author: SMITH, Chief Justice, for the Court.

text:
    ENTERGY MISSISSIPPI, INC. v. Carolyn January HAYES, Individually and as Administrator of The Estate of Lavonne Hayes, Deceased; Javary Lagman January and Lavonne Quintarious Hayes, Minors, by and through Carolyn January Hayes, Mother and Natural Guardian of Javary Lagman January and Lavonne Quintarious Hayes, Minors; and Alvonta Palmer and Tanquinika Palmer, Minors, by and through Bertha Palmer, Mother and Natural Guardian of Alvonta Palmer and Tanquinika Palmer, Minors.
    No. 2002-CA-00314-SCT.
    Supreme Court of Mississippi.
    April 22, 2004.
    Rehearing Denied June 24, 2004.

      John H. Dunbar, Oxford, James W. Snider, Jackson, Walter Alan Davis, attorneys for appellant.
    Warren Leon Conway, Gulfport, Marshall E. Sanders, Vicksburg, attorneys for appellees.
   SMITH, Chief Justice, for the Court.

¶ 1. In this wrongful death case, the jury returned a verdict awarding damages to the beneficiaries of Lavonne Hayes, but the trial court reallocated fault and ordered a new trial on damages only. En-tergy of Mississippi, Inc. (EMI) appealed the trial court’s final order. We find that there was sufficient evidence of liability against EMI to support the jury verdict, that the trial court erred by reallocating to EMI all causal fault allocated by the jury in the first trial to Jim Avis and Associates, Hayes’s immune employer, and that the trial court erred by granting a new trial on the sole issue of damages. Therefore, we reverse the judgment against EMI the amount of $6,854,707.02 and render judgment reinstating and affirming the judgment against EMI in the amount of $169,175.00.

FACTS

¶ 2. On October 20, 1994, Lavonne Hayes was electrocuted while he was performing renovation work at a sewage lift station in Anguilla, Sharkey County, Mississippi. Hayes and co-worker Jerry Led-low were guiding a twenty-one-foot pipe with a two-inch diameter into a hole when the pipe made contact with an EMI uninsulated overhead power line, carrying a voltage of 8,000 to 13,000 volts.

¶3. Hayes’s widow, Carolyn January Hayes, and his four children, Javary Lag-man January (“Bondy”) and Lavonne Quintarious Hayes, by and through their mother, Carolyn January Hayes, and Tan-quinika Palmer (“Shay”), and Alvonta Palmer (“Roy”), by and through their mother, Bertha Palmer, (Plaintiffs) filed a wrongful death action against Entergy Mississippi, Inc. (EMI) on October 14, 1997, for the death of Lavonne Hayes. The case went to trial on March 22, 2000.

¶4. Ledlow testified that he was unaware that there were power lines overhead and that he did not hear anyone give a warning about the power lines to him or to Hayes. No evidence of warning signs on the premises was introduced.

¶ 5. When the power lines were originally constructed in 1974, they were not directly over the lift station. In 1986, the power lines were moved to their current location. The two live wires over the lift station measured 19.37 feet and 23.17 feet above the ground. The pipe came into contact with the higher of the two.

¶ 6. The plaintiffs’ expert witness was William Adams in the field of electrical engineering. Adams had been a consulting engineer for 44 years and had previously performed electrical design work at Maxwell and Keesler Air Force Bases. He had previously been qualified and had testified as an expert witness in Mississippi courts numerous times. EMI did not present expert testimony to contradict Adams.

¶ 7. To prepare for his testimony, Adams visited the accident site and reviewed depositions of three people who had been designated by EMI as individuals having relevant knowledge of this case.

¶ 8. Adams testified that the National Electrical Safety Code (NESC) sets forth minimum safety standards for outside electrical installations. He testified that the NESC minimum clearance standards did not apply to the type of work being performed on the day of the accident, specifically that the twenty-foot minimum clearance standard did not apply in this case. Adams testified that NESC standard 012 applied, which required that “construction and maintenance [of power lines] should be done in accordance with accepted good practice for the given local conditions.” He testified that the minimum clearances “would not apply and that further, safer methods of construction would have to be used.”

¶ 9. Adams testified that the power line became more dangerous when it was moved in 1986 to a point directly over the sewage lift station. Adams testified that any of the following safety measures could have been employed to reduce the hazard of the power line: insulating the lines, posting warning signs, putting streamers or ball on the lines, burying the lines, or moving the transformers and running low-voltage conductors to the various customers’ locations.

¶ 10. Additionally, Adams testified ábout the foreseeability of an accident such as the one in question. He based his testimony on a consultation with a mechanical engineer, who told him “it was not surprising that they were using twenty to twenty-two-foot lengths of pipe to be replaced or maintained, ... [and] it was not surprising that they got a pipe and a backhoe up into the power line.” Adams stated maintenance on the sewage lift station is a regular occurrence. Adams further stated he had received conflicting reports about whether Jim Avis and Associates had notified EMI that work would be performed at the site.

¶ 11. The plaintiffs presented extensive testimonial evidence of the relationship each had with Hayes and their suffering as a result of his death in support of their damages claim for loss of love, society, and companionship. Additionally, Mrs. Hayes testified about her physical health problems. Testimony was also offered that Hayes’s daughter Shay has schizophrenia and will be dependent on her family for the rest of her life.' Finally, evidence was also offered to show that Lavonne, Hayes’s youngest child, is permanently mentally disturbed.

¶ 12. The case went to the jury, and the jury returned a verdict for EMI. However, when the jury was polled, less than nine jurors stated they agreed with the verdict. Cf. M.R.C.P. 48(a). Therefore, the court instructed the jury to continue deliberations.

¶ 13. The jury returned with a second verdict that withstood polling. This verdict awarded damages of $505,000 and apportioned fault three ways: 34% to Jim Avis and Associates (Avis), 33% to Lá-vonne Hayes, and 33% to EMI.

¶ 14. On May 23, 2000, the trial court entered judgment against EMI for $169,175.00. The plaintiffs filed motions seeking the alternative relief of a new trial on the sole question of damages, a new trial on all issues, the entry of judgment as a matter of law on the liability of Jim Avis and Lavonne Hayes, or for an additur. They argued that the trial court erred in allowing the consideration of contributory negligence of Jim Avis, because the evidence was insufficient on both issues. EMI also filed a post-trial motion requesting a judgment notwithstanding the verdict.

¶ 15. The trial court denied EMI’s motion for a judgment notwithstanding the verdict; the court also denied the plaintiffs’ motions for additur and for a new trial on all issues. Without ruling the damage award was inadequate, the court ordered a new trial on damages.

¶ 16. The trial court ruled that it had erred by allowing the jury to allocate the causal fault of Avis. The court sua sponte reallocated fault to EMI of 67%. The court based its ruling on Accu-Fab & Construction, Inc. v. Ladner, 778 So.2d 766 (Miss.2001) (Accu-Fab), which the court stated had been released one week before the trial at issue; however, Accur-Fab was handed down in February of 2001, which is almost one year after the case at hand went to trial. Subsequently, Accu-Fab was overruled by Mack Trucks, Inc. v. Tackett, 841 So.2d 1107, 1115 (Miss.2003) (Mack Trucks II) in March of 2003.

¶ 17. After the new trial for damages, the jury returned a verdict of $10,230,906.00, upon which the court rendered judgment on November 27, 2001. Of that amount $10,000,000.00 was for the plaintiffs’ loss of love, society, and companionship.

¶ 18. Following the second trial, EMI filed post-trial motions including a motion for judgment notwithstanding the verdict, an alternative motion to amend the second judgment and reinstate the original judgment, and an alternative motion for a new trial or remittitur. The trial court denied all of EMI’s motions.

ANALYSIS

I. WHETHER THERE WAS SUFFICIENT EVIDENCE OF LIABILITY AGAINST EMI TO SUPPORT THE JURY VERDICT.

¶ 19. As to jury verdicts in civil cases, we have said that we will not direct a judgment to be entered contrary to the jury verdict unless we have concluded that “given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.” Busick v. St. John, 856 So.2d 304, 307 (Miss.2003) (citing Snapp v. Harrison, 699 So.2d 567, 569 (Miss.1997); Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997)). See also Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 151-52 (Miss.1997) (this Court resolves all conflicts of evidence in the appellee’s favor).

¶ 20. EMI argues the plaintiffs offered no evidence of the standard of care. EMI bases its argument on the premise that “[i]n a case alleging liability for professional negligence of an engineer, there must be some testimony as to what the standard of care was”; however, the plaintiffs’ complaint did not allege the professional negligence of an engineer. The complaint alleged that public utility EMI and its agents breached the “duty to install and maintain its energized, electrical lines in a manner and elevation so as to insure that those performing foreseeable tasks there under with due regard to their own safety would not come into contact with the same ...” and that EMI “negligently failed to warn of the danger of its highly energized electrical lines and the dangers associated therewith and negligently failed to isolate, insulate, and guard its lines from those performing such service work....”

¶21. The plaintiffs’ expert witness, Adams, testified as to what the standard of care required, according to the NESC. EMI offered no evidence to rebut the expert’s testimony; rather, EMI argues that because the expert did not state the course of action the original designer should have taken, no standard of care was offered.

¶ 22. In earlier cases alleging negligence of an electrical power distributor, this Court has not required that an expert testify as to what specific act an electricity distributor would have performed, other than some action' that would correct or remove the reasonably foreseeable danger, to establish the standard of care. In Read v. Southern Pine Electric Power Ass’n, 515 So.2d 916, 919 (Miss.1987), we said,

With regard to duty, Read alleged and SPEPA admitted that SPEPA was in the business of distributing electricity. As a power company, SPEPA, though not an absolute insurer against injury, was under the highest duty of care in distributing electricity. Upton v. Magnolia Electric Power Assoc., 511 So.2d 939 (Miss.1987); City of Starkville v. Harrison, 418 So.2d 51 (Miss.1982); Mississippi Power & Light Co. v. Shepard, 285 So.2d 725 (Miss.1973). When a cause of danger is reasonably foreseeable caused by and known to the power company, the company must exercise reasonable care to correct or remove the cause of danger. Shepard, 285 So.2d at 729. This standard of care applies whether the injury is to persons or to property. Mississippi Power Co. v. Luter, 336 So.2d 753, 756 (Miss.1976).

Very recently, this Court decided issues in a case with very similar facts to this case; in Ware v. Entergy Mississippi, Inc., — So.2d -, -, 2003 WL 23096029, *9 (Miss.2003), we stated:

“Public policy in Mississippi requires utilities to exercise a very high degree of care in protecting the public from the dangers of electricity.” Entergy Mississippi, Inc. v. Burdette Gin Co., 726 So.2d 1202, 1208 (Miss.1998); Shepard, 285 So.2d at 729. There is also a duty on power companies to anticipate and guard against events which may be reasonably expected to occur, and the failure to do so is negligence, even though the power company may not anticipate the identical injury that occurs. Id. at ,729 (citing 29 C.J.S. Electricity § 38, 1058-1059 (1965)).

While the NESC provides minimum guidelines and “the basic provisions that are considered necessary for the safety of employees and the public under the specified conditions,” those mínimums are “not intended as a design specification or as an instruction manual.” NESC, Section 1, ¶ 010. We have recognized that a violation of the minimum standards established by the NESC constitutes negligence per se. See Gifford v. Four-County Elec. Power Ass’n, 615 So.2d 1166, 1172 (Miss.1992). While we have held that there is no negligence per se for a utility company which has complied with the minimum safety standards of the NESC, we have said that compliance is not conclusive as to the question of due care in a particular set of circumstances. Galloway v. Singing River Elec. Power Ass’n, 247 Miss. 308, 152 So.2d 710, 712 (1963).

¶ 23. Here, the expert witness did testify that EMI should have known what activity may take place under the lines in the ordinary course of what goes on at a lift station. Also, he testified that EMI had a duty to make the lines as safe as possible. In making the lines safer, he listed several things that could have been done, any of which would have made the situation safer: warning orally, warning in writing, posting signs, insulating the line, putting streamers on the line, putting aircraft balls on the line, burying the cable, placing the cable in concrete, backing off from the location and running lower voltage conductors to various customers. None of those were done, and, in fact, when the lines were moved in 1986, the situation was made more dangerous, according to the expert. We find the expert’s testimony adequate to prove what standard of care was required and enough to create a jury question as to whether the duty had been breached and proximately caused the injury.

¶ 24. Additionally, EMI argues that there was no evidence that any breach of standard of care was a proximate cause of Hayes’s death. To support this argument, EMI claims the plaintiffs did not prove EMI’s wrongful conduct was the cause-in-fact of the decedent’s and that the death was not foreseeable. As to the issue of cause-in-fact, it is not a stretch to see that “but-for” the lines being directly over the lift station, the metal pipe being used in the lift station’s maintenance would not have come into contact with it, causing Hayes’s electrocution.

¶ 25. In Mississippi Power & Light Co. v. Shepard, 285 So.2d 725, 734-35 (Miss.1973), we relied on the holding in a much earlier case, Southern Pine Electric Power Ass’n v. Denson, 214 Miss. 397, 57 So.2d 859, 59 So.2d 75 (1952), which is factually similar to the present case. In Southern Pine Electric Power Ass’n, the plaintiffs decedent was electrocuted while he was removing a section of well pipe 21 feet in length and a strainer five feet in length, totaling 26 feet, from his well. The top section of the well pipe came into contact with the defendant’s 7,620 volt primary transmission line strung at a height of 25 feet almost directly over the well. 57 So.2d 859. In affirming the verdict for the plaintiff, this Court noted:

A fair statement of the rule as regards liability of power companies in the erection and maintenance of their wires is stated in 18 Am. Jur., Electricity, par. 53, pages 448-9, to wit: ‘ * * * they are bound to anticipate only such combinations or circumstances and accidents and injuries therefrom as they may reasonably forecast as likely to happen, taking into account their own past experience and the experience and practice of others in similar situations, together with what is inherently probable from the condition of their appliances as they relate to the conduct of their appliances business,’ ...

Id. at 862. Subsequently, this Court found that the power company should have reasonably foreseen at the time of the power line construction and placement almost directly over the well that the deceased would do work in and about his well, exposing him to danger from its lines, if the line was only 25 feet above the ground. Id. We held:

Electricity is a highly dangerous agency, and it must be denominated negligence to erect so close to the well a high voltage line, unless insulated, or unless, in the exercise of the highest degree of care, it was [strung] high enough off of the ground reasonably to prevent injury to him.’

Id. Just two years later, when a nearly identical accident came before this Court, we declared:

Appellant should have reasonably anticipated that someone working on or about the well in repairing it would likely come in contact with appellant’s transmission line. 4-County Electric Power Ass’n v. Clardy, 221 Miss. 403, 424, 73 So.2d 144, 148 (1954).

Id.

¶ 26. This is not the first time EMI has put lines directly over a work station, creating some possibly hazardous situation, which then resulted in electrocution. Therefore, the lack of foreseeability argument has no merit. Accordingly, we find there was ample evidence to support the jury’s verdict that EMI was negligent and liable.

II.WHETHER THE TRIAL COURT ERRED BY REALLOCATING TO EMI ALL CAUSAL FAULT ALLOCATED BY THE JURY IN THE FIRST TRIAL TO JIM AVIS AND ASSOCIATES, THE IMMUNE EMPLOYER OF THE PLAINTIFF’S DECEDENT.

¶ 27. This Court reviews questions of law de novo. Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000). The trial court incorrectly stated that Accu-Fab v. Ladner, had been decided by this Court one week before the trial in this case was conducted. Actually, Accu-Fab was handed down almost one year after this case was tried. Therefore, the decision in Accvr-Fab was not controlling at the time of this trial.

¶ 28. The rule from Estate of Hunter v. Gen. Motors Corp., 729 So.2d 1264, 1276 (Miss.1999), allowed apportionment of fault to absent settling tort-feasors, “parties.” However, in Accu-Fab, 778 So.2d 766, this Court ruled that the term “party” used in the Estate of Hunter decision did not include immune employers, so that fault could not be apportioned to an immune employer. We reversed our Accu-Fab decision in Mack Trucks II, 841 So.2d at 1115. In Mack Trucks II, we stated, “ [t]o the extent that Accu-Fab may be construed as stating that immune parties may not be assessed fault (as opposed to liability) under [Miss.Code Ann. § 85-5-7], therefore, that opinion is overruled.”

¶ 29. Accordingly, it was proper to allow allocation of fault to Jim Avis and Associates as an absent tortfeasor. We find the trial court erred in reallocating fault based on Accu-Fab.

III. WHETHER THE TRIAL COURT ERRED BY GRANTING A NEW TRIAL ON THE SOLE ISSUE OF DAMAGES.

¶ 30. The law is well settled on the issue of a trial court’s ruling for a new trial. “The grant or denial of a motion for a new trial is and always has been a matter within the sound discretion of the trial judge.” Green v. Grant, 641 So.2d 1203, 1207-08 (Miss.1994) (citing Anchor Coatings, Inc. v. Marine Indus. Residential Insulation, Inc., 490 So.2d 1210, 1215 (Miss.1986)); see also Motorola Communications & Elecs., Inc. v. Wilkerson, 555 So.2d 713, 723 (Miss.1989). When the evidence is viewed in the light most favorable to the non-moving party and “upon review of the entire record the trial judge is left with a firm and definite conviction that the verdict, if allowed to stand, would work a miscarriage of justice,” then the trial court may award a new trial. Id.

¶ 31. In its order, the trial court cited the improper allocation of fault to Jim Avis as the basis for granting a new trial on damages. Because the court made this decision subsequent to and relying upon a decision wherein the incorrect legal standard was applied, this decision to grant a new trial on damages was also a mistake. We find a new trial on damages should not have been granted.

IV. WHETHER THE DAMAGES AWARDED IN THE SECOND TRIAL FOR LOSS OF LOVE, SOCIETY AND COMPANIONSHIP WERE IMPROPER AND EXCESSIVE.

¶ 32. Because the trial court erred in granting a new trial on damages only, this issue is moot and need not be discussed.

CONCLUSION

¶ 83. We find that the jury verdict as to the liability of EMI is supported by the evidence. Additionally, we find that the trial court erred in reallocating fault to EMI and in granting a new trial on damages only. Therefore, we reverse the judgment against EMI in the amount of $6,854,707.02 and we render judgment reinstating and affirming the judgment against EMI in the amount of $169,175.00.

¶ 34. REVERSED AND RENDERED.

WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: COBB, Presiding Justice, for the Court.

license: Public Domain

text:
    JACKPOT MISSISSIPPI RIVERBOAT, INC. d/b/a President Casino at King’s Landing v. Freddie J. SMITH and Gerald Richardson.
    No. 2001-IA-01817-SCT.
    Supreme Court of Mississippi.
    June 3, 2004.

      Robert H. Pedersen, Jackson, attorney for appellant.
    Dana J. Swan, Clarksdale, Gary James Mitchusson, attorneys for appellees.
   COBB, Presiding Justice, for the Court.

¶ 1. In this appeal, we consider whether the trial court erred in denying summary judgment where, it is asserted, that an action otherwise time barred falls under the “savings clause” of Miss.Code Ann. § 15-1-69 (Rev.2003). Finding that the dismissal of a stale case is not a dismissal as “a matter of form,” we reverse and render.

FACTS AND PROCEEDINGS BELOW

¶ 2. In 1994, Dennis Gaston, an employee of the Jackpot Mississippi Riverboat, Inc., d/b/a President Casino at King’s Landing (President Casino), filed criminal affidavits against Freddie J. Smith and Gerald Richardson alleging various violations of the Mississippi Gaming Control Act. On September 21, 1994, the charges against Smith and Richardson were dismissed when certain witnesses failed to appear in court. On July 7, 1995, Smith and Richardson filed Civil Action No. 95-0148 (1995 complaint) against the President Casino and Dennis Gaston, charging malicious prosecution. Over four years later, on April 7, 2000, the civil action was dismissed without prejudice pursuant to M.R.C.P. 41(d)(1) for “want of prosecution.”

¶ 3. On March 30, 2001, Smith and Richardson filed another complaint, Civil Action No.2001-0097 (2001 complaint) against President Casino and Gaston, alleging the same claims made in the 1995 complaint. To this complaint, President Casino affirmatively answered that the 2001 complaint was time barred by the one-year statute of limitation in Miss.Code Ann. § 15-1-35 (Rev.2003). President Casino then filed a motion for summary judgment. Smith and Richardson responded that the 2001 complaint was not time barred, asserting that the claim was “saved” from the expiration of the statute of limitation by Miss.Code Ann. § 15-1-69. The trial court denied the motion for summary judgment and certified the statute of limitations issue for interlocutory appeal. We, in turn, granted permission to bring this interlocutory appeal. See M.R.A.P. 5.

ANALYSIS

¶ 4. This Court applies a de novo standard of review when deciding issues of law. Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1000 (Miss.2004); ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999). The “application of a statute of limitations is a question of law.” Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001). Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and the evidence must be viewed in the light most favorable to the party against whom the motion has been made. Miss. Dep’t of Wildlife, Fisheries & Parks v. Miss. Wildlife Enforcement Officers’ Ass’n, Inc., 740 So.2d 925, 929-30 (Miss.1999); McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996) (citing Mantachie Natural Gas Dist. v. Miss. Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992); Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 762 (Miss.1989)).

¶ 5. Smith’s and Richardson’s malicious prosecution claim ripened on September 21, 1994, the day that the trial court dismissed the charges filed against them by Dennis Gaston. A claim for malicious prosecution is subject to the one-year statute of limitations in § 15-1-35. City of Mound Bayou v. Johnson, 562 So.2d 1212, 1218-19 (Miss.1990). Smith and Richardson filed their “first” complaint for malicious prosecution on July 7, 1995, a little more than two months shy of the expiration of the statute of limitations. Norman v. Bucklew, 684 So.2d 1246, 1256 (Miss.1996) (holding that the statute of limitations is tolled during a malicious prosecution suit when a timely complaint is filed).

¶ 6. On April 7, 2000, Smith’s and Richardson’s first complaint was dismissed for want of prosecution. On June 21, 2000, the one-year statute of limitation expired on this claim. Hence, when Smith and Richardson filed the “second” malicious prosecution complaint on March 30, 2001, the action was time barred. Smith and Richardson, however, claim that their second suit is “saved” by Miss.Code Ann. § 15-1-69 (Rev.2003), which states:

If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiffs death, commence such new action, within the said one year.

(Emphasis added). They argue that the dismissal of the 1995 complaint constituted a dismissal “as a matter of form,” and since they filed the 2001 complaint within one year of the dismissal, their suit is not barred by the statute of limitations. President Casino argues that dismissal of a stale case is not dismissal “as a matter of form” and therefore is not saved under § 15-1-69.

¶ 7. The Casino is correct. This Court has held that “the ‘saving statute’ does not apply to dismissal of cases as stale.” Deposit Guar. Nat’l Bank v. Roberts, 483 So.2d 348, 354 (Miss.1986). In Roberts, the bank appealed two dismissed judgments against a judgment debtor as stale. Id. at 349. After the trial court granted a motion to reinstate, the defendant moved to set aside the reinstatement, claiming that the statute of limitations had expired during the interval between the dismissal and the order of reinstatement. The bank appealed, asserting that § 15-1-69 “saved” the action. Id. at 350. This Court affirmed the dismissal and, after an analysis of the savings statute, held that “[t]he dismissal of a case as a stale case is not a dismissal for a ‘matter of form’ ” and that the “ ‘saving statute’ does not apply to dismissal of cases as stale.” Id. at 354.

¶ 8. Therefore, we find that Smith’s and Richardson’s argument is without merit. We also find no merit in their argument that the outcome should be different where their malicious prosecution suit was dismissed without prejudice rather than with prejudice. See W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8 (1926). The decision of the trial court is reversed, and we hereby hold that the 2001 complaint, filed by Smith and Richardson, is barred by the statute of limitations. Thus, the circuit court erred as a matter of law in denying President Casino’s and Gaston’s motion for summary judgment.

CONCLUSION

¶ 9. We reverse the trial court’s order denying summary judgment in favor of President Casino and Dennis Gaston, and we render judgment here in favor of Jackpot Mississippi Riverboat, Inc., d/b/a President Casino at King’s Landing, finally dismissing- with prejudice Smith’s and Richardson’s complaint and Civil Action No.2001-0097 as barred by the applicable one-year statute of limitations.

¶ 10. REVERSED AND RENDERED.

SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT , SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.


author: GRAVES, Justice, for the Court.

text:
    The MAYOR AND BOARD OF ALDERMEN OF the TOWN OF PRENTISS, Mississippi Acting as the Zoning Ordinance Board of Adjustment v. JEFFERSON DAVIS COUNTY, Mississippi.
    No. 2003-SA-00821-SCT.
    Supreme Court of Mississippi.
    June 3, 2004.

      Carolyn Buttles Mills, Jerry L. Mills, Ridgeland, John W. Davies, Prentiss, attorneys for appellant.
    Dorrance Aultman, Gulfport, William Heath Hillman, attorneys for appellee.
    Before SMITH, C.J., GRAVES and DICKINSON, JJ.
   GRAVES, Justice, for the Court.

¶ 1. This is an appeal from the judgment of the Circuit Court of Jefferson Davis County reversing the decision of the Town of Prentiss Mayor and Board of Aldermen to deny a special exception to Jefferson Davis County for the purpose of construction of a new $800,000 chancery court building.

¶ 2. The Board of Supervisors of Jefferson Davis County filed a petition for special exception addressed to the Mayor and Board of Aldermen. The petition asserted a substantial need for continued public use as a basis for the special exception. A public hearing was held on the issue, and the Mayor and Board of Aldermen voted unanimously to deny the special exception.

¶ 3. The County appealed the decision to the circuit court, and the court reversed the decision of the Mayor and Board of Aldermen and granted the special exception. The Town of Prentiss appeals to this Court and submits the following issues on appeal:

I. WHETHER THE RECORD SUPPORTS THE CIRCUIT COURT’S JUDGMENT.

II. WHETHER THE CIRCUIT COURT APPLIED THE APPROPRIATE STANDARD OF REVIEW.

III. WHETHER THE CIRCUIT COURT ERRONEOUSLY SHIFTED THE BURDEN OF PROOF.

IV. WHETHER THE CIRCUIT COURT’S APPROVAL OF THE SPECIAL EXCEPTION WAS PROPER.

FACTS

¶ 4. The County owns the lot in question which is located in the corporate limits of the Town of Prentiss. The lot is currently vacant but on it is gravel parking lot. It abuts an office building in which the Pren-tiss Headlight newspaper and AAA Check Services conduct business. On the other side of the lot, there is another office building where Five Counties Child Development Program, Inc. conducts business. Across the street from the lot are the County Building, the Jefferson Davis County Courthouse, and three residences. The area is currently zoned R-l Single Family Residential pursuant to the Town’s Zoning Ordinance.

¶ 5. According to the zoning ordinance, special exceptions for public use are permitted after public notice, hearing and approval by the Mayor and Board of Aider-men. The County filed a petition for a special exception, based on the public use exception in order to construct a new chancery court building on the lot. A hearing took place, and the Town granted the County ten minutes to introduce documentary evidence and offer testimony as to the public need for the chancery court building and the special exception. There was testimony from the town’s residents and business owners on both sides of this issue. Upon conclusion of the hearing, the Mayor and Board of Aldermen voted unanimously to deny the special exception.

STANDARD OF REVIEW

¶ 6. Unlike decisions to zone or re-zone, which are legislative in nature, decisions on request for special exceptions are adjudicative, and a reviewing court subjects such decisions to the same standard as is applied to administrative agency adjudicative decisions. See Hooks v. George County, 748 So.2d 678, 680 (Miss.1999); Hearne v. City of Brookhaven, 822 So.2d 999, 1002 (Miss.Ct.App.2002). Therefore, this appeal is subject to the following standard of review:

The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party. Board of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996).
Hooks v. George County, 748 So.2d at 680.

ANALYSIS

I. Whether the record supports the circuit court’s judgment.

¶ 7. The Town argues that the circuit court erred in failing to limit its review of the proceedings to the record. The circuit court conducted a private viewing of the subject premises and surrounding area, and the Town claims that because the circuit court considered personal observations, it exceeded the scope of review. The Town relies on Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1011 (Miss.2000), where this Court held that an appeal from a board of supervisors or city is an appeal to an appellate court and the circuit court is bound by the record made before the board. However, the Town’s argument is without merit.

¶ 8. A thorough reading of the circuit court’s opinion and order reveals that the record supplied ample descriptive references to the property in issue. It can be gleaned from the property description in the record that the lot in question is situated in such a way that one would be unable to avoid seeing it upon arrival at the current courthouse and county office buildings. The fact that the court conducted a personal viewing of the property is harmless error that did not result in a judgment any different from the one finally reached by the court. It is clear that the circuit court addressed numerous issues as considerations in reaching its judgment besides the visual inspection of the property. Because the overwhelming weight of the evidence in the record indicates that the circuit court did not solely rely on the visual inspection, this is an inconsequential side note and harmless error. See Old Canton Hills Homeowners Ass’n v. Mayor & City Council of the City of Jackson, 749 So.2d 54, 61-62 (Miss.1999) (holding that the circuit court’s excessive use of the judicial notice function was harmless error, and it should not in any way impact the Court’s analysis of whether the city council acted arbitrarily and capriciously in the present case).

II. Whether the circuit court applied the appropriate standard of review.

¶ 9. The Town argues that the circuit court erroneously concluded that the dis-positive issue on the special exception petition was whether there was public need. The Town further avers that the circuit court should have required the County to show more evidence for an issuance of a special exception other than the argument of public need. The Town relies on Section 2.1 of the Town of Prentiss’s zoning ordinance, which sets out the type of developments that are allowed in a R-l Single Family Residential District. The zoning ordinance further outlines other uses that may be allowed by special exception, which do not include governmental buildings such as the proposed chancery court building. Because the ordinance does not set out public need as the criteria by which any of the uses are to be permitted by special exception, the Town argues that the circuit court erred in allowing the special exception.- This argument is also without merit.

¶ 10. The record reveals that the circuit court stated that public use was one of the criteria identified by the zoning ordinance as subject to special exception, following a public hearing and approval by the Zoning Adjustment Board, all of which took place here. The circuit court then found that the County had to prove its case as to the compelling need for the exception by clear and convincing evidence and that the County has done this. Furthermore, the circuit court found that the decision of the Town was based on factors other than substantial evidence and that its decision was arbitrary and capricious, which required a reversal.

¶ 11. This Court has established a long-settled standard of review for appeals from municipalities. In McWaters v. City of Biloxi, 591 So.2d 824, 827 (Miss.1991), this Court stated that “the party challenging the governing body bears the burden of proof showing that the decision rendered was ‘arbitrary, capricious, discriminatory, or beyond legal authority of the city board, or unsupported by substantial evidence.’ ” In the case at bar, the circuit court thoroughly reviewed the evidence presented by both sides at the hearing-and concluded that the testimony offered by the County was clear and convincing evidence, “even in the face of the Town giving the County only ten minutes to make its case.”

¶ 12. The County’s evidence included testimony from witnesses about the pressing need for additional space and the crowded conditions in the present facilities, as well as the existence of a disastrous fire hazard. On the other hand, the Town proffered no evidence other than the general concerns of one resident and the critiques of two more residents that the County should build its courthouse somewhere else. Therefore, the circuit court was correct in finding that the decision of the Town was not based on substantial evidence.

¶ 13. The circuit court further held that the decision denying the special exception was arbitrary and capricious. The court noted the comments and actions of the Town toward the County’s plan, its refusal to even grant a hearing until compelled to do so by the Attorney General’s office, its refusal to allow the County any reasonable time to make its case, and its decision to deny the County’s petition without evidence or explanation proves that the Town’s decision was arbitrary, capricious, and not based upon substantial evidence. For these reasons, we conclude that the circuit court applied the correct standard of review and that the actions of the May- or and Board of Aldermen were in fact arbitrary, capricious and not based on substantial evidence.

III. Whether the circuit court erroneously shifted the burden of proof.

¶ 14. The Town argues that the burden was on the County to establish the essential elements required to obtain the special exception, and since the County only addressed the issue of public need, the decision of the Town should have been affirmed. However, in its opinion and order of the circuit court, clearly stated that the County had the burden of proof: “The burden is on the County to show the Town by clear and convincing evidence that a public need existed for the special exception to the current R-l zoning of the lot so the County could build the new Chancery Courthouse. Fondren North Renaissance v. Mayor of City of Jackson, 749 So.2d 974 (Miss.1999).”

¶ 15. The circuit court reviewed the record before it and concluded that the County, notwithstanding the limited time afforded it, proved its case by clear and convincing evidence, and that a substantial evidentiary basis did not exist for the Town’s denial of the County’s petition. Therefore, the circuit court did not shift the burden of proof, and the County proved by clear and convincing evidence that a public need existed for the special exception.

IV. Whether the circuit court’s approval of the special exception was proper.

¶ 16. Miss.Code Ann. § 11-51-75 (Rev.2002) mandates the procedure in reversing the decision of a municipal authority. If a judgment is reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered and certify the same to the board of supervisors or municipal authorities. Id. The circuit court found that the Town’s denial of the special exception was arbitrary and capricious and not supported by substantial evidence and reversed the board’s decision accordingly. This is the correct standard of review and the appropriate action in this instance. Thus, the circuit court’s approval of the special exception was proper.

CONCLUSION

¶ 17. For these reasons, the Town’s arguments are wholly without merit. It is clear in the circuit court’s well-reasoned opinion that the record supports its determination that the Town’s decision was arbitrary and capricious and unsupported by substantial evidence. We affirm the circuit court’s judgment reversing the Town’s decision and granting the special exception.

¶ 18. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., CONCURS IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.


text:
    Larry Gene DALTON v. Linda Ann DALTON.
    No. 2001-CT-00824-SCT.
    Supreme Court of Mississippi.
    June 3, 2004.

      David Shoemake, Collins, attorney for appellant.
    Aleita M. Sullivan, Mendenhall, attorney for appellee.
   ON WRIT OF CERTIORARI

COBB, Presiding Justice, for the Court.

¶ 1. Although we agree with the result reached by the Mississippi Court of Appeals in Dalton v. Dalton, 852 So.2d 586 (Miss.Ct.App.2002), we granted certiorari to clarify the law with regard to post-divorce modification of a property settlement agreement executed in the course of an irreconcilable differences divorce.

¶ 2. Linda Ann Dalton and Larry Gene Dalton were granted an irreconcilable differences divorce by the Covington County Chancery Court on October 12, 2000. As is customary for irreconcilable difference divorces, the parties executed a property settlement agreement which was approved by the trial court and was incorporated into the final divorce decree. The agreement required that certain real estate transactions be completed within 60 days from the date the property was appraised. A dispute between the parties prevented them from completing the transactions within the allotted time. Both parties filed motions for contempt, Linda on December 7, followed by Larry on December 19, 2000. A hearing was held on January 19, 2001, after which the trial court entered an order extending the time for compliance with the agreement by 14 days and directing payment of certain claims raised by Linda in her contempt complaint.

FACTS

¶ 3. As a part of their irreconcilable differences divorce, the Daltons filed a property settlement agreement which allowed them to purchase the equity in certain jointly owned real properties from each other. This agreement also divided personal property and addressed other items not at issue in this appeal. The chancellor ratified and approved the property settlement agreement, finding that it made adequate and sufficient provisions for the settlement of all property rights between the parties, and that it was reasonable.

¶ 4. The portion of the agreement covering real property provided a metes and bounds description of four tracts of land situated in Covington County, Mississippi, and jointly owned by the parties. Tract I contained approximately 5.3 acres; Tract II contained 2 acres; Tract III contained 1.14 acres; and Tract IV was for a subdivision lot in Sherwood Forest, Part # 5. Immediately after the real estate descriptions appeared the operative language of the agreement out of which the dispute before this Court arose, as follows:

1. That the hereinabove described land shall be appraised and that Arnold Mooney of Collins, Mississippi, shall appraise said property and the parties shall each pay Arnold Mooney one-half of the costs of the appraisals. That Wife shall have the right to purchase Husband’s interest in Tracts I, III, and IV, for one-half of the equity therein or one-half of the appraised value thereof less all sums owed thereon. That Wife shall have sixty days from the date of said appraisal to purchase Husband’s interest in said property and if within said sixty days Wife does not purchase Husband’s interest in said property, then Husband shall have sixty days from said date thereof within which to purchase Wife’s interest in said property. If Husband does not purchase Wife’s interest in said property within said 60 day period then said property shall be sold and the proceeds divided equally between the parties, subject to the lien thereon.
2. That Husband shall have the right to purchase Wife’s interest in Tract II of the hereinabove described land for one-half of the appraised value thereof less all sums owed thereon and Husband shall have sixty days from the date of said appraisal within which to purchase Wife’s interest in Tract II of the herein-above described land. That if Husband does not purchase Wife’s interest in said Tract II within sixty days from date of said appraisal then Wife shall have the right to purchase Husband’s interest in said land within sixty days thereof. If Wife does not purchase Husband’s interest in said land during said period that the land (Tract II) shall be sold and the proceeds divided equally between the parties.
3. That upon tender of a check for one-half of the appraised value thereof less the liens thereon to the other person, (subject to the medical bills as set forth in VI. A. 1.) that said person selling said property shall execute a Quitclaim Deed and convey to the other person, his or her undivided interest therein.

¶ 5. The appraisal was submitted on October 19, giving Linda and Larry until December 18, 2000, to complete the purchases of their respective tracts. Linda secured a real estate loan to purchase Larry’s interest in the three tracts of land offered to her for initial purchase. The loan closing was scheduled for November 27, 2000, but at closing, the parties could not agree on the amount that should be tendered to Larry by Linda, and the closing was delayed. The closing attorney asked Linda to provide him something in writing defining the amount to be paid to Larry. Soon thereafter, Linda gave the attorney an amount that included deductions for various items that Linda believed were due her under the terms of the property settlement agreement, and also included certain items that were not specifically part of the original agreement. Larry refused to tender the deed unless the full 1/2 equity amount was paid, and refused to allow any deductions. Thus the closing was not concluded. As of the date of filing this appeal, neither party had tendered money in an effort to purchase the other’s equity in any property. ■

¶ 6. On December 7, 2000, Linda filed a motion for contempt charging that Larry had not complied with the provisions of the property agreement in several specific instances. Among these were the same items she had identified as deductions in her earlier attempt to close. On December 19, Larry filed a motion for contempt charging that Linda had not fulfilled her obligation to purchase the marital home •within the required 60 days, and urged the court to have the home sold and divide the funds between the parties.

¶ 7. The chancery court conducted a hearing on the contempt charges on January 19, 2001. It was brought out during the hearing that neither party had closed on any property, many of the provisions of the property settlement were still in noncompliance, and neither party was being cooperative. The chancellor declined to find either party in willful contempt, saying that both parties had a good faith misunderstanding. He also said that he was satisfied that Linda attempted to purchase the property even though she wrongfully felt that certain claims could be deducted from the amount she was to remit to Larry, and that these claims should have been brought in a contempt action. The chancellor then set a new time frame for closing on the properties and determined the amounts to be tendered by each party, which included some of Linda’s claims.

¶ 8. On direct appeal, the Mississippi Court of Appeals correctly held that the chancellor did not abuse his discretion and that the record supported that a good faith misunderstanding existed between the parties as to the effect of the property settlement agreement, and that it was therefore appropriate for the chancellor to resolve those ambiguities, and give the parties an opportunity to effect the intended purpose of the contract. This Court granted Larry Dalton’s petition for writ of certiorari, in which he claims that the decision of the Court of Appeals approving the chancellor’s modification of the terms of the property settlement agreement, is in conflict with prior decisions of this Court.

ANALYSIS

¶ 9. The findings of the chancery court concerning findings of fact, particu-laxly in the areas of divorce and child support, will generally not be overturned by this Court on appeal unless they are manifestly wrong. Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). This Court always reviews a chancellor’s findings of fact, but we do not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous. Vaughn v. Vaughn, 798 So.2d 431, 434 (Miss.2001). Findings of the chancellor will not be disturbed or set aside on appeal unless the decision of the trial court is manifestly wrong and not supported by substantial credible evidence, or unless an erroneous legal standard was applied. Pearson v. Pearson, 761 So.2d 157, 162 (Miss.2000). This same standard is applied even when conflicting evidence has been presented by the parties. See Harvey v. Meador, 459 So.2d 288, 293 (Miss.1984).

¶ 10. This Court has historically recognized that parties may, upon dissolution of their marriage, have a property settlement incorporated in the divorce decree, and that such property settlement is not subject to modification. East v. East, 493 So.2d 927, 931 (Miss.1986). A property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character. Id. at 932. However, in Estate of Kennington v. Kennington, 204 So.2d 444, 445 (Miss.1967), Mrs. Kennington sought specific performance of the marital settlement agreement which was incorporated into the decree of divorce. This Court found that the agreement was a valid contract, the obligation rested on contract, and the liability of Mr. Kennington’s estate was absolute. Notwithstanding that finding, this Court further stated that “[ejourts of equity have certain discretionary power in the matter of decreeing the specific performance of contracts and they may and should make equitable modifications in the form of relief granted where to do otherwise would result in undue hardship or injustice.” Id. at 450.

¶ 11. The settlement agreement was incorporated into the trial court’s judgment and the divorce was granted, pursuant to Miss.Code Ann. § 93-5-2 (Rev.1994). The chancellor’s modification was made in the course of a hearing on contempt charges filed by each party against the other less than two months later. After hearing from both parties, the chancellor held neither of them in contempt, finding that both parties had a good faith misunderstanding of the manner in which the terms of the property settlement agreement were to be carried out. Faced with the passage of time, which in effect had negated the buy out provisions of the agreement, the chancellor proceeded to review the various provisions of the agreement and crafted a modification to address the points of misunderstanding. Neither party objected at the time.

¶ 12. Switzer v. Switzer, 460 So.2d 843 (Miss.1984), concerns a contempt proceeding based on violation of a property settlement agreement incorporated into the final decree in an irreconcilable differences divorce. This Court stated that “where ambiguities may be found, the agreement should be construed much as is done in the case of a contract, with the court seeking to gather the intent of the parties and render its clauses harmonious in the light of that intent.” Id. at 846. In response to the argument of one of the parties that property settlement agreements are not modifiable, we explained:

Our attention is called to Logue v. Logue, 234 Miss. 394, 106 So.2d 498 (1958); Stone v. Stone, 385 So.2d 610 (Miss.1980); Taylor v. Taylor, 392 So.2d 1145 (Miss.1981) to the effect that the part of the separation agreement which deals with a property settlement where supported by valid considerations may not be modified. The point escapes us. That such a provision may not be modified in no way negates the power of the court to enforce it via contempt or any other remedy otherwise available in aid of the enforcement of judgments and decrees.

460 So.2d at 846.

¶ 13. So the pivotal issue becomes how much deference a chancellor should be given in enforcing property agreements and resolving disputes between parties concerning a property agreement, during a contempt proceeding. The chancellor found a good faith misunderstanding on the part of the parties regarding the terms of a recently executed agreement. There was no abuse of discretion in molding the agreement to conform to the intent of the parties. We hold that the chancellor’s actions were proper under the circumstances.

CONCLUSION

¶ 14. For these reasons, we affirm the judgments of the Court of Appeals and the Covington County Chancery Court.

¶ 15. AFFIRMED.

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

      . Linda claimed the proceeds to Larry should be reduced by the following deductions:
      one-half equity $ 29,466.00

        lk lot value $ 400.00
      less value 2 acres $ 2,200.00
      less % closing costs $ 1,113.00
      less lk tax & escrow refund to Lariy $ ■ 500.00
      less quilt $ 2,000.00
      less 2 house payments and late fees $ 625.00
      less lk appraisal $ 325.00
      less medical bills $ 800.00
      less damage to house $ 1,000.00
      less personal items missing from house $ 1,000.00

      . The chancellor stated:
      And based on my figures and what I’ve got as far as the appraisals there, and just so there's not any question, I want everybody — Mr. Dalton hasn’t closed on his land either. And instead of passing checks back and forth, I’m going to allow Ms. Dalton to tender to Mr. Dalton the sum of $26,439.46. Coming to this figure, one-half of the equity is $30,466.47. [S]he was also purchasing a lot which was $400. That’s $30,866.47 that he would be entitled to. I'm deducting the $2200 which was half the value on the two acres that he’s getting that he will get at this date. I'm deducting the $625 for the payment on the house. He was living in the house at the time. And therefore that even though it may not have been a proper motion at that time, it’s proper now so I’m going to make it that way so we can cure all of this. The appraisal fee was $300. It would [sic] $600 according to what was tendered instead of the 650 as this shows. So I’m going to allow him a deduction of $300 to be paid to Mr. Mooney. And the decree does say that the $800' — and that is one thing that I noticed on Mr. Shoemake’s demand that she tender on the [sic] closing the full amount without any deductions. The Court decree is quite explicit that it does allow an $800 deduction. So therefore that $800 will be deducted from the amount that she would have owed. And then there was the tax and the escrow refund. So therefore based on my figures, there was a total deduction of $4,452 — excuse me. $4,477. That is to be deducted. So that would have been— leaves a balance of $26,439.46 that would be due.
      Of course, as stated and I think as agreed to, she’s entitled to one-half of the CDs a[sic] set forth, plus the interest from the date that the CDs were purchased.
      The water bill and the electric bill, she testified to that... .So upon her tendering to Mr. Shoemake the bills showing what those amounts were prior to her moving in, ... he'll pay those two amounts....

      . That this case predates the irreconcilable differences divorce statute, does not diminish its precedential value in the present case.


text:
    PRE-PAID LEGAL SERVICES, INC., Harlan C. Stonecipher, Brooks Werkheiser, Dyre Law Firm, PLLC and Arnold D. Dyre v. Joan BROWNLOW, et al.
    No. 2002-CA-02009-SCT.
    Supreme Court of Mississippi.
    June 10, 2004.
    Richard L. Jones, Robert L. Gibbs, Anne Clarke Sanders, Andrea La’Verne Ford Edney, Teselyn Afrique Melton, Brian Craig Kimball, John Benton Clark, Ernest G. Taylor, Shanda L. Lewis, C. Michael Ellingburg, Jackson, attorneys for appellants.
    J. Brad Pigott, Jackson, J. Douglas Minor, Oxford, Barry W. Gilmer, Jackson, attorneys for appellees.
    Before WALLER, P.J., EASLEY and DICKINSON, JJ.
   WALLER, Presiding Justice, for the Court.

¶ 1. For the reasons stated in Pre-Paid Legal Services, Inc. v. Battle, 873 So.2d 79 (Miss.2004), we affirm the trial court’s grant of partial summary judgment and declaratory judgment finding that the plaintiffs’ claims are not subject to arbitration. In Battle, we determined that there was not a valid, binding arbitration agreement contained in the pre-paid legal expense agreement. We find that an average citizen would not realize that he or she is giving up his or her right to a trial by jury under the broad, general language contained in the pre-paid legal expense agreement. Therefore, we affirm the trial court’s judgment and remand this case for further proceedings consistent with this opinion.

¶ 2. AFFIRMED AND REMANDED.

SMITH, C.J., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. COBB, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.


text:
    E. Dean MORLEY v. JACKSON REDEVELOPMENT AUTHORITY and Atcco Realty, Inc.
    No. 2002-CA-01355-SCT.
    Supreme Court of Mississippi.
    June 10, 2004.

      Appellant, pro se.
    W. Whitaker Rayner, Zachary Taylor, III, Richard Montague, Jackson, attorneys for appellees.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   GRAVES, Justice, for the Court.

¶ 1. This case comes to us on appeal from the Special Court of Eminent Domain of Hinds County. After the trial court found that E. Dean Morley no longer had an interest in the King Edward Hotel and Garage, he was dismissed from the eminent domain proceedings concerning the property. Morley then filed this pro se appeal focusing on two issues. First, Morley argues he is entitled to interest earned on the property after a judgment was entered regarding its value. Secondly, he argues that he is entitled to attorneys’ fees. After a review of the facts and relevant case law, we find that neither of these issues has merit. Thus, we affirm.

BACKGROUND

¶ 2. The first incarnation of the King Edward Hotel was the Confederate House, built by Major R.O. Edwards in 1861. Mary Carol Miller, Lost Landmarks of Mississippi 49 (2002). Major Edwards also founded the Mississippi town which bears his last name. Jackson Landmarks 156 (Junior League ed.1982). The Confederate House burned to the ground in 1863; General William Tecumseh Sherman believed some of his men, Union soldiers formerly held prisoner at Shiloh, caused its destruction. Miller, at 49-50. The hungry soldiers stopped for dinner at the Confederate House, but “had nothing to pay [with] but [Union] greenbacks, which were refused, with insult, by th[e] ... landlord.” Id. at 50. The offended soldiers thus “had quietly and stealthily applied the fire underneath the hotel just as [they] were leaving town.” Id.

¶ 3. The property next came to life as the Edwards House, which was all of three stories. While “Major Edwards began rebuilding the hotel in 1867,” he “died before it was completed ... in 1868.” Jackson Landmarks, at 156. The Edwards House was the center of political activity during the legislative sessions, even billing itself out as the “Commercial and Political Headquarters for the State.” Id. at 156, 158. It even housed a governor, for when “the Governor’s Mansion was undergoing renovation in 1908, the Edwards served as the official residence of Governor Edmond F. Noel.” Id. at 158. Representative Walter Sillers, a longtime Speaker of the Mississippi House of Representatives, also lived at the various hotels on the site from 1916 until the 1960’s. Id.

¶ 4. In 1923 the building was demolished to make way for the twelve-story landmark familiar to Jacksonians today. Id. In 1959 the hotel was purchased and renamed the King Edward — only to close its doors in the summer of 1967. It has not reopened in nearly four decades.

¶ 5. Empty and decrepit, the King Edward still attracted interest. In 1981, E. Dean Morley and Margaret M. Laurence purchased the relic for $450,000 — roughly $900,000 in today’s money. A handful of years later the City of Jackson, through its urban renewal agency, the Jackson Redevelopment Authority (JRA), decided to purchase the property. Morley and Laurence refused their offers, and in 1989 the JRA filed suit to condemn the property.

¶ 6. In the nearly fifteen years following the complaint, the resulting litigation has gone through two different trial judges, a number of lawyers, racked up hundreds of thousands of dollars in legal fees, warranted a reported case, and is on its second trip to this Court. See Morley v. Jackson Redev. Auth., 632 So.2d 1284 (Miss.1994).

¶ 7. The jury in the first trial determined $500,000 was appropriate compensation for the property. Id. at 1286. On appeal of that decision, we affirmed in part and reversed in part decisions of the Special Court of Eminent Domain of Hinds County. The case was remanded to, inter alia, determine if the JRA had a “primarily public use” for the land that would support a taking. Id. at 1288-91.

¶ 8. There were originally two interests in the King Edward — Laurence and Morley’s. After the remand, Laurence transferred her interest to the Margaret M. Laurence Revocable Trust; she later passed away, leaving trusteeship of the Trust in the hands of Morley, her son James R. Laurence, and Jon R. Muth. The Trust still has an interest in the King Edward today.

¶ 9. Morley fell on hard times after the verdict, eventually declaring bankruptcy. At one point there was roughly $260,000 in charging liens asserted against the potential judgment by his various attorneys. Morley’s interest in the King Edward was purchased by Atcco Realty, Inc., at a sheriffs sale in 2001. Morley has admitted that he no longer has an interest in the King Edward property and that is not a question in this appeal. The Trust and Atcco — as the new parties-in-interest— subsequently entered into a Final Agreed Order of Dismissal Pursuant to Settlement with the JRA. It is the result of these proceedings that compels Morley to appeal.

¶ 10. During the litigation the $500,000 awarded by the judgment was placed into the registry of the court. It continued to accrue interest until the Trust and Atcco settled with JRA in 2002. Morley, who proceeds in this appeal without counsel, questions if he is entitled to the interest that accrued on the funds that were held in trust for him. We answer that question in the negative.

DISCUSSION

¶ 11. This Court reviews decisions of a special court of eminent domain as it would any trial court. See Miss. State Highway Comm’n v. Viverette, 529 So.2d 896, 900 (Miss.1988); State Highway Comm’n of Miss. v. Havard, 508 So.2d 1099, 1105 (Miss.1987). We review questions of law de novo, and we will not overturn findings of fact where they are supported by substantial evidence in the record unless there was abuse of discretion by the trial judge' or the findings were manifestly wrong or clearly erroneous. See In re Williamson, 838 So.2d 226, 233 (Miss.2002).

¶ 12. After the initial takings of the King Edward by the JRA and the decision of this case during its original litigation, the $500,000 awarded by the jury was placed on deposit with the Circuit Clerk of Hinds County for safekeeping and to earn interest. While he lost his stake in the King Edward itself, Morley asserts the novel theory that he is entitled to the interest that accrued while the property was still owned by him.

¶ 13. “The right of eminent domain is an inherent and essential element of sovereignty ... [which] results from the social compact.” Brown v. Beatty, 34 Miss. 227, 239 (1857). Even in the early United States, property could be taken from a landowner with no compensation. See William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L.Rev. 782, 787-91 (1995). In fact, the adoption of the Fifth Amendment to the United States Constitution “ ‘was probably intended to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practised during the revolutionary war.’ ” Id. at 791-92 (quoting the legal scholar St. George Tucker, who was “the first legal scholar to offer an interpretation of the [takings] clause” in his 1803 edition of Blackstone’s Commentaries ).

¶ 14. Yet Morley has conceded he no longer has a right in the King Edward itself or even a stake in the eminent domain proceedings. While he argues a right to the interest that accrued on the jury’s award while it was held on deposit, there is a “general rule that ‘interest follows principal.’ ” Phillips v. Washington Legal Found., 524 U.S. 156, 167, 118 S.Ct. 1925, 1930, 141 L.Ed.2d 174 (1998). That general rule “has been established under English common law since at least the mid-1700’s.” Id. at 165, 118 S.Ct. 1925. Accordingly, “this rule has become firmly embedded in the common law of the various States.” Id. So in many cases, “regardless of whether the owner of the principal has a constitutionally cognizable interest in the anticipated generation of interest by his funds, any interest that does accrue attaches as a property right incident to the ownership of the underlying principal.” Id. at 168, 118 S.Ct. 1925 (emphases in original).

¶ 15. While Phillips was an interest on lawyers’ trust account (IOLTA) case, id. at 159, 118 S.Ct. 1925, the general rule is correct and still applicable to this situation. After the $500,000 judgment was entered to compensate the taking of the King Edward, Morley might have attempted to sell or transfer his stake in the property. He did not do so. Since Morley has lost his right to the principal, he has no right to any interest that has accrued upon it.

¶ 16. Morley also argues that he is entitled to attorneys’ fees pursuant to Miss.Code Ann. § 11-27-37 (1972). As his interest in the King Edward was substituted before the matter was dismissed, this point is moot.

CONCLUSION

¶ 17. Because he forfeited his principal stake in the King Edward, Morley has no right to the interest which accrued on it over the years or attorneys’ fees. Accordingly, we affirm the trial court’s judgment.

¶ 18. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION, DIAZ, J., NOT PARTICIPATING.

      . These liens were dismissed by the trial court, and the various lawyers and firms withdrew their appeal of that issue to this Court.

      . Eminent domain proceedings can also be brought in chancery court in special circumstances. The scope of review in those cases is the same as “our limited scope of review of findings of a chancellor.’’ Gulf Park Water Co. v. First Ocean Springs Dev. Co., 530 So.2d 1325, 1330 (Miss.1988).

      . English judges decreed that " ‘interest shall follow the principal, as the shadow the body.' ” Id. at 165, 118 S.Ct. 1925 (quoting Beckford v. Tobin, 1 Ves. Sen. 308, 310, 27 Eng. Rep. 1049, 1051 (Ch. 1749)).


author: DICKINSON, Justice, for the Court. COBB, Presiding Justice, RANDOLPH, Justice,

text:
    Nancy KELLY v. INTERNATIONAL GAMES TECHNOLOGY.
    No. 2002-CA-00333-SCT.
    Supreme Court of Mississippi.
    June 10, 2004.

      Betsy E. Walker, Biloxi, James Robert Murrell, III, attorneys for appellant.
    Scott E. Andress, Jackson, Ben Harry Stone, Paul J. DelCambre, Gulfport, attorneys for appellee.
   DICKINSON, Justice, for the Court.

¶ 1. This appeal involves a dispute over how a video poker, progressive jackpot should be paid. Nancy Kelly, who won the jackpot, wants it paid immediately in a lump sum. International Games Technology (IGT), which operated the video poker machine where Kelly won the jackpot, wants to pay in annual installments over twenty years.

¶2. On September 28, 1996, as Kelly was playing a progressive video poker machine at Treasure Bay Casino in Biloxi, fate smiled upon her. She hit a Royal Flush (A, K, Q, J and 10 of the same suit), which resulted in a win of slightly more than a quarter-million dollars. The lucky video poker machine displayed a sign which stated:

PROGRESSIVE JACKPOT PAID IN 20 EQUAL ANNUAL INSTALLMENTS. FIRST INSTALLMENT PAID UPON VALIDATION OF WIN.

¶ 8. Although a dispute arose over whether Kelly actually won the jackpot, this Court ruled that she did, and remanded for the trial court to determine the appropriate method of payment. The Harrison County Circuit Court entered an order which stated:

The method of payment of the payout to Kelly for the progressive jackpot from IGT is to be made in accordance with the regulations of the Mississippi Gaming Commission and that the MGC regulations shall determine whether or not the payout is to be in a lump sum or in a periodic payments. To the extent that there is a dispute regarding this issue, this factual matter is to be decided by the Mississippi Gaming Commission.

¶ 4. Kelly filed a Motion to Reconsider or in the Alternative to Clarify the Court’s Order. She requested a full hearing on the issue as to the form of payout or in the alternative to clarify whether it (the trial court) was asking the Mississippi Gaming Commission to determine the method of payment. Subsequently, the trial court entered a judgment denying Kelly’s motion and reversing its original deferral or remand to the Mississippi Gaming Commission, and further ruled:

With respect to the Motion for Clarification, the Court states that it has found that the Regulations of the Mississippi Gaming Commission govern the payout of jackpot winnings. That these regulations allow certain jackpots to be paid out in periodic payments as opposed to a lump sum payment, and that such regulations are applicable to the payout of jackpot due to Kelly.

¶ 5. Kelly then filed this appeal. The issue now before this Court is whether the trial court erred in determining that the regulations of the Mississippi Gaming Commission applied as the method of payment in this matter, finding that Kelly should be paid in twenty equal annual installments, rather than in a lump sum amount.

¶ 6. Kelly raises sixteen issues including; whether the $250,136.91 to which she is entitled is a judgment against IGT; whether she should be awarded attorneys’ fees, court costs and interest; and if she is awarded interest, the appropriate rate and the time from which the interest should accumulate. Kelly also raises issues of the interpretation of Miss.Code Ann. § 75-76-157 through § 75-76-165, as those statutes relate to Mississippi Gaming Regulation III.A.9; whether the trial court proceedings following remand from this Court were procedurally flawed; and whether the trial court’s subsequent ruling was erroneous.

STANDARD OF REVIEW

¶ 7. In Secretary of State v. Wiesenberg, 633 So.2d 983 (Miss.1994) (quoting Aikerson v. State, 274 So.2d 124 (Miss.1973)), this Court said: “It is a general rule in construing statutes that this Court will not only interpret the words used, but will consider the purpose and policy which the legislature had in view of enacting the law. The court will then give effect to the intent of the legislature.”

DISCUSSION OF LAW

¶ 8. We find that the issues raised by Kelly can most succinctly be stated as follows:

I. Whether Kelly is entitled to receive the Pokermania Progressive Jackpot in a single lump sum payment with interest and whether she should be awarded attorney’s fees and court cost.

A. Whether Lump Sum Payment Is Appropriate.

¶ 9. Miss.Code Ann. § 75-76-165(2), sets forth the procedure a licensee must follow when it seeks judicial review of the Commission’s decision concerning a disputed jackpot. First, § 75-76-165(2) requires that the licensee deposit “an amount equal to the amount in dispute” in an interest bearing account until the licensee is ordered to pay the patron’s claim or a final judicial determination has been reached that the licensee does not have to pay the claim.

¶ 10. Secondly, § 75-76-165(2) requires the licensee to pay “the full amount of the patron’s claim, including interest, within twenty (20) days after a final, nonap-pealable order of a court of competent jurisdiction so directs.”

¶ 11. Contrary to the position taken by Kelly, the statute does not transform her jackpot of twenty periodic payments to a single, lump-sum payment. Rather, the statute provides that Kelly must be paid her “claim,” that is to say, her legitimate claim. To follow Kelly’s logic, she could simply allege that she is entitled to a million dollars. Her saying so does not transform the demand into her “claim.” This Court held that she vyon the jackpot. The jackpot she won was clearly described on the face of the machine she chose to play. It provided that she would be paid in 20 equal annual installments. That is her legitimate claim. Thus, IGT must pay the “claim” as it contracted to do — in 20 equal annual installments.

¶ 12. Section 9 of Mississippi Gaming Commission Regulation III., A., addresses “Periodic Payments.” The specific language from Section 9 relied upon by IGT provides: “For amounts won equal to or in excess of $200,000, payments shall be no less than l/20th of the total amount annually.” Id., at subsection (e)(2). IGT cites this subsection, and this Court’s opinion in Cook v. Mardi Gras Casino Corp., 697 So.2d 378 (Miss.1997), for the proposition that this Court has “expressly recognized and authorized the use of periodic payments.”

¶ 13. Despite IGT’s assertions, Cook did not expressly recognize nor authorize the use of periodic payments. Rather, the portion of Cook relied upon by IGT is taken directly from the facts of that opinion. In Cook, the trial court found that it did not have jurisdiction over the cause due to the patron’s failure to follow administrative remedies, i.e. appealing the executive director’s decision to the full Commission. Id. This Court affirmed finding that the patron failed to exhaust administrative remedies. Id. at 383. Nowhere in the discussion of law did this Court comment on the use of periodic payments.

¶ 14. Furthermore, contrary to the position taken by IGT, the language of the regulation does not imbue IGT with the “right” to pay Kelly’s jackpot in twenty equal annual installments. Rather, the language simply prohibits IGT from making periodic payments in increments smaller than l/20th of the amount won.

¶ 15. In summary, Kelly played a video poker machine which clearly provided that, should she win, her jackpot would be paid in 20 equal annual installments. The terms do not violate the gaming regulations and, therefore, constitute Kelly’s legitimate “claim.” The statute provides that her claim must be paid, with interest, within twenty days of a nonappealable order from this Court. Thus, within twenty days of this Court’s mandate, IGT must pay Kelly:

• the first installment, together with accrued interest from December 30, 1997;
• the second installment, together with accrued interest from December 30, 1998;
• the third installment, together with accrued interest from December 30, 1999;
• the fourth installment, together with accrued interest from December 30, 2000;
• the fifth installment, together with accrued interest from December 30, 2001;
• the sixth installment, together with accrued interest from December 30, 2002; and
• the seventh installment, together with accrued interest from December 30, 2003.

¶ 16. Thereafter, IGT must make the annual, periodic payments on December 30 of each year until the twenty payments have been satisfied. We assume IGT will follow the allowed method of funding these payments as provided in the gaming regulations. We will not analyze that portion of the regulations since the issue is not before us.

B. Whether Kelly Should Be Awarded Attorney’s Fees.

¶ 17. Kelly cites as an assignment of error that IGT should pay attorney’s fees; however, she offers no supporting argument or evidence to support her claim. “Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record.” Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001). “ ‘The appellant bears the burden on appeal, and we will entertain no claims for which no supporting authority has been cited.’ ” Cavett v. State, 717 So.2d 722, 724 (Miss.1998) (quoting De La Beckwith v. State, 707 So.2d 547, 597 (Miss.1997)). Further, this Court stated in Pate v. State, that there is no duty to review assignments of error unsupported by argument or authority. Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982). Kelly is not entitled to attorney’s fees.

¶ 18. Other issues raised have no merit and are not addressed.

CONCLUSION

¶ 19. We affirm the circuit court’s finding that IGT may pay the jackpot in periodic payments and its denial of Kelly’s claim for attorney’s fees.

¶ 20. We reverse the circuit court, insofar as it held that the gaming regulations control whether Kelly’s jackpot should be paid in periodic payments or a lump sum. We render judgment here that, within twenty days of this Court’s mandate, IGT must pay Kelly:

• the first installment, together with accrued interest from December 30, 1997;
• the second installment, together with accrued interest from December 30, 1998;
• the third installment, together with accrued interest from December 30, 1999;
• the fourth installment, together with accrued interest from December 30, 2000;
• the fifth installment, together with accrued interest from December 30, 2001;
• the sixth installment, together with accrued interest from December 30, 2002; and
• the seventh installment, together with accrued interest from December 30, 2003.

Thereafter, IGT must make the annual, periodic payments on December 30 of each year until the twenty payments have been satisfied.

¶ 21. AFFIRMED IN PART AND REVERSED AND RENDERED IN PART.

SMITH, C.J., WALLER, P.J., CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. COBB, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. RANDOLPH, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY EASLEY, J., DIAZ, J., NOT PARTICIPATING.

COBB, Presiding Justice,

Concurring in Part and Dissenting in Part:

¶ 22. Although I agree with the majority with regard to the issue of attorneys fees, I respectfully disagree with the majority’s determination that IGT should pay the jackpot to Nancy Kelly in periodic payments over 20 years. In my view, the plain language of Miss.Code Ann. § 75-76-165 (Rev.2000) together with our prior decision in this very case on the first appeal by IGT, requires that Kelly be paid the full amount of the jackpot, $250,136.91 plus accrued interest, within twenty days after the mandate issues from this Court.

¶23. To reach that conclusion, I look first to the gaming control statutes and the rules and regulations of the Mississippi Gaming commission, in light of the general rule established by the Commission and ratified by this Court, that “ ‘if a rule can reasonably be interpreted more than one way, then the rule should be interpreted in a manner most favorable to the patron.’ To allow otherwise, would be ‘contrary to the historic position of the Mississippi Gaming Commission in its application of the gaming control act and its regulations and its position on vague rules.’ ” IGT v. Kelly, 778 So.2d 773, 777 (Miss.2001) (quoting Sims v. Rainbow Casino, Miss. Gaming Comm.) (emphasis added.) The majority appears to discount, or disregard entirely, that rule.

¶ 24. Miss.Code Ann. § 75-76-165(2) provides in pertinent part:

(2) If a licensee intends to file a petition for judicial review of the commission’s decision pursuant to Sections 75-76-167 through 75-76-173, inclusive, the licensee must first deposit in an interest-bearing account in a financial institution an amount equal to the amount in dispute. The licensee shall pay the full amount of the patron’s claim, including interest, within twenty (20) days after a final, nonappealable order of a court of competent jurisdiction so directs.

(emphasis added). It does not say to deposit l/20th of the amount in dispute, nor does it say deposit the full amount of the first periodic payment. At the time this dispute began, IGT deposited the entire $250,136.91 into a special interest bearing account at Hancock Bank, in compliance with this provision. In my view, it is illogical to now conclude, as the majority does, that “the amount in dispute” and “the full amount of the patron’s claim” are two distinct and different amounts.

¶ 25. Mississippi Gaming Commission Regulation III.A.9(c) contains a general provision that periodic payments may be made, but there is no requirement that winnings of any size must be made in periodic payments. Regulation III. A.9(e)(2) provides in pertinent part, as follows:

(e) Periodic payments must not be used for winnings of or non-cash prizes worth $100,000 or less....
(2) For amounts won of $200,000 or more, payments must be no less than l/20th of the total amount annually,

(emphasis added).

¶ 26. Furthermore, Regulation III.A.9 does not specifically address the method of payment of disputed claims such as we have in this case. In my view, where judicial review is sought by the licensee, the statutory provisions of Miss.Code Ann. § 75-76-165 control, and Regulation III. A.9 no longer applies.

¶ 27. If a statute is not ambiguous, the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction. Allred v. Yarborough, 843 So.2d 727, 729 (Miss.2003); City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). The language of § 75-76-165(2) is clear and unambiguous and plainly applies in this case. It does not allow for or direct the use of periodic payments when a licensee seeks judicial review of the Commission’s, ruling. Thus there is no exception for periodic payments. “Ordinarily, an exception must appear plainly from the express words or necessary intendment of the statute. Where no exception in positive words is made, the presumption is the legislature intended to make none.” State v. Heard, 246 Miss. 774, 781, 151 So.2d 417, 420 (1963). In effect, IGT asks us to create an exception to the statute, which we should decline to do. If the legislative intent is that such disputed winnings should be paid in installments over a period of years, it is the Legislature’s prerogative to amend the statute to so provide.

¶ 28. Thus, I would hold that IGT must pay Kelly, in lump sum, the full amount of the Pokermania primary progressive jackpot, plus all interest earned since the deposit of those disputed funds in Hancock Bank account # 1-074-8318 in the name of “IGT by Eaton and Cottrell, Trustee IGT.” Further, I would hold that Regulation III. A.9 does not conflict with § 75-76-165(2) because they operate in totally different factual situations.

¶29. I respectfully disagree with the majority and would apply the previous holding of this Court, that “ambiguity is to be resolved in favor of the patron.” Kelly, 778 So.2d at 779. I would reverse and render on the method of payment.

RANDOLPH, Justice,

Concurring in Part and Dissenting in Part:

¶ 30. I concur with the majority that Miss.Code Ann. § 75-76-165 (Rev.2000) controls payment of a claim following a final judicial determination. However, we must determine what is Kelly’s “claim” and the time at which it should be paid.

¶ 31. In the original appeal, Kelly claimed that she won the Progressive Jackpot rather than the Mini-Progressive Jackpot. IGT v. Kelly, 778 So.2d 773 (Miss.2001). This determination required that the Court interpret the machine’s signage, which stated that “SEQUENTIAL HEART ROYAL FLUSH (10, J, Q, K, A) PROGRESSIVE JACKPOT PAID IN 20 EQUAL ANNUAL INSTALLMENTS FIRST INSTALLMENT PAID UPON VALIDATION OF WIN.” Id. at 775. Finding that a reasonable interpretation of the term “sequential heart royal flush” included both ascending and descending flushes, this Court held that the signage was ambiguous and that she therefore was entitled to the Progressive Jackpot. Id. At no time during the first appeal did Kelly dispute that the Progressive Jackpot was to be paid in twenty equal annual installments.

¶ 32. Had IGT not contested Kelly’s “claim”, she would have been entitled to receive $250,136.91 in twenty equal installments, with the first installment due upon the validation of the jackpot. Section 75-76-165 does not provide that since IGT sought judicial review, Kelly should get the $250,136.91 in one lump-sum payment as she now claims. Such a result would be contrary to the express provision provided in the signage at the time Kelly placed her wager. Kelly’s “claim” is for payments over twenty years. However, § 75-76-165 mandates she is entitled to receive the full amount of her “claim,” within twenty days after a final, nonappealable order from a court of competent jurisdiction.

¶ 33. For illustrative purposes, suppose that a dispute arose over whether a patron won a $9,000,000 jackpot to be paid over thirty years and that such a dispute was resolved in favor of the patron. Had there been no dispute, the patron would be due $300,000 upon validation of the win and $300,000 annually for the next twenty-nine years. However, if disputed, the patron is due the amount of the “claim” payable within twenty days after a final, nonap-pealable order from a court of competent jurisdiction. According to my “French market math,” the present net value of this hypothetical jackpot would range between $4.5 and $4.8 million using an interest rate of 5%. Thus, by requiring the licensee to pay $9,000,000 plus interest in a lump sum, the patron would receive a windfall in excess of $4,000,000. Such a windfall does not comport with the legislative purpose and intent of § 75-76-165, nor with the principles of fair play. Nothing in the relevant provisions of the Mississippi Gaming Control Act indicates that a penalty is to be imposed if a licensee seeks judicial review of a patron’s claim. The due process clauses of both state and federal Constitutions prohibit the arbitrary deprivation of property without providing the person with notice both that his conduct will subject him to punishment and the severity of the penalty that may be imposed. U.S. Const, amend. XIV; Miss. Const, art. 3, § 14 (1890).

¶ 34. Section 75-76-165 addresses two legislative concerns: finality and security. Finality, in that the Legislature intended to eliminate any future disputes between the parties during the administration of a multi-year installment plan. Security, in that the purpose of § 75-76-165 is to require the licensee to deposit the amount of the claim to secure payment if the patron should prevail or, similarly, to eliminate any concerns if the licensee ceased to exist before the dispute is resolved. However, a party should not be penalized for contesting an honest dispute, and I am aware of no penalty created by the Legislature for contesting honest disputes.

¶ 35. There is only one way to comply with the letter and intent of § 75-76-165’s mandate that the “claim” be paid within twenty days: That is to determine the present net value of the twenty year installment plan calculated from the date of her win. I would remand this case to the circuit court for a determination of this value. The trial court can appoint a special master as provided under M.R.C.P. 53 to determine the value or allow each party to offer proof of same. Based on the proof, the trial court should enter a final judgment accordingly.

EASLEY, J., JOINS THIS OPINION IN PART.

      . This is our second look at this case. We were initially asked to determine whether Kelly actually 'won a Pokermania progressive jackpot in the amount of $250,136.91. We found that she did. For an in-depth recitation of the facts from which this present appeal arises, see IGT v. Kelly, 778 So.2d 773 (Miss.2001).

      . Although the jackpot was won at Treasure Bay Casino, the video poker machine was operated by IGT, which was, and is, liable for payment of jackpots. Thus, Treasure Bay is not a party to this dispute.

      . A licensee is any person to whom a valid license has been issued. A license means a gaming license or a manufacturer's, seller's, or distributor’s license. Miss.Code Ann. § 75-76-5.

      . It is undisputed that, on February 10, 1998, IGT deposited $250,136.91 into an interest-bearing account at Hancock Bank.

      . The interest earned in the interest-bearing account must be calculated and applied to the payments which were due prior to December 30, 2004.

      . The concept of present net cash value is also provided in the model jury instructions to be used in calculating future loss of income in a wrongful death action. See Miss Pract. Model Jury Instr. Civil § 20.19 Mississippi Model Jury Instructions Civil Mississippi Judicial College (2nd 1999).


author: EASLEY, Justice, for the Court.

text:
    DYRE LAW FIRM, PLLC., Arnold D. Dyre, Pre-Paid Legal Services, Inc., Harlan Stonecipher and Brooks Werkheiser v. Laura BRADLEY, et al.
    No. 2002-CA-01749-SCT.
    Supreme Court of Mississippi.
    June 10, 2004.

      John Benton Clark, Ernest G. Taylor, Shanda L. Lewis, C. Michael Ellingburg, F. Kay Hardage, Richard L. Jones, Robert L. Gibbs, Anne Clarke Sanders, Brian Craig Kimball, Andrea La’Verne Ford Ed-ney, Jackson, Teselyn Afrique Melton, attorneys for appellants.
    J. Brad Pigott, Jackson, J. Douglas Minor, Oxford, Barry W. Gilmer, Jackson, Ranee N. Ulmer, Bay Springs, attorneys for appellees.
    Before WALLER, P.J., EASLEY and DICKINSON, JJ.
   EASLEY, Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. Plaintiffs filed an action in the Circuit Court of Jasper County against defendants Pre-Paid Legal Services, Inc., Harlan C. Stonecipher, Brooks Werkheiser, Dyre Law Firm, PLLC, and Arnold D. Dyre seeking redress for alleged misconduct including, but not limited to, decep-five trade practices, conspiracy, fraud, and negligence. Plaintiffs also sought a declaratory judgment stating that they were under no contractual obligation to submit any of the claims against any of the defendants to arbitration. Subsequently, plaintiffs filed a motion for partial summary judgment as to the absence of any applicable arbitration clause between the parties. The trial court granted the motion and found that no plaintiff had signed any agreement which included an arbitration clause or any obligation or promise to arbitrate any claim or dispute with any defendant or any entity affiliated with any defendant. Furthermore, the trial court found that the purported arbitration clause of which defendants seek the benefit is unconscionable and unenforceable under Mississippi law. Aggrieved, the defendants have appealed the partial summary judgment and declaratory judgment pursuant to the Federal Arbitration Act, 9 U.S.C. § 16(a)(2) and (3), asking this Court to find that the plaintiffs are obligated to arbitrate their claims and that there exists a genuine issue of material fact which precludes summary judgment. We affirm and remand.

FACTS

¶ 2. Laura Bradley and 92 other plaintiffs (Plaintiffs) commenced this action against Pre-Paid Legal Services, Inc., Harlan C. Stonecipher, Brooks Werkheiser, Dyre Law Firm, PLLC, and Arnold D. Dyre on June 6, 2002, in the Circuit Court of Jasper County, Mississippi. They asserted nine separate causes of action including (1) violation of the Mississippi Deceptive Advertising Act, (2) violation of the Mississippi Deceptive Trade Practices Act, (3) fraud, (4) civil conspiracy, (5) professional negligence, (6) negligent misrepresentation, (7) breach of fiduciary duty, and (8) illegal payments. Plaintiffs also seek a declaratory judgment that they are under no obligation to arbitrate any of these claims against these defendants.

¶ 3. Plaintiffs essentially claim that PrePaid used deceptive marketing practices to lure them into signing a contract for legal services with National Pre-Paid Legal Services of Mississippi, Inc. (National) that was grossly deficient in comparison to the services they were told that they would receive. Harlan C. Stonecipher is the CEO and Chairman of the Board for PrePaid. ■ Brooks Werkheiser was a Regional Vice President for Pre-Paid for marketing throughout Mississippi throughout the period relevant to the events set forth at trial court. Plaintiffs also assert that Dyre Law Firm and Arnold Dyre, individually, were accomplices in these alleged misdeeds as the attorney that is provided for in the contracts signed with National.

¶ 4. Subsequently, on July 19, 2002, plaintiffs filed a motion for partial summary judgment as to the absence of any applicable arbitration clause. In response, the defendants noted that all of the plaintiffs’ claims arose out of contracts they entered into for legal services with National. The defendants also provided a copy of their standard contract which contains the following provision in nine point font on the fifth page of a six-page contract:

K. Settlement of Disputes: In the event of a dispute, the parties will agree on an impartial attorney who will decide such dispute and that decision will be binding on all parties to such dispute.

Defendants are non-signatories to these contracts, yet steadfastly maintain that they are entitled to the protection of its arbitration provision.

¶ 5. On August 19, 2002, the trial court entered an order granting plaintiffs’ motion for partial summary judgment and declaratory judgment. The trial court ruled that none of the plaintiffs had signed not agree to arbitrate the claims asserted in this matter and that the purported arbitration clause put forth by the defendants was unconscionable and unenforceable. Final judgment to this effect was entered on the same day.

¶ 6. Both Pre-Paid and Dyre appeal pursuant to the Federal Arbitration Act, 9 U.S.C. § 16(a)(2) & (3). Defendants argue that the trial court erred in finding that the plaintiffs had no obligation to arbitrate their claims and that there were genuine issues of material fact which preclude summary judgment. The plaintiffs filed a motion to dismiss the appeal, and this Court denied the motion.

ANALYSIS

¶ 7. The following issues are presented on appeal:

I. WHETHER THE TRIAL COURT ERRED BY DECLARING THAT THE PLAINTIFFS’ CLAIMS DO NOT REQUIRE ARBITRATION.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT.

¶ 8. Our recent decision in Pre-Paid Legal Services, Inc. v. Battle, 873 So.2d 79 (Miss.2004), controls the disposition of all issues raised in the case sub judice because contract under scrutiny is the same. In Battle, we determined that there is not a valid, binding arbitration agreement contained in this pre-paid legal expense agreement. Therefore, this Court reaches the same conclusion here.

CONCLUSION

¶ 9. For these reasons, we affirm the trial court’s judgment, and we remand this case for further proceedings consistent with this opinion.

¶10. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER, P.J., CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. COBB, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . John Cummings, Larry Evans, Cennie Hardy, Chester Jones, J.B. Lovett, Maggie May, Paul Newell, Amy Pence, Yalinda Pugh, Catherine Brooks, Shelby Carmichael, Debbie Evans, James Everette, Latricia McCarty, David McKenzie, Ora Nicks, Diane Nobles, Wendie Williams, John Fairley, Linda McGill, Che-vonna Milloy-Bass, Flora Elerby, Corine Hickman, Mildred Lucas, Sandra McCoy, Lou Ross, Ina Almonte, Bobby Bell, Joy Braden, Tracey Crawford, Johnny Davis, Mildred Eaves, Anthony Evans, Amy Michelle Fisher, Nancey Fondren, Wanda Fox, Ollie Franklin, Beverly Gaddis, Barbara Ann Gathright, Lavonne Gordon, Dave Grayson, Tony Ham, Nathan Harding, Rebecca Lynne Hasson, Minnie Inge, Kathy Ivey, Brenda Jones, Estella Jones, Frances Gail Jones, Kenneth Lewis, Angela Little, Wanda Lloyd, Beverly Lockett, Roy McKenzie, Patricia Moody, Eddie Ott, Jr., Eddie Payton, Dorothy Radcliff, Gloria Shad-wick, Patricia Smith, Michele Swanner, Richard C. Wallace, Shawn T. Young, Sherron Barnes, Alex Berry, Shirley Harper, Janice Harris, Joyce McAffee, Cynthia McCollum, Gwendolyn Mack, Dorothy Smith, Jean Stubbs, Derrick Walker, Laura Womack, Harriet DeJarnett, Marilyn Lott, Anne McCullum, Scottie Starr, Michelle Brown, Keith Davis, Sr. Melton Dawkins, Russell Douglass, Char-lean Lacy, Linda Pace and Willie Pace.

      . Pre-Paid Legal Services, Inc., Stonecipher, and Werkheiser will collectively be referred to in the discussion section as "Pre-Paid,” not to be confused with "National Pre-Paid of Mississippi,” which will be referred to, but is not a party to this action.

      . Dyre Law Firm, PLLC, and Arnold D. Dyre will collectively be referred to as "Dyre.”