author: SOUTHWICK, P. J„ for the court.

text:
    Howard Clayborne McDONALD, Jr., Appellant, v. Rosemary Sheffield McDONALD, Appellee.
    Nos. 1999-CP-00848-COA, 1999-CP-01259-COA, 1999-CP-01384-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2002.
    Rehearing Denied Dec. 17, 2002.

      David R. Sparks, Tupelo, Howard C. McDonald, Jr. (In Propria Persona), attorneys for appellant.
    C. Jackson Williams, Oxford, attorney for appellee.
    Before SOUTHWICK, P.J., LEE, and. MYERS, JJ.
   SOUTHWICK, P. J„ for the court.

¶ 1. This is a suit for modification of earlier domestic relation orders. Three separate appeals have been consolidated. The former husband alleges that the appointed chancellor lacked jurisdiction to hear the case, that an agreed order that neither he nor his attorney had signed should not have been entered, that $1106 in court costs should not have been assessed, that he should not have been found in contempt of court, and that he was denied due process at the time of a custody proceeding. We find no error and affirm as to all issues.

FACTS

¶ 2. In April 1998, the Lee County Chancery Court entered a decree ending the marriage of Howard Clayborne McDonald and Rosemary McDonald. The chancellor granted the divorce to Mr. McDonald on the basis of his wife’s adultery and cruel and inhuman treatment. The factual basis for adultery was that Mrs. McDonald was involved in a sexual relationship with another woman. Mr. McDonald was granted physical custody of the two youngest children, while Mrs. McDonald was granted physical custody of the oldest child, who exercised a preference to reside with her. Each party was granted reasonable visitation. The decree prohibited visitation in the presence of anyone with which Mrs. McDonald was having a lesbian relationship.

¶ 3. Later in the same year, Mrs. McDonald filed for modification. She alleged that her former husband was violating the decree’s provisions regarding visitation. She requested that the court designate a schedule and remove the provision prohibiting visitation in the presence of her lesbian partner. Due to the recusal of all three chancellors in Lee County, the Supreme Court appointed former chancellor William L. Griffin, Jr. to preside. Special Chancellor Griffin established a schedule giving Mrs. McDonald visitation on every second and fourth weekend. Chancellor Griffin stated that because the entry of a final order ends the appointment of a special judge, his order would initially be temporary, to turn permanent in six months provided no problems arose.

¶4. At the conclusion of this hearing Chancellor Griffin asked both parties whether they accepted the proposed visitation schedule. Mrs. McDonald was in agreement with the schedule. When Mr. McDonald was asked whether he accepted it, he responded that “[ujnder the terms that my attorney and you have explained it to me, I have no choice but to agree, Your Honor.” The chancellor stated that within ten days this order was to be signed by all parties and he would enter it.

¶ 5. Mr. McDonald later refused to sign the order. Consequently Mrs. McDonald filed a “Motion for Entry of Agreed Order.” A hearing was held on April 6, 1999. Mrs. McDonald also requested attorney fees incurred by her during the hearing. During this hearing, Mr. McDonald’s attorney filed a motion to withdraw. The motions for fees and for counsel to withdraw were granted. Mr. McDonald requested a continuance to obtain new counsel, but the chancellor refused. On April 14, the chancellor entered the order modifying the divorce decree without gaining the signature of Mr. McDonald or his counsel. One of the present appeals is from that order.

¶ 6. On June 25, 1999, another hearing took place. Mrs. McDonald, her counsel, and Mr. McDonald who appeared without counsel, were present. The same special chancellor presided. Various motions were heard. Included were two motions for contempt filed against Mr. McDonald for interference with his former wife’s visitation. After testimony from several witnesses, the chancellor found Mr. McDonald to be in direct contempt of court. Mrs. McDonald was awarded $1,500 in attorney fees. The court ordered that Mrs. McDonald have extended visitation until August 3, 1999, at which time a hearing was to be conducted to determine visitation, child support and the future custody of the children. The chancellor found that Mr. McDonald would do everything in his power to thwart the court’s visitation order; consequently, the chancellor ordered the bailiff and Mr. McDonald’s mother to retrieve the children from day care to ensure that the court could monitor the exchange of the children. The Lee County Department of Human Services was ordered to perform a home study of both parents’ home, with the purpose of establishing the “responsibility and suitability of any other adults living in either home.” These rulings were reduced to an order dated July 14, 1999, and Mr. McDonald has appealed here from that order.

¶ 7. A week later, Mr. McDonald filed a complaint in United States District Court, naming Special Chancellor Griffin among others as defendants and claiming that they had violated his civil rights. The federal suit was dismissed in October 1999 as being 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).

¶ 8. After a hearing on August 3, 1999, the chancellor entered an order for temporary custody of the two minor children with their mother, ordered child support by Mr. McDonald, and set a visitation schedule. Mr. McDonald appealed from the August 11 order setting out those rulings.

¶ 9. All appeals have been consolidated and deflected to this Court.

DISCUSSION

I. Jurisdiction of S-pecial Chancellor Griffin

¶ 10. Mr. McDonald asserts that Special Chancellor Griffin lacked authority. First, it is argued that Mississippi Constitution Section 165 gives the Governor sole authority to appoint a special judge after a recusal. Chancellor Griffin was appointed by then-Supreme Court Chief Justice Lenore Prather. By statute, which Mr. McDonald asserts is unconstitutional, the Chief Justice may appoint a special judge if the judges for that jurisdiction are “unwilling or unable to hear a case-” Miss.Code Ann. § 9-1-105 (Supp.2001).

¶ 11. When a statute’s constitutionality is challenged, a party must give notice to the Attorney General. M.R.C.P. 24(d). It is reversible error for a court to declare a statute unconstitutional without the Rule 24 notice. State v. Watkins, 676 So.2d 247, 250 (Miss.1996). No such notice was given. We reject Mr. McDonald’s argument that since the Attorney General represented Special Chancellor Griffin in the federal litigation, that this is sufficient notice. Explicit notice to the Attorney General of the existence of this litigation and the challenge to the statute’s constitutionality is required.

¶ 12. The constitutional issue arises from this provision:

Whenever any judge of the Supreme Court or the judge or chancellor of any district in this state shall, for any reason, be unable or disqualified to preside at any term of court, or in any case where the attorneys engaged therein shall not agree upon a member of the bar to preside in his place, the governor may commission another, or others, of law knowledge, to preside at such term or during such disability of disqualification in the place of the judge or judges so disqualified.

Miss. Const, art. 6, § 165 (1890).

¶ 13. This provision does not state that it is the exclusive mechanism for selection of special judges. The provision itself first sets out another alternative, namely, that the parties agree on a member of the bar as a replacement. The Governor’s authority is prefaced with the word “may,” indicating that the executive has personal discretion or perhaps that the use of this procedure is optional as opposed to using some other feasible but unstated procedure. The statute allowing an appointment by the Chief Justice also provides that if the Governor makes an appointment under his authority, the Chief Justice’s appointment becomes void. Miss.Code Ann. § 9-1-105(4) (Supp.2001). Thus the statute offers an explicitly subordinate alternative to the Governor’s constitutional power of appointment. We note these uncertainties about whether section 165 declares an exclusive procedure in light of the presumption of the constitutional validity of a statute. Board of Trustees of State Institutions of Higher Learning v. Ray, 809 So.2d 627, 636 (Miss.2002).

¶ 14. If the statute is constitutional, then the special chancellor could properly be appointed in this manner. Yet even were we to find that there were flaws in the procedure, the appointment was pursuant to law and made Griffin at least a de facto judge, whose orders are valid until the issue of authority is properly raised and determined:

Crocker defined a de facto officer as “ ‘one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, but without actual right thereto.’ ” [Crocker v. Sears, Roebuck & Co., 346 So.2d 921, 922 (Miss.1977) Kquoting Adams v. Mississippi State Bank, 75 Miss. 701, 725, 23 So. 395, 398 (1897) ...). We noted that, “[i]t is well settled in this state that acts of a de facto judge are valid, regardless of whether he was properly appointed or qualified or not....” Crocker, 346 So.2d at 922-23 (quoting Bird v. State, 154 Miss. 493, 500, 122 So. 539, 540 (1929)).

Barton v. Barton, 726 So.2d 163, 166 (Miss.1998). Chancellor Griffin was validly presiding over this case under the color of his appointment by the Chief Justice.

¶ 15. Because the issue was not properly presented by giving notice to the Attorney General, and because we find that in all events the appointment made the special chancellor at least a de facto officer, we find no basis to doubt the authority that may be given in this manner.

¶ 16. It is also alleged that Griffin did not take the required oath. However, there is a filed stamped oath of office signed by Chancellor Griffin in the record.

¶ 17. The special chancellor had authority to act in this case.

II. Notice of Motion; Entry of Agreed Order Without a Party’s Signature

¶ 18. Mr. McDonald asserts that the April 14, 1999 order was no longer an agreed order by the time it was entered because he refused to sign it. He further asserts that he was entitled to five days’ notice of his own attorney’s motion to withdraw; not having received it, he needed a continuance.

¶ 19. By court rule, a party is entitled to five days’ notice before a hearing on a motion. M.R.C.P. 6(d). It makes sense to apply this rule to require an attorney to give his own client notice of a motion to withdraw. Yet we find that the certificate of service on the motion is dated March 25, 1999, indicates mailed notice to Mr. McDonald, and the hearing did not occur until April 6. When mailed notice is used, three days is to be added to the necessary period for notice. M.R.C.P. 6(e). This motion complied with the notice requirements.

¶ 20. As to the continuance to find another attorney, the grant or denial is within the discretion of the trial court. A denial for a continuance should only be overturned when “manifest injustice” has occurred. Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss.1993). The special chancellor determined that since Mr. McDonald had about two weeks’ notice of his counsel’s request to withdraw, that he should have obtained another attorney within that period of time if he needed one. The court also stated that the hearing was for the “ministerial act of entry of what this Court finds to be an order to which both of the parties, in open court, on the record, on March the 17th, 1999, agreed.” We find this to be a fair characterization of the facts that are relevant for whether denying a continuance was an abuse of discretion. We find no such abuse.

¶ 21. Mr. McDonald also argues that the order entered April 14, 1999, that modified the original divorce decree was invalid because he did not sign the order. We agree that there must be consent for a consent decree. Such consent did not exist at the time that the written order was ready for signature; it did exist at the earlier date that the terms of the order were finalized. At the conclusion of the initial hearing held on March 17, 1999, the following took place.

Chancellor: Mr. McDonald, you’ve heard everything I’ve said, and do you understand everything that I’ve said.
Mr. McDonald: Yes, Your Honor.
Chancellor: Okay. Is this your agreement, and you agree to everything that we’ve come to?
Mr. McDonald: Under the terms that my attorney and you have explained it to me, I have no choice but to agree, Your Honor.
Chancellor: Well, whether or not you have a choice is between you and your lawyer, but are you satisfied with the services that Mr. Sparks has provided for you today.
Mr. McDonald: Yes, sir.

¶ 22. What is apparent is that Mr. McDonald agreed, if unenthusiastically, to the modifications that had been determined at this hearing. The hearing ended with the act of reducing that understanding to writing still to occur. Since Mr. McDonald subsequently refused to sign such an order, on April 6, 1999, a hearing was held on Mrs. McDonald’s motion for entry of the order. Mr. McDonald represented to the court that he had not realized some of the terms to which he was indicating agreement at the previous hearing, including the precise visitation frequency and dates.

¶ 23. The order entered on April 14, 1999, asserted that it represented the earner agreement of the parties but was signed after Mr. McDonald withdrew his consent. The special chancellor entered the order because it was “consistent with the Court’s comments and with the agreement announced by the parties in the hearing on March 17,1999.” We therefore interpret the order as based on the special chancellor’s conclusion that Mr. McDonald, having intelligently agreed to the order at the earlier hearing, would remain bound.

¶ 24. The issue this raises is whether a party can through counsel first agree to a judgment and then, prior to the entry of the order reflecting that judgment, withdraw his consent. What caused the withdrawal of consent to become apparent here is that Mr. McDonald’s signature on the order was sought. Had the special chancellor himself prepared the order and entered it without seeking the parties’ signature, so long as it properly reflected the agreement stated in open court, Mr. McDonald would have been limited to making an argument under Rule 60(b) that mutual mistake, fraud, or some other adequate ground permitted the modification of the order. M.R.C.P. 60; Dunn v. BL Development Corp., 747 So.2d 284, 285 (Miss.Ct. App.1999). Should these sorts of limitations on challenging the order apply even prior to its formal entry?

¶ 25. A consent judgment is in the nature of a contract. Parker v. Parker, 434 So.2d 1361, 1362 (Miss.1983); Guthrie v. Guthrie, 233 Miss. 550, 553, 102 So.2d 381, 383 (1958). Here, a settlement was announced in open court and all that remained was to reduce its orally stated terms to writing for judicial signature. We consider that question under traditional contract rules:

Whether contracting parties are bound by an informal agreement prior to the execution of a contemplated formal writing is a matter of intention to be determined by the surrounding facts and circumstances of each particular case.

WRH Properties, Inc. v. Estate of Johnson, 759 So.2d 394, 397 (Miss.2000), quoting Mid-Continent Tel. Corp. v. Home Tel. Co., 319 F.Supp. 1176, 1189 (N.D.Miss. 1970). We find that the circumstances of announcing in open court the settlement of the dispute that is the purpose for that hearing, with a recital of the terms of the settlement into the record, followed by an agreement to end the hearing, reflects an intention to be bound at that time.

¶ 26. Absent any showing that the final written order did not reflect the agreement announced in court, or any identification of a matter cognizable under Rule 60 that could lead to setting aside a consent decree after being entered — and neither showing exists here — we find that the parties were bound by their agreement even before it was reduced to a formal written order.

III. The Cost of Appeal.

¶ 27. Mr. McDonald maintains that the wrong statute was used to determine the costs that he was to pay for the appeal. Appellee, perhaps unconcerned about the clerk’s finances, does not address the issue. We thus examine the claim without the benefit of a response.

¶ 28. Mr. McDonald makes two specific claims. First is that the chancery clerk charged two dollars a page for the transcript and record, when the statute that the clerk referenced is actually for circuit clerks. The point has initial plausibility. The supplemental cost bill submitted by the clerk sought the following:

Clerk’s file 140 pages @ $2.00 per page $280.00
Exhibits 370 pages @ $2.00 per page $740.00

¶ 29. The clerk informed McDonald that the “fees are calculated per Section 25-7-13(6)_” What gives McDonald’s claim plausibility is that section 25-7-13 is entitled “Fees for Circuit Clerks,” while section 25-7-9 is the one entitled “Fees for Chancery Clerks.” However, the specific section of the circuit clerk statute that the chancery clerk referenced stated this:

(6) For making final records required by law, including, but not limited to, circuit and county court minutes, and furnishing transcripts of records, the circuit clerk shall charge Two Dollars ($2.00) per page. The same fees shall be allowed to all officers for making and certifying copies of records or papers which they are authorized to copy and certify.

Miss.Code Ann. § 25-7-13(6) (Supp.2001) (emphasis added). It is difficult to imagine what might be meant by “all officers” unless it is those public officials in addition to circuit clerks whose records may need to be copied and certified. Indeed, it makes little sense for a circuit clerk to get one fee for copies of records generated in that court and a clerk performing the identical function for another court receive a different fee. We find no corresponding provision in the chancery clerk statute that sets a fee for making copies of records for appeal. There is a chancery clerk provision statute for certifying copies of filed documents. Miss.Code Ann. § 25-7-9(l)(a) (Rev.1999). That would appear to apply to such certifications as might be needed if someone wanted a copy of a filed deed or will. Another section permits a 50 cents per page fee for making a copy of any filed document. Miss.Code Ann. § 25-7-9(l)(e) (Rev.1999). That would be the charge whenever a chancery clerk is making an uncertified copy of a recorded document to give to a member of the public.

¶ 30. The relationship between these statutes on chancery and circuit clerk fees can be better understood by a review of the initial enactment from which both statutes are derived. In 1928, the Mississippi legislature adopted a comprehensive “Act fixing [the compensation for sheriffs;] ... the fees, salaries, and compensation of the chancery clerks, the county auditor, and clerks of the boards of supervisors; and the fees, salaries and compensation of the clerks of the circuit courts.... ” 1928 Miss. Laws ch. 87 caption. Section 1 of the 1928 Act contained multiple paragraphs setting fees and other compensation for sheriffs. A caption appeared immediately before the entire section, stating “Sheriffs: compensation.” Later paragraphs of Section 1 also had captions, such as “Fees,” “Sheriffs: additional fees,” and “Sheriffs fees in criminal cases in which the state fails.” Similarly, Section 2 which provided lengthy compensation and fee rules for chancery clerks, had the initial heading “Chancery clerks: compensation.” Subsequent paragraphs of Section 2 had headings such as “Filing and recording fees allowed,” and “Fees for attending court.” The first heading for Section 3 was “Circuit clerks: compensation.” Later paragraphs had headings as well. The last paragraph in Section 3, all of which until then specifically referred in the heading or text to circuit clerks, was entitled “All officers: certification fees allowed.” It is there that the predecessor language to section 25-7-13(6) was first enacted. Though the rate of compensation has changed (in the pre-photocopy technology version, the charge was by the word), the relevant language is otherwise identical. It closed by saying “and the same fees shall be allowed to all officers for making and certifying copies of records or papers which they are authorized to copy and certify.” 1928 Miss. Laws ch. 87, at 119. The purpose is evident. The Act set the fees and compensation for a variety of offices, usually did so in specific sections for specific officials, but in the paragraph relevant for us dealt collectively with all officers making official transcripts.

¶ 31. The only specific statute relating to making copies of final records and transcripts may be in a statute generally related to circuit clerks, but it specifically provides that all other officers may charge the same. Therefore, section 25-7-13(6) is the appropriate statute for the chancery clerk.

¶ 32. We note that the chancery clerk on October 13, 1999, sent an estimate of costs to Mr. McDonald, asserted that $2.00 per page under the statute just named was the correct charge, but informed him that a charge of $1.00 per page that had earlier been quoted to Mr. McDonald would be honored. For whatever reason, on March 27, 2001, the chancery clerk sent a notice to the Clerk of the Supreme Court and Court of Appeals that the amount tendered by Mr. McDonald was unsatisfactory and that an additional deposit — based on $2.00 per page — would need to be paid. M.R.A.P. 11(b)(2) (supplemental request may be made by clerk and ruled on by trial judge). It is this extra charge that is challenged by Mr. McDonald.

¶ 33. Mr. McDonald initially deposited $150.00. When the chancery clerk in October 1999 informed him that he would hon- or the $1.00 per page charge, the amount necessary for costs would have been $701.00, less the $150.00 already paid. Apparently, the extra amount was not paid because in 2001 when the $2.00 per page charge was submitted, the chancery clerk indicated that only $150.00 had been received. On May 18, 2001, the special chancellor granted the clerk’s request.

¶ 34. We consider the chancery clerk’s October 1999 statement that it would hon- or the $1.00 per page charge to have been an offer. Had Mr. McDonald paid the lower amount at that time, we have serious question of whether the clerk later could increase the estimate of costs based on the higher per page charge and thereby require an additional payment. However, since Mr. McDonald allowed 17 months to pass without paying anything more than his personal estimate of $150.00 for the appeal, we do not find an abuse of discretion in the trial court’s decision to require Mr. McDonald to pay the statutorily required amount.

¶ 35. The other claim by Mr. McDonald is that the chancery clerk has not posted his fees in a conspicuous place as required by law. Miss.Code Ann. § 11-53-79 (1972). According to that statute, the clerk is not entitled to receive a fee for “any service rendered during the time of such failure” to post the fee schedule. Id. However, Mr. McDonald does not point us to any part of the record in which evidence appears of a failure to comply with this statute. There is a letter in the record that Mr. McDonald sent to the chancery clerk, asserting that his “latest visit to your office reveals you have not complied with this mandatory legislative code.” A party’s assertion in an unsworn letter does not prove the existence of any stated fact. Having failed to present evidence of such a failure to post a schedule, Mr. McDonald cannot avoid the payment of the fees.

TV. Contempt Hearing

¶ 36. Mr. McDonald was found in contempt on two counts of the court’s order that had been entered on April 14, 1999. A finding of contempt is proper when one party has “willfully and deliberately” disobeyed an order of the court. Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997). Contempt matters are committed to the sound discretion of the trial court and their resolution will not be disturbed absent a showing that a finding of contempt was not based on substantial credible evidence. Caldwell v. Caldwell, 579 So.2d 543, 545 (Miss.1991).

¶ 37. The first contempt motion, which was filed on May 7, 1999, alleged that Mr. McDonald unreasonably interfered with Mrs. McDonald’s visitation rights. The second contempt motion was filed on June 9, 1999. It dealt with Mr. McDonald’s refusal to cooperate with his ex-wife in establishing dates for the extended visitation as required by the April 14,1999 court order. The chancellor found Mr. McDonald in direct contempt for each charge. Mr. McDonald argues that the lower court committed error by denying him the right to have a jury trial.

¶ 38. Generally there is no right to a jury trial in chancery court. The constitutional right to a jury trial would arise if Mr. McDonald was to be tried on a serious criminal charge. Walls v. Spell, 722 So.2d 566, 572 (Miss.1998). If the offense has a maximum sentence of no more than six months incarceration, that is generally considered a petty crime. Blanton v. City of North Las Vegas, 489 U.S. 538, 543, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989). Since the sentence for criminal contempt in Mississippi has no statutory limit, “we look to the penalty actually imposed as best evidence of the seriousness of the offense.” Walls, 722 So.2d at 572. Here, no sentence was imposed. Mr. McDonald was required to pay $1500 attorneys fees and court costs. We do not find that a substantial enough penalty as to be the equivalent of a sentence for which a jury trial is necessary.

¶ 39. This finding of contempt was only civil and not criminal if it was a mechanism to acquire obedience to an order of the court. Common Cause of Mississippi v. Smith, 548 So.2d 412, 415 (Miss.1989). For example, incarcerating someone only until the detainee agrees to abide by a court order would be civil contempt. Criminal contempt is punishment for past misbehavior; civil contempt is encouragement for future proper behavior. Since Mr. McDonald was not incarcerated at all, it is difficult to categorize this finding. Regardless, no jury trial was needed.

¶ 40. The record is replete with instances in which Mr. McDonald’s behavior was deliberate. The chancellor’s decision to hold Mr. McDonald in direct contempt of the April 14 order is supported by substantial evidence. The chancellor determined that Mr. McDonald intended to refuse to comply with the modification of the divorce decree and would make a mockery of the legal system in doing so. The evidence was sufficient for a finding of contempt. Awarding costs and attorneys fees because a contemptuous party has necessitated the holding of a hearing to enforce a prior order of the court is appropriate. Mount v. Mount, 624 So.2d 1001, 1005 (Miss.1993). That was the only significant effect of the finding of contempt.

¶ 41. Mr. McDonald again challenges this chancellor’s authority for ruling at all. He alleges that the chancellor’s power was extinguished upon the appeal of the April 14, 1999 order. An appeal without a supersedeas bond does not stay an order of the court; violation of the appealed order subjects a party to contempt proceedings. Vockroth v. Vockroth, 200 So.2d 459, 463 (Miss.1967).

¶ 42. Mr. McDonald asserts that Special Chancellor Griffin did not have jurisdiction to preside over the contempt proceedings. “We have held that the duration of a special judge’s appointment will be determined by the order of appointment.” Barton v. Barton, 726 So.2d 163, 166 (Miss.1998). The appointment order filed on January 11, 1999, authorized Special Judge William L. Griffin to “preside and conduct proceedings in the above referenced case pursuant to and by the authority of Miss.Code Ann. Section 9-1-105.” That statute, which provides for appointment of special chancellors, also provides that the appointment order “shall describe as specifically as possible the duration of the appointment.” Miss.Code Ann. § 9-1-105(8) (Supp.2001). Though the specificity is limited, it would appear that the special chancellor’s authority continues until the proceedings are concluded. The mere appeal of an order during ongoing proceedings did not extinguish the appointment. Matters of custody and failure to comply with visitation remained open, and as indicated below, several months later a temporary change in custody was ordered.

¶43. Mr. McDonald also asserts that the special judge was personally involved and biased, thereby preventing McDonald from receiving a fair trial on contempt. We find no evidence in the record of such bias. “A presumption of impartiality exists that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a ‘reasonable doubt.’ ” Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135, 1141(Miss.2002). We find that Mr. McDonald has produced nothing more than mere allegations.

V. Temporary Order Entered August 11, 1999.

¶ 44. Mr. McDonald’s final assertion of error deals with the procedure underlying an order for a temporary change in custody of the two youngest children to their mother, entered on August 11, 1999. That order also granted Mr. McDonald visitation during the period of the temporary order, and required that he pay child support.

¶ 45. We find no procedural irregularity in the hearing on the temporary order. The chancellor had announced at the end of a prior hearing on June 25,1999, that he wanted after a home study had been conducted regarding both parents, to have a hearing on custody and other matters. After some delays, that hearing led to the order that is challenged. The special chancellor made appropriate findings for why he was temporarily changing custody, including Mr. McDonald’s continuing interference with his former wife’s visitation with the children who were in his custody.

¶ 46. What is not here for our review are any rulings since the temporary order. The 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).

¶ 47. THE JUDGMENTS OF THE CHANCERY COURT OF LEE COUNTY AWARDING AN ADDITIONAL $1,106 IN NECESSARY COSTS FOR APPEAL, FINDING HOWARD CLAY-BORNE MCDONALD, JR. TO BE IN CONTEMPT, AND MODIFYING THE FINAL DIVORCE DECREE ARE AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The Supreme Court's official comment to the Rule provides that failure to give the notice "does not deprive the court of jurisdiction to decide the case.” M.RC.P. 24 cmt. How that should be interpreted in light of State v. Watkins, which is cited in the comment, is unclear.


source: Caselaw Access Project

author: SOUTHWICK, P. J., for the court. IRVING, J.,

license: Public Domain

text:
    Vivian RASBERRY and Eric Scott Pope, Appellants, v. BLUE CROSS & BLUE SHIELD OF MISSISSIPPI, Appellee.
    No. 2001-CA-01282-COA.
    Court of Appeals of Mississippi.
    Oct. 8, 2002.
    Rehearing Denied Jan. 14, 2003.

      Michael S. Allred, Jackson, Matthew A. Taylor, attorneys for appellants.
    Cheri D. Green, Cynthia Lynn Street, Jackson, attorneys for appellee.
   SOUTHWICK, P. J., for the court.

¶ 1. Summary judgment was granted in favor of Blue Cross and Blue Shield on a claim of bad faith delay in payment of benefits. The plaintiffs appeal arguing that there were disputes of material fact regarding bad faith. In addition, it is argued that the issue on which summary judgment was granted was not properly before the court. We reject both arguments and affirm.

FACTS

¶2. Eric Scott Pope was injured in a motor vehicle accident in May 1998. It appears that there is other litigation regarding the accident, alleging negligence by the operator of a truck and trailer. Pope’s mother is Vivian Rasberry, an employee at the time of the accident of the Neshoba County General Hospital. In the hospital’s employee benefit plan, her son was a covered dependent. According to documents introduced at the time of summary judgment, the hospital was self-insured, while Blue Cross & Blue Shield of Mississippi was the claims administrator. An administrative services contract had been executed by the hospital and Blue Cross.

¶ 3. The complaint in this suit against Blue Cross is that in its processing of the claims for medical care, it had been wilfully negligent, that it had failed to provide reasonable care, and that it had committed the independent tort of bad faith by denying or delaying payments in a grossly negligent or wilful manner.

¶ 4. Blue Cross answered by asserting its status solely as the claims administrator. It stated that it had acted according to its legal responsibilities, and that as the administrator for processing claims it was not the proper party. It did not identify the proper party, but presumably it would have been the self-insured Neshoba General Hospital.

¶ 5. The acts revealed in the record regarding the processing of the claims are these. Blue Cross sent a letter to Rasber-ry on June 15, 1998, that it had received a claim for medical services regarding these injuries. In order for Blue Cross to determine what other insurance companies might provide coverage, it explained these provisions of the plan:

Your contract contains third party liability and work related injury exclusions. It further provides reimbursement rights should the company pay benefits for such services.
Also contained in your policy is a coordination of benefits provision intended to avoid duplicate payments when, a person has available to them other medical expense coverage.
In order to determine proper liability, please complete the form on the reverse side and return in the enclosed envelope.

¶ 6. This June letter started a series of exchanges between Blue Cross and the plaintiffs’ attorney. In September 1998, Blue Cross responded to plaintiffs’ counsel with requested, information on the health plan. In February 1999, Blue Cross responded to counsel’s objections to the sub-rogation and third party liability provisions. Blue Cross acknowledged receiving some of the information that it needed, but said “we continue to need to know whether automobile medical payment monies were or are available to Mr. Pope.”

¶ 7. Additional correspondence followed. Included was information that the automobile policy had covered $5,000 of the medical bills. In March 1999, Blue Cross stated that this information would allow it to process the balance of certain medical bills.

¶ 8. A reimbursement and subrogation agreement had been sent to the plaintiffs and their counsel. Blue Cross stated in a March 1999 letter that it was willing to redraft it in light of what it perceived to be counsel’s concern, so that its lien would not apply to the one-third of any recovery from litigation that would be used for attorneys’ fees and expenses.

¶ 9. On March 29, 1999, Blue Cross informed plaintiffs’ counsel of a recent Supreme Court decision. Hare v. Mississippi, 733 So.2d 277 (Miss.1999). According to the letter, the case required that an insured be “made whole” as to his injuries and any reimbursement would only apply to the excess. Blue Cross asked for information that it thought was necessary to apply this ruling. Though there continued to be disputes, a reimbursement and sub-rogation agreement was signed by Blue Cross on June 8, 1999, and by Eric Pope on July 23,1999.

¶ 10. Blue Cross filed for summary judgment on January 24, 2001. It asserted that as a claims administrator, Blue Cross could not under established law be liable for the terms of the hospital’s self-insured plan. On February 14, plaintiffs filed a response memorandum. It noted that the complaint asserted bad faith against Blue Cross, that bad faith would prevent the law cited by Blue Cross from applying, and that material issues of fact regarding bad faith existed. The memorandum identified the source of the bad faith as being the insistence by Blue Cross on satisfying two “illegal” provisions of the plan, namely the third party exclusion and subrogation provisions.

¶ 11. Blue Cross did not amend its summary judgment motion. Instead, on .March 2, it filed a rebuttal memorandum that there was no dispute of material fact as to bad faith. It argued that the provisions of the plan that had caused the delay in processing the claims were legal, approved by the state insurance commissioner, and consistent with state law.

¶ 12. A hearing on the motion was held on May 22, 2001. Blue Cross presented its arguments. Plaintiffs’ counsel argued that bad faith was not an issue in the motion, since Blue Cross had never amended the motion itself. The trial judge disagreed, and required that counsel respond to the arguments about bad faith. On May 29, 2001, the court granted summary judgment and ordered the case dismissed. Following denial of reconsideration, the plaintiffs appealed.

DISCUSSION

¶ 13. Plaintiffs argue on appeal that the only issue before the trial court was whether the administrator was exempt from liability. If bad faith would make an administrator liable, plaintiffs alleged that this possibility as a factual matter could not be considered at the hearing. Unless Blue Cross amended its motion to asset that it had not acted in bad faith, the issue was not before the court. Secondly, the plaintiffs argued that regardless of the procedural question, there were disputes of material fact regarding bad faith that required the denial of the motion.

¶ 14. On review of summary judgment, the appellate court is to be vigilant that this judge-made conclusion to the litigation without a trial was proper. No deference is given to the trial judge’s fact-findings, as the facts set out in affidavits, depositions, and other documents are as meaningfully examined by the appellate judges as by the trial judge. As always, legal issues are evaluated anew. When that examination is over, judgment should be affirmed if there were no disputes of material fact to be tried and the legal result of the undisputed facts was correctly reached. Conversely, if we find that the trial judge has resolved contested and material facts during this process, we should reverse and remand. Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993). The party seeking judgment has the burden of showing that no genuine issue of material fact exists to try. Crum v. Johnson, 809 So.2d 663, 665 (Miss.2002).

¶ 15. We look at the procedural question first.

1. Issues before the court on summary jtcdgment

¶ 16. Blue Cross sought summary judgment because, as the claims administrator, it allegedly could not be liable for the operation of the plan. The plaintiffs responded that an exception existed to Blue Cross’s point. The exception was that liability arises if the administrator’s acts were in bad faith as a result of gross negligence, malice, or reckless disregard of the rights of the beneficiary.

¶ 17. Here as below, the plaintiffs allege that the bad faith issue should not have been considered since Blue Cross did not amend its summary judgment motion or file a new one to include references to bad faith; further, it did not attach supporting evidence. Few are the pleading rules that bar a court from acting when there is notice of the issues to be addressed, and they are fully presented. Even in a trial on the merits, matters unsupported by pleadings can be tried by consent. M.R.C.P. 15(b). If consent is given by acts, it cannot later be withdrawn by words.

¶ 18. The first issue we face is the extent to which any response was even needed from Blue Cross. Its motion stated that it was entitled to judgment because of its relationship to the plaintiffs. The plaintiffs responded that even when that relationship existed, there would be liability if certain facts were shown to exist. No facts in the form of an affidavit or other evidence were offered to support that basis for denying judgment. Instead, a straightforward legal argument was made that two provisions in the plan being administered by Blue Cross and which the plaintiffs had been reluctant to follow were illegal. Blue Cross’s reliance on them was bad faith, plaintiffs charged. No disputed facts existed from this, only a legal argument.

¶ 19. In sum, Blue Cross was seeking a favorable judgment based on the fact that it was the plan administrator and as such would have no liability to a beneficiary of the plan. The plaintiffs’ response was an acceptance of that position with a proviso, namely, that a plan administrator was liable if it acted in bad faith. That response meant that the point of law was more fully explained, but there were no disputed facts to support the proviso, only legal argument.

¶ 20. The evidence before the court were the attachments made by Blue Cross to its motion, which included a dozen documents setting out its role in the matter. We have referred to some of them already, which was the plan itself, a contract between Blue Cross and the hospital, and correspondence with plaintiffs’ counsel that explained the need for certain information. The evidence and the legal argument by the plaintiffs were combined. The only facts that it alleged about bad faith was that the subrogation and third party exclusion provisions that Blue Cross followed were illegal. The third party exclusion provision was said to be overbroad, and the subrogation/reimbursement provision “a clear violation of Mississippi law.” Since Blue Cross “based its denial of Plaintiffs’ claims on Plaintiffs’ failure to sign a blatantly illegal agreement, its denial constituted a bad faith denial of payments without any arguable and legitimate reason therefor.”

¶ 21. The law being argued by Blue Cross was that as a mere claims administrator, it had no liability to a beneficiary of the plan for delayed payment. The plaintiffs’ argument was that indeed there was liability if Blue Cross acted in bad faith.

¶ 22. We need to determine whether any further pleadings by Blue Cross were needed. A pre-eminent authority on the almost identical federal procedural rules wrote that a “court may enter judgment on a ground not mentioned in the motion if the parties have had an adequate opportunity to argue and present evidence and summary judgment otherwise is appropriate.” 10A Chakles Alan WRIght, et al„ FedeRAL Prac. & Proc. § 2719 (1988), at 15. The cases address whether the grounds are fully explored factually despite not being specifically mentioned legally. Wolf v. Buss (America) Inc., 77 F.3d 914, 921 (7th Cir.1996); Wilder v. Prokop, 846 F.2d 613, 626 (10th Cir.1988). Other cases address whether a specific legal claim has been raised by the plaintiffs even though not in the complaint. Gilley v. Protective Life Ins. Co., 17 F.3d 775, 781 (5th Cir.1994) (plaintiff did not mention an issue in complaint or any other time until responding to summary judgment; trial court had to consider that new issue in ruling on motion). Certainly, if there is not adequate notice, summary judgment on the new ground should not be granted. John Deere Co. v. American Nat. Bank, 809 F.2d 1190, 1192 (5th Cir.1987) (ground injected by court, not raised by moving party, and factually not fully presented). No amendment to the motion was necessary.

¶ 23. Even if there was some technical flaw in Blue Cross’s motion, the issue was fully presented and was ready for resolution. It is true that at the motion hearing, plaintiffs’ counsel argued that the bad faith question was not ripe. The circuit judge disagreed. It is not for a litigant to decide at a hearing, after an issue has been fully joined by the motion and response, that it should no longer be considered joined. If a party is on adequate notice of an additional issue to be considered at the motion hearing, if everything regarding that issue is before the court, then it is ripe for consideration as much as any issue specifically in the motion. The bad faith exception, based on “illegal” contract terms, was ready to be decided.

¶24. Insofar as Blue Cross’s counsel stated that the issue in its motion was that the administrator was not the proper party, that is simply the legal effect if there is no bad faith. In Blue Cross’s view, it was not the proper party because absent evidence of bad faith, there was nothing on which the plaintiffs could base these claims against them. We do not see that Blue Cross was saying that bad faith should not be addressed by the judge, only that since there was a total absence of evidence regarding it, independent liability for the claims administrator never arose. Thus Blue Cross remained an improper party in a suit by the beneficiary. That was indeed a legal question, as the only thing that would make Blue Cross a proper party was the legal effect of the disputed provisions.

¶ 25. In the frequently repeated aphorism, a court “does not try issues on a Rule 56 motion; it only determines whether there are issues to be tried.” Townsend v. Estate of Gilbert, 616 So.2d 833, 335 (Miss.1993). When there are no disputes of relevant fact but only disputes of relevant law, there is no basis for a trial. The party seeking judgment has the burden of showing that no genuine issue of material fact exists to try. Crum v. Johnson, 809 So.2d 663, 665 (Miss.2002). The facts on whether Blue Cross was a claims administrator and the provisions that allegedly were illegal were fully before the trial court. Bad faith was not to be determined from disputed facts, but instead from disputed law on the validity of the subrogation and third party exclusion provisions.

¶ 26. The central question for the trial judge was whether “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The precision of pleadings is not what controls but whether notice of the issues has been full and fair. The plaintiffs are the ones who raised the bad faith point. They alleged that the provisions that Blue Cross was trying to enforce were illegal and that is where the bad faith arose. If these provisions were not illegal, then the “facts” alleged by the plaintiff, which were the provisions themselves, were undisputed and immaterial. If the provisions were illegal, then perhaps Blue Cross’s knowledge of illegality becomes relevant and disputed. That point is never reached if the provisions themselves are legally valid.

¶ 27. Based on the evidence available, not on evidence that might later be presented, a trial “court’s decision is reversed only if it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party.” Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss.1999). The trial court should grant the motion if it “finds that the plaintiffs would be unable to prove any facts to support his claim.” Smith v. Braden, 765 So.2d 546, 549 (Miss.2000). Therefore, the validity of this summary judgment rises and falls on whether these were enforceable provisions. That is a question of law. We now turn to that question.

2. Evidence of bad faith

¶28. The initial legal point on Blue Cross’s potential liability is that its status as the administrator for claims and not the actual insurer limits its liability. The Supreme Court examined a similar issue in a suit involving the City of Tupelo. Bass v. California Life Ins. Co., 581 So.2d 1087 (Miss.1991). The City obtained a policy from California Life Insurance Co., which in turn contracted with an “administrative organization” entitled Variable Protection Administrators, Inc. The Supreme Court adopted a standard from a federal court precedent involving insurance adjusters, as the one also applicable to a claims administrator:

The relationship between an adjuster and the insured is a purely contractual one. The adjuster does not owe the insured a fiduciary duty nor a duty to act in good faith, as the plaintiff claims.
An adjuster has a duty to investigate all relevant information and must make a realistic evaluation of a claim. However, an adjuster is not hable for simple negligence in adjusting a claim. He can only incur independent liability when his conduct constitutes gross negligence, malice, or reckless disregard for the rights of the insured.

Dunn v. State Farm Fire & Casualty Co., 711 F.Supp. 1359, 1361 (N.D.Miss.1987) (citations omitted), quoted in Bass, 581 So.2d at 1090. The Supreme Court concluded that Dunn “provides the better standard for an adjuster/administrative agent such as VPA.” Bass, 581 So.2d at 1090.

¶ 29. Since bad faith must be shown, we look at the argument that Blue Cross’s bad faith is shown by its seeking compliance with two allegedly illegal terms in the hospital’s plan. A Blue Cross exhibit to summary judgment showed that both provisions had been presented to and approved by the state insurance commissioner. One stated that benefits would not be paid for an “injury growing out of an act or omission of another party for which a claim or recovery is or will be pursued. If no claim or recovery is or will be pursued, Benefits otherwise will be available under the terms of this Plan.” No authority was cited in the trial court brief nor on appeal as to why that is illegal. The caselaw that the plaintiffs discussed applied to the subrogation provision. The two provisions work together, and thus we turn to the provision for which some argument is presented.

¶ 30. The other challenged provision required that a beneficiary sign a reimbursement or subrogation agreement. By statute, insurance companies are permitted to require “information essential for the insurer to administer coordination of benefits and subrogation provisions” of their policies. Miss.Code Ann. § 83 — 9—5(h) (Rev.1999). The attorney for the plaintiffs exchanged several letters with Blue Cross regarding the coordination of benefits with other insurance providers and the need for the subrogation or reimbursement agreement to be executed. As to the timing of these letters, the accident occurred in May 1998, the first letter referenced in the exhibits is in June 1998, and additional letters were sent between the attorney and Blue Cross in September 1998, and February, March, April and June 1999. The decision on which the plaintiffs now rely was handed down in March 1999. We briefly note what that did to insurance subrogation law.

¶ 31. The Supreme Court held that an insurance company had no right to be reimbursed for its payments until the insured had been fully compensated for injuries. Hare, 733 So.2d at 284. The case in no way rejected provisions for subrogation or found that an insurance company’s insistence on the right was in some fashion bad faith. Instead it only discussed the operation of subrogation. See JeffRey Jackson, Mississippi Insurance Law § 13:15 (2001) (discusses Hare, and points out that the federal Employee Retirement Income Security Act governs most group plans, not state law).

¶ 32. Hare was decided on March 18, 1999. On March 29, Blue Cross sent a letter to the plaintiffs’ attorney noting the opinion, and seeking the information necessary to apply the “make whole” principle. Rehearing in Hare was denied on May 6,1999, and on June 8 Blue Cross had executed a reimbursement agreement that specifically referred to Hare. It stated that the beneficiary “will, out of the amount recovered in excess of the amount necessary to make him whole,” reimburse Blue Cross for the benefits that it had paid. Pope as the injured party signed the document in July.

¶ 33. The only question as to bad faith is the one that arose from Hare. Almost immediately upon that decision being released, Blue Cross as plan administrator communicated with the plaintiffs’ attorney and discussed what was needed to implement the “make whole” concept. This does not create a jury question as to bad faith. There was no procedural irregularity, no surprise, and no dispute of material fact. We affirm summary judgment that, since no bad faith was shown, Blue Cross was entitled to be released from liability.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANTS.

McMILLIN, C.J., BRIDGES, LEE AND BRANTLEY, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., THOMAS AND MYERS, JJ. CHANDLER, J., NOT PARTICIPATING.

IRVING, J.,

Dissenting:

¶ 35. The majority holds that the grant of summary judgment was proper in this case even though the non-moving party was never given a fair opportunity to oppose it. Such a holding, in my judgment, is a throwback to the days of trial by ambush; therefore, I respectfully dissent.

¶ 36. Blue Cross’s motion for summary judgment alleged:

Blue Cross is the Claims Administrator for the employee benefit health plan sponsored and funded by Neshoba County General Hospital. As Claims Administrator, Blue Cross is to determine, in accordance with the plan, the qualification for payment of claims submitted and to process claims and disburse payments pursuant to the plan. Blue Cross does not have discretionary authority or control to manage the Plan. Claims Administrators, such as Blue Cross, lacking any discretionary authority, cannot be held liable, as a matter of law under Mississippi law.

The contract between Blue Cross and Neshoba County Hospital was attached to the motion as well as several other documents purporting to show what Blue Cross had done as plan administrator.

¶ 37. In reaching the result it reaches today, the majority concludes that Blue Cross’s pleadings were sufficient to put Rasberry on notice that what Blue Cross was actually saying was that:

Claims Administrators, such as Blue Cross, lacking any discretionary authority, cannot be held hable, as a matter of law under Mississippi law, and if we are mistaken in this assumption, our second defense is that we have not acted in bad faith in the delayed payment of the claims which we admit were compensa-ble all along.

¶ 38. I should point out that the majority’s interpretation of what Blue Cross intended by its pleading is more generous than Blue Cross’s own interpretation. On two occasions, Blue Cross expressed what it considered to be the real thrust of its motion. The first occasion was in its response to Rasberry’s Rule 56(e)(f) motion which will be discussed later in this opinion. In its response, Blue Cross stated:

Blue Cross is not the proper party in this suit. Blue Cross is the Claims Administrator of a Self-Funded Group Health Plan Sponsored by Neshoba. This Court can determine, as a matter of law, whether Blue Cross is the proper party to this action.

The second time that Blue Cross explained what it was asserting in its summary judgment motion was during the hearing on the motion. At the very beginning of the hearing, Blue Cross’s counsel said: “Blue Cross filed this motion in January for summary judgment, and its primary argument was that they are not the proper party in this cause.” At a later point during the hearing, Blue Cross’s counsel said:

The district court in Burley versus Home Owners Warranty Court [sic] held that claims administrator could [sic] perform strictly administrative functions without discretionary authority cannot be held liable under Mississippi law.
The cases that are cited by the plaintiffs have not overruled or changed this — the law in Burley. It only stated that an adjustor or administrator can incur independent liability if their acts constitutes [sic] gross negligence, malice or reckless disregard for right of insured.

At still a later point in the argument at the hearing, Blue Cross’s counsel said:

Judge, our motion is that basically we are not the proper party to this action. Neshoba County is the one who — the plan belongs to them. The provisions within the plan belong to them. The provisions are legal.
And even if we are the proper party, everything that we did was proper.

The above quotes from the transcript of the hearing on the motion for summary judgment leave no doubt as to Blue Cross’s view of the intended scope of its motion for summary judgment. The majority’s attempt at explaining away the effect of Blue Cross’s unequivocal assertion that Blue Cross was not a proper party is indeed intriguing. The majority says that all Blue Cross was saying by its argument is that “that is the legal effect of a finding of no bad faith.” I cannot imagine how such a finding can be made if one is not a proper party to the lawsuit. One must be in a lawsuit in order for one’s actions to be scrutinized.

¶ 39. Rasberry’s counsel correctly understood the limited scope of the motion. This is shown not only by the pleadings that he filed but also by his argument during the hearing on the motion for summary judgment. This is what the record reflects:

The actual legal issue that we’re here to argue today is that Blue Cross is only the claims administrator for the plan. As such, Blue Cross cannot be liable for alleged improper handling of Vivian Rasberry and Eric Scott Pope’s claims for benefits.
* * * * * *
If the counsel opposite wants to raise any arguments as to the merits of our claims for bad faith, they can do so on another summary judgment motion. But the only issue that has been raised here today is whether Blue Cross is a proper party to this action as a claims administrator.
* * # * * *
And based on the motion that’s before the Court today, all that the defendants are saying is that there cannot be any liability. We’re not here to argue the merits of the case as to whether they are liable or not liable for bad faith. BY THE COURT: I want to hear it, so you might start arguing that.

¶ 40. Rasberry’s counsel, having correctly understood the limited scope of the motion, made a proper response to that limited thrust. To say that one is not a proper party to an action is to say that one does not belong in the lawsuit because as a matter of law, notwithstanding what facts are proven, there is no liability against that party. To say that the undisputed facts require a judgment in one’s behalf is to say that one is a proper party to the lawsuit but his actions do not give rise to liability. Even though counsel for Blue Cross did assert at the end of her argument that everything Blue Cross had done was proper, she was careful to make the assertion only after reemphasizing her view that Blue Cross was not a proper party.

¶ 41. It escapes me how the majority can conclude that Rasberry was on notice that Blue Cross was pleading no liability due to lack of bad faith when Blue Cross itself did not share that view of the pleadings. While I am not at all certain that the doctrine of notice pleading applies to motions for summary judgment, I am certain that the opportunity for complete and full discovery is concomitant with the advent of notice pleading. So even if the majority is correct in its view of the pleadings, I cannot agree that, given the limited view of the summary judgment motion, which was shared by both parties, it was proper for the trial court to rule on the motion when it did.

¶ 42. In response to the motion for summary judgment, Rasberry filed a Rule 56(e)(f) motion wherein she asked the trial court to:

overrule and deny, or in the alternative to stay prosecution of, defendant’s Motion for summary judgment for the reason that no substantial amount of discovery has been taken in this case to date, and the said Motion is premature and not ripe for decision.... In the alternative, the Court’s decision of said Motion should be stayed or held in abeyance pending a course of pleadings and discovery which will permit proper disposition of such a Motion.
The specific discovery which plaintiffs need to take in order to properly meet the allegations of defendant’s Motion for Summary Judgment is the comprehensive production of - relevant documents, including underwriting and claims procedures manuals and related documents, and the M.R.C.P. Rule 30(b)(6) deposition of the defendant and the individual depositions of key underwriters and claims handlers of the defendant. Furthermore, plaintiffs require a reasonable time to retain and identify an expert witness who can testify with regard to the issues pleaded in this case.

¶ 43. Given the limited view of the motion as shared by both parties, it is unconscionable, in my judgment, that the trial court would not withhold ruling on the motion and allow Rasberry an opportunity to take discovery as requested in her Rule 56 motion. The majority concludes that Rasberry joined the broader issue of bad faith as a result of her response to the motion, and therefore, she had ample opportunity to show the existence of genuine issues of material facts regarding Blue Cross’s bad faith. Even if Rasberry, by her response, joined the issue, as the majority concludes, it is clear that this was an unwitting joinder for any purpose other than for the limited purpose of resolving the narrow issue as to whether a plan administrator may ever be held liable for its action, and, in the words of Shakespeare, “there is the rub.”

¶ 44. Notwithstanding the various documents which Blue Cross attached to its motion, the record is clear that Blue Cross’s legal stance was that it was seeking a ruling that its position as plan administrator, not its actions as plan administrator, entitled it to summary judgment. Even accepting the majority’s view that the issue of Blue Cross’s bad faith, via Rasberry’s response, was joined for all purposes, three things remain clear: (1) everything that Blue Cross filed and said indicated a more limited view of the motion was intended, (2) Rasberry’s understanding was the same as Blue Cross’s, and (3) Rasberry did not consciously fore-go the opportunity to raise genuine material issues of fact since she understood and operated under the notion that that opportunity would come only after resolution of the question whether Blue Cross was a proper party to the lawsuit. It was Blue Cross, not Rasberry, that created this legal dichotomy. It is well-settled law that in summary judgment matters, the non-moving party should always be given the benefit of the doubt since summary judgments are not favored. Heigle v. Heigle, 771 So.2d 341, 345(¶ 8) (Miss.2000). The law favors a trial on the merits after a full development of the facts and issues.

¶ 45. There can be no doubt that there has not been a full development of the facts in this case since no significant discovery has taken place. But even without full discovery, it appears to me that a genuine issue of material fact exists in the present state of things under the majority’s expanded view of what was before the trial court.

¶ 46. It seems that, in light of Hare v. Mississippi 733 So.2d 277 (Miss.1999), a genuine issue of material fact exists as to Blue Cross’s bad faith in the processing of Rasberry’s claim. In Hare, the Mississippi Supreme Court held that an insurance company has no right to be reimbursed for its payments on a policy until the insured has been fully compensated for his injuries. Id. at 284(¶27). The majority attempts to downplay the significance of the legal impact of Hare on the question of possible bad faith on the part of Blue Cross. In the majority’s view, the Hare decision “in no way rejected provisions for subrogation or found that an insurance company’s insistence on the right was in some fashion bad faith.” While Hare does not hold that an insurance company’s insistence on the right of subrogation constitutes bad faith, it does hold that an insurance company is not entitled to reimbursement pursuant to a subrogation provision until the insured has been made whole. It seems only logical that if there is no entitlement to reimbursement until the insured has been made whole, then there is no right to withhold payment of covered expenses on the condition that recovery may eventually be obtained from the tortfeasor.

¶ 47. Thus, though Hare may not make the subject subrogation provision illegal, it is persuasive authority for the proposition that insurance companies and plan administrators cannot rely on subrogation provisions to withhold payments for covered expenses in the absence of the insured being made whole. Considering this holding in light of the fact that Blue Cross essentially provided Neshoba with the plan and withheld payments under the plan even though Rasberry had not been made whole, there is ample basis to conclude that a genuine issue of material fact existed with respect to the issue of bad faith on the part of Blue Cross.

¶ 48. The majority seeks to minimize the effect of Hare on the question of Blue Cross’s bad faith by asserting that Blue Cross wrote Rasberry’s counsel eleven days after the Hare decision “seeking the information necessary to apply the ‘make whole’ principle.” What the majority fails to mention, however, is that Blue Cross already possessed knowledge of Rasber-ry’s automobile policy, as well as the amount which had been paid under the policy. This fact raises the additional question whether Blue Cross, notwithstanding its admitted knowledge of the holding in Hare, was still attempting to delay the payments due to Rasberry.

¶ 49. For the reasons presented, I respectfully dissent.

KING, P.J., THOMAS AND MYERS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . The last name of this plaintiff was spelled as "Rasberry” in the complaint, in later pleadings filed by the plaintiff, and in Blue Cross's records introduced into evidence. It is also spelled as "Raspberry” in other documents including her appellate brief. In this opinion we use the initial spelling.


author: IRVING, J., for the court.

text:
    Franklin Rashad BODDIE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-00304-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2002.
    Rehearing Denied Jan. 21, 2003.

      J. Ronald Parrish, attorney for appellant.
    Office of the Attorney General by Charles W. Maris Jr., attorney for appel-lee.
    Before KING, P.J., LEE, and IRVING, JJ.
   IRVING, J., for the court.

¶ 1. Franklin Rashad Boddie was charged in a two-count indictment with the unlawful transfer of cocaine and aggravated assault. Pursuant to a plea agreement, Boddie pleaded guilty to the cocaine charge, and the aggravated assault count was nolle prossed. The trial judge sentenced him to twenty years with ten years suspended and ten years of post-release supervision. He was also fined and ordered to pay certain costs.

¶ 2. Boddie became displeased with the disposition of his case and filed a motion for post-conviction collateral relief alleging that his conviction and sentence were unconstitutional and that the trial court did not have jurisdiction to impose sentence. We reject Boddie’s arguments and affirm the trial court’s denial of Boddie’s post-conviction relief motion.

FACTS

¶ 3. A Pike County grand jury charged Boddie with unlawfully transferring cocaine to Dezzie Ree Peters and assaulting Peters with a handgun. Allegedly, the assault occurred because of Peters’s failure to pay for the cocaine.

¶ 4. The cocaine was never chemically analyzed, and although the reason for this failure is not entirely clear in the record, it appears that the contraband, for whatever reason, was not available. Also, the record does not shed any light on how the State became aware of the transfer since it does not appear that Peters was working undercover for the State.

¶ 5. Boddie filed a motion to quash the indictment. No testimony was heard on the motion, but Boddie and the State submitted an agreed statement of proof which is not contained in the record. The trial court denied the motion, and in the introductory paragraph of its ruling on the motion, the trial court said:

[T]he Court after hearing arguments of counsel and testimony, has determined that it is necessary and proper that this Court make an adjudication on eviden-tiary matters in order to resolve the pending disputes herein. The issue for the Court to decide is: can the State sustain a conviction without possession of the controlled substance?

In a latter paragraph of the ruling the trial court stated:

The defendant is entitled to have the case against him proved beyond a reasonable doubt. The establishment of the controlled substance, i.e., cocaine, is usually done by the testimony of a chemist who has tested the substance and provided the scientific background for his testimony. The opinion of a drug user that the substance is cocaine is just not sufficient. The drug user may be a Rule 701 expert. She may have been able to touch, perceive, taste and use the controlled substance. She may be able to describe the effects of the substance. However, this is not sufficient in this Court’s opinion. To allow prosecution for the transfer of cocaine indictment when the Court has made this ruling, would be improper. The parties have stipulated as to what the proof would be and therefore, this Court feels comfortable in granting what is in effect a directed verdict.

Notwithstanding the trial court’s assertion that it would be improper to allow the prosecution for the transfer of the cocaine, the court, as we have already mentioned, denied Boddie’s motion to quash the indictment.

¶ 6. After failing to obtain a dismissal of the indictment, apparently Boddie and the State engaged in plea negotiations. Bod-die agreed to enter a plea of guilty to the transfer of cocaine charge in exchange for a prosecutorial recommendation of the exact sentence that the judge gave him, plus a dismissal of two unrelated charges and a nolle prosequi of the assault charge.

¶ 7. Prior to pleading guilty, Boddie signed a written document entitled, “Know Your Rights Before Pleading.” In this document, Boddie stated that he was pleading guilty because he was guilty and for no other reason. He checked “yes” to the following question: “Are you satisfied that the State can prove beyond a reasonable doubt that you are guilty of the crime or crimes to which you are pleading guilty?” He also checked “yes” to this question: “Have you reviewed the State’s discovery material with your attorney?” Further, Boddie acknowledged that he knew he did not have to prove anything, that the burden of proof was entirely upon the State to prove him guilty by credible evidence and beyond a reasonable doubt, and that if the State failed to meet its burden, the jury would be under a duty to find him not guilty.

¶ 8. At the commencement of the plea hearing, the trial judge made the following statement and inquiry:

BY THE COURT: All right. Cause Number 99-092, State versus Frankly [sic] Rashad Boddie, there are two counts in this Indictment [sic]; one is aggravated assault and the other one is unlawful transfer of cocaine. There was a ruling made regarding evidence on this case. Does everyone agree that it was only an evidentiary ruling and that the Indictment [sic] is still standing? BY MR. SMITH: The State does, Your Honor.
BY MR. MILLER: Defense also. Is that correct Mr. Boddie?
BY THE COURT: Do you understand what the evidentiary ruling is, and do you understand that there still is outstanding an Indictment, [sic] The case has not been dismissed against you. Do you understand that?
BY THE DEFENDANT BODDIE: Yes, sir.

¶ 9. Boddie changed lawyers and filed the PCR motion, the denial of which by the trial court, gives rise to this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. The gravamen of Boddie’s argument is that the trial court’s ruling on his motion to quash the indictment constitutes the grant of a directed verdict of not guilty on the cocaine charge and eliminates any factual basis for the court’s acceptance of his guilty plea. The State argues strenuously that the trial court made only an evidentiary ruling and that Boddie’s second argument — that the trial court lacked a factual basis for acceptance of his plea— was barely presented to the trial court. Consequently, the State urges us to procedurally bar this latter argument because of Boddie’s failure to fully argue it before the trial court. The State further submits ar-guendo that enough facts are contained in the record to warrant a finding that a sufficient factual basis exists to support the trial court’s acceptance of the guilty plea.

¶ 11. We agree with the State that the trial court made only an evidentia-ry ruling. The trial judge’s choice of language — that he was granting what amounted to a directed verdict — is unfortunate. However, the transcript of the sentencing hearing removes any doubt as to nature of the trial judge’s ruling. Moreover, we also agree with the State that the trial judge could not grant a directed verdict on a motion to quash the indictment. The granting of a directed verdict can only occur after the receipt of trial evidence, either at the conclusion of the State’s case-in-chief or at the conclusion of the entire case.

¶ 12. We find the language in State v. Peoples, 481 So.2d 1069, 1070 (Miss.1986), quoted by the State in its brief, to be particularly applicable: “Neither a motion to quash nor any other pretrial pleading can be employed to test the sufficiency of evidence.” “The proper time to test the sufficiency of the evidence to support any indictment is when the case is tried on its merits.” State v. Grady, 281 So.2d 678, 681 (Miss.1973). When the trial judge made the evidentiary ruling, not one scintilla of trial evidence had been introduced. While the effect of the trial judge’s ruling was to forewarn the State of a serious evidentiary impediment in the trial of its case based on the stipulated facts, the ruling could not prohibit the State from prosecuting Boddie on the indictment. The trial court could not know whether the State would be able to garner additional facts which would make its case stronger, and, even if the State was unable to gather additional facts, it was still entitled to test its evidence in a trial setting.

¶ 13. The trial judge’s statement— that in light of its ruling, allowance of the prosecution for the transfer of cocaine would be improper — is not girded or anchored by supporting case law. The trial judge obviously felt that, in the absence of a chemical analysis of the substance plus expert testimony as to what the analysis revealed, the State could not prove beyond a reasonable doubt that Boddie transferred a controlled substance to Peters. Such a conclusion is not necessarily warranted. While proof by an expert as to the identity of a controlled substance is the preferred and best method of proof, the State should not be foreclosed from employing other avenues of proof, including circumstantial evidence.

¶ 14. While we have not been able to find any Mississippi case addressing the question of whether proof of the identity of a controlled substance may be proved by means other than by a chemical analysis performed by a qualified expert, courts in other jurisdictions have addressed the question and have held that proof as to identity may be made by other evidence, including circumstantial. See United States v. Eakes, 783 F.2d 499, 505 (5th Cir.1986); State of Kansas v. Nortkrup, 16 Kan.App.2d 443, 825 P.2d 174, 178 (1992); People v. Ortiz, 197 Ill.App.3d 250, 143 Ill.Dec. 481, 554 N.E.2d 416, 420 (1990); Swain v. State, 805 P.2d 684, 685-86 (Okla.Crim.App.1991); State v. Nash, 233 Neb. 318, 444 N.W.2d 914, 919 (1989); People v. Steiner, 640 P.2d 250, 252 (Colo.Ct.App.1981).

¶ 15. We think it appropriate tó mention one other matter, that is, the unavailability of the substance which was transferred. As we have already observed, it appears that the substance Boddie sold to Peters was not analyzed because it was not available for whatever reason. Therefore, the question might inevitably arise as to whether the State could successfully prosecute a transfer-of-cocaine case in the absence of possession of the cocaine that was transferred. We need not decide this issue since it was not presented. However, we note that there can be a successful prosecution by circumstantial evidence for murder even though no body is ever recovered. See, e.g., State v. Dorsey, 796 So.2d 135 (La.App. 2 Cir. 9/26/01). It would seem only logical that if recovery of a body is not indispensable to a successful prosecution for murder, recovery or possession of the contraband is not indispensable to a successful prosecution of transfer of the contraband.

¶ 16. We turn how to the issue of the factual basis for the trial court’s acceptance of Boddie’s guilty plea. As observed previously, the State urges us to hold that this issue is procedurally barred. We agree with the State that this issue was barely raised in the trial court. However, in light of the clear mandate of Rule 8’04 of the Uniform Circuit and County Court Rules that the court must determine the existence of a factual basis for a guilty plea before accepting the plea, we decline to assert the proverbial procedural bar. Instead, we look to the record to ascertain if a sufficient factual basis exists for the court’s acceptance of the plea. Gaskin v. State, 618 So.2d 103, 106 (Miss.1993).

¶ 17. We begin by acknowledging, as Boddie contends, that the plea transcript reveals that ho factual basis was offered to support the plea. However, such omission is not fatal. First, the record reveals that the trial judge was aware of Boddie’s statement that Boddie sold or transferred two rocks of crack cocaine to Peters. Second, the statement, which is contained in the record, reveals that persons, who Boddie identified as crack addicts, lived at or frequented the house where Peters lived and where the transaction was consummated. The statement also reveals that one of the two rocks of substance that Boddie sold to Peters was actually given to Melvin Bridges to give to Peters, thereby making Bridges a potential witness against Boddie. Third, while the record does not disclose the stipulated facts that were presented to the judge pursuant to the ruling on the motion to quash the indictment, we may infer from what the trial judge said in his ruling that Peters for certain,- and perhaps even Bridges, would testify concerning the substance that was sold. This is borne out by the trial judge’s statement that the drug user may be a Rule 701 expert who “may have been able to touch, perceive, taste and use the controlled substance, as well as describe the effects of the substance” on her.

¶ 18. The trial judge was of the view that Peters could not testify, based on her experience in using cocaine, that in her opinion the substance sold to her was cocaine. He was mistaken in this regard. Rule 701 of the Mississippi Rules of Evidence is clear that if a witness is not testifying as an expert, the witness’s “testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of his testimony or the determination of a fact issue.” M.R.E. 701. Whether the transferred substance was in fact cocaine was an issue of fact to be determined. Surely, Peters would have an opinion, based on her perception acquired from her prior use of cocaine, as to the identity of the substance she received from Boddie.

¶ 19. Based on these facts, we cannot say that a sufficient factual basis did not exist to support the trial judge’s acceptance of Boddie’s guilty plea. Accordingly, we reject Boddie’s argument in this regard.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DENYING MOTION FOR POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.