author: SOUTHWICK, P. J„

text:
    Rebecca L. JACKSON and Gary Jackson, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 2001-CA-01683-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2003.
    Rehearing Denied April 22, 2003.

      Lampton 0. Williams, Poplarville, attorney for appellant.
    Billy W. Hood, Jeffrey G. Pierce, Gulf-port, attorneys for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   SOUTHWICK, P. J„

for the court.

¶ 1. The plaintiff was injured in an automobile accident. It was not until five years after the event and two years after bringing suit against the other driver that the plaintiff gave notice to her own insurance company of a claim for under-insured motorist coverage. The circuit court granted summary judgment in favor of the insurance company, finding a statute of limitations bar and that the policy’s requirement of timely notice had been violated. Though the circuit court considered the proper issues, we find disputes of material fact remaining. Consequently, we reverse and remand.

FACTS

¶2. On February 10, 1995, Rebecca L. Jackson was involved in a minor traffic accident with John Bordelon. Bordelon struck the rear of Jackson’s car while she was stationary at a stop sign. Bordelon, then eighteen years old, was driving a vehicle for which his mother was the named insured. Jackson’s vehicle was insured with State Farm in her husband’s name, Gary Jackson.

¶ 3. The Jackson car sustained very little damage, less than $200 to repair according to a professional estimate. However, three years prior to February 1995, Mrs. Jackson had been involved in another auto accident in which she sustained shoulder and arm injuries. There was evidence that these injuries had essentially resolved themselves but were aggravated by the accident with Bordelon. Jackson sought emergency care on the day of Bordelon’s collision with her. She was diagnosed with a neck injury and referred to a private physician, Dr. Kerry Bernardo.

¶4. Dr. Bernardo diagnosed Jackson with a cervical strain or sprain. Over the course of the next three years, she sought treatment on several occasions from Dr. Bernardo for ongoing pain, including several courses of physical therapy. Rebecca and Gary Jackson filed suit against Borde-lon and his mother on February 3, 1998, seeking compensation for the chronic injury to her neck and back. The complaint stated that the amount in controversy was more than $2,500, which meant that it exceeded the jurisdictional limit for justice court, but the pleading did not seek a specific amount of damages. Miss.Code Ann. § 9-11-9 (Rev.2002).

¶ 5. In November 1998, Dr. Bernardo expressed the written opinion that Mrs. Jackson had suffered an L4-L5 central disc herniation. Prior to this, she asserts that she understood her condition to be only a chronic strain or sprain.

¶ 6. In January 2000, the Jacksons for the first time notified their own insurer, State Farm, of the 1995 accident, of Mrs. Jackson’s injuries, and of their intent to seek uninsured motorist benefits under their policy. State Farm took a sworn statement from Mrs. Jackson, in which she stated that the accident had not earlier been reported to State Farm because she was unaware of the serious and permanent nature of her injuries until November 1999. Once discovering the extent of her injuries, she alleges that she became aware that the limits on Bordelon’s policy would be insufficient. This is what gave rise to her claim. State Farm denied the claim.

¶ 7. Following the denial, the Jacksons amended their circuit court complaint to include State Farm as a defendant. The claim was for breach of contract in refusing to pay the underinsured motorist benefits under the policy. The court granted summary judgment to State Farm and dismissed the claim with prejudice. The Jacksons appeal.

DISCUSSION

¶ 8. The suit was dismissed below because of multiple forms of delay by the plaintiffs. According to the circuit judge, the plaintiffs had failed to notify State Farm of the accident within a reasonable time. They then failed to notify State Farm of the litigation. Finally, the court found that the applicable statute of limitation for the claim had expired prior to the Jacksons’ amending their complaint to join State Farm as a defendant.

¶ 9. These bases for judgment appear related, but the Jacksons’ legal obligations for timely notice as opposed to timely litigation are controlled by different rules and precedents.

1. Timeliness of notice

¶ 10. State Farm contends that the Jacksons failed to give timely notice of the 1995 accident. Factually, it is agreed that notice was not given to the Jacksons’ own insurer, State Farm, until almost five years after the accident. The State Farm policy provides that the insured must give written notice of an accident or a loss “as soon as reasonably possible.” Case precedent has enforced such an obligation but with qualifications that we will review.

¶ 11. The circuit court found as a matter of law that the Jacksons had not provided notice “as soon as reasonably possible.” Without doubt, notice clauses confer valuable rights upon the insurer in its decision-making as to settlement or defense of a claim. Among the interests protected by a notice provision is the right of the insurer to investigate the events underlying the claim as soon after the occurrence as possible. 8 AjPPLEMAN, INSURANCE LAW & PRAC. § 4731 (Rev.2002).

¶ 12. In addition, notice protects the right of a company providing coverage for uninsured or underinsured motorists to seek reimbursement from the tortfeasor. To enforce that right, the insurer is entitled to be subrogated to the rights of its injured insured. Miss.Code Ann. § 83-11-107 (Supp.2002). The subrogation rights by definition are derivative. Twin States Ins. Co. v. Bush, 183 So.2d 891, 893 (Miss.1966). Therefore, the subrogation claim is “bound by the same statute of limitations, and in the same manner, as a claim by the plaintiff’ against the tortfeasor would be. Coleman v. American Mfrs. Mut. Ins. Co., 930 F.Supp. 255, 261-262 (N.D.Miss.1996). That would primarily appear to be a consideration when the injured party has not brought timely suit against the tortfeasor, but the Jacksons here did not create that problem for their own insurer. Since State Farm would be seeking reimbursement for a judgment entered against the tortfeasor in the Jacksons’ suit and assuming the rights of their insured to enforcement, there is not an obvious limitation issue applicable to State Farm’s rights because of delay from the date of the accident itself.

¶ 13. We look at two sources for analyzing the timeliness of the notice. The policy issued by State Farm requires notice from the insured “as soon as reasonably possible” from the time of the accident or “loss.” The “insured” in the present suit was not the injured party, Mrs. Jackson, but her husband. Mrs. Jackson’s obligations arose under a different provision of the policy if she sought underinsured motorist coverage:

(1) “let us see the insured car the person occupied in the accident and any property damage,” and
(2) “send us at once a copy of all suit papers if the person sues the party hable for the accident for damages.”

¶ 14. Neither of these obligations was fulfilled. State Farm points to other reporting and procedural provisions in the policy, we but find no others significant to our decision.

¶ 15. Another source for an obligation to notify State Farm may arise from statute. The uninsured motorist statutes require that if the “named insured as defined in said policy” brings suit against an uninsured motorist, the insurance company should at the same time be served with the process for the suit. Miss.Code Ann. § 83-11-105 (Rev.1999). The Supreme Court has taken its usual approach in interpreting insurance issues and determined that such language should be read strictly in favor of the insured: if it is not the “named insured” who is making the claim, the statute does not apply. Rampy v. State Farm Mut. Auto. Ins. Co., 278 So.2d 428, 438 (Miss.1973). The desirability and purpose of notice would be the same regardless of the party making the claim, but the Court gave the statute a literal reading. The legislature has never voided this interpretation by amending the statute. Obviously, Rampy is controlling. In the present case, the named insured and his wife both brought suit, and neither gave notice to State Farm.

¶ 16. Though the Jacksons failed to comply with the notice provisions under their policy, and Mr. Jackson failed to give the notice required once he joined in a suit, these omissions are not outcome determinative. The Supreme Court has held that where an insurance policy requires notice as a condition precedent to coverage, coverage may still be allowed unless the insurer suffered prejudice due to delay; that prejudice is a question of fact. Harris v. American Motorist Ins. Co., 240 Miss. 262, 126 So.2d 870, 873 (1961). A more recent precedent reached the same conclusion. “Because the questions of timely notice and prejudice were questions of fact for the jury to decide, the circuit judge erred in granting GEICO’s motion for summary judgment.” Lawler v. GEICO, 569 So.2d 1151, 1153 (Miss.1990).

¶ 17. State Farm argues that the existence of prejudice was clear from the undisputed facts and that therefore summary judgment was permissible on this issue. We need not determine whether prejudice is such a subjective standard as never to be the subject of summary judgment even when significant harm to an insurer is undisputed. It is enough to say this is not such a case.

¶ 18. We therefore conclude that insofar as the circuit judge granted summary judgment on the basis of the late notice, either under the policy or the uninsured motorist statutes, he erred. The question of prejudice remains a fact issue for consideration on remand.

2. Statute of limitations

f 19. The Jacksons’ claim against the driver of the other vehicle is one in tort and arose at the time of the accident. The Jacksons’ cause of action against State Farm is not in tort but in contract. Its date of accrual is disputed. What is agreed is that the general three year statute of limitations applies. Miss.Code Ann. § 15-1-49 (Rev.1995). The Jacksons argue that there is no cause of action until there is an alleged breach of contract, which did not occur until their claim for coverage of their claim was denied. State Farm would begin the cause of action with the accident itself.

¶ 20. The parties cite numerous precedents to guide us in our analysis. The precedent most helpful to the Jacksons holds that when there was litigation brought by the insured to determine whether the tortfeasor had insurance coverage, there was no accrual of the cause of action against the uninsured motorist carrier until a final decision on appeal that found that the tortfeasor had no coverage. Vaughn v. State Farm Mut. Auto. Ins. Co., 445 So.2d 224, 226 (Miss.1984). That is distinguishable, as State Farm readily does, because there was no question in the present case that the tortfeasor was insured, that the policy limit was in the $20,000-$25,000 range, and that if a claim for more than that was to be compensated through insurance, State Farm’s policy was needed. The Jacksons respond that the serious nature of Mrs. Jackson’s injuries was unknown until shortly before a claim was made against State Farm.

¶ 21. The most helpful decision for State Farm was handed down seven years after Vaughn. It could be seen as holding that the statute of limitation on a claim for uninsured motorist coverage arises on the date of the injury. Lawler, 569 So.2d at 1153. The issue in that case was whether the statute of limitation had run against a minor. The Court found that the injured child had the time in which to bring suit tolled during her minority. Once she became twenty-one years of age, the limitation period under the general six-year statute for contracts (now amended to three years) immediately began to run; the Court found that she had timely brought suit. Id. The statement of facts indicates that the claimant was injured by a motorist who had no insurance in 1979, that she became age twenty-one in 1982, and that she gave notice to her own insurance company of her claim in 1986. Id. at 1152. There was no discussion in the case of the Vaughn issue, namely, of when it became obvious that the uninsured motorist was in fact uninsured.

¶22. Despite the Lawler court’s failure to discuss Vaughn or to state that the fact that the tortfeasor had no insurance was beyond dispute prior to the plaintiffs twenty-first birthday, we find neither omission especially noteworthy. We interpret the two decisions as being consistent. At least when there is reasonable uncertainty about whether the other party to an accident has adequate insurance, there is under this caselaw no accrual of a cause of action under a person’s uninsured motorist policy.

¶ 23. We note that Lawler did not require that the absence of coverage be determined in litigation before a cause of action for uninsured coverage commences. To that extent, Lawler applies the clarification that what is necessary for the accrual of a cause of action is some level of assurance that there is not going to be insurance from the tortfeasor. A court judgment is not always needed.

¶ 24. A final point would be useful in our determinations. For statute of limitations purposes, a cause of action “accrues” once it exists as a legally enforceable claim, that is, when the right to sue has become vested in the plaintiff. Burgess v. Lucky, 674 So.2d 506, 509 (Miss.1996).

¶ 25. We synthesize these precedents and apply them to our facts as follows. Once someone who possesses uninsured motorist coverage knows, or reasonably should know, that the damages he or she claims to have suffered exceed the limits of insurance available to the alleged tortfeasor, the cause of action against the uninsured motorist carrier has accrued. It is at this point in time the potential plaintiff has a legally enforceable claim against the uninsured motorist carrier. This conclusion is based on Lawler’s clarification of Vaughn, which we apply by analogy to the situation that we face of insufficient primary insurance.

¶ 26. By statute and by insurance policy terms, notice of the claim must first be given the insurance company. Miss.Code Ann. § 83-9-5(e) (Rev.1999). No suit may be brought sooner than sixty days after written proof of loss has been given nor later than three years after the proof of loss. Miss.Code Ann. § 83-9-5(k)(Rev.2002). Therefore, if the Jacksons became, or should have become, aware of the shortfall in coverage under the tortfea-sor’s own policy more than three years before they joined State Farm in this litigation, their suit against State Farm fails. We do not have sufficient evidence on this summary judgment to state that the issue is beyond factual dispute.

¶27. One of the Jacksons’ arguments on this point is that no cause of action accrues until there is an actual denial of a claim by State Farm. That creates the argument for a breach of contract, which then permits suit. The difficulty with finding that no cause of action accrues until there is a denial of the claim, is to leave in the hands of the claimant an unlimited period of time to wait, intentionally or inadvertently, before making a claim. Only thereafter would the statute of limitations commence. We do not accede to that one-sided interpretation. Instead, the limitations period is judged by the considerations that we have set out above.

¶ 28. It is a deceptively simple matter for an insured to include early notice to his or her own insurance company when bringing a claim against a tortfeasor. We humans, though, rarely think of everything and instead focus on what is necessary based on a set of assumptions. When knowledge changes those assumptions, sometimes only then are other notices given. As this Court interprets the easelaw and statutes, there is some protection for that shortsightedness. The law may encourage but it does not require what may prove to be unnecessary, i.e., giving notice to the party’s own insurance company because the tortfeasor’s policy has been found absent or inadequate.

¶ 29. Still, waiting until the last possible moment under the statute of limitations to notify an insurer such as State Farm is not in either the insured or the insurer’s best interests. To state that the cause of action does not accrue until the time we have identified, does not in any manner delay the contractual or even the statutory obligation of notice. As we have pointed out, the concept of prejudice will determine whether a breach of the notice obligation will cause coverage to be lost. That prejudice may prevent coverage even if the statute of limitations does not.

¶ 30. We also point out that if the need for additional coverage remains uncertain and for that reason the uninsured motorist carrier is not notified, any determination on the amount of damages is not binding on the absent insurance company and must be relitigated. State Farm Fire & Cas. Co. v. Wightwick, 320 So.2d 373, 375 (Miss.1975). Thus there are at least inefficiencies and even inconsistencies of leaving issues such as we now face until the end of the primary litigation instead of addressing them at the beginning. Because of the problem of prejudice, there are also considerable hazards from delay.

¶ 31. Since we find disputed facts both on the issues of prejudice under the notice provisions and on the issue of when the knowledge of the shortfall in the tortfea-sor’s insurance became reasonably apparent, we reverse and remand.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY DISMISSING THE SUIT AND GRANTING SUMMARY JUDGMENT TO THE APPELLEE IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS ARE ASSESSED TO THE AP-PELLEE.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . "Underinsured” refers to a shortfall in the tortfeasor's policy limits when compared to the damages, while "uninsured” would mean the absence of any other policy. We primarily use the word "uninsured” and its variations here, but thereby are referring to both concepts.


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    William L BUCKLEY, Sr., Appellant, v. PERSONNEL SUPPORT SYSTEMS, INC., ADP, Inc. and Schwab Corporation, Appellees.
    No. 2001-CA-01934-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2003.
    Rehearing Denied April 8, 2003.
    Certiorari Denied Sept. 4, 2003.
    James M. Brown, Laurel, attorney for appellant.
    Sidney Ray Hill, Harold Waits Melvin, Patricia Francine Melvin, David M. Rat-cliff, Laurel, attorneys for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. At issue in this case is the authority of the Circuit Court of Jones County to adjudicate the competing rights of various parties to a garnishment proceeding begun when the clerk of that court issued a writ of garnishment on a judgment ostensibly rendered in the United States District Court for the Southern District of Mississippi. The circuit court ultimately dismissed the garnishment proceeding on two alternative grounds, both of which the court found sufficient, standing alone, to support its decision. These alternative reasons dealt with matters of personal jurisdiction over the garnishee and subject matter jurisdiction and we treat the order of dismissal that is the basis of this appeal as being a dismissal for lack of jurisdiction. While we agree with the circuit court that the case must be decided on matters relating to its jurisdiction, we conclude that the pivotal question of jurisdiction is more fundamental than those offered by the circuit court in support of its ruling. Thus, we find it appropriate to affirm the circuit court’s decision to dismiss though our reasoning for doing so is different.

i.

Facts

¶ 2. This Court has had some difficulty in setting out the facts of this case since certain of the critical factual assertions upon which this case turns do not appear from the evidence but, rather, must be gleaned from a review of the pleadings and an analysis of whether certain facts asserted in the pleadings are, or are not, affirmatively contested by the opposing party. Our statement of the facts is, therefore, more properly seen as a collection of unchallenged assertions.

¶ 3. This case had its beginnings as a personal injury suit brought in the United States District Court for the Southern District of Mississippi by William L. Buckley, Sr., the appellant in this proceeding. In the federal court proceeding, Buckley obtained a judgment against a certain Cliff L. Nuckols in the amount of $1,358,397.84. The judgment remained unsatisfied on November 6, 1995, when Buckley filed a suggestion for garnishment in the Circuit Court of Jones County reciting the fact of his federal court judgment and suggesting that a corporation doing business under the name of Personnel Support Systems, Inc. (hereafter “Personnel”) was indebted to the judgment debtor Nuckols. Buckley requested that a writ of garnishment issue returnable to the Jones County Circuit Court commanding Personnel to answer and make the appropriate disclosures required under Mississippi’s garnishment statutes.

¶ 4. It is apparently conceded by Buckley that, at the time the writ of garnishment was issued, no effort had been made to enroll the federal court judgment on the Jones County judgment roll. Neither does it appear from the record as to why the Jones County Circuit Clerk was selected by Buckley to issue the writ of garnishment. No allegation appears anywhere in the record before us that Buckley resides in that county or that Personnel has any property in that county or has ever done business there. No allegation is made as to the state of domicile of Personnel. Additionally, insofar as the record now before us reveals, no effort has been made by Buckley to belatedly enroll this judgment (although, for reasons that will appear elsewhere in this opinion, we do not conclude that a supplementation of the record to show that such untimely action may have been taken would alter the result we reach in this case).

¶ 5. Buckley somehow prevailed upon the Jones County Circuit Clerk to issue the writ of garnishment and sought the assistance of a process server, Mitchell Blakeney, to serve the writ by certified mail, return receipt requested, sent to “Personnel Support Systems, Inc., 810 Matson Place, Suite 1006, Cincinnati, Ohio 45204-1446.” According to a certified mail receipt filed in this cause on October 20, 1995, that mailing was received by an individual identified only as “W. McDonald.” There is no indication in the record as to who that individual was or what relationship, if any, he may have had to Personnel. On November 5, 1995, Blakeney, as process server, executed a return verifying that he had caused the documents to be mailed to Personnel and that the green receipt card was “signed by Defendant.” Blakeney’s return contains no allegation that he was personally acquainted with W. McDonald or knew, of his own knowledge, that McDonald was a representative of Personnel authorized to accept service on its behalf. Nevertheless, on the strength of Blakeney’s return and Personnel’s subsequent failure to answer the writ, the Circuit Court of Jones County entered a judgment against Personnel in the amount of $1,362,644.28.

¶ 6. After Buckley commenced subsequent proceedings in Jones County Circuit Court in an attempt to satisfy his newly-obtained judgment against Personnel, that corporation belatedly filed a motion to set aside the judgment rendered against it. Personnel attacked the validity of the judgment on numerous grounds, including the insufficiency of the service of process and Mississippi’s lack of in personam jurisdiction over the corporation. The circuit court ultimately granted Personnel’s motion and dismissed the garnishment proceeding with prejudice. The circuit court concluded that there were at least two legally sufficient grounds to so rule.

¶ 7. First, the court found that there was no evidence demonstrating that “W. McDonald” was a representative of Personnel authorized to receive service in its behalf under Mississippi Rule of Civil Procedure 4(d)(4). Secondly, the court found that Buckley’s failure to have the judgment enrolled on the Jones County judgment roll prior to seeking the issuance of the writ rendered the subsequent judgment based on the unanswered writ of garnishment void as a matter of law. The court finally offered the view that, in all likelihood, the assertion of lack of in personam jurisdiction over Personnel was an additional valid basis to set the judgment aside, but found it unnecessary to reach a definite answer on that issue for the reason that the two earlier grounds offered were sufficient grounds to support the result.

¶ 8. It is from that judgment that Buckley has perfected this appeal. Buckley’s contention is that Personnel, by various pleadings filed in this cause, had entered a general appearance that rendered moot any question concerning the legitimacy of the original service of process. As to the second ground, Buckley contends that the enrollment of the judgment on the judgment rolls of the county is a purely ministerial act, and that the failure to accomplish such an act may be cured at any time and, thus, also subject to waiver if not raised in a timely manner.

II.

Discussion

¶ 9. We conclude, on the facts of this case, that the circuit court lacked any authority to entertain this enforcement action of a judgment rendered in federal district court. The essential failing in this case appears, in our view, to arise from Buckley’s confusion of two different, though perhaps related, procedures by which a judgment may be given some effect in a particular county when the judgment was not rendered by the circuit court of that county.

¶ 10. The first procedure — the one that Buckley argues is applicable in this case— permits the holder of a judgment obtained “in any court of the United States held within this state” to cause an abstract of the judgment to be filed in the office of the circuit clerk of any county in the state. Miss.Code Ann. § 11-7-197 (1972). The circuit clerk upon the filing of the abstract, is obligated to enroll the judgment on the judgment roll of the county, after which the judgment will “be a lien upon and bind the property of the defendant within the county where it shall be so enrolled.” Miss.Code Ann. § 11-7-195 (1972) (emphasis supplied).

¶ 11. The issue then becomes what authority over the collection of such a judgment is vested in the circuit court of the county once the clerk has so enrolled the judgment. It does not seem that any such authority exists. By virtue of the recording of an abstract of a judgment, the clerk is given certain authority but the circuit court of the county itself does not play an active role in the process. Other than creating a lien on any property of the defendant in the county where the judgment is enrolled, the only other enforcement advantage given a judgment creditor is found in Section 13-8-155 of the Mississippi Code, which states that

[ t]he clerk of the circuit court in whose office any judgment or decree shall be enrolled, may issue execution and writs of garnishment thereon directed to the sheriff of his county, returnable before the court which rendered the judgment or decree.

Miss.Code Ann. § 13-3-155 (Rev.2002) (emphasis supplied). It is clear that this statute contemplates an action involving property or an indebtedness believed to be within the limits of the county in which the judgment is enrolled. In the case before us, there is no contention that the alleged indebtedness of the garnishee, Personnel, to Nuckols, the judgment debtor, arose in Jones County or that there existed any nexus whatsoever between the circumstances of the indebtedness and Jones County. More fundamentally, however, even could such a nexus be shown, it is plain that the statute, while imposing certain duties upon the Circuit Clerk of Jones County once a judgment is enrolled, does not grant to the Circuit Court of Jones County any authority in the handling of an execution or garnishment issued by the clerk under the authority of Section 13-3-155. To the contrary, the plain language of the statute requires the circuit clerk to make any writs so issued returnable to the court that rendered the judgment. Thus, for example, if (a) a judgment were obtained in Union County Circuit Court, (b) subsequently enrolled in Tippah County, and (c) the Tippah County Circuit Clerk was asked to issue a writ of garnishment against the judgment debtor’s employer in that county, the statute would require the writ to be returnable, not to the Tippah County Circuit Court, but to the Union County Circuit Court. It would, therefore, be the Union County Circuit Court that would entertain any subsequent challenges or contests relating to the enforcement of the writ. Likewise, in this case — even assuming that Buckley had properly enrolled an abstract of his judgment with the Circuit Clerk of Jones County under Section 11-7-197 or that such an undertaking could be the subject of waiver if not timely raised — the extent of that clerk’s authority on a judgment so enrolled was to issue process returnable to the United States District Court for the Southern District of Mississippi — which was the court “which rendered the judgment-” Miss.Code Ann. § 13-3-155 (Rev.2002).

¶ 12. Thus, the fundamental flaw in the procedure employed by Buckley, assuming that his failure to enroll an abstract of his judgment in advance of seeking the issuance of a writ of garnishment was a correctable procedural problem, was his attempt to make the writ returnable to a court other than the court rendering the judgment he sought to enforce.

¶ 13. By our decision that the writ in this case was returnable to the wrong court, thereby depriving the Circuit Court of Jones County of any authority to adjudicate the competing rights of the parties under the writ, we- leave unanswered the question of what authority the circuit clerk in such circumstance has to issue writs or executions against property or rights having no demonstrated nexus to the county. We need not reach that question in order to determine that this case must be affirmed. In fact, it would seem improper to offer any view on the issue since such a question, had the writ been properly issued, would have been the subject of litigation in the court where the judgment was rendered. Our jurisdiction on appeal extends no further than that of the court from which the appeal was taken. Ray v. State, 798 So.2d 579, 582 (¶ 10) (Miss.Ct.App.2001); see Leverett v. State, 197 So.2d 889, 890 (Miss.1967); Collins v. State, 173 Miss. 179, 159 So. 865 (1935). The Circuit Court of Jones County lacked jurisdiction to adjudicate the issue and we have no greater right than that court to offer an opinion on the subject.

¶ 14. We observe, in closing, that there was a second procedure open to Buckley were he intent on seeking to enforce his judgment in a court other than the court which actually rendered the judgment. In 1984, the. Mississippi Legislature adopted the Uniform Enforcement of Foreign Judgments Act. Miss.Code Ann. §§ 11-7-301 to -309 (Supp.2002). This statutory scheme, which envisions enforcement action by the circuit courts of this state of “foreign judgments” defines a foreign judgment as “any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Miss.Code Ann. § 11-7-301 (Supp.2002) (emphasis supplied). There is no distinction made in the statutory definition between federal court judgments rendered in Mississippi and those that might be rendered by a federal court sitting in another state; therefore, the judgment from the United States District Court for the Southern District of Mississippi would plainly be one eligible for registration and enforcement under the Act. The Montana Supreme Court, in considering this same question under its version of the uniform act, said as follows:

Section 25-9-502, MCA, in the Uniform Act defines a “foreign judgment” to mean “a judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Where the language of a statute is clear and unambiguous, we look no further than to the plain meaning of the statute for its interpretation. Howell v. State (1994), 263 Mont. 275, 284, 868 P.2d 568, 573. The Uniform, Act clearly applies to federal court judgments registered in state district courts regardless of whether the federal court is located in the same state ■ as the state court.

Robinson v. First Wyoming Bank, N.A., Jackson Hole, 274 Mont. 307, 316, 909 P.2d 689, 694 (Mont.1995) (emphasis supplied).

¶ 15. The statutory scheme of the uniform act, as a prelude to enforceability in a particular circuit court of this state, requires (a) the filing of a copy of the judgment authenticated according to the Acts of Congress, (b) an accompanying affidavit giving the debtor’s last known post office address, (c) mailing of notice of the filing of the judgment by the clerk to the judgment debtor, and (d) a delay of twenty days after filing in which no execution or other enforcement action may be commenced and during which time the debtor may appear and offer proof that an appeal is pending or that enforcement is, or ought to be, otherwise stayed. Miss.Code Ann. §§ 11-7-303 to -307 (Supp.2002).

¶ 16. This statutory procedure, with its built-in safeguards for the judgment debt- or, must be followed before the “clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court-” Miss.Code Ann. § 11-7-303 (Supp.2002). The procedure provides a vehicle by which a judgment creditor may, if the creditor so desires, obtain the issuance of a garnishment or other execution, returnable — not to the court where the judgment was obtained as required by Section 13-3-155 — but to the circuit court of the county where the foreign judgment has been filed. The detailed prerequisites of the statute, however, are necessary forerunners of the court’s authority and not mere ministerial acts that may be accomplished after-the-fact or become the subject of waiver.

¶ 17. In this case, the most authority even arguably afforded to the Circuit Clerk of Jones County, was to issue a garnishment returnable to the court in which the judgment was obtained, i.e., the federal district court. Even that authority appears, at best, highly doubtful in view of the comments this Court made at the conclusion of our decision in Estelle v. Robinson concerning efforts in the circuit court to collect an unenrolled bankruptcy court judgment. Estelle v. Robinson, 805 So.2d 628, 626 (¶ 12) (Miss.Ct.App.2002). The clerk, in the case before us, issued the writ returnable to the Circuit Court of Jones County, an act not authorized by statute until the requirements of the previously-cited uniform act were met. The writ, therefore, conferred no authority on the Circuit Court of Jones County to entertain any proceedings to determine matters relating to the writ. The Jones County Circuit Court ultimately dismissed the writ based on certain perceived failures in the method of process employed to summons Personnel, the garnishee, and on Buckley’s failure to have the judgment enrolled under Section 11-7-197. We have determined that the court was without jurisdiction to proceed because of fundamental errors that would have remained even if a judgment abstract had been enrolled under Section 11-7-197 and the writ properly served on an authorized agent of Personnel. However, it is a long-standing practice of appellate courts to affirm the action of the lower court when the appellate court determines that the right result has been reached, even though for the wrong reason. Tedford v. Dempsey, 437 So.2d 410, 418 (Miss.1983). It is on that basis that we affirm the action of the trial court in dismissing the writ on jurisdictional considerations, even though we differ as to the particular reasoning that compels the result we reach today.

¶ 18. THE ORDER OF DISMISSAL OF WRIT OF GARNISHMENT OF THE JONES COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: KING, P.J.,

text:
    Clifton Lewis HOLIFIELD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-00315-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2003.
    Rehearing Denied April 15, 2003.
    Certiorari Denied June 12, 2003.

      Clifton Lewis Holifield, Pro Se, attorney for appellant.
    Office of the Attorney General by Wayne Snuggs, attorney for appellee.
   KING, P.J.,

for the court.

¶ 1. Clifton Lewis Holifield perfected this appeal from an order denying post-conviction collateral relief entered by the Circuit Court of the Second Judicial District of Harrison County, Mississippi.

On May 5, 2000, Holifield pled guilty to a felony charge of leaving the scene of an accident. He was sentenced as an habitual offender to serve five years in the custody of the Mississippi Department of Corrections.

¶ 2. Holifield, pro se, filed a petition for post-conviction collateral relief in December 2000. This petition was dismissed by the trial court on July 5, 2001. On appeal, Holifield raises the following issues:

I. Whether the indictment was defective.
II. Whether Holifield’s plea was voluntary.
III. Whether Holifield received effective assistance of counsel.
IV. Whether Holifield’s constitutional right against cruel and unusual punishment was violated.
V. Whether Holifield was denied full discovery.
VI. Whether there was prosecutorial misconduct.
VII. Whether Holifield was denied access to the courts.
VIII. Whether Holifield was denied the right to a speedy trial.

FACTS

¶ 3. In August 1999, Holifield was indicted, pursuant to Miss.Code Ann. Section 63-3-401(1) (Rev.1996) for the felony crime of leaving the scene of an accident. In Holifield’s brief, he stated that the charge arose out of an accident where his wife, who had been drinking and arguing with him, was killed when she jumped out of the van being driven by Holifield at a speed of approximately fifty-five miles per hour.

¶ 4. On September 1,1999, Holifield filed a motion to dismiss the indictment.

¶ 5. On February 25, 2000, the trial court granted a motion from the State to include habitual offender language from Miss.Code Ann. Section 99-19-81 (Rev. 2000).

¶ 6. On May 5, 2000, Holifield filed a petition to enter a plea of guilty to the charge. Holifield was sentenced as an habitual offender to a term of five years in the custody of the Mississippi Department of Corrections. In December 2000, Holi-field filed a motion for post-conviction collateral relief which was denied on July 5, 2001.

ISSUES AND ANALYSIS

I.

Whether the indictment was defective.

¶ 7. Holifield contends that the indictment was defective due to the lack of “an essential descriptive element of the offense charged.” The indictment charged Holifield with the felony crime of leaving the scene of an accident pursuant to Miss. Code Ann. Section 63-3-401(1) and (4) (Rev.1996). The indictment stated that:

CLIFTON LEWIS HOLIFIELD in the Second Judicial District of Harrison County, Mississippi, on or about May 29, 1998, was the driver of a vehicle involved in an accident which resulted in the injury and permanent disability of another person, to-wit: Terry Diane Holifield; and following said accident, knowingly, wilfully, unlawfully and feloniously (1) did fail to stop his vehicle at the scene of said accident or as close thereto as possible, and then return forthwith to the scene of said accident, and (2) did fail to remain at the scene of said accident and provide information and render reasonable assistance in fulfillment of the requirements of Section 63-3-405, Miss. Code of 1972, as amended, contrary to the form of Section 63-3-401(1) and (4), Miss.Code of 1972, as amended, and contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

The amended indictment stated that:

Clifton Lewis Holifield, is a habitual criminal who is subject to being sentenced as such pursuant to Section 99-19-81, Miss.Code of 1972, as amended, in that he, the said Clifton Lewis Holi-field, has been convicted at least twice previously of felonies or federal crimes upon charges separately brought and arising out of separate incidents at different times and has been sentenced thereon to separate terms of imprisonment of one year or more, to-wit:
(1) On October 23, 1989, he the said Clifton Lewis Holifield, was convicted in the Circuit Court of Escambia County, Florida in Cause numbers: 84-5111; 84-5151; 84-5159 and 84-5682, of the felony of Worthless Checks, and on October 23, 1989, in the said Court, was sentenced to a term one (1) year and one (1) month in the custody of the Florida Department of Corrections;
(2) On May 18, 1999, he the said Clifton Lewis Holifield, was convicted in the Circuit Court of Escambia County, Florida in Cause numbers: 99-0788 and 99-0789 of the felony of Worthless Checks, and on May 18, 1999, in the said Court, was sentenced to a term of one (1) year and one (1) month in the custody of the Florida Department of Corrections.

¶ 8. Whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court. Porter v. State, 749 So.2d 250(¶ 34) (Miss.Ct.App.1999). In undertaking this review, this Court observes that:

Mississippi’s law dictates only two exceptions in which a voluntary guilty plea does not waive a defect. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). If an indictment fails to charge a necessary element of a crime or if there exists no subject matter jurisdiction, then a guilty plea does not constitute a waiver. Id. Moreover, in Anderson v. State, 577 So.2d 390 (Miss.1991), this Court recognized “that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Anderson, 577 So.2d at 391.

Banana v. State, 635 So.2d 851, 853-54 (Miss.1994).

¶ 9. The indictment clearly charges an offense cognizable under the laws of Mississippi. The general rule is that where an indictment tracks the language of a criminal statute it is sufficient to inform the accused of the charge against him. Ward v. State, 479 So.2d 713, 715 (Miss.1985). The indictment tracks the language of the statute and is therefore sufficient. Accordingly, any defect in the indictment would have been waived by Holifield’s guilty plea. Banana, 635 So.2d at 853-54. However, this Court finds no defect in the indictment.

II.

Whether Holifield’s plea was voluntary.

¶ 10. Holifield contends that his guilty plea was involuntary. He claims that his plea was involuntary because his third attorney misrepresented the law and that he entered his plea of guilty on the reliance of counsel’s information. In his brief, Holifield asserts that his attorney stated that the time he served in Florida would be credited in Mississippi because Mississippi had an outstanding detainer against him during this time period.

¶ 11. The trial court found Holifield’s plea was voluntary. This Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous. Stevenson v. State, 798 So.2d 599(¶ 7) (Miss.Ct.App.2001).

¶ 12. If a plea is to be considered voluntary, it is essential that an accused have knowledge of the critical elements of the charge against him, that he fully understand the charge, how it involves him, the effects of a guilty plea to the charge, and what might happen to him in the sentencing phase as a result of having entered the plea of guilty. Reeder v. State, 783 So.2d 711(¶ 20) (Miss.2001).

¶ 13. It was Holifield’s responsibility to place before the trial court the proof needed to support his request for post-conviction relief. Colenburg v. State, 735 So.2d 1099 (¶¶ 5-6) (Miss.Ct.App.1999). It is also Holifield’s responsibility to ensure that the relevant information submitted to the trial court is placed before this Court. This includes the designation as a part of the appellate record all of those items which impact the claim for post-conviction relief. Id. at (¶ 6). He has not done so.

¶ 14. While this Court was not provided a copy of the plea transcript, the trial judge noted in his order denying post-conviction collateral relief that “[t]he plea hearing clearly shows Holifield knew the elements of the crime with which he was charged, understood the consequences of pleading guilty and the rights he was waiving by doing so, and was fully advised as to the possible sentence.” The trial judge further indicated that Holifield said that “his plea was not the result of any threat or promise of reward, and acknowledged he was guilty of leaving the scene.”

¶ 15. Absent evidence to the contrary, we find that Holifield’s plea was voluntary.

III.

Whether Holifield received effective assistance of counsel.

¶ 16. Holifield contends that he was denied effective assistance of counsel during all stages of the proceedings. Since his arrest arising from this incident, Holifield has been represented by three attorneys. Holifield claims that his first attorney failed to file a motion for speedy trial which caused him to file the motion on his own. However, the entry of a guilty plea waives the issue of whether a defendant received a speedy trial. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991). In order to succeed on a claim that counsel breached the minimum level of performance by failing to assert a speedy trial issue, a petitioner has the burden of showing such an issue could have merit. Ellis v. State, 773 So.2d 412(¶ 5) (Miss.Ct.App.2000). Holifield asserts that his filing a motion for speedy trial in lieu of his attorney doing so is indicative of its merit.

¶ 17. Next, Holifield claims that his second attorney made a “firm representation” that upon Holifield’s return from Florida back to the Harrison County Adult Detention Center, he would be released because his Mississippi time would run concurrently with his prior sentence. Additionally, Holifield claims that his attorney made various statements to the media and failed to render competent representation.

¶ 18. Regarding the third attorney, Ho-lifield asserts that the third attorney swore that the time served would be credited against his Mississippi sentence. Holifield has provided no proof of the allegations.

¶ 19. To prevail on an ineffective assistance of counsel claim, one is required to show that (1) counsel’s performance was deficient and (2) that the deficiency prejudiced the defense. Ellis, 773 So.2d at 413(¶ 3).

¶ 20. We find that Holifield has failed to show that the deficiencies of his attorneys, if any, prejudiced his defense.

IY.

Whether Holifield’s constitutional right against cruel and unusual punishment was violated.

¶ 21. Holifield contends that the length of his sentence violates the Eighth Amendment of the U.S. Constitution regarding cruel and unusual punishment. .He maintains that “the sentence imposed was equivalent to the same as an accüsed that left the scene of an accident that had injured someone or resulted in there [sic] death.”

¶22. Holifield was indicted pursuant to Miss.Code Ann. Section 63-3-401(1) and (4) (Rev.1996), which states that “upon conviction, [a defendant] shall be guilty of a felony and shall be punished by imprisonment for not less than one (1) year nor more than five (5) years, or by fine of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), or by both such fine and imprisonment.”

¶ 23. In his order, the trial judge stated:

Holifield agreed with the prosecutor’s statement that the plea was being entered in exchange for the State’s recommendation of five years day for day, the maximum sentence allowed, and the State’s agreement not to pursue any homicide charge out of the incident. In open court, Holifield admitted he understood and was informed of the recommendation before the hearing.

¶ 24. The Mississippi Supreme Court has held on several occasions that the imposition of sentence is within the trial court’s discretion, and “we will not review the sentence so imposed, if it is within the prescribed limits of the statute.” Shabazz v. State, 729 So.2d 813(¶ 35) (Miss.Ct.App.1998). The sentence imposed upon Holi-field was within the trial court’s discretion, and is not facially disproportionate. This Court finds no error in its imposition.

V.

Whether Holifield was denied full discovery.

¶ 25. Holifield contends that he was deprived of the right to inspect or have an expert examine the State’s evidence. He indicated that he did not have the opportunity to view or inspect his vehicle, which was involved in the accident. Holifield claims the State allowed the storage company to dispose of the evidence.

¶ 26. Here, the trial judge declined to address this issue by stating that “Holifield gives no facts regarding any denial of discovery.” This Court acts upon matters contained in the official record and not upon assertions in briefs. Colenburg, 735 So.2d at (¶ 6).

¶ 27. However, as noted in issue III, a valid guilty plea operates.as a waiver of all non-jurisdictional rights or defects which are incident to trial. Anderson v. State, 577 So.2d 390, 391 (Miss.1991). This issue is therefore without merit.

VI.

Whether there was prosecutorial misconduct.

¶ 28. Holifield contends that the State controlled the case and interfered with defense counsel’s choices. Holifield alleges that the prosecution engaged in misconduct by stating if Holifield declined to enter a plea of guilty to leaving the scene of an accident, that he would be indicted on a charge of manslaughter. Ho-lifield alleges that this act was threatening and coercive and compelled him to enter a plea of guilty to leaving the scene of an accident.

¶ 29. The U.S. Supreme Court has stated that in the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

¶ 30. Clearly Holifield was not required to accept a plea bargain. It was within the prosecution’s discretion to determine upon which charge to seek an indictment, Watts v. State, 717 So.2d 314(¶ 14) (Miss.1998), and within Holifield’s discretion to accept or reject any proposed plea bargain from the prosecution. Graves v. State, 492 So.2d 562, 567 (Miss.1986).

VII.

Whether Holifield was denied access to the courts.

¶ 31. Holifield contends that he filed a pro se motion to the trial court but never received a response. He states that he later found out through his third attorney that his motion for a writ of mandamus was forwarded to his second attorney, who did not advise him that a response had been received. He maintains that denial of access to the courts began when he was incarcerated in Florida and “attempted numerous times to file his pro se motions and have them placed upon the record, and they were returned by the Circuit Court Honorable Clerk of Harrison County, Mississippi and the Clerk’s reasons were not only unexceptable [sic], but totally confusing.”

¶ 32. Holifield’s mandamus request dealt with the pursuit of his motion for post-conviction relief. The trial court addressed Holifield’s request for post-conviction relief and thereby mooted the reason for requesting a writ of mandamus.

VIII.

Whether Holifield was denied the right to a speedy trial.

¶ 33. Holifield contends that he was denied the right to a speedy trial. He asserts that his plea hearing was held approximately two years after his arrest.

¶ 34. By pleading guilty, Holifield waived the issue of lack of a speedy trial. Anderson v. State, 577 So.2d 390, 391 (Miss.1991). We therefore find that this issue is without merit.

¶ 35. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

MeMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ„ CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . Miss.Code Ann. Section 63-3-401 (Rev. 1996). Duties of drivers involved; sanctions provide;
      (1) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 63-3-405.
      (2) Every stop under the provisions of subsection (1) of this section shall be made without obstructing traffic or endangering the life of any person more than is necessary.
      (3) Except as provided in subsection (4) of this section, if any driver of a vehicle involved in an accident that results in injury to any person willfully fails to stop or to comply with the requirements of subsection (1) of this section, then such person, upon conviction, shall be punished by imprisonment for not less than thirty (30) days nor more than one (1) year, or by fine of not less than One Hundred Dollars ($100.00) nor more than Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment.
      (4) If any driver of a vehicle involved in an accident that results in the death of another or the mutilation, disfigurement, permanent disability or the destruction of the tongue, eye, lip, nose or any other limb, organ or member of another willfully fails to stop or to comply with the requirements under the provisions of subsection (1) of this section, then such person, upon conviction, shall be guilty of a felony and shall be punished by imprisonment for not less than one (1) year nor more than five (5) years, or by fine of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), or by both such fine and imprisonment.
      (5) The commissioner shall revoke the operator’s or chauffeur's license of any person convicted under this section.


author: LEE, J., GRIFFIS, J.,

text:
    C.E. GOODE, Darene Goode, Renee Huey and Barry Huey, Administrators of the Estate of Brittany Huey; Any and All Wrongful Death Beneficiaries of Brittany Huey, Appellants, v. SYNERGY CORPORATION, Appellee.
    No. 2001-CA-01036-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2003.
    Rehearing Denied April 29, 2003.
    Certiorari Denied July 24, 2003.

      Michael D. Greer, Tupelo, H. Scot Spra-gins, John Brian Hyneman, Oxford, attorneys for appellants.
    Forrest W. Stringfellow, Jackson, William Charles Williams Jr., attorneys for appellee.
    Before KING, P.J., IRVING, and LEE, JJ.
   LEE, J.,

for the court.

¶ 1. The Circuit Court of Marshall County denied Barry and Renee Huey’s motion for new trial which was based on an allegation of newly discovered evidence and denied C.E. and Darene Goode’s joinder to the motion. The motions were filed after a jury found for the defendant, Synergy Corporation (Synergy), on a claim of property damage on behalf of the Goodes and a wrongful death claim on behalf of the Hueys. These claims arose from a fire which consumed the Goodes’ home and took the life of their granddaughter and the Hueys’ daughter, Brittany Huey. The Goodes and Hueys appeal asserting that the trial judge abused his discretion because the newly discovered evidence was not obtainable, was material, and would probably produce a different result. Finding error, we reverse and remand for a new trial.

FACTS

¶ 2. On August 27, 1998, a fire destroyed the home of the Goodes and took the life of Brittany Huey, their granddaughter. In the Goodes’ and Hueys’ claim against Synergy, their supplier of propane gas, they filed actions for negligence, strict liability, misrepresentation, and breach of warranty. The Goodes and Hueys alleged that Mrs. Goode smelled gas several months prior to the date of the fire and that after having informed a representative of Synergy, the representative assured her that the smell of gas would sometimes emanate from the main propane tank as the gas level decreased. The Goodes and the Hueys further alleged that the Goodes relied upon the representations of Synergy’s representative and continued to use the propane system. The Goodes and Hueys concluded that propane gas escaped from the propane fuel system and caused the fire within the home. In support of their assertion, the Goodes’ and Hueys’ experts contended that the fire was the result of natural gas leaking from the propane supply line or fitting. The experts asserted that the gas collected in the utility room and was eventually ignited by the pilot light of the water heater causing an explosion and fire.

¶ 3. Although there was no dispute that the fire was caused in some fashion by a propane gas water heater at the home, Synergy denied any liability and disputed the Goodes’ and Hueys’ experts’ theory on the exact cause of the fire. Synergy’s experts opposed the Goodes’ and Hueys’ assertion that the fire was caused by a gas leak with the contention that the fire was the result of a homemade “ventura” plate attached to the water heater which caused “incomplete combustion.” This incomplete combustion led to a flame roll-out which ignited combustible materials in the vicinity of the water heater, and then the fire ensued.

¶4. After the presentation of all evidence at trial, each party rested their case. Jury instructions were argued and presented to the jury, which deliberated and returned a verdict for the defendant, Synergy Corporation.

¶ 5. After the trial, the Goodes were approached by George Frayser, a former employee of Synergy. Frayser claimed that he did not become aware of the case until after the trial. Frayser informed the plaintiffs that he had manufactured and installed the plate on the water heater while in the course and scope of his employment with Synergy. His statements were embodied in a sworn affidavit.

¶ 6. Based on this newly discovered evidence, the Hueys filed a motion for new trial on March 23, 2001, citing the sworn affidavit by George Frayser. The Goodes also filed their joinder to the Hueys’ motion for new trial on March 26, 2001. After hearing oral arguments, the circuit court denied the Hueys’ motion for new trial and the Goodes’ joinder entering an order commensurate with its ruling.

STANDARD OF REVIEW

¶ 7. Our scope of review is limited in this matter, we will reverse the grant or denial of a motion for new trial only upon the showing of an abuse of discretion by the trial judge. Maxwell v. Illinois Central Gulf R.R., 513 So.2d 901, 908 (Miss.1987).

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION FOR NEW TRIAL.

¶ 8. A motion based upon newly discovered evidence may not be granted unless it can be shown that (1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is material and not cumulative or impeaching; (4) the evidence is such that a new trial would probably produce a new result. Moore v. Jacobs, 752 So.2d 1013, 1017(¶ 18) (Miss.1999). In the present case, as stated above, the new evidence came in the form of a sworn affidavit by George Frayser. Frayser’s testimony was undisputedly discovered after trial, yet discovered in time for the Hueys and Goodes to move for a new trial under Mississippi Rule of Civil Procedure 59. In his sworn affidavit, Frayser stated that he was not aware of the ease until after the conclusion of the trial and that he had previously serviced the gas supply system inside the Goodes’ home. He also stated that he had manufactured the plate that attached to the ventura on the water heater, which controlled the air/gas mixture, and that he had installed it while he was acting in the scope and course of his employment with Synergy. He further stated that the Goodes never participated or oversaw his actions and that the Hueys were not present when he made these alterations.

¶ 9. The Hueys and the Goodes contend that the trial judge abused his discretion in denying the motion for new trial because this evidence was unknown to the plaintiffs at any time before or during trial, although evidence of this type was diligently sought through discovery. In addition, they contend that the newly discovered evidence was material to the issue of the fire’s cause, and would have required that the jury reach a different verdict had they had the opportunity to present it at trial. Claiming the contrary, Synergy asserts that the Goodes and Hueys failed to use “due diligence” in ascertaining the identity of George Frayser; the identity of George Frayser and the testimony provided by him is not material to the case; and the introduction of George Frayser’s testimony would not lead to a new result if the jury were allowed to hear it at trial.

a. Due Diligence

¶ 10. In determining whether the trial judge abused his discretion in denying the motion for new trial, we first look to see whether the Goodes and Hueys demonstrated that due diligence was used in their discovery. “A party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial and that it was not owing to a want of diligence on his part that it was not discovered sooner.” Sullivan v. Heal, 571 So.2d 278, 281 (Miss.1990). “Facts implying reasonable diligence must be provided by the movant.” N.L.R.B. v. Jacob E. Decker & Sons, 569 F.2d 357, 363-64 (5th Cir.1978).

¶ 11. As to the diligent discovery requirement, the Goodes and Hueys aver that Frayser’s identity and testimony were unavailable prior to trial. They further allege that they conducted a diligent search for anyone with knowledge regarding the lawsuit and that in discovery Synergy never informed them of Frayser.

¶ 12. Synergy claims that the Goodes’ and Hueys’ lack of due diligence in ascertaining the identity of Frayser and his information on the cause of fire is clearly demonstrated by their failure to investigate information that they possessed two years prior to trial regarding the cause of the fire. A plaintiff cannot fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial. Diaz v. Methodist Hosp., 46 F.3d 492, 496 (5th Cir.1995). Synergy states that it provided the Goodes and Hueys with its theory of defense during discovery, that the attached homemade ventura plate caused the fire. Synergy also states that the Goodes’ and Hueys’ own expert stated that he was aware of the installed ventura plate, yet they decided to proceed under a different theory. Therefore, Synergy argues that the Goodes should have investigated and discovered the identity of the manufacturer and installer of the ventura plate. Thus, Synergy contends that the failure to investigate these known possibilities on the cause of the fire can hardly be deemed a “due diligent” investigation.

¶ 13. With the above arguments in mind, we look to the record to see whether the Goodes and Hueys were diligent during discovery. During the discovery phase of the litigation, the Goodes and Hueys propounded interrogatories to Synergy requesting information regarding “the product,” which was defined as that which caused the injury or damages as alleged in their complaint, as well as requesting information concerning persons associated with such product.

INTERROGATORY NO. 5: State the name, address and occupation of each and every person not heretofore mentioned having knowledge of any fact or matter relevant or material to this action.

In response, Synergy provided a list of twenty-two individuals, none of whom was George Frayser. Additionally, interrogatory number twenty-one read as follows:

INTERROGATORY NO. £1: Did the Defendant, at any time between the date of installation and the date of the accident, perform any maintenance, servicing, or cleaning? If the answer is in the affirmative, please state for each such occasion of maintenance, servicing, or cleaning:
a) The date;
b) The nature of the services performed;
c) The names, addresses, and relationships to the Defendant of the persons who performed the services;
d) The reason the services were performed;
e) The names, addresses, and relationships to the Defendant of the persons having custody or control of the originals or copies of records, reports, memoranda, receipts, work orders, or other written documents pertaining to the occasions.
RESPONSE: None other than those processes involving periodic filling of the propane tank.

Synergy did not list any other information in response to the question. The record shows that at no time before or during trial was Frayser ever identified as an employee of Synergy Corporation, much less, an employee who performed service on the gas system at the Goodes’ residence.

¶ 14. At the post-trial hearing, Synergy responded that it did not provide any information concerning Frayser because its records did not indicate that George Fray-ser would have any information regarding the plaintiffs water heater. In support of this assertion, Synergy presented post-trial affidavits of its personnel and a record of the Goodes’ account history. The billing records demonstrate that no service whatsoever had been provided to the Goodes other than filling their propane tank. The manager stated that any service work done to a Synergy Corporation’s gas system, such as the installation of the ventura plate, would have been billed. The Goodes’ billing records reflect that they were never charged any such type of service or repair fee during the entire time Synergy supplied propane to the Goodes. Therefore, since there is no record of such work, they had no information that Fray-ser worked on the Goodes’ home and, therefore, could not have produced his identity. Furthermore, as stated, Synergy argues that the plaintiffs were aware of their theory that the plate caused the fire; therefore, Synergy contends that the plaintiffs should have conducted a diligent search to ascertain the identity of Frayser.

¶ 15. However, the record reflects that the plaintiffs themselves had no knowledge of Frayser’s manufacturing and installing of the homemade ventura plate, and consequently, had no knowledge of the presence of the plate until after the fire. Testifying at the hearing on the post-trial motion, Darene Goode testified that Frayser approached her after the trial and informed her that he had placed the plate on the water heater. Mrs. Goode further testified that neither she nor any members of her family were aware of the homemade plate on the heater before the fire. She also testified that it was not in a visible position to be noticed by the family. She also confirmed that no one in her family manufactured it or altered or was aware that a Synergy employee, Frayser, had attached the plate.

¶ 16. In addition, George Frayser testified to the same in his affidavit. Frayser testified as follows:

Neither C.E. “Bug” Goode, nor Darene Goode, participated or helped me make this plate. To the best of my recollection, neither C.E. “Bug” Goode, nor Darene Goode, oversaw my actions. I am positive that neither Barry, nor Renee Huey, were present at the Goode home when I made these alterations.

Therefore, although the Goodes and Hueys were made aware of Synergy’s defense as to the cause of the fire, they had no explanation of how the ventura plate came to be placed on the water heater.

¶ 17. We find that the plaintiffs used due diligence in attempting to ascertain the information. The evidence shows that the Goodes could not have discovered his identity earlier. The plaintiffs exercised due diligence in attempting to establish the identity of persons having knowledge of the facts or relevant information material to the action. Every person identified in discovery was deposed and no testimony regarding George Frayser was provided. The fact that George Frayser was an employee of Synergy and performed modifications on their water heater was unknown to them. Therefore, such information could only have come from Synergy, which denies having such information. Even if what Synergy claims is true, that they do not have a record of Frayser’s service at the Goodes’ home, then given the lack of knowledge by both parties, appellants were excusably ignorant of the fact that Frayser modified the water heater while in the employment of Synergy Corporation. Thus, the Goodes’ and Hueys’ efforts satisfy the requirements of due diligence.

b. Material Evidence

¶ 18. Synergy argues that the testimony of Frayser is immaterial to this action. In quoting Diaz, 46 F.3d at 496, Synergy asserts that the “trial judge was afforded the opportunity to gauge the credibility of these witnesses,” and that this Court should not “second guess the trial court.” Diaz involved a claim that two physicians had perjured themselves, and newly discovered evidence in the form of an affidavit from another physician disputed the witnesses’ testimony. The Fifth Circuit held it paramount to rely on the trial court’s discretion as to the credibility of the witnesses’ testimony at trial.

¶ 19. However, Diaz is distinguishable from the present case on this issue because Frayser never testified at trial as his existence was unknown at or before trial. There was no testimony as to the manufacturer of the homemade plate at trial. The trial court was never afforded the opportunity to consider Frayser’s testimony and judge the credibility for itself. Therefore, Synergy’s reliance upon Diaz on this point is misplaced.

¶ 20. Additionally, the testimony is not of an impeaching or cumulative nature as it deals with testimony never before offered to a jury. Frayser’s affidavit goes to the cause of the fire. It goes to prove that Synergy Corporation through its employee modified the water heater by installing a “homemade” ventura plate which Synergy attributes to causing the deadly fire. Therefore, we find that Frayser’s testimony is material and not merely impeachable or cumulative in nature.

c. New Result

¶21. In order to succeed on a motion for new trial based upon newly discovered evidence, “the evidence [must be] such that a new trial would probably produce a new result.” January v. Barnes, 621 So.2d 915, 920 (Miss.1992). This Court must examine the evidence and ask whether a jury, if allowed to hear the evidence, would probably find that George Frayser fashioned the ventura plate and installed it on the water heater as an employee of Synergy Corporation.

¶ 22. In presenting their motion for new trial, the Goodes and Hueys did not challenge the weight of the evidence, yet requested the trial court to allow the jury the opportunity to hear all of the evidence, in particular, the sworn testimony of Frayser admitting to the performance of actions which his employer attributes to the cause of the fire. Therefore, we find that if allowed to present their case, a new result would probably emerge as Frayser’s testimony links the cause of the fire to Synergy Corporation by virtue of the fact that he admits to being within the course and scope of his employment at the time of his actions.

¶ 23. In conclusion, we find that the trial judge abused his discretion because the plaintiffs have met their burden as to all the required elements: (1) the evidence was discovered following the trial; (2) due diligence was shown; (3) that Frayser’s testimony is material and not cumulative or impeaching; (4) and Frayser’s testimony is such that, if presented, a new trial would probably produce a new result. Moore, 752 So.2d at (¶ 18). Therefore, we reverse the order of the trial court denying the motion for new trial and remand for a new trial so this newly discovered evidence may be presented to the jury.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

GRIFFIS, J.,

dissenting:

¶ 25. Relief from a judgment for newly discovered evidence, under Rules 59 and 60 of the Mississippi Rules of Civil Procedure, is an extraordinary remedy. I find that the Goodes and Hueys failed to submit sufficient evidence to establish their entitlement to such relief. Therefore, I conclude that the trial court was within its discretion, and I respectfully disagree with the majority’s holding.

¶ 26. In Moore v. Jacobs, the Mississippi Supreme Court established the criteria for a trial court to grant a motion for new trial based on newly discovered evidence. The court held:

A motion for a new trial (based on new evidence) is an extraordinary motion, and the requirements of the rule must be strictly met. (Citations omitted). The motion may not be granted unless (1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; (5) the evidence is such that a new trial would probably produce a new result. Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143 (5th Cir.1975), rev’d on other grounds, 425 U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976), cited with approval in Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir.1995).

Moore v. Jacobs, 752 So.2d 1013, 1017(¶ 18) (Miss.1999) (emphasis added).

¶ 27. To prevail, “a party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial and that it was not owing to a want of diligence on his part that it was not discovered sooner.” Sullivan v. Heal, 571 So.2d 278, 281 (Miss.1990). “Facts implying reasonable diligence must be provided by the movant.” N.L.R.B. v. Jacob E. Decker & Sons, 569 F.2d 357, 363-64 (5th Cir.1978). The determinative question, in my opinion, is whether the Goodes and Hueys prudently pursued discovery that, if they had, could have identified the “new evidence” prior to the trial.

¶ 28. George Frayser’s affidavit states that he worked for Synergy when he performed work on the Goodes’ hot water heater and gas supply system. Frayser apparently admits that he made and installed the “ventura” plate that was attached to the hot water heater.

¶ 29. There is no dispute that fire consumed the Goodes’ home resulting in the tragic death of Brittany Huey. Over two years passed from the date of this unfortunate incident and the trial of this case. During this time, the parties conducted extensive discovery.

¶ 30. There were several cause and origin experts who investigated the incident and offered their opinions. The Goodes and Hueys hired Dave Berry, Jr. to investigate the incident and testify as a cause and origin expert witness. Berry concluded that the ventura plate was of no significance in his investigation and was not the cause of the fire. Instead, the Goodes and Hueys theory of liability was consistent with Berry’s conclusion and was, in essence, that the Goodes told Synergy’s employees they smelled gas and Synergy was negligent because it did nothing to investigate or solve the problem.

¶ 31. Synergy’s theory was that the fire was caused by a homemade ventura plate, which was attached to the Goodes’ hot water heater. The Goodes’ and Hueys’ attorneys were aware of Synergy’s theory for quite some time. At trial, the parties presented different theories as to the cause and origin of the fire. However, as part of the motion for new trial, the Goodes and Hueys did not outline or discuss what, if anything, they did to investigate Synergy’s theory.

¶ 32. The Goodes’ and Hueys’ motion for new trial included a copy of their first interrogatories and Synergy’s response. They argue that Synergy did not identify Frayser. However, the Goodes and Hueys do not contend that Synergy’s responses were false or misleading. Upon reading Synergy’s interrogatory response, it is clear that Synergy did not know who altered the hot water heater. Synergy was not the manufacturer of the hot water heater. Synergy did not sell or install the hot water heater. Synergy did not typically service hot water heaters. Synergy consistently maintained that it provided the propane supply tank, and its contact with the Goodes was through regularly filling the tank. Synergy’s records did not indicate any work performed by its employees on the Goode’s hot water heater.

¶ 33. To establish the due diligence element under Moore v. Jacobs, the Goodes and Hueys simply make a general statement that they conducted a diligent search for anyone with knowledge regarding the lawsuit and that in discovery Synergy never informed them of Frayser. I believe this element requires more than simply filing initial interrogatories. The Goodes’ and Hueys’ attorneys provided no evidence or description of their investigation into Synergy’s theory. They provided no evidence that they even attempted to determine who was responsible for making or installing the ventura plate. The record is silent as to what exactly the Goodes and Hueys did to locate the person or entity responsible for the ventura plate or the identity of anyone who may have had access to work on the Goodes hot water heater.

¶ 34. The Goodes and Hueys did not provide the trial court with specific references to any supplemental discovery requests, deposition questions or testimony, correspondence between counsel, or any other effort to investigate the identity of the person or entity who could have made or installed the homemade ventura plate on the Goodes’ water heater. The majority relies on the fact that the Goodes’ and Hueys’ attorneys deposed every person identified in the interrogatory response. However, the Goodes and Hueys failed to attach deposition questions or testimony where they sought to determine the identity of Frayser or any other person who could have installed the ventura plate. Due diligence requires that they not simply depose everyone, but that they ask questions to try to elicit the information. Since this was Synergy’s sole theory of the case, I believe that due diligence required the Goodes and Hueys to have undertaken such discovery and investigation. However, based on the record before us, it appears that they did not.

¶ 35. My criticism of the majority’s holding is that they have established the bar much too low for this type of extraordinary relief. Based on the majority’s holding, the filing of initial interrogatories is sufficient to satisfy the due diligence requirement of Moore v. Jacobs. Therefore, this decision effectively erases the element of due diligence to discover the evidence prior to trial.

¶ 36. A plaintiff cannot fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial. Diaz v. Methodist Hospital, 46 F.3d 492, 496 (5th Cir.1995). The Goodes’ hot water heater had been installed over twenty-five years before this incident. Synergy’s theory of the cause of the fire was that someone had tampered with the hot water heater. In Diaz the Fifth Circuit stated, “we believe a prudent litigant would independently investigate such a pivotal issue and be less than willing to adopt blindly the statement of the opposing party.” Id. Certainly, diligence required that the Goodes and Hueys conduct an exhaustive search for any person or entity who worked on or tampered with the hot water heater. I cannot accept that the Goodes’ and Hueys’ reliance on the filing of the initial interrogatories alone as sufficient to establish their due diligence. The failure to investigate known possibilities of the cause of the fire can hardly be deemed a “due diligent” investigation.

¶ 37. In my opinion, the Goodes and Hueys failed to establish due diligence to discover the new evidence. Therefore, I cannot conclude that the trial judge abused his discretion in denying the motion for new trial. I would affirm the trial court’s ruling.

SOUTHWICK, P.J., JOINS THIS SEPARATE OPINION.

EXHIBIT

IN THE CIRCUIT COURT OF MARSHALL COUNTY, MISSISSIPPI

BARRY AND RENEE HUEY, ADMINISTRATORS OF THE ESTATE OF BRITTANY HUEY; ANY AND ALL WRONGFUL DEATH BENEFICIARIES OF BRITTANY HUEY, PLAINTIFFS, VS. SYNERGY CORPORATION, DEFENDANT.

CAUSE NO. M98-421.

AFFIDAVIT OF GEORGE FRAZIER

1. My name is George Frasier. I am over the age of twenty-one (21), have first hand knowledge and I am competent to testify as to the matters contained herein.

2. I worked for Synergy Corporation from 1971 until 1995. I worked as a Driver/Service.

3. As an employee of Synergy Corporation, I have occasionally serviced the home of C.E. “Bug” and Darene Goode.

4. On one or more occasions, I performed service work on the gas supply system inside the home and on the hot water heater.

5. I reviewed and replaced a gas supply line.

6. I also inspected the hot water heater located in the utility room.

7. I manufactured a plate that attached to the ventura, and controlled the air/gas mixture.

8. I was shown this plate and I am positive that I was the person that made and installed this plate.

9. A photograph of the plate is attached as Exhibit “A” to this affidavit.

10. Again, I made this plate and installed it at the Goode home.

11. When I did, I was acting in the scope and course of my employment with Synergy Corporation.

12. Neither C.E. “Bug” Goode, nor Darene Goode, participated or helped me make this plate.

13. To the best of my recollection, C.E. “Bug” Goode, nor Darene Goode, oversaw my actions.

14. I am positive that neither Barry, nor Renee Huey, were present at the Goode home when I made these alterations.

15. I heard of the case of Huey, et al. v. Synergy Corporation after the trial had been concluded.

16. I heard that Synergy Corporation denied altering the hot water heater and installing this plate. I know that this is not true because I installed it.

17. I then voluntarily contacted the Goodes to tell them the truth.

18. There has been a delay in presenting this affidavit because I wanted to see the plate (not just a photograph). I wanted to be sure that I did it, as I recalled that I did. I wanted to see the actual plate. It is my understanding that there was a delay since the plate had to be retrieved from the attorneys.

19. No one has influenced me to give this affidavit. I am doing it because I believe that it is the right thing to do.

20. Further, affiant sayeth not.

/s/ George Frayser

GEORGE FRAYSER

SWORN TO AND SUBSCRIBED BEFORE ME, this the 21 day of March, 2001.

/s/ Rachel H. Broch

NOTARY PUBLIC

My Commission Expires:

8/18/2002.

      . See attached exhibit.

      . The Supreme Court has recognized that these elements govern our consideration of this appeal, because the construction of the Mississippi rules concerning newly discovered evidence is nearly identical to the federal rules. State ex rel. Mississippi Bureau of Narcotics v. One Chevrolet Nova Automobile, 573 So.2d 787, 789 (Miss.1990).


text:
    John F. GROSS a/k/a John Felix Gross, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-01185-COA.
    Court of Appeals of Mississippi.
    March 25, 2003.
    Rehearing Denied May 27, 2003.
    Certiorari Denied Aug. 14, 2003.

      T. Swayze Alford, Lynn Chain Cooper, Oxford, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. John Gross pled guilty in June 1998 to the crime of driving under the influence of intoxicants and thereby causing the death of another. Prior to making his decision to enter a guilty plea, Gross filed a pre-trial motion to suppress evidence of a post-accident medical test that showed a high level of alcohol content in his bloodstream. The trial court denied the motion, relying on the provisions of Section 63 — 11— 8 of the Mississippi Code, which mandated such blood alcohol testing for all drivers involved in an accident resulting in a fatality. Miss.Code Ann. § 63-11-8 (Rev.1996) (declared unconstitutional in McDuff v. State, 763 So.2d 850 (Miss.2000)). In the face of that ruling, Gross decided that his best course was to enter a plea of guilty.

¶ 2. Gross subsequently filed a motion for post-conviction relief claiming that the trial court erred in that evidentiary ruling. The trial court denied Gross any relief on his motion without a hearing. Gross has now appealed that ruling to this Court. We affirm.

¶ 3. Gross based his claim for post-conviction relief on a decision by the Mississippi Supreme Court rendered after he entered his guilty plea that declared Section 63-11-8 of the Mississippi Code unconstitutional. In that decision, the supreme court found that obtaining the necessary blood samples to conduct such tests without a prior determination of probable cause (or without first obtaining the driver’s informed consent) was an unreasonable search and seizure prohibited by the Fourth Amendment. McDuff, 763 So.2d at 856.

¶ 4. Gross appears to contend that he may raise this issue in a post-conviction relief proceeding under the authority of Section 99 — 39—5(l)(c), which permits relief when “the statute under which the conviction and/or sentence was obtained is unconstitutional.” Miss.Code Ann. § 99-39-5(l)(e) (Rev.2000). We find that argument unpersuasive. That portion of the post-conviction relief statute plainly applies only in those cases where the statute defining the crime or defining the prescribed punishment is later successfully attacked on constitutional grounds. As we have previously observed, the trial court in this case dealt with a garden-variety evidentia-ry question that, in the court’s view, happened to be controlled by a statutory provision. That question had nothing to do with the constitutionality of the statute defining the crime under which Gross was indicted. It remained within Gross’s power to mount a challenge to the trial court’s ruling on this question of evidence that could have included an attack on the constitutionality of the statute relied upon by the court. Even if unsuccessful in such efforts at the trial level, Gross could have continued the constitutional challenge in an appeal and, had he done so, it must be assumed that his tenacity would have been rewarded with the same success that Beverly Ann McDuff found less than two years later.

¶ 5. It is critical to note that the McDuff decision holding the provisions of Section 63-11-8 requiring automatic blood testing unconstitutional came long after Gross’s judgment of sentence on his guilty plea was entered and any possible right of direct appeal from that judgment had expired. The issue, then, becomes whether a subsequently issued opinion of the supreme court which plainly shows the error of an evidentiary ruling made in a prior proceeding may be the ground for post-conviction relief.

¶ 6. One of the fundamental principles governing the extraordinary remedy of post-conviction relief is that issues that could or should have been fully litigated in the original trial of the cause — that term being understood to include the exhaustion of available rights of direct appellate review of alleged trial court errors — may not be litigated in a post-conviction relief proceeding. Smith v. State, 434 So.2d 212, 215 (Miss.1983). It is also a fundamental concept of criminal procedure that the entry of an informed plea of guilty acts as a waiver of the right to subsequently complain of alleged violations of any number of rights arising under the constitution, including those found under the Fourth Amendment. King v. State, 738 So.2d 240, 240(¶ 5) (Miss.1999); McMillian v. State, 774 So.2d 454, 458 (¶ 11) (Miss.Ct.App.2000).

¶ 7. In this case, the trial court declined to suppress evidence relating to Gross’s blood alcohol content derived from a blood sample alleged to have been taken without a warrant and without Gross’s informed consent. Rather than explore whether probable cause existed for a warrantless extraction of the blood sample or whether Gross’s acquiescence (which the defense conceded but maintained was not informed consent) rendered the test results admissible, the trial court relied on Section 63 — 11— 8 to deny Gross’s suppression motion. It was at that point that Gross made the decision that it would be in his best interest to enter a plea of guilty rather than face a trial that would have included evidence of the incriminating results of his blood tests.

¶ 8. It is plain that Gross had the same right as did McDuff to continue to protest the admissibility of his blood test results on constitutional grounds even after the trial court’s ruling against him. It is also evident that his decision to forego this continued challenge (which hindsight and McDuff s later persistence now reveal seemed destined for success) and enter a plea of guilty acted as a waiver of his right to subsequently re-litigate the issue of the admissibility of this evidence in a post-conviction relief proceeding.

¶ 9. Neither is Gross’s quest for relief aided by considerations of whether McDuff ought to be given retroactive or merely prospective application. There is a presumption that supreme court decisions in matters such as this are to be given retroactive effect. Kolberg v. State, 704 So.2d 1307, 1316 (¶ 40) (Miss.1997). However, the term “retroactive” in that context means only that the decision altering the law applies to all cases that are still pending in an active status, either at the trial level, or on direct appeal. Thompson v. City of Vicksburg, 813 So.2d 717, 721 (¶ 15) (Miss.2002). In suggesting that such issues are not the proper subject for post-conviction relief, the Mississippi Supreme Court had this to say:

These notions of finality dictate a similar rule in Mississippi post-conviction proceedings with respect to constitutional claims which were unrecognized at the time of an accused’s trial. Such unrecognized constitutional claims will be allowed as grounds for overcoming the procedural bars which we have strictly applied ... only upon a clear showing that such claims could not have been raised at trial and on appeal. Such a rule is consistent both with the United States Supreme Court holding in Engle v. Isaac and our own longstanding rule that post-conviction relief in Mississippi does not lie for facts and issues which could or should have been litigated at trial.

Smith v. State, 434 So.2d 212, 215 n. 216 (Miss.1983) (citation omitted).

¶ 10. As an alternative argument, Gross points out that the blood sample was drawn at the direction of a Mississippi law enforcement officer at a time when Gross was in a Tennessee medical facility. He suggests that evidence of the test results was improperly admitted on the basis that a Mississippi official lacks the authority to order such tests outside the geographical boundaries of the state of Mississippi. Gross does not attempt to explain why this issue—again, nothing more than a dispute over the admissibility of evidence—could not have been litigated to conclusion at trial and, if necessary, by direct appeal of an unsatisfactory ruling by the trial court. We conclude that this more direct avenue to seek relief was, in fact, available to Gross had he chosen not to enter a plea of guilty. On that basis, we determine that this alternate theory is not an appropriate basis for post-conviction relief.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF DENIAL OF POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.