author: GRAVES, Justice, DICKINSON, Justice,

text:
    Michael Warren WILLIE v. STATE of Mississippi.
    No. 2002-KA-01846-SCT.
    Supreme Court of Mississippi.
    May 6, 2004.
    Rehearing Denied July 15, 2004.
    Mark G. Williamson, Starkville, Pearson Liddell, Jr., Louisville, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   GRAVES, Justice,

for the Court.

¶ 1. Michael Warren Willie appeals his sentence of life imprisonment without parole from the Circuit Court of Oktibbeha County, Mississippi. Willie was tried and convicted of capital murder while in the commission of a robbery in January 1989 and sentenced to death. Willie appealed to this Court, which affirmed the conviction but reversed on the sentencing. The Court remanded the case for a new trial on the sentencing. See Willie v. State, 585 So.2d 660 (Miss.1991). On remand, the State reindicted Willie, and he pled guilty, accepting the sentence of life in prison without parole. Willie challenged the sentence in a post-conviction relief action. See Willie v. State, 738 So.2d 217 (Miss.1999). This Court found that reindicting the defendant violated the double jeopardy clause and remanded the case for a new sentencing hearing. On remand, the circuit court entered an order amending the original indictment to charge Willie as a habitual offender pursuant to Miss.Code Ann. § 99-19-81 (Rev.2000). After a hearing, the circuit court found that Willie was an habitual offender and sentenced him to serve a term of life without the possibility of parole. Willie appeals to this Court contending that the trial court erred by granting the State’s Motion to Amend Indictment.

FACTS

¶ 2. As this is an appeal from the sentencing only, the portions of the record containing most of the facts were not included in this record. The facts are preserved in the record of the first trial. Willie initially faced the charge of burglary. Willie stated that his lawyer told him that if he did not bring $1,500.00 with him to court the next day he would go to jail. Willie did not have the money, so he decided to rob Joe’s Package Store. He entered the store carrying a .38 caliber pistol. Willie told Joe Clardy, the store clerk, to give him all the money and the videotape from the security camera. Clardy handed the tape to Willie. Willie said Clardy attempted to grab Willie’s gun, and the gun discharged hitting Clardy in the chest. Willie shot Clardy two more times, once in the abdomen and once in the head. Clardy died of his wounds.

ANALYSIS

WHETHER THE TRIAL COURT ERRED BY GRANTING THE STATE’S MOTION TO AMEND INDICTMENT.

¶ 3. An indictment may be amended under Rule 7.09 of the URCCC, which states in pertinent part:

Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement.

¶ 4. This Court has found Rule 7.09 constitutional. Burrell v. State, 726 So.2d 160, 162 (Miss.1998).

¶ 5. Willie contends that at the time of his conviction for capital murder that he only had one of the two convictions which were later used to charge him as a habitual offender. He argues that the State failed to meet the requirements of the sentencing mandated under Miss.Code Ann. § 99-19-81 (Rev.2000), which states:

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

¶ 6. Willie argues that the words in the statute, “shall have been convicted twice previously ” allow sentencing as a habitual offender only if both convictions predate the current conviction. Willie committed grand larceny on March 10, 1988, and was sentenced on June 27, 1989. He committed burglary on January 19, 1989, and was sentenced on November 9, 1989. He then committed capital murder on January 20, 1989, and was sentenced to death on September 28, 1989. The court then resen-tenced Willie to life imprisonment without parole on October 7, 2002, under the amended indictment classifying Willie as a habitual offender.

¶ 7. The State argues that Willie was “convicted twice previously” when he was most recently sentenced. The State acknowledges that when Willie was sentenced the first time, he only had one prior felony because the burglary charge had not yet been adjudicated. However, the State contends that at the time Willie was resentenced per this Court’s instructions in Willie v. State, 738 So.2d 217, he did have two prior convictions because the burglary charge had been adjudicated. Therefore, he was eligible for sentencing as a habitual offender.

¶ 8. The State relies on Jordan v. State, 383 So.2d 495 (Miss.1980), which is applicable to the case sub judice in that this Court held that the defendant was properly tried and convicted under the habitual offender statute, despite the fact that the defendant’s two previous felony convictions did not occur until after the date of which it was charged that he committed the third felony. The Court in Jordan relied on United States v. Bridgeman, 523 F.2d 1099, 1121 (D.C.Cir.1975), which stated “a defendant who has been convicted of one violent crime at the time he is sentenced for a second crime of violence clearly comes within the purviews of the statute, even though his sentence of the first conviction was not adjudged until after the second was committed.” 383 So.2d at 497 (emphasis added). It is clear that Willie committed two felonies before he was convicted of the capital murder of Joe Clardy. Thus, this Court concludes that Willie was eligible to be sentenced as a habitual offender despite the fact that the two previous felonies were not adjudicated at the time Willie was convicted of the third felony. To find otherwise would go against the legislative intent of Miss.Code Ann. § 99-19-81.

CONCLUSION

¶ 9. For these reasons, the trial court did not commit any reversible error in sentencing Willie as a habitual offender. Therefore, the judgment of the trial court is hereby affirmed.

¶ 10. SENTENCE OF LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE. AFFIRMED.

SMITH, C.J., EASLEY AND CARLSON, JJ„ CONCUR. COBB, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

DICKINSON, Justice,

Dissenting:

¶ 11. Because I find the language of Miss.Code Ann. § 99-19-81 (Rev.2000) unmistakably clear as it should be applied to this case, and because Jordan v. State, 383 So.2d 495 (Miss.1980), is not only misapplied by the majority, but is supportive of my position, I respectfully dissent.

¶ 12. This case requires us to address a narrow question of construction of the habitual criminal sentencing statute’s deceptively simple wording. The opening sentence states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony ... shall be sentenced to the maximum term of imprisonment prescribed for such felony....

Miss.Code Ann. § 99-19-81. Because this is a penal statute, it is to be strictly construed. State v. Martin, 495 So.2d 501, 502 (Miss.1986)(citing McLamb v. State, 456 So.2d 743, 745 (Miss.1984); State v. Russell, 358 So.2d 409, 412 (Miss.1978)).

¶ 13. It seems to me that it should be quite difficult to misconstrue the words: “Every person convicted in this state of a felony who shall have been convicted twice previously .... ” The word, “previously” means prior, or before. The statute clearly requires that two felony convictions must have occurred before the conviction for which the defendant is about to be sentenced. That was not the case here.

¶ 14. The majority speaks in terms of when Willie committed crimes and when he was sentenced for those crimes. However, the statute addresses neither of those time references. It speaks only in terms of two convictions previous to the current conviction.

¶ 15. Willie was convicted of capital murder on September 27, 1989. At that time, the record demonstrates, and the State and the majority concede, Willie did not have two previous felony convictions. It seems to me that should be enough for any strict constructionist.

¶ 16. Nevertheless, the majority affirms, claiming Jordan stands for the proposition that the order of the commission of the three crimes is irrelevant to sentencing under the statute. See Jordan, 383 So.2d at 497. Although I do not deny this is the case, the majority’s position is not advanced by this proposition. What the majority cannot cite from Jordan or anywhere else is language which holds irrelevant the order of convictions. Indeed, at the time of his conviction, the defendant in Jordan had been convicted twice previously of felonies. Id. at 496-97. This, in my view, satisfies the statute.

¶ 17. It seems acceptable and even advisable to me that a model statute should provide that, at the time of sentencing for conviction of a felony, a defendant having been convicted of two additional felonies must be sentenced to the maximum term of imprisonment. Under such a reasonable and just statute, Willie could have been properly be sentenced to life imprisonment. However, the statute actually enacted by the Legislature does not so provide. I cannot agree that this Court should rewrite the statute to provide what we think it should have provided. We are not the Legislature. We are a Court, required to apply the law given to us by the Legislature. The law given to us by the Legislature requires that there be two felony convictions previous to the current conviction. Willie did not have two felony convictions previous to his conviction of capital murder. Thus, the circuit court imposed a sentence which was not authorized by law. I would reverse the circuit court’s judgment and remand this case for resentencing. Therefore, I respectfully dissent.

WALLER, P.J., JOINS THIS OPINION.


source: Caselaw Access Project

author: SMITH, Chief Justice,

license: Public Domain

text:
    Melissa Baker WYATT v. CITY OF PEARL, Mississippi.
    No. 2003-KM-01077-SCT.
    Supreme Court of Mississippi.
    May 27, 2004.

      Robert Louis Williamson, Brandon, Attorney for Appellant.
    Jason T. Zebert, Pearl, Attorney for Ap-pellee.
    Before SMITH, C.J., GRAVES and DICKINSON, JJ.
   SMITH, Chief Justice,

for the Court.

¶ 1. On June 28, 2001, Melissa Baker Wyatt was arrested and charged with Driving Under the Influence First Offense after registering a .222% blood alcohol content, which exceeded the then-applicable .10% standard and was a per se violation of Miss.Code Ann. § 63-11-30(1)(c) (Supp. 2000). On August 7, 2001, Wyatt was tried and convicted in the City of Pearl municipal court, and she appealed the conviction to the Rankin County Court.

¶ 2. On May 1, 2002, Wyatt submitted a discovery request to the City of Pearl, requesting relevant information concerning her case including, but not limited to, all relevant information regarding the operation and maintenance of the Intoxilyzer 5000 breath test instrument. The city responded in writing with only the information intended to be introduced at trial with no response to the additional requests by the defendant.

¶ 3. On June 5, 2002, Wyatt was tried de novo and convicted in Rankin County Court after the court ruled that the requests of the defendant for full discovery beyond the scope submitted by the prosecution was denied with no continuance offered for remedy.

¶ 4. Wyatt appealed her conviction to the Circuit Court of Rankin County, Mississippi. On April 14, 2003, the circuit court affirmed the conviction. Wyatt appeals to this Court raising the following issue:

whether the trial court erred in its ruling to exclude from Ms. Wyatt’s discovery and consideration any documentation in the possession of the Mississippi State Crime Lab regarding the operation and maintenance of the -Intoxilyzer 5000 breath test instrument citing shortcomings of defense counsel in direct violation of Uniform Criminal Court Rule 4.06 and the prevailing authority of the Attorney General’s Office in the absence of the Supreme Court ruling.

Uniform Criminal Court Rule 4.06 is now Uniform Circuit and County Court Rule 9.04.

FACTS

¶ 5. On June 28, 2001, Wyatt was arrested on suspicion of Driving Under the Influence by patrolman Jason Ball of the City of Pearl Police Department. Wyatt was then transported to the Pearl Police Department where she submitted to a breath test indicating a blood alcohol content of .222%.

ANALYSIS

¶ 6. We are limited in reversing a trial court’s actions regarding discovery issues. Byrom v. State, 863 So.2d 836, 849 (Miss.2003). We may reverse only if the trial court abused its discretion. Id.

¶ 7. Wyatt argues that the trial court erred in several ways. The first argument is that the court erred in telling Wyatt that the highway patrol usually provided the technical or operations manuals when requested to do so; however, Wyatt has found information that contradicts this statement. The judge’s actual words were, “I do know that if it’s requested of the highway patrol, they will provide those documents.” There is no relevance of the judge’s statement to the issue on appeal; therefore, this argument is without merit.

¶ 8. Wyatt’s second argument is that the trial court erroneously ruled that her request for discovery was not timely, citing the long pending date of the trial because the her request was made a full month in advance of trial and because the prosecutor was able to respond within ten days without requesting additional time. Wyatt also argued that the trial court erred by ruling that she failed to make appropriate objections to the insufficiencies in the discovery response prior to trial. Wyatt contends that the court’s discovery rule puts the burden on the prosecutor to provide the discovery requested and not on the defense.

¶ 9. Third, Wyatt argues that the trial court erred when it found that the documentation she requested would not be relevant, citing the court’s discovery rule as stating only the party requesting the discovery can determine its relevance.

¶ 10. Uniform Circuit and County Court Practice Rule 9.04 states in pertinent parts:

G. Upon a showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit the party’s attorney to make beneficial use thereof.
In the event there are matters arguably within the scope of a party’s discovery request or an order for discovery, and the opposing party is of the opinion that the requesting party is not entitled to discovery of same, the opposing party shall, as soon as is reasonably practicable, file with the clerk of the court a written statement describing the nature of the information or the materials at issue as fully as is reasonably possible without disclosure of same and stating the grounds for objection to disclosure. Subject to the limitations otherwise provided in these rules, determinations such as whether the matters requested in discovery are relevant to the case, exculpatory, possible instruments of impeachment, and the like, may be made only by the party requesting or to receive the discovery.
I. If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.

(emphasis added). The prosecution did violate the rules of discovery in this instance by not providing the documents requested or instead filing an objection with the court. However, this Court has ruled that a violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice. Payton v. State, — So.2d -, 2003 WL 22510533, *13 (Miss.2003) (citing Buckhalter v. State, 480 So.2d 1128, 1128 (Miss.1985); Prewitt v. State, 755 So.2d 537, 540-41 (Miss.Ct.App.1999)).

¶ 11. Furthermore, this Court has held that the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court, and this Court will not reverse unless it can be shown to have resulted in manifest injustice. Payton, 2003 WL 22510533, 13 (citing Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss.1993)). Here, the prosecution did turn over all of the discovery requested except for the manuals. Included in that discovery were the calibration and maintenance documents, indicating that the breath test instrument had been properly maintained. Therefore, this Court concludes that the manuals requested would not have changed the outcome of the case and the discovery error was harmless.

CONCLUSION

¶ 12. We conclude that the trial court’s declaration that the Intoxilyzer 5000 operational manuals were not relevant to Wyatt’s defense was error, but the error was harmless. Therefore, we affirm the judgment of the Rankin County Circuit Court.

¶ 13. CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . In 2002 this standard was lowered to .08%. Miss.Code Ann. § 63 — 11—30(l)(c) (Supp. 2003).


author: DICKINSON, Justice,

text:
    Essiae COLLINS v. TALLAHATCHIE COUNTY, A Political Subdivision of the State of Mississippi.
    No. 2003-CA-01377-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      W. Ellis Pittman, Clarksdale, attorney for appellant.
    William O. Luckett, Jr., attorney for ap-pellee.
    Before WALLER, P.J., CARLSON and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. Essie Collins appeals an order granting summary judgment entered by the Circuit Court of Tallahatchie County in June of 2003. Essie, who had been shot and wounded by her husband, sued Talla-hatchie County in tort for failing to arrest her husband prior to the incident. The circuit court found that the County was entitled to sovereign immunity based upon the nature of the actions or failures of which Essie complains. We affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. On or about August 31, 2000, Essie received threatening phone calls from her estranged husband, Robert, who threatened “to kill, maim and otherwise cause grievous bodily injury” to her. She reported the incident to the Tallahatchie County Sheriffs Department (“TCSD”), and asked that Robert be arrested. TCSD instructed Essie to swear out an affidavit at the justice clerk’s office so that an arrest warrant could be issued.

¶ 3. The next day, Essie went to the justice court and signed a criminal affidavit against Robert for domestic violence. Shortly thereafter, the judge signed the warrant, but never delivered it to TCSD. Essie testified that the judge called her on Saturday, September 2, but she failed to recall much about the conversation. The judge claims that he had a phone conversation with Essie and that she told him that she didn’t want to see Robert in jail, but wanted to get him into court where the judge could tell him to stop threatening her. In any case, it is undisputed that Robert was never arrested.

¶ 4. On Monday, September 4, 2000, Robert forced his way into Essie’s home and shot her twice before turning the gun on himself and taking his own life. Thereafter, Essie filed suit against Tallahatchie County, alleging that the County was liable for negligence based upon the various actions and inactions of TCSD, the justice clerk, and the justice court judge, for their failure to effectuate Robert’s arrest. The trial court granted summary judgment to Tallahatchie County on the basis of sovereign immunity. From that judgment, Essie appeals to this Court.

DISCUSSION

¶ 5. This Court reviews summary judgments de novo. Grange Mut. Cas. Co. v. United States Fidelity & Guar. Co., 853 So.2d 1187, 1190 (Miss.2003). We view the facts in the light most favorable to the nonmovant. Id. If there exists a genuine issue of material fact, summary judgment is inappropriate. Id. The nonmovant must show by specific facts that there exists a genuine issue of material fact; that is, the nonmoving party may not rest on allegations or denials in the pleadings to withstand the motion. Id.

I. Whether Tallahatchie County may be held liable for the Tallahatchie County Sheriffs Departments failure to arrest Robert Collins.

¶ 6. Although Essie concedes that no arrest warrant was issued, she claims that probable cause existed for a warrant-less arrest and/or, in the alternative, that a warrantless arrest was specifically authorized by Miss.Code Ann. § 99-3-7(3). The County rebuts this assertion by arguing that TCSD is immune from liability for its failure to arrest based on Miss.Code Ann. § 99-3-7(7) and, in the alternative, that § 99-3-7(3) did not authorize a warrant-less arrest. The County also asserts that immunity extends to the actions of TCSD based upon Miss.Code Ann. § 11-46-9(l)(c), which provides immunity for actions or failures regarding police protection:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

Miss.Code Ann. § 11 — 46—9(l)(c) (emphasis added).

¶ 7. Essie does not argue that Miss.Code Ann. § 11-46-9(1)(c) is in applicable to the conduct complained of as to this issue, but she does argue the County is not entitled to immunity under the section because “there was more than sufficient probable cause” to merit his arrest despite the absence of a warrant. Apparently, Essie’s argument is that, because there was probable cause, TCSD is not entitled to immunity because it acted in reckless disregard for her safety and well-being.

¶ 8. Essie cites no authority for the proposition that the failure to arrest despite the presence of probable cause automatically rises to a level of reckless disregard. As Tallahatchie County points out, reckless disregard is a higher standard than gross negligence and “embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss.1999).

¶ 9. In her rebuttal brief, however, Essie directs the Court’s attention to Miss.Code Ann. 99-3-7(3), which states: “Any law enforcement officer shall arrest a person with or without a warrant when he has probable cause to believe that the person has, within twenty-four (24) hours of such arrest, knowingly committed a misdemean- or which is an act of domestic violence.” (emphasis added). Subsection (5) provides a list of crimes which constitute a “misdemeanor which is an act of domestic violence” when committed among family members. Among the list is Miss.Code Ann. § 97-35-15.

¶ 10. Though not cited by any of the parties, Miss.Code Ann. § 97-35-15 states.

(1) Any person who disturbs the public peace, or the peace of others, by violent, or loud, or insulting, or profane, or indecent, or offensive, or boisterous conduct or language, or by intimidation, or seeking to intimidate any other person or persons, or by conduct either calculated to provoke a breach of the peace, or by conduct which may lead to a breach of the peace, or by any other act, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than five hundred dollars ($500.00), or by imprisonment in the county jail not more than six (6) months, or both.

¶ 11. Through Essie’s previous filing with TCSD and her latest complaint, there was ample probable cause to arrest through § 99-3-7(3) based upon § 97-35-15. However, as stated above, reckless disregard requires that the person knowingly or intentionally commit a wrongful act. Even viewing the facts in a light most favorable to Essie, she has shown no evidence that TCSD knew that it could and/or was required to arrest Robert. TCSD’s conduct, even if negligent, can not be said to have risen to the level of reckless disregard based upon the facts in this record. Therefore, § 11-46-9(c) did provide immunity based upon TCSD’s conduct, and summary judgment was proper as to TCSD.

II. Whether Tallahatchie County may be held liable for the failure of the Justice Court Clerk or Justice Court Judge to transmit the signed warrant to the Tallahat-chie County Sheriff's Department.

¶ 12. Citing Miss.Code Ann. § 11-46 — 9(l)(d), the trial court noted that governmental entities are not liable for claims arising out of an employee’s exercise or failure to exercise a discretionary duty. The trial court, citing Miss.Code Ann. § 11-46-9(1)(a), also noted that immunity is to be granted for claims arising out of judicial actions and inactions as well as administrative actions or inactions which are of a judicial nature.

¶ 13. It should first be noted that Essie makes no mention of this last cited portion of the Tort Claims Act. Notwithstanding, Rule 3.03 of the Mississippi Uniform Justice Court Rules, notes that “arrest warrants or search warrants shall be issued only by the judge after a judicial determination that probable cause exists based upon the affidavit or other evidence before the court.” Therefore, the issuance of warrants is a judicial act. Furthermore, even if one were to argue that there is a difference between the issuance of a warrant and the delivery of a warrant to a police or sheriffs department, the type of conduct complained of would be an administrative act of a judicial nature, at the very least. Thus, the alleged conduct of both the justice court clerk and judge falls squarely within § ll-46-9(l)(a). Therefore, the trial court properly found that sovereign immunity prevented prosecution of Essie’s claims.

¶ 14. The parties also briefed the issue of whether Miss.Code Ann. § 11 — 46— 9(l)(d) is applicable. In doing so, our attention was drawn to an apparent misunderstanding in our case law. Essie claims that the trial court erred in granting summary judgment because the County employees could not have been said to have used “ordinary care” even if the acts were discretionary. Tallahatchie County also believes that this standard is applicable, though it argues the standard has been met.

¶ 15. In Harris v. McCray, 867 So.2d 188 (Miss.2003), this Court held:

A governmental entity and its employee enjoy immunity if there is exercise of ordinary care in the performance of a duty under a statute, ordinance or regulation. Miss.Code Ann. § 11 — 46—9(1)(b) (Rev.2002). On the other hand, a governmental entity and its employee enjoy immunity under Miss.Code Ann. § 11-46-9(l)(d) ‘[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty ... whether or not the discretion be abused.’

Id. at 189.

¶ 16. Here, both parties cite (directly or parenthetically) Brewer v. Burdette, 768 So.2d 920, 923 (Miss.2000), for the erroneous proposition that one must use ordinary care in performing a discretionary function to retain immunity. Unfortunately, Brewer cited L.W. v. McComb Separate School District, 754 So.2d 1136 (Miss.1999), for the proposition that an ordinary care standard applies to discretionary function immunity. This Court recognized in L.W. that the school’s conduct was of a discretionary nature. L.W., 754 So.2d at 1139—43 (emphasis added). However, this Court never found that the school officials were performing a discretionary function. Id. (emphasis added). Indeed, this Court actually found that the school officials in L.W. were performing a function required by statute and, therefore, properly analyzed the school’s actions under subsection (b) (which addresses acts or omissions while performing statutory duties), rather than subsection (d) (which addresses discretionary duties). Id. Subsection (b) clearly carries an ordinary care standard; subsection (d) does not. See id.

¶ 17. In Brewer, this Court misapplied the wording in L.W. by incorrectly applying the ordinary care standard to discretionary duties. In Harris, this Court held: “When an official is required to use his own judgment or discretion in performing a duty, that duty is discretionary.” Harris, 867 So.2d at 191. Miss. Code Ann. § 11 — 46—9(l)(d) exempts governmental entities from liability of a discretionary function or duty “whether or not the discretion be abused”. Therefore, ordinary care standard is not applicable to Miss.Code Ann. § ll-46-9(l)(d). Thus, the conduct in the case sub judice is immune under Miss.Code Ann. § 11 — 46— 9(l)(a), and Miss.Code Ann. § 11-46-9(l)(d) does not apply.

CONCLUSION

¶ 18. For the foregoing reasons, we affirm the judgment of the trial court.

¶ 19. AFFIRMED.

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

      . Though the trial court made no separate statement of facts, the order did state upon which facts summary judgment was.based. The facts will be stated in the light most favorable to Essie.

      . Essie testified in her deposition that, knowing that the judge was not at the office, she actually went directly from TCSD to his home. She then stated that the judge’s wife informed her that he was asleep and that she needed to go to his office, which Essie subsequently did.

      . The warrant, which calls for an arrest based on domestic violence pursuant to Miss.Code Ann. § 97-3-7(3), claims nothing other than telephone threats Robert made to Essie. However, a complaint filed in February of 2000 complains of similar conduct from Robert's family members and appears to indicate that some sort of physical confrontation took place between the two.

      . Deputy Sheriff Jimmie Gibbs did testify that he tried to contact Robert during the weekend to investigate the matter.

      . Essie also tried to assert a state law due process claim based upon Miss. Const. Art. 3, § 14. This claim was not specifically addressed in the summary judgment order. However, Essie has apparently waived any possible error as to such since she does not raise it on appeal.

      . The trial court found that TCSD was provided immunity through Miss.Code Ann. § 97-3-7(7), which provides immunity for the arrest and/or failure to arrest a suspect pursuant to § 97-3-7(3) (which will be covered very shortly). Seemingly fortunate for Essie, however, is the fact that § 97-3-7(7) was not enacted until a year after her complaint was filed, making it inapplicable to the case sub judice. See Miss.Code Ann. § 97-3-7.

      . Actually, under this section of her argument, Essie makes no reference to a code section, but only generally cites the Mississippi Tort Claims Act. However, Essie does allege that the defendants acted in reckless disregard for her safety and well being in her complaint.

      . Though this portion of the statute was cited, the trial court’s finding of immunity only rested on subsection (d) because the acts were discretionary.

      . Essie also asserted that the acts were ministerial and not discretionary. In describing a ministerial function, this Court has stated:
      [t]he most important criterion, is that [if] the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion, the act and discharge thereof is ministerial.

        Mississippi Dept. of Transp. v. Cargile, 847 So.2d 258, 267-68 (Miss.2003)(quoting Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935)). Essie fails to direct this Court’s attention to any statute which imposes a duty on the clerk or judge to deliver a warrant to TCSD. Therefore, her argument is without merit.

      . Compare Brewer, 768 So.2d at 922, with L.W., 754 So.2d at 1139-43.


author: COBB, Presiding Justice,

text:
    Grace CHAPEL v. Michael Anthony CHAPEL.
    No. 2002-CA-00794-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      Keith Roberts, Pascagoula, attorney for appellant.
    Appellee, pro se.
    Before WALLER and COBB, P.JJ., and GRAVES, J.
   COBB, Presiding Justice,

for the Court.

¶ 1. Michael Anthony Chapel filed for divorce from Grace Chapel in the Jackson County Chancery Court, and in May 1996, the chancellor denied the divorce, but awarded separate maintenance and custody of the two minor children to Grace. Michael, on active duty with the U.S. Navy at the time, subsequently established residency in Virginia, and in April 1997, he obtained a divorce there, although the divorce decree contained no determination of spousal support, equitable distribution, child custody or other such issues.

¶ 2. During the next five years, numer-_ ous motions were filed by both parties, alleging contempt, and seeking modifications and continuances. Hearings were set, continued, and conducted, all in the original case filed in the Jackson County Chancery Court. In August, 2000, the parties announced to the chancellor that they had reached agreement regarding child custody, support, distribution of property and all other matters before the court. However, the order which detailed the terms of their agreement was .not signed by the chancellor and filed until January 2001. The judgment modified the terms of the separate' maintenance agreement, including the division of the par-' ties’ property. Grace refused to sign as approving that judgment and she subsequently filed a M.R.C.P. 60(b)(1) motion for relief from the judgment on the grounds that the agreement was the product of fraud and misrepresentation. The chancellor denied the motion.

¶ 3. Aggrieved, Grace filed this timely appeal raising two issues: (1) does the Virginia divorce terminate the Mississippi separate maintenance action by removing subject matter jurisdiction, thus precluding modification after the divorce, and (2) are the issues decided in the May 1996 judgment of separate maintenance res ju-dicata and cannot be re-litigated in the divorce action. Finding no error in the chancellor’s judgment, we affirm.

FACTS

¶ 4. Michael and Grace were married in 1984, early in his career with the U.S. Navy. Two children were born of that union. For the first ten years of marriage, all seemed to go well, although Michael was away from home for long periods of time on sea duty. In late 1994, Michael requested, and Grace agreed, that they would jointly file for divorce on the ground of irreconcilable differences, in the Jackson County chancery court. However, Grace realized that she did not want a divorce, and when Michael returned from sea duty and learned that nothing had been done toward finalizing the divorce, he filed a new complaint for divorce on the grounds of cruel and inhuman treatment and alternatively, irreconcilable differences. Grace filed a motion for temporary custody and support, and subsequently answered the divorce complaint and filed a counterclaim for separate maintenance.

¶ 5. Following a hearing in May 1996, the chancellor found that Michael had not met the burden of proof for a divorce on cruel and inhuman treatment, and that Grace did not want a divorce and believed that the marriage could be reconciled, so the proof did not support granting a no-fault divorce. Instead, the chancellor awarded separate maintenance in the sum of $900 per month for Grace and the two minor children (then ages 7 and 3) and granted temporary custody to Grace after full consideration of the Albright factors. He also provided for certain specific financial needs of Grace and the children, and awarded Grace use and possession of the marital home. Michael’s motion to reconsider was denied on March 15, 1997.

¶ 6. In April 1997, Michael obtained a divorce in Virginia, on the ground of having lived separate and apart without any cohabitation and without interruption for a period of more than one year. Although Grace claimed to have no actual knowledge of this divorce action until after it was final, there was service of process by publication sufficient to obtain jurisdiction in Virginia. The Virginia divorce decree denied spousal support to Michael, reserved Grace’s right to spousal support and equitable distribution, and transferred matters relating to the custody, visitation and child support of the minor children to the Juvenile and Domestic Relations District Court of the City of Norfolk, Virginia.

¶ 7. In August, 2000, Grace and Michael agreed to a settlement of their various claims against one another in a hearing before the Mississippi chancellor, and the judgment from which this appeal is taken was entered on January 9, 2001. The chancellor denied Grace’s subsequent M.R.C.P.60 (b)(1) motion for relief on April 12, 2002. Aggrieved, Grace timely appealed. Concluding that there is no merit to her claims, we affirm the Jackson County Chancery Court.

ANALYSIS

¶ 8. This Court will not disturb a chancellor’s judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Townsend v. Townsend, 859 So.2d 370, 371-72 (Miss.2003) (quoting McBride v. Jones, 803 So.2d 1168, 1169 (Miss.2002)).

¶ 9. As a preliminary matter, we note that no brief from Michael Chapel is before this Court in this appeal. We have described the alternative actions which may be taken by the Court when an appellee has not filed a brief. May v. May, 297 So.2d 912 (Miss.1974). Recently we described the alternatives:

The first alternative is to take the appel-lees’ failure to file a brief as a confession of error and reverse. This should be done when the record is complicated or of large volume and “the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error.” May v. May, 297 So.2d 912, 913 (Miss.1974). The second alternative is to disregard the appellees’ error and affirm. This alternative should be used when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed.”

Miller v. Pannell, 815 So.2d 1117, 1119 (Miss.2002). Grace Chapel failed to “make out an apparent case of error,” and after examination of the record we conclude that there is ample ground upon which to affirm the chancellor’s judgment.

I. Does the Virginia divorce terminate the original Mississippi separate maintenance action by removing subject matter jurisdiction, thus precluding modification after the divorce?

¶ 10. The initial court action between Michael and Grace occurred in the Mississippi chancery court in 1995, when Michael filed for divorce, and Grace counterclaimed for separate maintenance. The chancellor denied Michael’s divorce and granted separate maintenance to Grace in 1996, and at that time addressed custody, monetary support for Grace and the children, and other property matters. Michael, who was living in Virginia at the time, then obtained a divorce in the Virginia court in 1997, but the Virginia court order did not include any adjudication of spousal support, child support, equitable distribution, child custody nor any other matters beyond the divorce itself. Subsequent to the Virginia divorce, the Mississippi chancellor entered two judgments modifying the terms of the original judgment, after conducting hearings and obtaining the consent of Michael and Grace. Grace now argues that the chancellor did not have subject matter jurisdiction over the action after Virginia entered the final divorce decree, basing her argument on the premise that a final divorce decree ends separate maintenance.

¶ 11. Separate maintenance jurisprudence has evolved interestingly through the years. In 1874, this Court established that it was a remedy, within the jurisdiction of the chancery court “to compel the husband to support the wife until he shall restore her to his bed and board.” Garland v. Garland, 50 Miss. 694, 715 (1874). The Court ruled that a subsequent divorce was a material change to warrant modification of a separate maintenance decree. Landrum v. Landrum, 498 So.2d 1229, 1230 (Miss.1986). In a modern case which is very similar to the present case, this Court held that a wife’s claim for separate maintenance was no longer proper since a divorce had been previously granted, but went on to affirm the trial court’s judgment of alimony because the separate maintenance action was properly converted to, and tried as, a claim for alimony. Weiss v. Weiss, 579 So.2d 539, 541-42 (Miss.1991). However, given that neither party in the present case made formal objections to the chancellor’s authority to modify the original separate maintenance judgment after the Virginia divorce was granted, it is not necessary for the Court to reach the issue of whether a divorce decree, particularly a foreign divorce decree, terminates a domestic court’s order of separate maintenance. A review of our holdings in Landrum and Weiss reveals that this Court must affirm the chancellor’s rulings on the law in the present situation.

¶ 12. In Landrum, this Court found no merit to the appellant’s assertion that an earlier decree of separate maintenance barred relitigation of issues presented in a new suit for divorce. This Court held that a divorce, obtained subsequent to a separate maintenance decree, was proof of a material change in circumstances sufficient to warrant a modification of amounts awarded in the separate maintenance decree. Landrum, 498 So.2d at 1230.

¶ 13. In the present case, the chancellor entered the original separate maintenance judgment on May 31, 1996. Virginia entered the final divorce decree on April 25, 1997. The chancellor entered judgments modifying the original judgment on August 7, 1998 and January 9, 2001 at the petition of Grace and Michael. Similar to Landrum, the chancellor modified the judgment at the request of the parties and subsequent to the entrance of the divorce. The entry of the divorce decree did not terminate the chancellor’s authority to modify the existing judgment which provided for support for Grace and the two children, possession- of the marital home and custody of the children. Once petitioned by the parties, the divorce qualified as a material change in circumstances subsequent to the original judgment, which vested the chancellor with the authority to modify it.

¶ 14. In Weiss, the husband filed for a divorce in Louisiana in November 1988. Weiss, 579 So.2d at 540. In December 1988, the wife filed an original complaint for separate maintenance in Mississippi, and she never formally amended her complaint. In June 1989, Louisiana granted the divorce, reserving the wife’s right to alimony. Mississippi subsequently granted the wife equitable distribution of the marital assets and alimony. “Neither party contested the validity of the Louisiana divorce decree. Also, both parties conceded the chancery court’s authority to divide their property rights.” Id. Also in Weiss the Court considered (1) whether, after entrance of a foreign divorce decree, a Mississippi court had jurisdiction to determine alimony and (2) whether a court could properly award alimony when the complaint was for separate maintenance and not alimony. Id. at 540-41. The Court answered both inquiries in the affirmative, holding that “there is nothing inherent in the substance of a claim for separate maintenance to prevent parties from implicitly or tacitly amending the complaint at trial to become a claim for alimony.” Id. at 541.

¶ 15. Further, the Court noted that the foreign divorce decree reserved the issue and that the parties met Mississippi’s statutory requirements for personal jurisdiction. Id. at 540-41. Based on these facts, the Court held that the chancery court’s exercise of jurisdiction was proper. Id. at 541. Today we reach the same conclusion: the Jackson County chancery court continues to have jurisdiction in what originally was the separate maintenance case, but which converted to one for alimony and other claims compatible with divorce actions, after the date of the foreign divorce.

II. Are the awards to Grace Chapel in the original separate maintenance action now res judicata, thus precluding modification?

¶ 16. In deciding this issue, this Court noted in Weiss that the wife’s action could be converted to a claim for alimony, without a formal amendment, so long as there was no bar. The Court further held that there was no inherent bar to the conversion of a claim from separate maintenance to one for alimony and that the parties waived any procedural bar. Id. at 541-43. Regarding the inherent bar, in Weiss we noted that alimony and separate maintenance were the same thing in different situations, and therefore there was “nothing inherent in the substance of the claims to prevent the separate maintenance action from being converted to one for alimony,” without the necessity of amending to the pleadings. Id. at 542.

¶ 17. Regarding the procedural bar, the Court noted that both the Mississippi Rules of Civil Procedure and Title 93 of the Mississippi Code govern divorce actions in chancery court, and that M.R.C.P. 15(b) was directly relevant to the issue presented by the parties. Id. In relevant part, M.R.C.P. 15(b) provides “when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” “A finding that an issue was tried by implied consent depends upon whether the parties recognized that a new issue was being litigated at trial.” Setser v. Piazza, 644 So.2d 1211, 1217 (Miss.1994). In holding that the parties had consented to the chancery court’s trial of alimony, the Court noted that the parties stipulated that the issues of alimony had been reserved for the lower court and that the husband put on evidence of fault as a standard for awarding alimony, without any objections. Weiss, 579 So.2d at 542-43.

¶ 18. Similar to the parties in Weiss, Grace and Michael manifested their consent to the chancellor’s modification of the original judgment and division of the marital property on numerous occasions during the years covered in this appeal. There was no surprise or prejudice occasioned as a result of the judge’s decision to grant the agreed request of the parties. Although the parties’ pleadings were for the contempt of the original judgment, the parties consented to the chancellor’s authority to modify and decide issues not resolved by the Virginia divorce, including division of the marital property.

¶ 19. Based on the Court’s holdings in Landrum and Weiss, we conclude that the chancellor had authority to modify the original separate maintenance agreement subsequent to the Virginia divorce, based on a subsequent material and substantial change in circumstances. The consent of the parties gave the chancellor the authority and jurisdiction to adjudicate issues relating to division of the marital property, without requiring the parties to amend their pleadings.

¶ 20. The foreign divorce decree did not terminate the Mississippi chancery court’s jurisdiction over the matter, nor were the parties required to file a separate pleading for alimony or division of property once the parties consented to the chancellor’s authority to rule on such matters. We affirm the chancellor’s modification of the separate maintenance judgment and denial of Grace’s motion for relief from judgment.

CONCLUSION

¶21. The Virginia divorce decree did not terminate the chancery court’s subject matter jurisdiction. Grace has not presented any evidence that the chancellor abused his discretion or that he was manifestly wrong. Therefore, we affirm his judgment.

¶ 22. AFFIRMED.

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

      . The record reveals that no formal amendments were made to change the term "separate maintenance” in the continuing Mississippi action, either in existing documents or those filed subsequent to the Virginia divorce. In this opinion we use the term as it was used by the trial court and parties during the course of the litigation. As this Court said in Weiss v. Weiss, 579 So.2d 539, 542 (Miss.1991), in a very similar set of facts and circumstances, there is nothing inherent in the substance of the claims to prevent the separate maintenance action from being converted to one for alimony or support. See discussion infra.

      . Based on the Court's holding in Landrum. and Weiss, some commentators have suggested, under Mississippi law, that the onset of reconciliation or the entrance of a divorce decree renders a separate maintenance order ineffective. See Hand, Mississippi Divorce, alimony & Child Custody § 2-12 to § 2-13 (4th ed.1996); Jennings et, al., Mississippi Divorce Practice 25-26 (Professional Education Systems, Inc.1988).


author: SMITH, Chief Justice, COBB, Presiding Justice,

text:
    Howard Clayborne McDONALD, Jr. v. Rosemary Sheffield McDONALD.
    Nos. 1999-CT-00848-SCT, 1999-CT-01259-SCT, 1999-CT-01384-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.
    Pro Se, attorney for appellant.
    Richard L. Jones, Jackson, attorney for appellee.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice,

for the Court.

¶ 1. This case is before the Court on the issues of child custody and contempt. Howard Clayborne McDonald, Jr. argued that the special chancellor presiding in this case erred in changing custody of his two youngest children from him to.his ex-wife, and in holding him in contempt. The Court of Appeals affirmed the judgment of the special chancellor. McDonald v. McDonald, 850 So.2d 1182 (Miss.Ct.App.2002). We granted certiorari and after due consideration, we affirm the Court of Appeals and the chancellor.

FACTS

¶ 2. When Howard McDonald was granted a divorce from Rosemary Sheffield McDonald in April of 1998, the Lee County Chancery Court awarded him custody of their two younger daughters, and Rosemary received custody of their oldest daughter. Both parents were granted reasonable visitation, but the chancery court order prohibited visitation in the presence of anyone with whom Rosemary was having an affair. Five months later, Rosemary filed for modification of the final decree, stating that Howard had violated the court’s visitation order. Due to the recusal of all three of the Lee County chancellors, Special Chancellor William L. Griffin, Jr., was appointed to preside at the hearing on this matter, and he modified the divorce decree to establish more specific terms for visitation. His order, entered April 14, 1999, was to be temporary , and from that order Howard filed his first appeal, in case no. 1999-CA-848.

¶ 3. In May 1999 Rosemary filed a motion for contempt against Howard, saying that he had once again interfered with her visitation rights. After a hearing Howard was found in contempt, ordered to pay $1500 in attorney fees, and also ordered to immediately turn over the two younger daughters to Rosemary for extended visitation with her until August 1999. The special chancellor also scheduled a hearing at the end of the visitation period, to review the visitation/custody status. Aggrieved, Howard filed his second appeal, in case no. 1999-CA-1259.

¶ 4. In July 1999, Howard McDonald filed a suit in federal district court against the special chancellor and others. That suit notwithstanding, the chancery hearing proceeded on August 3, 1999, and the special chancellor entered an order granting temporary custody of the children to Rosemary, ordering Howard to pay child support, and setting a visitation schedule. Howard then filed his third appeal, no. 1999-CA-1384. The appeals were consolidated and assigned to the Court of Appeals. The Court of Appeals affirmed, finding that the special chancellor had proper legal authority to act in this case; that an order to which Howard agreed during a hearing was properly entered, even if he subsequently refused to sign the order; that the chancery clerk and the chancery court had properly computed the appeal costs; that the finding of contempt against Howard was justified by the evidence; and that there was no error in changing custody of the children temporarily by order of August 11, 1999.

¶ 5. Aggrieved, Howard McDonald petitioned for certiorari in propria persona and this Court granted certiorari.

¶ 6. After thorough review and consideration, we affirm the Court of Appeals in all respects.

ANALYSIS

¶ 7. The following language appears in the special chancellor’s decision:

The Court, upon receipt of the D.H.S. report and on the motion of either party, may schedule a hearing for the limited purpose of addressing any custody issues which might be raised by the D.H.S. report and which are contrary to today’s temporary order. If the D.H.S. report and its recommendations are consistent with today’s temporary order, then no hearing will be scheduled.

The chancellor also stated in the decision that “[t]he [c]ourt, therefore, makes the following temporary ruling with regard to child support, visitation and the custody of those minor children ...” The chancellor’s intention was clearly to determine custody temporarily until he could resume the proceedings with a full hearing on the merits pertaining to permanent custody of the children and other matters that are still before the court. Therefore, we do not have jurisdiction to hear the appeal. The following is a more complete excerpt supporting this interpretation:

This Court is of the opinion that pending a resolution of the United States District Court action with regard to William L. Griffin, Junior, all matters now pending before the Court in this cause should be held in abeyance.
It is the ruling of this Court that out of an abundance of caution and pending a resolution with regard to William L. Griffin, Junior, of that United States District Court action heretofore filed by Howard Clayborne McDonald, Junior, all matters pending before the Court will be held in abeyance.
There will be no hearing today; however, there are two children before the Court whose future custody and support must be, at least, temporarily addressed pending the resolution of the United States District Court action.

The following sentence from the chancellor’s opinion is crucial: “The Court, upon receipt of the D.H.S. report and on the motion of either party, may schedule a hearing for the limited purpose of addressing any custody issues which might be raised by the D.H.S. report and which are contrary to today’s temporary order.” (emphasis added). The chancellor then continued with “If the D.H.S. report and its recommendations are consistent with today’s temporary order, then no hearing will be scheduled.” We find that the “hearing” referred to in the second sentence refers to the type of “hearing” discussed in the first sentence. The chancellor’s statements here do not overrule his earlier statement that the proceedings, including a full hearing on the merits with regard to permanent custody will be held when the federal district court matter has been resolved.

¶ 8. The Court of Appeals was correct in its assertion that “[t]he order invited further motions to address custody and support issues. The impediment of the then-pending federal suit against the special chancellor has been removed. We find nothing to review about this explicitly temporary order entered three years ago. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (appellate review of temporary orders is improper.)” McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss.Ct.App.2002).

¶ 9. Furthermore, the Court of Appeals also ruled that it found “no procedural irregularity in the hearing on the temporary order.... The special chancellor made appropriate findings for why he was temporarily changing custody, including Howard McDonald’s interference with his former wife’s visitation with the children who were in his custody.” Id.

¶ 10. The evidence in the record supports the contention that the change of custody was intended to be temporary until the trial court could hold a full hearing on the merits after the litigation pending in federal district court was over. For this reason, the order was not final and permanent, and this Court does not have jurisdiction to review the change of custody.

¶ 11. We have carefully considered the remaining assignments of error and find that they are without merit. We affirm the judgments of the Court of Appeals and the trial court.

¶ 12. AFFIRMED.

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

COBB, Presiding Justice,

Dissenting:

¶ 13. This case is a consolidation of three appeals by Howard McDonald, Jr. The majority determined that this Court lacks jurisdiction because the third appeal involved an order for temporary child custody. There are several reasons why I respectfully dissent. First, there are three orders on three different dates appealed from which involve child custody and visitation. The first order modified restrictions that were initially placed on Rosemary’s visitation rights; the second order found Howard in contempt for interfering with visitation rights; and the third order, without the benefit of a hearing on the merits, or an emergency situation, modified the existing “permanent” custody granted to Howard, by stating that even though there would be no hearing held, he was “temporarily” modifying custody. There is no issue that the first two orders are appealable, and in my view, so is the third. As we have stated, “[i]t is often said that no child custody order is permanent. Technically, this is correct because custody is always subject to modification in the best interest of the child.” Blevins v. Bardwell, 784 So.2d 166, 170 (Miss.2001). Custody and visitation orders are routinely appealed despite their modifiable, thus temporary, nature.

¶ 14. From the record, it appears that the chancellor had no intention of conducting a hearing on the merits of the custody modification, thus the temporary custody was actually permanent in nature. In his bench ruling after the August 3 trial, the chancellor made the following statements:

There will be no hearing today; however, there are two children before the Court whose future custody and support must be, at least, temporarily addressed pending the resolution of the United States District Court action.
Until further order of this Court, the temporary custody of Leah and Carie McDonald, two of the minor children of the parties, is granted to Rosemary McDonald ...
The Court, upon the receipt of the D.H.S. report and upon the motion of either party, may schedule a hearing for the limited purpose of addressing any custody issues which might be raised by the D.H.S. report and which are contrary to today’s temporary order. If the D.H.S. report and its recommendations are consistent with today’s temporary order, then no hearing will be scheduled.

Thus, unless the D.H.S. report was contrary to his ruling and convinced the chancellor that he had to again modify custody, the decision to modify custody was permanent and without a hearing. Additionally, the chancellor stated:

In fairness, particularly, to Mr. McDonald, the Court may, upon the motion of either party and after Mr. McDonald’s full compliance with Chancery Court Rule 8.05, schedule a hearing for the limited purpose of addressing the issue of child support.

Based on this language, it is reasonable to believe that the chancellor had no intention of scheduling a hearing base on the issue of custody modification. The fact that three years has elapsed without a hearing since the August 16 appeal from this order supports this conclusion.

¶ 15. The chancellor chose not to hold a hearing when he modified the previously awarded permanent custody of the children. The fact that the chancellor termed his modification of custody “temporary,” in my view in no way relieves him of his responsibility to abide by Mississippi law, particularly in this non-emergency setting. “When a decree of custody is to be made or modified in substantial or major aspects, a proper notice and opportunity to be heard must be given to the adverse party.” Gordon v. Gordon, 196 Miss. 476, 17 So.2d 191 (1944). Although both parties were present for a hearing, the chancellor allowed no testimony or evidence to be submitted, but simply modified custody, albeit “temporarily.”

¶ 16. It is well settled Mississippi law that to modify child custody, a non-custodial party must prove (1) there has been a substantial change in the circumstances affecting the child; (2) the change adversely affects the children’s welfare; and (3) a change in custody is in the best interest of the child. Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997); Thompson v. Thompson, 799 So.2d 919, 922 (Miss.Ct.App.2001). In the present case, there was no hearing held, so in no way were the required showings made. The majority opinion quotes the Court of Appeals, stating that the chancellor made appropriate findings for why he was changing custody. The only findings made by the chancellor were in the previous hearing held in June, 1999, in conjunction with a request for modification of visitation, when the chancellor specifically stated “what I am granting is extended visitation. I am not touching custody now.”

¶ 17. There is nothing in the record that supports that there was a hearing held on the merits concerning custody modification, thus Howard’s right to a hearing were not honored. Additionally, there is every reason to believe that the “temporary” custody order was in actuality, as permanent as a modifiable custody order may be. Therefore, I respectfully dissent.

EASLEY AND DICKINSON, JJ„ JOIN THIS OPINION.

      . Chancellor Griffin explained that the entry of a final order would end his appointment as special judge, thus it would be a temporary order, to become permanent in six months if no problems arose.

      . The federal suit was dismissed as frivolous. McDonald v. Griffin, 1:99CV226-D-D, 1999 WL 33537119 (N.D.Miss. Oct.4, 1999), aff'd, 228 F.3d 409 (5th Cir.2000) (table), cert. den., 531 U.S. 1150, 121 S.Ct. 1093, 148 L.Ed.2d 966 (2001).

      . This suit was dismissed two months later, but no hearing on custody was scheduled.

      . Prior to the chancellor stating that there would be no hearing, he granted D.H.S.'s petition to be excused from performing a home study, and ask that he be informed who would be doing the study and when. Howard offered that the study had already been completed, and that the person who performed the study was in court ready to testify about it. The chancellor refused to hear any testimony.

      . The bench ruling of August 3, 1999, stated: "There will be no hearing today.”

      . In an earlier hearing when the chancellor modified visitation, he admitted that he was doing so on a temporary basis so that he would not lose jurisdiction over the case, having been appointed as a special judge to serve until the conclusion of this case.


text:
    Derrick WILLIAMS v. Lisa N. FARMER.
    No. 2002-CA-02094-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      Michael Elias Winfield, Attorney for Appellant.
    Omar Lamont Nelson, Dennis C. Sweet, III, Jackson, Attorneys for Appellee.
    Before WALLER, P.J., CARLSON and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. This is a case in which a father seeks to recover half the proceeds paid in settlement of the claim for the wrongful death of his illegitimate daughter. Our decision is controlled by statute, which precludes recovery by the father for the death of his illegitimate child.

¶ 2. On February 14, 1996, Derrick Williams filed a complaint against Lisa N. Farmer, seeking to establish himself as an heir of Lisa’s unborn daughter, Asiah Farmer. Williams claimed he was entitled to one-half of the funds Farmer received from the wrongful death of Asiah, his illegitimate unborn child. On November 25, 2002, the chancellor entered an order ruling that Williams and his kindred could not inherit from Asiah because Williams had failed to openly treat Asiah as his child and had refused or neglected to provide support. From this order, Williams appealed and upon consideration, we affirm.

STATEMENT OF FACTS

¶ 3. In 1993, Farmer and Williams had intimate relations resulting in Farmer becoming pregnant. Farmer contacted Williams to inform him that she was pregnant. Farmer alleges Williams refused to have contact with her or acknowledge that he was the father of their unborn child, Asiah.

¶ 4. In December 1993, Farmer was involved in an automobile accident with Tommy McAlpin, while he was working for Thames Motor Company. Subsequent to the accident, Asiah died in útero and the death certificate was dated January 16, 1994.

¶ 5. In June 1994, Farmer filed suit against Thames Motor Company, McAlpin and others for the injuries Farmer sustained and for the wrongful death of Asiah. Farmer settled her individual claim against said defendants for $150,000.00 and the claim for the wrongful death of Asiah for $150,000.00.

¶ 6. Farmer never informed Williams of said claim until documents pertaining to the release of the claim required his signature. Williams signed a release for the purpose of Farmer settling the wrongful death claims against the defendants. At some point, Williams changed his mind and on February 14, 1996, Williams filed suit against Farmer for one-half of the settlement proceeds and on March 11, 1996, a motion to join Christopher and Eric Davis, Williams’s children was filed.

ANALYSIS

¶ 7. The only issues presented to this Court are (1) whether the requirements of Miss.Code Ann. § 91 — 1—15(3)(d)(i) apply in circumstances where the illegitimate child is a fetus; and (2) whether Farmer should be equitably estopped from asserting Williams and his kindred are not wrongful death beneficiaries of Asiah Farmer. Because the first issue is dispositive of the case, we will not address the second.

¶ 8. The trial court applied Mississippi Code Ann. § 91-1-15 (Rev.1994), which addresses the questions presented to us:

(3) An illegitimate shall inherit from and through the illegitimate’s natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
* * *
(d) The natural father of an illegitimate and his kindred shall not inherit:
(i) From and through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child.

(Emphasis added).

a. WHETHER SECTION 91-1-15(3)(D)(i) OF THE MISSISSIPPI CODE IS APPLICABLE IN CIRCUMSTANCES WHERE THE ILLEGITIMATE CHILD IS A FETUS.

¶ 9. Williams argues that applying § 91-1 — 15(3)(d)(i) is in direct contravention of the legislative intent in creating Miss.Code Ann. § 11-7-13. (2003) which states in pertinent part:

if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death.... The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

(Emphasis added).

¶ 10. This Court has held that “in construing statutes, all statutes in pari materia are taken into consideration and the legislative intent is deduced from the consideration as a whole” Wilbourn v. Hobson, 608 So.2d 1187, 1200 (Miss.1992) (citing Allgood v. Bradford, 473 So.2d 402, 411 (Miss.1985)). It is clear from Miss. Code Ann. § 11-7-13 that in order for a father to be entitled to proceeds from a wrongful death action for an illegitimate child, he must establish his right to inherit from the child under Miss.Code Ann. § 91-1-15, which includes the § 91 — 1— 15(3)(d)(i) requirements. Therefore, Williams’s argument is without merit.

¶ 11. In 66 Federal Credit Union v. Tucker 853 So.2d 104 (Miss.2003), this Court held that Mississippi’s wrongful death statute created a cause of action for the death of a fetus who is “quick” in the womb. Id. at 112. The question before us now is whether Williams is required to comply with the requirements of Miss. Code Ann. § 91—1—15(3)(d)(I) in order to share in the settlement proceeds from the wrongful death claim of Asiah.

¶ 12. Williams contends that it is virtually impossible to comply with the requirements of the statute where the decedent is a fetus. He contends the he was never “afforded the opportunity to take Asiah to the zoo or to the park as she never had the benefit of breathing her first breath.” He further claims that he happily agreed that Asiah was his child, and even offered financial assistance during the maternity stage, but was refused. Williams also states he was discouraged from visiting Farmer by threat from her family members. However, there is no evidence in the record that substantiates these allegations.

¶ 13. Citing Bullock v. Thomas, 659 So.2d 574, 576 (Miss.1995), Farmer correctly contends that Williams has the burden of demonstrating he openly treated the child as his own and did not refuse or neglect to support her. Farmer further contends that the overwhelming and credible evidence of William’s lack of involvement or interest in Asiah demonstrates his refusal and neglect to support his child.

¶ 14. The trial court found that, although Williams was the natural father of Asiah, that alone does not automatically entitle him or his children to inherit from her. The trial court, citing Estate of Patterson v. Patterson, 798 So.2d 347, 350 (Miss.2001), and Bullock v. Thomas, 659 So.2d 574, 577 (Miss.1995), stated that Williams’ total lack of concern and indifference demonstrated his refusal and neglect to support the child. The trial court properly concluded that Williams and his children could not inherit from or through Asiah.

¶ 15. Williams argues that the cases the trial court used in support of its judgment are easily distinguished from the case sub judice. Therefore, a brief look at Estate of Patterson v. Patterson, 798 So.2d 347, 350 (Miss.2001) and Bullock v. Thomas, 659 So.2d 574, 577 (Miss.1995) is warranted.

¶ 16. In Patterson, an action was brought by a father to inherit from his illegitimate, three-year old son who died in an automobile accident. This Court held that Miss.Code Ann. § 11-7-13 clearly provides for inheritance from illegitimates, but that the right is tied to Miss.Code Ann. § 91 — 1—15(3)(d)(i). Patterson, 798 So.2d at 349. The father was not aware when his son was born because he did not communicate with the mother after she informed him that she was pregnant. Id. at 348. The father never provided support for the birth or medical expenses, food or clothing nor did he contribute toward his son’s funeral expenses. Id. This Court concluded that “[t]his case is a classic example of conduct the statutes and case law seek to prevent. A father should not be allowed to receive a windfall simply because he impregnated the child’s mother. [The father] refused to openly treat his son [ ] as his own or to comply with his duty to provide essential support, until it appeared he might receive a sizable inheritance.” Id. at 351.

¶ 17. In Bullock, it was determined that Bullock was the father but he failed to prove he openly treated the deceased as his child. Bullock, 659 So.2d at 575. It was determined “that Bullock’s time with the child was attributable to his desire to be with [the mother], more so than his desire to be with [the child] himself’ and that was evident in that the mother “was almost always present during the times that [the child] and Bullock saw one another.” Id. at 577. Also, this Court found instructive the fact that Bullock did not attend the child’s funeral. Id. This Court held that, even though Bullock proved that he did not refuse or neglect to support the child, he failed to demonstrate that he openly treated the child as his own and therefore was denied the right to inherit.

¶ 18. Williams argues that these cases are distinguishable from the case sub judi-ce in that neither case dealt with the issue of an illegitimate unborn child.

¶ 19. This is a case of first impression. Well-settled principles of statutory interpretation require us to ascertain the legislative intent from the language of the act and to discern and give effect to that intent. City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992).

¶ 20. It is clear from the language of the statute that fathers are entitled to inherit from their illegitimate children upon showing that the father openly treated the child as his own and has not refused or neglected to support the child. The statute clearly governs situations where the illegitimate child has actually been born and lived for a period of time. However, Williams argues that it is impossible to meet these requirements when the child is an unborn child.

¶ 21. The Appellate Court of Illinois has addressed this issue in the case of In re Estate of Poole 328 Ill.App.3d 964, 263 Ill.Dec. 129, 767 N.E.2d 855 (2002), aff'd, 207 Ill.2d 393, 278 Ill.Dec. 532, 799 N.E.2d 250 (2003). There, the issue before the court was whether a father of a stillborn fetus was entitled to letters of administration of estate in preference to the maternal grandmother. The grandmother alleged the father was not an “eligible parent” under a statute governing inheritance from an illegitimate child. 767 N.E.2d at 859.

¶ 22. The Illinois court has addressed the issue of whether the father was an eligible parent and was entitled to inherit from his illegitimate child who died in útero. The Illinois statute in issue states: “As used in this section, ‘eligible parent’ means a parent of the decedent who, during the decedent’s lifetime, acknowledged the decedent as the parent’s child, established a parental relationship with the decedent, and supported the decedent as the parent’s child.” Id. (emphasis added). The grandmother argued that the father was not an “eligible parent” because the decedent did not have a lifetime so the father could not have acknowledged the decedent as his child, develop a relationship or support the decedent as his child. Id. at 859-60. The court stated: “Certainly, the biological father could acknowledge the fetus as his child during the term of the pregnancy.” Id. at 860. The court further concluded that

a biological father could acknowledge the viable fetus as his own, establish a relationship with it, and support the fetus through his support of the mother. Conceptually, if the biological father has done these things, he would be as eligible as the mother to inherit from an illegitimate viable fetus.

Id. at 862. The court observed that it appeared the father could qualify as an eligible parent because he resided with the mother before and throughout the pregnancy, provided her with financial and emotional support, and through her, to the unborn child and he held himself out as the father of the unborn child. Id. at 860.

¶ 23. The requirements of an eligible parent under the Illinois statute are similar to the requirements under Miss. Code Ann. § 91 — 1—15(3)(d)(i). The Illinois statute requires a parent to acknowledge the decedent as the parent’s child, establish a parental relationship with the decedent and support the decedent as the parent’s child. Similarly, in order for a father to inherit from an illegitimate child in Mississippi the father must demonstrate that he openly treated the child as his own and that he did not refuse or neglect to support the child.

¶24. It strikes us as inescapable logic that, since this Court, in 66 Federal Credit Union, established that there is a wrongful death claim for an unborn child, then the requirements of Miss.Code Ann. § 91 — 1—15(3)(d)(i) should apply under the circumstances.

¶ 25. This Court has held that the standard of review “in ruling on a chancellor’s determination on the issue of whether a father has openly treated an illegitimate child as his own ‘may only be treated as a finding of fact....’ ” Patterson, 798 So.2d at 349 (citation omitted). “This finding will only be reversed if manifestly erroneous or unsupported by substantial evidence in the record.” Id.

¶ 26. In the case sub judice, it is uncontested that Williams is the father of Asiah. The trial court found that Williams knew that Farmer was pregnant with his child. Williams had no contact with Farmer from 1993 until 1995. Williams did not contribute any support, financial or otherwise to Farmer during her pregnancy or thereafter. Williams did not seek to be present for her birth. Williams did not know of the death of Asiah for approximately two years because he made no effort to be a father to her. The trial court concluded that “under the facts of this case, it cannot be said that Williams suffered any loss as the result of the demise of Asiah. Any part of the settlement for the death of Asiah received by Williams and his kindred could only be termed a windfall and unjust enrichment.”

¶ 27. We find the determination by the trial court to be exactly correct.

CONCLUSION

¶ 28. The wrongful death statute creates a cause of action for the death of a fetus who is “quick” in the womb. This Court finds that Miss.Code Ann. § 91 — 1— 15(3)(d)(i) is applicable in circumstances where the wrongful death claim is for the death of an unborn child, and the trial court’s order is affirmed.

¶ 29. AFFIRMED.

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

      . The legislature, in the 2004 regular session, passed House Bill 352 amending § 11-7-13 to include the death of an unborn quick child in the wrongful death statute.


author: GRAVES, Justice,

text:
    JANSSEN PHARMACEUTICA, INC. and Johnson & Johnson v. Izola SCOTT, et al.
    No. 2003-IA-00287-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      Donna Brown Jacobs, Christy D. Jones, John C. Henegan, Jackson, Robert L. Johnson, III, Natchez, attorneys for appellants.
    Levi Boone, III, Santa Monica, attorney for appellees.
    Before WALLER and COBB, P.JJ., and GRAVES, J.
   GRAVES, Justice,

for the Court.

¶ 1. Sixty-five plaintiffs filed suit in Holmes County Circuit Court for injuries allegedly sustained from using the prescription drug Propulsid. Two of those plaintiffs were from Holmes County, with the rest residing in 23 counties of Mississippi’s 82 counties. The suit was filed against the makers of Propulsid, Janssen Pharmaceutica, Inc., which is a corporation based in New Jersey; Janssen’s New Jersey-based parent corporation, Johnson & Johnson (collectively, “Janssen”); the estate of Dr. Michael Braden, who allegedly prescribed Propulsid to at least one of the named plaintiffs; and “other unknown defendants,” a place marker for the other prescribing physicians.

¶ 2. The plaintiffs (“Scott”) included multiple causes of action in their suit against Janssen, including claims for “strict product liability,” negligence, breach of implied warranty; and a claim of negligent misrepresentation. Scott also included five causes of action against Dr. Braden and the unnamed doctors; first, for medical malpractice; second, an allegation that they failed to communicate to the patient, or negligently communicated, the dangers of Propulsid; third, a failure to withdraw the prescriptions or to warn the users; fourth, that the prescribing physicians used inadequate warnings; and last, that there was negligent monitoring of the usage of Propulsid.

¶ 3. Janssen contended that the plaintiffs’ claims were improperly joined. Holmes County Circuit Judge Jannie M. Lewis denied Janssen’s motion to sever the plaintiffs’ claims and to transfer venue, but certified her order for interlocutory appeal to this Court on those issues. In turn, we granted permission for this interlocutory appeal. See M.R.A.P. 5. We considered this case in context of the other Janssen cases pending before this Court, but declined to consolidate the cases. Our recent decision in Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004), fully controls the case at hand. Accordingly, we reverse and remand for the trial court to sever the claims against the physician defendants from the proceedings and to transfer the cases to proper venues.

DISCUSSION

¶ 4. Our standard of review regarding the joinder of plaintiffs and the correctness of venue is to determine if the trial court abused its discretion. Armond, 866 So.2d at 1097. A plaintiffs choice of venue should not be disturbed unless there is no credible evidence supporting the factual basis for the claim of venue. Burgess v. Lucky, 674 So.2d 506, 510 (Miss.1996); see also Armond, 866 So.2d at 1098 (“plaintiffs choice of a forum should not be disturbed except for weighty reasons”). As in Armond, this case turns on the proper application of M.R.C.P. 20, our permissive joinder rule, and thus the other issues raised by the parties need not be considered. Armond, 866 So.2d at 1094.

¶ 5. It is imperative we strike a balance in our jurisprudence between the need for fairness to the parties and judicial economy. In the end, the benefits of efficiency must never be purchased at the cost of fairness. Armond, 866 So.2d at 1100 (quoting Malcolm v. Nat’l Gypsum Co., 995 F.2d 346, 350 (2d Cir.1993)). For “it is possible to go too far in the interests of expediency and to sacrifice basic fairness in the process.” Malcolm, 995 F.2d at 354. The discretion to consolidate cases is restrained by our paramount concern for a fair and impartial trial for all parties, plaintiffs and defendants. Armond, 866 So.2d at 1100. There is an innate danger in asking jurors to assimilate vast amounts of information against a variety of defendants and then sort through that information to find what bits of it apply to which defendant.

¶ 6. Here, a jury might well be overwhelmed with sixty-five separate fact patterns that are offered to prove medical malpractice. That is why we ordered the claims against the defendant physicians severed in Armond. 866 So.2d at 1102. The two prongs of Rule 20 must always be met. While it does not rise to the level of a distinct factor in the joinder analysis, an important consideration is if the joinder will result in undue prejudice to the parties.

CONCLUSION

¶ 7. Because this ease mirrors Armond, the claims against the estate of Dr. Braden and all other placeholder slots for defendant doctors must be severed. The order of the trial court is reversed, and this case is remanded for the severance of all claims against defendants who have no connection with Scott. This includes all physicians who have not prescribed Propulsid to Scott. We also instruct the trial court to transfer the plaintiffs’ cases to those jurisdictions in which each plaintiff could have brought his or her claims without reliance on another of the improperly joined plaintiffs.

¶ 8. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . There was originally another plaintiff, a resident of Tennessee, who was voluntarily dismissed and is not a party to this appeal.