author: WALLER, Justice,

text:
    Jane DOE v. STATE ex rel. The MISSISSIPPI DEPARTMENT OF CORRECTIONS and The State Parole Board.
    No. 2002-CA-00135-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2003.

      Ron L. Woodruff, Oxford, Jim Waide, Brent Hazzard, attorneys for appellant.
    Lawrence Lee Little, Dion Jeffery Shan-ley, attorneys for appellee.
    Before SMITH, P.J., WALLER and COBB, JJ.
   WALLER, Justice,

for the Court.

¶ 1. The Motion to Withdraw Opinion and Substitute New Opinion, for Instructions to the Clerk of the Court and for Related Relief is granted, the original opinion issued herein is withdrawn, and this opinion is substituted in its place.

¶ 2. Jane Doe sued the State of Mississippi, acting through the Mississippi Department of Corrections and the State Parole Board, under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002), for damages sustained when she was raped by Michael M. Adams, a parolee accepted into Mississippi for supervision from the Illinois Department of Corrections. The Lafayette County Circuit Court entered summary judgment in favor of the State. Doe appeals, arguing that her notice of claim was filed prior to the expiration of the MTCA’s one-year statute of limitations and that there can be no discretionary immunity under Miss.Code Ann. § ll-46-9(l)(d) for the State where it improperly accepted Adams for parole and its parole officers failed to properly supervise Adams.

FACTS AND PROCEDURAL HISTORY

¶ 3. Michael M. Adams’s sordid criminal past makes his release by Illinois perplexing and not surprising, something with which Doe takes great issue. Adams was first accused on September 13, 1990, of stalking a University of Mississippi student for about one year from September of 1989. On August 21, 1990, Adams allegedly raped another University of Mississippi student. The Lafayette County Circuit Court docket indicated that Adams had been bound over to the grand jury; however, he fled Mississippi and was never tried. The case was subsequently retired to the files on May 13,1996.

¶ 4 Adams had fled to Illinois where he was arrested for theft on June 15, 1991, and aggravated assault on June 25, 1991. On October 26, 1992, he was subsequently sentenced to six years for attempted robbery and burglary. Also, on October 29, 1992, he was sentenced to fourteen years per count to run concurrently for one count of home invasion and two counts of attempted aggravated sexual assault.

¶ 5. The incident leading to the conviction for home invasion and attempted aggravated sexual assault occurred on October 21, 1991, when Adams forced his way into a woman’s apartment and attempted to sexually assault her. The woman struck Adams in the head with an ashtray causing him to bleed and thereafter flee the scene. Fingerprint evidence obtained from the scene linked Adams to the incident.

¶ 6. In reports submitted after each of Adams’s two convictions, two assistant state’s attorneys from Cook County, Illinois, recommended that Adams should be incarcerated as long as possible given his propensity for preying on young women. They also recommended that “[a]ny early release would be highly objectionable.”

¶ 7. Adams was, however, considered for parole in July of 1998. He indicated that he would reside with his grandmother in Maple Park, Illinois, but she refused to take him into her home because there were minor girls living with her.

¶ 8. On July 14, 1998, Adams filed for release to reside with his parents in Etta, Mississippi, and had secured a job waiting for him upon his return to Mississippi. Initially, the Mississippi Department of Corrections refused to accept Adams because his transfer request had been sent to the wrong county. Adams’s request was thereafter sent to the correct field office and was accepted by Field Officer Stephen Smith via a Reply to Compact Investigation Request on September 16,1998.

¶ 9. Both Mississippi and Illinois are signatories to the Uniform Act for Out-of-State Parolee Supervision. See Miss.Code Ann. § 47-7-71 (Rev.2000). Known as the “Compact,” signatories thereto basically agree that the “receiving state” will assume supervisory responsibilities over parolees and probationers released from the “sending state.” It provides in pertinent part:

The contracting states solemnly agree:

(1) That it shall be competent for the duly constituted judicial and administrative authorities of a state party to this compact (herein called “sending state”), to permit any person convicted of an offense within such state and placed on probation or released on parole to reside in any other state party to this compact (herein called “receiving state”), while on probation or parole, if
(a) Such person is in fact a resident of or has family residing within the receiving state and can obtain employment there;
(b) Though not a resident of the receiving state and not having his family residing there, the receiving state consents to such person being sent there.
Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person.
A resident of the receiving state, within the meaning of this section, is one who has been an actual inhabitant of such state continuously for more than one (1) year prior to his coming to the sending state and has not resided within the sending state more than six (6) continuous months immediately preceding the commission of the offense for which he has been convicted.
(2) That each receiving state will assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees.

Miss.Code Ann. § 47-7-71 (Rev.2000).

¶ 10. Adams was released from the Illinois prison system on October 11, 1998, with instructions to report to MDOC within 72 hours. The reporting instructions specifically stated that any failure to comply would be considered a violation of his release agreement and a warrant could be issued for Adams’s arrest.

¶ 11. It was not until December 16, 1998, nearly two months after Adams had been released from Illinois custody that he reported to Field Officer Smith in Mississippi. Smith never attempted to revoke Adams’s parole or seek to have a warrant issued for his arrest. Instead, in reviewing Adams’s paperwork, Smith classed Adams as needing “intensive supervision” which consisted of at least one home visit, one office visit, and two “collateral” visits per month. Adams reported for his first office visit on January 20, 1999. Six days later on January 26, 1999, he raped Doe at her Oxford home and was subsequently indicted, tried, and convicted of rape.

¶ 12. Doe filed a notice of claim with the Attorney General of Mississippi pursuant to the MTCA on January 25, 2000, one day shy of the one-year statute of limitations. She subsequently filed suit against the State of Mississippi, acting through the Mississippi Department of Corrections and the State Parole Board on May 1, 2000, within 95 days of her filing of her notice of claim. See Miss.Code Ann. § 11-46-11.

¶ 13. In her complaint, Doe alleged the willful and gross negligence of the State Parole Board and MDOC in receiving Adams for supervision from Illinois on the basis that they should have ascertained Adams’s numerous prior convictions, his previous indictment in Lafayette County, and the fact that he could very well sexually assault another woman in the future. She also alleged that the State negligently supervised Adams thereby permitting him to rape her.

¶ 14. The State answered, claiming, inter alia, immunity under the MTCA on the premise that the State was engaged in a discretionary function. See Miss.Code Ann. § 11 — 46—9(d). The State later amended its answer to include a statute of limitations defense.

¶ 15. The State moved for summary judgment and in support thereof argued that Doe’s claim was barred by the one-year statute of limitations because, according to the State, the “tortious, wrongful or otherwise actionable conduct” of Miss. Code Ann. § 11-46-11(3) occurred at the latest on December 16, 1998, the date MDOC accepted Adams for supervision, and not January 26, 1999, the date Doe was raped. The discretionary function argument was again presented.

¶ 16. The Lafayette County Circuit Court granted the State’s motion for summary judgment on December 26, 2001, without stating any reasons. Doe appeals and argues her claim should not have been dismissed as being time-barred under Miss.Code Ann. § 11-46-11 or on the basis that the State was immune under the discretionary function exception to liability under Miss.Code Ann. § 11-46-9(1)(d).

STANDARD OF REVIEW

¶ 17. We employ the de novo standard in reviewing a trial court’s grant of summary judgment. O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001). In conducting the de novo review, we look at all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847 (Miss.2001) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). This evidence must be viewed in the light most favorable to the party against whom the motion for summary judgment has been made. Leslie v. City of Biloxi, 758 So.2d 430, 431 (Miss.2000).

DISCUSSION

I. WHETHER THE STATE IS IMMUNE OR SUBJECT TO LIABILITY.

¶ 18. As a basis for establishing liability on the part of the state, Doe argues both negligent acceptance and supervision. This requires an analysis of whether a private right of action exists and, if so, whether Doe has stated a justiciable claim.

A. Whether the Uniform Act for OuWof-State Parolee Supervision Creates a Private Right of Action.

¶ 19. The general rule for the existence of a private right of action under a statute is that the party claiming the right of action must establish a legislative intent, express or implied, to impose liability for violations of that statute. See Blockbuster, Inc. v. White, 819 So.2d 43, 44 (Ala.2001); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923 (Colo.1997); Nichols v. Kan. Political Action Comm., 270 Kan. 37, 11 P.3d 1134, 1143 (2000); Charlton v. Town of Oxford, 774 A.2d 366, 372 (Me.2001); Walker v. Chouteau Lime Co., 849 P.2d 1085, 1086 (Okla.1993). We have also found no private right of action for violations of various statutes and regulations. See, e.g., Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 665-66 (Miss.2002) (finding violation of State Board of Pharmacy’s internal regulations did not create a separate cause of action); Allyn v. Workman, 725 So.2d 94, 102 (Miss.1998) (finding Miss.Code Ann. § 75-71-501, which prohibits fraud or deceit in connection with the offer, sale or purchase of securities did not create private right of action).

¶ 20. For example, the above reasoning was applied in Hodgson v. Mississippi Department of Corrections, 963 F.Supp. 776 (E.D.Wis.1997), where the United States District Court for the Eastern District of Wisconsin addressed the issue of whether the Uniform Act for OuWof-State Parolee Supervision created a private right of action in favor of a plaintiff. Albert Hodg-son sued the Mississippi Department of Corrections, its commissioner, and its Compact administrator in Wisconsin federal court for the wrongful death of his daughter Monique at the hands of a Mississippi parolee who was allegedly improperly relocated to Wisconsin under the Compact. 963 F.Supp. at 781.

¶ 21. The court noted that the wrongful death claim arose on August 4, 1992, the day Monique was murdered. Id. at 788. On the issue of whether Hodgson actually had a private right of action under the Compact, the court held:

To determine whether a statute creates a private right of action in favor of a particular plaintiff, a court must analyze the statute itself and any relevant legislative history. The focal point is the legislative body’s intent in enacting the statute. Unless the legislative intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.
In this case, nothing points in favor of implying a private right of action for Hodgson. The Uniform Act [for Out-of-State Parolee Supervision] itself contains no statement of purpose or mention of the rights of the general public or potential victims of parolees or probationers who might relocate under the Act’s provisions. At the same time, the Plaintiff has failed to point to any record of legislative history which shows that the lawmakers intended to benefit persons such as Hodgson or his daughter.

Id. at 791 (citations omitted & emphasis added). We likewise find no implied private right of action. The Compact does not create a private right of action; therefore, Doe’s negligent acceptance claim must fail absent violation of a specific statutory or regulatory directive.

B. Whether the State Has Violated Statutes or Regulations For Which the State Could Be Held Liable.

¶ 22. Doe contends that her action was based upon violations of statutes and not the exercise of discretionary duties for which the State would be immune. She relies on our opinion in Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041 (Miss.2002), for the proposition that when one violates clear duties in a statute or regulation, the act is ministerial and not discretionary.

¶ 23. The MTCA provides for governmental immunity in certain enumerated instances. Miss.Code Ann. § 11-46-9(1) provides:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.

Whether governmental conduct is discretionary requires a two-prong analysis: “(1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives.” Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.2001) (citing Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999)). See also Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911, 914 (Miss.2001); Brewer v. Burdette, 768 So.2d 920, 922 (Miss.2000). Conversely, governmental conduct is ministerial if imposed by law, and its performance is not dependent on the employee’s judgment. Leflore County v. Givens, 754 So.2d 1223, 1226 (Miss.2000) (citing L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141 (Miss.1999); Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss.1996)). Our inquiry thus turns on whether the State’s actions in accepting Adams for parole or in failing to supervise him while in Mississippi violates any specific duties required by law. Also, when a parolee is sent from a sending state to a receiving state, that parolee is subject to the rules and regulations of the receiving state governing supervision. Miss.Code Ann. § 47-7-71(2).

1. Whether the State Violated Statutory Provisions in Its Acceptance of Adams.

¶ 24. Doe asserts two statutory violations by the State in its acceptance of Adams: first, Adams did not meet the six-month residency requirement under the Compact and, second, the State improperly accepted Adams for supervision when he was ineligible for parole in Illinois.

¶ 25. Mississippi’s obligation to receive Adams was based upon a determination that Adams was eligible for parole in Illinois. See Miss.Code Ann. § 47-7-71(1). The decision to grant or deny parole is in the discretion of the Parole Board and later MDOC. See Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990); Haynes v. State, 811 So.2d 283, 285 (Miss.Ct.App.2001).

¶ 26. Doe charges that Adams was ineligible to be received in Mississippi on parole because he had not been a resident of Mississippi for the six-month period immediately preceding the rape. We find such an analysis unnecessary. Under Miss.Code Ann. § 47-7-71(1), a probationer or parolee can be sent from the sending state to the receiving state if “(a) Such person is in fact a resident of or has his family residing within the receiving state and can obtain employment there .... ” (emphasis added). A “resident of the receiving state” is

one who has been an actual inhabitant of such state continuously for more than one (1) year prior to his coming to the sending state and has not resided within the sending state more than six (6) continuous months immediately preceding the commissions of the offense for which he has been convicted.

Miss.Code Ann. § 47-7-71(1). It matters not whether Adams is actually a “resident of the receiving state” which would be Mississippi because the use of the conjunction “or” in subsection (a) as quoted above allows a parolee to be sent to the receiving state if such person is a resident or he has family in the receiving state. Adams clearly fell under the latter classification, for his parents are residents of Etta and he indicated he had a job waiting for him.

¶ 27. Doe’s other alleged statutory violation is that Mississippi could not have accepted Adams for supervision because he was ineligible for parole in Illinois. She contends that when Illinois refused to parole Adams because his grandmother declined to take him into her home because minor girls resided with her, Adams was ergo ineligible for parole in Illinois. We disagree with Doe’s characterization of Adams’s grandmother’s refusal to take him in as conclusive proof that he was denied parole in Illinois. The document indicating this “denial” was an IDOC document listing Adams’s parole plans. Also included as possible host/sponsors were Adams’s parents in Etta and his aunt in Chicago. Adams’s parents’ willingness to take him in apparently satisfied the Illinois authorities as he was paroled in Illinois and ordered to report for supervision in Mississippi under the Compact. Also, Smith stated that he verified Adams’s residence and employment in Mississippi prior to responding to Illinois’ request. The Parole or Mandatory Supervised Release Agreement entered into between Adams and the Illinois Prisoner Review Board further recites the fact that Adams was released on parole in Illinois. The State’s acceptance of Adams was proper and, indeed, was mandatory under the Compact.

2. Whether the State Violated Statutory Provisions in the Supervision of Adams.

¶ 28. Doe asserts that the State should have initiated actions to send Adams back to Illinois upon his failure to report timely and that the State’s failure to supervise Adams once he did report was causally related to the rape.

¶ 29. Doe contends that Mississippi should have initiated actions to send Adams back to Illinois because of his failure to report within 72 hours of his release from Illinois. The only Mississippi statutory or regulatory authorities concerning the handling of a parolee’s failure to contact a Field Officer are MDOC Standard Operating Procedure 37.01.01 which states, “If the request to supervise an out of state offender is accepted, however, the offender does not make contact with the accepting Field Officer within one hundred twenty (120) days of the initial acceptance date, the Interstate Compact Office shall be notified in writing.” and MDOC Standard Operating Procedure 37.02.01which states, “The initial personal contact between the newly released parolee and the supervising Field Officer should take place as soon as possible, but no more than three work days after the parolee’s release from custody, unless otherwise agreed upon prior to release.” Smith accepted Adams via a Reply to Compact Investigation Request on September 16, 1998, and Adams reported for supervision on December 16, 1998. Adams made contact within the 120-day window but not within three days. While Smith could have initiated actions to revoke Adams’s parole and sent him back to Illinois for failing to report within 72 hours, there is nothing in the Compact or applicable MDOC regulations requiring him to do so. There being no statute or regulation the violation of which can be considered ministerial, the decision not to revoke Adams’s parole is necessarily an exercise of discretion.

¶ 30. Doe also asserts the failure to properly supervise Adams once he did report directly contributed to the eventual rape. Adams reported for supervision to Officer Smith on December 16, 1998, had one office visit with Officer Stewart on January 20, 1999, and raped Doe on January 26, 1999. Doe argues that the State violated its own directions regarding supervision because it never conducted one home visit or two collateral visits in one month.

¶ 31. Our inquiry thus turns to whether the decision to place Adams in intensive supervision and the failure to follow that decision are exercises of discretion or positively imposed by law. Doe argues that applicable state regulations required the State to conduct at least one home visit of Adams per month.

¶ 32. While the supervision procedures appear to be ministerial in nature, the Field Officer’s responsibilities to monitor and supervise a parolee should be immune from suit in cases such as this one where the State had no indication of a specific threat on Adams’s part to harm Doe. Doe alleged in her complaint that MDOC should have known there was probable cause to believe that Adams would again engage in acts of sexual assault in the future. Such a proposition is not entirely without merit; however, every person released on probation or parole also committed a crime in the past and, given the arguably high rates of recidivism, may very well likely commit another crime while free.

¶ 33. A well-reasoned explanation of this position can be found in a separate opinion in Taggart v. State, 118 Wash.2d 195, 822 P.2d 243 (1992) (Guy, J., concurring in part and dissenting in part). In Taggart, a consolidation of two cases, the plaintiffs sued the State of Washington for injuries sustained after they were brutally assaulted by parolees. 822 P.2d at 244. They claimed that the parole officers assigned to the parolees who attacked them “failed substantially to perform their supervisory functions.” Id. at 252. The majority held that the parole board was immune but that the parole officers’ failures to require a parolee to submit to drug testing, contacting parolee’s friends and employers (“collateral” contact), and failure to report violations of parole were administrative and supervisory failings falling outside the absolute protection afforded employees of state agencies. Id. One justice, while concurring with the majority that the parole board was immune, dissented on the issue of liability of parole officers and made the following public policy argument:

The same public policy argument applies to parole officers. The parole board employs the parole officers to implement their administrative decisions. The board will feel a responsibility to those officers and may not wish to place them in jeopardy by paroling a person eligible for parole if the officer employed by the board is going to be legally liable for the parolee’s conduct. Thus, opportunities will be lost where parole might be warranted. Successful parole requires assisting a parolee in making his or her own decisions and thus allowing some freedom of action. If the parole officer has liability for the actions of a reoffending parolee, the supervision will not be sufficiently flexible to accomplish its rehabilitative goal.
Individuals on parole are generally not single offenders. They have been convicted of multiple felonies, and recidivism is high. To expect complete rehabilitation with no further offenses is unrealistic. To create liability on the parole officer is to place blame somewhere and thereby simplify a complicated social problem. The grant of “qualified” immunity by the majority is illusory and nothing more than a negligence standard wrapped like a gift box which contains sticks and ashes.
The majority opinion admits that generally one does not have liability for the criminal acts of a third party unless one “takes charge” over that person. The issue is the parole officer’s control over the parolee’s actions. It is a naive fiction to say parole officers have control over felons who are free on parole. A person who does not have the ability to control another’s conduct should not have liability imposed upon him or her for the tortious act of that other person.

Id. at 263-64 (citations omitted & emphasis in original). Other courts have likewise arrived at a similar conclusion by applying the theory that the state owed no duty to the plaintiff. See, e.g., Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677, 687 (1998) (finding no duty owed when parolee raped and killed coworker); Hartford Fire Ins. Co. v. State Dep’t of Health & Human Resources, 413 So.2d 1360, 1361-62 (La.Ct.App.1982) (finding no duty owed to plaintiff when parolee fire damaged plaintiffs business); Rogers v. S.C. Dep’t of Parole & Cmty. Corrections, 320 S.C. 253, 464 S.E.2d 330, 332 (1995) (finding no duty to warn victim absent specific threats of harm against victim in case where parolee murdered victim); Small v. McKennan Hosp., 403 N.W.2d 410, 414 (S.D.1987) (finding no liability when parolee raped and murdered victim).

¶ 34. There is absolutely no indication in the record of Smith’s or Stewart’s knowledge of a specific intent by Adams to harm Doe. In fact, the circumstances of the case indicate otherwise. Adams met with Officer Stewart for an office visit on January 20 and raped Doe on January 26. We find it implausible to believe that Doe would not have been raped had Adams’s parole officer conducted the one home visit and two collateral visits. For Doe to suggest that the State should have known that Adams could strike again overlooks the fact that every parolee can and, in many eases, does strike again, since every parolee is by definition a convicted felon. Holding the State liable for the negligent supervision of parolees would likely force parole officers to become overly restrictive and overbearing in their supervision and become more apt to revoke paroles out of fear they could be held liable for the acts of third parties which they have no reason to believe would occur. Since there is no evidence of a gross, reckless or wanton failure in the exercise of its statutory duty, i.e., supervising parolees, the State maintains the benefit of a shield of immunity. See L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d at 1142. Also, there is no sufficient causal connection or element of foreseeability between the alleged violated statutory duty and the injury sustained. See Brumfield v. Lowe, 744 So.2d 383, 389 (Miss.Ct.App.1999) (finding no causal connection between defendant police officer’s alleged fault in arrest of plaintiff handed over by hospital personnel after treatment for gunshot wound and later recurring injuries from wound in suit for failing to provide medical treatment). Doe’s negligent supervision claim fails as well.

II. WHETHER DOE’S CAUSE OF ACTION FOR NEGLIGENT SUPERVISION ACCRUED ON OR BEFORE JANUARY 26, 1999.

¶ 35. This issue concerns the actual date of the “tortious, wrongful or otherwise actionable conduct” for statute of limitations purposes. Doe contends that the one-year period did not start running until January 26, 1999, the date she was raped. The State responds that the period started running on either September 16, 1998, the date Adams was initially accepted, or December 16, 1998, the date Adams reported for supervision.

¶ 36. The MTCA provides for a one-year statute of limitations:

All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five days from the date the chief executive officer of the state agency receives the notice of claim....

Miss.Code Ann. § 11-46-11(3) (emphasis added). Thus, our inquiry concerns whether the “tortious, wrongful or otherwise actionable conduct” took place on September 16,1998, or December 16, 1998, as the State contends or January 26, 1999, as Doe contends.

¶ 37. Doe’s negligent supervision claim is based on the State’s alleged negligence in supervising Adams after he reported to Field Officer Smith. This claim is independent of the negligent acceptance claim which was based upon the provisions of the Compact. She could not have possibly filed suit on her negligent supervision claim within one year of MDOC’s acceptance of Adams or his actual reporting for supervision since she did not sustain damages as the result of any “tortious, wrongful or otherwise actionable conduct” until she was raped on January 26, 1999. We hold that the one-year window to file a notice of claim did not begin to run until January 26, 1999, the day Doe was raped. Doe’s notice of claim and complaint, insofar as the negligent supervision claim is concerned, were filed timely.

CONCLUSION

¶ 38. We sympathize with Doe for the great trauma that she suffered. However, in the absence of a statutory violation that can be causally linked to the rape or a specific threat on the part of a parolee to harm another, we will not impose liability. As such, the Lafayette County Circuit Court’s grant of summary judgment in favor of the State of Mississippi, acting through the Mississippi Department of Corrections and the State Parole Board, is affirmed.

¶ 39. AFFIRMED.

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

      . A "collateral contact” or collateral visit includes "[a]ll contact not classified as personal to include contact with the person(s) with whom the offender resides, i.e. spouse, parents, relatives, landlord; and contact with any other person who has contact with the offender, i.e. employer, neighbor, minister, law enforcement personnel, teacher.” MDOC Standard Operating Procedure 37.02.01 at 1.

      . The Preamble to the agreement stated:
      This document constitutes an agreement governing persons who have been granted parole by the Illinois Prisoner Review Board or otherwise released under supervision, and defines the terms by which the undersigned is conditionally released from confinement. The rules of conduct follow. If such rules are violated, parole or mandatory supervised release may be revoked under the rules and regulations promulgated by the Prisoner Review Board.
      (emphasis added).

      . Adams had registered with the Lafayette County Sheriff’s Department as a convicted sex offender.

      . Mississippi had a total parole population of 1,378 adults in 1997. Bureau of Justice Statistics, United States Department of Justice, Sourcebook of Criminal Justice Statistics 538 (2000). Also in 1997, Mississippi had 118 sentenced prisoners admitted to state institutions for parole violations. Id. at 539.


source: Caselaw Access Project

author: GRAVES, Justice,

license: Public Domain

text:
    CITIZENS ASSOCIATION FOR RESPONSIBLE DEVELOPMENT, INC. v. CONRAD YELVINGTON DISTRIBUTORS, INC., Harrison County Development Commission and Harrison County.
    No. 2002-CC-00623-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2003.

      Reilly Morse, Gulfport, attorney for appellant.
    Harry R. Allen, Joseph R. Meadows, Karen J. Young, Gulfport, Britt R. Single-tary, Gary Dale Thrash, Jackson, David W. Crane, Gulfport, Glen K. Till, attorneys for appellees.
    Before SMITH, P.J., CARLSON and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. This appeal arises from the decision of the Circuit Court of Harrison County, Mississippi, First Judicial District, affirming the actions of the Harrison County Board of Supervisors (“the Board”) and its governmental subdivision, Harrison County Development Commission (“HCDC”), authorizing the sale of county property to Conrad Yelvington Distributors, Inc. (“Yelvington”) for use as an aggregate distribution plant. The objectors to the sale, Citizens Association for Responsible Development, Inc. (“CARD”) assert six issues on appeal: (1) the decision by Harrison County and HCDC to allow CYI’s outdoor aggregate distribution terminal into a light industrial park violated the land use provisions of the ordinance creating the Long Beach Industrial Park; (2) the decisions of Harrison County and HCDC do not contain sufficient detail as to the findings or reasoning to permit judicial review; (3) the record lacks proof or findings that vibrations and impacts upon property values were adequately considered by the Board; (4) the record lacks findings and proof that noise impacts were minimal or were adequately mitigated; (5) the conclusion that impacts from silica dust were insignificant is not supported by the record; and (6) the conclusion that the transaction was valid and supported by adequate consideration is both legally and factually erroneous.

¶ 2. We find that the circuit court did not err in concluding that the decision of Harrison County and the Harrison County Development Commission was not arbitrary or capricious and was supported by adequate consideration. Therefore, we affirm the circuit court’s judgment.

FACTS

¶ 3. By a Bill of Exceptions filed pursuant to Miss.Code Ann. § 11-51-75 (Rev. 2002), the Citizens Association for Responsible Development, Inc. (“CARD”) appealed the conveyance of county-owned property in the Long Beach Industrial Park to Conrad Yelvington Distributors, Inc. (“Yelvington”). CARD’S members include residents of neighborhoods near the Industrial Park which was created in the early 1970’s to encourage and foster the location and growth of industry in the county. The Industrial Park is located in an unincorporated part of Harrison County governed by the Board of Supervisors who have legal authority to convey county-owned property. The Harrison County Development Commission (“HCDC”) is a governmental subdivision of Harrison County.

¶ 4. In January 1999, Yelvington began negotiating with HCDC to acquire land in the Industrial Park for its aggregate distribution facility, in large part because the Industrial Park has a railroad spur necessary to the efficient operation of Yelving-ton’s business. Fearing that excessive noise, vibrations and air pollution from silica dust would emanate from Yelving-ton’s facility, CARD expressed concern about the location of such a business in the Industrial Park.

¶ 5. The Harrison County Board of Supervisors held three hearings on the matter, giving proponents and opponents of the sale full opportunity to be heard and present evidence supporting their respective positions. In addition to hearing from experts presented by Yelvington on the issues raised by CARD, the Board engaged experts of its own to assist in analyzing the impact of the Yelvington plant on the surrounding area. The Board also personally visited the Yelvington plant and observed its normal operations before finally deciding to convey the property to Yelvington. Although Harrison County had no comprehensive zoning ordinance in effect at the time of the conveyance to Yelvington, the Board of Supervisors attempted to satisfy the concerns of CARD by placing a number of restrictions upon the use of the property conveyed to Yelv-ington. In addition, the County persuaded Yelvington to agree to record a covenant restricting use of its privately owned 18 acres of property located just outside the park.

¶ 6. On March 19, 2002, the circuit court entered an order addressing these issues. The court, finding no error of law in the proceedings below nor in the record made before the Board of Supervisors, found that the decision of the Board was reasonably debatable and that it was supported by substantial evidence, and therefore affirmed the decision of the Board to convey property in the Long Beach Industrial Park to Yelvington.

DISCUSSION

I. WHETHER THE DECISION BY HARRISON COUNTY AND HCDC TO ALLOW YELVINGTON’S OUTDOOR AGGREGATE DISTRIBUTION TERMINAL INTO A LIGHT INDUSTRIAL PARK VIOLATED THE LAND USE PROVISION OF THE ORDINANCE CREATING THE PARK.

¶ 7. In reviewing an administrative agency’s findings of fact, our courts are limited by the arbitrary and capricious standard of review. Bd. of Supervisors of Harrison County v. Waste Management of Miss., Inc. 759 So.2d 397, 400 (Miss.2000) (citing McDerment v. Miss. Real Estate Comm’n, 748 So.2d 114, 118 (Miss.1999)). An action is arbitrary or capricious if the agency “entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Miss. Dep’t of Envtl. Quality v. Weems, 653 So.2d 266, 281 (Miss.1995).

¶ 8. CARD argues that the decision by Harrison County and HCDC to allow Yelv-ington’s outdoor aggregate distribution terminal into a light industrial park violated the land use provisions of the ordinance creating the Long Beach Industrial Park.

¶ 9. The Long Beach Industrial Park was created pursuant to resolutions of HCDC and the Board of Supervisors. In support of its resolutions, HCDC and the Board of Supervisors adopted and approved a feasibility study prepared by Brown and Russell, Inc. The report states in part:

The proposed industrial development has been discussed with officials of the Gulf Regional Planning Committee (GRPC) and they stated that they would have no objections to an industrial park developed for light industry provided protective covenants were used to insure that the industrial park would not destroy the surrounding area as a residential section.” The report further states: “The park is to be developed to attract light industry that will be compatible with the surrounding residential areas. Thus the industry should be of a type which does not present a problem by discharging air or water pollutants, create excessive noise, nor give off offensive odors. These factors should dictate the type of industry allowed within the park.

1110. CARD attempts to impose a zoning regulation upon HCDC by citing the resolutions of HCDC and the Board authorizing the creation of the Park. This attempt is made by referencing the above-mentioned language which was contained in the Brown and Russell feasibility study. HCDC and the Board did adopt and approve the feasibility study prepared by Brown and Russell concerning the Long Beach Industrial Park. However, at no time did HCDC or the Board adopt, implement or record covenants restricting the sale of said land within the park to “light industry.” In fact, prior to construction of the Yelvington facility, the Park housed six companies, three of which were classified as “light industry” and three as “heavy industry.” Furthermore, according to the City of Gulfport’s Zoning Ordinance, Yelv-ington is a “sand and gravel storage yard” and is classified as a light industry. At no time did HCDC or the Board ever adopt an official policy with regard to the sale of land within the Park.

¶ 11. The Fifth Circuit has defined official policy in Bennett v. City of Slidell, 735 F.2d 861(5th Cir.1984) (en banc), as follows:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body has delegated policymaking authority.

Bennett, 735 F.2d at 862.

¶ 12. The acceptance of the Brown and Russell report in a recital of a resolution regarding the feasibility of the acquisition and creation of the Long Beach Industrial Park is not a policy statement, ordinance, or regulation that is officially adopted and promulgated by the County’s lawmaking officials At no time did HCDC or the County ever adopt a resolution, covenant or other regulation specifically implementing land use restrictions. Thus, we find that this argument is without merit.

II. WHETHER THE FINDINGS OR REASONING LEADING TO THE FINAL DECISION OF HARRISON COUNTY AND HCDC CONTAIN SUFFICIENT DETAIL AS TO PERMIT JUDICIAL REVIEW.

¶ 13. CARD relies on McGowan v. Miss. St. Oil & Gas Board, 604 So.2d 312 (Miss.1992), in stating that the County and HCDC have not provided a sufficient explanation for their decisions in the resolutions approving the Yelvington transaction, and thus, said decisions are not subject to judicial review.

¶ 14. However, McGowan does not stand for the proposition that HCDC and the Board of Supervisors need to make specific findings with regard to their decision in the case at hand. The issue which McGowan reviewed was a denial by the Oil and Gas Board of a request for a permit to operate “packerless” salt water disposal wells. McGowan, 604 So.2d at 324. The denial of the permit in McGowan was reviewed by the Court in light of the statutory responsibility imposed upon the Oil and Gas Board in Miss.Code Ann. §§ 53-1-1, 53-1-3 and 53-1-17 (1972). There is no such statutory requirement in the ease at bar. See Miss.Code Ann, § 59-9-19 (Rev. 1996).

¶ 15. The record below is clear that the Board of Supervisors and HCDC adequately considered the complaints and concerns of CARD as well as other members of the community. The Board allowed CARD members to present their concerns and objections at three meetings. The Board hired independent experts to investigate the issues presented by CARD. The Board ordered and received studies with regard to sound, health hazards and effect on the value of surrounding properties. The Board personally visited the Yelvington facility and observed normal operations. The final order of the Board addresses the concerns of CARD and incorporates several restrictions upon Yelv-ington that include, inter alia, limiting the hours of operation from 6:00 a.m. to 6:00 p.m., the implementation of a system of dust control, the implementation of sound control barriers, limitations on night time security lighting, and erection of an earthen berm to enhance the appearance of the Yelvington facility. After a full year of meetings, investigations by experts and a personal visit to the Yelvington plant, HCDC and the Board decided that the sale of the property to Yelvington would be in the best interest of the County.

¶ 16. There is a rebuttable presumption in favor of the agency’s decision, and the burden of proving to the contrary is on the challenging party. Bd. of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). Therefore, an agency’s decision will not be disturbed on appeal absent a finding that it was not supported by substantial evidence, was arbitrary or capricious, was beyond the power of the administrative agency to make, or violated some statutory or constitutional right of the complaining party. Harrison County, 759 So.2d at 400 (citing McDerment, 748 So.2d at 118). “The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness.” Weems, 653 So.2d at 281.

¶ 17. For the reasons stated above, we that the findings of HCDC and the Board were not arbitrary or capricious and were supported by substantial evidence.

III. WHETHER THE RECORD CONTAINS SUFFICIENT PROOF OR FINDINGS THAT VIBRATIONS AND IMPACTS UPON PROPERTY VALUES WERE ADEQUATELY CONSIDERED BY THE BOARD.

¶ 18. CARD avers that, due to the nature of the Yelvington facility, vibrations are affecting surrounding properties. However, CARD has failed to present any expert testimony regarding the vibrations and/or decreasing property values. On the other hand, Yelvington and HCDC retained experts to investigate the claims asserted by CARD regarding vibrations and property values. With regard to the vibrations, the experts stated that at two of the homes near the Yelvington plant the vibration effects from the plant could not be detected on the concrete slabs of the homes. The experts stated that at another home near the plant the vibrations from the plant could barely be detected and were at background levels. As for property devaluation, the expert retained by HCDC and the Board to investigate allegations of property devaluation found that no such devaluation had occurred. This expert testimony was not refuted by CARD.

¶ 19. CARD alleges that HCDC and the Board must provide specific findings regarding each and every issue raised by CARD. However, specific findings on such issues raised by CARD are not necessary. This Court has stated:

In City of Clinton, [509 So.2d 877 (1987)] we simply emphasized the necessity of a record showing the factual basis for the findings of the governing body. Absent a record showing sufficient evidence to support the findings, it is inevitable that reversal will follow. On the other hand, while recognizing the desirability of specific findings by the zoning authority on each considered issue, we will not reverse for a lack of such specificity where a factual basis for the action is disclosed. In this case, the record is replete with factual bases for the Board’s findings and its action.The Board was not required to specifically state in its order whether its action rested on one or both of the asserted grounds because the facts supporting the action are adequately reflected in the record of proceedings.

Faircloth v. Lyles, 592 So.2d 941, 945 (Miss.1991) (emphasis added).

¶ 20. Per Faircloth, there is no requirement that HCDC or the Board make specific findings of fact on each and every issue raised by CARD, as the record of proceedings adequately reflects the facts supporting their decision. Such a requirement would place an arbitrary and unreasonable burden on HCDC and the Board.

¶ 21. We find that the findings of HCDC and the Board were reasonable based on the evidence and were adequately supported by the record. This issue is without merit.

IV.WHETHER THE RECORD CONTAINS SUFFICIENT FINDINGS THAT NOISE IMPACTS WERE MINIMAL OR WERE ADEQUATELY MITIGATED.

¶ 22. CARD argues that the record lacks findings that noise created by the Yelvington facility is minimal and that noise reduction devices have not mitigated the level of noise. However, the record clearly reflects that the noise impacts from the Yelvington facility are minimal and have been adequately mitigated. Harrison County retained Charles Waggoner, Ph.D., CHMM., Manager of Safety, Excellence and Environment with the Mississippi State Diagnostic Instrumentation and Analysis Laboratory. On two separate visits to the site, Dr. Waggoner performed sound level measurements and tests. These tests were within the normal range. However, HCDC and the Board went one step further and required Yelvington to install sound abatement devices in order to further reduce the noise level. According to Dr. Waggoner, “the sound abatement procedures for the shaker (the machine that CARD claims produces the most noise) worked, providing for a significant reduction in sound level.” Dr. Waggoner provided evidence that the sounds from the shaker are quickly reduced to background levels as distance from the shaker increases. From the data collected, he found that shaker episodes are near baseline levels and can be completely obscured by passing traffic. This Court has repeatedly held that the zoning decision of a local governing body which appears “fairly debatable” will not be disturbed on appeal and will be set aside only if it appears the decision is arbitrary, capricious, discriminatory, illegal or is not supported by substantial evidence. City of Biloxi v. Hilbert, 597 So.2d 1276, 1280 (Miss.1992); Barnes v. Bd. of Supervisors, DeSoto County, 553 So.2d 508, 510 (Miss.1989).

¶23. We find that this issue is fairly debatable. Thus, the decision of HCDC and the Board will be upheld.

V. WHETHER THE CONCLUSION THAT IMPACTS FROM SILICA DUST WERE INSIGNIFICANT IS SUPPORTED BY THE RECORD.

¶ 24. CARD argues that the report submitted by Dr. Waggoner, who was hired by HCDC to investigate concerns alleged by CARD regarding silica dust, was inadequate since Dr. Waggoner “performed no measurements of actual emissions at the site.” However, Dr. Waggoner did visit the site and stated that “activities conducted at [Yelvington] would be highly unlikely to represent a significant health risk to the surrounding community. “In general, individuals at risk of silicosis are expected to be exposed to high concentrations of particles in a confined space or to be within a few feet of the source of generation.” Further, Dr. Waggoner stated that, in terms of health risks, he suspects that the area proximate to the Yelvington facility is more or less equivalent to walking on the beach or living near a road covered with stone aggregate.

¶ 25. CARD has presented no evidence to refute the findings of Dr. Waggoner. Therefore, we find that this argument is without merit.

VI. WHETHER THE CONCLUSION THAT THE TRANSACTION WAS VALID AND SUPPORTED BY CONSIDERATION IS ERRONEOUS ON LAW AND FACTS.

¶ 26. CARD contends that Yelvington did not have valid title or permission from HCDC to construct and operate its facility for the nine months prior to the vote on December 21, 1999. CARD argues that Yelvington’s “occupation” of the land without permission from HCDC and without compensation to the County resulted in the County making a “donation to a private industry.” CARD further claims that there is a prohibition against the county conveying land for an amount less than fair market value.

¶ 27. The record reveals that nine months prior to the actual sale of the land Yelvington was granted a right of entry and approval from HCDC to enter and begin clearing the land in order to prepare it for construction of the facility. Yelving-ton entered the land pursuant to the right of entry, cleared the land and began construction of the facility prior to the actual sale of the property. Yelvington acted at its own peril in this regard and would have been required to absorb the loss of the amount expended to build its plant had the land sale not been approved. However, the land sale was approved, and the County received $283,117.50 for the property, which was acknowledged and received as adequate in the resolutions and orders of HCDC.

¶ 28. At no time did CARD provide any evidence of the fair market value of the property in question being less than $283,117.50. Moreover, Miss.Code Ann. § 59-9-19 clearly anticipates that property sold by and through HCDC located in an industrial park within the jurisdiction of HCDC may be sold “in the absence of monetary rental or other consideration” provided that there are covenants and obligations of the purchaser to make expenditures or construct improvements. The original resolution of HCDC approves the sale of property for the purpose of constructing and operating an aggregate distribution facility in compliance with the terms contained in the special warranty deed. The Special Warranty Deed imposed the covenant that the property be used as an aggregate distribution facility within one year and imposed restrictions upon its use otherwise.

¶29. CARD failed to put on any evidence in the record below that the consideration was inadequate or that it was less than fair market value. The fact that Yelvington occupied the property in question prior to the consummation of the sale does not render the sale invalid.

¶ 30. For the reasons stated above, we find that this argument is without merit.

CONCLUSION

¶ 31. We find that the circuit court did not err in concluding that decision of HCDC and the Board of Supervisors was not arbitrary or capricious and was supported by adequate consideration. Therefore we affirm the judgment of the Harrison County Circuit Court.

¶ 32. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND CARLSON, JJ„ CONCUR. McRAE, P.J., AND DIAZ, J., NOT PARTICIPATING.


author: EASLEY, Justice,

text:
    Shelby Michael TOWNSEND v. Cathy Rose Woods TOWNSEND (Kinningham).
    No. 2002-CA-02087-SCT.
    Supreme Court of Mississippi.
    Nov. 13, 2003.
    Michael V. Ratliff, Hattiesburg, attorney for appellant.
    William Lawrence Peebles, Eugene Love Fair, Hattiesburg, attorneys for'ap-pellee.
    Before SMITH, P.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY OF THE CASE

¶ 1. This ease involves a conflict in the written terms of a final divorce decree and the memorandum of understanding, incorporated by reference into the final divorce decree, concerning retirement benefits. The problem arises from the fact that in the memorandum the retirement benefits were written in terms of a property interest whereas in the final divorce decree they were written in terms of an alimony payment.

¶ 2. Cathy Rose Woods Townsend (Cathy) and Shelby Michael Townsend (Michael) were married in 1971. After more than twenty-five years of marriage, Cathy filed for divorce from Michael. On April 4, 1997, a final judgment of divorce was entered in the Chancery Court of Forrest County, Mississippi, the Honorable James H.C. Thomas, Jr. presiding. Cathy was granted a divorce from Michael on the grounds of uncondoned adultery, and the chancellor dismissed Michael’s counterclaim. Two children were born during the marriage, both of which were emancipated, and accordingly no custody or child support was at issue.

¶ 3. Prior to the final judgment the chancellor entered a Memorandum Opinion on March 13,1997. This memorandum was specifically incorporated into the April 4, 1997, final judgment of divorce. The memorandum does not contain the word “alimony.” The form of the judgment was not signed by either Michael, Cathy or their respective counsel.

¶ 4. The payment of the retirement benefits to Cathy by Michael became an issue when Cathy remarried in 2002. On September 27, 2002, Michael filed a motion for modification of the final judgment of divorce. Michael based his motion for modification on the recent marriage of Cathy to Harry Thomas Kinningham, Jr. on May 27, 2002. In his motion, Michael requested that the chancery court modify their final judgment of divorce and eliminate the requirement that he pay alimony to Cathy, terminate his requirement to maintain Cathy as a beneficiary on a life insurance policy and require that Cathy return $2,000 in payments that she allegedly wrongfully received from him.

¶ 5. Chancellor Thomas was the chancellor that heard the divorce case, granted the final judgment of divorce containing the memorandum opinion, and also heard the motion for modification. On November 12, 2002, Chancellor Thomas denied the motion for modification. The chancellor ruled that the language of the memorandum was the correct finding and determination of equitable distribution of marital assets and that the language of the final divorce decree misstated the intent of the court and had “improper wording.”

¶ 6. After careful review, this Court affirms the chancellor’s ruling which denied the modification of the retirement benefits of the final divorce decree. Both Cathy and Michael raised the issue of continuing the life insurance coverage of Michael for Cathy’s benefit, the chancellor did not specifically address that issue, and we find that this issue is not properly before this Court for appellate review.

ISSUES

I. Whether the chancery court erred in denying the motion to modify the final judgment of divorce.

II. Whether the chancery court in effect amended the final judgment of divorce in violation of Rule 60 of the Mississippi Rules of Civil Procedure.

LEGAL ANALYSIS

Standard of Review

¶ 7. “This Court will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” McBride v. Jones, 803 So.2d 1168, 1169 (Miss.2002) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). When reviewing a decision of a chancellor, this Court has only a limited standard of review. McNeil v. Hester, 753 So.2d 1057, 1063 (Miss.2000). This Court reviews the chancellor’s decisions under an abuse of discretion standard. Id. This Court will not disturb the findings of a chancellor “unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Id. “The Court reviews questions of law, however, under a de novo standard.” Stacy v. Ross, 798 So.2d 1275, 1277 (Miss.2001) (citing Zeman v. Stanford, 789 So.2d 798, 802 (Miss.2001)).

The Documents

A. The memorandum

¶ 8. The first page of the Memorandum Opinion clearly stated that the “[i]ssues presented are (1) grounds for divorce and (2) equitable distribution of property.” (emphasis added). The memorandum then identified an agreed personal property settlement and next identified “[o]ther items of property” which included “United States Air Force (USAF) retirement benefits.” The memorandum stated the following:

Clear and convincing evidence at trial showed plaintiff to have participated in the marriage as a contributing partner with Defendant, helping him through college during the first two years of the marriage thus enabling him to qualify and complete a career as a pilot in the USAF. Plaintiff did everything expected of a career service wife including the birth and rearing of two children as well as participating in other career enhancing activities. She is entitled to a substantial portion of the retirement thus created by that career, which the Court sets at $1,000.00 per month of the net retirement proceeds.

The memorandum further stated:

Plaintiff shall continue to be entitled to health benefits under CHAMPUS as appropriate under existing entitlements of retired military [dependents]. Since the retire[ment] benefits end at Defendant’s death, he shall continue to maintain the life insurance currently in force described at trial as $500,000.00, with Plaintiff designated as beneficiary on one-half of the benefits and the children of the parties jointly designated as beneficiaries on one-half of the coverage.

(emphasis added).

¶ 9. The memorandum also stated the following in regard to the preparation of a judgment:

Counsel for Defendant [Michael] is directed to prepare the appropriate judgment in keeping with this opinion.

B. The final judgment of divorce

¶ 10. The April 1997 final judgment of divorce stated in pertinent part:

V.
During the course of the marriage, the parties accumulated certain real and personal property, including ... United States Air Force retirement benefits ...
VIII.
Mrs. Townsend is entitled to alimony of $1,000.00 per month payable from Mr. Townsend’s military retirement benefits.
XIII.
Attached and incorporated into this Final judgment of Divorce as Exhibit “B” is the Memorandum Opinion issued on March 13,1997.

C. The chancellor’s ruling denying the motion for modification.

¶ 11. In the order denying a modification of the final judgment of divorce, the chancellor ruled that the language of the memorandum was the correct finding and determination of equitable distribution of marital assets and that the language of the final divorce decree misstated the intent of the court and had “improper wording.” As stated previously, Chancellor Thomas presided over the divorce proceedings and Michael’s motion. The chancellor ruled as follows:

The Final Judgment of Divorce, inter alia, granted Plaintiff alimony of $1,000.00 per month from Defendant’s military retirement. Plaintiff remarried on May 27, 2002. The Final Judgment of divorce followed a trial of the matter and a Memorandum Opinion issued by the Court in which it was the finding of the Court that Plaintiff “... is entitled to a substantial portion of the retirement ... which the Court sets as $1,000.00 per month of the net retirement proceeds,” after finding Plaintiff contributed to Defendant’s 20 year career as a pilot in the United States Air Force during a 25 year marriage.
Plaintiff contends the reference to alimony in the judgment is in error, and Defendant’s position is that alimony terminates upon the spouse’s remarriage and that the six month period provided under Rule 60(b)(6) of the MRCP to correct an error in a judgment has long since expired.
The Final Judgment of Divorce rendered on April 4, 1997 clearly incorporates the Memorandum Opinion of the Court issued on March 13, 1997 as a part of the Judgment. The Memorandum Opinion is the correct finding and determination of equitable distribution of marital assets between the parties and the Final Judgment of Divorce as prepared by counsel at the request of the Court misstates the intent of the Court. The Court must now accept responsibility for the improper wording being placed in the judgment in characterizing the nature of the $1,000.00 monthly award as alimony, rather that the intended property distribution, but by incorporating the Memorandum Opinion in the Final Judgment [o]f Divorce, the intended finding must prevail in reading the two documents together. The Motion for modification is denied.

(emphasis added).

I. Whether the chancery court erred in denying the motion to modify the final judgment of divorce.

II. Whether the chancery court in effect amended the final judgment of divorce in violation of Rule 60 of the Mississippi Rules of Civil Procedure.

¶ 12. Michael argues that the $1000 monthly retirement payment is periodic alimony which terminated upon the date of Cathy’s remarriage. He asserts that the judgment labeled the payment of the retirement as “alimony” whereas the memorandum did not label the payment of the retirement as either alimony or as an equitable distribution of marital assets. He further argues that Cathy did not follow through with an appeal of the final judgment of divorce and therefore chose to forego any objection to the language contained in the judgment. In addition, he claims that:

If the chancellor had found the language of the Final Judgment inconsistent with the Memorandum Opinion, he should have instructed the drafting attorney to re-draft the Judgment. He did not do so. The Judgment as written must stand.

¶ 13. Despite these factual assertions, the heart of Michael’s argument centers on Mississippi Rule of Civil Procedure 60(b).

¶ 14. Mississippi Rule of Civil Procedure 60 states in part:

(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders up until the time the record is transmitted by the clerk of the trial court to the appellate court and the action remains pending therein. Thereafter, such mistakes may be so corrected only with leave of the appellate court.
(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6)any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation.

¶ 15. Rule 60(b)(l-3) provides a limited time frame of six months after a judgment, order or a proceeding was either entered or taken to bring a motion seeking relief. Michael maintains that Cathy waited over five years from the date of the final judgment and over four and one half years after the six-month time period pursuant to Rule 60(b)(l-3) to request a modification of the final judgment. The only other option available to Cathy, according to Michael, is a claim pursuant to Rule 60(b)(6). However, Michael asserts that even pursuant to Rule 60(b)(6) Cathy would still fail because she cannot establish any exceptional circumstances. Michael relies upon Mitchell v. Nelson, 830 So.2d 635 (Miss.2002), for authority.

¶ 16. In Mitchell homeowners sued the previous sellers and sellers argued that the claim fell under Rule 60(b)(3) newly discovered evidence not the Rule 60(b)(6) catch all exception. Mitchell, 830 So.2d at 638. This Court held that a claim of newly discovered information more than one year after the final judgment did not meet the exceptional circumstances requirement of Rule 60(b)(6) where the homeowners failed to exercise due diligence in locating a former homeowner. Mitchell, 830 So.2d at 639. This Court in Mitchell held:

A Rule 60(b)(6) motion should only be granted in exceptional circumstances. Moore v. Jacobs, 752 So.2d 1013, 1017 (Miss.1999). This action does not meet the exceptional circumstance requirement of the rule. This provision of the rule is a catch all provision to allow relief when equity demands. Use of Rule 60(b)(6) must be based on some reason other than the first five enumerated clauses of the rule. See Briney v. United States Fid. & Guar. Co., 714 So.2d 962, 966 (Miss.1998).

Mitchell, 830 So.2d at 639.

¶ 17. Cathy argues that the chancellor is the best judge of the meaning of his own words and that he simply corrected a “clerical mistake” which was made by Michael’s attorney when drafting the final divorce decree. According to Cathy, she received a property interest in 1997 “because she earned it and acquired it jointly with Michael during the 25 years of their marriage.” She also argues that the chancellor stated in the memorandum that this property right was payable in a measurable amount and terminated upon Michael’s death at which time the payment would be replaced by life insurance benefits. She also asserts that the correction is permitted pursuant to M.R.C.P. 60(a) and Miss. Code Ann. § 93-5-23 (Supp.2003).

¶ 18. Indeed the comment to Rule 60(a) states in part:

Rule 60(a) prescribes an efficient method for correcting clerical errors appearing in judgments, orders, or other parts of a trial record; errors of a more substantial nature must be corrected in accordance with MRCP 59(e) or 60(b). Thus, the Rule 60(a) procedure can be utilized only to make the judgment or other document speak the truth; it cannot be used to make it say something other than was originally pronounced. See, e. g., West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702 (5th Cir.1954). This procedure accords with prior Mississippi practice. See Miss.Code Ann. § 11-1-19 (1972); Ralph v. Prester, 28 Miss. 744 (1855) (this statute applies solely to the correction of judgments and decrees and cannot be extended so as to supply a judgment never rendered).

M.R.C.P. 60 cmt. The comment also states:

Healy v. Just, 53 Miss. 547 (1876) (there is no time limit within which a correction to a judgment may be made); Wilson v. Town of Hansboro, 99 Miss. 252, 54 So. 845 (1911) (all courts have inherent power to correct clerical errors at any time and to make the judgment entered correspond to that rendered).

M.R.C.P. 60 cmt. (emphasis added).

¶ 19. Likewise in Whitney Nat. Bank of New Orleans v. Smith, 613 So.2d 312, 315 (Miss.1993), this Court held: “The comment to Rule 60(a) makes clear what should be obvious to all: the power granted in the rule cannot be utilized to change the effect of a judgment, where the changed effect is not manifest from the record that the change reflects the original intent.” Cathy argues that in addition to case law and Rule 60(a) giving Mississippi court’s the general power to correct clerical or ministerial errors in divorce cases there is another provision for corrections. She cites to Dilling v. Dilling, 734 So.2d 327 (Miss.Ct.App.1999) for authority.

¶ 20. In Dilling there was a conflict with the wording of a property agreement. The monthly mortgage payment indicated that the wife would pay the mortgage yet upon sale of the house the husband would receive a 65% of the equity interest and the wife would receive 35% of the proceeds. Id. at 330. The attorney for the wife testified that the language was unclear concerning the provision for the payment of the monthly mortgage and the word “husband” was left out of the document. Id. at 331. Both the attorney and the wife testified that the husband initially refused to sign the agreement to pay the monthly mortgage payments until the terms were modified to give him 65% equity upon the house sale. Id. at 332. The husband denied these assertions and stated that he only agreed to pay the mortgage until the final divorce and did not know why he received 65% equity in the house. Id. at 332. The wife testified that her only source of income was a minimum wage job and child support payments and that her expenses exceeded her monthly income. Id. at 333. The chancellor found that there had been a mistake in the agreement and the husband should pay the house note. Id. at 333.

¶ 21. The Court of Appeals stated:

In East v. East, 493 So.2d 927, 931-32 (Miss.1986), the Mississippi Supreme Court advised:
We have also historically recognized that parties may upon dissolution of their marriage have a property settlement incorporated in the divorce decree, and such property settlement is not subject to modification. A true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character,
(emphasis added) (citation omitted). The supreme court then noted that Section 93-5-2 of the Mississippi Code “require[d] that the parties make a settlement of their property rights, and the agreement may be incorporated in the decree.”
A contract may be reformed. In Johnson v. Consolidated American Life Ins. Co., 244 So.2d 400, 402 (Miss.1971), the Mississippi Supreme Court explained:
“The general rule in this state and elsewhere is that reformation of a contract is justified only (1) if the mistake is a mutual one, or (2) where there is a mistake on the part of one party and fraud or inequitable conduct on the part of the other. Allison v. Allison, 203 Miss. 15, 33 So.2d 289 (1948).”
However, “The mistake that will justify a reformation must be in the drafting of the instrument, not in the making of the contract.” Johnson, 244 So.2d at 402. A scrivener’s error may be sufficient to warrant the reformation of an instrument. See Sunnybrook Children’s Home, Inc. v. Dahlem, 265 So.2d 921, 925 (Miss.1972) (holding that the evidence showed that grantor intended to convey land located in Range 7 East and that the omission of the range number was a scrivener’s error which justified reformation of the description of the land attempted to be conveyed in the grantor’s deed). Because the Dillings’ property settlement agreement was “no different from any other contract,” it too could be reformed if there was a “mistake ... in the drafting of the instrument.”

Dilling, 734 So.2d at 335-36.

¶ 22. Ultimately, the Court of Appeals determined that there was substantial evidence to support the chancellor’s findings and that he did not err in reforming the agreement. Id. at 336. The court held the following:

The financial data about which Ms. Dill-ing testified, if correct, demonstrated the impossibility of her paying the monthly mortgage payment, insurance premiums, and taxes on the marital home.
This Court concludes that there was substantial evidence to support the chancellor’s finding that paragraph 2 contained a mistake and that, therefore, he did not err when he reformed the Dillings’ agreement to require Mr. Dill-ing to pay the specified expenses related to the Dillings’ marital home. While he did not specifically find that the mistake was mutual, this Court further concludes that even if the mistake was only that of Ms. Dilling, which she made through her attorney’s error of omission in drafting the Dillings’ agreement, Mr. Dillings’ conduct was sufficiently inequitable to warrant the reformation of their contract. We find his conduct to be inequitable because of his willingness to accept 65% of the marital home’s equity without being able to explain why Ms. Dill-ing would agree to his receiving that much without his paying the payments we described.

Id. The Court of Appeals went further and determined whether Rule 60 gave the chancellor the authority to reform the property agreement. The Court of Appeals stated:

Whether Mr. Dilling’s argument has merit, Rule 60 is not the sole authority for a chancery court’s amendment, modification, or revision of a judgment of divorce. We earlier noted that Section 93-5-2(2) provides that a judgment which incorporates a property settlement agreement “may be modified as other judgments for divorce.” Section 93-5-23 of the Mississippi Code further provides:
When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders ... touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed.... The court may after-wards, on petition, change the decree, and make from time to time such new decrees as the case may require.
Miss.Code Anno. § 93-5-23 (Rev.1994) (emphasis added).
Rule 81 of the Mississippi Rules of Civil Procedure provides that the Mississippi Rules of Civil Procedure “are subject to limited application in ... actions which are generally governed by statutory procedures.” Specifically, the Mississippi Supreme Court has recognized that Title 93 of the Mississippi Code often requires the Mississippi Rules of Civil Procedure to yield to statutory procedures. See Rawson v. Buta, 609 So.2d 426, 430 (Miss.1992) (holding that “Mississippi divorce actions are governed by the divorce and alimony provisions of section 93, chapter 5 of the Mississippi Code” and that “the procedural provisions of this chapter limit the applicability of the Mississippi Rules of Civil Procedure, which govern only where the divorce statute stands silent”).
Regardless of whether Rule 60 was sufficient authority to support the chancellor’s modification of the judgment of divorce which necessarily followed from his reformation of the Dillings’s property settlement agreement, this Court holds that either Section 93-5-2(2) or Section 93-5-23 empowered the chancellor to modify the judgment of divorce by his entry of the supplemental judgment rendered December 9, 1996. Because this Court earlier found substantial evidence to support the chancellor’s reformation of the property settlement agreement, this Court affirms the supplemental judgment entered on December 9, 1996, which both reformed the Dillings’ property settlement agreement and modified the original judgment of divorce to include the reformed property settlement agreement.

Dilling, 734 So.2d at 337.

¶ 23. Cathy also relies in part upon Palmere v. Curtis, 789 So.2d 126 (Miss.Ct.App.2001). In Palmere a divorcing couple reached a settlement of child support terms. Id. at 128. The terms were dictated into the court record. Id. Palmere’s attorney refused to sign the judgment that Curtis’s attorney prepared arguing that it was not in conformity with the terms dictated into the record. Id. Despite this, the chancellor issued the judgment without Palmere’s signature. Id. The Court of Appeals held that a court cannot “modify, add to, or subtract from the terms of a contract already in existence.” Id. at 132 (citing Ivison v. Ivison, 762 So.2d 329, 335 (Miss.2000)). The Court of Appeals held that the chancellor “had no authority to issue a consent agreement which contained a term to which one party did not consent.” Id. at 132.

¶24. Likewise, Cathy argues that the chancellor correctly ruled that the word “alimony” could not be added to or modify its earlier ruling outlined in the memorandum opinion. She also argues that Michael bases his argument on procedure and the time constraints in Rule 60(b) but there is no argument that the memorandum opinion of the chancellor was not a clear reflection of its intention. She contends that the meaning of Rule 60(a) is designed to clarify what a court originally meant whereas Rule 60(b) is designed for a change in relief from a judgment whose meaning is clear but incorrect for a number of substantive reasons which are not clerical.

¶ 25. In the alternative, Cathy contends that if the word “alimony” is not viewed as a clerical or scrivener’s error pursuant to Rule 60(a) or Miss.Code Ann. § 93-5-23, then Rule 60(b)(6), which has no time limit, is applicable to the case. She maintains that the inclusion of the word “alimony” which was not intended by the chancellor falls within the “exceptional” circumstances. Cathy makes an additional argument under Rule 60(b)(4) void judgments that case law has generally dealt with the total void of a judgment for process or notice defects, however, she argues that in her case the wording “alimony of’ in the final judgment should be void because the meaning was changed from the memorandum and inconsistent with the due process of law.

¶ 26. This Court finds that the memorandum clearly gave Cathy a property interest in the retirement benefits. The first page of the memorandum indicates that the two issues before the chancellor were solely “(1) grounds for divorce and (2) equitable distribution of property.” The USAF benefits were listed as “other items of property” as opposed to the items listed in the agreed personal property settlement. The chancellor found by clear and convincing evidence that Cathy participated and was a contributing partner in the marriage, including helping Michael through college, raising two children and “other career enhancing activities.” Therefore, the chancellor stated in the memorandum that Cathy was entitled to a substantial portion of the retirement, that being $1000 month, created by the career. In addition, the chancellor required that Michael maintain a life insurance policy since his retirement benefits would terminate in the event of his death, with Cathy receiving fifty percent and the children fifty percent of the proceeds.

¶ 27. The same chancellor who had the memorandum written and granted the final divorce decree also heard Michael’s motion for modification. In his ruling the chancellor found that the language of the final divorce decree misstated the intent of the court and had “improper wording.” The chancellor stated that the language in the memorandum opinion was “the correct finding and determination of equitable distribution of marital assets between the parties ...” and that the language in the divorce decree improperly characterized “the nature of the $1,000.00 monthly award as alimony, rather than the intended property distribution ...” We find that the memorandum and the chancellor’s own finding on the motion for modification clearly shows that the $1,000 monthly retirement payment was intended to be a property distribution and not an alimony payment. Accordingly, this Court finds that Michael’s assertion that the alleged alimony payment ceased upon Cathy’s remarriage is without merit.

¶ 28. Rule 60(a) cannot be used to change the effect of a court’s judgment. Whitney, 613 So.2d at 315. A court also cannot subtract, add to or modify the terms of a contract that already is in existence. Palmere, 789 So.2d at 132. However, Rule 60(a) places no time limit on the correction of clerical errors. In Dilling, the Court of Appeals held that a scrivener’s error may be enough to reform an instrument. Dilling, 734 So.2d at 335-36. However the mistake must be in drafting and not in the making of the contract. Dilling, 734 So.2d at 335-36 (citing Johnson v. Consolidated American Life Ins. Co., 244 So.2d 400, 402 (Miss.1971)). Indeed, the Court of Appeals found that the even if the mistake was only on the part of Ms. Dilling and her attorney’s error in drafting the agreement, Mr. Dilling’s conduct still warranted a reformation because of an inequity. Dilling, 734 So.2d at 337.

¶ 29. This Court finds that the chancellor’s opinion was based on substantial evidence. He reviewed the final divorce decree and the incorporated memorandum, presided over all the matters involving this case and determined that the intent of the chancery court was to award Cathy a property settlement in terms of the $1,000 monthly retirement benefits, not an alimony payment as incorrectly stated in the final judgment. The chancellor did not abuse his discretion by finding that the earlier and incorporated memorandum was the original intent of the chancery court, not the wording of the later divorce decree, in awarding Cathy a property interest in the retirement benefits. Furthermore, the chancellor’s correction of the scrivener’s error did not violate M.R.C.P. 60. Accordingly, we find that the denial of Michael’s motion for modification was correct.

CONCLUSION

¶ 30. For the foregoing reasons, this Court affirms the denial of the motion for modification of the Forrest County Chancery Court final divorce decree.

¶ 31. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. DIAZ, J„ NOT PARTICIPATING.