author: PITTMAN, C.J.,

text:
    Charles L. DONALDSON v. COVINGTON COUNTY, Mississippi.
    No. 2001-CA-01446-SCT.
    Supreme Court of Mississippi.
    March 27, 2003.
    Rehearing Denied June 5, 2003.

      Robin L. Roberts, Hattiesburg, Eugene Coursey Tullos, attorneys for appellant.
    Robert 0. Allen, Sally Burchfield Doty,' Brookhaven, attorneys for appellee.
    Before PITTMAN, C.J., WALLER and CARLSON, JJ.
   PITTMAN, C.J.,

for the Court.

¶ 1. Charles L. Donaldson was involved in car accident while driving on old Highway 49, a county-maintained road, in Cov-ington County. Donaldson sued Coving-ton County under the Mississippi Tort Claims Act (“MTCA”), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002), alleging that the county knew the road was unreasonably dangerous and failed to warn motorists of the danger. After a bench trial, the circuit court entered judgment for the county holding that the county exercised ordinary care in performing its duty to warn motorists of the curve. Donaldson appeals.

FACTS

¶ 2. On a rainy January 12, 1998, Charles L. Donaldson was involved in a one-vehicle accident on the county-maintained Old Highway 49 (“Highway 49”) in Covington County. At the time, Donaldson was hauling a backhoe using his employer’s van. The stretch of road where the accident occurred presents a significant curve and a railroad intersection.

¶ 3. Donaldson alleged that the county knew of the dangerous road conditions and that the county’s failure to warn motorists was the proximate cause of his accident. Likewise, he claimed, by failing to warn motorists of a known hazard, the Board of Supervisors, which is responsible for maintaining county roads, acted with reckless disregard for his safety. Denying all liability, the county maintained that it satisfied all requirements of the law and due care.

¶4. In July 2001, a two-day trial was held in the Circuit Court of Covington County.

¶ 5. Donaldson testified that he was traveling at approximately 40 m.p.h with his windshield wipers and headlights on and, because there was insufficient warnings, the curve surprised him.

¶ 6. The accident investigator from the sheriffs department, Joseph Tuggle, testified that there were no warnings along the route Donaldson was traveling and that warnings were posted subsequent to Donaldson’s wreck. Additionally, he testified to his knowledge of other, unreported wrecks at this curve.

¶ 7. Donaldson presented John Exnicios as an expert witness in the field of traffic engineering and road signs. He testified regarding a “ball bank indicator” test, which is used to determine the proper speed that a curve can be safely negotiated by motorists. After conducting his own test, Exnicios concluded that 25 m.p.h. was the appropriate speed for the curve and that 55 m.p.h — the speed limit at the time of Donaldson’s wreck — was too high.

¶ 8. Further, Exnicios testified that the county failed to satisfy the guidelines provided in the Manual on Uniform Traffic Control Devices (“MUTCD”) and that the county failed to adequately warn motorists of the curve. The MUTCD is published by the Federal Highway Administration (FHWA) and defines the national standards for the installation and maintenance of traffic control devices on all streets and highways. The standards of the MUTCD are classified in three categories: advisory, permissive, and mandatory. Dep’t of Transp. v. Mikell, 229 Ga.App. 54, 493 S.E.2d 219, 222 (1997).

¶ 9. Because he was not an accidentologist, the court prevented Exnicios from testifying regarding whether the lack of signs was the proximate cause of the wreck or give his opinion on whether the county failed to adequately warn motorists.

¶ 10. Ultimately, the trial court held that the county exercised ordinary care in the performance of its placement of warnings. The decision of the trial court failed to mention the MUTCD, but noted that, though not ideal, the warnings provided by the county were adequate to warn motorists.

STANDARD OF REVIEW

¶ 11. A case brought under the Tort Claims Act is tried without a jury. Miss.Code Ann. § 11-46-13. See also Simpson v. City of Pickens, 761 So.2d 855, 860 (Miss.2000). A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000) (citations omitted). This Court reviews questions of law, including the proper application of the Mississippi Tort Claims Act, de novo. City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000).

ANALYSIS

I. SHOULD THE MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES (“MUTCD”) BE ENFORCED AS THE STANDARD OF CARE?

¶ 12. Donaldson petitions the Court to extend the holding in Jones v. Panola County, 725 So.2d 774 (Miss.1998), and enforce the MUTCD as the minimum standard of care in the placement of signs. The county maintains that a strict enforcement of the MUTCD is unworkable and ignores the inherent particularities of Mississippi roadways. The county notes the utility of the MUTCD; however, it argues that ultimately it is the people charged with maintaining roadways who are best suited to determine the necessary signs.

¶ 13. Mississippi law requires the Commissioner of Public Safety to adopt a manual for uniform traffic control, which must generally conform with the system approved by the American Association of State Highway Officials (“AASHTO”). Miss.Code Ann. § 63-3-301 (Rev.1996). Local authorities may place and maintain traffic control devices as they deem necessary; however, the devices shall conform to the state manual. Id. § 63-3-305.

¶ 14. Interpreting § 63-3-305, the Attorney General concluded that local authorities have a duty to determine the necessity of traffic control devices and post signs thereto conforming with state law. Miss. Att’y Gen. Opinion No.2000-0565 (Sept. 29, 2000). However, to ensure uniformity, all such devices must meet the specifications set forth in the manual. Id.

¶ 15. This Court has considered the relationship between MUTCD and the standard of care and held that the MUTCD was admissible as nonconclusive proof of the standard of care. Jones v. Panola County, 725 So.2d 774 (Miss.1998). See also Leflore County v. Givens, 754 So.2d 1223 (Miss.2000). In Panola County, the plaintiff sued the county after his vehicle struck a gravel pile that was used to mark an out of service bridge. 725 So.2d at 775. The plaintiff appealed the decision of the trial court prohibiting him from offering the MUTCD as evidence of the applicable standard of care in the placement of warnings. Id. at 777. Reversing and remanding, this Court held that “the relevant MUTCD provisions may properly be considered by a jury as evidence of negligence, albeit not as conclusive evidence thereof.” Id. at 778 (footnote omitted). This Court stressed that a verdict favoring the plaintiff based solely on the MUTCD guidelines would be improper. Id. at 778-79.

¶ 16. In an unrelated case, we held that both counties and the Department of Transportation have a duty to warn motorists of a known dangerous condition. Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 258 (Miss.1999). The case arose after the county reopened a road but failed to place a stop sign where the road intersected with another forming a “T” intersection. Id. at 258. In the decision, we recognized that, although Mississippi had not formally adopted a manual, the MUTCD was the manual to be used in conformity with the statutes. Id. at 262 (citing Jones v. Panola County, 725 So.2d at 777-78).

¶ 17. The Court finds that there is no majority view regarding the MUTCD. E.g., Donaldson v. Dep’t of Transp., 236 Ga.App. 411, 511 S.E.2d 210 (1999)(since the MUTCD was not published by authority by the Secretary of State as state adopted regulations, it does not have the force of law); Brockie v. Omo Constr., Inc., 255 Mont. 495, 844 P.2d 61 (1992) (violation of MUTCD is not negligence per se but evidence of negligence); Fisher v. State, 268 A.D.2d 849, 702 N.Y.S.2d 418 (N.Y.App.Div.2000)(MUTCD sets forth the standards for evaluating the reasonableness of the State’s placement of road markings); Patton v. Cleveland, 95 Ohio App.3d 21, 641 N.E.2d 1126 (1994) (failure to meet requirements of MUTCD to post construction approach signs was negligence per se, not some evidence of negligence); City of Mission v. Cantu, 89 S.W.3d 795 (Tex.App.2002) (violations of the MUTCD are not negligence per se, as compliance with the MUTCD is not mandatory).

¶ 18. Donaldson cites Schaeffer v. Kansas Dep’t of Transp., 227 Kan. 509, 608 P.2d 1809 (1980). In Schaeffer, a woman sued the Kansas Department of Transportation (“KDOT”) alleging that, because there was an inadequate warning regarding the curve, there was a street defect, which led to her husband’s inability to safely negotiate a curve. Id. at 1312. Quoting the opinion from the Kansas Supreme Court, which affirmed a decision holding the DOT 49% responsible to Schaeffer 51%, Donaldson argues:

[It] appears obvious that both [statute and MUTCD] vest in the DOT the discretion and obligation to maintain adequate warning signs if, in fact, a hazard does exist. In our opinion the manual merely establishes minimum, not maximum, standards for safety. To hold otherwise would place form over substance and would negate the actual objectives of the statutes and manual of effecting uniform traffic control with a maximum amount of protection for the motoring public.

Id. at 1316 (emphasis added). Upon review, we find Schaeffer unpersuasive.

19. Schaeffer was based on a since repealed statute that allowed a party to sue state entities based on a highway defect, in contrast to a suit based on common law negligence. Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982). Because the standard of liability differs between an action based on statutory liability for a highway defect and one based on common law negligence, the law pertaining statutory highway defects does not apply to an action based upon common law negligence theory. Schmeck, 651 P.2d at 594-95. Therefore, Donaldson’s reliance on Schaeffer is misplaced.

¶20. Likewise, the MUTCD lends no support to Donaldson’s argument. The manual states that it “describes the application of control devices, but shall not be the legal requirement for the installation.” Manual of Uniform Traffic Control Devices § 1A.09 (Millennium Ed. with Revision No. 1 changes Dec. 28, 2001). The “decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgement.” Id. The manual should not be considered a substitute for engineering judgment. Id.

¶ 21. The Court declines to extend the holding in Jones v. Panola County or to more strictly enforce the provisions of the MUTCD. Previously, this Court has considered this issue and is not compelled to expand its prior holdings. Our decision is based on Donaldson’s failure to cite other jurisdictions that employ the approach he urges the Court to adopt and the aforementioned provisions of the MUTCD.

¶ 22. To rule as Donaldson urges would substitute the MUTCD for engineering judgment. This Court declines to hold that the MUTCD is only factor in determining whether the county exercised ordinary care. Thus, this issue is without merit.

II. DID THE TRIAL COURT ERRONEOUSLY LIMIT THE TESTIMONY OF THE PLAINTIFF’S EXPERT?

¶ 23. Donaldson argues that the trial judge improperly limited the testimony of his expert, John Exnicios. In addition to other testimony, Exnicios, a traffic engineer, was prepared to testify regarding the issues of adequate warning and causation. However, the trial judge determined that testimony regarding warning and causation required a witness trained in accident reconstruction and, therefore, limited the testimony by Exnicios. Donaldson alleges that this was a reversible error.

¶ 24. Questioned whether a lack of road markings would make the curve hazardous, Exnicios testified affirmatively and stated that the lack of markings would be one of the proximate causes of the accident. Objecting, the county argued that Exnicios was not qualified to answer the question. The trial court agreed and ruled that this line of questioning required an accidentologist. The ensuing dialogue occurred, with Roberts for Donaldson and Allen for the county:

ROBERTS: Assume ... for a moment that Mr. Donaldson was traveling between 45 and 50 miles per hour north on Highway 49, that the weather conditions were or had been wet and he was driving a passenger van pulling a trailer with a backhoe and that as he drove north on the highway there were no signs marking this particular curve. Is it your opinion that there would have been a failure to adequately warn the driver on the part of the county in this situation?
EXNICIOS: In my opinion, this curve required a signage. It was not an apparent curve to a motorist that wasn’t aware of the curve. So, my opinion is that the signs should have been there, and they should be required because of the differences in speed [between] the legal limit on the approached road and then the tight curve which required a reduction in speed of some 30 miles an hour. So, I believe the signs were necessary.
ROBERTS: And would that constitute a lack of warning was the other part of my question?
ALLEN: Your Honor, I’m going to object to that. That calls again for [a] conclusion as an accidentologist. In his expertise, he’s given his opinion as to whether the signs should be there ..., and I think he’s trying to take it too far.
ROBERTS: Your Honor, if I may, he’s addressing warning here and that is his ...
COURT: Well, I think he can testify as to whether or not the absence of signs complies with the MUTCD standards.
ROBERTS: MUTCD.
COURT: Yeah.
EXNICIOS: Is that the question? Excuse me.
ROBERTS: Well, let me make sure I understand the court’s ruling. Your Honor, are you saying that it would be improper for him to testify about the failure on the part of the county make a warning in his opinion?
COURT: Yeah, because that’s a legal question. Ordinary care is a legal question.
ROBERTS: Okay.
COURT: Of course, the facts determine whether or not the legal issue is met too ... I don’t think it’s proper to ask him is the failure to have signs a lack of ordinary care. I think that’s a legal question.
He can testify as to what the signs would accomplish as to how they would affect drivers and what the absence of signs would accomplish with regard to the effect on drivers, et cetera.

¶ 25. M.R.E. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Accordingly, Exnicios should have been allowed to testify whether the curve required signs, whether the warnings complied with the MUTCD, and whether the county failed to provide adequate warnings.

¶ 26. M.R.E. 704 provides:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Generally, Rule 704 requires that opinions, before being admissible, satisfy the Rule 701 and 702, in that “they must be helpful to a determination of the case.” M.R.E. 704 cmt.

¶ 27. The trial judge incorrectly stated that ordinary care is a legal question. The standard of care is a question of fact reserved for the trier of fact. See Stewart ex. rel Womack v. City of Jackson, 804 So.2d 1041, 1049 (Miss.2002) (the issue of ordinary care is a fact question; the question of whether ordinary care was, in fact, exercised is for the trial court, sitting without a jury, to decide). Despite the error, the trial judge did include his analysis of ordinary care in the Findings of Fact. This Court concludes that, ultimately, the trial judge properly considered ordinary care as a factual issue.

¶ 28. Despite these objections, Exnicios was allowed to testify to extensively. The record reflects that the trial judge was fully advised as to the opinions of Exnicios. It is unlikely that the excluded testimony would have been a major factor on the decision of the trial court. The exclusion of such testimony does not constitute a reversible error nor would it have changed the findings of the trial court. Therefore, the trial judge did not abuse his discretion.

III. WERE THE FINDINGS OF THE TRIAL COURT BASED ON SUFFICIENT EVIDENCE?

¶29. Next, Donaldson appeals alleging that there was insufficient evidence to support the trial court’s findings. He claims that the findings were based on an improper application of the MUTCD and a failure to properly consider the credibility and persuasiveness of his witnesses. Because it failed to specifically refer to the MUTCD in its findings, he argues that the trial court failed to apply the proper standard of care and must be reversed.

¶ 30. For support, Donaldson emphasizes the testimony from several witnesses. First, the testimony from county supervisor Mason Trigg who admitted the placement of signs was generally determined by personal observation rather than according to the MUTCD. Second, Donaldson focuses on the testimony from the accident investigator and a resident who resides near the curve. Both of these witnesses testified that numerous wrecks had occurred on that same stretch of road and that it was generally known to be dangerous.

¶ 31. Again, Donaldson emphasizes the testimony of Exnicios and the fact that he was the only expert to testify regarding the applicable standard of care. Exnicios’s opinion was that even if the court adopted the position of the county, the warnings provided motorists were inadequate. In his opinion, the inadequacy resided in the fact that the warnings failed to account for the severity of the turn. Despite Exnic-ios’s testimony, there was sufficient evidence to support the findings of the trial court.

¶ 32. The county presented several witness regarding the warnings posted at the time of the accident. Both a current and former county supervisor and several county road workers testified regarding signs present the day of the wreck. This was in addition to the testimony from the State Aid Engineer regarding installation of 'other warnings that he supervised. Thus, Donaldson’s argument shifts to one of credibility rather than the sufficiency of the evidence.

¶ 33. Alternatively, the county argues that regardless of whether it breached its duty of ordinary care, there was substantial evidence that the breach was not the proximate cause of the accident. This includes: evidence regarding Donaldson’s failure to take adequate caution under the road conditions, especially considering the load he was hauling; testimony from several witnesses who stated that just prior to the wreck, they noticed that he was in a hurry and specifically warned him to be cautious; and testimony from Chester King, who found Donaldson after the wreck, that only moments before Donaldson had passed him from behind at a high rate of speed.

¶ 34. When a trial judge sits without a jury, an appellate court must review the record and accept all evidence that would reasonably support the judgment, together with any reasonable inferences that could be drawn from the evidence. Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994). This Court must let stand trial judge’s findings of evidentiary or ultimate fact when substantial evidence in the record supports those findings, or when findings are not clearly erroneous. Crowe v. Smith, 603 So.2d 301, 304 (Miss.1992).

¶ 35. This Court determines that the findings of the trial court were based on sufficient evidence. Both parties presented conflicting evidence regarding the presence of warnings and had several witness testify in support of their arguments. Because it observes the witnesses first hand, the trial court is in the best position to assess the persuasiveness of a witness and to decide what weight to afford that witness’s testimony. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000).

¶ 36. Donaldson requests that this Court reverse the trial court based on its failure to expressly refer to the MUTCD in its findings and based on the testimony of Exnicios. Failure to refer to the MUTCD does not rise to the level of a reversible error, and because there was considerable evidence and testimony rebutting Donaldson’s claims, this Court is unable to find that the decision of the trial court was clearly erroneous.

IV. DOES THE MTCA VIOLATE PLAINTIFF’S RIGHT TO A JURY TRIAL?

¶ 37. Mississippi Tort Claims Act cases are tried without a jury. Miss.Code Ann. § 11 — 46—13(1). Donaldson alleges that the MTCA denies his right to a jury trial provided by the state constitution, which provides in part: “[that] the right to trial by jury shall remain inviolate.” Miss. Const, art. 3, § 31.

¶ 38. Because Donaldson failed to raise this issue with the trial court or to give notice to the Attorney General, this issue is procedurally barred. When the constitutionality of a statute is challenged notice must be given to the Attorney General. Miss. R. Civ. P. 24(d); M.R.A.P. 44(a). See also Barnes v. Singing River Hosp. Sys., 738 So.2d 199, 202-OS (Miss.1999). Further, except in unusual circumstances, this Court should not consider any matter which has not first been presented to and decided by the trial court. Id. at 202. “The law is well settled that the constitutionality of a statute will not be considered unless the point is specifically pled.” Id. The failure to raise the issue at trial and to notify the Attorney General renders the issue procedurally barred.

CONCLUSION

¶ 39. For these reasons, the judgment of the Covington County Circuit Court is affirmed.

¶ 40. AFFIRMED.

SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES,"JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. McRAE, P.J., AND EASLEY, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . The commissioner of public safety shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this chapter for use upon highways within this state. Such uniform system shall correlate with and so far as possible conform to the system then current as approved by the American Association of State Highway Officials.
      Miss.Code Ann. § 63-3-301 (Rev.1996).

      . Local authorities in their respective jurisdictions shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or provisions of local traffic ordinances or to regulate, warn, or guide traffic. All such traffic-control devices hereafter erected shall conform to the state manual and specifications. Local authorities in exercising those functions referred to in the preceding paragraph shall be subject to the direction and control of the state highway commission.
      Miss.Code Ann. § 63-3-305 (Rev.1996).

      . According to the counly, at the time of the accident there was a “standard curve sign” (without warning motorists to reduce speed), a "slippery when wet sign,” and a railroad crossing sign.

      . The Mississippi Department of Transportation provides State Aid engineers for counties that are without a county engineer.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Mervin SANDERS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-00073-COA.
    Court of Appeals of Mississippi.
    June 25, 2002.
    Rehearing Denied Jan. 14, 2003.
    Certiorari Denied May 15, 2003.

      James Lawton Robertson, Jackson, Paul McGerald Luckett, McComb, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., BRIDGES, and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Mervin Sanders was convicted of possession of cocaine with the intent to sell in the Circuit Court of Pike County, Mississippi. Evidence of two prior drug convictions was introduced and Sanders was sentenced as a habitual offender to pay a $30,000 fine and to serve a term of thirty years in the custody of the Mississippi Department of Corrections. Sanders appealed his conviction to the Mississippi Supreme Court. That court affirmed the conviction and Sanders then filed a motion for post-conviction collateral relief. The Mississippi Supreme Court granted Sanders leave to file the post-conviction motion. Sanders filed a motion for summary judgment in the Pike County Circuit Court on the issues alleged in the post-conviction motion. The State filed a cross-motion for summary judgment. The circuit court granted the State’s summary judgment motion and denied Sanders’s.

¶ 2. Feeling aggrieved, Sanders has perfected this appeal and raises nine allegations of error. First, he argues that the circuit court erred when it refused to deem admitted the statements contained in the requests for admission Sanders filed with the State. Next, he asserts that the circuit court erred when it refused to grant him an evidentiary hearing on the issues contained in his post-conviction relief motion. Sanders further argues that the State’s participation via the Mississippi Bureau of Narcotics in his prosecution was so offensive that the only appropriate remedy is to discharge him. He also argues that he was denied the right to a speedy trial as guaranteed by the United States Constitution and the Mississippi Constitution. Next, 'Sanders alleges that the State conducted an illegal search and seizure of the vehicle he was driving in violation of the Fourth and Fourteenth Amendments of the United States Constitution. He also argues that he was denied due process of law in that he was denied a fundamentally fair trial and that he was denied effective assistance of counsel. Finally, Sanders argues that the circuit court erred when it refused to appoint James L. Robertson as his counsel in the post-conviction relief proceedings and subsequent appeal.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. In January 1990, the Mississippi Bureau of Narcotics (MBN) began a sting operation focused on Sanders. A confidential informant, Johnny Morris, acted as the contact between the MBN and Sanders. Morris contacted Sanders and asked him to buy an ounce of cocaine for Morris. Sanders agreed and Morris supplied him with the money and transportation needed to buy the drugs. The money and the car were provided to Morris by the MBN.

¶ 5. On January 20, 1990, MBN agents attached a tracking device to the car Morris had given to Sanders. Pursuant to the plan between Sanders and Morris, Sanders drove the car into south Louisiana to purchase the drugs. MBN agents tracked Sanders until near Hammond, Louisiana. At that point, they lost contact with the car. To prevent Sanders from eluding them, the agents set up stationary surveillance points along Interstate 55. At approximately 2:20 a.m., Agents Ronnie Frazier and Craig Oster spotted a car matching the description of the one Sanders was driving. A highway patrol officer working with the narcotics team stopped Sanders just north of Osyka in Pike County, Mississippi. After the vehicle was stopped, Sanders was asked to step out of the car. Agent Oster searched the passenger’s side of the car. In the glove box he found a package containing one ounce of cocaine. Sanders w§s arrested for the crime of possession of cocaine with the intent to distribute.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO DEEM ADMITTED THE FACTS CONTAINED WITHIN THE REQUESTS FOR ADMISSION SANDERS FILED WITH THE STATE.

¶ 6. On or about November 16, 1999, Sanders filed and served his requests for admission on the State. Sanders stated that they were in accordance with Mississippi Rule of Civil Procedure Rule 36, “for use as evidence at the trial hereof and otherwise, but not as discovery within the meaning and contemplation of Miss.Code Ann. § 99-39-15(3).” The State did not file a response to Sanders’s requests. Based on the State’s failure to answer, Sanders filed a motion for summary judgment on April 19, 2000. In his motion Sanders argued that because the State did not respond to the requests, they were deemed admitted in accordance with M.R.C.P. Rule 36. The trial court refused to admit the facts contained in the requests for admission. The court ruled that because Sanders had failed to seek the court’s permission before filing discovery with the State, the State was under no obligation to respond.

¶ 7. On appeal, Sanders argues that the trial court erred in failing to deem admitted the facts contained within his requests for admission because he did not file them as discovery. In support of this argument, Sanders cites to case law from other jurisdictions in which those courts held that requests for admission are not always a discovery device.

¶ 8. There is no controlling precedent from this State to support Sanders’s assertion that requests for admission are not discovery and should not be treated as such. Despite Sanders’s statement that he was serving the requests for admission for purposes other than discovery, the requests were discovery documents and could only be filed and served in accordance with Miss.Code Ann. § 99-39-15(3) (Rev.2000). That statute provides as follows:

(1) A party may invoke the processes of discovery available under the Mississippi Rules of Civil Procedure or elsewhere in the usages and principles of law if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.
(2) Request for discovery shall be accomplished by a statement of the interrogatories or requests for admission and a list of the documents, if any, sought to be produced.

Miss.Code Ann. § 99-39-15 (Rev.2000).

¶ 9. The trial judge refused to admit the facts contained within the requests because Sanders failed to obtain leave of court to file the discovery. This decision was in accordance with statute and was not an abuse of the judge’s discretion.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT SANDERS AN EVIDEN-TIARY HEARING ON THE ISSUES RAISED IN HIS PETITION FOR POST-CONVICTION RELIEF.

¶ 10. Sanders argues that the trial court erred in refusing to grant him an evidentiary hearing on the issues raised in his petition for post-conviction relief in contravention of an order from the Supreme Court granting him the right to proceed on all issues raised before the court. Sanders maintains that the Supreme Court’s order determined that he had stated claims upon which relief could be granted, and, as such, the circuit court was under a duty to allow him an eviden-tiary hearing in which to present his claims.

¶ 11. Sanders filed his application for leave to proceed in the trial court pursuant to Miss.Code Ann. § 99-39-27 (Rev.2000). Subsection 7 of that statute prescribes that in considering an application for leave to proceed in the trial court with a motion for post-conviction relief, the court has two options at its discretion. First, the court may rule on the motion for post-conviction relief, granting or denying any or all relief requested if sufficient facts exist on the face of the application and attachments. Alternatively, the court may permit the motion to be filed in the trial court for further proceedings under sections 99-39-13 through 99-39-23. Hymes v. State, 703 So.2d 258, 260 (Miss.1997).

¶ 12. The Supreme Court granted Sanders the right to file his petition for post-conviction relief in the trial court. Thereafter, Sanders filed his petition with the Circuit Court of Pike County and filed and served his requests for admission on the State. Based on the State’s failure to respond to the requests, he filed a motion for summary judgment with the circuit court. Because the State did not answer, Sanders argued that the facts contained within the requests should be deemed admitted and were sufficient to merit a summary judgment award in his favor. As previously discussed, the trial judge properly refused to admit the facts. The State filed a cross-motion for summary judgment; this motion was granted by the circuit court.

¶ 13. Mississippi Code Annotated Section 99-39-19 (Rev.2000) reads as follows:

(1) If the motion is not dismissed at a previous stage of the proceeding, the judge, after the answer is filed and discovery, if any, is completed, shall, upon a review of the record, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice shall require.
(2) The court may grant a motion by either party for summary judgment when it appears from the record that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.

Further, the Mississippi Supreme Court has held that “a post-conviction collateral relief petition which meets basic requirements is sufficient to mandate an eviden-tiary hearing unless it appears beyond a doubt that the petitioner can prove no set of facts in support of his claim which would entitle him to relief.” Marshall v. State, 680 So.2d 794, 794 (Miss.1996).

¶ 14. The entirety of Sanders’s motion was based upon his allegation that the facts contained within his requests for admission were conclusively admitted because the State did not respond to the requests. Sanders offered no other evidence to support his claims. In effect, Sanders’s argument on appeal demands that if the trial court did not grant his motion for summary judgment, it had to hold an evidentiary hearing on the issues raised in his petition. Because of the authority he places on the supreme court’s orders, he maintains that the trial court did not have the authority to grant the State’s motion for summary judgment.

¶ 15. This argument is in direct contravention of the controlling statutes. Miss. Code Ann. § 99-39-19(2) (Rev.2000). The supreme court’s orders did not conclusively determine that Sanders was entitled to an evidentiary hearing. The orders entered by the supreme court merely granted Sanders the right to proceed with his arguments in the trial court. Once under the jurisdiction of the trial court, pursuant to Miss.Code Ann. § 99-39-19(2), that court had the authority to render an opinion with or without an evidentiary hearing. Because Sanders failed to offer any evidence in support of his claims other than the requests for admission which were properly stricken by the court, the court did not abuse its discretion in finding that Sanders had presented no material fact upon which relief could be granted.

III. WHETHER THE ACTIONS OF THE MBN WERE SO OFFENSIVE THAT SANDERS’S DISCHARGE WAS REQUIRED.

¶ 16. Sanders contends that the actions of the agents of the Mississippi Bureau of Narcotics were shocking and outrageous to such an extent that the only proper remedy is a total and complete discharge. Sanders asserts that the MBN had established a pattern and practice of forcing persons they arrested into serving as undercover confidential informants for the MBN. If these persons did not work with the agents, the MBN agents would suggest that the offender be prosecuted and sent to the penitentiary. Sanders further asserts that the bureau required these persons to remain as informants for as long as they were useful. He maintains that the bureau did not pay the informants or offer any form of protection to the informants. Sanders charges the MBN with responsibility for the deaths of three undercover informants. He offers no evidence in support of this assertion other than the statements propounded in his requests for admission. As stated earlier, these statements were properly stricken by the trial court.

¶ 17. In support of this argument, Sanders offers Moore v. State, 534 So.2d 557, 560 (Miss.1988). In Moore, the court quoted with approval the premise set forth by Justice Holmes dissenting in Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 72 L.Ed. 944 (1928), “[f]or my part I think it a less evil that some criminal should escape than that the government should play an ignoble part. What we are saying is that the State’s participation can become so offensive that the only appropriate antidote is to discharge the accused.” The Moore court further stated, “the defendant must be discharged where State officials engage in conduct outrageous or shocking to common sensibilities, for we are not yet ready to hold that the end of reducing drug trafficking may be cured by any means.” Moore, 534 So.2d at 560. The most common situation that will lead to a successful entrapment defense occurs when the State is both the supplier and the buyer of the contraband. Id. at 558. In that instance, the court has found that the defendant was entrapped as a matter of law and the only remedy is his discharge. Id. at 559; Tanner v. State, 566 So.2d 1246, 1247 (Miss.1990).

¶ 18. In the case sub judice, Sanders is asking this Court to extend the above cited principle to cover the actions he alleges as misconduct by the MBN agents. In Moore and Tanner, the court considered situations in which the State was both the supplier and the purchaser of the contraband. Moore, 534 So.2d at 558; Tanner, 566 So.2d at 1246. Sanders is not complaining of the agents’ actions before he was arrested; he is arguing that after his arrest the agents should not have had the discretion to ask the defendant to work with the State as a confidential informant. Sanders maintains that this conduct is shocking and offensive because if the defendant does not agree to cooperate with the MBN, he will be prosecuted and possibly incarcerated.

¶ 19. This argument is not persuasive. Sanders was arrested because he purchased cocaine for Morris and was caught with the contraband. The purchase of illegal drugs with the intent to sell is a crime for which a person will be arrested and prosecuted in this state. Miss.Code Ann. § 41-29-139 (Rev.2001). As for the MBN’s offer to allow defendants to serve as confidential informants for the bureau, this is a practice that has been ongoing for some time and obviously is acceptable because of the number of convictions. In Moore v. State, a confidential informant arranged to sell a forty pound bale of marijuana to Moore. Moore, 534 So.2d at 557-58. MBN agents were present when the sale between Moore and the confidential informant took place. Id. at 558. Moore was arrested and prosecuted. Id. The court held that this level of State involvement was not so offensive as to require Moore’s discharge. Id. at 560. While the facts in the present case are somewhat different, the level of involvement by the bureau is like that in Moore.

IV. WHETHER SANDERS WAS SUBJECTED TO INVOLUNTARY SERVITUDE OR PEONAGE.

¶ 20. Sanders asserts that the actions of the MBN agents in offering not to prosecute him if he agreed to work as a confidential informant for the bureau amounts to involuntary servitude and peonage in violation of the Thirteenth Amendment to the United States Constitution and the Antipeonage Act of 1867. Sanders states that the MBN sought to coerce him into service, holding over his head the threat of legal sanction and imprisonment. In effect, Sanders is arguing that he had no choice but to agree to work as a confidential informant for the MBN; if he did not agree, then he would be prosecuted for his crimes.

¶ 21. This issue is controlled by the law set forth in Boyington v. State, 389 So.2d 485 (Miss.1980). In Boyington, the defendant argued that his employment as an undercover agent, after his arrest for selling marijuana, violated his Thirteenth Amendment rights and 42 U.S.C. § 1994 (1974), the antipeonage statute. Id. at 488. The Mississippi Supreme Court found that although the agent who approached Boy-ington about working as an informant promised him that he would recommend to the district attorney that Boyington be placed on probation, his decision to work as a undercover informant was freely and voluntarily made. Id.

¶ 22. The result is the same in the case before this Court. Sanders agreed to work as an informant for the MBN in order to avoid being incarcerated for the crimes with which he was charged and convicted. In his appeal brief Sanders admits that he “voluntarily agreed with the Mississippi Bureau of Narcotics to become an informant.” “The criminal process, like the rest of the legal system, is replete with situations concerning difficult decisions like [Sanders] faced.” Town of Newton v. Rumery, 480 U.S. 386, 393-94, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987) (quoting McMann v. Richardson, 397 U.S. 759, 769, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). “Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” Rumery, 480 U.S. at 894, 107 S.Ct. 1187 (quoting McGautha v. California, 402 U.S. 188, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971)).

V. WHETHER SANDERS’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED.

¶ 23. Sanders argues on appeal that his right to a speedy trial was violated. This issue was examined on direct appeal. The Mississippi Supreme Court found that the issue was procedurally barred because it was not raised at trial and was not raised in the brief of the appellant. Sanders first made this assertion in his reply brief on the appellate level. The trial court cannot be held in error on a legal point never presented for its consideration. Chase v. State, 645 So.2d 829, 846 (Miss.1994). We are not, thus, obligated to review this issue. Id. Nevertheless, because of the lengthy delay alleged by Sanders, we will discuss the merits of the issue.

¶ 24. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), stands as the seminal case on the issue of the Sixth Amendment right to a speedy trial. State v. Woodall, 801 So.2d 678(¶10) (Miss.2001). Our courts have consistently followed the approach set forth in Barker since its inception. Id. In Barker, the United States Supreme Court stated that courts should consider the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his [speedy trial] right, and prejudice to the defendant” when faced with a Sixth Amendment speedy trial issue. Woodall, 801 So.2d at (¶ 10) (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). In applying these four factors, the court instructed that they “are related factors and must be considered together with such other circumstances as may be relevant.” Woodall, 801 So.2d at (¶ 10) (quoting Barker, 407 U.S. at 533, 92 S.Ct. 2182).

(A) LENGTH OF DELAY

¶ 25. Sanders was arrested on January 21, 1990. He was not indicted until October 17, 1991. Trial was held on October 31, 1991. The State admits that the more than 600 days between Sanders’s arrest and trial is sufficient to trigger the Barker analysis. In Barker, the court characterized the “length of delay” factor as a “triggering mechanism,” stating that the other three factors should be considered only if the trial. court found a “presumptively prejudicial” period of delay. Barker, 407 U.S. at 530, 92 S.Ct. 2182. The court explained that, absent some period of excessive delay, there could be no speedy trial violation, and, therefore, no need to explore the other three factors. Id. The court, however, declined to set specific guidelines as to what would constitute a “presumptively prejudicial” delay, indicating that the decision would hinge upon the facts of each particular case. Id.

¶ 26. In setting those guidelines in Mississippi, our supreme court has held that a delay of eight months or more would constitute a “presumptively prejudicial” delay. Smith v. State, 550 So.2d 406, 408 (Miss.1989). However, the court has refused to dismiss cases in which the delay far exceeded that presumptive period. See Taylor v. State, 672 So.2d 1246, 1258-59 (Miss.1996) (denying dismissal despite 1027-day delay); Hurns v. State, 616 So.2d 313, 317 (Miss.1993) (denying dismissal despite 334-day delay).

¶27. More than 600 days passed between Sanders’s arrest and trial. A delay of this length is presumptively prejudicial. In light of this presumption, it is necessary to analyze the other three factors.

(B) REASON FOR DELAY

¶ 28. In Woodall, the court noted that pursuant to Barker the burden of establishing good cause for delay is on the State. Woodall, 801 So.2d at (¶ 16). The Barker court noted that “different weights should be assigned to different reasons [for delay],” commenting that:

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

Barker, 407 U.S. at 531, 92 S.Ct. 2182; Woodall, 801 So.2d at (¶ 14).

¶ 29. In the case sub judice, Agent Frazier testified that Sanders was initially released without bond because he expressed an intention to cooperate with the MBN and serve as an undercover agent. Later, Sanders did agree to work undercover for the MBN. It was not until Sanders stopped cooperating that he was indicted. Because Sanders voluntarily agreed to work with the State, this constitutes an excusable reason for the State’s delay in bringing him to trial. Gray v. State, 728 So.2d 36(¶ 32) (Miss.1998).

(C) SANDERS’S ASSERTION OF HIS RIGHT TO A SPEEDY TRIAL

¶ 30. Our Supreme Court has stressed the importance of a defendant’s request for a speedy trial. Perry v. State, 419 So.2d 194, 199 (Miss.1982). The court has held that where a defendant fails to assert his right to speedy trial, that failure must be weighed against him. Watts v. State, 733 So.2d 214, (¶ 66) (Miss.1999). In Barker, the United States Supreme Court stressed that “[t]he defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. The court further stated that “failure to assert that right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id.

¶ 31. At no time between his arrest and trial did Sanders assert his right to a speedy trial. In fact, Sanders did not bring this issue to the court’s attention until he filed his reply brief in the initial appellate proceedings. As noted in Woodall, under the Barker analysis, the failure to assert this right does not waive it; however, the failure should be held against the defendant. Woodall, 801 So.2d at (¶ 23).

(D)PREJUDICE TO SANDERS

¶ 32. In Barker, the court set forth three interests the right to a speedy trial was designed to protect, “prevention of oppressive pretrial incarceration; minimization of anxiety and concern of the accused; and limitation of the possibility that the defense will be impaired.” Id. at 532, 92 S.Ct. 2182. The court further stated that the most serious of the three was the last because the defendant’s inability to prepare a complete defense skews the fairness of the entire justice system. Id.

¶ 33. Sanders alleges that the State conclusively admitted his prejudice due to its failure to deny the statements contained in his requests for admission. As stated earlier, this assertion is without merit. Sanders further argues that he was prejudiced by the delay because he was unable to maintain his business or find other employment. He makes no assertion that he was unable to defend himself because of the delay between his arrest and trial.

¶ 34. The court has been reluctant to order dismissal of charges on speedy trial issues where no actual prejudice has been shown. Woodall, 801 So.2d at (¶ 24). Sanders has presented the court with no evidence of his prejudice. The only “evidence” presented to this Court is his properly stricken requests for admission. While it is true that Sanders likely suffered from anxiety concerning the charges he was faced with, he has offered no evidence of particular prejudice other than that faced by every person awaiting trial for criminal actions. As such, this Court will not presume prejudice “out of the clear blue.” Id. at (¶ 25) (quoting State v. Magnusen, 646 So.2d 1275, 1284 (Miss.1994)).

VI. WHETHER SANDERS WAS DENIED HIS FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE. .

¶ 35. Sanders argues that the MBN subjected him to an illegal search because Agents Oster and Frazier failed to obtain a search warrant before they searched the car he was driving the night he was arrested. This issue was raised and discussed on appellate review in Sanders v. State, 678 So.2d 663, 667-68 (Miss.1996). Because this issue has been previously decided against Sanders, he is procedurally barred from bringing it at this time. “Rephrasing direct appeal issues for post-conviction purposes will not defeat the procedural bar of res judicata.” Lockett v. State, 614 So.2d 888, 893 (Miss.1992). The petitioner carries the burden of demonstrating that his claim is not procedurally barred. Miss.Code Ann. § 99-39-21(6) (Rev.2000); Cabello v. State, 524 So.2d 313, 320 (Miss.1988). However, “an alleged error should be reviewed, in spite of any procedural bar, only where the claim is so novel that it has not previously been litigated or where an appellate court has suddenly reversed itself on an issue previously thought settled.” Lockett, 614 So.2d at 893 (quoting Irving v. State, 498 So.2d 305, 311 (Miss.1986)).

¶ 36. Sanders has failed to demonstrate a novel claim or a sudden reversal of law relative to this point which would exempt this claim from the procedural bar. Therefore, this issue is procedurally barred by the doctrine of res judicata pursuant to Miss.Code Ann. § 99-39-21(3) (Rev.2000).

VII. WHETHER SANDERS WAS DENIED DUE PROCESS OF LAW IN THAT HE WAS DENIED A FUNDAMENTALLY FAIR PRETRIAL AND TRIAL PROCESS.

¶ 37. Sanders makes a general argument that under the totality of the facts and circumstances set forth in his petition for post-conviction relief, he has been denied a fundamentally fair pre-trial and trial process. Besides this bald statement, Sanders provides no other basis for this argument other than a demand for relief pursuant to Miss.Code. Ann. § 99-39-5(l)(a)(e) and (i) (Rev.2000). As this Court has found no error in the trial court’s handling of Sanders’s case, this issue will not lie. Further, as far as Sanders is attempting to argue that his due process rights have been violated in relation to an alleged illegal search and/or denial of a speedy trial, these issues are procedurally barred under the doctrine of res judicata. Lockett, 614 So.2d at 893; Sanders, 678 So.2d at 667-68, 669-70.

VHL WHETHER SANDERS WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 38. Sanders argues on appeal that he was denied effective assistance of counsel at his original trial and on direct appeal of his conviction and sentence. He further argues that the aforementioned orders from the Mississippi Supreme Court granting him the right to pursue post-conviction relief affirmatively hold that he was denied effective assistance of counsel in that the court rejected the State’s arguments to the contrary by granting him the right to pursue “all of his issues” in trial court. As stated earlier, Sanders misinterprets the language of these orders. The orders granted him the right to pursue his allegations in trial court pursuant to Miss.Code Ann. § 99-89-27(7) (Rev. 2000), they did not rule in any way on the issues presented in Sanders’s petition for post-conviction relief. Further, Sanders has failed to present this Court with any authority to support his blanket allegation that he was denied effective assistance of counsel. This Court will not consider an assignment that is unsupported by controlling authority. Drennan v. State, 695 So.2d 581, 585-86 (Miss.1997). Therefore, this assignment is procedurally barred.

IX. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO APPOINT MR. ROBERTSON TO REPRESENT SANDERS.

¶ 39. Sanders argues that the trial court abused its discretion when it refused to appoint Mr. Robertson to represent Sanders. He maintains that because Mr. Robertson was familiar with his case, the judge abused his discretion in appointing another attorney to prosecute his post-conviction motion.

¶ 40. While an indigent is entitled to competent counsel to defend him, he is not entitled to court appointed counsel of his own choosing. Taylor v. State, 744 So.2d 306(¶ 34) (Miss.Ct.App.1999). The current public defender for Pike County was appointed to represent Sanders. As such, Sanders was granted competent counsel. This issue is without merit.

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO PIKE COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND BRANTLEY, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: BRANTLEY, J., KING, P.J.,

text:
    Stephanie (Sadler) McMURRY, Appellant, v. William SADLER, Appellee.
    No. 2001-CA-01379-COA.
    Court of Appeals of Mississippi.
    Aug. 6, 2002.
    Rehearing Denied Nov. 19, 2002.
    Certiorari Denied May 15, 2003.

      Laurel G. Weir, Philadelphia, Attorney for Appellant.
    Steven Detroy Settlemires, Attorney for Appellee.
    Before SOUTHWICK, P.J., BRIDGES, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the Court:

¶ 1. Stephanie Sadler McMurry sought to regain custody of her two minor children in a motion for modification and change of former judgment. The Chancery Court of Neshoba County dismissed her motion for falling to state or allege that a material change in circumstances has occurred which adversely affects the children. Stephanie appeals, asserting that the chancellor erred in dismissing the motion without a hearing on the merits. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The parties herein, William Sadler and Stephanie Sadler McMurry, were divorced in April 1991. Two children were born of the marriage, namely, Thomas J. Sadler, born August 23, 1988, and Christopher A. Sadler, born August 22, 1989. Primary custody and care of the minor children of the parties was awarded to Stephanie. In February 1997, following a modification hearing, William was awarded primary care and custody of the children and Stephanie was granted visitation privileges. In 1999, William moved to South Carolina taking the children with him. In 2000, William agreed for Thomas to temporarily return to live with Stephanie for the 2000-2001 school year so he could attend a local school and be taught by his grandmother.

¶3. On June 2, 2001, William brought Christopher to join his mother and brother for an agreed visitation set out in the modified order. Both children were supposed to return to South Carolina at the end of the visitation. On June 28, Sadler attempted to contact and inform Stephanie that he would pick the children up in Tal-ladega, Alabama, on June 30 according to their agreement. William went to the location, but Stephanie and her two sons were not there. William drove to Mississippi to pick up his children the following week. Christopher was there, but Thomas was not. Stephanie did not return Thomas as provided for in the court order. William then, without success, requested the sheriffs department to aid him in the return of Thomas.

¶4. On July 16, 2001, William filed a writ of habeas corpus requesting the court to require Stephanie to appear with Thomas and show cause why physical custody should not be immediately restored to William. The hearing began on this matter and Stephanie was present, but not represented by counsel. After the hearing that day, she obtained counsel and filed her response to the writ and a motion for modification and change of former judgment seeking custody of the children. The motion asserted improved changes in the non-custodial home, a possible arrest of William on false pretense, a mere assertion that William was not rearing, training, or educating the boys as they should be, and claims that William travels away from the home for weeks while leaving the boys with a live-in girlfriend. The motion also stated that it would be detrimental for the boys to leave her home, especially Thomas Jeremy Sadler, because his grades improved while staying with her. The hearing on the writ of habeas corpus was continued the next day. An order in response to the writ of habeas corpus was entered by the chancery court immediately returning custody of Thomas to William.

¶ 5. William filed an answer to Stephanie’s motion for modification and change of former judgment, wherein he included the following affirmative defenses: “[t]he motion fails to state a claim upon which relief can be granted” and “[t]he motion fails to show that if indeed a material change in circumstances has occurred, as alleged, that said material change in circumstances is adverse to the best interest of the minor children.” William also included in his filing a motion to dismiss.

¶ 6. At the beginning of the hearing on August 14, 2001, for Stephanie’s motion for modification and change of former judgment, William objected to the motion contending that the motion did not state or allege that a material change in circumstances had occurred which adversely affected the minor children. In response, Stephanie asserted that the motion did contain allegations of material changes in the circumstances and parties involved. The chancellor stated that a material change is not enough and asked Stephanie’s counsel twice, “what is the other word that is missing,” to which the chancellor also answered, “adverse.”

¶ 7. Stephanie’s counsel responded, “that is just a conclusion that we have got to reach. Words alone, that ain’t the facts we allege.” He further noted that they could amend the statement by including, “that it would be adverse for the children to stay with [William].” The chancellor replied “that is not the case law either.”

¶ 8. The chancellor then sustained the motion to dismiss with leave to amend, noting that the substance of the amendment “has got to be adverse.” The chancellor also stated that “the pleadings were insufficient” and “not in a position now to go to trial.” Stephanie’s counsel amended her motion ore tenus. The substance of the amendment was that if the modification granting the mother custody was not allowed, the children would be adversely affected. The chancellor responded, asking counsel twice to confirm that the substance of the motion to amend was “that if the decree is not modified there will be an adverse effect.” Counsel affirmatively responded both times.

¶ 9. Following the amendment, counsel for William renewed his motion to dismiss asserting that the amendment failed to state or allege that a material change in circumstances had occurred which adversely affected the minor children. The chancellor sustained William’s motion and dismissed the case. A final order was entered on August 23, 2001, dismissing the motion for modification and change of former judgment with prejudice.

STANDARD OF REVIEW

¶ 10. The chancellor’s determination that the motion did not meet the pleading requirements was a finding of law. Therefore, this court reviews the chancellor’s interpretation and application of the law de novo. McCubbin v. Seay, 749 So.2d 1127(¶ 5) (Miss.Ct.App.1999).

ASSIGNMENTS OF ERROR

I. WHETHER THE COURT ABUSED ITS DISCRETION BY NOT CONDUCTING A HEARING AND AWARDING APPELLANT CUSTODY OF HER TWO MINOR CHILDREN. II. WHETHER THE PLEADINGS AND THE FACTS EFFICIENTLY SHOW A CHANGED CONDITION AND CIRCUMSTANCE THAT ADVERSELY AFFECTED THE MINOR CHILDREN AND WHETHER THE COURT ERRED IN NOT GRANTING THE MODIFICATION AND AT LEAST HAVING A HEARING ON THE MERITS.

DISCUSSION

¶ 11. In this case, the chancellor ruled the pleadings filed by Stephanie as a matter of law were not in proper form to go to trial because they did not state there had been a material change in circumstance which adversely affected the children. She was given two additional opportunities by the chancellor to correctly amend her pleadings but still failed to incorporate the necessary language to permit the case to proceed on its merits. Although Stephanie specifically presents the above two issues as assignments of error, these issues are being consolidated into one issue for review.

I. WHETHER THE CHANCELLOR ERRED BY DISMISSING THE MOTION FOR MODIFICATION.

¶ 12. Stephanie argues that the court erred by dismissing her motion without a hearing on the merits. In order for a chancellor to have the inherent power and duty to proceed with a custody modification hearing and to render a judgment, the court must have jurisdiction of the parties and the subject matter and in such a proceeding, the issue must be before the court by proper pleadings and supported by competent evidence. See Wansley v. Schmidt, 186 So.2d 462, 465 (Miss.1966). The chancellor found that the pleadings as a matter of law failed to state or allege that a material change has occurred which adversely affects the children.

¶ 13. We now look to see whether a motion for modification of custody must allege that a material change in circumstances has occurred which adversely affects the minor children. The Mississippi Supreme Court held that the prerequisites to the modification of child custody are: (1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody. Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996). In addition, for the custody order to be modified so as to transfer custody to the noncustodial parent, the non-eustodial parent must prove that since the entry of the decree or order sought to be modified, a material change of circumstances has occurred within the custodial home which adversely affects the minor child’s welfare. Polk v. Polk, 589 So.2d 123, 129 (Miss.1991). Therefore, in order for the court to proceed on a matter for custody modification, the pleadings must contain allegations that a material change has occurred which adversely affects the child.

¶ 14. In the present case, we find that Stephanie did not specifically state or allege in her original motion that a material change has occurred which adversely affects the children and did not correctly amend her pleadings to include such an allegation. Inconsistent with prevailing case law, her amendments only alleged that an adverse effect would occur if the modification was not granted. The court properly dismissed the motion with prejudice since her original motion and amendments were insufficient to proceed on the merits of the case. See Wansley, 186 So.2d at 465. Therefore, we find that the chancellor did not err and this assignment of error is without merit.

¶ 15. THE JUDGMENT OF THE NESHOBA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, MYERS AND CHANDLER, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND IRVING, JJ.

KING, P.J.,

dissenting:

¶ 16. I dissent from the majority opinion herein. The majority affirms the chancellor’s refusal to consider the merits of McMurry’s motion to change custody because it did not contain the magic word “adverse.”

¶ 17. Pleadings in our trial courts are governed by the Mississippi Rules of Civil Procedure. In this case the relevant rule is M.R.C.P. 8(a)(1), (e)(1) and (f), which provides:

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim, or third-party claim, shall contain
(1) a short and plain statement of the claim showing that the pleader is entitled to relief,....
(e) Pleading to Be Concise and Direct: Consistency.
(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required....
(f) Construction of Pleadings. Ml pleadings shall be so construed as to do substantial justice.

¶ 18. The adoption of this Rule eliminated the necessity of formal technical pleading, so called magic words pleading. Instead a claimant is merely required to state his claim and its basis. In my belief, McMurry did so.

¶ 19. The relevant portion of her motion reads as follows:

As shown by the Court file a judgment was entered granting custody of the minor children to the mother and later modified and changed and the mother has paid the child support ordered for the minor children even though she has had the exclusive care and custody of the minor child Thomas Jeremy Sadler for more than one (1) year. The judgments are made a part of this Motion by reference just as if copied fully therein.
1. There has been a material change in the parties and circumstances involved since the last judgment was entered and the mother is now the most suitable, fit, and proper person to have permanent care and custody of the minor children and the father is not. The mother has remarried and is living a good Christian life and is an active member of Camp Dixon Church of God, and the minor children have been in attendance at a Christian Youth Camp this summer under the directions of the mother and they are of age and desire to live with their mother and it would be to their best interest that they do so. The father William Sadler has been arrested for such crimes as False Pretense in January of this year and is not rearing, training, and educating the boys as they should be reared. The mother, Stephanie (Sadler) McMurry is the Movant and she makes William Sadler the respondent in this Motion.
2. Both of the children have lived with the mother in Neshoba County, Mississippi, for the last month and one of the children, Thomas Jeremy Sadler, has lived with the mother for more than one (1) year and gone to school in Nesh-oba County, Mississippi, and it would be detrimental to their education and they will loose the friends they have created if required to move. Thomas Jeremy Sadler last year had failing grades and the father promised him that he would bring the child to the mother if he passed and the child has greatly improved in his grades in school, and the father travels away for weeks at a time and he left the children with a live in girlfriend. The children are Thomas Jeremy Sadler born August 22, 1988, and Christopher—

¶ 20. While McMurry’s motion was perhaps subject to more artful drafting, it was nevertheless sufficient to place Sadler on notice of her claim and entitle her to a resolution of that claim on its merits. One need only read the passages of McMurry’s pleading, which I have emphasized above to understand the nature and basis of her claim. McMurry’s pleading complies with M.R.C.P. 8(a)(1) and (e)(1), which requires a simple, concise and direct statement showing an entitlement to relief.

¶21. While McMurry’s pleading is inartfully drafted, the chancellor and this Court’s majority seem oblivious to M.R.C.P. 8(f) which requires “[a]ll pleadings shall be so construed as to do substantial justice.”

¶ 22. There is no justice, substantial or otherwise, in the refusal of the chancellor or this Court’s majority to decide Mrs. McMurry’s case on the merits.

¶23. For these reasons, I would reverse and remand for a hearing on the merits of McMurry’s claim.

LEE AND IRVING, JJ., JOIN THIS SEPARATE WRITTEN OPINION.