author: SMITH, Presiding Justice, McRAE, Presiding Justice,

text:
    MISSISSIPPI MUNICIPAL LIABILITY PLAN v. Frank E. JORDAN, Stuart Love, Mary Ann Hill and Manuel Keyes.
    No. 2001-IA-01590-SCT.
    Supreme Court of Mississippi.
    Dec. 31, 2003.

      Lawrence Cary Gunn, Jr., Hattiesburg, Gary E. Friedman, Jackson, attorneys for appellant.
    David Garner, Jolly W. Matthews, Hat-tiesburg, Oby Thomas Rogers, Collins, David L. Sullivan, Laurel, attorneys for appellees.
   SMITH, Presiding Justice,

for the Court.

¶ 1. Three injured plaintiffs sought compensation in the Chancery Court of Smith County, Mississippi, for injuries sustained in a motor vehicle accident where a Town of Taylorsville police patrolman was allegedly the negligent party. The chancery court found that the municipality was liable only for $ 50,000 under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2003). However, the chancellor further found that the Mississippi Municipality Liability Plan (“MMLP”) could be held liable in excess of $50,000 because the policy between the city and plan provided for maximum coverage of $500,000. Moreover, the chancellor determined that the policy was ambiguous. We disagree and find the chancellor erred.

¶ 2. We also, by plain error, find that the Chancery Court of Smith County was without subject matter jurisdiction to hear this case. Moreover, we find that Section 147 of the Mississippi Constitution does not prohibit us from reversing on jurisdictional grounds since there has been no final judgment. Accordingly, we reverse and remand for a transfer to the Circuit Court of Smith County for proceedings consistent with this opinion.

FACTS

¶ 3. On October 7, 1996, the motor vehicle operated by Joann Jordan (Jordan) was crossing Highway 37 in the Town of Tay-lorsville (Taylorsville) when it was struck by a Taylorsville police car driven by officer Dennis Jones (Jones) who was on duty and acting in his official capacity. As a result of the accident, Jordan died, and her passenger Mary Ann Hill (Hill) was injured. At the time of the accident, Jones was transporting Manuel Keyes (Keyes) to the town jail. Keyes was also injured in the accident.

¶ 4. On January 15, 1997, Jordan’s husband, Frank E. Jordan, filed a wrongful death action against Jones, Taylorsville, and Mayor J.W. Walker (Walker) in the Chancery Court of Smith County. Jordan claimed that Jones negligently operated his vehicle at a high rate of speed and drove his vehicle into the side of Jordan’s car. Jordan alleged that Jones was negligent by driving at an excessive rate of speed, failing to maintain a proper lookout, failing to observe Jordan’s vehicle, failing to stop his vehicle to avoid the resulting collision with Jordan, failing to take action to avoid the accident, failing to keep control of his vehicle, failing to operate within the posted speed limit, and all other negligence to be established at trial. Jordan further alleged that Taylorsville and Walker were liable for failure to train the employee and properly supervise his actions. The complaint demanded damages of $750,000.

¶ 5. Soon thereafter, Taylorsville filed a complaint for interpleader pursuant to Rule 22 of the Mississippi Rules of Civil Procedure in the Chancery Court of Smith County. Therein, Taylorsville asserted that the court should receive and maintain the sum of $50,000 from the Mississippi Municipal Liability Plan (MMLP) and thereafter determine the claims of all of the injured parties; thereby discharging it from any further liability. Pursuant to Rule 67 of the Mississippi Rules of Civil Procedure, the chancellor on January 21, 1997, issued an order directing the court clerk to accept the $50,000 and deposit said sum in a federally insured bank or savings and loan association until a determination has been made as to the injured parties’ claims.

¶ 6. Taylorsville, Jones, and MMLP moved for summary judgment claiming that since the sum of $50,000 had been deposited into the registry of the court there no longer existed any dispute as to material facts as to them. The affidavit of Jack Combes (Combes), claim representative for MMLP, was also presented to the court. Therein, Combes attested that Jones was in fact acting within his official capacity as a Taylorsville officer at the time of the accident and that Taylorsville is a member of MMLP with coverage of $50,000, pursuant to Miss.Code Ann. § 11-46-15.

¶ 7. Hill, Jordan, Keyes, and Stuart Love (Love) (collectively “Plaintiffs”) filed separate responses to the motion for summary judgment claiming that Taylorsville had a liability policy with maximum limits of $500,000. Ultimately, on May 5, 1997, the chancellor found that Taylorsville should be granted summary judgment since the only amount of liability it was subject to was the $50,000 which had been paid into court. However, the chancellor denied summary judgment for Jones and MMLP as he found that material issues of fact existed with regards to the maximum policy limits and possible recovery afforded by the MMLP. The chancellor found conflicting wording in the policy declaration and the section of the comprehensive coverage document which pertains to limits on liability. The MMLP Bylaws provide, in pertinent part:

The Mississippi Municipal Liability Plan (hereinafter referred as the “Corporation”) was incorporated under the Mississippi Nonprofit Corporation Act on March 4, 1987. The general objectives of the Corporation are to formulate, develop and administer a program of self-insurance for municipalities in the State of Mississippi, to offer lower costs for liability coverage and to operate a loss control program to minimize exposure and risks to the municipality....
All funds contributed to the Corporation are public funds from municipalities of the State of Mississippi. In contributing said funds to the Corporation, the intent of the members is to create a reserve fund for the payment of claims which are not insured and which are not covered by immunity under Chapter 46, Title 11, Miss.Code Ann., 1972, as amended. It is not intended that any immunity of any member of the Corporation or its agents or employees is waived by the creation of such reserves since the reserves are not intended to pay any claims other than those not covered by immunity or by a policy of insurance.
The Corporation, and the Plan operated by the Corporation shall consist of members which are municipalities authorized under Section 11-46-17, Miss. Code Ann.1972, as amended, to become self-insurers and enter into inter-local agreements with other municipalities to provide liability protection for the municipalities, their officers and employees while acting in their official capacities .... The Corporation and the Plan operated by the Corporation are not intended to operate as an insurance company, but rather are intended to be the mechanisms by which each municipality provides reserves for itself and its employees in their official capacities for uninsured liability claims not covered by immunity or by a policy of insurance. ...

(emphasis added). The MMLP Insurance Declaration provides in relevant part:

LIMIT OF LIABILITY
$500,000 per occurrence as limited and defined herein. This expressly does not waive any limitation included in the Sovereign Immunity Exclusion and Related Liability limitation....

(emphasis added). The MMLP Comprehensive Coverage Document states in relevant part:

MISSISSIPPI MUNICIPAL LIABILITY PLAN
The Mississippi Municipal Liability Plan (hereinafter called the “Liability Plan” or “Plan”) is a reserve fund established by the members for the payment of claims which are not insured or which are not covered by any governmental or sovereign immunity or limitation of liability created by or existing under the common law, court decision, statute or regulation. It is not intended that any governmental or sovereign immunity or limitation of liability of any member of the Plan or agents or employees is waived by the creation of such reserves since the reserves are not intended to pay claims other than those not covered by immunity or by a policy of insurance ....
PLAN AGREEMENT
The Liability Plan will pay on behalf of the Named Insured all sums which the Named Insured shall become legally obligated to pay as damages because of: Part I — General and Automobile Liability
Coverage A — Bodily Injury Liability Coverage B — Property Damage Liability
Part II — Errors and Omissions Liability Coverage G — Law Enforcement Liability
Coverage D — Public Officials Liability to which this coverage document applies; caused by an Occurrence under Part I or Wrongful Act under Part II, and occurring within the Inter-Local Agreement Territory as defined in the DEFINITIONS ...
DEFINITIONS
When used in this Mississippi Municipal Liability Plan Coverage Document and the Inter-Local Agreement: ...
OCCURRENCE, with respect to bodily injury and property damage, means an accident, including continuous or repeated exposure to substantially the same general harmful condition ....
GENERAL AND AUTOMOBILE LIABILITY
I. COVERAGE A — BODILY INJURY LIABILITY
COVERAGE B — PROPERTY DAMAGE LIABILITY
The Liability Plan will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages arising out of an occurrence that takes place during the Mississippi Municipal Liability Plan period because of:
Coverage A — Bodily Injury
Coverage B — Property Damages to which this Plan applies as stated in the Inter-Local Agreement.
II. LIMIT OF LIABILITY
The Liability Plan’s limit of liability is the limit stated in the Declarations and applies per occurrence for each coverage separately and for all coverages combined in the coverage document. Such limit is subject to the Sovereign Immunity exclusion and Related Liability Limitation. This limit applies regardless of the number of:
(a) Insureds,
(b) Claims made or suits brought, or
(c) persons or organizations making claims or bringing suits.

(emphasis in original).

¶ 8. On June 19, 1997, Mississippi Farm Bureau Mutual Insurance Company (Farm Bureau) filed a motion for leave to intervene claiming that as the liability insurer of Jones it had an interest in the litigation and sought intervention so as to protect that interest. Ultimately, an agreed order of intervention was executed between the parties. Farm Bureau then filed an itemization of facts with the court and a motion for summary judgment. In support of this motion, Farm Bureau filed with the Court a transcript of the testimony given by Jones to the claims adjuster, a copy of the auto policy in question, and a copy of the accident report. In his statements to the claims adjuster, Jones acknowledged that he was speeding and going 67 mph in a 55 mph zone. Thereafter, Love filed a motion to amend his complaint wherein he named Farm Bureau as a defendant and sought $1 million in additional damages.

¶ 9. On September 24, 1997, the chancellor entered an opinion and order finding that the coverage provided under the MMLP was for the maximum amount of $500,000, not $50,000. The MMLP filed a motion to amend findings by the court, to alter or amend the opinion and order of the court, and for relief from judgment of order arguing that the chancellor had erred in finding the maximum limits of the policy were $500,000 instead of $50,000.

¶ 10. Hill and Jordan filed a motion to withdraw the interpleader funds. These motions were denied. Hill and Jordan also filed a response to MMLP’s motion to amend findings. On February 4, 1998, the chancellor denied MMLP’s motion to amend. On June 12, 2000, Jones filed a motion to dismiss claiming immunity from personal liability under the Mississippi Tort Claims Act (MTCA).

¶ 11. On July 2, 2001, the chancellor ordered the parties to submit to mediation. Thereafter, the chancellor entered an order establishing the percentage of disbursement and granting interlocutory appeal to all parties to this Court. This Court granted the MMLP’s Petition for Interlocutory Appeal. MMLP raises the following issue on appeal:

I. WHETHER A SELF-INSURED POOL FOR MUNICIPALITIES CREATED BY THE MISSISSIPPI TORT CLAIMS ACT CAN BE INDEPENDENTLY LIABLE TO A PLAINTIFF AND FOR A GREATER AMOUNT THAN THE MUNICIPALITY.

DISCUSSION

¶ 12. This case was filed in the Chancery Court of Smith County. The chancery court specifically found that it had jurisdiction over the subject matter involved in this wrongful death tort action. Jurisdiction is a question of law that we review de novo. K.M.K. v. S.L.M. ex rel. J.H., 775 So.2d 115, 117 (Miss.2000).

¶ 13. Mississippi chancery courts enjoy limited jurisdiction. S. Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (Miss.1999). The Mississippi Constitution provides:

The chancery court shall have full jurisdiction in the following matters and cases, viz.:
(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.

Miss. Const, art. 6, § 159. The Constitution grants chancery courts additional jurisdiction in some cases involving real property. Id. § 161. Furthermore, in some cases, the circuit and chancery courts enjoy concurrent jurisdiction. Id. § 161. While a chancery court may grant judgments for compensatory and even punitive damages, its jurisdiction must first attach. S. Leisure Homes, 742 So.2d at 1090. In contrast, the circuit court has “original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law.” Miss. Const, art. 6 § 156. We find that the Chancery Court of Smith County did not have subject matter jurisdiction over this MTCA action. City of Ridgeland v. Fowler, 846 So.2d 210, 214 (Miss.2003); Lawrence County Sch. Dist. v. Brister, 823 So.2d 459 (Miss.2001).

¶ 14. In addition, the Mississippi Constitution states:

No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the Supreme Court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the Supreme Court may remand it to that court which, in its opinion, can best determine the controversy.

Miss. Const, art. 6, § 157. This Court has recognized that where a final judgment has been rendered, we are without power to reverse for lack of jurisdiction pursuant to Section 147. U.S. Fidelity & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So.2d 38, 45 (Miss.2002). However, in considering an interlocutory appeal, it is permissible for this Court to reverse for a trial court’s lack of jurisdiction because, absent a final judgment, the provisions of Section 147 do not bar reversal on jurisdictional grounds. S. Leisure Homes, 742 So.2d at 1091. Cf. Francis, 825 So.2d at 46. In other words, “it is appropriate to seek permission to bring an interlocutory appeal to address the issue of subject matter jurisdiction in order to prevent a final resolution of the case in an inappropriate forum.” Francis, 825 So.2d at 46. There has been no final judgment in this case. However, MMLP failed to raise the jurisdictional defect before the court below.

¶ 15. Normally, where a party fails to raise an issue before the trial court, we are procedurally barred from considering that issue. Southern v. Miss. State Hosp., 853 So.2d 1212, 1214-15 (Miss. 2003). However, under M.R.A.P. 28(a)(3), “the [C]ourt may, at its option, notice a plain error not identified or distinctly specified.” We have held that the plain error rule becomes operable when the appellant “(1) ... has failed to perfect his appeal and (2) when a substantial right is affected.” State Highway Comm’n of Mississippi v. Hyman, 592 So.2d 952, 957 (Miss.1991). In Hyman, this Court concluded that because $60,000 of State money was involved in the appeal, a substantial right was affected by the trial court’s error in admitting certain testimony at trial. Id. Furthermore, we have recognized that “this Court of its own motion may, as it should, consider a jurisdictional issue even though not assigned by the parties.” Sanford v. Board of Supervisors, Covington County, 421 So.2d 488, 490 (Miss.1982). See also Home Ins. Co. v. Watts, 229 Miss. 735, 753, 93 So.2d 848, 850 (1957) (holding that “question of jurisdiction may be raised at any stage of the proceedings, and even by the Court of its own motion”); McCaskill v. Little, 214 Miss. 331, 335, 58 So.2d 801, 802 (1952) (holding that jurisdictional question, although not raised by the appellant, was so patent that Court could not ignore it). Moreover, this Court has held:

Our appellate jurisdiction extends to cases and not just issues. While we normally limit our review to specific issues presented by the parties, that limitation is one of expedition and not jurisdiction, else how our familial' plain error rule ... Interlocutory appeals are no different. In the matter now before the Court, we will decide the issue raised by the Petition for Interlocutory Appeal and reach the merits of the case.

Pub. Employees Ret. Sys. of Mississippi v. Hawkins, 781 So.2d 899, 901 (Miss.2001).

¶ 16. Here, we hold that the chancery court’s lack of subject matter jurisdiction is plain error requiring reversal. MMLP did not perfect its appeal of the jurisdictional issue because it failed to raise that issue before the chancery court. Moreover, we find that a substantial right is affected in the case sub judice. As in Hyman, the “substantial right” affected here is a monetary interest — specifically, $450,000 is at issue in this appeal. Pursuant to our holding in Hyman, it is appropriate for us to reverse on jurisdictional grounds despite MMLP’s failure to raise the jurisdictional defect before the chancery court. Moreover, our cases stand for the proposition that jurisdiction may be challenged at any stage of the proceedings, even by this Court’s own motion.

¶ 17. In sum, we reverse the judgment in this case since we find that the chancery court was without subject matter jurisdiction; Section 147 of the Mississippi Constitution does not prohibit us from reversing on jurisdictional grounds; and the chancery court’s lack of subject matter jurisdiction is plain error requiring reversal. Although we reverse on jurisdictional grounds, we nevertheless address the merits of this appeal to assist the Smith County Circuit Court on remand.

¶ 18. Jordan argues that MMLP has failed to show any manifest error by the learned chancellor below. Further, Jordan asserts that the MMLP contract is ambiguous; therefore, the contract should be construed against MMLP, the drafter, and in favor of Jordan. However, MMLP contends that Mississippi does not allow “direct action” suits. Moreover, MMLP argues that it is liable only to the extent allowed under Miss.Code Ann. § 11-46-15, i.e., $ 50,000.

¶ 19. MMLP first refers this Court to our decision in Westmoreland v. Raper, 511 So.2d 884 (Miss.1987), for the contention that Mississippi does not recognize “direct action suits.” It is true that our decision in Westmoreland prohibited direct actions against insurance companies. Jackson v. Daley, 739 So.2d 1031, 1038 (Miss.1999). However, we subsequently-overruled Westmoreland in State Farm Mut. Auto. Ins. Co. v. Eakins, 748 So.2d 765 (Miss.1999). In the place of West-moreland and similar cases, “we held that under Rule 57 of the Mississippi Rules of Civil Procedure, an insurance company may be named as a party to an action for the purpose of seeking declaratory judgment on the question of coverage.” Jackson v. Daley, 739 So.2d at 1038. Rule 57 was amended in 2000 to modify the rule which prohibited any type of direct action by an injured party against an insurer. Poindexter v. S. United Fire Ins. Co., 838 So.2d 964, 967 (Miss.2003). Rule 57 states in pertinent part:

A contract may be construed either before or after there has been a breach thereof. Where an insurer has denied or indicated that it may deny that a contract covers a party’s claim against an insured, that party may seek a declaratory judgment construing the contract to cover the claim.

M.R.C.P. 57(b)(2). In Poindexter, 838 So.2d at 968, we concluded that an insurance company was not a proper party to the lawsuit at issue because the insurance company had not denied coverage:

While the amended Rule 57 permits an injured party to seek a declaratory judgment of coverage, it does not permit an injured party to join an insurance company that has admitted coverage. Southern United has never disputed coverage; the extent of the coverage is an issue that must first be resolved by the trial court in Poindexter’s action against Fields.
Declaratory judgments are meant to “serve a useful purpose in clarifying and settling the legal relations in issue” and “afford[ing] relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Miss. R. Civ. P. 57 cmt. No uncertainty or lack of clarity exists with regard to coverage, so declaratory judgment is inappropriate.

In other words, because it did not deny coverage under the policy, the insurance company was not a proper party to the suit.

¶ 20. Here, we are faced with a similar situation. Under Rule 57, the MMLP would be a proper party to this action only if it denied coverage under the policy issued to Taylorsville. In its brief, MMLP states:

Because of the serious nature of the damages and because the policeman’s liability for the accident seemed debatable, the Mississippi Municipal Liability Plan decided not to contest liability for the claim and interpled the statutory liability limit of $50,000 into the registry of the Chancery Court and sought a discharge from liability for the town.

(emphasis added). Thus, as is readily apparent, MMLP does not deny that Jordan’s claim is covered under the policy it issued Taylorsville. Because it does not dispute coverage under the policy, MMLP is not a proper party to this suit pursuant to our holding in Poindexter.

¶ 21. Next, MMLP asserts that the chancellor erred in holding that MMLP could be liable for the policy limits of $500,000. Statutory interpretation is a question of law that this Court reviews de novo. Roberts v. New Albany Separate Sch. Dist., 813 So.2d 729, 730-31 (Miss.2002). We are therefore not required to defer to the trial court’s ruling. Id. at 731. In addition, we review “errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo.” Fairley v. George County, 800 So.2d 1159, 1162 (Miss.2001).

¶ 22. Under the Mississippi Tort Claims Act (“MTCA”), the State and its subdivisions are amenable to suit, but only to a limited extent:

In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
(a) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993, but before July 1, 1997, the sum of Fifty Thousand Dollars ($50,000.00).

Miss.Code Ann. § 11-46-15 (Rev.2002) (emphasis added). The MTCA also mandates that governmental entities are required to participate in some type of risk-sharing arrangement, either by self insurance, liability insurance, or insurance “pooling”:

(3)All political subdivisions shall, from and after October 1, 1993, obtain such policy or policies of insurance, establish such self-insurance reserves, or provide a combination of such insurance and reserves as necessary to cover all risks of claims and suits for which political subdivisions may be liable under this chapter; except any political subdivision shall not be required to obtain pollution liability insurance. However, this shall not limit any cause of action against such political subdivision relative to limits of liability under the Tort Claims Act. Such policy or policies of insurance or such self-insurance may contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to political subdivisions. All such plans of insurance and/or reserves shall be submitted for approval to the board. The board shall issue a certificate of coverage to each political subdivision whose plan of insurance and/or reserves it approves in the same manner as provided in subsection
(2) of this section.
(4) Any governmental entity of the state may purchase liability insurance to cover claims in excess of the amounts provided for in Section 11-46-15 and may be sued by anyone in excess of the amounts provided for in Section 11-46-15 to the extent of such excess insurance carried; provided, however, that the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only to the extent of such excess liability insurance carried.
(5) Any two (2) or more political subdivisions are hereby authorized to enter into agreement and to contract between and among themselves for the purpose of pooling their liabilities as a group under this chapter. Such pooling agreements and contracts may provide for the purchase of one or more policies of liability insurance and/or the establishment of self-insurance reserves and shall be subject to approval by the board in the manner provided in subsections (2) and
(3) of this section.

Miss.Code Ann. § 11^16-17 (Rev.2002). The policy at issue in this case was created pursuant to Section 11-46-17(5) above.

¶ 23. It is necessary for us to first determine the nature of the MMLP policy at issue here. This determination is essential to our analysis because the applicability of certain MTCA provisions depends on proper classification of the policy. We have held that participation in the MMLP is not the same as obtaining liability insurance. Morgan v. City of Ruleville, 627 So.2d 275, 280 (Miss.1993). Further, we have characterized MMLP as a “risk-sharing pool.” Id. Agreeing with the conclusion reached by Mississippi’s federal courts, we have held that the MMLP is “self-insurance, insufficient to waive sovereign immunity.” Id. at 281. Having classified the MMLP policy, we now consider whether MMLP may be held liable for $500,000, the limits of the policy it issued Taylorsville, despite the applicable MTCA limit on municipal tort liability.

¶24. It is clear that the Legislature envisioned situations in which governmental entities could be held liable for more than the statutory liability limit. However, this is simply not one of those situations. Under Miss.Code Ann. § 11-46-17(4), if a political subdivision purchases liability insurance, it can be sued for amounts exceeding the applicable statutory liability limit. However, the governmental entity is liable only to the extent of the excess liability insurance carried. The important point to note, however, is that this statutory framework applies only when the governmental entity obtains liability insurance, as stated by the plain language of the statute itself. The statute does not state that self-insured governmental entities may be sued for more than the liability limit, nor does it declare that governmental entities that choose to participate in risk-pooling agreements may be sued for amounts in excess of the liability limit. As we have observed, “[wjhatever the [Legislature says in the text of the statute is considered the best evidence of the legislative intent.” Pegram v. Bailey, 708 So.2d 1307, 1314 (Miss.1997). Moreover, this Court has never held that a governmental entity may be sued for amounts exceeding the statutory liability limit merely because that entity is part of a risk-sharing pool or is self-insured. Under the clear language of the statute, such a situation will arise only when a governmental entity carries liability insurance.

¶ 25. The provisions of Miss.Code Ann. § 11-46-17(4), which set out the liability rules for governmental entities that obtain liability insurance, are inapposite where the risk-sharing agreement in question is properly characterized as self-insurance or a risk-sharing pool, which is the case here. Therefore, the statutory liability limit imposed by Miss.Code Ann. § 11-46-15 is still effective to limit MMLP’s liability at $50,000. The learned chancellor erred in concluding that MMLP could be liable in this case for $5000,000. In sum, the chancery court clearly erred in holding that MMLP is liable for the “policy limits” since Mississippi law caps municipal liability at $50,000 for acts or omissions occurring on or after July 1, 1993, but before July 1,1997.

CONCLUSION

¶ 26. We find that the chancellor erred in holding that the MMLP is liable for $500,000. We also find that the Chancery Court of Smith County was without subject matter jurisdiction to hear this case. Moreover, we find that the Mississippi Constitution does not prohibit reversal on jurisdictional grounds. Furthermore, we find that the jurisdictional defect in the case sub judice is plain error requiring reversal. We, therefore, reverse the judgment of the Chancery Court of Smith County, and we remand this case to that court for prompt transfer to the Circuit Court of Smith County for proceedings consistent with this opinion. Upon remand the Chancery Court of Smith County shall also enter an appropriate order transferring to the Circuit Court of Smith County control of the funds in this case deposited in the registry of the court.

¶ 27. REVERSED AND REMANDED.

PITTMAN, C.J., WALLER, COBB AND CARLSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY EASLEY, J. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting.

¶ 28. The chancery court had jurisdiction to hear this case under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2003). Notwithstanding my agreement that the policy in question is a form of a self-insurance plan, the majority has misinterpreted the MTCA in determining that liability here is capped at $50,000. In addition, direct action against MMLP was proper in this ease. Accordingly, I dissent.

CHANCERY COURT JURISDICTION

¶ 29. The Legislature has not precluded the chancery courts from hearing MTCA cases. See Miss.Code Ann. § 11-46-13(1). Therefore, for the reasons stated in detail in my dissents in City of Ridgeland v. Fowler, 846 So.2d 210, 214-19 (Miss.2003) (McRae, P.J., dissenting), and Lawrence County School District v. Brister, 823 So.2d 459, 461-64 (Miss.2001) (McRae, P.J., dissenting), the chancery court had jurisdiction to hear this case.

THE MMLP POLICY

¶ 30. At common law, the State and its subdivisions enjoyed complete immunity from suit through the judicial doctrine of sovereign immunity. In 1982, this Court did away with judicial sovereign immunity in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982). As a result, the Legislature enacted Title 11, Chapter 46, commonly referred to as the Mississippi Tort Claims Act (“MTCA”). The MTCA provides sovereign immunity to the State and its subdivisions and allows for a limited waiver of that protection if certain statutory requirements are met. Miss.Code Ann. §§ 11-46-3, 11-46-5, 11-46-11. The MTCA is the exclusive remedy of a claimant alleging injuries due to the negligence of the State or its political subdivisions and employees. Miss.Code Ann. § 11-46-7. The Act further sets out certain acts for which a government entity and its employees may never be held liable. Miss.Code Ann. § 11-46-9. Even if a political subdivision or government entity has waived sovereign immunity for a certain act of negligence, the MTCA still provides a limitation of liability thereby capping the amount of applicable damages for which it may be held liable. Miss.Code Ann. § 11-46-15.

¶ 31. Taylorsville is a political subdivision which falls under the protections of the MTCA. Miss.Code Ann. §§ 11-46-1®, 11-46-3(1), 11-46-5(1), 11^6-7(1). All statutory requirements have been met, and Taylorsville does not contest any issue with regard to the plaintiffs’ satisfaction of these statutory requirements. Miss.Code Ann. §§ 11-46-11(1), (2), (3), & (4). Immunity is waived to the extent of $50,000 for the negligent acts of Jones, a Taylors-ville employee acting within the scope and course of employment. Miss.Code Ann. §§ 11 — 46—1(f); 11-46-5(1),(2), & (3); 11-46-9(l)(c); ll-46-15(l)(a). Taylorsville concedes that it is liable for $50,000.

¶ 32. However, as the majority states, the issue then turns on the MMLP policy because recovery in excess of $50,000 is still possible depending on the true character of the policy and the terms provided therein. Section 11-46-15 provides that “[ejxcept as otherwise provided in Section 11-46-17(4), in any suit brought under the provisions of this chapter, if the verdict which is returned when added to costs and any attorney’s fees authorized by law, would exceed the maximum dollar amount of liability provided in subsection (1) of this section, the court shall reduce the verdict accordingly and enter judgment in an amount not to exceed the maximum dollar amount of liability provided in subsection (1) of this section.” Miss.Code Ann. § 11-46-15(3) (emphasis added). It is this statement “except as otherwise provided in Section 11-46-17(4)” which creates to the present controversy. Miss. Code Ann. § 11-46-15(3) (emphasis added).

¶ 33. Section 11-46-17 provides for the creation of a Tort Claims Fund to cover claims made against government entities and subdivisions. Miss.Code Ann. § 11-46-17(1). However, this Section also gives municipalities and other government entities the option of opting out of the Tort Claims Fund and electing self-insurance, pooling agreements, and general liability insurance. Miss.Code Ann. § 11 — 46— 17(3),(4), & (5). The applicable portions of Section 11-46-17 specifically provide:

(3)All political subdivisions shall, from and after October 1, 1993, obtain such policy or policies of insurance, establish such self insurance reserves, or provide a combination of such insurance and reserves as necessary to cover all risks of claims and suits for which political subdivisions may be liable under this chapter; except any political subdivision shall not be required to obtain pollution liability insurance. However, this shall not limit any cause of action against such political subdivision relative to limits of liability under the Tort Claims Act. Such policy or policies of insurance or such self-insurance may contain any reasonable limitations or exclusions not contrary to Mississippi state statutes or case law as are normally included in commercial liability insurance policies generally available to political subdivisions. All such plans of insurance and/or reserves shall be submitted for approval to the board. The board shall issue a certificate of coverage to each political subdivision whose plan of insurance and/or reserves it approves in the same manner as provided in subsection (2) of this section. Whenever any political subdivision fails to obtain the board’s approval of any plan of insurance and/or reserves, the political subdivision shall act in accordance with the rules and regulations of the board and obtain a satisfactory plan of insurance and/or reserves to be approved by the board.
(4) Any governmental entity of the state may purchase liability insurance to cover claims in excess of the amounts provided for in Section 11-46-15 and may be sued by anyone is excess of the amounts provided for in Section 11-46-15 to the extent of such excess insurance carried; provided, however, that the immunity from suit above the amounts provided for in Section 11-46-15 shall be waived only to the extent of such excess liability insurance carried.
(5) Any two or more political subdivisions are hereby authorized to enter into agreement and to contract between and among themselves for the purpose of polling their liabilities as a group under this chapter. Such pooling agreements and contracts may provide for the purpose of one or more policies of liability insur-anee and/or the establishment of self-insurance reserves and shall be subject to approval by the board in the manner provided in subsection (2) and (3) of this section.

Miss.Code Ann. § 11-46-17(3), (4), & (5) (emphasis added).

¶ 34. Taylorsville elected not to participate in the Tort Claims Fund and therefore chose to obtain a MMLP policy. The MMLP policy is not an ordinary liability insurance policy as provided for in Section 11-46-17(4). See Perry v. Nationwide Gen. Ins. Co., 700 So.2d 600, 601 (Miss.1997); McCoy v. South Cent. Bell Tel. Co., 688 So.2d 214 (Miss.1996). Since the policy is not per se “liability insurance”, then it must be classified as either a form of “self-insurance or reserve” and/or “pooling agreement policy.”

¶ 35. In Morgan v. City of Ruleville, 627 So.2d 275 (Miss.1993), this Court addressed whether a City’s participation in MMLP was a purchase of insurance sufficient to waive sovereign immunity under Miss.Code Ann. § 21-15-6. Id. at 280. This Court found that the MMLP policy was a form of “self insurance”, therefore sovereign immunity was not waived under Section 21-15-6. Id. at 281. In so finding, this Court characterized the MMLP as a “risk-sharing pool.” Id. (citing Antiporek v. Village of Hillside, 114 Ill.2d 246, 102 Ill.Dec. 294, 499 N.E.2d 1307 (1986); Wesala v. City of Virginia, 390 N.W.2d 285 (Minn.Ct.App.1986)).

¶ 36. However, at the time of the Morgan decision, the MTCA was not applicable since it did not take effect as to the liability of political subdivisions until “from and after October 1, 1993.” Miss.Code Ann. § 11-16-5(1). This Court’s characterization of the MMLP policy as “self insurance” was not in regards to those insurance options provided in Section 11-46-17. If we are to follow Morgan and find the MMLP policy in question to be “self insurance” and/or a “pooling agreement” then the present policy fits under the description of Section 11-46-17(3) or (5) which provides municipalities with the option to provide self insurance through reserves or a pooling agreement.

¶ 37. Morgan is applicable for the holding that a MMLP policy is not a private insurance policy. However, beyond that point Morgan and this case are different. Here we are dealing with a “self insurance” and/or “pooling agreement” which specifically lays out the terms of coverage which statutorily may provide for excess coverage over and above the $50,000 statutory liability. The language which specifically so provides for this excess is found in § 11-46-17(3) which states that “this shall not limit any cause of action against such political subdivision relative to limits of liability under the Tort Claims Act.” This simple sentence proves that the Legislature contemplated and indeed did plan for instances where “self insurance” policies would provide for recovery being the $50,000 statutory limit.

¶ 38. It is clear from precedent that the MMLP policy is a form of “self-insurance” As such, the maximum statutory liability of $50,000 under the MTCA does not operate as a cap when the applicable policy provides for payment beyond the $50,000.

DIRECT ACTION AGAINST INSURANCE COMPANY

¶ 39. The majority concludes that direct action may not be maintained against MMLP in this case because the question is not coverage, but the extent of coverage. However, if it looks like a duck and it walks like a duck and quacks like a duck, I dare say it is indeed a duck. This is a question of coverage and, therefore, is a proper basis for a direct action pursuant to M.R.C.P. 57.

¶ 40. The comment to Rule 57 states that:

The two principal criteria in favor of rendering declaratory judgments are: (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.

Titan Indem. Co. v. Williams, 743 So.2d 1020, 1023 (Miss.Ct.App.1999) (quoting M.R.C.P. 57 cmt.).

¶ 41. The case at bar fits squarely within these criteria. The majority characterizes MMLP’s argument as simply one of the extent of coverage. However, this is not a case where an insurer is accepting coverage, but claiming that the policy limit would be met. Nor is this a case where an insurer is accepting coverage but waiting to see the amount of damages set by the jury-

¶ 42. Instead, here an insurer is claiming that despite a policy limit of $500,000, the Mississippi Tort Claims Act relieves it from paying in excess of $50,000. Such a determination fits within the criteria established for Rule 57, and a direct action in this case was proper.

¶ 43. One final point bears mentioning. I am disheartened that the majority is so inclined to let the defendant in this case to have its cake and eat it too. In one breath the majority tells us that the defendant is not an insurance company and, therefore, it may not be treated as such. Thus, the $50,000 statutory cap may not be exceeded.

¶ 44. However, in the next breath the majority does an about face and tells us that the defendant is entitled to the same treatment as an insurance company and, therefore, a direct action was improper. These two conclusions are contradictory.

¶ 45. If the defendant is an insurer, then the statutory cap is inapplicable. However, if the defendant is not an insurer, then it is not guaranteed the same benefits of an insurer and a direct action may be maintained.

¶ 46. For these reasons, I would affirm the chancery court’s judgment and remand this case for further proceedings in the chancery court.

¶ 47. Accordingly, I dissent.

      . No other complaints are contained in the record for the other plaintiffs; Stuart Love, Hill, and Keyes. The record only contains the answers and defenses of all parties to the complaint for interpleader, their responses to the motion for summary judgment, and their replies to asserted counterclaims. The record also contains a motion to join as a party the estate of Joann F. Jordan; which essentially amounts to the joinder of Love as a party as he is the son of Jordan. This motion was granted by the chancellor.

      . Taylorsville waived any claims as to the denial of liability up to $50,000 and waived any arguments regarding notice sufficiency as required by the Mississippi Tort Claims Act.

      . From and after October 1, 1991, Section 21-15-6 was revised and now provides that "[m]unicipalities are hereby authorized in the discretion of the governing authorities, to purchase errors and omissions insurance for municipal officials and municipal employees.”


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Gary W. MORRISON v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES.
    No. 2001-CT-01088-SCT.
    Supreme Court of Mississippi.
    Jan. 15, 2004.

      Terry Lynn Wood, Corinth, attorney for appellant.
    Vickie R. Mitchell, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. Gary W. Morrison was found in contempt of a child support modification order by the Alcorn County Chancery Court. He appealed on the basis that he had not been served with process. The appeal was assigned to the Court of Appeals, which affirmed as to the general validity of the judgment and reversed and rendered as to the portion of the judgment requiring Morrison to pay educational expenses for a master’s degree. Morrison v. Miss. Dep’t of Human Servs., 852 So.2d 578 (Miss.Ct.App.2002). This Court granted certiorari to consider whether Morrison’s due process rights were violated and whether the Court of Appeals erred in determining his attack on the 1994 order was a collateral attack as opposed to a direct attack.

FACTS AND PROCEEDINGS IN THE TRIAL COURT AND THE COURT OF APPEALS

¶ 2. Gary W. Morrison and Annie Windom had a child, Christopher, in 1974. Pursuant to an order of filiation entered in 1988, Morrison admitted paternity and agreed to pay child support of $25 per week, increased to $50 per week several months later. Morrison also agreed to share educational expenses, including those incurred in Christopher’s obtaining a four-year college degree.

¶ 3. In 1993 and after Christopher had begun attending college, Windom filed a petition for contempt and modification. A summons for Morrison was issued by the chancery court clerk on January 4, 1994, but the record does not contain a return of service and the certified copy of the docket book does not contain an entry indicating there was such a return.

¶ 4. A hearing was held, in the absence of both Morrison and his counsel, on January 19, 1994. The chancellor found Morrison in willful contempt; awarded a judgment of $11,683.04 to Windom for past-due child support, medical expenses and tuition arrearages; increased child support to $125 per week until Christopher obtained a master’s degree or ceased to be enrolled full-time; “sentenced” Morrison to ninety (90) days in jail, held in abeyance with a lump sum payment; and ordered Morrison to pay attorney’s fees and costs. That order contains the language “process having been served on the Defendant [Morrison] in the manner and for the time required by law and the Defendant appearing not....” In February 1994, the Mississippi Department of Human Services (MDHS) filed a petition in Georgia under the Uniform Reciprocal Enforcement of Support Act.

¶ 5. Christopher apparently left college in April 1999, without obtaining his degree. In October 1999, a notice was issued to Morrison for the hearing on amending the order for withholding to set out arrearages only in the amount of $50 per week. In 2000, a second petition for contempt was filed and Morrison, who was apparently this time served with process, responded with a motion to dismiss, asserting that the previous judgment was void because he was never served. The chancellor denied the motion to dismiss and later entered an order finding Morrison in contempt; awarding a'judgment of $49,693.05 for arrearages, to be paid off at $500 per month; and “sentenced” Morrison to ninety (90) days in jail, held in abeyance upon payment of a $1,500 lump sum. Morrison appealed, and the appeal was assigned to the Court of Appeals, which affirmed as to the general validity of the judgment, but reversed and rendered as to the requirement that Morrison pay for expenses related to Christopher obtaining a master’s degree. Subsequently, Morrison filed a petition for writ of certio-rari, which was granted by this Court.

ANALYSIS

¶ 6. Morrison asserts that the Court of Appeals’ decision is erroneous and is in conflict with prior decisions of this Court. Specifically, Morrison argues that his due process rights have been violated and that the Court of Appeals erred in determining his attack on the 1994 order was a collateral attack as opposed to a direct attack.

¶ 7. Child support modification and contempt actions fall under Miss. R. Civ. P. 81(d) and are “triable 7 days after completion of service of process in any manner other than by publication.... ” Miss. R. Civ. P. 81(d)(2). Further, a Rule 81 summons must set out a specific time and place the defendant is to appear. Miss. R. Civ. P. 81(d)(5). A Rule 81 summons was issued in this case directing Morrison to appear at a time and date certain, but there is no proof he was ever served.

¶ 8. Service of a Rule 81 summons by mail can be done either under Miss. R. Civ. P. 4(c)(3) or (5).

(c) Service.
(3) By Mail.
(A) A summons and complaint may be served upon a defendant of any class referred to in paragraph (1) or (4) of subdivision (d) of this rule by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 1 B and a return envelope, postage prepaid, addressed to the sender.
(B) If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such simmons and complaint may be made in any other manner permitted by this rule.
(C) Unless good cause is shown for not doing so, the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons.
(D) The notice and acknowledgment of receipt of summons and complaint shall be executed under oath or affirmation.
(5) Service by Certified Mail on Person Outside State. In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.

Miss. R. Civ. P. 4(c)(3),(5) (emphasis added).

¶ 9. Additional return requirements are set out in Rule 4(f):

(f) Return. The person serving the process shall make proof of service thereof to the court promptly. If service is made by a person other than a sheriff, such person shall make affidavit thereof. If service is made under paragraph (c)(3) of this rule, return shall be made by the sender’s filing with the court the acknowledgment received pursuant to such subdivision. If service is made under paragraph (c)(5) of this rule, the return shall be made by the sender’s filing with the court the return receipt or the returned envelope marked “Refused”. Failure to make proof of service does not affect the validity of the service.

Miss. R. Civ. P. 4(f).

¶ 10. There is no return for proof of seiviee in the record, only the blank proof of service form. The clerk’s docket book does not indicate any return ever being received or filed. Also, the record is unclear as to which provision of Rule 4 under which service was even attempted.

¶ 11. Morrison asserts that since he attacked the 1994 order upon first learning in 2000 of its existence, his action is a direct attack on the order. The Court of Appeals found differently:

Morrison waited six years to attack the 1994 contempt and modification order. This constitutes a collateral attack on the former judgment.
In a direct attack on a decree it is, of course, competent to show that there was no service of summons, but in a collateral attack, as is here made, unless the record affirmatively shows to the contrary, all jurisdictional facts are conclusively presumed to have existed, including the proper service of process. It is not enough that the return of service is merely missing from the record' — and that is all that is shown here.

Morrison, 852 So.2d at 581 (¶ 11) (citing Bray v. City of Meridian, 723 So.2d 1200, 1204 (Miss.Ct.App.1998), quoting Whitley v. Towle, 163 Miss. 418, 425-26, 141 So. 571, 572 (1932)).

¶ 12. The Court of Appeals further found that Morrison could not successfully make a collateral attack.

To set aside the six-year old judgment in 2000, Morrison needed to make an affirmative showing of failure to serve. Among such affirmative showings would be a returned envelope with the summons showing that it was undeliverable, or a return of service from a process server that the defendant could not be found or that the address was incorrect. An “affirmative” showing of failure to serve as required for a collateral attack does not mean simple silence in the record. That is not an “affirmative” — defined as “that which declares positively, the opposite of negative.” BLACK’S LAW DICTIONARY 60 (6th ed. 1990). If declaring affirmatively is the opposite of declaring negatively, then silence is in the precise middle. Nothing is declared at all. The sounds of silence are not the equivalents of declarations.

Morrison, 852 So.2d at 581(¶ 12). The Court of Appeals likewise pointed out that the issue would be moot if the docket entry had revealed a return. Further, the Court of Appeals’ majority opinion stated that “as the passage of time from a judgment continues, it may become increasingly difficult to prove the validity of such matters as service.” Id. at 582 (¶ 16). Both Morrison and the Court of Appeals cite various other cases, some of which are addressed herein.

¶ 13. The Court of Appeals cited Bray and Whitley as controlling. However, we disagree. In Bray, the Court of Appeals held that Mr. Bray received adequate notice where his wife was served, as evidenced by a certified mail return receipt, in a matter concerning their joint property. There is no evidence of a return of any kind in the case sub judice, which clearly distinguishes this case from Bray. Further, the emphasis in Whitley and other cases regarding the collateral vs. direct attack issue is somewhat misplaced. The record supports Morrison’s assertion that he attacked the judgment upon learning of it. To then conclude that because Morrison waited so long that he could not successfully challenge service of process is improper. Morrison could not have been waiting to attack a judgment of which he was unaware. Further, even if the attack is collateral, the standard is that jurisdictional facts are presumed to have existed unless the record affirmatively shows to the contrary. See Whitley, 141 So. at 572. See also In the Matter of the Will of Case v. Case, 246 Miss. 750, 150 So.2d 148 (1963); Federal Reserve Bank of St. Louis v. Wall, 138 Miss. 204, 105 So. 5 (1924). Also, the nature of the attack does not preclude a finding that a judgment is void.

What is presented in the instant case is a collateral attack on the decree under Rule 60. The claim is that the judgment is void as against public policy. This Court has stated that a judgment is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.

Miss. Dep’t of Human Servs. v. Shelby, 802 So.2d 89, 96 (Miss.2001) (citations omitted).

¶ 14. There exists a constitutional right to due process. However, the Court of Appeals’ majority opinion evidently concludes that the lack of a return cannot constitute an affirmative showing of failure to serve. If that were the case, a defendant would never need to actually be served so long as no return was filed. Also, as stated by Judge Brantley in his dissent, the fact that the proper summons was issued in no way indicates that the defendant was served. Further, the majority’s analysis contradicts Miss. R. Civ. P. 4(c)(3) and (5), which are quoted above and establish that no acknowledgment or return receipt of service by mail means no service and that the sendee can then be attempted by other means.

¶ 15. The record clearly reveals that here the return was not received and then lost or misplaced. Not only is there no return in the record, but there is mo entry in the docket book indicating that there ever was a return. At the May '29, 2001, hearing which resulted in the chancellor’s subsequent entry of the judgment which is the subject of today’s appeal, Morrison testified that he was not served with process. The plaintiff did not introduce any evidence to contradict that evidence other than a copy of the order containing the standard form language of “process having been served on the Defendant in the manner and for the time required by law and the Defendant appearing not ...” without specifying how or when the defendant was served. No money was ever collected on the judgment. Windom testified that she had never contacted Morrison’s mother, who lived near her, to inquire as to Morrison’s address; and, there were several discrepancies in the addresses which Windom asserted as belonging to Morrison. Thus, unlike the record in Whitley, the record before us today affirmatively shows the existence of facts more than sufficient to rebut the presumption of jurisdiction. In other words we are unable to find that “all jurisdictional facts are conclusively presumed to have existed,” because indeed the record “affirmatively shows to the contrary.”

¶ 16. This Court has found a violation of due process where a Rule 4 alias summons was served rather than a Rule 81 summons. See Powell v. Powell, 644 So.2d 269 (Miss.1994). This Court has also held that jurisdiction is not obtained by a defendant’s informally becoming aware that a suit has been filed and that a complete absence of service of process offends due process and cannot be waived. Mansour v. Charmax Indus., Inc., 680 So.2d 852, 854-55 (Miss.1996).

¶ 17. This Court has previously addressed a similar issue in Hamm v. Hall, 693 So.2d 906 (Miss.1997). In Hamm, the out-of-state defendant, Hamm, was served by publication in a divorce action with a copy of the summons mailed-by first-class mail to his supposed out-of-state address. Hamm did not file an answer or enter an appearance, and a judgment was entered against him imposing child support. Latet, the plaintiff filed a contempt and modification action, which Hamm moved to strike, asserting that the trial court lacked personal jurisdiction over him in the original action and that the child support order'was void. The chancellor denied the motion, and on appeal this Court held that (1) the trial court lacked jurisdiction over Hamm in the original action;. -(2) the fact that Hamm made child support payments after he received the divorce decree did not result in waiver of his objection that such order was void; and, (3) that Hamm was not required to take an interlocutory appeal. Hamm had an additional factor of service by publication, but it was service by publication and the mailing of the summons. Here, Morrison did not even get the benefit of service by publication. In Hamm, this Court found service by publication under Miss. R. Civ. P. 4(c)(4)(C) did not authorize the rendition of a personal judgment against the defendant without his appearance. See Noble v. Noble, 502 So.2d 317 (Miss.1987). A valid judgment imposing a personal obligation or duty in favor of the plaintiff may only be entered by a court having personal jurisdiction over the defendant. Personal jurisdiction depends on the presence of reasonable notice to the defendant and a sufficient connection between the defendant and the forum. See Kullco v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).

¶ 18. In the case sub judice, there is no suggestion that Morrison waived any due process violation. The trial court alluded to the fact that Morrison must have had knowledge of the judgment because repeated attempts were made to enforce it. We disagree with that suggestion. The record indicates those repeated attempts were unsuccessful, so there is no logical way that these unsuccessful efforts could establish notice. However, even if Morrison knew about the judgment or even paid child support during that time period, it would be of no moment inasmuch as the judgment is void.

¶ 19. The Court of Appeals’ decision conflicts not only with the aforementioned cases, but also with previous decisions of the Court of Appeals. The majority “merely notes” the inconsistency with Reichert v. Reichert, 807 So.2d 1282 (Miss.Ct.App.2002), which is also relied upon in the dissent. In Reichert, a petition for contempt was filed against the out-of-state defendant, Wallace Reichert, in a divorce action. Reichert was personally served with a notice of hearing, indicating the date and time of the hearing, and a copy of the petition. Reichert denied that he received the notice. The record did not reflect that a summons was issued, but the sworn return stated that Reichert was served with a copy of the summons and complaint. In its analysis, the Court of Appeals found that the lack of a summons in the record “affirmatively contradicts the existence of a summons.... ” Id., at 1288. The Court of Appeals held there that, although the chancery court had personal jurisdiction over Reichert in the contempt matter, sufficient evidence contradicted any presumption that Reichert had been served with a summons; the notice of hearing did not satisfy the requirements for a summons; and, the judgment was void.

¶ 20. Another Court of Appeals decision, Sanghi v. Sanghi, 759 So.2d 1250 (Miss.Ct.App.2000), is also noteworthy. In Sanghi, the court held that the former husband did not receive adequate notice of a petition of contempt when he only received a notice of court setting from the court administrator. There was no question that Sanghi received the notice because he contacted the court administrator and successfully changed the date of the hearing, but the Court of Appeals held that such notice did not meet the requirement that the defendant be served with a Rule 81 summons.

¶ 21. This Court and the Court of Appeals have found due process violations where, absent waiver, service was made or notice was provided, but not under Rule 81. Here, Morrison argues that he received no notice of any kind. Under the applicable law, we find that the record supports Morrison’s claim that his due process rights were violated and that the judgment of contempt is thus void. We further find that the Court of Appeals’ decision affirming the Chancery Court of Alcorn County’s judgment of contempt, as to all issues except the educational expenses, was improper and is reversed. We vacate the chancery court’s contempt judgment and reverse and render its judgment requiring Morrison to pay educational expenses for a master’s degree.

¶ 22. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AS TO THE EDUCATIONAL EXPENSES ISSUE AND REVERSED IN PART AS TO ALL OTHER ISSUES; THE JUDGMENT OF THE CHANCERY COURT OF ALCORN COUNTY OF WILLFUL CONTEMPT OF COURT IS VACATED; AND THE JUDGMENT OF THE CHANCERY COURT OF AL-CORN COUNTY IS REVERSED AND RENDERED AS TO THE EDUCATIONAL EXPENSES ISSUE.

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

      . Southwick, P.J., wrote for the Court of Appeals. McMillin, C.J., Thomas, Irving, Myers and Chandler, JJ., concurred. Brantley, J., dissented with separate written opinion joined by King, P.J., Bridges and Lee, JJ.

      . The Court of Appeals cites the amount as $46,693. Morrison, 852 So.2d at 580(¶ 7).


author: WALLER, Presiding Justice,

text:
    ILLINOIS CENTRAL RAILROAD COMPANY, Herbert Bennett and J.R. Wright v. Bertha Lee WINTERS; Demetrius Hawkins; Lucious Robinson, Individually, and as Father and next friend of Shuntai Robinson, Sherita Robinson and Juanita Robinson, Minors; Kevin Mabry; Tibithal O. Selders; Alvin P. Haymer; Dennis Haymer; Ira Haymer; Miller Haymer; Annette Haymer Fort; Larry Haymer; and Stephanie Haymer Perkins.
    No. 2002-CA-01793-SCT.
    Supreme Court of Mississippi.
    Jan. 15, 2004.

      Glenn F. Beckham, Greenwood, Christopher W. Winter, Edward Blackmon, Jr., Canton, attorneys for appellants.
    Pat M. Barrett, Lexington, Derek Arthur Wyatt, Gulfport, Hiawatha Northing-ton, attorneys for appellees.
    Before PITTMAN, C.J., WALLER, P.J., and GRAVES, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This is the second appeal to this Court regarding a discovery dispute in this case. In the first appeal we affirmed the trial court’s finding of contempt against Illinois Central Railroad Co. (ICR), but found the amount of attorneys’ fees and expenses of over $47,000 excessive, and remanded to the trial court to reassess the amount. Ill. Cent R.R. v. Winters, 815 So.2d 1168 (Miss.2002) (Winters I). On remand, the trial court assessed approximately $5,900.00 in fees and expenses against ICR. ICR appeals, arguing that the expenses were not actually caused by its failure to attend the scheduled depositions. We affirm the trial court’s award.

FACTS

¶ 2. The facts are taken from Winters I, 815 So.2d at 1170-71:

In September of 1994, a train owned by Illinois Central Railroad Company collided with a car in Holmes County, Mississippi, resulting in the death of three persons. The following year, numerous plaintiffs (the heirs) initiated, inter alia, a wrongful death action in the Circuit Court of Holmes County against Illinois Central and its engineer and conductor, Herbert Bennett and J.R. Wright.
This appeal concerns a contempt judgment and sanctions, including the assessment of attorney’s fees and expenses, entered against Illinois Central for disobeying a court order to produce certain high-level corporate officers (the executives) for depositions. The heirs’ underlying action for wrongful death against Illinois Central was tried in September of 2000, and the heirs won a multi-million dollar verdict. That verdict is not a part of this appeal.
Aggrieved by the contempt judgment and sanctions, Illinois Central appeals, ... asserting that the circuit court either erred or abused its discretion in the following actions:
We conclude that the circuit court abused its discretion in denying Illinois Central’s motion for protective order and ordering the depositions to go forward. But we further conclude that the circuit court did not abuse its discretion in finding Illinois Central in civil contempt. However, because the circuit court erred in awarding expenses in excess of what is permitted under Miss. R. Civ. P. 37, we reverse and remand so the court can reduce the award of fees and expenses to include only that amount which was actually caused by Illinois Central’s failure to produce the executives and attend the July 12 and 14 depositions.
After the heirs’ complaint was filed in 1995, the parties proceeded with discovery and other pre-trial proceedings for almost a year. Then in April 1996, the circuit court entered an order staying discovery pending the completion of parallel proceedings in chancery court to determine the identities of the heirs at law and wrongful death beneficiaries. The stay was subsequently lifted in October 1998, and discovery resumed. In March 1999, after a hearing, the circuit court determined the discovery deadline would be July 1, 1999, and could only be extended by permission of the court with a showing of “good cause.”
One week prior to the discovery deadline, on June 23, 1999, the heirs filed a notice to depose six executives on June 29, in Jackson, Mississippi, and seven executives on July 1, in Chicago, Illinois. The heirs also filed a motion to extend the deposition deadline. The heirs claimed that they had discovered the identities of various individuals employed by Illinois Central who had held critical positions with the company at the time of the accident. They claimed they did not discover this information until June 15, 1999, while conducting a Miss. R. Civ. P. 30(b)(6) deposition of one of Illinois Central’s employees.
On June 28, Illinois Central filed a motion for protective order, response in opposition to the heirs’ motion to extend discovery, and motion for time to file a complete response and brief. That same day around 5 p.m., via a conference call between the parties and the court, the circuit court extended the discovery deadline to July 21, and told Illinois Central to get any motions that it had to the court before that deadline. Also on June 28, the heirs renoticed twelve of the thirteen previously noticed executives: six of them for Monday, July 12, in Chicago and six of them for Wednesday, July 14, in Jackson. On July 7, the circuit court, by order, set the hearing on Illinois Central’s motion for protective order and motion to reconsider extending discovery, for August 25, 1999 (more than a month after the dates noticed by the heirs for depositions in Jackson and Chicago).
On Friday, July 9, without benefit of the scheduled hearing on the motions, the circuit court denied Illinois Central’s motion for protective order and ordered the depositions to go forward as noticed the following week. The next day, Saturday, Illinois Central notified the heirs by fax that their attorneys, “will not be in Chicago on Monday or Jackson on Wednesday, and the Plaintiffs should not incur any expense in making that trip.” The heirs did not heed this advice and showed up for both depositions as scheduled. On Monday, July 12, Illinois Central filed a motion for reconsideration of denial of the protective order. Four days later, the heirs filed a motion to compel discovery and for sanctions.

The trial court heard both Illinois Central’s motion for reconsideration, and the heirs’ motion to compel and for sanctions, on August 2, 1999. The court found Illinois Central in contempt of court for disobeying the court’s July 9th order, and ordered sanctions, including the assessment of attorney’s fees and expenses related to the depositions which Illinois did not attend on July 12 and 14. The circuit court also granted the heirs’ motion to compel and ordered Illinois Central to pay all costs associated with the rescheduled depositions. These rescheduled depositions were conducted in August and September, at times and places mutually agreed to by the parties.

On August 9, Illinois Central filed a petition for writ of mandamus with this Court, asking: to stay all proceedings pending Supreme Court review of the contempt appeal; to remove the circuit court judge from the case; and to prohibit the remaining depositions. The circuit court filed a response. Illinois Central then filed a motion to correct the factual inaccuracies contained in the circuit court’s response to the petition. This Court denied Illinois Central’s petition for mandamus on September 29, 1999.

The heirs subsequently submitted itemized fee and expense records, for both the scheduled depositions that Illinois Central did not attend and the rescheduled depositions. The total award of fees and expenses assessed against Illinois Central by the circuit court came to over $47,000, plus interest. This award was made directly to the two law firms representing the heirs. The Byrd law firm was awarded $19,398.15, and the Barrett law firm was awarded $28,109.11.

¶ 3. We found that the heirs failed to give reasonable notice for the July 12 and 14 depositions, and the trial court abused its discretion in denying ICR’s motion for a protective order and ordering the depositions to proceed. Nonetheless, we held the trial court did not commit manifest error in finding ICR in contempt for failure to make any effort to comply. Id. at 1182-83. We reversed the award of expenses and remanded to the trial court to reduce the amount of the award to the reasonable expenses which were actually caused by ICR’s failure to attend the first round of scheduled depositions in Chicago. Id. at 1183. On remand, Byrd documented his expenses as $4,378.18 and Barrett documented his expenses as $4,278.81. The trial court awarded Barrett $3,392.15 of his requested $4,278.81 and Byrd $2,514.18 of his requested $4,378.18, finding that the expenses incurred were a direct result of ICR’s failure to attend the depositions. ICR appeals, arguing that the expenses were not actually caused by its failure to attend the first round of scheduled depositions in Chicago.

STANDARD OF REVIEW

¶ 4. The trial court has considerable discretion in the imposition of sanctions for matters pertaining to discovery, and its orders will not be disturbed in the absence of an abuse of discretion. Kilpatrick v. Miss. Baptist Med. Ctr., 461 So.2d 765, 767 (Miss.1984).

DISCUSSION

¶ 5. ICR argues that the costs assessed by the trial court were not directly caused by its failure to attend the scheduled depositions. It contends that the heirs had notice that it would not be able to attend the depositions and that the heirs had a duty to mitigate their expenses.

¶ 6. It is well established that a party has a duty to mitigate its damages. See Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1162 (Miss.1992); Pelican Trucking Co. v. Rossetti, 251 Miss. 37, 167 So.2d 924, 927 (1964); Yazoo & M.V.R. Co. v. Fields, 188 Miss. 725, 195 So. 489, 490 (1940). This duty also applies to discovery sanctions.

When the sanctions award is based upon attorney’s fees and related expenses, an essential part of determining the reasonableness of the award is inquiring into the reasonableness of the claimed fee. Recovery should never exceed those expenses and fees that are reasonably necessary to resist the offending action.... In assessing the damage done, the court should consider the extent to which it is self inflicted due to the failure to mitigate.

Fujimoto v. Au, 95 Hawaii 116, 19 P.3d 699, 751 (2001).

¶ 7. ICR states that the heirs purposefully incurred expenses when they traveled to Chicago knowing that ICR would not be there. It contends that the heirs could easily have chosen to schedule a different date for the depositions or waited until Monday and filed a contempt motion but instead chose to incur nearly $6,000 in unnecessary expenses.

¶ 8. The issue of whether ICR was in contempt was decided in Winters I. Here, our discussion is limited to addressing the amount of sanctions, and under the standard of review, the trial court did not abuse its discretion in assessing expenses against ICR. We found in Winters I that ICR did not make a good faith effort to comply with the trial court’s discovery order. “Instead of making a good faith effort to comply with the court order it believed was unreasonable and impossible, [ICR] made no effort at all.” 815 So.2d at 1181. We directed the trial court to award reasonable expenses which were actually caused by ICR’s failure to attend the scheduled depositions. Id. at 1183. As to what are reasonable expenses, we stated “[t]he only reasonable expenses caused by the failure in this ease were those expended on the first scheduled depositions which Illinois Central did not attend .... [t]hus, the sanctions should have been only for the purpose of compensation in order to make the heirs whole again,....” Id. at 1181-82.

¶ 9. We reject ICR’s contention that the heirs failed to mitigate their expenses by traveling to Chicago for the depositions after ICR notified them that it would not attend. The trial court had previously denied ICR’s motion for a protective order and directed that the depositions proceed as scheduled. The heirs acted reasonably in reliance on that order while ICR chose not to comply.

¶ 10. The expenses awarded by the trial court on remand were reasonable and well documented. The expenses incurred consisted of round trip air fare from Jackson to Chicago, cab fare, hotel expense, deposition service fee, and travel time. We find that the expenses incurred were a direct result of ICR’s failure to attend the scheduled depositions.

CONCLUSION

¶ 11. Finding no abuse of discretion by the trial court, we affirm the trial court’s judgment.

¶ 12. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.