author: PITTMAN, Chief Justice, McRAE, Presiding Justice,

text:
    Drew Allen RAYNER v. RAYTHEON COMPANY.
    No. 2002-CP-00413-SCT.
    Supreme Court of Mississippi.
    Oct. 16, 2003.
    Drew Allen Rayner, Pro se, appellant.
    David C. Goff, Gulfport, Peyton S. Irby, Jackson, attorneys for appellee.
   ON MOTION FOR REHEARING

PITTMAN, Chief Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The prior per curiam affirmance is withdrawn, and this opinion is substituted therefor.

¶2. Representing himself, Drew Allen Rayner sued Raytheon Company in the Circuit Court of Stone County alleging that Raytheon breached a contract in which it agreed not to withhold federal income taxes from his retirement account. Based on diversity of citizenship and federal question jurisdiction, Raytheon removed the case to the U.S. District Court for the Southern District of Mississippi. Rayner filed a motion to remand. The federal district court entered a Final Judgment and Memorandum Opinion on August 14, 2001, dismissing the case for lack of subject matter jurisdiction and denying the motion to remand.

¶ 3. Rayner then filed an application for default judgment, petition for summary judgment and supporting brief in the same action in the Circuit Court of Stone County. After a hearing, the circuit court ruled that the federal district court had determined all rights and liabilities of the parties and that the circuit court lacked subject matter jurisdiction. Therefore, the circuit court dismissed with prejudice. On appeal, we modify the dismissal by the circuit court to be for lack of jurisdiction and affirm it as so modified.

DISCUSSION

¶4. Jurisdictional questions are subject to de novo review. Sorrells v. R & R Custom Coach Works, Inc., 636 So.2d 668, 670 (Miss.1994). When faced with jurisdictional issues, this Court sits in the same position as a trial court, with all facts as set out in the pleadings or exhibits, and may reverse regardless of whether the error is manifest. McCain Builders, Inc. v. Rescue Rooter, LLC, 797 So.2d 952, 954 (Miss.2001).

I. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING RAY-NER’S LAWSUIT FOR LACK OF JURISDICTION.

¶ 5. The circuit court properly denied Rayner’s application for default judgment and dismissed the action for lack of jurisdiction. The circuit court lacked jurisdiction over this case once it was removed to federal district court.

¶ 6. The effect of removing an action to federal court is specified in 28 U.S.C. § 1446(d), which provides in part:

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

28 U.S.C. § 1446(d) (emphasis added). Thus, once removed to federal court, a case remains within the jurisdiction of the federal courts until an order is entered remanding the matter back to the state court.

¶ 7. Previously, this Court considered this same issue and stated:

This Court held in Bean v. Clark, 226 Miss. 892, 85 So.2d 588 (1956) that, when a case is removed to a Federal District Court under 28 U.S.C.A. § 1446, the state court shall not proceed after defendants give written notice of removal to all adverse parties and file a copy of the petition of removal with the clerk of such state court. We also held that any action taken in the state court thereafter before remand, had no force or effect.

Miss. Power Co. v. Luter, 336 So.2d 753, 755 (Miss.1976) (footnote omitted). See also Moore v. Interstate Fire Ins. Co., 717 F.Supp. 1193, 1195 (S.D.Miss.1989).

¶ 8. In the instant case, the district court denied Rayner’s motion to remand. Rayner v. Raytheon, Co., Civ. A. No. l:00cv547GR (S.D.Miss.2001). Without a remand by the federal court, the circuit court lacked jurisdiction to proceed further. 28 U.S.C. § 1446(d).

¶9. We modify the decision of the circuit court only to the extent that dismissal was with prejudice. Generally, a dismissal with prejudice connotes an adjudication on the merits. See generally Foundry Sys. & Supply, Inc. v. Indus. Dev. Corp., 124 Ga.App. 589, 185 S.E.2d 94, 95 (1971) (The phrase “with prejudice” in [the context of when an action is dismissed with prejudice] means an “adjudication on the merits and final disposition, barring the right to bring or maintain an action on the same claim or cause. Pulley v. Chicago, R.I. & P.R., 122 Kan. 269, 251 P. 1100 (1927). Black’s Law Dictionary, 4th ed., p. 555”). Thus, lacking jurisdiction, the circuit court was without authority to address the merits. The circuit court should have simply dismissed this case for lack of jurisdiction.

¶ 10. Because this case is in the federal courts, Rayner’s only remedy in this case was to appeal the order of the district court to the United States Court of Appeals for the Fifth Circuit. As a matter of law, until there is a remand order, the state court cannot proceed in a case that has been removed to federal court.

CONCLUSION

¶ 11. Until remanded, this case remains in the jurisdiction of the federal court. We modify the dismissal by the Circuit Court of Stone County to be for lack of jurisdiction and affirm the dismissal as so modified.

¶ 12. AFFIRMED AS MODIFIED.

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

McRAE, Presiding Justice,

Dissenting:

¶ 13. Two wrongs do not make a right. This case demonstrates how removal jurisdiction can be used by defendants as a strategy for delay and confusion. As illustrated by the federal district court’s ruling in this case, the federal courts are overwhelmed to the point of “bad law” by the repeated efforts of defendants to invoke federal court jurisdiction in an attempt to halt state court actions and drag out the proceedings. The district court’s erroneous order, dismissing the plaintiffs action for lack of subject matter jurisdiction but denying a remand to state court, is a “classic tale” of the mishandling of matters due to the overwhelming caseload placed upon our federal courts. The district court’s erroneous order then prompted the circuit court’s erroneous order which led to this appeal and the resulting majority opinion which has cast aside the complexity of the issues. Because the circuit court erred in ordering dismissal of the plaintiffs action after the federal court dismissal, I dissent.

¶ 14. The facts of this case provide a vivid sample of the scenarios being played out in federal courts concerning removal. In November, 2000, Drew Allen Rayner (Rayner) filed his complaint in the Circuit Court of Stone County, Mississippi against Raytheon Company (Raytheon) claiming “willful, wanton, and unlawful acts of breach of contract, and conversion.” His claims centered around certain documents executed between himself and Raytheon. Rayner argued he had signed certain contractual documents with regard to his retirement benefits. His complaint does not allege any federal causes of action. Ray-ner also chose to represent himself and did not retain counsel.

¶ 15. In December, 2000, one month after the complaint was filed, Raytheon filed a notice for removal with the U.S. District Court for the Southern District of Mississippi, Southern Division and a notice of removal in the circuit court. In March, 2001, within 6 weeks after the removal notice was filed, Rayner filed a remand motion in the district court. For seven months, Rayner diligently pursued his motion for remand attempting to secure a hearing on the matter. Ultimately, the district court issued an order in September 2001, denying Rayner’s motion for remand and dismissing the action. The district court order specifically provided that “this case [is] dismissed, sua sponte, for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ... plaintiffs motion to remand be and is hereby, denied as moot.” The memorandum opinion, which causes much of the confusion here, provided:

Rayner is actually challenging federal income tax withholding regulations.... Because the United States is not a party to this action, and Raytheon is not the proper party to assert this claim against, Rayner has failed to state a claim upon which relief can be granted.... For the above stated reasons, this Court finds that this case should be dismissed for lack of jurisdiction. This determination renders the plaintiffs motion to remand moot, and the Court concludes that it should be denied. A separate Final Judgment in conformity with and incorporated by reference the foregoing Memorandum Opinion shall issue this date.

(citations omitted). Rayner’s motion for rehearing was likewise denied. Both of these orders were without prejudice.

¶ 16. Finally, in October 2001, one year after the lawsuit was initially filed, Rayner went back to the Circuit Court of Stone County and filed a motion for a default judgment and summary judgment. After a hearing, the circuit court, in reliance on the district court’s order and memorandum opinion, ordered the dismissal of Rayner’s action with prejudice. The circuit court found that “the United States District Court for the Southern District of Mississippi, Southern Division ... entered its Judgment of Dismissal and that all rights and liabilities of the parties have already been determined in that case ... [t]he Court further finds that this Court is without jurisdiction since the case in this Court was removed to the United States District Court for the Southern District of Mississippi.” After Rayner’s petition to reconsider was denied, he appealed to this Court.

¶ 17. As one can clearly see, Rayner’s action is in limbo. Who exactly has jurisdiction over the claims and if both courts lack jurisdiction over the claims then could they legally rule upon the merits? Even if the district court has retained jurisdiction of the action by refusing to remand the case to state court, is the judgment issued which found lack of subject matter jurisdiction appealable to the Fifth Circuit? Where is Rayner’s forum and remedy under these circumstances?

¶ 18. It is best to start at the very beginning to understand the complexity of the issues presented by the procedural and substantive “mess” wrought by the district court’s order and opinion. Under both the federal and state constitutions, every citizen is entitled to access to a court where their disputes and claims may be adjudicated. U.S. Const. Amends. VII & XTV; Miss. Const, art. 3, §§ 24 & 25. Effectively, both the state and federal courts have asserted that they lack subject matter jurisdiction over this case. Where is Ray-ner’s forum?

¶ 19. The next part of the analysis concerns whether the action was “removable” within the terms of 28 U.S.C. § 1446; and if not what effect does that have upon whether the action should be remanded? The procedures and appropriateness of removal of a state court action to federal court are governed by 28 U.S.C. §§ 1446 & 1447. Section 1446 provides the appropriate time limitations and procedures for removal of a civil or criminal action to federal court. Section 1447 not only provides procedural but also substantive rules regarding removal. In order for a party to prevail on removal, it must prove that the federal court has subject matter jurisdiction over the claims asserted by the parties. 28 U.S.C. §§ 1331, 1446. With regard to the plaintiffs claims, the district court in ruling on a motion to remand must look to the factual and legal allegations contained in the complaint. Herron v. Cont’l Airlines, Inc., 73 F.3d 57, 59-60 (5th Cir.1996); Carpenter v. Wichita Falls Indep. Sch. Dist. 44 F.3d 362, 365-66 (5th Cir.1995).

¶ 20. Rayner’s complaint alleged “breach of contract and conversion.” Neither of these causes of action was premised on claims concerning federal law for which federal courts have subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Raytheon’s notice of removal claimed that subject matter jurisdiction was vested in the federal courts since “plaintiff has made assertions of violations of the Employment Retirement Income Security Act, 29 U.S.C. § 1001 et seq., and possibly the Internal Revenue Code which create[s] a federal question.” Rayner’s complaint makes no allegations concerning the-Employment Retirement Income Security Act or the Internal Revenue Code. Rayner’s entire complaint centered around claims of breach of contract and conversion. In his verified response and objection to removal, Rayner asserted that the federal court lacked jurisdiction to adjudicate the claims presented as the claims asserted concerned breach of contract and conversion. Rayner also filed the requisite motion for remand again asserting that the federal court lacked jurisdiction.

¶ 21. Almost one year after the removal and after several continuances of the hearing concerning the removal, the district court finally dismissed the action for “lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure” and denied Rayner’s “motion to remand ... as moot.” The memorandum opinion which followed found that “Rayner is actually challenging federal income tax withholding regulations ... [and] since the United States is not a party to this action, and Raytheon is not the proper party to assert this claim against, Rayner has failed to state a claim upon which relief can be granted.”

¶ 22. Not only did the district court lack subject matter jurisdiction to adjudicate the case, but also no motion to dismiss for “failure to state a claim” pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure was before the federal court for review. In order for the district court to have ruled whether Rayner’s complaint “failed to state a claim upon which relief may be granted,” a motion would have to be before the court. F.R.C.P. 12(b). Under the facts, no such motion existed. In any event, the federal court lacked subject matter jurisdiction to even entertain such a motion.

¶ 23. With no subject matter jurisdiction, the district court was obligated to remand the action to state court. The law is clear that “[i]f at anytime before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C.A. § 1447(c) (emphasis added). This statutory mandate does not bestow upon the district court any discretion to deny a remand when it indeed lacks subject matter jurisdiction. Buchner v. FDIC, 981 F.2d 816, 817 (5th Cir.1993). Additionally, when the district court lacks subject matter jurisdiction, it does not have the power to dismiss the case, it must remand the case to the state court. Herron, 73 F.3d at 60.

¶ 24. Even with its acknowledgment that it lacked subject matter jurisdiction over the case, the district court went even further and denied Rayner’s motion to remand and later denied his motion for rehearing. Once the district court found that it lacked subject matter jurisdiction, it was obliged to remand. 28 U.S.C. § 1447(c); Buchner, 981 F.2d at 817. As it stood, the district court, by its own order, lacked subject matter jurisdiction over the matter, but refused to remand the case to the state court.

¶ 25. In response to the remand denial, Rayner had three options, neither of which guaranteed review of his claims. First, Rayner could have attempted to appeal the district court’s denial of remand. Second, Rayner could have continued to proceed in state court. Third, Rayner could have refiled his action in state court.

¶26. Rayner could have attempted to appeal the district court’s denial of remand to the Fifth Circuit Court of Appeals. However, an appeal to the Fifth Circuit would have been futile and would have been dismissed. An order denying a motion to remand is not an appealable final judgment. Ex parte The Park Square Aut. Station, 244 U.S. 412, 415-416, 37 S.Ct. 732, 733-734, 61 L.Ed. 1231 (1917); Bender v. Pennsylvania Co., 148 U.S. 502, 502, 13 S.Ct. 640, 640, 37 L.Ed. 537 (1893); Lewis v. E.I. Du Pont De Nemours & Co., 183 F.2d 29, 30-31(5th Cir.1950). As the district court’s denial of Rayner’s motion to remand was not a “final judgment,” it was not appealable, and any appeal to the Fifth Circuit would have been dismissed.

¶27. Rayner could have continued to proceed in state court. This is exactly what Rayner chose as his available course of action. After the federal court’s denial of remand, Rayner went back to the Stone County Circuit Court and sought a default judgment. However, as things stood, the circuit court looked at the orders of the district court and determined that it lacked jurisdiction.

¶ 28. Not all states, when faced with this situation, have found that the state court lacks jurisdiction. For instance, in Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975), the Florida Supreme Court found that post-removal actions of a state court are not void when removal of a case to federal court is shown to be improper. The court relied on a United States Supreme Court decision and stated that:

In Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 85 L.Ed. 1044 (1941) the Supreme Court rejected a similar argument. Although that case proceeded under an earlier version of the removal law, the jurisdictional prescription was similar.
“While the opinion does not expressly consider the effect of a petition for removal on subsequent proceedings in the state court, the clear import of the decision is that the proceedings are valid if the case was not in fact removable.
‘The rule that proceedings in the state court subsequent to the petition for removal are valid if the suit was in fact not removable is the logical corollary of the proposition that such proceedings are void if the cause was removable.’ 312 U.S. at 566, 61 S.Ct. at 717.

Wilson, 317 So.2d at 740-41 (emphasis added). The majority concludes that the circuit court lacked jurisdiction, even though the federal court has already announced that it too lacks jurisdiction. So essentially, Rayner’s case was in limbo-neither the district court nor the circuit court has subject matter jurisdiction and the Fifth Circuit would not have reviewed the remand denial because it was not a final judgment. Ultimately, according to the law, the Stone County Circuit Court does have subject matter jurisdiction, and its order of dismissal should be overturned.

¶29. Rayner could have filed a new action in state court based upon the same allegations contained in his original complaint. This option is probably the best option and as luck would have it, is still an available option for Rayner. Under Miss. Code Ann. § 15-1-69 (Rev.2003) Rayner has the option to refile his action in state court since his action was not only dismissed by the federal court for lack of subject matter jurisdiction, but was also dismissed by the circuit court for lack of subject matter jurisdiction. Section 15-1-69 provides that:

If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the .judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator, may in case of the plaintiffs death, commence such new action within the said one year.

(emphasis added). Under this statute, Rayner has one year from the dismissal for lack of subject matter jurisdiction to commence a new action in state court. See Lowry v. Intern’l Brotherhood of Boilermakers, 220 F.2d 546 (5th Cir.1955); Ryan v. Wardlaw, 382 So.2d 1078 (Miss.1980); Frederick Smith Enter. Co. v. Lucas, 204 Miss. 43, 36 So.2d 812 (1948); Hawkins v. Scottish Union & Nat’l Ins. Co., 110 Miss. 23, 69 So. 710 (1915). Any such new action will not be subject to the district court’s order which dismissed Rayner’s case due to lack of subject matter jurisdiction, but refused to remand the action. Furthermore, the federal court’s “comments” regarding the merits of Rayner’s claims will not subject his new action to the doctrines of res judicata or claim preclusion because those “comments” concerning the merit of his claims were made without subject matter jurisdiction and cannot be used against his new action. See Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006 (5th Cir.1998).

¶ 30. In light of the present case, it becomes easy to see why removal to federal courts is used as a defense tool and why removal is viewed with such scrutiny. Even the United States Supreme Court has recognized that the process of removal can do more harm than good, and the courts must use “strict construction” when interpreting and implementing the removal statute. Shamrock Oil & Gas Co. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). Such scrutiny of the removal statutes is warranted considering its manipulative use against litigants and its obvious impact upon state autonomy. In this regard, the Supreme Court has stated:

The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. “Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.” Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934) (citations omitted).

313 U.S. at 108-09, 61 S.Ct. 868. In line with the Supreme Court, the Fifth Circuit has likewise viewed the removal statute with scrutiny. In Carpenter, the Fifth Circuit held:

... [B]ecause the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns, see Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, 106 S.Ct. 3229, 3233, 92 L.Ed.2d 650 (1986), which mandate strict construction of the removal statute. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988)....
The removal statute, like the artful pleading doctrine, is designed to afford defendants a federal forum for their federal claims, not to prevent state judges from hearing a state cause of action.

44 F.3d at 366-367 & 371.

¶ 31. Jurisdiction over Rayner’s case properly belongs in state court. This action should have never been removed, and the district court’s denial of remand is clearly error. In my view Rayner could proceed in state court due to the federal court’s admitted lack of subject matter jurisdiction. Accordingly, I would reverse the circuit court’s judgment and remand this case for further proceedings. For these reasons, I dissent.

EASLEY, J., JOINS THIS OPINION.


source: Caselaw Access Project

license: Public Domain

text:
    Patrick JONES v. STATE of Mississippi.
    No. 2000-CT-00407-SCT.
    Supreme Court of Mississippi.
    Oct. 30, 2003.

      Raymond L. Wong, Cleveland, attorney for appellant.
    Office of the Attorney General by Dewitt T. Allred, III, attorney for appellee.
   ON WRIT OF CERTIORARI

SMITH, Presiding Justice, for the Court.

¶ 1. Patrick Jones was indicted on one count of vehicular homicide in Bolivar County Circuit Court. Jones was accused of causing an automobile accident while under the influence of cocaine which resulted in the death of Emma Powell. Jones was convicted and received a sentence of twenty years with five years suspended. Jones appealed, and the appeal was assigned to the Court of Appeals which affirmed. Jones v. State, - So.2d -, 2003 WL 21005836 (Miss.Ct.App. 2003). This Court granted certiorari to consider the application of the physician-patient privilege in criminal cases and the possible evidentiary implication of standards for hospitals and medical personnel involved in drug testing of patients. 852 So.2d 577 (Miss.2003). After due consideration, we find no error in the judgment of the Court of Appeals and affirm.

FACTS

¶ 2. This statement of facts is taken from the opinion of the Court of Appeals:

While driving his loaded tractor trailer rig along Highway 61 North, just south of Shaw, Jones collided with Emma Powell’s automobile. More specifically, Jones struck Powell’s vehicle from the rear as they were both proceeding north in the outside lane of Highway 61 North which, at the point of impact, is a four-lane highway. At the time of the collision, the weather was clear. There were no obstructions blocking the view of northbound motorists. There were no skid marks indicating that Jones had applied his brakes prior to impact. However, there were skid marks from Powell’s vehicle, apparently caused by the weight of Jones truck resting on the rear of her car while, at the same time, pushing her car down the road. Powell and Jones were both injured and transported to the Bolivar Medical Center. Powell later died as a result of the injuries she received.
Sergeant Bob McFadden with the Mississippi Highway Patrol’s Traffic Enforcement Division investigated the accident. After Powell was pronounced dead, McFadden administered a breath test to Jones. This test was negative for alcohol, and McFadden did not request that a urine analysis be performed on Jones.
Although McFadden did not request that a urine analysis be administered to Jones, one was administered by hospital personnel as a part of the diagnostic treatment administered to Jones. Clint Robinson, an emergency room registered nurse, retrieved the urine sample from Jones, and Betty Cooper, a medical technologist with Bolivar Medical Center, following hospital procedures, performed the analysis on Jones’s urine. This analysis determined that Jones had cocaine in his system. The results of Cooper’s cocaine analysis were confirmed, pursuant to standard hospital policy, by Memphis Pathology Laboratories (MPL). However, no one from MPL testified. Over persistent objection from Jones, the trial court admitted the results of the urine analysis, performed by Cooper, and the confirmation report performed by MPL.

Jones v. State, - So.2d at -, 2003 WL 21005836, at * 1 (footnote omitted).

¶ 3. Jones was convicted of vehicular homicide and was sentenced to twenty years, with five years suspended. Jones appealed his conviction and sentence, arguing that the circuit court had admitted the results of his urinalysis in violation of the physician-patient privilege and without meeting the statutory requirements for admission contained in Miss.Code Ann. § 63-11-19 (Supp.2003). The Court of Appeals rejected this argument, stating: (1) the results of Jones’s urinalysis were not protected by the physician-patient privilege; (2) the requirements of § 63-11-19 did not per se exclude the evidence in question; (3) admission of the evidence should be based on a standard of reasonableness; and (4) while the admission of the report from Memphis Pathology Lab was improper based on hearsay and violation of the right of confrontation, but this error was harmless.

DISCUSSION

I. WHETHER THE PHYSICIAN-PATIENT PRIVILEGE WAS APPLICABLE.

¶ 4. Jones argues first that the Court of Appeals erred in finding that the results of his urinalysis were not protected from disclosure by the physician-patient privilege. The privilege may be found at Miss.Code Ann. § 13-1-21(1) (Rev.2002) and Mississippi Rule of Evidence 503. None of the exceptions found in Rule 503 are applicable here.

¶ 5. This Court has stated that the physician-patient privilege applies in criminal cases. Hopkins v. State, 799 So.2d 874 (Miss.2001); State v. Baptist Mem’l Hosp.Golden Triangle, 726 So.2d 554 (Miss.1999); Cotton v. State, 675 So.2d 308 (Miss.1996); Ashley v. State, 423 So.2d 1311 (Miss.1982). However, these cases are distinguishable on their facts from Jones’s situation. In Ashley, the privilege was waived when Ashley failed to timely object. In Cotton, the privilege in question was not Cotton’s, but a witness’s. In Baptist Mem’l, there was a statutory exception to the privilege, and in Hopkins, the defendant waived the privilege. In this case the evidence in question came under the physician-patient privilege, and there was no waiver and no statutory exception. The Court of Appeals noted that without the urinalysis results there was no evidence of cocaine in Jones’s system. Citing Baptist Mem’l, the Court of Appeals found that “to ensure the proper administration of justice, the medical records regarding the analysis of Jones’s urine specimen must be removed from the protection of the physician-patient privilege.” Jones, - So.2d at -, 2003 WL 21005836, at *4 (¶ 20). A defendant in a criminal case may not rely on this privilege to exclude incriminating evidence. This Court, citing cases from other jurisdictions, made this same point numerous times in Baptist Mem’l, 726 So.2d at 559, 560, stating that “[wjhere there is an investigation into a serious and/or dangerous felony, public policy must override the rights of an individual,” and that the physician-patient privilege would not be used as a “cloak for a crime.” This issue is without merit.

II. WHETHER MISS. CODE ANN. § 63-11-19 IS AN EXCLUSIONARY RULE.

¶ 6. Miss.Code Ann. § 63-11-19 states in part:

A chemical analysis of the person’s breath, blood or urine, to be considered valid under the provisions of this section, shall have been performed according to methods approved by the State Crime Laboratory created pursuant to Section 45-1-17 and the Commissioner of Public Safety and performed by an individual possessing a valid permit issued by the State Crime Laboratory for making such analysis. The State Crime Laboratory and the Commissioner of Public Safety are authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the State Crime Laboratory ... The State Crime Laboratory shall make periodic, but not less frequently than quarterly, tests of the methods, machines or devices used in making chemical analysis of a person’s breath as shall be necessary to ensure the accuracy thereof, and shall issue its certificate to verify the accuracy of same.

¶ 7. Jones argues that the chemical analysis of his urine specimen was not performed according to methods approved by the State Crime Laboratory and the Commissioner of Public Safety, and that Betty Cooper did not possess a permit issued by the State Crime Laboratory. Jones seeks to have § 63-11-19 used as a rule of evidence, where noncompliance results in exclusion of the evidence.

¶ 8. The Court of Appeals noted Johnston v. State, 567 So.2d 237 (Miss.1990), where we reversed a conviction for DUI because there was no evidence in the record to establish that the intoxilyzer machine had been calibrated within the time period required by § 63-11-19. The Court of Appeals correctly distinguished Johnston because it dealt with accuracy of intoxilyzer machines, and also stated that

we do not read Johnston to say that the result of a chemical analysis of a person’s blood inadmissible if it is not done by a permittee of the State Crime Laboratory in accordance with methods approved by the State Crime Laboratory. For sure, such an analysis would not be deemed as valid as one performed by a permittee in accordance with methods approved by the State Crime Laboratory. In such cases, the procedures used in the analysis must pass a test of reasonableness.

Jones v. State, - So.2d at -, 2003 WL 21005836, at *6 (¶ 25).

¶ 9. The Court of Appeals then cited Cutchens v. State, 310 So.2d 273 (Miss.1975), language from Miss.Code Ann. § 63-11-39(2), which was repealed in 1991, and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), to find that admission of the evidence in question should be viewed under a reasonableness standard. Finding that the standard was met, the Court of Appeals affirmed the admission of the urinalysis results.

¶ 10. We conclude that § 63-11-19 is not a rule of evidence and evidence otherwise admissible will not be excluded because of failure to comply with its requirements. Johnston v. State is distinguishable as it dealt with an intoxilyzer, which must be tested at least quarterly by the State Crime Lab under § 63 — 11— 19, and not hospital procedures and personnel, as in this case. This issue is without merit.

CONCLUSION

¶ 11. We find that the physician-patient privilege may not be used to exclude incriminating drug analysis results discovered as a result of diagnostic treatment. We find that Miss.Code Ann. § 63-11-19 is not a rule of evidence and will not exclude otherwise admissible evidence because of a failure to comply with the statute’s requirements. Accordingly, we affirm the judgment of the Court of Appeals which affirmed the circuit court’s judgment.

¶ 12. AFFIRMED.

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


author: CARLSON, Justice, for the Court.

text:
    Jimmy PERRY and Twylia Perry, as Parents of Brandi Ivy Perry, A Minor v. Orlando J. ANDY, M.D. and Hattiesburg Clinic, P.A.
    No. 2002-CA-01436-SCT.
    Supreme Court of Mississippi.
    Oct. 30, 2003.

      Thomas Michael Reed, attorney for appellants.
    Amanda Clearman Waddell, J. Robert Ramsay, Hattiesburg, attorneys for appel-lees.
   CARLSON, Justice, for the Court.

¶ 1. Aggrieved by the circuit court’s judgment dismissing their lawsuit pursuant to Miss. R. Civ. P. 4(h) and 12(b)(5) & (6), Jimmy and Twylia Perry have appealed to this Court on the issue of whether they had good cause, as pro se plaintiffs, for not properly serving Orlando J. Andy, M.D., and the Hattiesburg Clinic, P.A., within the 120 days prescribed by Miss. R. Civ. P. 4(h). Finding that the circuit court was correct in granting the motion to dismiss filed by Dr. Andy and the Hatties-burg Clinic, we affirm the judgment of the Circuit Court of Forrest County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. On February 13, 2000, Brandi Ivy Perry, a nineteen-year-old girl suffering from severe abdominal pain, underwent an emergency appendectomy performed by Dr. Orlando J. Andy of the Hattiesburg Clinic, P.A., at Forrest General Hospital in Hattiesburg, Forrest County, Mississippi. Following a two-day recovery period, Brandi was released, and she and her family drove to Atlanta, Georgia. Three days later, while in Atlanta, Brandi’s acute abdominal pain returned. Sometime after midnight on February 19, 2000, she was rushed by ambulance to Emory University Hospital for emergency surgery.

¶ 3. During her surgery at Emory, Dr. John Hunter discovered that evidently as a result of her earlier appendectomy, Brandi had sustained a near fatal “nicked abdomen wall and ovary.” Brandi’s parents, Jimmy and Twylia Perry, incurred expenses in excess of $24,500 for the second surgery. Additionally, the second surgery left a 10-inch scar across Brandi’s lower abdomen. Brandi missed five weeks of college course work, forcing her to withdraw from the University of Southern Mississippi for the remainder of the semester.

¶ 4. On February 12, 2002, Jimmy and Twylia filed this pro se lawsuit against Dr. Andy and the Hattiesburg Clinic in the Circuit Court of Forrest County, alleging medical negligence arising from the emergency appendectomy performed by Dr. Andy on February 13, 2000. On February 19 or 20, 2002, Mr. Perry hand delivered a copy of the complaint to Dr. Andy at his place of business.

¶ 5. Process was finally issued on June 17, 2002, and Dr. Andy and the Hatties-burg Clinic were personally served with process on June 19, 2002, seven days after the 120-day deadline for service of process had expired.

¶ 6. Dr. Andy and the Hattiesburg Clinic filed a motion to dismiss pursuant to Miss. R. Civ. P. 4(h) and 12(b)(5) & (6), alleging failure to effect service of process within 120 days. The trial court heard the motion to dismiss. Mr. Perry explained during the circuit court hearing:

MR. PERRY: Your Honor, I would like to enter this letter. Like you say, ignorance is no excuse for the law. I personally handed Dr. Andy what I thought was a suit February 19 or 20, which I filed February 12, 2002. This is the earliest I could get an appointment with Dr. Andy.
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BY THE COURT: Did you even consider having process served?
MR. PERRY: I didn’t know anything about that, Your Honor.

¶ 7. The trial court was sympathetic to the Perrys’ self-representation, but, nevertheless, found, “The rules are the rules are the rules and we all have to abide by that.” Accordingly, the trial court entered an order of dismissal, and the Perrys appeal.

DISCUSSION

¶ 8. The Perrys argue that they had good cause for not properly serving process on the defendants within the 120 days prescribed by Miss. R. Civ. P. 4(h). Given their pro se status in the circuit court and the fact that Mr. Perry handed a copy of the complaint to Dr. Andy prior to the expiration of the 120 days, the Perrys contend the trial court erred in dismissing their lawsuit against Dr. Andy and the Hattiesburg Clinic.

¶ 9. The Perrys correctly state that the standard of review for a trial court’s finding of fact on the existence of good cause for delay in service of process is abuse of discretion. Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185(¶ 6) (Miss.2002) (citing Rains v. Gardner, 731 So.2d 1192, 1197-98 (Miss.1999)). A trial court’s determination of fact as to whether good cause exists for delay in service of process is a discretionary ruling entitled to deferential review on appeal. Id.

¶ 10. Mississippi Rule of Civil Procedure 4(h) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

¶ 11. The Perrys argue that Mr. Perry fulfilled the essence of Miss. R. Civ. P. 4(h) by serving a copy of the complaint to Dr. Andy on February 19 or 20, 2002, even though no summons accompanied the complaint. The Perrys argue, and we agree, that Dr. Andy received actual notice of the lawsuit when Mr. Perry handed him a copy of the complaint. There is an obvious distinction between a total want of service of process and a defective service of process. Harrington v. Wofford, 46 Miss. 31, 41 (1871). When process is completely lacking, “the defendant has no notice at all of the suit.” Id. However, “defective service of process gives the defendant actual notice of the suit or proceeding against him.” Id.; see also Pinkston ex rel. Pinkston v. Miss. Dep’t of Transp., 757 So.2d 1071, 1073(¶ 7) (Miss.Ct.App.2000) (finding attorney had actual notice of a court order when she received a letter from the county clerk indicating the order had been entered). Thus, when Mr. Perry handed Dr. Andy a copy of the complaint actual notice was established.

¶ 12. The Perrys further contend they acted in good faith and should not be effectively barred from their day in court when they acted diligently to effect process while proceeding pro se. In Holmes this Court stated:

[G]ood cause is likely (but not always) to be found when the plaintiffs failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis.

815 So.2d at 1186 (¶ 12) (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 342 (3d ed.2000)) (emphasis added). The Perrys argue this language in Holmes provides jurisprudential room for this Court to afford pro se plaintiffs greater latitude in complying with service of process requirements.

¶ 13. In response, Dr. Andy and the Hattiesburg Clinic cite LeBlanc v. Allstate Ins. Co., 809 So.2d 674 (Miss.2002) and Moore ex rel. Moore v. Boyd, 799 So.2d 133 (Miss.Ct.App.2001), to assert that good cause or diligence must be shown by satisfying a standard of excusable neglect, which is ordinarily not satisfied by ignorance of the rules. Dr. Andy and the Hattiesburg Clinic point out that pro se litigants must be held to substantially the same standards of litigation conduct as members of the bar. Ivy v. Merchant, 666 So.2d 445, 449-50 (Miss.1995); see also Stringer v. Am. Bankers Ins. Co. of Fla., 822 So.2d 1011, 1014 (¶ 10) (Miss.Ct.App.2002). Once pro se litigants are held to the same standard as practicing attorneys, Dr. Andy and the Hattiesburg Clinic argue the law is clear: ignorance of the law is no excuse for failure to serve process within 120 days of filing a complaint, and such failure is grounds for dismissal.

¶ 14. The question before this Court is whether Miss. R. Civ. P. 4(h) demands strict compliance by pro se plaintiffs or whether substantial compliance satisfies the “good cause” requirement for delay of service. Narrowly construed, this is a question of first impression for this Court. Following the language of LeBlanc, Moore, and Stringer, this Court finds that pro se plaintiffs must strictly comply with Miss. R. Civ. P. 4(h).

¶ 15. In LeBlanc, this Court affirmed the trial court’s finding that the plaintiff failed to show good cause for failure to serve process within 120 days despite the fact that the plaintiffs injuries from the disputed automobile accident affected her cognitive ability and limited communication with her attorney. 809 So.2d at 678. LeBlanc was a passenger in a vehicle involved in an automobile accident. Id. at 675. In addition to suing the drivers involved, LeBlanc sued her insurance company to recoup uninsured motorist coverage. Id. Upon its motion, the insurance company was dismissed because LeBlanc failed to effect service of process within 120 days. Id. In upholding the trial court’s Rule 4(h) dismissal, this Court held, “the failure to even have process issued showed a lack of diligence beyond excusable neglect.” Id. at 678.

¶ 16. Similarly, in Moore the Court of Appeals stated, “[the] excusable neglect standard is a very strict standard.” 799 So.2d at 136(¶ 7). After his mother was killed in a house fire in Oxford, Mississippi, Moore filed a wrongful death action against five defendants, including Boyd. Id. at 134(¶ 1). Summonses were served on all defendants except Boyd, who had moved to Atlanta, Georgia. Id. Not until two years and two months after filing the complaint did Moore successfully serve Boyd. Id. at 135. Boyd’s Rule 4(h) motion for dismissal was granted. On appeal, Moore argued Boyd intentionally evaded process. Id. Finding no evidence Boyd affirmatively evaded process, the Court of Appeals affirmed the dismissal. Id. at 136-37.

¶ 17. In Stringer, the Court of Appeals held that pro se litigants should be held to the same standards as practicing attorneys and that ignorance of public information does not rise to the level of excusable neglect. 822 So.2d at 1014. Stringer filed suit against American Bankers Insurance Company and other entities instrumental in issuing an appearance bond allowing him release from jail pending a criminal adjudication. Id. at 1012. Stringer filed the complaint pro se on July 13, 1992, but Stringer never served American Bankers. Id. The summons which Stringer issued lacked an address. Id. On March 22, 2000, American Bankers’ motion to dismiss was granted pursuant to Miss. R. Civ. P. 4(h). Id. at 1013. On appeal, Stringer argued he was incarcerated during the service of process period and the American Bankers’ attorney failed to comply with his requests to obtain American Bankers’ address for service of process. Id. American Bankers pointed out it was registered to do business in Mississippi and had a registered agent for service of process in Mississippi in accordance with state law. Id. at 1014. The Court of Appeals agreed. In language condemning the ignorance of pro se litigants as a viable demonstration of good cause, the court stated,

We agree that a pro se litigant’s ignorance of a readily available means, through access to public records maintained specifically for that purpose, of obtaining information to serve an intended defendant in litigation does not rise to the level of excusable neglect under authority holding that pro se litigants must be held to essentially the same standards in the conduct of litigation as are members of the bar licensed to practice before the court.

Id. (citing Ivy v. Merchant, 666 So.2d at 449-50).

1118. While LeBlanc, Moore, and Stringer encourage a strict compliance standard in the instant case, the Perrys interpret this Court’s language in the more recent case of Holmes as lending some credence to a substantial compliance standard for pro se plaintiffs under Miss. R. Civ. P. 4(h). Holmes was a bus passenger injured when the bus in which he was riding struck a roadway obstruction. Holmes, 815 So.2d 1183, 1184(¶ 2). Rather than file suit immediately, Holmes began settlement negotiations with the bus company. Id. However, before the statute of limitations expired, Holmes filed a complaint and attempted to serve process on the bus company’s chief executive officer by mailing him the complaint and summons along with two Notice and Acknowledgment forms. Id. The bus company did not file an answer or return the forms. Id. After the period for service of process expired and after Holmes rejected the bus company’s final settlement offer, the bus company notified Holmes it had not and would not accept service of process by mail. Id. The trial court subsequently dismissed Holmes’s case pursuant to Miss. R. Civ. P. 4(h) for failure to effect timely service of process. Id. at 1185(¶ 5).

¶ 19. On appeal, this Court rejected Holmes’s equitable argument that the bus company misled him into believing it had accepted service by mail and followed the rationale in Healthcare Compare Corp. v. Super Solutions Corp., 151 F.R.D. 114 (D.Minn.1993). 815 So.2d at 1186-87. Healthcare Compare reasoned, “Plaintiffs would have no incentive to comply with the 120 day limit if they could always find shelter from the rule by claiming that they had begun negotiations in good faith.” 151 F.R.D. at 115-16. While we ultimately affirmed the trial court’s dismissal, we cited a leading treatise [Wright & Miller] which apparently has offered some comfort to the Perrys in their “substantial compliance” argument. In quoting from Wright & Miller, we stated in Holmes that “good cause [for delay of service of process] is likely (but not always) to be found when ... the plaintiff is proceeding pro se or in forma pauperis.” Holmes, 815 So.2d at 1186 (¶ 12) (quoting 4B Federal Practice & Procedure § 1137, at 342).

¶20. In the case at bar, neither side cites a decision of this Court involving a Rule 4(h) dismissal for failure to timely serve process by a pro se plaintiff. While Mississippi jurisprudence on Miss. R. Civ. P. 4(h) is considerable, this Court has not specifically addressed the good cause standard for pro se plaintiffs. Again, the language in Holmes, adopted from Wright & Miller, has caused the Perrys to believe that we created an opening for pro se litigants to claim good cause for delay in service of process by virtue of their pro se status. 815 So.2d at 1186 (¶ 12). Additionally, the Perrys correctly note that Healthcare Compare, on which the Holmes decision was based, cautioned that its holding should not be used “to penalize plaintiffs who demonstrate reasonable diligence in effecting timely service on defendants.” 151 F.R.D. at 115 (citing Baden v. Craig-Hallum, Inc., 115 F.R.D. 582 (D.Minn.1987)).

¶ 21. Although the Perrys’ ignorance of the summons requirement prevented them from fully complying with Miss. R. Civ. P. 4(h), their attempt to comply was more substantial than the plaintiffs’ efforts in LeBlanc (in which the plaintiff did not serve process for eleven months purportedly because of cognitive injuries and communication difficulties with her attorney), Moore (in which the plaintiff did not locate the defendant at his new address or make any contact with the defendant during the period for service of process), Stringer (in which the plaintiff made no contact with the defendant for eight years), and Holmes (in which the plaintiff mailed a summons and complaint to the defendant). By contrast, the Perrys, proceeding pro se, attempted to give notice of the lawsuit by hand delivering a copy of the complaint to Dr. Andy at his place of business. When they became aware of the summons requirement, the Perrys had summonses served on Dr. Andy and the Hattiesburg Clinic, seven days after the 120 days for service of process had expired. The Per-rys' argument for a good cause exception to the strictures of Miss. R. Civ. P. 4(h) is therefore stronger than the above cited cases.

¶ 22. While we are not unsympathetic to the Perrys’ equitable arguments concerning substantial compliance, the prevailing case law strongly favors the view that pro se plaintiffs must be held to a strict compliance standard under Miss. R. Civ. P. 4(h). A review of federal jurisprudence on this issue reveals that pro se status in and of itself does not excuse plaintiffs’ failures to comply with Rule 4 service of process requirements. Downs v. Westphal, 78 F.3d 1252, 1257 (7th Cir.) (stating “pro se litigants are not entitled a general dispensation from the rules of procedure”), amended on other grounds on denial of rehearing, 87 F.3d 202 (7th Cir.1996); Williams-Guice v. Bd. of Educ. of City of Chicago, 45 F.3d 161, 164 (7th Cir.1995) (holding even uncounseled litigants must act within time provided by statutes and rules); Dunmars v. City of Chicago, 22 F.Supp.2d 777, 782 (N.D.Ill.1998) (holding a pro se litigant’s ignorance of the 120-day time limit does not establish good cause under Rule 4); Barrett v. City of Allentown, 152 F.R.D. 46 (E.D.Pa.1993) (finding plaintiffs’ pro se status in civil rights action against city did not constitute good cause for failure to serve city within 120 days of filing original complaint); Sanders v. Fluor Daniel, Inc., 151 F.R.D. 138 (M.D.Fla.1993) (stating pro se status in itself does not constitute good cause), aff'd mem. 36 F.3d 93 (11th Cir.1994); Scarton v. Charles, 115 F.R.D. 567 (E.D.Mich.1987) (holding ignorance of the rules does not constitute good cause); 4B Wright & Miller, Federal Practice & Procedure § 1137, at 342-49 (3d ed.2000) (stating, “Pro se status or any of the other listed explanations for a failure to make timely service ... is not automatically enough to constitute good cause_”).

¶ 23. These federal precedents are consistent with this Court’s decisions in Ivy (pro se plaintiffs should be held to substantially the same standard as bar members) and Holmes (good faith efforts do not constitute good cause for failing to effect timely service of process), and with the Mississippi Court of Appeals’ holdings in Moore (the excusable neglect standard is a very strict standard) and Stringer (pro se litigants should be held to the same standards as practicing attorneys such that ignorance of public information does not rise to the level of excusable neglect). Therefore, we hold that pro se plaintiffs must strictly comply with the requirements of Miss. R. Civ. P. 4(h).

CONCLUSION

¶24. The trial court did not abuse its discretion in dismissing the Perrys’ complaint for failure to serve process within 120 days in accordance with Miss. R. Civ. P. 4(h). Notwithstanding the Perrys’ equitable arguments for implementing a substantial compliance standard for pro se plaintiffs in the application of Miss. R. Civ. P. 4(h), such a standard is not supported by the great weight of authority in this State or in the Federal system. Therefore, the judgment of dismissal entered by the Forrest County Circuit Court is affirmed.

¶ 25. AFFIRMED.

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


author: KING, P.J., for the Court.

text:
    Steve JASPER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00317-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.
    Rehearing Denied Oct. 28, 2003.

      Leslie D. Roussell, Collins, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   KING, P.J., for the Court.

¶ 1. Steve Jasper was found guilty in the Wayne County Circuit Court of felony shoplifting and sentenced as an habitual offender to serve five years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Jasper has appealed and raised the following issues:

I. Whether the trial court erred by sentencing Jasper as an habitual offender.

II. Whether the trial court erred by allowing Deputy Kevin Stevens to give testimony regarding privileged information.

III. Whether the trial court erred by failing to give the requested lesser-included offense jury instruction.

FACTS

¶ 2. On April 10, 2001, Jasper entered Hutto Furniture in Waynesboro. Jasper looked around the furniture store at various items. One of the employees asked Jasper if he needed assistance. According to Mr. Hutto, owner of the store, Jasper was the only individual in the store besides the employees.

¶ 3. Mr. Hutto and the employees “heard some racket, like something had jarred the door.” The buzzer sounded on the door. Jasper was no longer in the store. One of the employees noticed a red Grand Am had pulled out of the parking area next to the store. Mr. Hutto indicated that while looking outside the store, he and one of the employees noticed that “part of the mounting brackets and all of the air conditioner was on the side walk. At that time we realized that — and then we looked and seen the air conditioner gone.” The mounting brackets were located on the sidewalk just outside the door. Mr. Hutto and one of the employees saw the vehicle leaving the parking area and followed it. Mr. Hutto followed the vehicle to the parking lot of the local Wal-Mart and called the sheriffs department which put him through to the police department.

¶ 4. The occupants of the vehicle came out of Wal-Mart, got in the vehicle and left. Mr. Hutto was on his cell phone with the dispatcher giving information regarding the vehicle’s direction of travel. Officer Robert Owen of the Waynesboro Police Department was directed to the area and pulled the vehicle over, with Jasper the driver.

¶ 5. Officer Owen testified that “[w]hen I got the vehicle stopped, as I was getting out and walking up to the vehicle, the driver stepped out of the vehicle and began walking back towards me. I asked him for a driver’s license and identification. He didn’t have any. He gave me a name of Steve Jasper and said that he did not have a driver’s license. And at that time, I placed him under arrest for driving without a driver’s license.” Officer Owen, along with other officers on the scene, did an impound inventory of the vehicle prior to it being towed. Officer Owen indicated that “there was a GE air conditioner in the trunk of the vehicle.” While at the scene, Mr. Hutto looked at the air conditioner and indicated that he thought it was one of his air conditioners missing from the display shelf. Officer Owen photographed the air conditioner at the scene, both in the trunk of the vehicle and after it was removed from the vehicle, and turned it back over to Mr. Hutto.

¶ 6. Mr. Hutto testified that once he took the air conditioner back to the store, he confirmed the serial number and model number off that air conditioner with the store’s records. He indicated that the information matched. Mr. Hutto stated that the price on this particular GE air conditioner was $379.

¶ 7. At trial, Deputy Sheriff Kevin Stevens testified that he overheard Jasper comment to his attorney “that there was a misunderstanding about the value of an — I believe it was an air conditioner; that they had him charged with taking an air conditioner over $250 and that he made sure it was under $250 on the one he took, so that made it a misdemeanor instead of a felony.” Officer Stevens also indicated that at the time the statement was made he was not aware of whether or not Jasper or the attorneys were involved in any plea negotiations.

¶ 8. At trial, Jamie Bush, a latent print examiner with the Mississippi Crime Lab, testified that the latent prints submitted to the crime lab by Officer Owen matched the palm prints on the identification card bearing the name “Steve Jasper.”

¶ 9. Jasper was convicted of felony shoplifting and sentenced as an habitual offender under Mississippi Code Annotated Section 99-19-81 (Rev.2000), with five years to serve in the custody of the Mississippi Department of Corrections and ordered to pay a fine and other court costs.

ISSUES AND ANALYSIS

I.

Whether the trial court erred by sentencing Jasper as an habitual offender.

¶ 10. Jasper contends that the trial court erred by sentencing him as an habitual offender. He maintains that the State did not prove that he had two prior felonies serving one year or more in prison, as required under Mississippi Code Annotated Section 99-19-81 (Rev.2000).

¶ 11. To establish Jasper’s habitual status, the State introduced certified copies of three “pen packs.” Pen packs are the records maintained on inmates sentenced to the custody of the Department of Corrections. Russell v. State, 670 So.2d 816, 829 (Miss.1995).

¶ 12. When asked, counsel for Jasper indicated no objection to the admission of these pen packs.

¶ 13. The trial court determined that the testimony and evidence presented showed beyond a reasonable doubt that Jasper had been convicted of at least two felonies prior to this charge. “Those charges have been separately brought. They arose out of separate incidents, at different times, and he has been sentenced to terms of one year or more in the state penitentiary.”

¶ 14. That finding was consistent with the evidence before the trial court, and pursuant to Mississippi Code Annotated Section 99-19-81 (Rev.2000), Jasper was appropriately sentenced as an habitual offender.

II.

Whether the trial court erred by allowing Deputy Kevin Stevens to give testimony regarding privileged information.

¶ 15. Jasper contends that the trial court erred by allowing Deputy Stevens to testify. Jasper claims that Deputy Stevens’ name was not disclosed until the morning of trial and that his testimony went into matters of privileged information.

¶ 16. On the morning of trial, Jasper was informed that Deputy Stevens would testify, and was informed of the substance of his testimony. Despite having received this information on the morning of trial, Jasper announced ready for trial. Jasper objected only after Stevens was called to testify. The trial judge then asked Jasper if he wanted to question the witness, to which Jasper stated:

BY MR. ROUSSELL: Well, I know. But, I mean, my basic objection is that it’s a violation of rules of discovery. And to let me know that he is going to testify today is — I mean, that has some bearing on maybe how I would have presented the defense or what I would have done in preparation for it.

The trial judge indicated that because Jasper had been advised of the potential witness prior to trial and both parties announced “ready,” the objection was overruled.

¶ 17. At trial, Deputy Stevens testified to having overheard Jasper’s remark about the air conditioner’s value. According to Stevens, Jasper was not responding to any question that he asked when the statement regarding the value of the air conditioner taken was heard. Deputy Stevens had been called to take Jasper back to the cell. As Stevens walked into the courtroom (where Jasper, his attorney, and the district attorney were sitting according to Jasper’s attorney), he overheard the remark. In his brief, Jasper’s attorney indicates that the remark was heard “approximately two months prior to trial.” Stevens testified that the following occurred:

Q. Did he (Jasper) make any comments concerning this case in your presence?
A. Yes, ma’am, there was a comment made.
Q. What was the comment?
A. Basically, all that was said was that there was a misunderstanding about the value of an — I believe it was an air conditioner; that they had him charged with taking an air conditioner over $250 and that he made sure it was under $250 on the one he took, so that made it a misdemeanor instead of a felony.
Q. And was that in response to any question that you had asked him?
A. No. I was standing there. We were going back to the jail. And his attorney, Mr. Mitchell was there, and I was standing beside him, and it was just, basically, conversation amongst all of us. And we all looked at some photographs trying to read, I believe it was a bar code number. But they were too small to read.

¶ 18. The trial judge determined that the statement was not made in response to Jasper being questioned by the officer, and was not made under privileged circumstances.

¶ 19. There was accordingly no error in its admission.

III.

Whether the trial court erred by failing to give the requested lesser-included offense jury instruction.

¶ 20. Jasper contends that the trial court erred by failing to give a lesser-included-offense jury instruction, which he requested. Jasper claims that since there was testimony that “the air conditioning unit found in the back of the car defendant was driving was not an 8,000 btu unit as alleged by the State, but that it was a smaller 5,000 btu unit,” the jury could have reasonably concluded that the actual air conditioner taken was less than $250 in value. He maintains that since this was one of his theories of the ease that the instruction should have been granted.

¶ 21. A lesser-included-offense instruction “should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence.” Woodham v. State, 800 So.2d 1148 (¶24) (Miss.2001). The trial judge indicated that he was not aware of any evidence presented to support the inference that the “value of the air conditioner that was taken” was less than $250.

¶ 22. In this case, the State presented evidence through Mr. Hutto’s testimony that the air conditioner found in the trunk of the vehicle was the same as the one missing from his store. Mr. Hutto testified that the particular air conditioner sold for $379. The latent print examiner testified that Jasper’s palm prints matched the prints located on the air conditioner.

¶ 23. Having reviewed the evidence presented, we find that Jasper was not entitled to a lesser-included-offense jury instruction and affirm the trial judge’s decision.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE AS AN HABITUAL OFFENDER TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.

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


author: CHANDLER, J., for the court.

text:
    Vantonias ELLIOTT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00434-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.
    Rehearing Denied Oct. 28, 2003.
    Vantonias Elliott (Pro Se), appellant.
    Office of the Attorney General by: W. Glenn Watts, for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   CHANDLER, J., for the court.

¶ 1. Vantonias Elliott appeals the denial of his motion for post-conviction relief from a 1983 conviction in which he received a partially suspended sentence. Elliott contends that this Court should vacate the conviction because the partially suspended sentence was illegal.

FACTS

¶ 2. On November 3, 1980, Elliott pled guilty to possession of a controlled substance and was sentenced to three years in an institution to be designated by the State Board of Corrections, with one year suspended. On February 3, 1983, Elliott was indicted for armed robbery. On May 23, 1983, pursuant to plea negotiations, Elliott pled guilty to a reduced charge of robbery and was sentenced to twelve years in an institution to be designated by the Department of Corrections, with four years suspended. Elliott is currently incarcerated; in his brief he states that he is serving a life sentence as a habitual offender.

¶3. On October 5, 2001, Elliott filed a motion for post-conviction relief from the 1983 robbery conviction, arguing that the partially suspended sentence was illegal and violated his fundamental right of freedom from an illegal sentence. The Circuit Court of Marshall County denied the motion as time barred pursuant to Miss.Code Ann. § 99-39-5(2) (Rev.2000).

LAW AND ANALYSIS

¶ 4. Elliott filed his motion for post-conviction relief over eighteen years after the challenged robbery conviction. Mississippi Code Annotated § 99-39-5(2) (Supp. 2002) provides that a prisoner has three years after the entry of judgment of conviction in which to file a motion for post-conviction relief. Elliott argues that he should be excepted from the time bar because the robbery sentence was illegal and impacted his fundamental right of freedom from an illegal sentence. Elliott is correct that “errors affecting fundamental rights are exempt from procedural bars that would otherwise prohibit their consideration.” Luckett v. State, 582 So.2d 428, 430 (Miss.1991).

¶ 5. Nonetheless, we are unable to entertain Elliott’s claim because he is no longer serving the sentence of which he complains. Shaw v. State, 803 So.2d 1282, 1284(¶ 7) (Miss.Ct.App.2002). The post-conviction relief statutes are an avenue for persons “in custody under sentence of a court of record” to seek relief from the conviction or sentence. Miss.Code Ann. § 99-39-5(1) (Supp.2002). In October of 2001, when Elliott filed the instant motion, his 1983 sentence of twelve years, with four years suspended, should have been over for approximately two years. The record is silent as to whether Elliott has indeed completed the sentence. However, Elliott has not provided this Court with any proof that he is still serving the sentence nor does he allege that he is still serving it.

¶ 6. It does appear that Elliott is presently a prisoner within the jurisdiction of the Mississippi Department of Corrections. But unless he is being held under the sentence of which he complains, the post-conviction relief statutes provide no remedy. Miss.Code Ann. § 99-39-5(1) (Supp.2002); Shaw, 803 So.2d at 1284 (¶ 7).

¶ 7. Elliott avers that he failed to timely challenge the 1983 conviction because he had no reason to do so until the conviction was used to establish his habitual offender status, but that he should be able to do so now that the conviction has been “used against him.” There is no evidence before this Court, other than Elliott’s assertions, that he is now serving a habitual sentence. It is well established that we cannot base judgments on factual assertions made within briefs. Mason v. State, 440 So.2d 318, 319 (Miss.1983). Nonetheless, we reiterate our statement that a movant’s failure to challenge a sentence due to lack of incentive until after its use for sentencing enhancement does not implicate due process. Pruitt v. State, 846 So.2d 271, 275 (¶ 12) (Miss.Ct.App.2002). “The fact that [Elliott] was not interested in implementing a challenge until after he had committed more crimes is not an objective, external factor that impeded his ability to raise these claims within Mississippi’s time period.” Moore v. Roberts, 83 F.3d 699, 704 (5th Cir.1996). Though he had the opportunity to do so, Elliott declined to attack the 1983 conviction during the duration of his sentence in that conviction. This appeal is without merit.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

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


author: THOMAS, J., for the Court.

text:
    Joseph Darnell PEYTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00924-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2003.

      Kellie Williamson Koenig, Greenville, James (Jay) R. Foster, Oxford, Attorneys for Appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Attorney for Appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   THOMAS, J., for the Court.

¶ 1. Joseph Darnell Peyton was convicted in the Circuit Court of Harrison County of armed robbery and sentenced as an habitual offender to thirty-five years in the custody of the Mississippi Department of Corrections. Aggrieved, he asserts the following issues on appeal:

I. THE TRIAL ATTORNEY FOR THE APPELLANT WAS INEFFECTIVE AS COUNSEL.

II. THE EVIDENCE PRESENTED AT TRIAL WAS NOT SUFFICIENT.

III. THE TRIAL JUDGE ERRED IN NOT ALLOWING IN EVIDENCE OF THE STATEMENT OF MICHAEL MARTISHIUS AND/OR ALLOWED THE TRIAL ATTORNEY TO ASK THE INVESTIGATING OFFICERS ABOUT IT.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The Pat O’s liquor store in Biloxi was robbed on March 1, 2001, by a large man dressed as a woman who pulled a gun after coming to the counter as if to buy a bottle of vodka. The clerk pushed the silent alarm button and then complied with his demands, giving the thief the store’s cash and the bottle of vodka. The clerk noticed the thief leaving in a red car. A few minutes later, the police pulled over a small red ear being driven by a friend of Peyton with Peyton in the passenger seat.

¶ 4. The driver of the car, Shari Thompson, was arrested along with Peyton. She described the women’s clothing Peyton had been wearing and police retrieved them that same day. A grand jury later declined to indict Thompson. Approximately two weeks after the arrest, however, Thompson gave a sworn statement to police describing the events of March 1, 2001. She stated she had helped Peyton dress in women’s clothing because he told her they were going to a gay bar. On the way to the bar, she stopped at a convenience store near Pat O’s to purchase a soft drink for herself and a beer for Peyton. When Thompson returned to the car, Peyton was not in it. After a couple of minutes, Peyton came running around the corner, jumped into the ear and told Thompson to “Go, go, go!” Peyton removed the items of women’s clothing and threw them out of the car window along with a handgun.

¶ 5. Both Thompson and Peyton testified at trial. Thompson’s testimony was as she had reported in her statement to police. Peyton contradicted Thompson. He claimed to have been driving around town with a man named Richard whom he had recently met and whose last name he did not know. Richard’s car overheated in a subdivision and Peyton borrowed Richard’s cellular phone to call Thompson for a ride although he did not know precisely where he was. When Thompson arrived to pick him up, she was screaming hysterically that her friend had just robbed a store and then began throwing women’s clothing from the car.

¶ 6. The jury found Peyton guilty of armed robbery and this appeal followed.

ANALYSIS

1. Ineffective assistance of counsel

¶7. In his first assignment of error, Peyton argues his trial counsel was ineffective and he is entitled to a new trial. Peyton bases this error upon an alleged admission of deficient performance by trial counsel as well as that attorney’s failure to subpoena any witnesses. Peyton claims he was prejudiced by this failure.

¶ 8. Claims of ineffective assistance of counsel are analyzed by a two-part inquiry: (1) whether counsel’s performance was deficient; and (2) whether that deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong is evaluated by whether or not counsel’s legal representation fell outside objectively measured boundaries of reasonableness. Id. at 687-88, 104 S.Ct. 2052. The second is measured by whether the trial outcome would have been different but for counsel’s deficient performance. Cole v. State, 666 So.2d 767, 775 (Miss.1995).

¶ 9. The alleged admission of deficiency occurred on the morning of the trial during the State’s motion to exclude the testimony of an alibi witness, notice of which was not served upon the State until the prior afternoon. Trial counsel acknowledged she bore responsibility for the late notice but requested the testimony be admitted nonetheless. Counsel did state later in the discussion that if the testimony were excluded, her representation of Pey-ton would have been ineffective. Before the court could rule, the State withdrew its objection to the testimony.

¶ 10. There are no other entries in the record of any form of admission of deficient performance by trial counsel. Neither was this single exchange such an admission. Counsel noted that if the testimony was excluded, she would have been deficient but the testimony was not so excluded. The event which would have precipitated an admission of ineffective assistance never occurred.

¶ 11. Although Peyton alleges his counsel was ineffective for failing to subpoena witnesses, he does not claim injury by the failure to place the alibi witness on the stand. Instead, he alleges that counsel should have issued a subpoena to Michael Martishius, a bystander in the area of the robbery at the time it occurred.

¶ 12. Martishius was unavailable as a witness at trial but he had given a statement to police at the time of the robbery. The trial court ruled the unsworn statement inadmissible hearsay. Peyton asserts the substance of Martishius’ statement was critical to his defense because it contradicted Shari Thompson’s account of events in material ways. Specifically Pey-ton claims that, “[bjecause Shari Thompson places Peyton at the scene of the crime around the time of the robbery,” it was therefore deficient performance by trial counsel requiring reversal to fail to assure Martishius’ presence at trial.

¶ 13. Although Peyton was not permitted to introduce the statement at trial, he did make a proffer outside the jury’s presence as to the content of the statement. Martishius told police he had seen a red car pull to the curb near the liquor store, a man get out, jump across the ditch, go into the liquor store then run back out some little time later and the car drive away. Martishius said he initially thought there was only one person in the car but later realized there were two, he thought the man had been driving and he thought the license plate was obscured by a paper bag. Martishius was later taken to view Thompson’s car and he identified it as the one he had seen parked near the liquor store.

¶ 14. Thompson had testified she had been driving and she parked on a street different than that identified by Martishi-us. There was also a discrepancy in the color of sweater Thompson said Peyton was wearing and the one Martishius identified the running man as wearing. None of these small discrepancies on collateral matters in any way cast doubt upon Thompson’s placement of Peyton at or near the scene of the robbery at the time it occurred. Assuming Martishius would have testified in consonance with the statement given police, we cannot see that it would have significantly altered the outcome of this trial. Failing to issue a subpoena to Martishius cannot have prejudiced Peyton.

2. Sufficiency of the evidence

¶ 15. Peyton next argues the evidence presented was insufficient to sustain his conviction. He points to the fact that no witness actually identified him as the perpetrator as proof of the insufficiency of the evidence.

¶ 16. In testing an allegation of insufficient evidence, we look at the evidence in the light most favorable to the State and the reasonable inferences to be drawn from that evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). We will reverse only where, with respect to one or more elements of the crime charged, no reasonable and fair-minded jury could have found the defendant guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). .

¶ 17. The store clerk did not identify Peyton. She did, however, describe him and the female clothing he was wearing and identified the clothing found by police as the same the robber was wearing. This description is born out by a store security videotape of the robbery. Shari Thompson likewise described the clothing and the geographic location where Peyton had thrown them from her car, the areas where police later found the clothing described. Thompson admitted driving Pey-ton, in the women’s clothing, to the vicinity of the liquor store, and a bottle of vodka of the same size and brand stolen from the store was found in the back seat of Thompson’s car. These facts are sufficient to create a circumstantial case of Peyton’s guilt. The verdict was not unreasonable and this assignment of error is without merit.

S. Exclusion of Martishius’ statement

¶ 18. In the final argument, Pey-ton alleges error on the part of the trial court in excluding the statement of witness Michael Martishius to police. At trial, Peyton attempted to cross-examine Investigator Michael Brown about the contents of the statement. Martishius was deemed an unavailable witness as he was then an in-patient at a rehabilitation facility and the court found no applicable exceptions to the hearsay rule.

¶ 19. Admissibility of evidence is a matter largely left to the discretion of the trial court, subject to the requirements of the Mississippi Rules of Evidence. Parker v. State, 606 So.2d 1132, 1136 (Miss.1992). We reverse evidentiary rulings only where the lower court abuses its discretion, resulting in prejudice to the defendant. Id.

¶ 20. Peyton argued at trial and again here on appeal that he did not seek to have the contents of Martishius’ statement offered for their truth but rather to show the course of Brown’s investigation. The trial court disagreed and proceeded to carefully explain why none of the hearsay exceptions applied, including the “catch-all” exception of Mississippi Rule of Evidence 804(b)(5). The court found the statement lacked the necessary indicia of trustworthiness, was not probative of a material fact but offered solely for impeachment, and Peyton did not comply with the rule’s notice requirement.

¶ 21. We cannot disagree with the trial court, particularly in light of the admission by trial counsel that use of the statement was intended for the specific purpose of contradicting Shari Thompson’s testimony. That is impeachment. Further review of the transcript shows the impeachment would have centered only on collateral matters-whether the red car was parked on the street in front of the store or the street to the side of it, whether the license plate was obscured, what color sweater the running man was wearing. Martishius never claimed to have witnessed the robbery, he never identified-or excluded-Pey-ton as the robber, he merely saw a man get out of a red car then come back later, get in the car and drive away. None of the information the statement may have provided contradicted Thompson’s testimony in any significant manner such that the interests of justice demand our finding an abuse of discretion.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE YEARS AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: McMILLIN, C.J., for the Court.

text:
    Shelby Cook McBRIDE, Appellant, v. Phil D. COOK, Appellee.
    No. 2002-CA-00601-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2003.

      Preston Ray Garrett, Oxford, attorney for appellant.
    Adam A. Pittman, Batesville, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J., for the Court.

¶ 1. Shelby Cook (now Shelby Cook McBride) and Phil Cook were divorced on the ground of irreconcilable differences in November 1999. There was one child born to the marriage whose name is Callie Marie Cook, and whose date of birth is January 12, 1999. The parties agreed at the time of the divorce that primary custody of this child would be awarded to Ms. McBride. The chancellor approved the agreement regarding custody, incorporating it into the divorce judgment.

¶2. In May 2001, Mr. Cook sought to modify the original divorce judgment to obtain custody of the minor child. After a hearing on the matter, the chancellor granted Mr. Cook’s request and named him as the custodial parent. Ms. McBride, dissatisfied with the chancellor’s decision, has appealed the change of custody judgment to this Court. In her appeal, Ms. McBride contends that the chancellor applied an improper legal standard to modify custody at two separate steps in the decision process. First, Ms. McBride argues that the chancellor did not find that there had been a material change of circumstance adverse to the child’s best interest. Secondly, Ms. McBride contends that, even if the necessary material adverse change in circumstance was shown, the chancellor did not properly evaluate whether a change in custody was warranted.

¶ 3. While we are satisfied that Ms. McBride has correctly set out the considerations that must guide a chancellor’s decision process in a custody modification proceeding, we are not convinced that the chancellor in this instance disregarded the necessary considerations or that he abused the discretion afforded him in making such determinations. On that basis, we affirm the judgment modifying custody.

¶ 4. The evidence presented at trial showed that, since the parties had divorced in 1999, the child had spent a substantial portion of the time in the custody and care of her maternal grandparents. Ms. McBride justified this arrangement by testifying that, for a large part of the time, she was acting as primary caregiver for a male friend whom she ultimately married at the time when he was terminally ill with cancer. Ms. McBride and this friend were married shortly before his death. However, even after this man’s death, there was evidence presented that arrangements had been made for the child to remain with her grandparents while Ms. McBride lived with a female roommate and the roommate’s young son. Only after the modification petition was filed did Ms. McBride make arrangements for the child to come and live with her. The two continued to reside with Ms. McBride’s roommate and shared a single bedroom.

¶ 5. The chancellor, while expressing admiration for the assistance provided by Ms. McBride’s parents in the care of her child, was plainly dismayed by Ms. McBride’s lack of traditional parental involvement with her child for such extended periods of time and felt that this surrender of parental responsibility to third parties, even those having such close family ties and evident concern for the child’s well-being, was a material change in circumstance that adversely affected the best interests of the child. From a standpoint of a question of law, that is the proper analysis that must be applied by the chancellor in the course of deciding a custody modification request. Ash v. Ash, 622 So.2d 1264, 1265-66 (Miss.1993). Our review as to the application of the proper legal standard in deciding such questions is de novo. Morgan v. West, 812 So.2d 987, 990(¶ 8) (Miss.2002) (citing Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992); Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990)). Under that standard of review, we do not conclude that the chancellor applied an incorrect legal standard in this instance.

¶ 6. This brings us to the related question of whether there is evidence to support the chancellor’s finding of fact that a material change in circumstance adverse to the child’s welfare had occurred. As to that question a different standard of review applies. As to issues of that nature, the chancellor, as trier of fact, hears the evidence first-hand and is best able to make those difficult decisions regarding witness credibility and what weight and worth to afford various aspects of the evidence. Rogers v. Morin, 791 So.2d 815, 826(¶ 39) (Miss.2001). As a result, the chancellor is entitled to substantial deference when his determinations are subjected to attack on appeal and appellate review searches only for an abuse of discretion. Id. The center of focus, when searching for an abuse of discretion in the chancellor’s determination, must always remain what is in the best interest of the affected child. See Williams v. Williams 843 So.2d 720, 726(¶ 25) (Miss.2003) (Pittman, C.J., dissenting). Reviewing the evidence in light of the applicable standard of review, we conclude that essentially total surrender of parental control by the custodial parent to third parties may reasonably be viewed by the chancellor as a material variation from the custodial arrangement contemplated at the time of the divorce. Based on the fundamental concept that, absent extraordinary circumstances, the parents of a child are best suited to nurture and care for their child, we also think it was within the chancellor’s discretion to find this alteration in custody arrangements to be adverse to the child’s interest without the necessity of a showing that these grandparents were somehow deficient in their care of the child.

¶ 7. Once the chancellor has determined that there has been a material change in circumstance adverse to the child’s interest, he must still face the question of whether a change in custody is warranted. Thompson v. Thompson, 799 So.2d 919, 922(¶ 22) (Miss.Ct.App.2001). This is a related, but different, issue since it is conceivable that there could'be a material adverse change in the child’s circumstances but the court could yet determine that, based on a review of available alternatives, a custody change would only worsen the child’s circumstances even further.

¶ 8. There was substantial evidence in the record regarding Mr. Cook’s present living and working arrangements and the capabilities that he had to properly see after the welfare of his daughter. Based on the evidence presented concerning the father’s living arrangements and the available resources to care for the child, the chancellor determined that it would be appropriate to remove custody from Ms. McBride in a situation where she was, in actuality, acting as the de jure custodial parent only for a substantial part of the time following the divorce and the actual custodial responsibilities for the child had been assumed by persons not contemplated under the terms of the divorce judgment.

¶ 9. On the record in this case, we cannot conclude that this decision constituted an abuse of the broad discretion vested in the chancellor to adjudicate matters of custody and, for that reason, we determine that the chancellor’s decision must be affirmed.

¶10. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.