author: CARLSON, Justice, McRAE, Presiding Justice,

text:
    Gaye Nell STOCKSTILL and James Ray Blanchard, Sr. v. STATE of Mississippi, The Mississippi Department of Environmental Quality, The Mississippi Department of Wildlife, Fisheries and Parks and The Pearl River Basin Development District.
    No. 2002-CA-01047-SCT.
    Supreme Court of Mississippi.
    Sept. 18, 2003.

      James Kenneth Wetzel, Gulfport, for appellant.
    Roger Googe, for appellee.
   CARLSON, Justice,

for the court.

¶ 1. Gaye Nell Stockstill and James Ray Blanchard, Sr., appeal from the judgment of the Circuit Court of Pearl River County dismissing their complaint against the State of Mississippi and several of its agencies (collectively “the State”) as barred by the statute of limitations. Because this suit was filed after the expiration of the controlling one-year statute of limitations for the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2003), we find the circuit court properly dismissed the suit and affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. While canoeing on the Pearl River with a friend, James Ray Blanchard, Jr., drowned on December 28, 1998, near the site of a completed project co-sponsored by the United States and the State of Mississippi which was designed to restore the water flow of the Pearl River. Stocks-till and Blanchard filed suit in the United States District Court for the Southern District of Mississippi on March 29, 2000, against the U.S. Army Corps of Engineers, the State, and several agencies of the State, alleging damages arising out of their son’s drowning. Because proper notice was provided to the State, the tolling provision of the MTCA applied. On May 12, 2000, the State and its agencies filed a motion to dismiss the federal suit based upon their right under the Eleventh Amendment to the U.S. Constitution not to be sued in federal court. The motion was granted, and the suit was dismissed without prejudice on March 9, 2001.

¶3. On October 3, 2001, Stockstill and Blanchard filed this present civil action in the Circuit Court of Pearl River County. The State and its agencies filed a motion to dismiss on November 9, 2001. On June 20, 2002, the circuit court dismissed the suit finding the applicable one-year statute of limitations had expired. Stockstill and Blanchard appeal and raise the following issues for this Court’s consideration:

I. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN HOLDING THAT THE WRONGFUL DEATH CLAIM AGAINST THE STATE AND ITS AGENCIES WAS BARRED BY THE ONE YEAR STATUTE OF LIMITATIONS EXPRESSED IN MISS. CODE ANN. § 11-46-11.
II. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN HOLDING THAT MISS. CODE ANN. § 15-1-69, THE “SAVINGS STATUTE” DID NOT APPLY TO THE STATE AND ITS AGENCIES.
III. WHETHER MISS. CODE ANN. § 11-46-11 IS UNCONSTITUTIONAL, AS IT VIOLATES THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION IN THAT IT DISCRIMINATES AGAINST INDIVIDUALS IN THE STATE OF MISSISSIPPI.

DISCUSSION

¶ 4. We apply a de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion. Arnona v. Smith, 749 So.2d 63, 65-66 (Miss.1999). As such, we sit in the same position as did the trial court. The scope of review of a motion to dismiss is that the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of her claim. Brewer v. Burdette, 768 So.2d 920, 922 (Miss.2000). See also Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990); Grantham v. Miss. Dep’t of Corrections, 522 So.2d 219, 220 (Miss.1988).

I. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN HOLDING THAT THE WRONGFUL DEATH CLAIM AGAINST THE STATE AND ITS AGENCIES WAS BARRED BY THE ONE-YEAR STATUTE OF LIMITATIONS EXPRESSED IN MISS. CODE ANN. § 11-46-11.

II. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN HOLDING THAT MISS. CODE ANN. § 15-1-69, THE “SAVINGS STATUTE” DID NOT APPLY TO THE STATE AND ITS AGENCIES.

¶ 5. In this case of first impression under the MTCA, Stockstill and Blanchard argue that the savings clause in Miss.Code Ann. § 15-1-69 (Rev.2003) applies to the MTCA, thus tolling the exclusive one-year statute of limitations found in Miss.Code Ann. § 11-46-11 (Rev.2002). However, we find that this result is at odds with the texts of Miss.Code Ann. §§ 11-46-11 and 15-1-1 (Rev.2003) and this Court’s repeated holdings that the MTCA indubitably mandates a one-year statute of limitation be applied to any and all actions brought under the Act.

¶ 6. Miss.Code Ann. § 11-46-11(3) specifically states:

The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

(emphasis added). Through the strict language of the statute, the legislative intent is clear on the controlling statute of limitations.

¶ 7. Miss.Code Ann. § 15-1-1 provides further guidance that § 15-1-69 does not apply to the MTCA. Section 15-1-1 reads:

The provisions of this chapter shall not apply to any suit which is or shall be limited by any statute to be brought within a shorter time than is prescribed in this chapter, and such suit shall be brought within the time that may be limited by such statute.

(emphasis added). Because the MTCA has a one-year statute of limitation which is significantly shorter than the catch all three-year statute of limitation, the one-year statute of limitation found in § 11-46-11 is controlling.

¶ 8. Because we find that pursuant to §§ 11-46-11 and 16-1-1, § 16-1-69 does not apply to the MTCA, it is also worthy to note that non-tort claims act cases, e.g., Boston v. Hartford Acc. & Indem. Co., 822 So.2d 239 (Miss.2002), and Norman v. Bucklew, 684 So.2d 1246 (Miss.1996), are not controlling as to the applicability of § 16-1-69.

¶ 9. Up until 2000, this Court had continuously held that Miss.Code Ann. § 15 — 1— 59 (Rev.2003), the minors savings clause, did not toll the one-year statute of limitation of the MTCA. In Marcum v. Hancock County School Dist., 741 So.2d 234 (Miss.1999), a seventeen-year-old minor filed suit by and through her parents against the school district after suffering injuries while riding on the school bus. Id. at 235. However, the suit was filed one year and nine months after the alleged accident. Id. The circuit court dismissed the suit finding the one-year statute of limitations had expired. Id. On appeal Marcum argued the MTCA’s one-year statute of limitations was tolled by the minors savings clause. This Court affirmed the judgment of the circuit court, holding:

It is obvious that the Legislature intended the MTCA’s one (1) year statute of limitations to be the controlling measure of time applied to any actions brought under the Act. The statute’s use of the word “shall” represents a firm mandate and unambiguously closes the door of interpretation concerning which statute of limitations applies to the MTCA.
We hold that § 11-46-11’s one (1) year statute of limitations is not tolled by § 15-1-59’s minor savings clause. The MTCA clearly mandates that a one (1) year statute of limitations be applied to any actions brought under the Act. Additionally, § 15-1-59’s minor savings clause only applies to actions within that chapter and not to the MTCA.

Id. at 236-38.

¶ 10. In Hays v. Lafayette County School Dist., 759 So.2d 1144 (Miss.1999), a minor, by and through her mother, sued the school district after suffering injuries while riding on the school bus. Id. at 1144. The complaint was filed two years and six months after the alleged accident. Id. The circuit court granted the district’s motion to dismiss after finding the suit was barred by the one-year statute of limitations. Id. at 1144-45. As in Marcum, Hays argued the one-year statute of limitations of the MTCA was tolled by the minors savings clause. Finding that the Legislature had contemplated the procedural limitation of a one-year statute of limitations, this Court held again that the minors savings clause did not toll the one-year statute of limitations in § 11-46-11. Id. at 1148.

The savings clause of § 15-1-59 does apply to a wide range of actions within that chapter, which shows the careful considerations of the Legislature in carving out exceptions under that Act and others. This logic is understandable with regard to discovery of negligence in latent injury cases, where a physical manifestation of injury may be delayed. But the reasoning behind a specific statute of limitations for the MTCA reflects the Legislature’s intent to limit waiver of sovereign immunity under Miss.Code Ann. § 11-46-5 (Supp. 1999), which sets the maximum limit of potential recovery by a plaintiff over a gradual time span.

Id. at 1147.

¶ 11. However, during the 2000 session, the Legislature chose to amend Miss.Code Ann. § 11-46-11 by adding subsection (4), which stated:

From and after May 15, 2000, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings clause in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

By affirmative legislative action, the MTCA now contains a provision by way of the 2000 and 2002 amendments which effectively creates a minors savings clause thus tolling for minors the running of the applicable limitations period found in subsection (3).

¶ 12. In his opinion and order finding Stockstill and Blanchard failed to comply with the filing requirements of the MTCA, the trial judge stated:

The state legislature has had numerous opportunities to amend the MTCA to include such language as is in § 15-1-69 but it has chosen not to do so. As an example, in 1999 the Mississippi Supreme Court handed down its decision in Hays v. Lafayette County School District, 759 So.2d 1144. In that case the Court was asked to extend the minor savings clause, § 15-1-59, to the MTCA and the Court refused to do so, stating the one year statute of limitations in the act was exclusive. Id. at 1147. Following the Hays decision, the legislature amended § 11-46-11 by adding subsection (4) which extended a savings clause for injured minors and persons of unsound mind. § 11^16-11(4) reads:
From and after May 15, 2000, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings clause in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.
The Mississippi Supreme Court’s holding in Hays is applicable to this case in the sense Plaintiffs wish for this Court to carve out a similar exception to the MTCA by applying § 15-1-69. This Court will not save Plaintiffs’ case by so ruling. Plaintiffs arguably brought their suit in the wrong court within the one year statute of limitations when the notice and tolling provisions are taken into account, but there is simply no provision applicable to the MTCA which would act to correct Plaintiffs’ error in attempting to sue the state in federal court.

¶ 13. We find that the learned trial judge was eminently correct. Following the strict language of the statute and based upon previous case law, we affirm the judgment of the circuit court. While § 11 — 46—11 makes no mention of a savings clause, other than for minors, § 15-1-1 specifically states § 15-1-69 will not apply if there is a shorter statute specified elsewhere. If it is the intent of the Legislature for a savings clause to apply to the MTCA, it will be in the power of the Legislature to amend the statute just it did in 2000 and 2002. The duty of this Court is to interpret the statutes as written. It is not the duty of this Court to add language where we see fit. “[0]ur primary objective when construing statutes is to adopt that interpretation which will meet the true meaning of the Legislature.” Anderson v. Lambert, 494 So.2d 370, 372 (Miss.1986) (citing Baker v. State, 327 So.2d 288 (Miss.1976); Carter v. Harrison County Election Comm’n, 183 So.2d 630 (Miss.1966); Beard v. Stanley, 205 Miss. 723, 39 So.2d 317 (1949)). “Our role is to determine the legislative intent and constitutionality of acts passed by the Legislature, and if we interpret a statute contrary to the intent or will of the Legislature, that body has the absolute authority to change the statute to suit its will.” Board of Sup’rs of Lamar County v. Hattiesburg Coca Cola Bottling Co., 448 So.2d 917, 924 (Miss.1984) (Hawkins, J., concurring in part & dissenting in part).

III. WHETHER MISS. CODE ANN. § 11-46-11 IS UNCONSTITUTIONAL, AS IT VIOLATES THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION IN THAT IT DISCRIMINATES AGAINST INDIVIDUALS IN THE STATE OF MISSISSIPPI.

¶ 14. Stockstill and Blanchard argue for the first time on appeal that the MTCA violates the equal protection clause of the fourteenth amendment of the United States Constitution and discriminates against individuals in Mississippi. In Marcum, supra, we reaffirmed the well-established principle that, “[T]his Court has also consistently held that errors raised for the first time on appeal will not be considered, especially where constitutional questions are concerned.” 741 So.2d at 238 (quoting Ellis v. Ellis, 651 So.2d 1068 (Miss.1995) (citing Patterson v. State, 594 So.2d 606, 609 (Miss.1992)). See also Contreras v. State, 445 So.2d 543, 544 (Miss.1984); Smith v. State, 430 So.2d 406, 408 (Miss.1983)). Therefore, these claims are procedurally barred and are dismissed.

CONCLUSION

¶ 15. We are confronted today with an absolutely tragic death of a young man-an event which consequentially inflicts extreme grief and hardship on an innocent family and friends. However, our interpretation of clear legislative intent based on the unambiguous provisions of the Mississippi Tort Claims Act and our application of prior case law guide us unhesitatingly to the conclusion we reach today. Because the one-year statute of limitations had run, the trial court properly dismissed this action. Therefore, we affirm the trial court’s judgment.

¶ 16. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND EASLEY, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting:

¶ 17. The majority erroneously finds that the savings statute, Miss.Code Ann. § 15-1-69 (Rev.2003), is not applicable to the Mississippi Tort Claims Act (MTCA). The savings statute is procedural and applicable to the MTCA; therefore I write separately to dissent.

¶ 18. Since 1993, the MTCA has provided the sole procedure and remedy for suing the State and its political subdivisions. The Act allows a claimant to initiate a lawsuit “within one (1) year next after the date of the tortious, wrongful, or otherwise actionable conduct on which the liability phase of the action is based.... ” Miss. Code Ann. § 11-46-11(8) (Rev.2002). It is important to note that:

The primary purpose of statutory time limitations is to compel the exercise of a right of action within a reasonable time. These statutes are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected. They are designed to suppress assertions of false and stale claims, when evidence has been lost, memories have faded, witnesses are unavailable, or facts are incapable of production because of the lapse of time.

Cole v. State, 608 So.2d 1313, 1317 (Miss.1992).

¶ 19. The savings statute in § 15-1-69 was first enacted in 1848. Miss.Code Ann. § 15-1-69 (Rev.2003). It provides:

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 for the plaintiff shall be reversed on appeal, the plaintiff may commenced 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). The purpose of the savings statute is “to protect parties who have mistaken the forum in which their causes should be tried; who simply entered the temple of justice by the door on the left, when they should have entered by the door on the right.” Ryan v. Wardlaw, 382 So.2d 1078, 1080 (Miss.1980). “It is a highly remedial statute and ought to be liberally construed for the accomplishment of the purpose for which it was designed, namely, to save one who has brought his suit within the time limited by law from loss of his right of action by reason of accident or inadvertence, and it would be a narrow construction of that statute to say that because, if plaintiff had, by mistake, attempted to assert his right in a court having no jurisdiction, he is not entitled to the benefit of it.” Ryan, 382 So.2d at 1080 (quoting Tompkins v. Pac. Mut. Life Ins. Co., 53 W.Va. 479, 484, 44 S.E. 439, 441 (1903)).

¶ 20. The majority suggests that the application of the minors savings statute, Miss.Code Ann. § 15-1-59 (Rev.2003), is analogous to the application of the savings statute, § 15-1-69. The minors savings statute provides:

If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

Miss.Code Ann. § 15-1-59 (Rev.2003).

¶ 21. We have continuously held the minor savings statute of § 15-1-59 inapplicable to the MTCA. However, this does not support a finding that the savings statute of § 15-1-69 is inapplicable to the MTCA. “The [minors] savings clause [§ 15-1-59] contemplates the person rather than the action, while a statute of limitations looks to the nature of the claim rather than the person.” Hays v. Lafayette County Sch. Dist., 759 So.2d 1144, 1148 (Miss.1999) (citing Atender v. Smith County Hosp., 431 So.2d 491, 494 (Miss.1983)). The savings statute found in § 15-1-69 is procedural and consistent with the purpose of the MTCA statute of limitations. We have found the savings statute to be procedural in nature and stated that “the ‘saving statute’ applies to ‘action[s]’ and ‘original suits’ dismissed ‘for any matter of form.’ ” Deposit Guar. Nat’l Bank v. Roberts, 483 So.2d 348, 352 (Miss.1986) (citing Miss.Code Ann. § 15 — 1— 69). The savings statute applies to “actions,” whereas the minors savings statute applies to “persons.” There is a distinct difference between the two. One is clearly substantive, and the other is clearly procedural. Additionally, the savings statute is consistent with the purpose of the MTCA statute of limitations. As we stated in Cole,

“[T]he primary purpose of statutory time limitations is to compel the exercise of action within a reasonable time.” These statutes are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected. They are designed to suppress assertion of false and stale claims, when evidence has been lost, memories have faded, witnesses are unavailable, or facts are incapable of production because of the lapse of time.

608 So.2d at 1317. The savings statute does nothing more than allow time for the refiling of a valid and timely claim filed in good faith that was dismissed for lack of jurisdiction. It is in no way inconsistent with the goal of a MTCA statute of limitations. The State and its agencies still enjoy timely notice of claims pending against them because in order for § 15 — 1— 69 to apply, the original claim must have been timely filed.

¶ 22. Furthermore, the case sub judice is not like Marcum v. Hancock County School Dist., 741 So.2d 234 (Miss.1999), and the other minors savings statute cases where the defendants were not on notice before the running of the MTCA one-year statute. Here all defendants were on notice of the pending lawsuit within the one-year statute of limitation. All defendants were served with a notice of claim prior to the filing of the suit, and all were served with the complaint within the one-year statute. There can be no argument that they were prejudiced by delay in notice or that the state treasury was prejudiced by delay.

¶ 23. Despite the absence of any reference to the savings statute in the MTCA, it is still applicable. If the Legislature had wanted to exclude its application, it would have specifically stated so in the Act. Likewise, just because the Legislature chose not to include a reference to such section does not support a finding that the application of the savings statute for purposes of the MTCA was effectively repealed. “[Ijmplied repeals are not favored.” Ex parte McInnis, 98 Miss. 778, 776, 54 So. 260, 262 (1911).

¶24. The majority erroneously finds that § 11-46-11 is a specific statute and § 15-1-69 is a general statute and, therefore, § 11-46-11 controls. It is true that “terms of a specific statute control the terms of a general statute.” Lenoir v. Madison County, 641 So.2d 1124, 1128 (Miss.1994) (citing Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993)). However, the specific/general doctrine of statutory construction deals with statutes “that encompass the same subject.” Lenoir, 641 So.2d at 1129-30 (citing Andrews v. Waste Control, Inc., 409 So.2d 707, 713 (Miss.1982)). The two statutes at hand do not encompass the same subject matter and are not repugnant to one another. Section 11^46-11 deals with the notice of claim and statute of limitation for causes of action against the State and its agencies. The savings statute, § 15-1-69, deals with the procedure and time limits for refiling of a suit after the cause has been dismissed. It is clear that these statutes are different and do not encompass the same subject matter.

¶ 25. Furthermore, the majority incorrectly finds that § 15-1-1 shows a clear intent for § 15-1-69 not to apply to the MTCA. Section 15-1-1 provides:

The provisions of this chapter shall not apply to any suit which is or shall be limited by any statute to be brought within a shorter time than is prescribed in this chapter, and such suit shall be brought within the time that may be limited by such statute.

This statute stands for the proposition that Title 15, Chapter 1 statutes of limitations do not control over statutes of limitations in other Chapters which are specific to certain causes of action. But § 15-1-69 is not a statute of limitation. It is a procedure for refiling of a suit after the action has been dismissed. Therefore, § 15-1-1 does not control its application to the MTCA.

¶ 26. The majority erroneously finds that since § 11^46-11 contains a savings provision for infancy and unsoundness of mind, there is a clear intent by the Legislature not to include the protections of § 15-1-69. Miss.Code Ann. § 11^16-11(4) (Rev.2002) provides that:

From and after April 1, 1993, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

As discussed earlier, savings clauses in favor of infancy and unsoundness of mind are substantive in nature. The Legislature’s addition of such a clause is in no way conclusive that it intended to exclude the application of § 15-1-69, which is procedural in nature. Likewise, this provision could be read to show an intent by the Legislature only to limit the broad application of § 15-1-59, therefore leading to the conclusion that since it failed to address the application of § 15-1-69, the Legislature must have condoned its application. Furthermore, we have applied other legal doctrines not specifically permitted under the MTCA. For instance, this Court has held that “[djespite the absence of specific discovery language in the statute [§ 11-46-11], we find that the discovery rule applies.” Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 204 (Miss.1999). Section 11-46-11 does not provide a discovery rule to allow for the tolling of the statute of limitations; yet this Court has repeatedly held it applicable. Henderson v. UnNamed Emergency Room, Madison County Med. Ctr., 758 So.2d 422, 427 (Miss. 2000); Pickens v. Donaldson, 748 So.2d 684, 690 (Miss.1999); Barnes, 733 So.2d at 204. Likewise, we have found the discovery rule applicable to other statutes of limitations. See Donald v. Amoco Prod. Co., 735 So.2d 161, 161 (Miss.1999); Evans v. Boyle Flying Serv., Inc., 680 So.2d 821, 829 (Miss.1996); Tabor Motor Co. v. Garrard, 233 So.2d 811, 814 (Miss.1970).

¶27. The requirements for § 15-1-69 to apply and thereby allow for one year for refiling include: (1) an action duly commenced within the time allowed; (2) the writ is abated or the action is dismissed 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; (3) the plaintiff exercised good faith in filing action; and (4) there was no adjudication on the merits. Miss.Code Ann. § 15-1-69 (Rev.2003); Deposit Guar. Nat’l Bank, 483 So.2d at 352; Ryan, 382 So.2d at 1080; Frederick Smith Enterprise Co. v. Lucas, 204 Miss. 43, 36 So.2d 812, 814 (1948); Hawkins, 69 So. at 710-13; Wertz, 790 So.2d at 842. All of these requirements are met here.

¶ 28. The original action in the federal district court was duly commenced within the time allowed. The accident causing James’s death occurred on December 28, 1998. The MTCA allows for a one-year statute of limitations. Stockstill and Blanchard provided notice as required by statute which entitled them to additional time to file. The Appellants’ Brief states “[t]he one-year statute of limitations which controls this cause of action against the State of Mississippi was extended by virtue of the statutory letter propounded to the Executive Directors of each agency of the State of Mississippi as well as the Attorney General for the State of Mississippi.” Additionally, the State never argued that the action in federal district court was untimely filed; therefore any question as to its timeliness is waived. The State argued that since the action was filed in the wrong jurisdiction it does not receive the protection of § 15-1-69 because it was not duly commenced. This argument is contrary to precedent. In Hawkins, this Court stated that “ ‘duly commenced’ does not require that the action shall show jurisdiction in the court if commenced in good faith.” 69 So. at 710. Like-wise in Ryan, this Court stated that “we do not understand that the action which was dismissed, in order to be duly commenced within the meaning of the statute, must necessarily have been commenced in a court having jurisdiction over the subject matter.” 382 So.2d at 1080. Here, Stockstill and Blanchard filed their action in the federal district court because they believed that to be the appropriate jurisdiction for their causes of action. There was no bad faith in their selection of jurisdiction. Additionally, in Ryan this Court held that “we think one of the designs of the statute ... is to protect parties who have mistaken the forum in which their causes should be tried, who simply entered the temple of justice by the door on the left, when they should have entered by the door on the right.” Id. In Hawkins, we acknowledged that there may be instances “ “where the want of jurisdiction is so clear that the bringing of a suit therein would show such gross negligence and indifference as to cut the party off from the benefit of the savings statute.’ ” 110 Miss, at 25, 69 So. at 712 (quoting Smith v. McNeal, 109 U.S. 426, 430, 3 S.Ct. 319, 321, 27 L.Ed. 986 (1883)). This is not one of those instances. Stockstill and Blanchard asserted subject matter jurisdiction based on the Suits in Admiralty Act and general maritime law. There was no gross negligence or indifference in their selection of forum.

¶ 29. The action in the federal district court was dismissed without prejudice due to lack of subject matter jurisdiction. The federal district court found that the Eleventh Amendment to the U.S. Constitution prevented it from hearing the claims asserted against the State and its agencies and issued an order granting the State’s motion to dismiss without prejudice. We have stated that “a cause dismissed for want of jurisdiction, [is] a cause dismissed for ‘matter of form’ for purposes of the saving statute § 15-1-69, and can be refiled within a year of dismissal, although second filing is beyond the original statute of limitations.” Deposit Guar. Nat’l Bank, 483 So.2d at 348. Therefore, the federal district court’s dismissal without prejudice for lack of subject matter jurisdiction is a “matter of form” within the meaning of the savings statute.

¶ 30. Stockstill and Blanchard exercised good faith in their filing of the original action in the federal district court. “The Savings Statute, Section 15-1-69, is only available when the cause in good faith is erroneously misfiled.” Wertz, 790 So.2d at 845. There was no evidence presented by the State that rebuts Stockstill and Blanchard’s good faith in filing. They asserted the court had subject matter jurisdiction under the Suits in Admiralty Act and general maritime law. They did not attempt to procure jurisdiction through fraud or attempt to affix jurisdiction through the assertion of frivolous claims. These facts are unlike those in Wertz, where the court found lack of good faith when the plaintiff moved to Louisiana in order to establish diversity of citizenship in an effort to affix jurisdiction in federal court. 790 So.2d at 845.

¶ 31. There was no adjudication on the merits. It has been held that a dismissal for lack of jurisdiction is not an adjudication on the merits. Lowry v. Int’l Bhd. of Boilermakers, 259 F.2d 568, 570 (5th Cir.1958).

¶32. We have stated that “ ‘[i]t is a highly remedial statute and ought to be liberally construed for the accomplishment of the purpose for which it was designed, namely, to save one who has brought his suit within the time limited by law from loss of his right of action by reason of accident or inadvertence, and it would be a narrow construction of that statute to say that because, if plaintiff had, by mistake, attempted to assert his right in a court having no jurisdiction, he is not entitled to the benefit of it.’” Ryan, 382 So.2d at 1080 (quoting Tompkins, 53 W.Va. at 484, 44 S.E. 439). The facts presented illustrate why the savings statute is important. Stockstill and Blanchard timely filed their action in federal district court. Upon the dismissal for lack of subject matter jurisdiction, they promptly instituted the second action in state court to preserve their rights.

¶ 33. Under these guidelines, it is clear that the present facts create a situation in which judicial statutory tolling is authorized. The State was given ample notice of the claim through the timely filing of the first action and is therefore not prejudiced by the necessary refiling. Likewise, such a finding is consistent with the purpose of a statute of limitations as stated above. To allow the State to escape liability upon the backs of the plaintiffs and exploit their choice of mistaken forum, would create grave injustice.

¶ 34. Stockstill and Blanchard timely filed their complaint in the federal court. Under the savings statute, § 15-1-69, their second suit in the Circuit Court of Pearl River County, Mississippi, was timely filed within the one-year extension provided for dismissals due to matter of form. The majority’s affirmance of the trial court’s dismissal of this action is erroneous. The trial court’s judgment should be reversed and remanded for further proceedings. For these reasons, I dissent.

      . Miss.Code Ann. § 15-1-69 states:
      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 plaintiff's death, commence such new action, within the said one year.

      . The 2002 amendment, in subsection (4), substituted "April 1, 1993,” for “May 15, 2000.”

      . See also Wertz v. Ingalls Shipbuilding Inc., 790 So.2d 841, 845 (Miss.Ct.App.2000) (holding the savings statute is inapplicable where the party seeking to invoke it has acted in bad faith by moving in order to establish diversity of citizenship in order to bring suit in federal district court).

      . See also Hawkins v. Scottish Union & National Ins. Co., 110 Miss. 23, 25, 69 So. 710, 712 (1915) (holding that the savings statute applied where the suit dismissed embraced the same cause of action sued on in the first suit, even though it also embraced other and distinct causes of action asserted against parties other than the defendant in the second suit).

      . See also Marcum v. Hancock County Sch. Dist., 741 So.2d 234, 237 (Miss.1999) (holding the minors savings statute inapplicable to the MTCA); Cole v. State, 608 So.2d 1313, 1316-17 (Miss. 1992) (holding the minors savings statute inapplicable to the UPCCRA statute of limitations).

      . See also Greenville Pub. Sch. List. v. Western Line Consol. Sch. List., 575 So.2d 956, 963 (Miss.1990) (holding that the subsequent enactment of a statute covering the entire field of operation of another statute supported a finding of implied repeal); Smith v. City of Vicksburg, 54 Miss. 615, 617 (1877) (holding where a conflict exists between two statutes, the most recent prevails); Pons v. State, 49 Miss. 1, 3 (1873) (holding repeal by implication upheld where statutes are complete repugnant to one another); White v. Johnson, 23 Miss. 68, 71 (1851) (holding newly enacted 1844 statute of limitation repeals 1842 statute of limitations since they are repugnant).

      . See also Benoit v. United Cos. Mortg. of Miss., Inc., 504 So.2d 196, 198 (Miss.1987) (holding borrower’s prepayment was not subject to scrutiny of general usury statute).

      . See also Hawkins, 69 So. at 713 (holding the savings statute applicable in a suit to collect insurance).

      . See also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (holding res judicata and collateral estoppel are inapplicable to a dismissal without prejudice); Ryan v. Wardlaw, 382 So.2d at 1080 (holding plaintiffs’ negligence suit, which was filed a few days after the applicable six year statute of limitations, was timely filed within the limitation period under the savings statute governing commencement of a new action subsequent to abatement or defeat of original action); Wertz, 790 So.2d at 844 (holding savings statute inapplicable where federal court suit was subsequently dismissed where plaintiff had acquired diversity jurisdiction through fraud).


source: Caselaw Access Project

author: MeRAE, Presiding Justice,

license: Public Domain

text:
    In the Matter of the ENLARGEMENT AND EXTENSION OF the BOUNDARIES OF the CITY OF MACON, Mississippi. Frances Gousset, Katherine Moore, Jerry Harris, Orietta Stewart by and through Richard Dooley, Richard Dooley, individually, James D. Britt, Gregory Cole, Darlene Cole, Jim Britt, Emily Britt, Gene Penick, Jr., Penick Forest Products, William M. Dantzler and wife, Marjorie Dantzler, Clay Hollis, Willie Cole, Mary E. Brown, Gayle Ford, Minnie Williams and Arthur Varner, Jr. v. City of Macon Mississippi.
    No. 2001-AN-01508-SCT.
    Supreme Court of Mississippi.
    Sept. 25, 2003.

      Gary Goodwin, Columbus, attorney for appellants.
    Jerry L. Mills, Ridgeland, Charles G. Perkins, Macon, attorneys for appellee.
   MeRAE, Presiding Justice,

for the Court.

¶ 1. On July 19, 2001, the Chancellor of the Noxubee County Chancery Court entered her opinion and judgment granting the City of Macon’s request for extension and enlargement of the city boundaries. The Objectors to the annexation claim the Chancellor’s ruling was not supported by substantial, credible evidence and was manifestly wrong. Finding that the Chancellor’s ruling was supported by substantial, credible evidence as evaluated by the annexation indicia for reasonableness, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. The City of Macon, which was incorporated in 1836, consists of 1.5 square miles. This is the City’s first annexation.

¶ 3. In 1997, the City with the aid of an urban and regional planner conducted studies related to annexation. After the completion of these studies and public hearings on the issue of annexation, the City properly adopted an ordinance of annexation under Miss.Code Ann. § 21-1-27 (Rev.2001). Pursuant to Miss.Code Ann. § 21-1-29, the City timely and properly filed a complaint for annexation seeking the extension and enlargement of the City to cover an additional 2.7 square miles. Proper notice of the complaint filing under Miss.Code Ann. § 21-1-31 was given by means of publication and posting. The City later reduced the area sought to be annexed to 2 square miles. This 2 square mile area is pccupied by 31 businesses and 231 residences with 690 people.

¶ 4. The matter was tried in the Chancery Court of Noxubee County over a period of four days. Pursuant to Miss.Code Ann. § 21-1-33, the City had the burden of proving that the proposed annexation was reasonable. The City’s witnesses consisted of Robert Brown (“Brown”), the City of Macon Police Chief; Charlie Fra-ley, the City of Macon Fire Chief; William Whitehead (‘Whitehead”), the City of Macon Building Inspector; John Peters, the City of Macon Zoning Officer; Allen Hunter (“Hunter”), the City of Macon Mayor; Larry Carr, a Superintendent of Public Protection for the Mississippi State Insurance Rating Bureau; Eugene Herring (“Herring”), an Environmental Health Program Specialist for the Mississippi Department of Health; and Michael Slaughter (“Slaughter”), expert planner for Bridge and Slaughter, an urban and regional planning firm.

¶ 5. During the trial, the Objectors proposed an alternate annexation area. The Objectors offered no expert testimony to support the alternate annexation area. The only difference between the alternate annexation area proposed by the Objectors and the annexation area proposed by the City was that the area in which the Objectors owned businesses and residences was “cut out” of the City’s proposed area. The Objectors’ witnesses consisted of 11 residents of the area proposed to be annexed. These witnesses included James Britt, William Dantzler, Richard Dooley (“Dooley”), Jerry Britt, Dan Ford, Frances Gousset, Willie Cole, Hazel Misso, Minnie Williams, Burt Sasser, and Shannon Hall. The main objection of all witness/residents was any increase in taxes due to the annexation of their property by the City of Macon.

¶ 6. On July 19, 2001, the Chancellor issued her opinion in favor of the City’s annexation proposal. On July 31, 2001, the Chancellor issued her final order in favor of the City thereby approving of the enlargement and extension of the boundaries of the City of Macon, Mississippi. The Objectors filed, and the Chancellor denied a Motion to Reopen Proof. The Objectors filed a timely notice of appeal.

STANDARD OF REVIEW

¶ 7. “Where the finding of reasonableness is challenged on appeal, this Court conducts no plenary review. It may reverse where — and only where — the chancery court’s finding of ultimate fact that the annexation was (un)reasonable is manifestly wrong or without the support of substantial, credible evidence.” In re Enlargement and Extension of Municipal Boundaries of City of Biloxi, 744 So.2d 270, 277 (Miss.1999) (citing McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987); Extension of Boundaries of City of Moss Point v. Sherman, 492 So.2d 289, 290 (Miss.1986); Enlargement of Boundaries of Yazoo City v. City of Yazoo City, 452 So.2d 837, 838 (Miss.1984); In re Extension of Boundaries of City of Clinton, 450 So.2d 85, 89 (Miss.1984)).

¶ 8. “Where there is conflicting credible evidence, we defer to the findings below.” In re Extension of the Boundaries of the City of Batesville, Panola County, 760 So.2d 697, 699 (Miss.2000) (quoting Bassett v. Town of Taylorsville, 542 So.2d 918, 921 (Miss.1989)).

DISCUSSION

I. WHETHER THE CHANCELLOR’S FINDING OF ULTIMATE FACT WAS MANIFESTLY WRONG OR WITHOUT THE SUPPORT OF SUBSTANTIAL, CREDIBLE EVIDENCE AS EVALUATED BY THE ANNEXATION INDICIA.

¶ 9. The Chancellor, after hearing all evidence presented, must under Miss.Code Ann. § 21-1-33 (Rev.2001), determine if the proposed annexation is reasonable. Under Miss.Code Ann. § 21-1-33, the trial judge has the discretion to allow for partial approval of the proposed annexation thereby excluding any portion of the land sought to be annexed.

¶ 10. This Court has recognized and developed a list of indicia of reasonableness to be used when evaluating a petition for annexation. These indicia include: (1) The City’s need for expansion; (2) Whether the proposed annexation area (PPA) is within the path of growth of the City; (3) Potential health hazards from sewage and waste disposal in the annexed area; (4) The City’s financial ability to make the improvements and provide promised municipal services; (5) Need for zoning and planning in the area; (6) Need for municipal services in the proposed annexed area; (7) Whether there are natural barriers between the City and the proposed annexation area; (8) The past performance and time element involved in the City’s provision of services to its present residents; (9) The economic or other impact of the annexation upon those who live in or own property in the area proposed to be annexed; (10) The impact of the annexation upon the voting strength of protected minority groups; (11) The economic or other benefits received by those in the proposed annexation area without playing their fair share of taxes; and (12) Any other reasonableness factors. These factors are only indicia of reasonableness, not separate and distinct tests in and of themselves. The Chancellor must consider all of these factors and determine whether under the totality of the circumstances the annexation is reasonable. This Court’s standard of review is very limited. The Court can only reverse the chancery court’s findings as to the reasonableness of an annexation if the chancellor’s decision is manifestly wrong and is not supported by substantial and credible evidence. See Matter of Enlargement of Corp. Limits of City of Hattiesburg, 588 So.2d 814, 819 (Miss.1991); In re Boundaries of City of Vicksburg, 560 So.2d 713, 716 (Miss.1990); In re Enlargement of Corporate Boundaries of the City of Booneville, 551 So.2d 890, 892 (Miss.1989) City of Horn Lake, 501 So.2d at 403-04; In re Extension of the Boundaries of City of Jackson, 551 So.2d 861, 864 (Miss.1989); City of Greenville v. Farmers, Inc., 513 So.2d 932, 941 (Miss.1987); Bassett, 542 So.2d at 921; Western Line Consol. Sch. Dist. v. City of Greenville, 465 So.2d 1057, 1059 (Miss. 1985); Yazoo City, 452 So.2d at 842-43; Texas Gas Transmission Corp. v. City of Greenville, 242 So.2d 686, 689 (Miss.1971); Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319, 330 (1960); Forbes v. City of Meridian, 86 Miss. 243, 38 So. 676, 678 (1905).

¶ 11. Using this list of indicia, the Chancellor considered all the evidence presented during the four-day trial and concluded that the City of Macon’s petition for extension and enlargement should be granted. There was substantial, credible evidence to support the Chancellor’s findings.

A. NEED FOR EXPANSION

¶ 12. This Court has enumerated many factors to consider when determining whether a City seeking an extension and enlargement has a reasonable need for expansion. These factors may or may not include: (1) spillover development into the proposed annexation area; (2) the City’s internal growth; (3) the City’s population growth; (4) the City’s need for development land; (5) the need for planning in the annexation area; (6) increased traffic counts; (7) the need to maintain and expand the City’s tax base; (8) limitations due to geography and surrounding cities; (9) remaining vacant land within the municipality; (10) environmental influences; (11) the city’s need to exercise control over the proposed annexation area; and (12) increased new building permit activity. In re Enlargement and Extension of Mun. Boundaries of City of Biloxi, 744 So.2d at 279; Matter of Enlargement and Extension of the Mun. Boundaries of the City of Jackson, 691 So.2d 978, 980 (Miss.1997); Extension of Boundaries of City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 552 (Miss.1995); Matter of Extension of Boundaries of City of Columbus, 644 So.2d 1168, 1173 (Miss.1994). However, the Chancellor used these factors in determining whether the City had a need for expansion. Her decision was based on credible, substantial evidence and detailed in her opinion.

¶ 13. The Objectors do not dispute that the City of Macon has a need for expansion, but argue that this need for expansion does not include the need to annex the “cut out” area (the area which the Objectors argue should be excluded from the proposed annexation area).

¶ 14. Spillover development has occurred in the PAA, and is evidenced by the growth along U.S. Highway 45 which runs through the area and into the City. In the past 10 years, 31 new businesses have opened in the PAA and more businesses and industries are currently building in the area. The Objectors argue that none of the spillover development has occurred in the “cut out” area; and therefore, that area should be excluded from the annexation.

¶ 15. The Chancellor found that the City of Macon is growing internally. The existing City of Macon encompasses only 1.5 square miles. The City is 72.3% built out. In the case of In re Extension and Enlargement of the Mun. Boundaries of the City of Biloxi, this Court found a definite need for expansion upon a showing that Biloxi was 85% built out. 744 So.2d at 279. Additionally, there are only 236 vacant acres in the municipality, and 169 of those acres are unsuitable for building since they are located in a floodplain. Hunter, the Mayor of the City of Macon, testified that a grocery store chain is currently inquiring into buying land in the City but has been unable to find a suitable building site. This lack of building room has caused a spillover of development into the proposed annexation area.

¶ 16. The Chancellor found that statistics from the 1990 Census establish that over the last 10 years, the population of the City has decreased by 17 persons. This slight decrease was found to be of little significance since the municipality has continued to grow and develop as the business hub of Noxubee County. Expert testimony also showed that households nationwide are getting smaller. Additionally, the City’s appellate brief states that current data now indicates that the population of Macon has increased by 222 persons which is a 10% growth. The Objectors argue that the 17 person decrease in population growth is a significant statistic to be considered by the Chancellor.

¶ 17. The Objectors’ argument that the land in the “cut out” area has little residential and commercial growth is without merit. The 17 person decrease in City population does not demonstrate that the City lacks a need for residential development. This vacant and unconstrained land is necessary to accommodate the future growth of the City of Macon.

¶ 18. The Chancellor found that there are no planning or zoning ordinances in place in the PAA. The City of Macon has planning and zoning ordinances in effect which include comprehensive building codes. The area along Highway 45 has developed without any planning causing a patchwork quilt of businesses and residences. The lack of zoning in the PAA has resulted in mobile homes situated next to businesses. Additionally, the evidence at trial showed plans for a hotel to be built next to a house and a poll mill located next to a church. This demonstrates the City’s need to control the building and development in the PAA. The enforcement of zoning and building codes is necessary for public safety and fire prevention.

¶ 19. The Objectors argue that the “cut out” area is not located near the growing Highway 45 area and, therefore, not in need of the same City control. Additionally, the objectors argue that no specific evidence was presented as to a need for zoning in the “cut out” area. They argue that all residents and landowners in the “cut out” area are happy with the development trends and find no need for zoning which would restrict the use of their land. Likewise, they argue that the Chancellor made no specific findings as to a zoning need in the “cut out” area.

¶20. The Chancellor found that the increased growth and development along Highway 45 has created increased traffic. This increased traffic flow creates a need for police protection and patrol. Additionally, the City produced evidence that nightclubs in the County had resulted in numerous disturbances that required police response. The Objectors argue that evidence presented by the Police Chief as to the increase in traffic in the proposed annexation area is without credibility.

¶ 21. The Chancellor further found that the new developments and businesses in the proposed annexation area have created substantial sales tax, estimated to be between $70,000 and $80,000 in the next year, which currently is collected and kept by the State. If the area were annexed by the City, a portion of those taxes would be given back to the City. The increased sales tax in the annexation area is caused by the City’s build-out. The Objectors offered no evidence as to the increased sales tax revenue in the proposed annexation area and only testified as to their contribution to the City of Macon through their purchases at local businesses.

¶ 22. The Chancellor made no findings as to the geography and surrounding limitations to growth. Evidence shows that areas of vacant land in the City he in a floodplain. Also, evidence at trial showed that other areas near the city are unsuitable for development since they lie in a floodplain.

¶ 23. The Chancellor made no findings as to environmental influences. No evidence at trial was presented by either parties as to this issue.

B. PATH OF GROWTH

¶ 24. The test for evaluating the reasonableness of a chosen path of growth is “whether an area is in a path of growth, not necessarily a City’s primary path of growth.” In re City of Horn Lake, 630 So.2d 10, 19 (Miss.1993). This Court has further stated that “our law gives municipalities the discretion, based on convenience and necessity, to choose between various paths of growth by annexation.” Ritchie v. City of Brookhaven, 217 Miss. 860, 65 So.2d 436, 439 (1953). The law is clear that the annexation area must be in “a” path of growth not “the” path or “only” path of growth. The Objectors’ argument that there are other paths of growth suitable for annexation is without merit.

¶25. This Court has established factors for consideration when evaluating reasonableness as it relates to the path of growth which may or may not include: (1) spillover development in annexation area; (2) annexation area immediately adjacent to City; (3) limited are available for expansion; (4) interconnection by transportation corridors; (5) increased urban development in annexation area; (6) geography; and (7) subdivision development. In re Extension and Enlargement of the Mun. Boundaries of the City of Biloxi, 744 So.2d at 280; Enlargement and Extension of Mun. Boundaries of City of Madison v. City of Madison, 650 So.2d 490, 497 (Miss. 1995); Extension of Boundaries of City of Ridgeland, 651 So.2d at 556. This Court in Enlargement and Extension of Mun. Boundaries of City of Meridian v. City of Meridian, 662 So.2d 597, 612-13 (Miss.1995), held that the most important factors when determining the reasonableness of path of growth are the adjacency of the proposed annexation area to the City, accessibility of the proposed annexation area by City streets, and spillover of urban development into the proposed annexation area.

¶ 26. The Chancellor used these factors in evaluating the City’s petition for annexation. She relied on credible, substantial evidence in ruling that the City’s annexation proposal was reasonable. The Chancellor found that spillover has caused substantial commercial and residential development in the PAA. Since 1990, the PAA has seen a 15% increase in population. There are 3 churches, a convenience store, 2 industries, a power association, an elderly care center, an apartment complex, a hotel, and a restaurant in the PAA. At the time of trial, additional businesses were being built in the PAA which included a hotel, a catfish plant, and a Kentucky Fried Chicken restaurant. Photographs in evidence demonstrated that absent signs one would not know when he had left the city and entered the PAA due to the increased business development.

¶ 27. Objectors argue that the “cut out” area has not had spillover development. They argue that the “cut out” area should be excluded from the annexation since it is not more in the path of growth than other areas excluded. These arguments are without merit. The vacant and undeveloped land in the “cut out” area is needed for future development. The Chancellor found and the evidence shows that the PAA is immediately adjacent to the City of Macon. Evidence presented at trial demonstrates that the PAA is contiguous and adjacent to the existing City.

¶28. The Chancellor found that the City is limited to only 169 areas of unconstrained land available for development. The parcels of land available for development are scattered and small. This limits the City’s ability to grow and develop.

¶ 29. The Chancellor made no findings on the transportation connections between the City of Macon and the PAA. However, evidence at trial was undisputed that the City and the PAA share the same roads and highways.

¶ 30. The Chancellor made no findings on the geography of the City and the PAA. Evidence presented at trial showed that portions of the City of Macon are located in a floodplain. Likewise, evidence showed that the land the Objectors propose for annexation is located in a floodplain.

¶ 31. The Chancellor made no specific findings as to subdivision developments. She did, however, note the 124 new building permits for residential units within the City over the last 10 years. Evidence at trial also indicated that areas in the PAA were being used for subdivision development.

¶ 32. The Objectors argue that there has been no subdivision development in the “cut out” area. They further argue that they have had no offers to subdivide and develop their land for residential or commercial use. This is without merit since their vacant and undeveloped land is necessary for future growth.

C. POTENTIAL HEALTH HAZARDS

¶ 33. This Court has established a number of factors to be considered when evaluating the reasonableness as related to potential health hazards which may or may not include: (1) potential health hazards from sewage and waste disposal; (2) a large number of septic tanks in the area; (3) soil conditions which are not conducive to on-site septic systems; (4) open dumping of garbage; and (5) standing water and sewage. In re Extension and Enlargement of the Mun. Boundaries of the City of Biloxi 744 So.2d at 280; In re Extension of Corporate Boundaries of the Town of Mantachie, 685 So.2d 724, 727 (Miss.1996); Extension of the Boundaries of City of Ridgeland, 651 So.2d at 558; City of Horn Lake, 630 So.2d at 18; In re Matter of the Extension of the Boundaries of the City of Jackson, 551 So.2d at 866; City of Greenville, 513 So.2d at 935.

¶34. The Chancellor used these factors in evaluating the potential health hazards of the PAA. She relied on credible, substantial evidence in her evaluation.

¶ 35. The Chancellor relied on photographs, maps, and expert testimony which evidence open sewage lines and inadequate discharge of raw sewage. Herring, an Environmental Health Program Specialist for the Mississippi Department of Health, offered testimony as to the grave health hazards posed by raw sewage located near private wells for drinking water in the PAA. Diseases found to be caused by raw sewage leakage include salmonella, rotavi-rus, hepatitis A, and typhoid fever. A number of failing septic systems were found to be in the PAA. In the PAA, 64.5% of the dwelling units and 56.4% of commercial buildings already use the City’s sewer system. No health hazards were discovered in those areas using the City’s system. Dooley, an Objector, acknowledged in his testimony that he has a raw sewage problem on his land. Additionally, the City provides 100% of its residents with sewer services.

¶ 36. The Chancellor found that the soil conditions in the proposed annexation area were not conducive for septic tank systems. Information from the United States Soil Conservation Service indicates that the PAA is not suitable for septic tank usage. The Objectors offered no evidence to rebut this testimony.

¶ 37. The Chancellor found that trash piles and junkyards littered the PAA. The City and County use the same disposal service. However, the Chancellor further found that the City has zoning ordinances that would prevent dumping.

¶ 38. Zoning and building ordinances would also assure the safety of annexation area residents. Whitehead, the City’s Building Inspector, testified that inspection of electrical, structural, plumbing, and gas in proposed building projects provides citizens protection from potential hazards caused by faulty workmanship or improper building techniques. These inspections would help to reduce the health hazards caused by unsupervised building in the PAA.

¶ 39. The Objectors argue that the City is unable to identify any ordinance that it could enforce which would lead to any clean up of the areas found to be health hazards. The only City ordinance related to the reported health hazards is one that would require sewage hook ups. These sewer hook ups could remedy some of the problems. The City’s sewer plan calls for full sewer installation and service in the PAA over a period of 5 years. Many PAA residents are already hooked up to City sewer. The Objectors argue the 5 year installation plan is inadequate. The Objectors rely on City of Columbus, where the Objectors there stated, “it makes no sense to cite potential health hazards as a reason for annexation when no solution to the potential problem is offered.” 644 So.2d at 1175-76. The Objectors further argue that the City has several unsightly trash heaps of its own.

D. FINANCIAL ABILITY

¶40. This Court has developed several factors to evaluate reasonableness as related to financial ability which may or may not include: (1) present financial condition of the municipality; (2) sales tax revenue history; (3) recent equipment purchases; (4) the financial plan and department reports proposed for implementing and fiscally carrying out the annexation; (5) fund balances; (6) the City’s bonding capacity; and (7) expected amount of revenue to be received from taxes in the annexed area. Town of Mantachie, 685 So.2d at 728; City of Meridian, 662 So.2d at 611; Extension of Boundaries of City of Ridgeland, 651 So.2d at 558; City of Columbus, 644 So.2d at 1171; City of Green-ville v. Farmers, Inc., 513 So.2d at 935; In re Extension of Boundaries of City of Ridgeland, 388 So.2d 152, 156 (Miss.1980); In re Extension and Enlargement of the Mun. Boundaries of the City of Biloxi, 361 So.2d at 1374; Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683, 685 (1965); In re City of Gulfport, 253 Miss. 738, 179 So.2d 3, 6 (1965).

¶ 41. The Chancellor used these factors in evaluating reasonableness as related to the financial ability of the City of Macon in the annexation of the proposed area. There was substantial and credible evidence to show that the City had the financial ability to successfully annex the proposed area.

¶ 42. The Chancellor found and the evidence showed that the City is financially capable of successfully funding and completing the annexation of the proposed area. City audits and exhibits presented at trial indicate the City is in excellent financial condition. The City has ample cash reserves and little bonded debt. The Objectors argue that the financial ability of the City is of little importance since the City already provides many services to the PAA. The Objectors offer no evidence to rebut the City’s financial ability to complete a successful annexation.

¶ 43. The Chancellor made no findings as to the sales tax revenue history of the City of Macon. However, evidence presented at trial demonstrated that the City has $23,000 to $25,000 a month in sales tax revenue.

¶ 44. The Chancellor made no findings as to recent equipment purchases of the City of Macon. However, evidence presented at trial showed that the City had recently purchased additional equipment for its fire department and had ordered a new patrol car for the police department.

¶ 45. The Chancellor found that the City has a financial plan for fiscally carrying out the annexation. The City conducted extensive preannexation studies and hired urban development planners to analyze the need and direction of a proposed annexation. Expert testimony from Slaughter indicated that the City could financially afford to fund the necessary engineering tasks needed in the PAA. The City outlined its proposed services and improvements for the annexation area and illustrated its financial capability of achieving those improvements over the next five years. The City outlines its future improvement and services plan through exhibits which detail the estimated costs and revenues produced from such additions. The City has already committed funds to be used in the planning, zoning, and development of the PAA. The City has a sound financial plan which includes the addition of more personnel and equipment to meet the needs of the PAA area. If the annexation is completed the City plans to hire a full-time building inspector, an additional police patrolman, and a full time zoning officer. The City further plans to install street lighting, provide mosquito control, install fire hydrants, and repave and repair streets. All the evidence illustrates that the City has the financial ability to make the improvements needed and provide the municipal services to the PAA within a reasonable time.

¶46. The Objectors argue that the City’s financial plan is inadequate since the plan calls for improvements and the addition of services over the next five years. Testimony at trial indicated that given the City’s financial stability these improvements and services may be instituted much sooner. This Court has approved similar plans with time periods extending as long as five years. In the case of In re Exten sion and Enlargement of the Mun. Boundaries of the City of Biloxi, this Court stated that “[p]lans that call for extension of services into annexation areas when economically feasible are not ‘per se unreasonable.’ ” 744 So.2d at 282. See also Town of Mantachie, 685 So.2d at 729 (citing City of Columbus, 644 So.2d at 1182). In the case of In re Extension and Enlargement of the Mun. Boundaries of the City of Biloxi, this Court approved an improvement and services plan which outlined the installation of sewer and water lines in the annexation area over the next five years. 744 So.2d at 282. Additionally, here much of the area in the PAA already has City water and sewer lines. Even the “cut out” area that Objectors argue should be excluded from annexation is served by City water. And those “cut out” area residents would see a reduction in their water bill if the annexation is completed due to the elimination of a water surcharge fee placed on non-residents who use municipal water services.

¶ 47. The Chancellor found that currently the City has cash reserves. Testimony also indicated that the City of Macon is eligible for receiving grant funds. The Chancellor found and the evidence indicates that the City has little bonded debt.

¶ 48. The Chancellor made no findings as to the expected tax revenue from the annexation area. However, evidence presented at trial showed that currently the annexation area has between $70,000 and $80,000 in annual sales tax revenue.

E. NEED FOR ZONING AND PLANNING

¶ 49. The Chancellor found that the City has zoning and building ordinances in place whereas Noxubee County has no zoning and no plan for development. This Court has approved annexations even where the City does not plan to provide zoning and planning and where the County has in force its own zoning and planning ordinances. Town of Mantachie, 685 So.2d at 728; Extension of Boundaries of City of Ridgeland, 651 So.2d at 559. The County has countless examples of incompatible land use and allows building without inspections. The City, plans to provide a full-time building inspector upon the completion of the annexation. The Objectors argue that the “cut out” area does not need zoning or planning ordinances. They argue that the rest of the PAA may be in need of zoning but their area does not need such laws since there is limited growth. Zoning and planning are needed in the proposed annexation area in order to ensure public safety and welfare.

¶ 50. The Objectors attack the City’s enforcement of its zoning ordinances. The Objectors’ evidence of the City’s incompatible land use predates the enactment of current budding and zoning ordinances and are essentially nonconforming uses. The City acknowledged its awareness of these problems and has recently employed personnel to handle the issue.

F. NEED FOR MUNICIPAL SERVICES

¶ 51. This Court has established factors to consider when evaluating reasonableness as it relates to need for municipal services which may or may not include: (1) requests for water and sewage services; (2) plan of the City to provide first response fire protection;. (8) adequacy of existing fire protection; (4) plan of the City to provide police protection; (5) plan of City to provide increased solid waste collection; (6) use of septic tanks in the proposed annexation area; and (7) population density. Enlargement and Extension of the Mun. Boundaries of City of Madison, 650 So.2d 490, 502 (Miss.1995); Extension of Boundaries of City of Ridge- land, 651 So.2d at 559; City of Horn Lake, 680 So.2d 10, 21 (Miss.1993).

¶ 52. This Court has also addressed how these factors are applied when addressing sparsely populated areas and densely populated areas. This Court found that in sparsely populated areas, there is less of a need for immediate municipal services. In re Matter of the Extension of the Boundaries of the City of Jackson, 551 So.2d at 867. Evidence presented at trial shows the PAA is a densely populated area.

¶ 53. The Chancellor found that an increase in residential units and commercial/industrial businesses in the PAA creates a demand for water and sewer services. The City currently provides sewer service to a portion of the PAA and has plans to install water and sewer lines to the remaining area. Statistics show that 90% of annexation area residents and 74% of annexation area businesses already receive City water. Additionally, 64.5% of annexation area residents and 56.4% of annexation area businesses receive City sewer services. Hunter, Mayor of the City of Macon, also testified that the City has received requests from residents and businesses in the annexation area for the City’s sewer and water services.

¶ 54. The Chancellor found that the PAA has a need for city fire protection. The City currently provides fire protection to the PAA. The City has on duty fire department personnel with 19 firefighters, while the County has a totally volunteer fire department. Testimony at trial also established that the fire department was currently organizing and acquiring funding for an emergency medical response program. The Chancellor found that a full time fire department with paid personnel are likely to provide the most comprehensive service.

¶ 55. Testimony at trial indicated that the Mississippi Rating Bureau has assigned a Class 10 fire rating to the entire annexation area while the City has a Class 7 fire rating which entitles its residents to a discount on their fire insurance rating. Objectors argue that they already receive the discount for a Class 7 fire rating; and therefore, the annexation would not affect their premiums. However, the insurance company voluntarily assigned these residents with a Class 7 rating and under the terms of the policy are able to decline to insure them at the Class 7 discount in the future. Objectors also point to the fact that currently the City receives financial benefits for providing the County with fire protection services. Additionally, the Objectors argue that they do not need the City’s fire protection since the County has a fire department. This Court has reversed a Chancellor’s finding that there was no need for municipal level fire protection in an area served by a Class 10 volunteer fire department. City of Horn Lake, 630 So.2d at 21.

¶ 56. The Chancellor found that the PAA has a need for City police protection. 'The City currently provides some protection to the residents through back up assistance to the County Sheriffs department. The City currently has 10 patrolmen with plans to add one more if the annexation is approved. Additionally, the City has a new patrol car on order. Brown, the Chief of Police, testified that the annexation area is in need of increased patrolling to control speeders. The Sheriffs department only has 5 deputies in charge of patrolling the whole County. Objectors argue that they are satisfied with the Sheriffs patrol.

¶ 57. The Chancellor made no findings as to the need for or a City plan for increased solid waste collection. Currently the City and County use the same provider for solid waste collection and disposal.

¶ 58. The Chancellor made no specific findings as to the use of septic tanks in the annexation area, but as indicated earlier evidence showed that septic tanks systems in the area are failing and creating health hazards for residents. The City plans to remedy this problem through the installation of sewer lines and through the enforcement of zoning ordinances.

¶ 59. The Chancellor noted the increase in population in the PAA. Statistics show that the population has increased in the area from 231 persons per square mile in 1990 to 255 persons per square mile in 2000. Evidence also shows that the number of dwelling units over the last 10 years has grown.

G.NATURAL BARRIERS

¶ 60. The test for evaluating reasonableness as it relates to natural barriers is as follows, “it is not a constraint upon development that establishes unreasonableness under the natural barriers concept but rather a condition that makes provision of municipal services impossible or prohibitively expensive.” City of Columbus, 644 So.2d at 1175 (citing City of Biloxi v. Cawley, 332 So.2d 749, 751 (Miss.1976)).

¶ 61. The Chancellor found that there are no natural barriers between the City and the proposed annexation area. Objectors argue that other areas are better candidates for annexation. But this argument ignores the fact that these areas are constrained by the existence of a floodplain. The mere existence of constraints, such as a floodplain, does not necessarily make the suggested path of growth unreasonable, but under the circumstances here the PAA is the most reasonable path of growth.

H. PAST PERFORMANCE

¶ 62. The Chancellor made no findings on the City’s past performance since this is the City’s first annexation.

¶ 63. Looking to the City’s current performance for its residents reveals that the City provides adequate and comprehensive services. The City provides 100% of its residents with water and sewer. The City provides fire and police protection for its residents and many in the PAA. The City of Macon provides trash and garbage collection, street lighting, parks and recreation facilities, streets, drainage, and animal control. Additionally, the City provides comprehensive zoning and planning ordinances to provide safety to its residents.

¶ 64. The Objectors claim the City is neglectful in providing zoning enforcement to its residents; and therefore, this indicates a standard of poor performance. They offer examples of dilapidated dwellings and unsanitary property of residents. The Objectors argue that the City is not providing its own residents with the services it purports to be capable of providing the residents of the PAA.

I. FAIRNESS/EQUITY EVALUATION

¶ 65. This Court in City of Columbus stated, “Although we retain our ‘indicia’ for the purpose of today’s decision, we emphasize that fairness to all parties has always been the proper focus of our reasonableness inquiry. Thus, we hold that municipalities must demonstrate through plans and otherwise, that residents of annexed areas will receive something of value in return for their tax dollars in order to carry the burden of showing reasonableness.” 644 So.2d at 1172. Additionally, this Court in the case of In re Matter of the Extension of the Boundaries of the City of Jackson, stated, “the Court is required to balance the equities by comparing the City’s need to expand and any benefits accruing to residents from the annexation with any adverse impact, economic or otherwise, which will probably be experienced by those who live in and own property in the annexation area. The mere fact that residents and landowners will have to start paying city property taxes is not sufficient to show unreasonableness.” 551 So.2d at 867-68.

¶ 66. The Chancellor used these standards in evaluating the fairness/equity of the proposed annexation. She used substantial, credible evidence in making this evaluation.

¶ 67. The Chancellor found that the Objectors’ main complaint of higher taxes cannot defeat the proposed annexation. As stated above, this Court has found that increased taxes alone is not enough to find an annexation unreasonable. Id. The payment of City taxes would be offset by the savings on fire insurance the landowners in the PAA would receive. Objectors argue this is irrelevant since many residents in the PAA already receive the Class 7 fire insurance rating discount. This ignores the fact that any such rating benefit is currently voluntary by the insurance company since these residents do not live in a Class 7 rated zone. The residents would also receive a decrease in their water and sewer rates. Also, the proposed tax impact on area residents appears to be minimal. The additional net taxes on uncultivated and cultivated land would be between $6.16 and $57.42 annually depending on acreage.

¶ 68. Additionally, the residents and landowners in the proposed annexation area would receive improved police protection, fire protection, public works, streets and drainage maintenance, paving of streets, street lighting, zoning, building codes, planning and enforcement, water, and sewer services. These benefits are well worth the additional taxes residents would be forced to pay. When the equities are balanced, the evidence shows the proposed annexation to be reasonable.

J. VOTING STRENGTH OF PROTECTED MINORITY GROUPS

¶ 69. The Chancellor found and statistics indicate that the annexation would not negatively impact the voting strength of any protected minority groups. Currently the City’s population is 42% white and 58% nonwhite. The annexation area’s population is 39.2% white and 60.8% nonwhite. These statistics indicate that the annexation will not substantially decrease the protected minority voting strength. The Objectors do not contest this issue.

K. BENEFITS TO PROPERTY OWNERS IN PROPOSED ANNEXATION AREA WITHOUT PAYING THEIR FAIR SHARE OF TAXES

¶ 70. The Chancellor found that the City of Macon is the financial hub of Nox-ubee County and that many businesses situated in the annexation area are benefit-ting from their association with the City. It was further found that many businesses in the annexation area even included the City’s name in their business name. Residents and landowners in the PAA benefit from the use of City water, City sewer, City fire protection, City police protection, 2 city parks, and association with the City of Macon. The Objectors argue that there has been no substantial business or industrial growth in the “cut out” areas that would indicate the benefits of City association are being used by those residents. Relying on City of Columbus, the Objectors argue that county residents shop in the City of Macon and have to pay sales taxes like other City residents; and therefore, no benefit is being taken without contribution. 644 So.2d at 1182. The City relies on Bassett in arguing that the proximity of these residents and business owners affords them benefits. 542 So.2d at 922.

L. OTHER FACTORS THAT MIGHT SUGGEST REASONABLENESS

¶ 71. The Chancellor made no findings as to other factors influencing her decision to grant the City’s petition for annexation.

CONCLUSION

¶ 72. The Chancellor relied on substantial, credible evidence and did not commit manifest error in approving the City of Macon’s petition for annexation. She correctly applied the factors of reasonableness and delivered a comprehensive and detailed opinion as to the facts and case law supporting a finding of reasonableness. Therefore, the learned Chancellor’s judgment is affirmed.

¶ 73. AFFIRMED.

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


author: McRAE, Presiding Justice,

text:
    BRIGGS & STRATTON CORPORATION, Automotive Electric Corporation d/b/a Engine Power Distributors, Rick Higginbottom d/b/a H & H Small Engine Repair and Mike Higginbottom v. Johnny SMITH d/b/a Houston Sales and Service.
    No. 2002-IA-00099-SCT.
    Supreme Court of Mississippi.
    Sept. 25, 2003.

      B. Wayne Williams, Lee Alexander Dur-rett, James Michael Tutor, Tupelo, Francis Rafferty, George T. Wheeler, Jr., attorneys for appellants.
    Richard Paul Johnson, Jennifer Ingram Wilkinson, Carroll Ingram, Hattiesburg, Marcus Alfred Treadway, Jackson, Gary L. Carnathan, attorneys for appellee.
   McRAE, Presiding Justice,

for the Court.

¶ 1. Defendants Briggs & Stratton Corp., Automotive Electric Corp d/b/a Engine Power Distributors, Rick Higginbot-tom d/b/a H & H Small Engine Repair, and Mike Higginbottom seek review by interlocutory appeal of a Tishomingo County Chancery Court order denying their Joint Motion to Transfer this action to the Circuit Court of Tishomingo County. After reviewing the chancery court’s order, this Court finds jurisdiction for this action is not proper in the chancery court. The order of the chancery court is reversed, and the case is remanded to the chancery court for a prompt transfer to the Circuit Court of Tishomingo County.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 17, 2001, Johnny Smith, owner and operator of Houston Sales and Service, filed this suit in the Chancery Court of Tishomingo County against defendants Briggs & Stratton Corp., Automotive Electric Corp. d/b/a Engine Power Distributors, Rick Higginbottom d/b/a H & H Small Engine Repair, and Mike Higgin-bottom. The complaint contains eight counts which included (1) Count I Breach of Contract by Briggs and Engine Power; (2) Count II Tortious Breach of Contract by Briggs and Engine Power; (3) Count III Tortious Contractual Interference with Present Business Contractual Relationships by Briggs and Engine Power; (4) Count TV Tortious Contractual Interference with Prospective Business Contractual Relationships by Briggs and Engine Power; (5) Count V Breach of Implied Duty of Good Faith and Fair Dealing by Briggs and Engine Power; (6) Count VI Conspiracy to Terminate by Briggs, Engine Power, H & H, Rick Higginbottom, and Mike Higginbottom; (7) Count VII Gross Negligence by Briggs, Engine Power, H & H, Rick Higginbottom, and Mike Higginbottom, and (8) Count VIII Entitlement to an Accounting Due to Briggs’s Accusations of Improper Use of Inventory of Repair Parts.

¶ 3. On June 18, 2001, defendants Briggs, Engine Power, and Mike Higgin-bottom filed a Joint Motion to Transfer. In their motion they argued that the chancery court did not have jurisdiction over the matters in this cause because essentially the plaintiff was alleging breach of contract for which jurisdiction lies in the circuit court. The motion alleged that the circuit court was the only proper forum for which a jury trial and punitive damages could be requested. In support of their motion they submitted to the court the case of Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948 (Miss.2000). The August 17, 2001, plaintiffs response to the Motion to Transfer argued that a valid claim for an accounting had been asserted; therefore the chancery court had proper jurisdiction over the cause. On August 22, 2001, Rick Higginbottom joined in the motion to transfer.

¶ 4. A hearing on the motion was held on August 20, 2001. During the hearing the defendants cited Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088 (Miss.1999). They argued that the facts in Southern Leisure are essentially the same as the case sub judice and that there this Court found that the plaintiffs’ attempts to secure equity jurisdiction were fraudulent and therefore, the cause was proper only in circuit court. The defendants argued that their right to a jury trial can only be guaranteed in circuit court. They argued that, despite the one equity count, the complaint ' predominately asserts legal claims which are best suited for circuit court. They stated that “the allegation for an accounting really is not an accounting in the sense that the Chancery Court would normally apply in an accounting.” The defendants argued that the plaintiffs reliance on Crowe v. Smith, 603 So.2d 301 (Miss.1992), is misplaced.

¶ 5. During the hearing the plaintiff argued that his claim for an accounting is justified as “the cancellation of the Authorized Service Agreement was over some discrepancy as to parts inventory under a warranty ... [and] the dispute seems to center on allegations by Briggs and Engine Power that my client misused, misappropriated, did something with the inventory not per the Authorized Service Dealer Agreement.” The plaintiff argued that the accounting claim is essential to the other legal claims as it “bolster[s] [the] claim that he did nothing outside the warranty agreement — -the Service Dealer Agreement, which would breach that agreement; and, therefore, would put Briggs and Engine Power in the place of illegally .and improperly cancelling that agreement causing him injury.”

¶ 6. On November 29, 2001, the Chancellor issued an order denying the motion to transfer and stating that “pursuant to Miss.Code § 9-5-81 and Const, art. 6, § 159, the Chancery Court has the authority to hear cases for an accounting.” On January 8, 2002, the Chancellor certified that order for interlocutory appeal and stayed the proceedings pending the outcome of the appeal. On June 7, 2002, this Court granted the defendants’ request for interlocutory appeal. See. M.R.A.P. 5.

STATEMENT OF THE ISSUES

I. DID THE CHANCERY COURT ERR IN DENYING THE DEFENDANTS’ JOINT MOTION TO TRANSFER THIS MATTER TO THE CIRCUIT COURT OF TISH-OMINGO COUNTY, MISSISSIPPI?

A. DID THE PLAINTIFF FAIL TO ALLEGE A TRUE CLAIM FOR AN ACCOUNTING?

B. DID THE RETENTION OF THIS CAUSE BY THE CHANCERY COURT DENY THE DEFENDANTS OF THEIR CONSTITUTIONALLY PROTECTED RIGHT TO A TRIAL BY JURY?

C. DID THE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES CREATE A CAUSE FOR REMOVAL TO THE CIRCUIT COURT?

STANDARD OF REVIEW

¶ 7. Defendants argue that the applicable standard of review is de novo. They cite Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948, 950 (Miss.2000). Plaintiff argues that the applicable standard of review is abuse of discretion. He cites Stubbs v. Miss. Farm Bureau Casualty Ins. Co., 825 So.2d 8 (Miss.2002). Since there is conflict as to which standard of review applies, it is necessary to clear up any confusion.

¶ 8. The plaintiff mistakenly relies on Stubbs. In Stubbs, this Court addressed the proper standard of review for motions to transfer venue. Id. The case sub judiee addresses a motion to transfer from chancery court to circuit court based on the chancery court’s lack of jurisdiction over the subject matter. Stubbs did not address the applicable standard of review for this type of motion to transfer.

¶ 9. The defendants correctly rely on Burnette. In Burnette, this Court addressed the proper standard of review for a motion to transfer based on lack of jurisdiction. 770 So.2d at 950-51. This Court stated that:

Jurisdiction is a question of law. Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204-05 (Miss.1998). This Court reviews questions of law de novo. See Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000).

770 So.2d at 950. More recently, this Court in United States Fidelity & Guaranty Co. v. Estate of Francis, 825 So.2d 38 (Miss.2002), reviewed a Chancellor’s denial of a motion to transfer. Since the Chancellor’s order denying a motion to transfer from chancery court to circuit court due to lack of jurisdiction involved a question of law, this Court applied de novo review. Id. at 43^4.

DISCUSSION

I. DID THE CHANCERY COURT ERR IN DENYING THE DEFENDANTS’ JOINT MOTION TO TRANSFER THIS MATTER TO THE CIRCUIT COURT OF TISH-OMINGO COUNTY, MISSISSIPPI?

¶ 10. It is clear that this Court has not drawn a bright line concerning equity and law jurisdiction, particularly from 1956 to the present. However, this case clearly indicates that this was a question of law and not a question of equity and that the chancery court erred in not transferring, as will be discussed below.

A. DID THE PLAINTIFF FAIL TO ALLEGE A TRUE CLAIM FOR AN ACCOUNTING?

¶ 11. The defendants argue that the plaintiffs complaint does not request a true accounting. They argue that the plaintiff is seeking exoneration from allegations that he misused parts and inventory. This is not a request for an accounting. Since the plaintiffs request for an accounting is a mask for asserting chancery court jurisdiction, Tillotson v. Anders, 551 So.2d 212 (Miss.1989), is directly on point and supports the transfer of this cause to circuit court.

¶ 12. The plaintiff argues that the request for an accounting is essential to the allegations in the complaint. He argues that in order to prove that his termination was in bad faith, he must show through an accounting that he did not misuse parts and inventory which is the alleged reason his contract was terminated. The plaintiff argues that under Crowe v. Smith, 603 So.2d 301 (Miss.1992), Miss.Code Ann. § 9-5-81 (Rev.2002), and Miss. Const, art. 6, § 159 (1890), the chancery court is the only court which may hear a case for an accounting.

¶ 13. This Court in State ex rel. King v. Harvey, 214 So.2d 817 (Miss.1968), gave a comprehensive definition for an accounting. Id. at 819-20. This Court stated that:

An accounting is by definition a detailed statement of the debits and credits between parties arising out of a contract or a fiduciary relation. It is a statement in writing of debts and credits or of receipts and payments. Thus an accounting is an act or a system of making up or settling accounts, consisting of a statement of the account with debits and credits arising from the relationship of the parties. Black’s Law Dictionary 34-36 (4th Ed.1957).... “It implies that one is responsible to another for moneys or other things, either on the score of contract or of some fiduciary relation, of a public or private nature, created by law, or otherwise.” Miller v. Henry, 139 Miss. 651, 665, 103 So. 203, 204 (1925)

214 So.2d at 819-20. An accounting has traditionally been a tool used by a plaintiff against a defendant. In the case sub judi-ce, the plaintiff attempts to initiate an accounting against himself. It is a mere disguise for what really could be accomplished through discovery.

¶ 14. The plaintiff argues that, in order to prove the allegations in his complaint, he needs an accounting to show that the cancellation of his contract was in bad faith because he did not misuse inventory and parts as alleged. There is no demand for information, which is essentially what an accounting calls for. Here, the plaintiff has the information. He does not need an accounting in order to present such information to the court. If he is seeking to obtain order forms and shipping records to corroborate his theory, he can demand these items from the defendants during discovery.

¶ 15. The demand for an accounting is a mask to assert chancery court jurisdiction as it was in Tillotson, where this Court found that “[i]t is the substance of the action that should be controlling on this issue, not its form or label.” 551 So.2d at 214 (quoting Thompson v. First Miss. Nat’l Bank, 427 So.2d at 976 (Miss.1983)). Our lower courts should “be wary of attempts to camouflage as a complicated accounting what is in essence an action at law for breach of contract.” Id. (quoting Thompson, 427 So.2d at 976).

¶ 16. Since all other allegations of the complaint allege actions at law, the circuit court is the proper jurisdiction under Miss. Const, art. 6, § 156 and Miss.Code. Ann. § 9-7-81 (Rev.2002).

B. DID THE RETENTION OF THIS CAUSE BY THE CHANCERY COURT DENY THE DEFENDANTS OF THEIR CONSTITUTIONALLY PROTECTED RIGHT TO A TRIAL BY JURY?

¶ 17. The defendants argue that they have been denied their right to a jury trial by the Chancellor’s failure to transfer the cause to the circuit court; Additionally, the plaintiffs complaint even demands a jury trial. The defendants argue that since the chancery court is not required to empanel a jury, they may be denied their right to a jury trial of which they would be assured in circuit court. The plaintiff does not address this issue in his brief.

¶ 18. Miss. Const, art. 3, § 31 (1890) provides, in pertinent part, that the “right of trial by jury shall remain inviolate.” The defendants argue that the only way they can be assured of a jury trial is to be under the jurisdiction of the circuit court. This is true. In chancery court, the right to a jury trial is only discretionary.

¶ 19. In 1977, this Court in McLean v. Green, 352 So.2d 1312 (Miss.1977), addressed the right to a jury trial in chancery court. Id. at 1314. This Court found that:

In Chancery Court, with some few exceptions, the right to a jury is purely within the discretion of the Chancellor, and if one is empaneled, its findings are totally advisory. Our constitution, Mississippi Constitution, § 31 (1890), provides that the right to trial by jury shall remain inviolative, but in this case, the chancellor’s assumption of jurisdiction of this common law action has deprived the defendant of this right.... In Talbot & Higgins Lbr. Co. v. McLeod Lbr. Co., [147 Miss. 186, 113 So. 433 (1927)], we held that where the Chancellor erroneously assumed jurisdiction of a common law action, the right to trial by jury had been taken away.

Id. Again in 1999, this Court in Southern Leisure, 742 So.2d 1088, found the Chancellor erred by failing to transfer a cause to circuit court for a jury trial. This Court quoted McLean, 352 So.2d 1312, when finding that the defendant’s right to a jury trial could not be guaranteed in chancery court since the right to a jury trial in chancery court is only discretionary. Southern Leisure, 742 So.2d at 1090.

¶ 20. By failing to transfer the cause to circuit court, the Chancellor denied the defendants their right to a jury trial.

C. DID THE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES CREATE A CAUSE FOR REMOVAL TO THE CIRCUIT COURT?

¶ 21. Since we found that the chancery court erred in retaining jurisdiction, we need not address this issue.

CONCLUSION

¶ 22. The Chancellor committed reversible error by failing to transfer this case to the Circuit Court of Tishomingo County. The allegations of the complaint set out a cause of action at law not in equity; therefore, the case is placed under the jurisdiction of the circuit court. The Chancellor’s denial of the defendants’ motion to transfer denied them of their right to a jury trial. The order of the Chancery Court of Tishomingo County denying the defendants’ motion to transfer is reversed, and this case is remanded to the Chancery Court for a prompt transfer to the Circuit Court of Tishomingo County.

¶ 23. REVERSED AND REMANDED.

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

      . See also United States Fid. & Guar. Co. v. Estate of Francis, 825 So.2d 38 (Miss.2002) (where this Court found the Chancellor to have committed error by failing to transfer the cause to circuit court, but this Court was unable to reverse the Chancellor's final judgment due to Miss. Const, art. 6, § 147 (1890)); Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948 (Miss.2000) (where this Court found that the defendant was deprived of his right to a jury trial due to the Chancellor's failure to transfer an uninsured motorist insurance benefits case to circuit court).