraisal by attributing it to prohibitions imposed by eminent domain law, the issue itself becomes a question of law. Fires, 693 So.2d at 920 (Introduction of evidence based on the alleged departure from the before and after rule is an issue concerning application of the proper legal standard for valuing property and it is a question of law).

¶ 60. The majority cites Potters II v. State Highway Commission, 608 So.2d 1227 (Miss.1992), to argue that Walker should be given substantial discretion as to the factors used to establish his opinion. It is suggested that his failure to discount the before and after values he derived were issues of credibility subject to cross examination rather the admissibility. In actuality, the Potters II decision lends strong support to a finding of plain error. In that case, the appraiser maintained that the proper appraisal using the cost approach to value required the inclusion of business related franchise fees, start up costs, and entrepreneurial incentive. In affirming the trial court’s exclusion of such evidence, this Court explained:

Here, two principles are at odds with one another. An expert witness by definition will be familiar with the types of theory and date on which he ought to rely in giving his opinion. See Rules 703, 703 Miss. R. Ev. When, as here, an expert opines that certain factors have to be considered in order to properly establish fair market value, we necessarily accord the expert substantial discretion. Attacks upon his foundational opinions often confuse admissibility with credibility. On the other hand, the expert has no authority to restate the law. Here the law provides what is being taken is a parcel of real estate to be valued at its highest and best use. But this does not afford an appraiser a license to testify as to value components of something that is not being taken, i.e., the particular business Potters, II was pursuing, the Burger King franchise and its various accouterments.

Potters II, 608 So.2d at 1234 n. 7

¶ 61. Applying the distinction in Potters II prohibits Walker from carving out an exception to proper appraisal methodology by telling the jury that the law of eminent domain prohibited valuation using proper technique because the damage was done as of the date of the taking. The definition of fair market value does not change as a result of eminent domain. When a partial taking occurs, fair market value is calculated twice, immediately before and after the taking. The knowledgeable buyer, on such occasions, would still factor the period of time it would take to sell 79 lots (and the interim finance costs associated therewith) in deriving a fair market value in the before condition as well as the after condition. Walker’s expertise did not vest authority in him to restate the law of eminent domain which in no way prohibited him from using what he otherwise admitted to be application of proper appraisal methods and principles. In refusing to do a proper appraisal on the unsold lots using a discount rate, Walker inflated both his before and after values and increased his damage estimate.

¶ 62. This is not an issue of credibility. It is an issue of admissibility. By wrongfully attributing his failure to adhere to proper appraisal methodology to the requirements of eminent domain law, Walker inflated his damage figure by hundreds of thousands of dollars which was then included in the jury’s award.

¶ 63. Finally, I disagree with the majority’s discussion, analysis and result in considering MTC’s jury challenges for cause. The jury was composed of certain individuals who candidly expressed doubt as to whether he or she would be able to render an impartial verdict based solely on the evidence and the law. The circumstances seriously lend doubt that MTC was afforded its right to a fair and impartial jury. The circumstances indicate abuse by the trial court of a limited discretionary power in the jury selection. The amount of this verdict is so grossly excessive as to evince that bias, passion and prejudice expressed during voir dire. These circumstances warrant reversal.

¶ 64. In Tighe v. Crosthwait, 665 So.2d 1337, 1339 (Miss.1995), the Court found a duty by the trial court to see that a fair and impartial jury is empaneled. In Toyota Motor Corp. v. McLaurin, 642 So.2d 351, 357-58 (Miss.1994), the 'Court acknowledged the need to guard against even the appearance of unfairness and that when a rational challenge is made by a party to a prospective juror, and other jurors against whom no challenge is made are available and can be summoned, the trial judge should ordinarily excuse the challenged juror. This Court has described the trial court’s discretion to deny a reasonable challenge for cause as “limited” and “considerably narrowed” when there is a reasonable challenge and without great inconvenience, other jurors can be summoned. Id. at 357, (citing Scott v. Ball, 595 So.2d 848, 850 (Miss.1992); Hudson v. Taleff, 546 So.2d 359 (Miss.1989)). The trial judge accepted the basis for challenge in dismissing three other individuals. Reasonable doubts about juror fairness and impartiality arise when jurors, in response to counsel’s questions, candidly express bias irrespective of court instructions and then minutes later, in response to questions by the court, profess that they will follow instructions despite their bias.

¶ 65. It was error for the court to deny MTC’s challenges for cause as to these individuals. The jury selection process is procedurally set forth in URCCC 4.05. In accordance with that rule, the trial court considered MTC’s challenges for cause before the parties were required to exercise peremptory challenges. In further violation of its right to a fair and impartial jury pursuant to Mississippi Constitution Article 3 § 31, MTC was effectively deprived of and was forced to exhaust its complement of peremptory challenges under M.R.C.P. 47 in order to excuse as many of these individuals as possible. The trial court denied Plaintiffs motion to strike each of the individuals for cause with the exception of two individuals. It is noteworthy that one of the prospective jurors the court allowed stricken for cause expressed an ability to follow the law after being admonished by the court following voir dire by counsel. One reason given for striking him for cause, however, was that he thought the property (owner) should get more money than “just compensation” and that although at the end of the court’s questioning, he said he would still follow the instructions. This was the same response given by the eleven individuals whom the court refused to strike for cause. In opposing those strikes for cause, Highland maintained that the court’s questioning rehabilitated these individuals’ ability to apply the law with fairness and impartiality. Without doubt, MTC’s counsel desired but was unable to use its peremptory challenges to excuse other individuals on this jury. Highland, on the other hand, had its full compliment of peremptory challenges and used the majority of them to strike individuals having benign or no responses whatsoever to questioning. The number of individuals that the court refused to dismiss for cause exceeded the number of peremptory challenges.

¶ 66. In United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.1976), prospective jurors expressed strong convictions and personal belief for and against certain laws of the United States regulating the conduct of labor unions. In reversing the jury verdict for failure to excuse these individuals for cause, the Court explained that as a general rule it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause, for this has the effect of abridging the right to exercise peremptory challenges. Id.

¶ 67. In the case sub judice, the challenged individuals made it clear they had a strong opinion that the landowner was entitled to something extra if his/her land was taken against his will. Others indicated they would award in excess of fair market value because of disagreement with the law and/or inconveniences the landowner was experience. A prospective juror should be excused for cause if there is a reasonable doubt as to whether he or she will be able to render an impartial verdict based solely on the evidence and the law.

¶ 68. For all of the foregoing reasons including the lack of factual data to support the verdict, the violation of the before and after rule, the improper use of appraisal methodology and the failure to excuse the possible impartial jurors, I dissent in view of the grossly excessive verdict rendered by the jury for Highland and against MTC. I would reverse and remand for a new trial.

WALLER AND COBB, JJ., JOIN THIS OPINION.

      . Loflin testified that the total just compensation was $197,775. Walker testified that the total just compensation was $2,300,000.

      . Interestingly enough, Loflin originally estimated the before value of the property to be only $49,300 less than Walker’s before value. He changed his appraisal the month before trial after MTC’s counsel advised him that he had used an "incorrect method of appraising.” Loflin explained that at the time of the taking the subdivision was unplatted even though Burckart told him the plats just needed to be recorded. Loflin only considered platted lots and changed his appraisal to the lower figure mentioned above.

      . MTC used four of its peremptory challenges and one additional challenge for alternates.


author: SMITH, P.J., CARLSON, J.,

text:
    Oral ROBINSON v. STATE of Mississippi.
    No. 2000-CT-02087-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2002.
    Rehearing Denied Feb. 6, 2003.

      Oral Robinson, Pro Se, attorney for appellant.
    Office of the Attorney General By: Jean Smith Vaughan, attorneys for appellee.
   ON WRIT OF CERTIORARI

SMITH, P.J.,

for the Court.

¶ 1. Oral Robinson appeals to this Court by writ of certiorari from the Court of Appeals which affirmed the trial court’s twenty-year sentence imposed upon Robinson for violation of probation terms imposed upon Robinson during a 1996 plea of guilty to sexual battery.

¶ 2. At the time of the 1996 guilty plea Robinson had prior convictions, yet the trial court nonetheless suspended Robinson’s sentence. According to the record, Robinson pled guilty to a reduced non-habitual charge of sexual battery. Robinson’s release was later revoked, and Robinson was ordered to serve the 20-year sentence.

¶ 3. Robinson filed a motion for post-conviction relief in the trial court claiming that his sentence was illegally imposed because, as a two time prior offender, he was not eligible for a suspended sentence and probation. The trial court denied the motion, and the Court of Appeals affirmed finding that Robinson suffered no prejudice because his sentence was less than the maximum sentence that could have been imposed.

¶ 4. We agree that the Court of Appeals was correct to affirm the trial court, but we disagree with its reasoning in reaching that decision. After thorough analysis of the facts and circumstances peculiar to this particular case, careful examination of the record before us, and our interpretation of the applicable statutes, we hold that Robinson clearly pled guilty to a reduced charge as a non-habitual offender, was sentenced according to appropriate statutes, thus he was not given an illegal sentence by the trial court. Accordingly, we affirm the Court of Appeals decision, but for different reasons. Robinson’s post conviction relief is denied.

STATEMENT OF THE CASE

¶ 5. The Court of Appeals opinion included the following factual background:

Oral Robinson, after being indicted on two counts of sexual battery in the Circuit Court of Monroe County, pled guilty to one count. As a part of the plea agreement, the remaining count was retired to the files. Robinson was sentenced to a term of twenty years; however, the entire sentence was suspended on condition that Robinson comply with certain terms enumerated in the judgment of sentence, one of them being a requirement that he avoid future criminal violations of the law. Robinson was subsequently arrested on three counts of uttering a forgery, and the State sought to revoke Robinson’s probation and the trial court, following a hearing on the matter, did in fact revoke probation and order Robinson to serve the remaining portion of his twenty-year sentence.
Robinson later filed a motion for post-conviction relief alleging a substantial number of different claims which he contends entitle him to have his judgment of conviction set aside. The circuit court denied Robinson any relief on his motion without affording him the opportunity to have an evidentiary hearing to prove the allegations in his motion.

The 1994 indictment against Robinson recited that he had been previously convicted of burglary in 1989 and 1990, such that he was ineligible for probation at the time of the plea agreement and sentence. Nonetheless, the Court of Appeals affirmed the trial court’s denial of post-conviction relief on finding that Robinson suffered no prejudice as a result of being sentenced to less than the statutory maximum of 30 years.

DISCUSSION

¶ 6. It is true that Robinson was indicted in this case as an habitual offender under Miss.Code Ann. § 99-19-81 (2000), which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

While Robinson was indicted as a habitual offender, what occurred in the trial court on November 21, 1996, was a common occurrence repeating itself numerous times every day in our trial courts — a defendant who was indicted as an habitual offender was allowed, through the plea-bargaining process, to plead as a “non-habitual offender.” We have acknowledged this common occurrence in our trial courts in the past. See Rush v. State, 749 So.2d 1024 (Miss.1999); Turner v. State, 590 So.2d 871 (Miss.1991); Wrenn v. State, 802 So.2d 177 (Miss.Ct.App.2001). A careful review of the record before us is indeed revealing. According to the Reference Docket Sheet of Monroe County, which has been certified as a true and correct copy by the circuit court clerk, Count I of Robinson’s charge was reduced to a non-habitual status; therefore, when Robinson pled guilty to sexual battery, he did not plead guilty as an habitual offender. Consequently, once the State, through the plea bargaining process, agreed to drop the habitual offender portion of the indictment, the trial judge was powerless to sentence Robinson pursuant to Miss.Code Ann. § 99-19-81. We have held that prior to the trial judge’s invoking the provisions of Miss.Code Ann. § 99-19-81, the State must prove beyond a reasonable doubt that the defendant is an habitual offender, and under this statute such proof is usually offered by way of properly certified/authenticated documents regarding the prior indictments and sentencing orders. See Moore v. State, 631 So.2d 805, 806 (Miss.1994); Buckley v. State, 511 So.2d 1354, 1360 (Miss.1987); Seely v. State, 451 So.2d 213, 215 (Miss.1984). The State, in exercising its duly authorized prosecutorial discretion, chose not to proceed with any attempt to prove Robinson to be a statutory habitual offender; therefore, absent this proof, Judge Gardner was without authority to sentence Robinson pursuant to the mandatory provisions of Miss.Code Ann. § 99-19-81. But for the inclusion of the Reference Docket Sheet of Monroe County which absolutely indicates the reduced non-habitual status of this plea of guilt and sentence, this Court could not affirm the Court of Appeals and trial court.

¶ 7. Uniform Rule of Circuit and County Court Practice 8.04 allows defendants to enter guilty pleas upon plea negotiations with prosecutors which may reduce their offense to a lesser charge. Rule 8.04 states in pertinent part:

A. Entry of Guilty Pleas.
2. Entry of Guilty Plea. A person who is charged with commission of a criminal offense in county or circuit court, and is represented by an attorney may, at his/ her own election, appear before the court at any time the judge may fix, and be arraigned and enter a plea of guilty to the offense charged, and may be sentenced by the court at that time or some future time appointed by the court.
B. Plea Bargaining.
2. The prosecuting attorney, defendant’s attorney, or the defendant acting pro se, may reach an agreement that upon an entry of a plea of guilty to the offense charged or to a lesser or related offense, the attorney for the state may do any of the following:
a. Move for a dismissal of other charges; or
b. Make a recommendation to the trial court for a particular sentence, with the understanding that such recommendation or request will not be binding upon the court.

¶ 8. Numerous Mississippi cases present facts similar to the case sub judice where the defendant was indicted as an habitual offender, but was able to plead guilty to a lesser offense which did not include the habitual status or where the prosecutor chose not to indict the defendant as an habitual offender if he plead guilty to the indicted crime. See, e.g., Rush, 749 So.2d at 1025; Turner, 590 So.2d at 872-73; Wrenn, 802 So.2d at 179.

¶ 9. In the present case, a guilty plea hearing was conducted on November 21, 1996, after the trial had commenced. Although the trial judge was aware of Robinson’s prior felony convictions, the trial judge acknowledged Robinson and his attorney had been engaged in plea bargain discussions with the prosecutor. He read the new charge which was listed only as felony sexual battery with no mention of an habitual status, and Robinson plead guilty to the charge. The State recommended a 20-year suspended sentence pending his future good behavior, which recommendation was accepted by the trial court and Robinson was sentenced pursuant to the recommendation. According to the sentencing order, Robinson plead guilty to a charge of sexual battery. Again, there was no mention of habitual status.

¶ 10. According to the docket sheet an agreed motion to reduce the charge, an order reducing the charge in Count I to non-habitual, an order accepting a plea to the reduced charge, a motion to retire the cause to the files as to Count II, an order retiring the cause to the files as to Count II, and a sentencing order in Count I were all filed on November 21, 1996. The court papers from the Circuit Court of Monroe County only contain the sentencing order. However, it is clear from the docket sheet and from the sentencing order that Robinson did not plead as an habitual offender. Because he did not plead guilty as an habitual offender, the trial court was under no obligation to sentence Robinson to the maximum statutory penalty of thirty years. Despite Robinson’s contention that he was somehow lured into pleading guilty, the record indicates that his plea was free and voluntary without threat or coersion. In fact, it is clear that Robinson avoided sentence as an habitual offender by a reduced non-habitual plea bargain. The trial judge is the ultimate decision maker as to whether or not to accept a plea of guilt and is also solely responsible for determining the appropriate sentence. The trial judge does not have to accept any sentence recommendation made during plea negotiations. Here, the trial court did accept the recommendation of the state and so sentenced Robinson accordingly. We hold that Robinson was not given an illegal sentence, but rather, he was appropriately sentenced according the governing statutes. We need not address § 47-7-33 as we find Robinson was not illegally sentenced for the reasons stated above.

CONCLUSION

¶ 11. The judgments of the Court of Appeals and the trial court are affirmed but for different reasons as previously discussed above. The sentence imposed by the trial court was not illegal but was proper in accordance with our statutes.

¶ 12. AFFIRMED.

PITTMAN, C.J., WALLER, DIAZ, EASLEY AND GRAVES, JJ., CONCUR. COBB, J., CONCURS IN RESULT ONLY. CARLSON, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY COBB, J. McRAE, P.J., NOT PARTICIPATING.

CARLSON, J.,

Concurring.

¶ 13. I agree with the majority’s conclusion that the Court of Appeals erred in finding that Robinson suffered no prejudice by receiving a sentence of less than the maximum sentence allowed by law, and that Robinson cannot now be heard to complain of an undeserved lenient sentence, whether legal vel non.

¶ 14. However, I part company with the majority when it finds that the trial judge in this case did not impose an illegal sentence, under our current case law interpreting Miss.Code Ann. § 47-7-33. On the other hand, with the utmost deference and respect for my distinguished colleagues on this Court who have created a line of cases stating that Miss.Code Ann. § 47-7-33 prohibits a trial judge from imposing “a suspended sentence” upon a pri- or convicted felon, I must respectfully disagree with those lines of cases for I firmly believe that the trial judge, in the exercise of sound judicial discretion, correctly applied the statute in imposing a suspended sentence upon Robinson, notwithstanding the fact that Robinson was a prior convicted felon at the time of sentencing. My opinion is based on the facts and circumstances peculiar to this particular case, and my interpretation of the applicable statutes.

¶ 15. While Robinson was indicted in this case as an habitual offender under Miss.Code Ann. § 99-19-81, the majority quite correctly points out that through the customary plea-bargaining process, the State, in the clear exercise of prosecutorial discretion, chose not to go forward with its proof on the habitual offender portion of the indictment, thus allowing Robinson to plead as a “non-habitual offender”, thereby enabling Judge Gardner to then be unconstrained by the habitual offender statute insofar as the imposition of a sentence of less than the maximum penalty allowable by law without consideration of the non-parole or non-probation requirements of the statute.

¶ 16. However, the majority errs when it stops there and concludes that Robinson did not receive an illegal sentence. The majority correctly points out that when Robinson plead guilty to the principal offense in 1996, “Robinson had prior convictions, yet the trial court nonetheless suspended Robinson’s sentence.” Majority Opinion ¶ 2. The majority acknowledges that at least one of the claims in Robinson’s PCR motion was “that his sentence was illegally imposed because, as a two time prior offender, he was not eligible for a suspended sentence and probation.” Majority Opinion ¶ 3. Finally, the majority concludes:

After thorough analysis of the facts and circumstances peculiar to this particular case, careful examination of the record before us, and our interpretation of the applicable statutes, we hold that Robinson clearly pled guilty to a reduced charge as a non-habitual offender, was sentenced according to appropriate statutes, thus he was not given an illegal sentence by the trial court.

Majority Opinion ¶ 4. However, in so concluding, the majority, I respectfully submit, fails to address the issue of a prior convicted felon receiving a suspended sentence, which Robinson raised in his PCR motion. This issue is altogether different than the issue addressed by the majority— the legality of a defendant indicted under the provisions of Miss.Code Ann. § 99-19-81 receiving a less than maximum sentence through the plea bargaining process re-suiting in the prosecution’s “dropping” the habitual offender portion of the indictment.

¶ 17. In Robinson v. State, 585 So.2d 757 (Miss.1991) (Robinson I), the trial judge imposed a three-year suspended sentence, with supervised probation, on a prior convicted felon (Robinson) and judgment was entered accordingly; however, only three days later, during the same term of court in which he had just been sentenced, Robinson was arrested on another felony charge, and the trial judge ordered that Robinson actually serve his three year sentence in the Mississippi Department of Corrections (MDOC). This Court correctly held that Miss.Code Ann. § 47-7-33 did not permit “suspension of sentence and probation to a defendant with a prior felony conviction.” Id. at 759. (emphasis added). Thus, the sentence was illegal and was set aside, and the case was remanded for a new trial.

¶ 18. In Goss v. State, 721 So.2d 144 (Miss.1998), the defendant, while indicted as an habitual offender, was allowed, through plea-bargaining to plead as a non-habitual offender and the trial court thereafter imposed a sentence of “ten years in the (MDOC), with seven years to serve and three years suspended for a five year period.” Id. at 145. On appeal to this Court, Goss asserted that because he was a prior convicted felon, he had been erroneously sentenced by the trial judge to a probationary term prohibited by Mississippi Code Ann. § 47-7-33. This Court con-eluded that “[a]fter close consideration of the statutory language, we find the partial suspension of Goss’s sentence erroneous.” Id. at 145. Goss then discussed the difference of the terms “suspension” and “probation,” but then, in citing Robinson I, the Court concluded:

Goss cites Robinson v. State in support of his contention that his suspended sentence was erroneous. Robinson v. State, 585 So.2d 757 (Miss.1991). In Robinson, we held the trial court suspended the defendant’s sentence in violation of § 47-7-33 due to the defendant’s prior felony conviction. Robinson, 585 So.2d at 759. The uncertainty in the instant case stems from the distinguishable fact that only part of Goss’s sentence was suspended by the lower court rather than the entire sentence as in Robinson. We find that the wording of the statute not only restricts the courts’ ability to place defendants with prior felony convictions on probation, but it also restricts their ability to wholly or partially suspend the sentence of a previously convicted felon. Therefore, the lower court erred in sentencing Goss, a convicted felon, to serve seven years in the state penitentiary followed by a conditional three year suspended sentence. Goss is simply not entitled to a suspended sentence in light of his prior conviction.

721 So.2d at 146. Again, with all deference to my colleagues, I believe this Court got it right in Robinson I, but then, though unintentionally, misapplied the holding in Robinson I to the facts in Goss.

¶ 19. Goss and its progeny, in my humble opinion, have continuously misinterpreted Miss.Code Ann. § 47-7-33 (2000) by using the terms “suspended sentence” and “probation” interchangeably. Section 47-7-33 states:

(1) When it appears to the satisfaction of any circuit court or county court in the State of Mississippi; having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in term time or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided> except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence. In placing any defendant on probation, the court, or judge, shall direct that such defendant be under the supervision of the Department of Corrections.

(emphasis added). My interpretation of the statute has always been that prior convicted felons are excepted only from receiving supervised probation, not from receiving a suspended sentence. The prior felony exception applies only in a situation where the sentencing judge intends “to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided." The fact that the legislature chose in this sentence to use the conjunctive “and” as opposed to the disjunctive “or” is critical to our proper judicial interpretation of this legislative enactment. I respectfully believe that the majority would accept the premise that a suspended sentence with court imposed terms of good behavior, and a court imposed supervised probation involving, inter alia, the statutory terms found in Miss. Code Ann. § 47-7-35 and also involving a MDOC probation officer are two altogether different sentences. If the legislature had intended for the prior felony exception to apply to both instances where a judge is considering imposition of a “straight” suspended sentence vs. supervised probation, the legislature would have used the disjunctive “or” to assure that the prior felony exception applied in both sentencing situations. The fact that the legislature chose here to use the conjunctive “and”, as opposed to the disjunctive “or,” speaks volumes as to the intent of the legislature in drafting this statute. Justice Mills, in his dissenting opinion in Carter v. State, 754 So.2d 1207, 1210-11 (Miss.2000), acknowledged that there is a distinct difference between a “suspended sentence” and “probation.” In Carter, Justice Mills dissented and stated, in pertinent part:

This statute [Miss.Code Ann. § 47-7-33] either incorrectly or inadvertently equates probation with suspension of sentence. There is a difference between the two. Under probation the court releases the defendant into the community under the supervision of a probation officer. The defendant’s freedom after conviction is subject to the condition that for a stipulated period of time he shall conduct himself in a manner approved by a special officer to whom he must make periodic reports. Black’s Law Dictionary, 1082 (5th ed.1979). A suspended sentence is one that is given formally but not actually served. The defendant is not required, at the time the sentence is imposed, to actually serve the sentence. This suspension is contingent upon the good behavior of the defendant. Id. at 1223, 1297. Under a suspended sentence the defendant is not required to report to an officer as he is while on probation. However, the trial court does possess the power to revoke the suspended sentence.
Clearly, the obligations, duties and expectations of the defendant on probation are distinct from a defendant’s responsibilities while “serving” a suspended sentence. Furthermore, a trial court may impose a suspended sentence for a term up to the maximum sentence allowed by law. Under Mississippi law, a trial court may only impose probation for a maximum of five (5) years. Miss.Code Ann. § 47-7-37 (Supp.1999). In spite of these differences between the suspended sentence and probation, section 47-7-33 confuses suspended sentences and probation and treats them as one in the same. This is evidenced by the language, “... to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided.... ” Miss.Code Ann. § 47-7-33 (1993). A suspension of a sentence does not automatically mean that the defendant will be on probation and under a duty to report to a probation officer. It simply means that part of his entire sentence has been postponed pending the defendant’s good behavior or such other conditions as the court may see fit to establish.

Carter, 754 So.2d at 1210-11 (Mills, J., dissenting).

¶ 20. A suspended sentence is a sentence which is given formally following the conviction of a crime, but the defendant is not required to serve the sentence at the time the sentence is imposed. Black’s Law Dictionary 1446 (6th ed.1990). The suspension is conditioned upon the good behavior of the defendant. Id. at 1363. The trial court does have the power to revoke a suspended sentence, and the defendant is not required to report to any officer if his sentence is suspended. However, if a defendant is given probation, that defendant is released under the supervision of a probation officer. The defendant must agree to certain terms and conditions, and any violation of such term or condition will subject the defendant to a revocation of probation. The probation officer must report the probationer’s progress to the court and surrender the probationer if any violation occurs. Id. at 1202.

¶ 21. Upon a careful reading of Miss.Code Ann. § 47-7-33, the prior convicted felony exception applies only when the sentencing judge is suspending the imposition of the sentence and placing the defendant on probation. The prior convicted felony exception does not apply when the sentencing judge is suspending the imposition or execution of the sentence, period, without any added terms of supervised probation. As stated above, a defendant who receives a suspended sentence will not necessarily be placed on probation or be required to report to a probation officer. If the court suspends a sentence, that portion of the sentence which is suspended will only be postponed pending the defendant’s good behavior or any other such conditions established by the court. As a matter of common practice in our circuit and county courts, when the judge imposes a suspended sentence upon a defendant, that defendant will ordinarily be instructed, inter alia, not to illegally use or possess any illegal drug, not to own, carry or conceal a firearm, and not to commit any crime during the period of suspension, whether that period be for one, five, ten or twenty years. Additionally, as opposed to the provisions of Miss. Code Ann'. § 47-7-33, which clearly state that a prior convicted felon cannot receive “supervised probation,” there is no statutory prohibition against the imposition of a straight suspended sentence, either total or partial, by the trial judge, upon a prior convicted felon, subject to specified “court-imposed terms” as opposed to the statutory supervised probation terms which involve a probation officer.

¶ 22. The sentence imposed upon Robinson was not illegal. After Robinson pled guilty to one count of sexual battery as a non-habitual offender, the State recommended that he be sentenced to twenty-years and that the sentence be suspended provided, inter alia, that he violate no law of the United States, the State of Mississippi or any other state. According to Miss.Code Ann. § 47-7-33, the trial court had the authority to. suspend Robinson’s sentence even though he was a prior convicted felon. If the trial court had chosen to.also place Robinson on probation, the prior convicted felon exception in § 47-7-33 would certainly apply, and the sentence would have been illegal. However, that did not happen here.

¶ 23. Because Judge Gardner’s sentence imposed upon Robinson was not illegal, but indeed, was a permissible sentence as a matter of statutory law, and because the maximum prison term was not mandatory inasmuch as Robinson did not plead guilty as an habitual offender, I agree with the majority that the decision of the Court of Appeals which affirmed the trial court’s denial of post-conviction relief should be affirmed. Even though I do not agree with the reasoning of the Court of Appeals, that court’s ultimate decision to affirm the trial court was correct. However, because I feel that the majority should have also addressed the suspended sentence/probation issue raised by Robinson, I felt compelled to address this issue.

¶ 24. For these reasons, I respectfully concur.

COBB, J., JOINS THIS OPINION IN PART.

      . On April 25, 1995, Robinson was indicted on one count of felony sexual battery and was charged under § 99-19-81 as a habitual offender. According to the indictment in cause number CR95-056, Robinson had previously been convicted for three house burglaries, one in Pontotoc County, and two in Union County-

      . While the majority correctly conveys Robinson's claim, Robinson is in error in stating that Judge Gardner imposed "probation.” Judge Gardner imposed a twenty (20) year suspended sentence, with court-imposed terms of good behavior, but not "probation” as envisioned by the terms of Miss.Code Ann. § 47-7-33.

      . The defendant in Robinson I, is not the same defendant before the Court today, but the Robinson I designation is being used so as to avoid confusion.

      .This action was taken not as a result of a revocation hearing, but instead a modification of the initial sentencing order since the trial judge was still involved in the same term of court in which the original sentence had been imposed, thus the trial judge had authority to modify the original judgment while still in term. Jones v. Index Drilling Co., 251 Miss. 578, 170 So.2d 564, 571 (1965), citing Bronson v. Schulten, 104 U.S. (14 Otto) 410, 26 L.Ed. 797 (1882).

      . Miss.Code Ann. § 47-7-35 sets out the terms of supervised probation, when the defendant is going to serve the terms of probation under the direction and control of the Mississippi Department of Corrections (MDOC).

      . I disagree with Justice Mills as to this one statement. Contrary to Justice Mills's statement that the statute confuses these terms, I believe the language of the statute is clear and unambiguous and the legislative intent is clear.

      . Of course, the trial judge will impose certain conditions of good behavior, as pointed out herein, and the failure of such defendant to abide by these court-imposed "good behavior” terms may result in a revocation of the defendant's suspended sentence.

      . For example, if the maximum penalty for a particular crime is twenty (20) years, the judge could impose the maximum penalty and suspend the entire sentence, meaning that the defendant would have to abide by the specified court-imposed terms of the suspended sentence for the entire twenty (20) year period, failing which, upon proper proof of violation during the period of suspension, the judge could revoke the entire twenty (20) year suspended sentence and have that defendant serve the entire twenty (20) years in the custody of the MDOC. Of course, the judge could choose, in the exercise of discretion, to partially revoke the suspended sentence.

      .A totally suspended sentence would be, for example, five (5) years with the entire five (5) year sentence suspended, with the defendant being required to stay on good behavior for the entire five (5) year period subject to the court-imposed terms. A partially suspended sentence would be, for example, five (5) years, with three (3) years suspended and two (2) years to actually serve by way of MDOC incarceration, and upon release from MDOC custody, the defendant would have to stay on good behavior for the remaining three (3) years, subject to the court-imposed terms.

      . One final observation — It is interesting to note that in 1995, the legislature enacted a law, codified as Miss.Code Ann. § 47-7-34, which allows the sentencing judge to impose a period of incarceration followed by "post-release supervision", which involves the defendant's compliance with "probation-like" terms, with the penalty for non-compliance being tire same as that of violation of probation, namely, a revocation (or termination) of the period of post-release supervision. Noticeably absent from this statute is any “prior felony exception" as found in Miss.Code Ann. § 47-7-33.


author: SMITH, P.J., WALLER, J., McRAE, P.J.,

text:
    Dudley GUICE, Sr. v. MISSISSIPPI LIFE INSURANCE COMPANY.
    No. 2000-IA-01516-SCT.
    Supreme Court of Mississippi.
    Jan. 30, 2003.

      T. Jackson Lyons, Jackson, Bryan Howard Callaway, Natchez, attorneys for Appellant.
    Kenna L. Mansfield, Jr., Walter D. Will-son, Jackson, attorneys for Appellee.
   SMITH, P.J.,

for the Court.

¶ 1. On March 21, 2000, Mississippi Life Insurance Company (“MS Life”) filed suit in the Chancery Court of Madison County against Dudley Guice, Sr. (“Guice”), alleging that he fraudulently induced MS Life to enter into two disability credit insurance policies covering promissory notes on vehicles that he had purchased and that he had filed fraudulent claims thereunder. The complaint sought, among under things, a declaratory judgment regarding the legal existence of certain of the certificates and proceeds allegedly due thereunder. Guice’s motion to transfer venue to Jefferson County was denied by the trial court. At Guice’s request, the chancellor entered an order certifying the matter for an interlocutory appeal. Guice petitioned this Court for an interlocutory appeal, which was thereafter granted. See M.R.A.P. 5. This Court holds that MS Life’s choice of venue should not be disturbed.

FACTS

¶ 2. MS Life’s claims are based on Guice’s applications for credit disability insurance when he purchased four vehicles from four different dealerships during an eleven-day period. The automobiles were purchased from the following dealers: (1) Blackwell Imports in Jackson, August 13, 1999; (2) Infiniti of Jackson, August 16, 1999; (3) Mark Escude Nissan North, August 18, 1999; and (4) Rivertown Lincoln-Mercury Toyota in Vicksburg, August 24, 1999.

¶ 3. The dealers each had group credit life and disability insurance policies with MS Life. At the time of each purchase, Guice applied for coverage under these policies. It appears that MS Life concedes that two certificates were issued for credit disability insurance under Blackwell and Rivertown Lincoln-Mercury’s group policies. As to the vehicles purchased at In-finiti of Jackson and Mark Escude Nissan North, MS Life rejected coverage because the amount of the coverage applied for, when combined with the coverage already in force, exceeded the maximum benefit limit underwritten by MS Life. Notice of this rejection was given to Guice by letter dated September 21, 1999. MS Life refunded the premium to the creditors, Trustmark National Bank and Deposit Guaranty National Bank, to be applied to his note. Guice claims that he never received the denial notices.

¶ 4. Guice was injured on October 12, 1999, in a four-wheeler accident in Jefferson County. The various claim forms and hospital records reveal that Guice broke his leg, sprained an ankle, and strained his back. Guice was ultimately admitted to Natchez Community Hospital. He filed claims under the policies he applied for at the time he purchased the vehicles.

¶ 5. Guice made his first claim for disability benefits under the MS Life credit disability certificates approximately three months after pm-chasing the vehicles, during the last week of November 1999. MS Life paid benefits under the Blackwell and Rivertown certificates, paying Trustmark National Bank on behalf of Guice $2025.48 and paying Deposit Guaranty National Bank on behalf of Guice $2000.00, for a total of $4025.45.

¶ 6. MS Life filed this suit in the Madison County Chancery Court to have the Blackwell and Rivertown certificates declared null and void ab initio and for a declaratory judgment that the Infiniti and Mark Escude certificates never came into existence. In short, MS Life asserts that Guice committed insurance fraud. Additionally, MS Life seeks to be reimbursed for the amounts paid to Trustmark National Bank and Deposit Guaranty National Bank on behalf of Guice, plus costs and attorney’s fees. Further, MS Life seeks an award of punitive damages in an amount sufficient to punish Guice and deter such conduct.

¶ 7. In finding venue appropriate in Madison County, the chancellor found that the suit was one respecting MS Life’s personal property in Madison County:

MS Life will perform its contractual obligations, if any, in Madison County, and such obligations include preparing checks and paying moneys due under the contracts, if any ... MS Life’s money constitutes personal property that is located and maintained in Madison County. The certificates issued by MS Life to Guice also constitute personal property and the original certificates are located and maintained at MS Life’s principal offices in Madison County.

¶ 8. Agreeing with the chancellor, MS Life contends that venue was proper in Madison County pursuant to Miss.Code Ann. § 11-5-1 (Rev.2002) because this action is clearly one “respecting ... personal property,” and the items of personal property at issue in this case, the four insurance certificates and MS Life’s money, are located in Madison County. Guice, however, argues that the chancellor has confused an action in rem with a personal action against Guice alleging fraud. He contends that this is an in personam action, and the case should be transferred to the Chancery Court of Jefferson County, the county where Guice resides.

DISCUSSION

¶ 9. The sole issue before us is whether Madison County is appropriate venue for this action regarding insurance certificates and whether Guice is entitled to the insurance proceeds. Guice requested that this matter be transferred to Jefferson County based on his status as a defendant and his residence in Jefferson County pursuant to Miss.Code Ann. § 11-5-1. The chancellor denied the motion to transfer, but did grant Guice’s request for certification of an interlocutory appeal.

¶ 10. An application for a change of venue is addressed to the discretion of the trial judge, and his ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case. Donald v. Amoco Prod. Co., 735 So.2d 161, 181 (Miss.1999) (citing Estate of Jones v. Quinn, 716 So.2d 624, 626 (Miss.1998); Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446 (Miss.1997); Miss. State Highway Comm’n v. Rogers, 240 Miss. 529, 128 So.2d 353, 358 (1961)).

¶ 11. The venue of a suit in equity-in our state is governed entirely by statute. Green v. Winona Elevator Co., 319 So.2d 224, 226 (Miss.1975)(quoting Griffith, Mississippi Chancery Practice, § 151 (2d ed.1950)). This necessitates consideration of the general statute on venue appertaining to chancery courts. Miss.Code Ann. § 11-5-1 in part provides: “[s]uits 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.... ”

¶ 12. This Court has repeatedly stated that “[w]here a statute is clear and unambiguous, no further statutory construction is necessary and the statute should be given its plain meaning.” Miller v. Meeks, 762 So.2d 302, 305 (Miss.2000); OXY USA, Inc. v. Miss. State Tax Comm’n, 757 So.2d 271, 274 (Miss.2000); City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). The chancery court venue statute is not ambiguous, and Guice does not contend otherwise.

¶ 13. The items of personal property, the certificates and money held by MS Life, are the subject of this lawsuit and, therefore, establish venue in Madison County. Similar to the case before us, Green v. Winona Elevator Co., 319 So.2d 224 (Miss.1975), concerned an action to set aside an allegedly fraudulent conveyance of personal property, soybeans. Id. at 225. This Court established that venue was in the county where the property was located since the specific terms of Miss.Code Ann. § 11-5-1 prevail over the general terms of § 11-11-3. Id. at 226. Miss.Code Ann. § 1-3-41 (1998) defines personal property when used in any statute to “include goods, chattels, evidences of rights of action, and all written instruments by which any pecuniary obligation, or any right, title, or interest in any real or personal estate, shall be created, acknowledged, transferred, incurred, defeated, discharged, or diminished.” Moreover, this Court has clarified the term “personal property” and held that said term includes anything which is or can be the subject of ownership, including money. Watson v. Caffery, 236 Miss. 223, 233, 109 So.2d 862, 866 (1959). The term “respecting” has been defined as “to have regard to; to have reference to; to relate to ...” Webster’s Revised Unabridged Dictionary 1934 (1996). Since this case concerns personal property, it is one of the categories otherwise provided for in Miss.Code Ann. § 11-5-1 and was properly brought in Madison County. Additionally, since the property was purchased in Hinds and Warren counties, the plaintiff had the option to sue in those counties. Ultimately, the controlling principle here is that it is the plaintiffs choice to decide where to sue the defendant among the permissible venues, and MS Life selected Madison County as its choice of venue. Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 825 So.2d 8, 14 (Miss.2002).

¶ 14. MS Life will perform its contractual obligations such as preparing checks and paying money due under the contracts in Madison County. MS Life’s money is located and maintained in Madison County. The original certificates issued by MS Life to Guice are located and maintained at MS Life’s principal offices in Madison County. Moreover, MS Life processed and paid Guiee’s allegedly fraudulent credit disability claims from its offices in Madison County.

¶ 15. The allegations and the evidence reveal that the personal property, the subject of this lawsuit, is located in Madison County. Using the language of this Court in Green, it follows that:

[Vjenue was in that county since the specific terms of Mississippi Code Annotated section 11-5-1(1972), supra, prevail over the general terms of Mississippi Code Annotated section 11-11-3 (1972) which places venue generally in the county of the defendant’s residence “except where otherwise provided,” this suit being in one of the categories otherwise provided for.

Green, 319 So.2d at 226 (emphasis added). Additionally, the language of the chancery court venue statute, is unambiguous: “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 ...” Miss.Code Ann. § 11-5-1 (emphasis added). Since this suit concerns personal property, it is one of the categories otherwise provided for.

¶ 16. Guice alleges that MS Life’s complaint is entirely in personam in nature; and therefore, venue is inappropriate in Madison County. However, in rein versus in personam is not the standard imposed by the chancery court venue statute. Because venue in Mississippi courts is “governed entirely by statute,” an in rem versus in personam distinction is irrelevant to the Court’s application of § 11-5-1. See Green, 319 So.2d at 226. The central issue is whether the suit is one “respecting ... personal property.” This matter concerns whether there was a fraudulent conveyance of certificates and whether MS life must pay Guice. Such a suit concerns personal property; and therefore, venue is appropriate where the personal property is located, Madison County.

CONCLUSION

¶ 17. After a thorough review of the relevant law and facts, we conclude that Madison County is an appropriate venue for this matter. The chancellor did not abuse his discretion in determining that this suit is one respecting personal property and that MS Life’s choice of venue should not be disturbed. The order denying Guice’s motion to transfer venue is affirmed, and this ease is remanded to the Madison County Chancery Court for further proceedings.

¶ 18. AFFIRMED AND REMANDED.

PITTMAN, C.J., WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WALLER, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P.J., COBB AND CARLSON, JJ. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J.

WALLER, J.,

specially concurring:

¶ 19. I concur with the majority, but I must point out that the circuit court has subject matter jurisdiction over this matter and it was error for the chancellor to assume jurisdiction.

¶ 20. Both MS Life and Guice’s claims pertain to the interpretation of the insurance policy, the duties and obligations of the parties to the insurance policy, and the performance of those duties and obligations. These types of claims are historically tried by a jury and are best heard in circuit court. United States Fid. & Guar. Co. v. Estate of Francis, 825 So.2d 38, 45 (Miss.2002); Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (Miss.1999). If any doubts arise as to the jurisdiction of the chancery court, those doubts should be decided in favor of transfer to circuit court for a trial by jury. Estate of Francis, 825 So.2d at 45; Southern Leisure Homes, 742 So.2d at 1090.

¶21. Therefore, jurisdiction properly lies in the circuit court. However, because the parties did not raise this issue on appeal, and because we affirm the chancellor’s decision, the Court cannot remand this ease to the circuit court, even though it is the court that has subject matter jurisdiction. As we have recently stated:

[Wjhere the chancellor erroneously assumed jurisdiction of a common law action, the right to trial by jury had been taken away.... In doing this, the net result is that trial by jury shall remain inviolate except in cases where the chancellor’s erroneous assumption of jurisdiction is the only error in the proceeding. Despite the mandate of § 147, we look with disfavor upon and consider it an abuse of discretion for a chancellor to assume jurisdiction of a common law action which properly should be tried in a court of law where the right to trial by jury remains inviolate. But absent other error, we cannot reverse.
This Court has reversed the judgment of a lower court when error other than the lack of subject matter jurisdiction has been found.

Estate of Francis, 825 So.2d at 44.

¶ 22. I concur with the majority’s opinion, but I caution parties to respect the exclusive jurisdiction of our courts of equity and courts of law.

SMITH, P.J., COBB AND CARLSON, JJ„ JOIN THIS OPINION.

McRAE, P.J.,

dissenting:

¶ 23. As the majority points out, venue in a suit in equity is governed entirely by statute. Green v. Winona Elevator Co., 319 So.2d 224, 226 (Miss.1975). Miss.Code Ann. § 11-5-1 (Rev.2002) in pertinent part provides:

[sjuits 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 ... may reside or be found....

(emphasis added).

¶ 24. The central issue in this case is whether this suit is one “respecting ... personal property” or an in personam action. Contrary to the majority’s holding, the certificates and money held by MS Life are not the subject of this law suit. This is not an in rem proceeding nor is it a proceeding against personal property. The complaint alleges fraud in procuring credit disability insurance policies on four automobiles and submission of false claims under said policies. Fraud and submission of false claims are in personam proceedings. It is irrelevant that the insurance certificates and MS Life’s money are located in Madison County. The money and location of the certificates of insurance are ancillary to the allegations. To allow such factors to weigh in venue selection is preposterous. Any effects on the property of either party in this case are incidental and insufficient to warrant treating this case as if it were against personal property.

¶ 25. As this is not a suit respecting real or personal property, venue is proper in Jefferson County since cases not involving real or personal property “may be brought in the chancery court of any county where the defendant ... may reside or be found.” Miss.Code Ann. § 11-5-1. Guice lives in Jefferson County. Madison County only houses MS Life’s money and home office. These two factors do not place venue in Madison County; they are not the subject of the lawsuit.

¶ 26. Additionally, this Court has stated that “a defendant sued alone in 'personam shall be sued in the county of his residence.” Dunn v. Dunn, 577 So.2d 378, 380 (Miss.1991) (citation omitted). If venue is improper, a court must transfer the action upon the defendant’s objection to the venue to which it might properly have been filed. Miss.Code Ann. § 11-11-17 (Supp.2002); Miss. R. Civ. P. 82(d).

¶ 27. Furthermore, the majority’s holding creates a loop hole that will allow future plaintiffs to file lawsuits wherever they keep their insurance policies, files or contracts and wherever any monies in conjunction with an insurance policy, file or contract are located.

¶ 28. For these reasons, I respectfully dissent.

DIAZ, J., JOINS THIS OPINION.