author: | THIBODEAUX, Judge.

text:
    SEDGWICK CLAIMS MANAGEMENT SERV. INC., et al., v. Chris A. CORMIER.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 2003.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for Defendant/Appellant— Chris A. Cormier.
    Troy Allen Broussard, Allen & Gooch, Lafayette, LA, for Plaintiffs/Appellees— Safety National Casualty Corp., Ellender’s Portable Buildings, Inc., and Sedgwick Claims Management Services, Inc.
    Court composed of NED E. DOUCET, JR., C.J., ULYSSES GENE THIBODEAUX, and ELIZABETH A. PICKETT, Judges.
   | THIBODEAUX, Judge.

Ellender’s Portable Buildings, Inc. (El-lender’s), its insurer, Safety National Casualty Corp. (Safety), and the third-party administrator, Sedgwick Claims Management Services, Inc. (Sedgwick), filed a petition to annul a workers’ compensation compromise judgment granted to employee, Chris Cormier. It alleged fraud under La.Code Civ.P. art.2004 against Cormier. Because the judgment was not paid within thirty days of the compromise, Cormier sought penalties and attorney fees pursuant to La.R.S. 23:1201(G).

The Office of Workers’ Compensation (OWC) denied both claims. It reasoned that fraud was not proven and the settlement had been paid within thirty days of a previous appellate court decision attaching procedural issues relating to the settlement. Mr. Cormier appealed and the defendants answered the appeal.

We reverse in part and affirm in part. We conclude that the OWC erred in failing to award Mr. Cormier penalties and attorney fees and correctly determined that the compromise (later reduced to a formal, written judgment) should not be annulled.

I.

ISSUES

We shall consider whether:

(1) the compromise agreement was final and non-appealable under La.R.S. 23:1201(G), thus entitling the claimant, Mr. Cormier, to penalties and attorney fees; and,
(2) the OWC correctly determined that the compromise agreement should not be annulled.

2II.

FACTS

The underlying facts of this case were set out in Cormier v. Ellender’s Portable Bldg., 00-1595, p. 2 (La.App. 3 Cir. 2/28/01); 781 So.2d 776, 777-78 (Cormier I) as follows:

Trial on Mr. Cormier’s claims against Ellender, his employer, was scheduled for May 3, 2000. Prior to the start of the trial, the parties reached an agreement to settle. When the matter was called, the parties, through counsel, stated for the record the terms of their settlement. The workers’ compensation judge then questioned Mr. Cormier regarding his understanding and acceptance of the terms of the settlement. After Mr. Cormier indicated his agreement to the terms of the settlement, the workers’ compensation judge stated: “Very well. The Court will sign off on documents once they’re sent to me.”
Upon receipt of the settlement documents from Ellender, counsel for Mr. Cormier had him sign the documents, including the settlement check. At that time, counsel disbursed to Mr. Cormier his share of the settlement funds. He then forwarded a copy of the settlement documents, including a Judgment of Dismissal to the workers’ compensation judge for signature. The Judgment of Dismissal was signed on May 25, 2000.
After forwarding the settlement documents and check to counsel for Mr. Cor-mier, Ellender obtained information which it alleges indicates that Mr. Cor-mier committed fraud with respect to his claims, especially the extent of his injuries. In response thereto, it stopped payment on the settlement check and filed a Motion to Rescind Settlement and Require Forfeiture of Benefits Pursuant to § 1208.
In response to Ellender’s Motion to Rescind, Mr. Cormier’s former counsel filed an Exception of Improper Use of Summary Proceedings and/or Exception of No Cause of Action with Regard to Motion to Rescind Settlement and Require Forfeiture of Benefits Pursuant to § 1208. A hearing on Ellender’s Motion to Rescind and the Exception of Improper Use of Summary Proceedings was held June 5, 2000. The workers’ compensation judge denied the Motion to Rescind and granted the Exception of Improper Use of Summary Proceedings. Ellender filed aj^writ application with this court. Finding no error with the ruling of the Officer (sic) of Workers’ Compensation judge, the writ was denied. See Cormier v. Ellender’s Portable Building, Inc., an unpublished writ bearing docket number 00-955 (La.App. 3 Cir. 7/27/00). Ellender then filed this appeal, assigning three errors.

(Footnote omitted).

In the appeal noted above, the defendants argued that it was error to deny their Motion to Rescind the Settlement and to grant the Exception of Improper Use of Summary Proceedings. This court affirmed the decision of the OWC upholding the settlement. The defendants next sought to have the settlement nullified by filing a Motion to Nullify the Settlement in both the OWC and in the district court. Cormier filed an exception contesting the district court’s jurisdiction. This exception was denied. Cormier filed a writ application with this court seeking a reversal of the district court’s decision. Cormier’s writ was granted and the district court’s decision reversed by this court. We held that the district court had no subject matter jurisdiction to set aside the settlement. Meanwhile, the OWC refused to grant the defendants’ motion to nullify the settlement. The OWC also refused to award Cormier penalties and attorney fees based on his argument that the defendants failed to pay the settlement funds timely. It found that the payment was timely because it was paid within thirty days of the ruling by this court in Cormier I.

III.

LAW AND DISCUSSION

Penalties and Attorney Fees

Mr. Cormier contends he is owed penalties and attorney fees because his settlement with Ellender’s on May 3, 2000, was a final, non-appealable judgment. In accordance with La.R.S. 23:1201(G), an “award payable under the terms of a final, |4non-appealable judgment” must be paid within thirty days. Failure to pay the judgment amount within thirty days entitles the claimant to receive penalties and attorney fees. The initial question we must answer is whether the settlement in this case, recited on the record, is a final and non-appealable judgment such that failure to pay the judgment within thirty days subjects the employer to paying penalties and attorney fees. The defendants assert that the question regarding the non-appealable nature of the settlement was previously argued before another panel of this court in Cormier I, “unsuccessfully” and that the “law of the case doctrine” applies to preclude this court from reconsideration of this issue in the present appeal. We disagree.

A review of the record filed in Cormier I and the decision of this court reveals that Mr. Cormier did not file his own appeal or answer to the Ellender’s appeal of the judgment of the OWC; thus, the issue of the non-appealable nature of the settlement was not properly before this court in Cormier I. Further, the decision in Cormier I reflects that the panel did not consider or render a judgment on the issue. Therefore, the issue is properly before this court in the present appeal and we are not precluded from consideration of the issue by the “law of the case” doctrine.

The defendants contend that the settlement agreement in this case does not constitute a final, non-appealable judgment. In 1999, the legislature amended La.R.S. 23:1272(A) to provide:

A. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers’ compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding.

(Emphasis added).

| BPrior to the amendment, other circuit courts in this state held that writings not typically conferred with the title of “judgment” were considered to be final, non-appealable judgments. In Borne v. St. John The Baptist Parish Sch. Bd., 97-1062 (La.App. 5 Cir. 3/11/98); 712 So.2d 921, writ denied, 98-807 (La.5/8/98); 719 So.2d 52, a case decided prior to the 1999 amendment, the court held that an “Order” by the workers’ compensation judge approving the settlement between the employer and the claimant was non-appealable. The fourth circuit in Johnson v. TMSEL, RTA, 95-1352 (La.App. 4 Cir. 2/15/96); 669 So.2d 1309, 1311, said with respect to a “resolution” entered into by the parties found that “[a] binding settlement had been reached” and that it was final and non-appealable under La.R.S. 23:1272. In Richard v. Our Lady of Lourdes Reg’l Med. Ctr., Inc., 02-571 (La.App. 3 Cir. 10/30/02); 829 So.2d 1147, a case with facts similar to those in the present case, this court noted that the “language of the 1999 amendment closely tracks La.Civ.Code art. 3071 ... ”. Louisiana Civil Code Article 3071 states in part:

This contract must be either reduced to writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in more convenient form.

(Emphasis added).

This court further held in Richard:

The amendment to La.R.S. 23:1272 broadens the available avenues for settling workers’ compensation claims. Clearly the legislature intended the recitation in open court to have the same effect as the previously approved forms of settlement. The settlement of a workers’ compensation claim is substantially the same as a transaction or compromise. An oral recitation of a transaction or compromise in open court which is capable of transcription is judicially enforceable.

\fJd. at 1149. This court ultimately concluded that the OWC in that case was correct in finding that the “oral recitation of the workers’ compensation settlement agreement by the parties in open court ... is a final non-appealable judgment for the purposes of La.R.S. 23:1201(0” and that the OWC correctly awarded the claimant penalties and attorney fees. Id.

In further support of their contention that the settlement the defendants and Cormier entered into is not a final and non-appealable judgment, the defendants assert that in accordance with La.R.S. 23:1272, the workers’ compensation judge was required to make “additional factual findings.” Louisiana Revised Statutes 23:1272(A) requires the workers’ compensation judge to determine whether the employee “understands the terms and conditions of the proposed settlement” and La. R.S. 23:1272(B) requires a finding by the workers’ compensation judge that the agreement between the parties is “fair, equitable and consistent” with workers’ compensation laws prior to approval of the settlement. The purpose of this statute is to “provide numerous safeguards to prevent an employee from being coerced, to prevent a hasty and possibly ill-advised resolution of the employee’s claim, and to protect the parties from unwise actions which may cause them serious detriment.” Morris v. East Baton Rouge Parish Sch. Bd., 93-2396, p. 4 (La.App. 1 Cir. 3/3/95); 653 So.2d 4, 6, writ denied, 95-0852 (La.5/5/95); 654 So.2d 335. Although the procedural requirements of La.R.S. 23:1272 are mandatory, a judgment obtained in conformity therewith should be “virtually unassailable.” Harrington v. Quality Steel Bldg. Erectors, 95-822, p. 6 (La.App. 3 Cir. 3/6/96); 670 So.2d 1372, 1376, writ denied, 96-1315 (La.6/28/96); 675 So.2d 1128 (quoting Smith v. Cajun Insulation, Inc., 392 So.2d 398, 401 (La.1980)).

|7Under its prior version, the statute required a district judge to “discuss” the terms of the settlement with the claimant. Now, a workers’ compensation judge need only “determine” that the employee understands the settlement and that it is fair, equitable, and consistent with the workers’ compensation law. If these safeguards are followed, the settlement may only be set aside for fraud or misrepresentation made by any party.

In Cormier I, we stated:

The workers’ compensation judge did not affirmatively state on the record that she considered the terms of the settlement or that she found the settlement to be fair, equitable, and consistent with the workers’ compensation laws. However, it is clear from her actions at the time the settlement was stated for the record and at the hearing on May 25, 2000, that she considered the settlement and approved it. We find no merit to this assignment of error.

Cormier, 781 So.2d at 778. The safeguards were complied with.

At the latest, the settlement in this case occurred on May 25, 2000. The defendants submitted a check in the amount of $61,158.06 on March 26, 2001, well in excess of thirty days following the settlement. Because we find that the settlement was a final and non-appealable judgment on May 3, 2000, the fact that the settlement funds were paid within thirty days of this court’s appellate decision is of no consequence. It was not paid within the time limits provided by La.R.S. 23:1201(G). Therefore, Mr. Cormier is owed penalties and attorney fees. The amount due is “an amount equal to twenty-four percent [of the judgment amount] of one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater ... The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.” La.R.S. 23:1201(G). Mr. Cormier asserts that he is entitled to a penalty award in the amount of $14,677.93, twenty-four percent of $61,158.06 which Lis greater than the $100.00 per day penalty amount. We agree. With respect to attorney fees, we find that the amount of $5,000.00 is reasonable.

Nullity of the Settlement

Ellender’s answered Mr. Cormier’s appeal asserting that the OWC erred when it failed to nullify the settlement based on fraud committed by Mr. Cormier which induced the defendants to enter into a settlement agreement. They also seek restitution. Louisiana Code Civil Procedure Article 2004 provides:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.

Ellender’s claims that Mr. Cormier induced it to settle his workers’ compensation claim by misrepresenting his physical abilities. Ellender’s asserts that during his deposition taken in 2000, Mr. Cormier presented himself as a crippled person unable to do any type of work, yet video surveillance tapes taken on April 26, May 8, and 10, 2000, as well as May 16, 21, and 28, 2001, reveal Mr. Cormier engaging in activities inconsistent with his claim of severe physical disability. The workers’ compensation judge found that the information regarding Mr. Cormier’s physical abilities was obtained by Ellender’s after the parties entered the settlement agreement and would not consider the post-settlement evidence. The workers’ compensation judge reasoned that to consider such evidence would “taint the validity of all settlements.” Thus, the workers’ compensation judge did not review any of the video tapes submitted by Ellender’s. However, as noted above, La.Code Civ.P. artg0049 provides that a final judgment obtained by fraud may be annulled. The defendants claim they were induced to settle with Mr. Cormier because he misrepresented his physical condition; therefore the final, non-appealable settlement judgment should be annulled. We find that the OWC correctly refused to entertain evidence of Mr. Cormier’s physical condition sought to be presented after the compromise agreement. However, in an abundance of caution and to finally dispose of this compromise, we shall do so.

Louisiana jurisprudence sets forth two criteria to determine whether a judgment has been rendered through fraud or ill practices, and is thus subject to nullification: (1) whether circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) whether enforcement of the judgment would be unconscionable or inequitable. Johnson v. Jones-Journet, 320 So.2d 533 (La.1975), Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980), and Ward v. Pennington, 523 So.2d 1286 (La.1988).

Belle Pass Terminal, Inc. v. John, Inc., 01-149, p. 6 (La.10/16/01); 800 So.2d 762, 766. In other words, “[a] party seeking annulment must show that he was deprived of the opportunity to defend the law suit by some fraud or ill practice of the opposing party.” Head & Engquist Equipment, Inc. v. Ryland, 577 So.2d 182, 184 (La.App. 1 Cir.1991). In the present case, the defendants were not deprived by any act of Mr. Cormier of the opportunity to defend the law suit. In fact, the OWC and Mr. Cormier were prepared and ready to proceed to trial on the date the defendants decided to settle the case. Some of the evidence regarding Mr. Cormier’s physical condition depicted in video surveillance tapes was taken prior to the trial date. However, it was the defendants who requested a continuance of the trial which was denied by the OWC. Apparently, the defendants were not ready to proceed to trial at that moment and made the decision to settle. Thus, it was not any act on the part of Mr. Cormier that induced the settlement. Instead, the record reveals that it was the defendants’ decision to willingly dispose of their opportunity to present a defense when faced with the OWC’s Imdenial of their motion to continue which induced the settlement. Therefore, we reject the contentions of the employer and its insurer and third-party administrator.

IV.

CONCLUSION

For the reasons assigned, the judgment of the Office of Workers’ Compensation denying defendants’ request to nullify the settlement judgment is affirmed. The judgment of the workers’ compensation judge denying Chris Cormier penalties and attorney fees for the defendants’ failure to pay settlement funds within thirty days of the judgment is reversed and set aside. We award Chris Cormier the amount of $14,677.93 in penalties and $5,000.00 in attorney fees. Finally, it is ordered that all costs of this appeal are to be born by the defendants, Ellender’s Portable Buildings, Inc., Safety National Casualty Corp., and Sedgwick Claims Management Services, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


source: Caselaw Access Project

author: 1SULLIVAN, Judge.

license: Public Domain

text:
    Richard P. CLARK d/b/a Clark Productions. v. CLARENDON INSURANCE COMPANY.
    No. 02-1314.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 2003.

      J. Chris Guillet, P. Jody Lavergne, Sco-field, Gerard, Veron, Singletary & Pohorel-sky, Lake Charles, LA, for Defendant/Appellant, Clarendon National Insurance Company.
    Dennis R. Sumpter, Sumpter Law Offices, APLC, Sulphur, LA, for Plaintiff/Ap-pellee, Richard P. Clark d/b/a Clark Productions.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   1SULLIVAN, Judge.

Clarendon National Insurance Company (Clarendon) appeals a default judgment rendered against it in favor of Richard P. Clark d/b/a Clark Productions. For the following reasons, we affirm in part, amend in part, reverse in part, and remand with instructions.

Facts

On April 15, 2002, Mr. Clark reported to the Calcasieu Parish Sheriffs Department (CPSD) that his truck had been stolen from the motel in Lake Charles where he stayed overnight on April 14. Later that morning, the truck was found at another location in Lake Charles. Mr. Clark testified that the truck had been wrecked, the windows had been broken out of it, and the interior of the cab had been burned. He had the truck towed to a storage facility.

Mr. Clark had a commercial automobile insurance policy with Clarendon which provided coverage for the truck. In March, Clarendon sent Mr. Clark a notice of cancellation which indicated that his policy was being cancelled effective April 15, 2002, at 12:01 a.m. The notice indicated that the cancellation was made for underwriting reasons. Mr. Clark reported the truck stolen to his insurance agent on April 15. Two days later, a representative of Clarendon notified him of his claim number. By letter dated June 7, 2002, Clarendon notified him that his claim was still being investigated. Then, in early July, Clarendon notified him that its investigation was “inconclusive” because it had not been determined whether the truck had been stolen before or after the cancellation of his policy. Mr. Clark testified that Clarendon continuously told him that his claim was being investigated.

On July 23, Mr. Clark filed suit against Clarendon, seeking to recover damages, penalties, and attorney fees. A preliminary default judgment was entered against |aClarendon on September 9. Then, on September 13, Mr. Clark appeared in open court and confirmed the default judgment. At the conclusion of the hearing, the trial court awarded him $28,635.50 for his losses, a 10% penalty of $2,863.55, attorney fees in the amount of $9,545.16, judicial interest from the date of demand, and all costs of the proceeding. Clarendon appeals the judgment, assigning a number of errors.

Standard of Review

“In order for a plaintiff to obtain a default judgment, ‘he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by defendant/” Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993), quoting Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). A default judgment is presumed correct and to have been rendered upon sufficient evidence. Perkins v. Fontenot, 548 So.2d 369 (La.App. 3 Cir.1989). However, when there is a transcript of the confirmation hearing, as in this case, the presumption does not exist. Id.

Appellate review of default judgments is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. State v. Fifteen Thousand Four Hundred Thirty-One Dollars & Other Prop., 95-1334 (La.App. 3 car. 3/6/96); 670 So.2d 693.

Entry of Preliminary Default

Clarendon’s first assignment of error is that the record does not contain a preliminary default as required by La. Code Civ.P. art. 1701. The original transcript did not contain a preliminary default; however, the record was supplemented with minutes prepared by the clerk of court which show that a preliminary default was | .¡entered on September 9, 2002. Clarendon now argues that the minutes are without effect because they were not signed by the trial judge.

Courts must maintain minute books in which “[a]ll motions made, all proceedings conducted, and all judicial acts of the court during each day” are recorded. La.Code Civ.P. art. 254(A), (C), respectively. Clerks of court appoint minute clerks whose duties include keeping and transcribing the minutes of court. La. Code Civ.P. arts. 254, 256.

In Calhoun v. Serio, 161 So. 772 (La.App. 2 Cir.1935), the plaintiff argued that the defendant’s oral motion for appeal was without effect because the minutes reflecting that the motion had been made were not signed by the trial judge. The court rejected the argument, stating: “Whether [the trial judge] signs [the minutes] after being approved is immaterial to their effectiveness. Having been kept by the clerk, they become the acts of the court, and are entitled to the same weight and credit as though written by the judge himself.” Id. at 773-74.

This assignment is without merit.

Loss of Vehicle

Clarendon’s next assignment of error is the trial court’s award for the loss of Mr. Clark’s truck. The trial court awarded Mr. Clark the Blue Book value of the truck prior to the accident, $22,645.00. Clarendon urges that this was error because Mr. Clark did not prove that it was a total loss. Further, Clarendon asserts that, even if Mr. Clark did establish that the truck was a total loss, the award was improper because its salvage value was not established.

Mr. Clark testified that the truck was a total loss. The basis for this testimony was the opinions of an officer with the CPSD, someone with the fire department, and |4a representative of the towing company that the truck was a total loss. Pictures of the truck reflect that the windows were broken, the cab was destroyed by fire, and the right rear panel of the truck was damaged.

In order to recover under an insurance policy it is the burden of the plaintiff to establish every fact essential to his recovery and to establish that the claim falls within the policy coverage. Ceasar v. Great Falls Ins. Co., 371 So.2d 1286 (La.App. 3 Cir.1979). Under our law an automobile is deemed a total loss when the cost of repairs exceeds its value before the accident. To prove a total loss a plaintiff must introduce evidence not only as to the car’s prior value, but also as to how much it would cost to repair the automobile. Nicholas v. Continental Insurance Company, 296 So.2d 468 (La.App. 4 Cir.1974). And it has been held that proof of salvage value is essential to a recovery for the total loss of a vehicle. Burton v. Southwestern Gas & Electric Company, 107 So.2d 67 (La.App. 2 Cir.1958); Cheramie v. Jones, 327 So.2d 601 (La.App. 4 Cir.1976).

Roy v. Commercial Union Assur. Co., 385 So.2d 1273, 1275-76 (La.App. 3 Cir.1980). See also Coco v. Southern United Fire Ins. Co., 96-135 (La.App. 3 Cir. 11/13/96); 682 So.2d 1014, unit denied, 96-2977 (La.2/21/97); 688 So.2d 517.

The record does not contain the evidence necessary to establish whether Mr. Clark’s truck was a total loss and, if so, its salvage value. Accordingly, we remand this matter to the trial court for determination of this issue. Clarendon does not assign as error the trial court’s valuation of the truck at $22,645.00 before the fire; therefore, it is not an issue to be considered on remand.

Contents of the Truck

The trial court awarded Mr. Clark $1,945.00 for property in the truck that was stolen or destroyed. Mr. Clark testified that he and his girlfriend had some cash in the truck and that he had property in the truck that was stolen or destroyed. He introduced into evidence an itemized list of the cash and property with assigned values. The trial court denied the claim for cash. Clarendon maintains that Mr. Clark |Bshould not have been awarded damages for the following items because the policy excludes them from coverage: two cellular telephones, a gas sampler, a gas computer, compact discs and cassette tapes, a calculator, and a digital voltage meter.

An insured has the burden of proving the existence of insurance coverage, but the insurer has the burden of proving that an exclusion is applicable. Tunstall v. Stierwald, 01-1765 (La.2/26/02); 809 So.2d 916.

Subpart B(4) of Section III of Clarendon’s policy, which is entitled “Physical Damage Coverage,” provides in part:

We will not pay for “loss” to any of the following:

a. Tapes, records, discs or other similar audio, visual or data electronic devices designed for use with audio, visual or data electronic equipment.
c. Any electronic equipment, without regard to whether this equipment is permanently installed, that receives or transmits audio, visual or data signals and that is not designed solely for the reproduction of sound.

Compact discs and cassette tapes are excluded from coverage by the clear language of Section III, Subpart B.4(a). Therefore, the trial court’s award of $250.00 for these items is clear error, and it is reversed.

With regard to the other items of property, the record is insufficient for us to determine whether or not they meet the requirements of the exclusion. For example, the cellular telephones reproduce sound, and the record does not reveal what a gas meter is. For these reasons, we conclude that Clarendon has failed to prove that the remaining items are excluded from coverage.

Clarendon also asserts that Mr. Clark’s testimony regarding these items and their values was insufficient to satisfy his burden of proof. Mr. Clark testified that|fihe prepared the list of items and assigned their values. Generally, the owner of property is qualified to testify as to the value of his property. See Dual Drilling Co. v. Mills Equip. Invs., Inc., 97-1010 (La.App. 4 Cir. 1/7/98); 705 So.2d 1246, rev’d on other’ grounds, 98-343, 98-356 (La.12/1/98); 721 So.2d 853; Landry v. St. Charles Inn, Inc., 446 So.2d 1246 (La.App. 4 Cir.1984). The accuracy of the owner’s opinion goes to the weight to be accorded the opinion, not to its admissibility. Id. We find no error with the remainder of the award.

Storage Fees

Mr. Clark was awarded $1,670.00 in towing and storage fees. The storage fees were $1,160.00, $10.00 per day for 116 days. Clarendon asserts that this portion of the award is too high. In the event of a loss, Clarendon’s policy required Mr. Clark to “[t]ake all reasonable steps to protect the covered ‘auto’ from further damage” and to “[pjermit [Clarendon] to inspect the covered ‘auto’ ... before its repair or disposition.” Clarendon never inspected the truck.

In a letter dated July 1, 2002, Clarendon notified Mr. Clark’s attorney that its investigation indicated that Mr. Clark could not establish that the truck was stolen before the policy lapsed at 12:01 a.m. on April 15, 2002, and recommended that he remove the truck from the storage facility to stop incurring storage fees. A date-stamp on the letter indicates that it was received by Mr. Clark’s attorney on July 3.

An owner has a reasonable time, usually considered to be thirty days, to leave his automobile in storage after it has been determined to be a total loss. Moxley v. Cole, 97-1582 (La.App. 3 Cir. 2/3/99); 736 So.2d 249, writ denied, 99-632 (La.5/7/99); 740 So.2d 1284. To protect his interests, Mr. Clark had to store the truck for inspection by Clarendon. Clarendon did not notify him that it did not intend to |7inspect the truck. However, in its July 1 letter, Clarendon notified Mr. Clark that its investigation indicated that he could not establish that the truck was stolen before his policy was cancelled and informed him that he should remove the truck from storage.

Under these circumstances, we find it reasonable for Mr. Clark to have left the truck in storage until his attorney received the July 1 letter. At that point, he knew that Clarendon questioned his claim and did not accept responsibility for the storage costs. Accordingly, we reduce the trial court’s award by $350.00, which represents storage fees that accumulated after July 3. The remainder of the award for towing and storage, $1,320.00, is affirmed.

Sales Tax

The trial court awarded Mr. Clark 8.75% sales tax on all of his damages. Clarendon argues that the trial court’s award of sales tax was error. The trial court’s award of sales tax included sales tax on the towing and storage fees, which were not taxed. This portion of the award was clear error and is reversed.

Clarendon cites State Farm Mutual Automobile Insurance Co. v. Berthelot, 98-1011 (La.4/13/99); 732 So.2d 1230, in support of its position. In Berthelot, State Farm’s insured was involved in an accident which rendered his car a total loss. The insured filed a claim for the loss with State Farm. State Farm calculated the claim, including sales tax in its calculation, and paid the insured. State Farm then sought to collect what it had paid from the tort-feasor and his insurer. The insurer refused to reimburse State Farm for the sales tax. The supreme court denied State Farm’s claim for the sales tax, holding that a tort victim is not entitled to recover from the tortfeasor the sales tax paid on an automobile that was a total loss.

|sMr. Clark responds that the 2001 amendment to La.Civ.Code art. 2315, which provides: “Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged[,]” mandates an award of sales tax. However, Clarendon asserts that under the terms of its policy it is not obligated to pay sales tax and that its policy, not Article 2315 which applies to tort claims, controls this issue.

First, we must determine whether Clarendon’s policy or Article 2315 governs this issue. A similar issue was addressed in Campbell v. Markel American Insurance Co., 00-1448 (La.App. 1 Cir. 9/21/01); 822 So.2d 617, writ denied, 01-2813 (La.1/4/02); 805 So.2d 204, and Townsend v. State Farm Mutual Automobile Insurance Co., 34,901 (La.App. 2 Cir. 8/22/01); 793 So.2d 473, writ denied, 01-2637 (La.12/14/01); 804 So.2d 635. In these two cases, after the insurers paid for their insureds’ damaged property to be repaired, the insureds claimed that they were also entitled to damages for the diminished value of their property. The insurers denied the claims, and the insureds sued. In defense of these claims, each insurer argued that its insured’s claim was governed by its policy of insurance, not tort law. The courts agreed.

In Campbell, 822 So.2d at 622-23, the first circuit observed:

Because a first-party claim sounds in contract, we find the distinction between third-party and first-party claims to be significant. As such, we agree with Markel that the terms of the insurance agreement govern Campbell’s entitlement to recovery. Rules applicable to recovery in tort do not apply to an action on a contract of insurance. Thus, we do not consider what measure of recovery would make the insured whole after a loss. Because Campbell’s suit is based on allegations of breach of contract, we focus on the language of the insurance policy and the ordinary meaning of the words defining the parties’ obligations.

|9We agree with this reasoning and the courts’ conclusions in Campbell and Townsend. Accordingly, we look to Clarendon’s policy to determine this issue, which provides in part:

The most we will pay for “loss” in any one “accident” is the lesser of:

c. The actual cash value of the damaged or stolen property as of the time of the “loss”; or
d. The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality.

“Actual cash value” is not defined in the policy; therefore, we will use the “generally prevailing meaning” of the term. La. Civ.Code art.2047. Black’s Law Dictionary 53 (4th ed.1968) (citations omitted) defines “actual cash value” in terms of “fair or reasonable cash price” and “[w]hat property is worth in money.” The definition does not reference or indicate that “actual cash value” includes sales tax.

As previously noted, Clarendon cites Berthelot, 732 So.2d 1230, in support of its contention that Mr. Clark cannot recover sales tax paid on the truck. In Berthelot, the supreme court examined the nature of a sales tax, stating:

[A] sales tax is a distinct and separate charge which the retail seller is required to collect as a pass through entity for the benefit of the state and locality. Louisiana’s “sales and use tax is an excise tax, a tax upon the transaction itself, not the property involved in the transaction.” With regard to vehicle sales, Louisiana law provides that the general rule is that sales tax is due upon the sale price of the vehicle. Likewise, it has been statutorily recognized that the servicing and repair of automobiles give rise to the imposition of a tax.
A review of this thumbnail sketch of Louisiana’s sales and use tax shows the fallacy of State Farm’s position. Clearly, had State Farm undertaken the repair or replacement of its insured’s vehicle, there would have arisen an event or transaction for which a tax could have been imposed. In such instances tax liability arises by operation of law. However, since no sale, repair, or replacement has occurred in the present case, no taxable event has taken place. Thus, although any of these transactions can give rise to the imposition of a tax, none has occurred in the case at hand.

Id. at 1234-35 (citations omitted) (footnote omitted) (emphasis added). The supreme court concluded that a sales tax increases the cost to the buyer, but does not increase the value of property.

Clarendon’s policy provides for payment of the “actual cash value” of the damaged property. “Actual cash value” is defined in terms of “price” and “worth” without reference to any tax. As discussed in Berthelot, no transaction which could result in the imposition of a sales tax occurred in this case. And the fact that Mr. Clark paid sales tax on the truck did not increase its value. Accordingly, we conclude that the “actual cash value” of Mr. Clark’s truck and property when it was stolen and/or damaged did not include sales tax and reverse the trial court’s award for sales tax on Mr. Clark’s damages. The damage award is reduced by $2,304.00, which represents 8.75% sales tax on all of Mr. Clark’s damage awards.

If it is determined on remand that Mr. Clark’s truck is not a total loss, the trial court is instructed to award sales tax on the repair of the truck.

Penalties and Attorney Fees

Lastly, Clarendon assigns as error the trial court’s award of penalties and attorney fees pursuant to La.R.S. 22:658. It argues that it acted reasonably in handling Mr. Clark’s claim because he did not establish that his truck was stolen before its cancellation of his policy became effective.

Under La.R.S. 22:658(A)(1), an insurer “shall pay” an insured’s claim within thirty days receipt of a satisfactory proof of loss. When the insurer fails to do so and the “failure is found to be arbitrary, capricious, or without probable cause,” the insurer is subject to a penalty “of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollar’s, whichever is greater, ... Intogether with all reasonable attorney fees for the prosecution and collection of such loss.” La.R.S. 22:658(B)(1).

“[A]n insurer’s [action is] ‘arbitrary and capricious’ when its willful refusal of a claim is not based on a good faith defense or is unreasonable or without probable cause.” Calogero v. Safeway Ins. Co. of La., 99-1625, p. 5 (La.1/19/00); 753 So.2d 170, 173 (citation omitted).

By notice dated March 14, 2002, Clarendon notified Mr. Clark that, effective April 15, 2002, at 12:01 a.m., his policy was being cancelled for “Underwriting Reasons.” Mr. Clark contends that the notice of cancellation was insufficient because it was in contravention of the terms of the policy and Louisiana law.

La.R.S. 22:636.4(0(1) lists seven reasons for which a commercial automobile insurance policy can be cancelled. Mr. Clark’s policy was a renewal of a previous commercial policy. To cancel such policy, the insurer must mail or deliver a written notice of cancellation to the first-named insured at least thirty days before the effective date of the cancellation. La.R.S. 22:636.4(C)(2)(a). If the reason for cancellation is non-payment of a premium, the notice of cancellation must be mailed at least ten days before the date of cancellation. Id.

Mr. Clark argues that Clarendon’s notice of cancellation was ineffective because it did not identify one of the reasons for cancellation listed in La.R.S. 22:636.4(0(1). However, because Mr. Clark’s policy was a commercial policy, Clarendon was only required to provide him with a written statement of the reason for cancellation if he requested the statement in writing, La.R.S. 22:636.4(C)(2)(b), and there is no evidence that he made such a request.

| ^Clarendon’s failure to pay Mr. Clark’s claim was based on its belief that the policy was cancelled on April 15, 2002, at 12:01 a.m. and the lack of evidence establishing that the truck was stolen and damaged before the cancellation became effective. Under these facts, we find the trial court’s conclusion that Clarendon was arbitrary and capricious to be error and reverse the award of penalties and attorney fees.

Decree

For these reasons, the award of damages for Mr. Clark’s truck in the amount of $22,645.00 is reversed and the issue is remanded to the trial court for further proceedings in accordance with the reasons herein. Additionally, the award for towing and storage is reduced from $1,670.00 to $1,320.00; the award for Mr. Clark’s other property is reduced from $1,945.00 to $1,695.00; the award for sales tax in the amount of $2,304.00 is reversed; and the award of penalties and attorney fees is reversed. Costs of this appeal are to be paid equally by the parties.

AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.


author: GRAVES, J., McRAE, P.J.,

text:
    H.S. PRESTRIDGE, Jr., J. Harrison Burger, Charles Tims and Wanda Tims v. CITY OF PETAL, Mississippi.
    No. 2000-AN-01856-SCT.
    Supreme Court of Mississippi.
    Jan. 30, 2003.

      Jolly W. Matthews, Hattiesburg, attorney for appellants.
    Thomas W. Tyner, Hattiesburg, attorney for appellee.
    Before McRAE, P.J., EASLEY AND GRAVES, JJ.
   GRAVES, J.,

for the Court.

¶ 1. This appeal arises from a final judgment of the Chancery Court of Forrest County approving the enlargement and extension of the boundaries of the City of Petal, Mississippi (hereinafter referred to as “Petal”). The objectors to the annexation, H.S. Prestridge, Jr., J. Harrison Burger, Charles Tims, and Wanda Tims (hereinafter referred to as the “Eastern Objectors”), assert three issues on appeal: (1) the chancellor erred in finding that the City of Petal had met its burden of proof and in finding that the annexation is reasonable under the totality of the circumstances. In evaluating the twelve indicia in order to determine the reasonableness of the annexation, the chancellor committed error of both fact and law; (2) the chancellor in ruling on the evidentiary matter committed error and the eastern annexation area objectors did not receive a full hearing on all issues; and (3) the chancellor made findings of fact which are not in the record and, therefore, the findings are in error.

¶ 2. We find that the chancellor committed no reversible error and affirm.

FACTS

¶ 3. The City of Petal passed an ordinance extending its boundaries on October 20, 1998. Subsequently, on October 29, 1998, Petal petitioned for annexation that included two separate areas of land. The two areas are being referred to as the Western Annexation Area and the Eastern Annexation Area. The Western Annexation Area Objectors are not parties in this appeal. The City of Petal presently consists of 9.7 square miles. The trial court entered a memorandum opinion on June 27, 2000, and concluded that:

[I]t is reasonable for Petal to annex the east proposed annexation area with the exception of the Hudson Trust Property, the Emma T. Russell property and Eric M. and Kathleen J. Lowery’s property having been dismissed with prejudice earlier in this action by agreement of the City of Petal and the aforementioned property owners.

Following this opinion, three motions were filed: (1) a motion for a new trial filed by the Eastern Objectors on July 5, 2000; (2) a motion to alter and amepd findings of fact filed by Petal on July 6, 2000; and (3) a motion to alter and amend findings of fact filed by the Eastern Objectors on August 2, 2000.

¶4. On September 5, 2000, the court entered an order addressing these motions. The court made revisions to the judgment, yet the changes were consistent with its earlier conclusions. The court also denied the motions. The court entered a final judgment on October 25, 2000. From this judgment the Eastern Objectors have perfected this appeal. Notice of appeal was filed on October 30, 2000.

DISCUSSION

I. WHETHER THE LOWER COURT WAS IN ERROR IN FINDING THAT THE CITY OF PETAL HAD MET ITS BURDEN OF PROOF AND THAT ANNEXATION IS REASONABLE UNDER THE TOTALITY OF THE CIRCUMSTANCES. EVALUATING THE TWELVE (12) INDI-CIA IN ORDER TO DETERMINE THE REASONABLENESS OF THE ANNEXATION, THE LOWER COURT COMMITTED ERROR OF BOTH FACT AND LAW.

¶ 5. Petal argues that the trial court’s determination that the proposed annexation of the Eastern Annexation Area is reasonable pursuant to Miss. Code Ann. § 21-1-33 (2001) and was supported by substantial evidence. In reviewing appeals involving annexation, this Court recognizes that annexation is a legislative function. Extension of the Boundaries of the City of Ridgeland v. City of Ridgeland, 651 So.2d 548, 553 (Miss.1995). Therefore, our standard of review is limited to a single question, whether the annexation is reasonable. See Enlargement and Extension of Mun. Boundaries of City of Madison v. City of Madison, 650 So.2d 490, 493 (Miss.1995). Moreover, we will not reverse the findings of a chancellor unless the chancellor applies an incorrect legal standard, is manifestly wrong, or the findings are not supported by substantial evidence. City of Jackson v. City of Ridgeland, 551 So.2d 861, 863 (Miss.1989).

¶ 6. The law of annexation is well-settled law in Mississippi. This Court recognizes twelve indicia of reasonableness:

(1) the municipality’s need to expand, (2) whether the area sought to be annexed is reasonably within a path of growth of the city, (3) potential health hazards from sewage and waste disposal in the annexed areas, (4) the municipality’s financial ability to make the improvements and furnish municipal services promised, (5) need for zoning and overall planning in the area, (6) need for municipal services in the area sought to be annexed, (7) whether there are natural barriers between the city and the proposed annexation area, (8) past performance and time element involved in the city’s provision of services to its present residents, (9) economic or other impact of the annexation upon those who live in or own property in the proposed annexation area, (10) impact of the annexation upon the voting strength of protected minority groups, (11) whether the property owners and other inhabitants of the areas sought to be annexed have in the past, and in the foreseeable future unless annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy economic and social benefits of the municipality without paying their fair share of taxes, and (12) any other factors that may suggest reasonableness.

Madison, 650 So.2d at 494.

¶ 7. Additionally, the twelve indicia are independent tests viewed together to determine reasonableness. However, “the ultimate determination must be whether the annexation is reasonable under the totality of the circumstances.” Id.

1. Need to Expand

¶ 8. The Eastern Objectors argue that Petal does not need to expand because its population is decreasing and has been since 1980. The Eastern Objectors further assert that a city does not need to expand until it has developed 80% of the land within its city limits. The Eastern Objectors aver that Petal has only developed 50% of its land. Because the city is not experiencing growth, the Eastern Objectors aver that there is no need for Petal to acquire additional land.

¶ 9. Petal argues population is only one factor considered when determining whether a city needs to expand. Petal argues that a decrease in population does not preclude annexation. Petal claims that at least ninety-seven entities have located to Petal since 1997 and the rate of commercial and residential permits has steadily increased. Petal maintains that it cannot grow within the existing boundaries for several reasons: (1) a substantial portion of the western area of the city is located in the floodway of the Leaf River and that it is against federal regulations to develop in a floodway; (2) a substantial portion of the northern half of the city is located in areas that have severe slope (12% or higher) or floodway; and (3) severe slope soil and floodways are located in the southern portion of the city. Due to these development constraints, Petal argues that there is a shortage of land available for industrial and residential use. Therefore, development occurs on the outskirts of the city.

¶ 10. The chancellor found that:

The vacant land analysis of the existing city of Petal shows that Petal has approximately 50.8% of its land now developed. This leaves 49.2% undeveloped, 25.3 % of which is unconstrained. The remaining 28.9% is constrained by either flood plain, flood way or severe slope. The unconstrained vacant land consisting of approximately 2.43 square miles, while available for development, has the ultimate constraint of ownership. Many of the owners do not wish to sell their land for development. The Court is therefore of the opinion that Petal has established by the evidence that it has need to expand.

¶ 11. Petal has exhibited a need to expand due to population growth. Petal’s population did decrease between 1980 and 1990. However, Petal’s population has increased since 1990 from 7,883 to an estimated 9,175 in the year 2000. Petal has also shown that commercial building permits and residential permits have increased. Furthermore, Petal is at a developmental standstill due to constrained land and unconstrained land made unavailable to Petal due to ownership. We find that the chancellor’s finding that Petal has a need for expansion is supported by substantial evidence.

2. Path of Growth

¶ 12. The Eastern Objectors claim that the trial court erred in finding that there was a path of growth in Petal. The Eastern Objectors argue that no path of growth exists past the high school along Highway 42. The Eastern Objectors further contend that the development of new subdivisions is occurring because of the growth of the nearby City of Hattiesburg.

¶ 13. Petal argues that there are several paths of growth indicators: (1) the proposed Highway 42 corridor or bypass which will connect Interstate 59 to the Petal area; (2) the addition of a Super Walmart; (3) considerable residential development in the eastern annexation area; (4) the construction of the new First Baptist Church of Petal will be located in the eastern annexation area; and (5) the presence of Petal High School in the eastern annexation area. Petal argues that this new access to the interstate will generate more traffic. Petal contends that it is already experiencing an increased rate of traffic flow on Highway 42, Highway 11, and Central Avenue. Furthermore, residential and commercial development has followed the placement of the school in the eastern area.

¶ 14. The chancellor found that the eastern annexation area was in the path of growth of the City of Petal. In his analysis, he stated that:

The east area lies along U.S. Highway 42. There has been a substantial amount of growth along this corridor. The high school for the Petal Municipal School District is located in the east annexation area. Subdivisions also exist sporadically within this area. The proposed Highway 42 corridor or bypass ... will connect Interstate 59 to the Petal area. Major intersections will be at the intersection of the new corridor and Highway 11; and the intersection of the corridor with existing Highway 42 on the eastern edge of the city.

¶ 15. Michael Slaughter, a regional planning consultant, testified that Petal was in the path of growth because of the construction of the Highway 42 corridor. He stated that the construction by the Mississippi Department of Transportation will generate growth in Petal and the eastern annexation area. Slaughter stated that the traffic in the area had already increased because of the development in the area. Slaughter further suggested in his testimony that the eastern annexation area is in the path of growth due to its location for two reasons: (1) it is contiguous to the city, and (2) the corridors that will enter and leave the city are located in the eastern annexation area.

¶ 16. Additionally, Michael Bridge* a regional planning consultant, testified regarding the path of growth. He stated that Petal was in the path of growth because of the interconnection of the traffic arteries, the spillover growth on the periphery of the city from Hattiesburg, and the extension of the infrastructure by the city.

¶ 17. The testimony presented at trial provides substantial evidence of Petal’s path of growth. Therefore, we find that the trial court’s finding was supported by substantial evidence and no manifest error was committed.

3. Natural Barriers

¶ 18. Petal advances that there are no natural barriers between Petal and the eastern annexation area. No evidence was introduced by the Eastern Objectors to refute this argument. Furthermore, the chancellor found that no barriers existed between Petal and the proposed annexation area. We find that the chancellor’s finding was reasonable based on the evidence and no manifest error was committed.

4. Potential Health Hazards

¶ 19. The Eastern Objectors contend that the chancellor’s finding that there were potential hazards in the eastern annexation area was erroneous because no tests were taken and there were no evaluations. The Eastern Objectors suggest that Petal only introduced as evidence seven pictures of broken septic tanks, but no evidence was introduced that diseases have been reported.

¶ 20. Petal argues that its evidence revealed that there was an improper discharge of sewage in the eastern annexation area which is a health hazard. Petal also argues that this discharge violates state law. One area in particular where Petal expresses concern is the Eastwood Heights Subdivision located in the eastern annexation area. Petal maintains that this subdivision is having problems with improper sewage disposal. Petal further advances that it introduced evidence that revealed the eastern annexation area is having problems with improper and illegal dumping of trash and garbage.

¶21. The chancellor determined that exhibits established health hazards emanating from sewage disposal and waste water disposal in the eastern annexation area. The chancellor found that the testimony revealed that the eastern annexation area has existing and potential health hazards which will become problematic if development continues in the area without annexation. Another problem the chancellor found is that the east annexation area is not connected to a central sewer.

¶ 22. Greg Stein of the Mississippi Department of Health testified to photos entered into evidence and to site evaluations he conducted in the eastern annexation area. Stein stated that, generally, he found that the septic tanks used in the area were unsuitable. He testified that he observed instances where he found positive discharge of untreated waste water. He testified that pictures introduced into evidence showed positive discharge of untreated waste water. He acknowledged that he observed what constituted health hazards because the spread of disease is associated with untreated human waste. He further testified to instances of the failure of individual on-site systems (septic tanks). Stein explained that under state law that when individual systems malfunction and a central sewer system co-exists, the homeowner is required to connect to the central sewer and is not allowed to repair the malfunctioning on-site system. The evidence provided was sufficient to show that there are potential health hazards in the eastern annexation area. Therefore, we find no error in the chancellor’s finding.

5. Financial Ability to Provide Promised Services

¶ 28. The Eastern Objectors argue that the financial ability of Petal to make promised improvements is questionable. The Eastern Objectors assert this claim because they allege that Petal increased water and sewage rates after the trial in this matter.

¶24. Petal maintains that it has the financial ability to make improvements with existing city reserves and general fund balances. The improvements include street lighting, bi-weekly trash pick up, solid waste disposal, zoning, fire protection, police protection, mosquito control, traffic control, drainage improvements, and installation and maintenance of water and sewer lines. Petal argues that it can pay for the improvements through other funding sources available to expanding cities, or the annexation may be funded by general obligation bonds. Although this was not an issue before the court, Petal defends its actions of raising water and sewer rates by suggesting that the increase was justifiable in order to meet the sewer and water needs. Petal advances that there had not been an increase in rates for five years.

¶25. The chancellor found that Petal has the financial resources to accomplish the improvements set out in its plans based on its general fund, financial statements, and budget. Additionally, the chancellor was satisfied that Petal could also utilize funds customarily obtained by cities involved in annexation projects.

¶ 26. Demery Grubbs, financial advisor to Petal and former Mayor of the City of Vicksburg, testified that the City of Petal had an excellent financial posture. Additionally, he described Petal’s general fund and enterprise funds (water and sewer) as maintaining a 30% fund balance. Moreover, evidence was presented which showed that Petal had other financing options available to finance its proposed improvements. We find that the chancellor’s finding that Petal has the financial ability to provide municipal services to the eastern annexation area was sufficiently supported by evidence presented in the annexation hearing.

¶ 27. The Eastern Objectors allege that Petal raised its water and sewer rates after stating to the court that it had adequate financial sources to fund its proposed improvements. In order to assign error on appeal, the issue must be raised at the trial level or it is waived. Read v. State, 430 So.2d 832, 838 (Miss.1983). Nothing in the record reveals that Petal raised its water and sewer rates or raised the rates to fund proposed improvements especially since the rate increase allegedly happened after the conclusion of the trial in this matter. This assignment of error has not been properly preserved for the purposes of this appeal.

6. Zoning and Overall Planning

¶ 28. The Eastern Objectors contend that zoning is not needed in the area to be annexed. The Eastern Objectors also claim that the test is not whether zoning and planning would benefit the area, but whether it is needed.

¶ 29. Petal avers that it offers comprehensive planning, zoning ordinances, sign regulation, the requirement of building permits and building inspections, a building code based on the Southern Building Code, plumbing codes, mechanical codes and sewer ordinances, trash/junk ordinances and a garbage dumping ordinance. Petal argues that the eastern annexation area does not have a comparable system in place. Petal maintains that the eastern annexation area is in dire need of a zoning and planning program to meet the demanding needs of the developing eastern annexation area. Petal argues that it is important to have a zoning and planning plan in place before development to avoid problems that typically occur such as, incompatible land uses, subdivision deficiencies, overcrowded lots, narrow streets, traffic congestion, and inadequate community facilities. In addition, Petal advances that there is a need for building codes to help achieve a lower fire rating and to protect inhabitants and property values. Due to problems with abandoned vehicles and dilapidated structures, Petal avers that the eastern annexation area could benefit from ordinance enforcement.

¶ 30. The chancellor found that the evidence showed a need for zoning and planning in the eastern annexation area. Further, the chancellor found from the evidence that proper planning should be in place prior to development of the land. The chancellor noted that zoning and planning are important so as to avoid potential problems like those experienced by Petal prior to its incorporation.

¶ 31. Petal’s Mayor, Jack H. Gay, Jr., Michael Bridge, and Michael Slaughter all testified that the eastern annexation area was in need of planning and zoning. One reason is to avoid problems that Petal had when it incorporated in 1974. Some of those problems included incompatible land use, subdivision deficiencies, uncontrolled signage and narrow roads, lack of effective drainage, and inadequate design and enforcement. Bridge testified that proper planning and zoning and the application of codes and ordinances can alleviate those type problems experienced by Petal. Petal has an in-house zoning administrator and building inspector. Additionally, Petal already has zoning ordinances and building codes in place. We find that the chancellor’s finding on this indicium is reasonable and supported by substantial evidence.

7. Need for Municipal Services

¶ 32. The Eastern Objectors argue that finding that the eastern annexation area needed municipal services was erroneous because the area already has adequate police, fire, water, sewage, recreation and other services provided by Forrest County. Further, the Eastern Objectors argue that Petal’s plan does not include furnishing water to eastern annexation area citizens.

¶ 33. Petal maintains that it offers services that Forrest County does not presently provide. Petal argues that the petition by residents in the eastern annexation area requesting annexation is evidence of the need for municipal police protection, municipal fire protection, land use and building code enforcement, and city water and sewer. In addition, Petal contends that the eastern annexation area relies on a volunteer fire station and Petal would provide a fire station with full time fire protection in addition to additional hydrants, if annexed. Petal claims that it would enhance police patrol, especially in the areas of traffic patrol and animal patrol.

¶ 34. Petal also suggests that there is a need for a sanitary sewer in the eastern annexation area and that septic tanks are not suitable for the area. Petal proposes that it will install 70,000 linear feet of 8" sewer main in the eastern annexation area and 11 sewer lift stations as well as other sewer and force mains. Petal claims that the eastern annexation area also needs drainage improvements that the city can provide. Petal maintains that it can also provide the eastern annexation area with trash service that picks up discarded furniture and appliances. Petal alleges that this service is not currently offered in Forrest County. Additionally, Petal argues that the eastern annexation area needs right-of-way maintenance as well. Finally, Petal advances that it can and does provide recreational facilities to residents of the eastern annexation area.

¶ 35. The chancellor opined that if Petal were allowed to annex, then the eastern annexation area would benefit from its comprehensive zoning ordinance, building code requirements with building inspections, fire department protection and various other services. Additionally, the chancellor noted that residents of the eastern annexation area had circulated a petition requesting annexation in order to receive the benefits of other residents of Petal.

¶ 36. Petal introduced evidence of citizens from the eastern annexation area requesting annexation. In a petition to the City of Petal, presented on March 20, 1995, the petitioners requested annexation for police protection, lower insurance premium, land use and building code enforcement, protection of property value, city water and sewer and new city taxes. The evidence further suggests the need for a sewer system in a number of the developing subdivisions. On the other hand, Eastern Objectors testified that they do not need the improvements.

¶ 37. Whether the eastern annexation area actually needs improved services is subjective at best. In re Extension of Boundaries of City of Columbus; Robinson v. City of Columbus, 644 So.2d 1168, 1178 (Miss.1994). Due to the conflicting evidence and this Court’s standard of review, we find that the chancellor committed no manifest error in finding that the municipal services offered by Petal will benefit the residents in the eastern annexation area.

8. Past Performance

¶ 38. The Eastern Objectors argue that the court erred in finding that Petal did an adequate job of providing services to present citizens. The Eastern Objectors contend that credible evidence was presented to show that Petal did a poor job in enforcing its ordinances on trash and junk disposal, abandoned vehicles, and abandoned buddings.

¶ 39. Petal argues that it does an adequate job of providing municipal services to its present residents in a timely and efficient manner. Petal maintains that 98% of its citizens are connected to a sanitary sewer. Petal also suggests that it has codes and ordinances in place. Petal avers that it continuously makes improvements in the areas of drainage, water and sewer, zoning, enforcing of ordinances, traffic street signage, and purchasing land for use by Petal citizens for recreation.

¶ 40. The chancellor found that, since its incorporation, Petal provided adequate services to its citizens. The chancellor further noted that when Petal incorporated, it had problems with substandard streets, drainage system, water, sewer, mixed land uses and inadequate community facilities. However, the chancellor acknowledged that Petal has made many improvements in order to adequately and timely meet the needs of its residents.

¶ 41. The evidence reveals that since Petal’s incorporation, it has made phenomenal strides toward improving the city and its services to the residents of Petal. Mayor Gay testified that since incorporation, the city has constructed a new city hall and police station, connected 98% of all citizens to the central sewer and that nearly 100% of all citizens eligible are on the city’s water system. The Mayor further testified that the city has been given a Class 7 fire rating, thereby lowering fire insurance premiums. Petal has implemented zoning and code ordinances and hired personnel to enforce them in order to prevent future problems that Petal encountered at incorporation. We find that the chancellor’s finding on this indicium was reasonable.

9. Impact on Property Owners

¶ 42. The Eastern Objectors argue that Petal intentionally misled the court by announcing an increase in rates after the matter was heard, but before the judgment was entered. The Eastern Objectors advance that the majority of the eastern annexation area residents have no desire to be a part of Petal.

¶ 43. Petal argues that the annexation will make a positive impact on the eastern annexation area for the following reasons: enhanced police and fire protection, reduced fire insurance rates, street improvements, street lighting, drainage improvements, garbage and trash collection, sanitary sewer, and water in conformance with Petal’s services and facilities plan. The eastern annexation area will also benefit from a planning and zoning plan, code enforcement protective ordinances, animal control and savings on their monthly telephone bill. Petal maintains that although the eastern annexation area residents will be subjected to a tax increase due to the annexation, they will be receiving enhanced and additional services.

¶ 44. From the testimony, the chancellor found that the eastern annexation area would receive enhanced police and fire protection, reduced fire insurance rates, street and drainage improvements, maintenance, street lighting, garbage and trash collection, and sanitary sewer and water. Also the chancellor adjudged from the testimony that the financial impact on the eastern annexation area residents in comparison to the benefits could not be significant.

¶ 45. Testimony was presented for and against the annexation. Testimony offered by Petal advanced that the increased taxes to be paid by the eastern annexation area would be offset by lower fire insurance premiums, and telephone rates. With the exception of raising taxes, we find that the annexation will have no adverse impact on the residents of the eastern annexation area. Accordingly, “[t]he mere fact that residents and landowners will have to start paying city property taxes is not sufficient to show unreasonableness.” City of Jackson, 551 So.2d at 868. On the contrary, we agree with the chancellor that the eastern annexation areas will benefit from municipal services, including but not limited to: enhanced police and fire protection, reduced fire insurance rates, street and drainage improvements, maintenance, street lighting, garbage and trash collection, and sanitary sewer and water. Thus, we find that the chancellor’s findings here are reasonable.

10. Dilution of Minority Votiny Strenyth

¶ 46. Petal advances that there will be no negative impact on the voting strength of protected minority groups. The Eastern Objectors make no request for review on this indicium. Based on the evidence presented, the chancellor found that the annexation would not negatively affect voting strength of minorities, in particular, African Americans. This Court has ruled that this indicium is generally not afforded great weight where it is not raised by a party with standing. City of Columbus, 644 So.2d at 1180. No evidence was presented that would prevent the court from finding that minority voting strength will not be negatively affected. Therefore, we find that the chancellor committed no manifest error in its analysis of this indicium.

11. Benefits without Taxes

¶ 47. The Eastern Objectors contend that the eastern annexation area residents pay their fair share of taxes through sales tax. Petal maintains that the eastern annexation area residents receive many benefits because of their proximity to Petal. For instance, Petal argues that they use parks and take advantage of recreational programs for free and also receive lower fire insurance rates due to Petal’s Class 7 rating. Petal also argues that its fire department responds to fires in the eastern annexation area that involve commercial, industrial, and public facilities at no cost. Moreover, Petal contends that eastern annexation area residents take advantage of medical, educational, social, cultural and religious facilities as well as streets and safety provisions provided by Petal.

¶ 48. The chancellor found that eastern annexation area residents are receiving benefits from Petal because of their close proximity to the corporate limits. The chancellor also found that those benefits included, but were not limited to, use of parks and recreational programs, response to fires in commercial, industrial, or public entities, medical, educational, social, cultural and religious facilities.

¶ 49. Michael Bridge testified that Petal is the closest location to the eastern annexation to meet most of the needs of the residents. We agree with the chancellor’s finding that eastern annexation residents benefit from the municipal services as summarized above. Therefore, we find that it is only fair that they share the tax responsibility. We find that the evidence is reasonable to support the chancellor’s finding.

12. Others

¶ 50. Petal argues that another factor which supports its challenge for annexation is that Petal provides a municipal separate school district. The Eastern Objectors presented no argument as to this indicium. The chancellor made no finding in regard to the eastern annexation area on this indicium.

II. WHETHER THE LOWER COURT, IN RULING ON EVIDEN-TIARY MATTERS, COMMITTED ERROR, AND THE EASTERN ANNEXATION AREA OBJECTORS DID NOT RECEIVE A FULL HEARING ON ALL ISSUES.

¶ 51. The Eastern Objectors assert that the court erred in not allowing the attorney who represented the Eastern Objectors to cross-examine western annexation witnesses and that the denial deprived the Eastern Objectors of due process. The Eastern Objectors contend that the right to cross-examine a witness in a civil trial cannot be denied. The Eastern Objectors further contend that the eastern and western areas were represented by two separate counsel, that the areas were not contiguous, that the interest of each side was different and that they put on different proof. In addition, the Eastern Objectors complain that a witness is open for any and all questions relevant to the issue being tried.

¶ 52. Petal argues that the trial court did not abuse its discretion in refusing to allow the Eastern Objectors to cross-examine the Western Objectors’ witnesses about issues concerning the western annexation area. Petal argues that the trial court has inherent power to limit cross-examination to relevant matters and advances that the examinations were simply limited to question concerning the area the witness spoke on behalf of, either east or west. Petal maintains that the Eastern Objectors were given an opportunity to fully cross-examine Petal’s witnesses. Petal argues that the Eastern Objectors failed to preserve this argument on appeal by making an offer of proof. Petal advances that the Eastern Objectors put on no proof that they were prejudiced.

¶ 53. Whether evidence is relevant and/or admissible is left to the discretion of the chancellor, and reversal occurs only where that discretion has been abused. Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992). Moreover, M.R.E. 611 gives the court discretion to direct the mode and order of interrogation of a witness. It states in pertinent part:

(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination shall not be limited to the subject matter of direct examination and matters affecting the credibility of the witness.

M.R.E. 611. “The scope of cross-examination though ordinarily broad, is within the sound discretion of the trial court and the trial court possesses inherent power to limit cross-examination to relevant matters.” Heflin v. State, 643 So.2d 512, 518 (Miss.1994).

¶ 54. During the direct examination of Steven Lavell Floyd by Jolly W. Matthews, attorney for the Eastern Objectors, the following exchange transpired:

Q. Now you, as a developer, and as a professional real estate man, is that how you want to present your city to the world; that unsightly mess?
BY MR. TYNER: And to which we object, if the Court please. We’re talking about developing, we’re not talking about Richton Tie and Timber. BY MR. MATTHEWS: Judge, he’s on cross. I didn’t bring him here. BY MR. TYNER: He’s not on your cross. He’s on my cross.
BY THE COURT: All right, you’ve got two (2) annexation areas. You’ve got the east and the west. You represent the east. And you represent the west. Mr. Tyner represents the petition of the city. We can’t get around the Court’s ruling on what witnesses are, can testify to by using cross examination between the two objectors. Do you understand what I mean? In other words, Mr. Rogers cannot use this witness to talk about things, because he did not provide the city with that information on Discovery. You, Mr. Matthews can’t get around that limitation by saying, “Now I’m on cross, and I can ask him about anything.” So, I’m going to sustain the objection. Do you understand the Court’s ruling?
BY MR. MATTHEWS: Then my cross examination is limited to what Mr. Rogers talked about?
BY THE COURT: I’m considering you and Mr. Rogers as co-counsel, so to speak.
BY MR. MATTHEWS: Judge, we do not have—
BY MR. MATTHEWS: Well, my response is, Judge, I didn’t align the parties. The City of Petal brought this matter and aligned — the parties were aligned by the way they brought it. But Mr. Rogers and I do have diverse interests in this matter, and in some instances totally different proof.
BY THE COURT: Well, I understand you’re representing different areas in this annexation endeavor.
BY MR. MATTHEWS: Yes sir.
BY THE COURT: But you are both in opposition to the city’s annexation lawsuit. So, I don’t see that — I’m going to consider your testimony more in line of a direct testimony than cross examination, direct questioning rather than cross. And therefore, I’m not going to allow you the freedom that a pure cross examination is entitled to, which is unlimited. Your examination will be limited.

¶ 55. We find that the chancellor properly exercised his discretion in limiting the Eastern Objector’s cross-examination of the Western Objectors’ witnesses because they were not in opposition. The Eastern Objectors directs this Court’s attention to Jones v. Babst, 323 So.2d 757 (Miss.1975), (overruled on other grounds by Toliver v. Gen. Motors Corp., 482 So.2d 213 (Miss.1985)), in support of their argument. However, we agree with Petal that this case is not relevant here. It holds that when the interests of defendants are different, the defendants can have separate peremptory challenges and each has the right to cross-examine each of the plaintiffs witnesses. See Jones, 323 So.2d at 760. The Eastern Objectors were not limited in their cross-examination of the witnesses, only the co-defendant, the Western Objectors. Therefore, we find that while it may be true that the two areas have diverse interests, essentially they both contended that their areas should not be annexed to Petal. For the reasons stated above, we find that the chancellor did not abuse his discretion.

III. WHETHER THE CHANCELLOR MADE FINDINGS OF FACT WHICH ARE NOT IN THE RECORD AND, THEREFORE, THE FINDINGS ARE IN ERROR.

Exclusion of Witnesses

¶ 56. The Eastern Objectors aver that the court erred in failing to allow Eastern Objectors named in the pleading to be classified as parties and to be allowed to remain in the courtroom. The Eastern Objectors claim that it would have been too numerous to include 500-600 Eastern Objectors in the style, so they only listed four names and listed the other objectors in Exhibit “A” attached to the Eastern Objectors’ answer.

¶ 57. Petal argues that the court properly excluded witnesses that were not parties to the litigation from the courtroom. Petal also argues that it was proper to remove them from the courtroom to ensure that their testimony would not be affected by other witnesses.

¶ 58. M.R.C.P. 10(a) states in pertinent part that “[i]n a complaint the title of the action shall include the names of all the parties, but in all other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of the other parties.” (emphasis added). Furthermore, M.R.E. 615 states:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (B) a person whose presence is shown by a party to be essential to the presentation of his cause.

¶ 59. We find that because the 500 plus names of other witnesses from the eastern annexation area were not initially listed as parties on the original complaint, they are not considered parties in this matter. We also find that when the rule of sequestration of witnesses was invoked the eastern annexation witnesses were properly excluded from the courtroom. Thus, we find that the chancellor committed no error in allowing only the four named persons listed as parties to remain in the courtroom, once the rule was invoked.

Exclusion of Evidence

¶ 60. The Eastern Objectors also assign error to the exclusion of exhibits that they claim used facts and information already in evidence. Petal contends that the trial court properly refused to admit evidence that was not previously disclosed in response to Petal’s discovery request. Additionally, Petal argues that the Eastern Objectors waived this objection by not making an offer of proof after the chancellor sustained this objection.

¶ 61. A chancellor’s ruling on whether evidence is excluded as a sanction for violating discovery rules rests within the sound discretion of the trial court and cannot be reversed unless an abuse of that discretion is shown. M & M Pipe & Pressure Vessel Fabricators, Inc. v. Roberts, 531 So.2d 615, 620 (Miss.1988). Discovery rules are designed to prevent trial by ambush. Kinard v. Morgan, 679 So.2d 623, 626 (Miss.1996). Therefore, a court may exclude undisclosed evidence of a party who fails to comply with a discovery order. M.R.C.P. 37(b)(2)(B); Ladner v. Ladner, 436 So.2d 1366, 1370 (Miss.1983). However, this Court has also held that:

“[exclusion of evidence is a last resort. Every reasonable alternative means of assuring the elimination of any prejudice to the moving party and a proper sanction against the offending party should be explored before ordering exclusion.” McCollum v. Franklin, 608 So.2d 692, 694 (Miss.1992). “In the imposition of sanction [s], the trial court has considerable discretion in matters pertaining to discovery and its orders will not be disturbed in the absence of abuse of discretion.” Kilpatrick v. Mississippi Baptist Medical Ctr., 461 So.2d 765, 767 (Miss.1984).

TXG Intrastate Pipeline Co v. Grossnickle, 716 So.2d 991, 1013 (Miss.1997). Furthermore, sanctions can be imposed even if no court order has been entered compelling discovery. Id. at 1013.

¶ 62. During his direct testimony, Joseph Lusteck, an urban planner, testified about census results for Petal between 1990 and 2000. He stated that he had reduced his findings to writing if it would be useful to the court. The attorney for Petal objected to the introduction of Lus-teck’s report because it was not furnished during discovery. The court sustained this objection. The Eastern Objectors have failed to demonstrate how they were prejudiced by the exclusion of this evidence. We find that the chancellor did not abuse his discretion in excluding Lusteck’s report.

CONCLUSION

¶ 63. This Court finds that the approval of the annexation was proper. Furthermore, the chancellor did not. abuse his discretion in limiting cross-examination of the Western Objectors by the Eastern Objectors, in his exclusion of witnesses from the courtroom after the sequestration rule had been invoked, or in excluding evidence not identified during discovery. For the reasons stated, we affirm the judgment of the chancery court.

¶ 64. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, DIAZ, EASLEY AND CARLSON, JJ., CONCUR. COBB, J., CONCURS IN RESULT ONLY. McRAE, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION.

McRAE, P.J.,

concurring in result only.

¶ 65. I concur in the result reached only because of this Court’s past rulings. However, as the majority has stated on page 3, annexation is a legislative function when it involves municipal boundaries. Since the Legislature has the power to fix the boundaries of the municipality through its incorporation power, it should be the governmental entity to either enlarge or shrink corporate boundaries. Our Constitution of 1890 states:

The legislature shall pass general laws, under which local and private interest shall be provided for and protected, and under which cities and towns may be chartered and their charters amended, and under which corporations may be created, organized, and their acts of incorporation altered; and all such laws shall be subject to repeal or amendment.

Miss. Const, art. 4, § 88 (emphasis added).

¶ 66. This Court should only be involved in annexation cases when they involve a due process violation. To do otherwise means that this Court will continue to usurp a legislative function.

¶ 67. Currently, our rulings give the chancellor broad discretion in deciding annexation issues. His decision is easily substantiated by simply placing one sentence for each “indicia of reasonableness” in favor of the prevailing party in his opinion. There is no guarantee that the municipality will provide the residents of the annexation area any better protection or services than what they currently are receiving. The Legislature is the more appropriate voice for the people. “[T]he Legislature acts out of concern with what is best for the overall community, not as the courts do, applying legal standards, evidentiary rules and deciding for a particular party.” In re Extension of the Boundaries of the City of Batesville, 760 So.2d 697, 709 (Miss.2000) (McRae, J., dissenting) (citing In re Enlargement of the Corporate Limits of the City of Hattiesburg 588 So.2d 814, 836 (Miss.1991)(Robertson, J., concurring)).

¶ 68. “Unless this Court leaves annexations to legislative action, they will be thorns in the state judicial system’s side forever, questioning reasonableness and adding more indicia in an attempt to achieve an ‘answer’ at great expense to all litigants with no guarantees or recourse provided by the city that promises, but fails to deliver.” In re Extension of the Boundaries of the City of Batesville, 760 So.2d at 710. Accordingly, I concur in the result only.


author: SMITH, P.J.,

text:
    Joel Price TOLLISON v. Shannon Michelle Lewis TOLLISON.
    No. 2001-CA-01878-SCT.
    Supreme Court of Mississippi.
    March 6, 2003.

      Jak McGee Smith, Tupelo, attorney for appellant.
    Christi R. McCoy, Oxford, attorney for appellee.
    Before SMITH, P.J., WALLER and COBB, JJ.
   SMITH, P.J.,

for the Court.

¶ 1. Joel Price Tollison appeals to this Court from an adverse ruling in the Lafayette County Chancery Court raising the sole issue of whether a chancery court which had jurisdiction over a divorce and custody proceeding and entered its final decree, retains jurisdiction over a subsequent proceeding for contempt and termination of parental rights. We hold that it does and therefore reverse the chancellor and remand for a transfer to the Chancery Court of Prentiss County for further proceedings consistent with this opinion.

FACTS

¶ 2. Joel and Shannon Tollison were married in 1994. In July 1997, they separated while living in Prentiss County. They had one child, Brooke Michelle Tolli-son. In July 1997, Brooke and Shannon moved to Lafayette County after the parties separated. Joel continued to live in Prentiss County. The parties were divorced by order of the Prentiss County Chancery Court on June 16, 1998. Shannon was given custody of Brooke. Joel was granted visitation rights.

¶ 3. On April 25, 2001, Shannon filed a Complaint for Citation of Contempt and Termination of Parental Rights in the Chancery Court of Lafayette County. Joel was served with process in Prentiss County. On October 22, 2001, Joel filed a Motion to Dismiss stating that the Lafayette County Chancery Court did not have jurisdiction. Joel contends that since the Prentiss County Chancery Court granted the divorce, that court has continuing jurisdiction over the parties and the minor child.

¶ 4. On October 30, 2001, the Lafayette County Chancery Court heard oral argument from Joel’s counsel on the motion to dismiss. Joel’s motion to dismiss was denied. He reserved his right to appeal the question of jurisdiction. The case was tried and final judgment entered. Joel now appeals.

¶ 5. Shannon contends that jurisdiction is proper in the Lafayette County Chancery Court since she and Brooke have been residents of that county for three years. She intends to remain in Lafayette County. She argues that Brooke has no connection with Prentiss County other than having lived there as a small child. She relies on Miss.Code Ann. § 93-15-105 (Supp.2002). She argues that Miss.Code Ann. § 93-15-105 allows three choices as to where a termination of parental rights may be heard. Shannon contends that the statute allows a complaint for termination of parental rights to be filed in the county where the child resides, which in this case is Lafayette County.

¶ 6. Joel argues that Lafayette County would be the correct place to file such an action for termination of parental rights only if there had never been a proceeding in Prentiss County. He states that since the Prentiss County Chancery Court had original jurisdiction in the divorce and decided custody and visitation, that Prentiss County has jurisdiction. He recites the words of the chancellor who stated, while overruling his objection that, “this may be a proper case for the Mississippi Supreme Court to adjudicate whether or not once a ruling has been made on the custody of the child as to whether or not the child is locked into that county or the venue for any proceedings, including termination of parental rights.”

DISCUSSION

¶ 7. In filing her complaint, Shannon relied on Miss Code Ann. § 93-15-105(1) which states that “any person may file for termination of parental rights in the chancery court ... of the county in which the defendant or the child resides.” Since the child had been residing in Lafayette County for several years, Shannon reasoned that Lafayette County would have jurisdiction over these matters. This would be correct if there had not been a previous custody proceeding in Prentiss County with that court having entered its final decree. The Chancery Court of Prentiss County had original jurisdiction in the divorce and decided issues pertaining to custody and visitation in 1998. It thus appears that the Prentiss County Chancery Court has continuing jurisdiction over the matters of contempt and termination of parental rights regarding the child, Brooke Michelle ToUison.

¶ 8. An action for contempt must be brought in the same court which rendered the original decree and is to be litigated as a matter ancillary to the original action. That court has continuing jurisdiction over the subject matter and the venue even though the petitioner has moved to a different county within the same state. See Dennis v. Dennis, 824 So.2d 604, 610 (Miss.2002); Powell v. Powell, 644 So.2d 269, 280 (Miss.1994) (Smith, J., dissenting); Miller v. Miller, 512 So.2d 1286, 1288 (Miss.1987); Covington v. Covington, 459 So.2d 780, 782 (Miss.1984); Campbell v. Campbell, 357 So.2d 129, 132 (Miss.1978). The principle of continuing jurisdiction has long been recognized in domestic relations cases. Covington, 459 So.2d at 782 (citing Crum v. Upchurch, 232 Miss. 74, 98 So.2d 117 (1957); Gresham v. Gresham, 198 Miss. 43, 21 So.2d 414 (1945)). Miss.Code Ann. § 9-5-87 (Rev. 2002) is the statute addressing the power of contempt of court in situations where a party does not comply with a chancery court’s injunction, order or decree. See Covington, 459 So.2d at 782. It provides that “the chancery court ... shall have power to punish any person for breach of injunction or any other order, decree or process of the court, by fíne or imprisonment.” Miss.Code Ann. § 9-5-87. Further, we have held that only the court contemned has jurisdiction to punish the contemnor. Culpepper v. State, 516 So.2d 485, 487 (Miss.1987) (citing Kitchens v. State, 293 So.2d 815 (Miss.1974); Prine v. State, 143 Miss. 231, 242, 108 So. 716, 719 (1926)). Because the alleged contempt in the case at bar was against the Prentiss County Chancery Court, it is further mandated that the Prentiss County Chancery Court is the court of proper jurisdiction.

¶ 9. The statute, Miss.Code Ann. § 93-15-105, as cited by Shannon does not change the well-established rule that a chancery court which grants the custody of children in a divorce proceeding has, as between the same parties, continuing exclusive jurisdiction to modify the decree upon changed circumstances.

¶ 10. In K.M.K. v. S.L.M. ex rel. J.H., 775 So.2d 115 (Miss.2000), this Court reviewed the denial of a motion to dismiss which alleged improper jurisdiction. S.L.M., by and through her foster parents, filed an action in the Hinds County Chancery Court to terminate the parental rights of her natural mother, K.M.K. Id. at 116. K.M.K. filed the motion to dismiss, alleging improper jurisdiction in the Hinds County Chancery Court as the County Court of Hinds County, sitting as the Youth Court, had already taken jurisdiction over the child after making findings of abuse and neglect and placing S.L.M. in the home of foster parents. Id. We held that the chancery court may not exercise jurisdiction over abused or neglected children or any proceeding pertaining thereto over which the youth court may exercise jurisdiction if there has been a prior proceeding in the youth court concerning the same child. Id. at 118. In that case this Court stated:

[O]ur holding promotes other values important to judicial administration. First, it will prevent forum shopping. The foster parents in this case brought the termination of parental rights suit in the chancery court only after the youth court had twice refused to terminate the visitation rights of K.M.K. Second, our holding will prevent potentially conflicting orders between trial courts dealing with the same issues. Lastly, this holding will prevent multiple suits in different courts and promote judicial economy by allowing a court already familiar with the parties and situations to hear all petitions dealing with those same parties and situations.

Id. at 118. Joel argues the same in the case at bar. This Court must always guard against potential “forum shopping.” Id. We are again mindful of our duty to “prevent multiple suits in different courts and promote judicial economy” by requiring that this case remain in Prentiss County Chancery Court which first considered custody of the child of these parties. Id. Equally important is this Court’s role to “prevent potentially conflicting orders between trial courts.” Id.

¶ 11. The case of Reynolds v. Riddell, 258 So.2d 834 (Miss.1971), presented a similar situation. In that case, this Court was presented with the issue of whether the Washington County Chancery Court had jurisdiction to modify a decree of divorce and custody of minor children which had been entered by the Chancery Court of Sunflower County. Id. The Washington County Chancery Court determined that it had jurisdiction to modify the previous decree of the Sunflower County Chancery Court. Id. This Court reversed and stated that:

It would seem, therefore, that the rule is well established that a chancery court which grants the custody of the children in a divorce proceeding has, as between the same parties, continuing exclusive jurisdiction to modify the decree upon subsequent change in circumstances.

Id. at 836. The appellee in Reynolds relied on Miss.Code Ann. § 1263.5 (1942) which in part read:

In addition to the right to proceed under Section 2743, Mississippi Code of 1942, as amended ... the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters... .All actions herein authorized may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant.

253 So.2d at 836.

¶ 12. The statute interpreted in Reynolds has the same language as Miss. Code Ann. § 93-15-105 in reference to the filing of the matter in the county in which the child resides. As with the statute interpreted in Reynolds, in the case at bar we hold that the Legislature did not intend to create a new exception to the long established rule, but to allow filing in the county in which the child resides only if there had never been a court taking jurisdiction in the matter pertaining to that particular child.

CONCLUSION

¶ 13. We hold that Prentiss County is the proper place for Shannon to have filed the action for contempt and for termination of parental rights. There is a well established rule that a chancery court which grants the custody of children in a divorce proceeding has, as between the same parties, continuing exclusive jurisdiction to modify the decree upon subsequent changed circumstances. The language in Miss.Code Ann. § 93-15-105 allowing a litigant to file in chancery court where the child resides applies in situations where there is not a court already having previous continuing exclusive jurisdiction. Therefore, the Lafayette County Chancery Court’s judgment is reversed, and this case is remanded to the court for prompt transfer to the Prentiss County Chancery Court for further proceedings consistent with this opinion.

¶ 14. REVERSED AND REMANDED.

PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.