source: Caselaw Access Project

author: WALLER, Justice, McRAE, Presiding Justice,

license: Public Domain

text:
    Ray SKATES v. Jeffery BRYANT and Sheree Bryant.
    No. 2000-CT-00835-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2003.

      L. Jackson Lazarus, Joseph S. Zuccaro, Natchez, attorneys for appellant.
    T. Jackson Lyons, Jackson, William F. Riley, Bobby L. Cox, Natchez, attorneys for appellees.
   ON WRIT OF CERTIORARI

WALLER, Justice,

for the Court.

¶ 1. Jeffery and Sheree Bryant filed a petition in the Adams County Chancery Court against Ray Skates to determine whether Quasar Drive, located in Natchez, was a private road that entitled them to its exclusive use or a public road to be used by Skates and the general public. The chancellor held that the right of ownership was vested exclusively in the Bryants. Additionally, the chancellor enjoined Skates from the use of Quasar Drive unless he was given permission to do so by the Bryants. On appeal, the Court of Appeals held that there was insufficient evidence for the chancellor to determine that a common law dedication of the road had occurred. Skates v. Bryant, 2000-CA-00835-COA (Miss.Ct.App. Nov. 6, 2001). Furthermore, the Court of Appeals held that there was sufficient evidence to support the chancellor’s conclusion that the use was permissive, not hostile, and that the road was private. Therefore, the Court of Appeals found that the chancellor did not abuse his discretion and affirmed his judgment. Skates filed his petition for writ of certiorari claiming that the subject road should be considered a public road (1) under the common law doctrine of dedication as a result of the previous owner subdividing his land, and (2) under the doctrine of “user” as a result of hostile use for more than 10 years. We granted Skates’s petition and now affirm.

FACTS

¶ 2. Jeffery and Sheree Bryant own property in Natchez adjoining U.S. Highway 61. A road or drive known as Quasar Drive is located on the east side of the property. The Bryants received this land by conveyances from George Bryant, Jeffery’s father, who named the road in honor of Quasar televisions, which he sold. Skates is the owner of the land located immediately to the south of the Bryants’ property. Originally, Skates’s property was also owned by George Bryant, who developed a trailer park on this property sometime in the 1960s. George created Quasar Drive as a means of ingress and egress to this property. George conveyed this property to James McManus in 1972, who continued to operate the trailer park for a period of time. After McManus’s death in 1984, Skates purchased the property from McManus’s wife. Evidence was presented that for at least ten years, while the trailer park was in existence, Quasar Drive was used by residents of the park and others. Eventually, the trailer park ceased to exist. Even after Skates had obtained ownership of the property, there was an approximately two year period in which Quasar Drive had become overgrown with kudzu and was impassable. Skates’s property was also accessible by other roads besides Quasar Drive.

¶3. At some point Skates placed some warehouses on his property, and the Bryants constructed a house alongside Quasar Drive. The Bryants contend that since Skates had placed warehouses on his land the flow of traffic had increased on Quasar Drive, which frustrated their use and enjoyment of the land. On July 17, 1997, Jeffery Bryant mailed a letter to Skates addressing the increase in traffic on Quasar Drive. The letter informed Skates that Quasar Drive was 100 percent on private property and as of July 15, 1997, it would only be used as a private drive to his residence. Nevertheless, Skates and those that utilized the warehouses on his property continued to use the road. Additionally, Skates had bulldozed a portion of the pavement of Quasar Drive and replaced it with gravel. It was due to the continued commercial use of the road that this matter went to trial.

¶ 4. At trial, Skates attempted to establish that the road was a public road and that he and the general public were entitled to use the road. Alternatively, Skates claimed adverse possession or prescriptive easement. The chancellor personally viewed the property in question before trial. A review of the deed between George Bryant and McManus does not show Quasar Drive being conveyed in the legal description. The chancellor found that Skates’s use of the road was not exclusive or open and notorious, Skates’s use of the road was permissive, and the road was not public. As a result, the chancellor held that the right of ownership was vested exclusively in the Bryants. Additionally, the chancellor enjoined Skates from the use of Quasar Drive unless he was given permission to do so by the Bryants.

¶ 5. On direct appeal, the Court of Appeals held that there was insufficient evidence for the chancellor to determine that a common law dedication of the road had occurred. It further held that there was sufficient evidence to support the chancellor’s conclusion that the use was permissive, not hostile, and the road was private. Therefore, it found that the chancery court did not abuse its discretion and affirmed its decision.

DISCUSSION

Standard of Review

¶ 6. We will not disturb the factual findings of a chancellor unless the findings are manifestly wrong or clearly erroneous. Nettleton Church of Christ v. Conwill, 707 So.2d 1075, 1076 (Miss.1997). 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). In the case at bar, there was conflicting evidence regarding whether Quasar Drive had become a public road under the theory of common law dedication. There was also conflicting evidence regarding whether Skates’s use of the subject road was permissive or hostile.

I. COMMON LAW DEDICATION.

¶ 7. A street will become a public street under common law dedication when the survey and sale of lots makes reference to the streets. “If the owner of urban property has laid it off into lots intersected by streets, and sells the same with reference thereto, or with reference to a map or plat dividing it into squares, streets and alleys, such action will amount to a dedication of the streets and alleys to the public.” Luter v. Crawford, 230 Miss. 81, 88, 92 So.2d 348, 351-52 (1957).

¶ 8. Skates claims that the Court of Appeals’ decision here is in conflict with our decision in Nettleton Church of Christ, and other cases. However, this case is distinguishable from Nettleton (and related cases) in that the land in the present case was not sold according to a subdivided plat or map. The back lot which was initially sold by George Bryant to McManus, and later to Skates, was one large lot which was accessed by Quasar Drive. The Court of Appeals considered the question as follows:

Although some of the evidence was disputed, there was evidence in the case at bar which showed that prior to the conveyance from George Bryant to Mc-Manus, George had a map prepared by engineer Richard Logan. The map showed individual lots owned by George, along with the one being purchased by McManus, as well as roadways, including the road called Quasar Drive. In this deed, there was a reference made to the map or plat; however, as asserted by the Bryants, the deed stated that the reference is made for the purposes of assisting in the description. Quasar Drive was not contained in the legal description.
The testimony given only reflected that George Bryant may have initially intended to establish a subdivision on the lot currently owned by Skates; however, there is no evidence of a more conclusive nature to reflect that it had been formalized. See Magnolia Memorial Gardens, Inc. v. Denton, 317 So.2d 38, 42 (Miss.1975) (Mere plans for further development of a cemetery garden only shows an intent to develop and does not establish dedication for a public cemetery.)
In Magnolia Memorial Gardens, the Mississippi Supreme Court continued and stated:
In order to constitute a dedication at common law, it is essential that there be an intention of the owner of the land to donate the same for public use. It has been said that the controlling element of the common law dedication is the intent to donate. Donation is the act by which the owner of something voluntarily transfers the title and possession of the same without any consideration.
Furthermore, another essential element of a dedication is that it shall be for the public at large, not to one person or a limited number of persons or for the exclusive use of a restrictive group of individuals.

Skates, paragraphs 26-28 (citations omitted). The facts in this case reveal that George’s intent was to operate a trailer park. Quasar Drive was used by George as access for the residents of the park; therefore, it was intended to be used by a restrictive group of people, not the public in general. Additionally, the conveyance from George to McManus was a wholly private act and not intended to benefit the public. Furthermore, as argued by the Bryants, the plat that was attached to McManus’s deed did not show a subdivision that was going to be sold by lots and blocks to the general public. Id.

¶ 9. Skates further claims that Quasar Drive was listed as a public road on the records of the Mississippi Department of Transportation and the Adams County Board of Supervisors, and he supported this allegation with testimony of county road department employees. However, Skates was unable to present any minutes from the Board of Supervisors stating that Quasar Drive had been designated as a public road.

¶ 10. Skates’s argument that Quasar Drive is public is further belied by his actions prior to this litigation, when he removed some of the paving from the road with a bulldozer. We find that the Court of Appeals did not err in affirming the chancery court on this issue.

¶ 11. In his dissent, Presiding Justice McRae cites much evidence which supports Skates’s contention that Quasar Drive was public. However, as pointed out above, the applicable standard of review is that we will not disturb the factual findings of a chancellor unless the findings are manifestly wrong or clearly erroneous. Nettleton Church of Christ, 707 So.2d at 1076. This standard is applied even when conflicting evidence was presented by the parties. Harvey, 459 So.2d at 293.

¶ 12. The evidence before the chancellor was as follows: While the trailer park was in existence, Quasar Drive was not only used by residents of the park, but also by such people as meter readers, school buses, and the postal service. A county worker with the road department cut the grass, put up a stop sign and patched potholes at the county’s expense. The county road department prepared a school bus turnaround on Quasar Drive. There were no other completed work orders in the road department file. A general highway map showed the road, but the road was not named on the map. An Adams County map index classified Quasar Drive as a public road. An inspector submitted a report to the Board of Supervisors on the condition of the road, but the Board of Supervisors never classified Quasar Drive as a public road. The deed between Bryant and McManus did not show Quasar Drive being conveyed in the legal description. A land survey performed in 1977 and filed with the chancery clerk’s office showed Quasar Drive. The trailer park ceased to exist. Quasar Drive became overgrown and was impassable. Skates built warehouses on the property, and the Bryants built a house.

¶ 13. However, there was absolutely no evidence that George Bryant intended to donate the road to public use or to benefit the public in any way. The road was intended to be used by the residents of the trailer park, a restrictive group of people, not the public in general.

¶ 14. Especially crediting the evidence that the road was never designated as a public road by the Board of Supervisors and that there was no evidence of George Bryant’s intent that the road was to be used by anyone other than the trailer park residents, we find that the chancellor’s findings were neither manifestly wrong nor clearly erroneous.

II. PUBLIC ROAD BY PRESCRIPTION.

¶ 15. Skates mentions the ten-year use of Quasar Drive but does not attempt to formulate an argument nor cite any authority for the proposition of establishing this road as a public road by prescription. Pursuant to Hoops v. State, 681 So.2d 521, 526 (Miss.1996), we are under no obligation to consider a claim when no authority is offered in support thereof.

¶ 16. Skates raised this issue on appeal to the Court of Appeals. According to Turner v. Duke, 736 So.2d 495, 498 (Miss.Ct.App.1999), the necessary elements to establish a public road by prescription, much like those for adverse possession, include (1) open, notorious and visible, (2) hostile, (3) under claim of ownership, (4) exclusive, (5) peaceful, and (6) continuous and uninterrupted for ten years. When a road is not proven to be a dedicated public road under statute, there must be more evidence than mere travel by the public on the road for ten years. The owner must “know of and acquiesce in the adverse claim, or the use must be so open, notorious, visible, and uninterrupted that knowledge and acquiescence will be presumed.” Id.

¶ 17. There is sufficient evidence in the record to support the chancellor’s conclusion that the use was permissive and the road was private. The Bryants testified that the use of Quasar Drive by Skates and others was with their knowledge and permission up until Jeffery Bryant sent the letter to Skates in 1997. While Skates offered evidence to contradict the permissive use principle, the chancellor’s findings are not manifestly wrong or clearly erroneous:

A use that has its inception in the permission of the owner will continue as such until a distinct and positive assertion of a right hostile to the owner is brought home to him by words or acts. To transform a permissive use into an adverse one there must be (1) a distinct and positive assertion of a right hostile to the rights of the owner, which is brought to his attention, or (2) a change in the character of the use.

Patterson v. Harris, 239 Miss. 774, 125 So.2d 545, 550 (1960) (citations omitted).

Up until Bryant sent the letter to Skates in 1997, the element of hostility was missing. Because it has not been 10 years since that letter was sent, Skates cannot prevail on this theory.

CONCLUSION

¶ 18. Because Quasar Drive was not a public road and was not dedicated by public use under the common law, and because the road did not become a public road by prescription, we affirm the judgments of the Court of Appeals and the Adams County Chancery Court.

¶ 19. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.

McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting:

¶20. The majority erroneously finds that Quasar Drive is not a public road under the common law doctrine of dedication or under the doctrine of prescription. As the evidence presented indicates, Quasar Drive was dedicated for public use as a “public road” by map and deed language. Alternatively, Quasar Drive became a public road by way of prescription, and there is no evidence to justify a finding of abandonment of use. For these reasons, I dissent.

¶ 21. First it is essential to state certain facts to clear up confusion. Testimony indicates that the road in question was built and used by the public for years before George Bryant (George) became the purchaser of the property. In fact, a 1964 survey shows the road as a “public road.” George named the road Quasar Drive in 1969 or 1970 as it was the road which provided access to a trailer park which he had established on his land. The trailer park, with at least thirty family units, operated continuously for 15 years till 1984 or 1985. However, stragglers in the trailer park did not vacate until around 1988 or 1989. During the trailer park’s existence, school buses, postmen, and others used Quasar Drive.

¶22. In 1977, George sold Cecil Mc-Manus (McManus) a portion of his property. Dining this sale, George had a survey conducted which reflects subdivision of the land into lots. The maps and plats of this survey were placed on record in the Office of the Chancery Clerk of Adams County, Mississippi, and labeled George Bryant Lands. The map and plat clearly show Quasar Drive as a cul-de-sac into the subdivided land. Although George never finished subdividing his land according to the map, all testimony indicated that his intent was to subdivide and sell lots. This map was incorporated into the deed by reference. The deed executed between Mc-Manus and George clearly stated that the land conveyed is “further described by a map or plat prepared by Richard T. Logan, P.E. dated May 1977, a copy of which is attached hereto as Exhibit ‘A’ and made a part hereof.” As already stated, this survey, map, and plat clearly shows Quasar Drive as a cul-de-sac and public road of ingress and egress. McManus continuously used Quasar Drive from the time of purchase in 1977 till 1984.

¶ 28. In 1984, the McManus lot was conveyed to Ray Skates (Skates). Later, some of George’s property was deeded to his son Jeff Bryant (Jeff) and his wife, Sheree Bryant. In 1997, Jeff wrote a letter to Skates revoking his permission to use Quasar Drive.

¶ 24. Facts presented which indicate public use of Quasar Drive include:

(1) Road maintenance by the County, which included gravel work, the posting and maintaining of stop signs, the posting and maintaining of streets signs, and mowing of the grass;
(2) School bus usage of the road not only while the trailer park was still maintained, but afterwards as a turn around spot for the bus;
(8)Usage of the road by maintenance crews, such as power, water, and telephone crews;
(4) Before George named the road, a 1964 survey of the County shows the Road to be a “public road”;
(5) The road is listed on the State’s General Highway Map;
(6) The road is listed on the Civil Defense map of Adams County;
(7) Minutes of the Board of Supervisors shows that Quasar Drive was inspected by the County;
(8) Jeffs own deed filed in the Office of the Chancery Clerk of Adams County, Mississippi specifically states in its description of the conveyance property that it is “[s]ub-ject to the rights of the public in that portion known as Quasar Drive”;
(9) Emergency 911 records list Quasar Drive as “Public”;
(10) The area in question is highly commercialized with at least sixteen businesses operating within 700 yards from the road;
(11) One such commercial business operating in close proximity, Bobby’s Service Center, has even suggested that its customers use Quasar Drive to access its business;
(12) Quasar Drive is one mile from the busy Morgantown Intersection and .7 mile from the Natchez City Limits;
(13) The deed of McManus, the predecessor owner of Skates property, reflects that the property conveyed is described by a certain attached plat which reflects subdivision of George’s property into lots and Quasar Drive as a public right of way;
(14) McManus continuously used Quasar Drive for ingress and egress from 1977 till 1984;
(15) Skates continuously used Quasar Drive for ingress and egress from 1984 till 1997, when this lawsuit was filed; and
(16) Residents of the trailer park, visitors, and others used Quasar Drive for fifteen years as their exclusive route of ingress and egress from 1969 till 1984.

Although Jeff omits these facts from his brief, they are all in the record and substantiated by evidence and testimony.

¶ 25. As the evidence indicates, Quasar Drive was dedicated for public use as a “public road” by map and deed language. As has been stated by this Court, “[i]f the owner of urban property has laid it off into lots intersected by streets, and sells the same with reference thereto, or with reference to a map or plat dividing it into squares, streets, and alleys, such action will amount to a dedication of the streets and alleys to the public.” Luter v. Crawford, 230 Miss. 81, 88, 92 So.2d 348, 351-52 (1957). See also Nettleton Church of Christ v. Conwill, 707 So.2d 1075, 1076 (Miss.1997); Coleman v. Shipp, 223 Miss. 516, 530, 78 So.2d 778, 784 (1955); Sipes v. Town of Tishomingo, 735 So.2d 1047, 1049 (Miss.Ct.App.1999). “[I]n order to consummate a dedication, there must be an acceptance ... and such acceptance may occur either by the formal act of the local municipal authority, or it may be inferred or implied from sufficient circumstances.” Luter, 92 So.2d at 352. See also Sipes, 735 So.2d at 1049.

¶ 26. Under the facts, all of the elements for dedication have been met. The deed executed between George and Mc-Manus, the original buyer of a portion of the land later acquired by Skates, contains language referencing Quasar Drive and a plat map whereby George had the land surveyed and prepared for division into lots. Specifically, the deed states “further described by map or plate prepared by Richard T. Logan, P.E., dated May, 1977, a copy of which is attached hereto as Exhibit ‘A’ and made a part hereof.” In fact, the deed executed in favor of McManus included as an attachment the map or plat depicting the lot divisions and Quasar Drive. Skates as the buyer of said property acquired all the rights associated with McManus’s property ownership which included the dedication and use of Quasar Drive. There is of course acceptance illustrated by the use of Quasar Drive not only by McManus for seven years, but also by Skates for thirteen years. Additionally, the deed executed between George and Jeff specifically states that the conveyance is “subject to the rights of the public in that portion known as Quasar Drive.” It is abundantly clear from the evidence that Quasar Drive has been dedicated for public use.

¶ 27. Furthermore, even if public dedication were not found to apply, Quasar Drive is still a public road by prescription. As early as 1894, we have recognized that a road may become subject to public use by easement or prescription. See Alcorn v. Sadler, 71 Miss. 634, 634-35, 14 So. 444, 444-45 (1894). The case most factually on point comes from the Court of Appeals and is Turner v. Duke, 736 So.2d 495 (Miss.Ct. App.1999). The Turners had acquired a tract of land which Duke Road bisected. Id. at 496. The Turners built a house along Duke Road. They later claimed that the enjoyment of their house was hampered by traffic, so they built two gates along Duke Road and gave keys to the gates to certain individuals. The Dukes protested the installation and use of the gates and filed a complaint in the Chancery Court of Carroll County claiming that Duke Road was a public road and therefore, the Turners should be enjoined from blocking the road with gates. It was stipulated that from 1980 till 1994, the Board of Supervisor minutes reflected that expenditures had been made to maintain Duke Road, but that the Board had never dedicated the road as a public road in the minutes. Id. Testimony at trial showed that public funds had been used to maintain Duke Road and a school bus had continuously used Duke Road to transport children living there. Id. at 497. Ultimately, the trial court sided with the Dukes and declared Duke Road to be a public road and thereby enjoined the Turners both to remove the gates and directed them not to prevent use of the road. Id. at 496. On appeal, the Turners argued, as does Jeff in the present case, that the road is not a public road since the only effective action to make the road public would have been the County Board of Supervisors’ official designation of the road as public road in its minutes. Id. at 497. The Court of Appeals declined to adopt this view and asserted that precedent on the issue does not support such an argument and declined to abandon such precedent and adopt the reasoning and arguments of the Turners. Id.

¶ 28. Next, the Turners argued, as does Jeff in the present case, that Duke Road had not become a public road by prescription since it did not meet the elements for such. Id. at 498. The elements to establish a public road by prescription include:

(1) open, notorious and visible;
(2) hostile;
(3) under claim of ownership;
(4) exclusive;
(5) peaceful; and
(6) continuous and uninterrupted for ten years.

Id. (citing Myers v. Blair, 611 So.2d 969, 971 (Miss.1992) (citations omitted)). The Court of Appeals then analyzed all six elements. As to the first element of open, notorious, and visible, the Court of Appeals found this element was met by the county’s actions of maintaining the road and testimony showing that the public utilized Duke Road as a public road. Id. Likewise the second element of hostile was satisfied “because the public acted adversely to the interest’s of the owners of the land by entering onto and using the Duke Road without subservience to these owners.” Id. (citing 2 C.J.S. Adverse Possession § 60 (1972)). The third element of under claim of ownership was also satisfied “because the public acted to appropriate the land for its use.” Id. (citing 2 C.J.S. Adverse Possession § 61 (1972)). Exclusive, the fourth element, was satisfied “because the public’s maintenance of the Duke Road and use as a public road were acts asserting ownership.” Id. (citing 2 C.J.S. Adverse Possession § 54 (1972)). The fifth element, peaceful, was also satisfied “because the use was undisturbed.” Id. (citing 2 C.J.S. Adverse Possession § 169 (1972)). As with the sixth element, continuous and uninterrupted for ten years, the Court of Appeals found that since there had been no public dedication through the County Board of Supervisors’ designation of Duke Road as a public road, the County’s action regarding the road must be “deduced from [other actions illustrated in] the board of supervisor’s minutes.” Id. (citing Myers, 611 So.2d at 972). After a review of the Board of Supervisors’ minutes, the court found that the County had appropriated funds and maintained the road and the public had used the road for more than ten years. Id.

¶ 29. The facts and circumstances of the present case are very similar. Here we also have a family who aggrieved by traffic flow decided to prohibit the use of the road upon which their house sits. Instead of a gate, the Bryants chose to put individuals, such as Skates, on notice through written letter that indicating that they could no longer use Quasar Drive. Also, as in Turner, the Board of Supervisors has maintained and appropriated funds for Quasar Drive. Using the six elements above, Quasar Drive is a public road by prescription as illustrated below:

(1)Open, Notorious, and Visible:
Since 1964, Quasar Drive has been in public use, although not named at that time. The County has appropriated funds, maintained, and inspected Quasar Drive. Quasar Drive is listed on the State’s General Highway Map, the Adams County Civil Defense map, and Emergency 911 records.
From 1984 till 1997, the filing of this lawsuit, Skates has continuously used Quasar Drive.
Additionally, many commercial businesses are located in the area and at least one has used Quasar Drive as a recommended route to their business.
(2) Hostile:
To quote Turner, “the public [has] acted adversely to the interests of the owners of the land by entering onto and using the [Quasar Drive] without subservience to [the owners].” Id.
(3) Under Claim of Ownership:
The public has consistently acted to appropriate the land for its use as illustrated by the facts listed earlier.
(4) Exclusive:
The public’s maintenance of the road, posting and maintaining of stop signs and street signs, inspection of the road’s conditions, and mowing of the grass amount to acts asserting ownership and exclusive control.
(5) Peaceful:
Since around 1964 Quasar Drive has been in use by the public. There was only a momentary lapse of time whereby the conditions of portions of Quasar Drive made it hard to maneuver. However, these conditions were soon repaired, and there is evidence tending to show that even during this period of time the road was still in use.
From 1984 till 1997, the filing of this lawsuit, Skates has used Quasar Drive. There are many commercial businesses in the area and at least one is documented to have recommended Quasar Drive as a route of entry.

(6) Continuous and Uninterrupted for Ten Years:

Again, since around 1964, Quasar Drive has been in public use, although not named at the time. In fact from 1969 to 1989, a period of twenty years, the road was the exclusive ingress and egress to a trailer park situated on the George’s land. Quasar Drive was not only used by the trailer park residents but others included school buses, postmen, visitors, and county work crews. Additionally, from 1984 till 1997, the filing of this lawsuit, Skates has used Quasar Drive to access his property. There can be no doubt, Quasar Drive has been in continuous and uninterrupted use for over 10 years.

Having evaluated the facts according to the elements for prescriptive use, it is obvious that Quasar Drive is a public road by prescription.

¶ 30. Additionally, Jeffs argument regarding abandonment fails. “To constitute an abandonment, the use for which the property is dedicated must become impossible of execution, or the object of the use must wholly or totally fail.” Nettleton Church of Christ v. Conwill, 707 So.2d at 1077 (quoting 23 Am.Jur.2d Dedication § 67). “[M]ere nonuser will not constitute an abandonment.” Id. (citing Bright v. Michel, 242 Miss. 738, 137 So.2d 155, 158 (1962)).

¶ 31. The only conceivable evidence relating to abandonment is the assertion that for a period of unknown time a portion of Quasar Drive was allegedly incapable of passage. The key factor to this assertion is that it was only a portion of Quasar Drive that was allegedly overgrown making passage difficult. For the most part, Quasar Drive was still open and maneuverable and even that portion which was overgrown was not impassable. There has been no abandonment of Quasar Drive.

¶ 32. Thus, the chancellor and the Court of Appeals erred in failing to find that Quasar Drive is a public road. Accordingly, I would reverse their judgments and remand this case to the chancery court with directions that it enter an appropriate judgment adjudicating that Quasar Drive is a public road and finally dismissing the Bryants’ petition and this action with prejudice.

¶ 33. For these reasons, I dissent.

        . Other cases finding the same include Skrmetta v. Moore, 227 Miss. 119, 86 So.2d 46 (1956); Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625 (1927); Indianola Light, Ice & Coal Co. v. Montgomery, 85 Miss. 304, 37 So. 958 (1904); City of Vicksburg v. Marshall, 59 Miss. 563 (1882); Briel v. City of Natchez, 48 Miss. 423 (1873); Vick v. City of Vicksburg, 2 Miss. (1 How.) 379 (1837).

      . See also Coleman v. Shipp, 223 Miss. 516, 530-31, 78 So.2d 778, 784 (1955).

      . See also Sipes v. Town of Tishomingo, 735 So.2d 1047, 1050 (Miss.Ct.App.1999).


author: McRAE, Presiding Justice, COBB, Justice,

text:
    Jarvious COTTON, Anthony Miller, Samuel Pitchford, Howard Jennings, Carl David Grubb, Plez Curry, William Rankin, Johnny Hemphill, Glenn Perry McWilliams and James Glascow v. MISSISSIPPI PAROLE BOARD, Donald B. Pope, Kareem West, Morris Scott, Marilyn Starks and Patricia Miller.
    No. 2002-CP-01128-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2003.
    Rehearing Denied Jan. 29, 2004.

      Jarvious Cotton, appellant, pro se.
    Jane L. Mapp, Jackson, James M. Norris, attorneys for appellees.
   McRAE, Presiding Justice,

for the Court.

¶ 1. Mississippi inmates appeal the dismissal of their complaint against the Mississippi Parole Board and certain members which alleged that Parole Board members had abused their discretion in denying parole to these inmates. The inmates claim errors with regard to circuit court jurisdiction, Parole Board discretion, equal protection violations, and standing as to plaintiff Anthony Miller. Finding no error in the learned trial judge’s ruling, we hold that the Circuit Court of Sunflower County, Mississippi, did not have jurisdiction over this matter. Since we affirm as to the issue of lack of jurisdiction, we are not considering the two remaining issues for review, those being: (1) whether the Parole Board abused its discretion or violated the plaintiffs’ rights to equal protection under the United States Constitution; and (2) whether plaintiff Anthony Miller had standing to participate in this action since he is not allegeable for a parole hearing until September 2003.

FACTS AND PROCEEDINGS BELOW

¶ 2. Plaintiffs Jarvious Cotton (“Cotton”), Carl David Grubb (“Grubb”), William Rankin (“Rankin”), Glenn Perry McWilliams (“McWilliams”), Howard Jennings (“Jennings”), Plez Curry (“Curry”), Johnny Lee Hemphill (“Hemphill”), James Glascow (“Glascow”), Samuel Pitchford (“Pitchford”), and Anthony Miller (“Miller”) (collectively “Plaintiffs”) are all inmates in the Mississippi State Penitentiary in Parchman, Mississippi. All were sentenced to life imprisonment with the possibility of parole, and some were sentenced to additional terms in prison for various other crimes to be served consecutively with their life terms. The various crimes for which the plaintiffs were convicted include murder, armed robbery, and aggravated assault. The plaintiffs have already served anywhere from eight to twenty-four years of their sentences.

¶ 3. All of the plaintiffs, except Miller, have been considered for parole and been denied parole by the Mississippi state Parole Board (“Parole Board”). Grubb and Glasgow have been considered for and denied parole two times. Cotton, Curry, and Rankin have been considered for and denied parole three times. McWilliams and Hemphill have been considered for and denied parole four times. Pitchford has been considered for and denied parole six times. Jennings has been considered and denied parole several times. In denying these inmates parole, the parole board justified their actions by listed the following factors:

(1) The serious nature of the offense;
(2) The number of offenses committed;
(3) A police and/or juvenile record;
(4) A history of violence;
(5) Psychological or Psychiatric history;
(6) A history of drug or alcohol abuse;
(7) Crimes committed while incarcerated;
(8) Institutional disciplinary reports;
(9) A prior felony conviction;
(10) Community Opposition;
(11) Insufficient time served;
(12) The board is of the opinion that social, mental, or educational resources are lacking which are necessary to function successfully on parole; and
(13) The board believes that the ability or willingness to fulfill the obligation of a law abiding citizen is lacking, pursuant to Section 47-7-17 of the Miss.Code Ann., as amended.

Miller was not eligible for parole review until September of 2003.

¶ 4. On November 14, 2001, the plaintiffs filed a complaint in the Circuit Court of Sunflower County, Mississippi. The complaint claimed violations of the Eighth Amendment, Fourteenth Amendment, Miss.Code Ann. § 47-7-3, and Miss.Code Ann. § 47-7-17. The complaint alleged that each plaintiff had been denied equal protection and subjected to cruel and unusual punishment by the Parole Board’s repeated denial of parole. They argued that the factors utilized by the Parole Board were arbitrary and incapable of change, therefore effectively they were being denied the chance to even seek parole. The plaintiffs sought as relief (1) a declaratory judgment as to the unconstitutionality of the Parole Board’s methods and practices; (2) a declaratory judgment as to the unconstitutionality of the factors used by the Parole Board in its determinations; (3) a declaratory judgment as to the Parole Board’s abuse of discretion as to its implementation of the factors supplied in Miss.Code Ann. §§ 47-7-3, 47-7-5, & 47-7-17; (4) a declaratory judgment finding the Parole Board’s determinations to be an abuse of discretion; (5) a declaratory judgment finding the Parole Board’s determinations as to time served is an abuse of discretion; (6) a declaratory judgment finding the Parole Board’s determinations regarding community opposition as a factor under Miss.Code Ann. § 47-7-17 is a violation of the Equal Protection Clause of the Fourteenth Amendment; (7) injunctive relief enjoining the Parole Board from repeatedly using the same factors with each hearing; (8) injunctive relief enjoining the Parole Board from repeatedly using community opposition as a factor at each hearing; (9) injunctive relief enjoining the Parole Board from repeatedly using their belief of unwillingness to become a law abiding citizen as a factor without providing evidentiary support for such conclusion; (10) injunctive relief enjoining the Parole Board from denying the plaintiffs parole while granting other similarly situated inmates parole; (11) an award of plaintiffs’ costs and disbursements associated with this action; and (12) an award of any other equitable relief the court finds proper. The complaint asserts that jurisdiction is based on Barrett v. Miller, 599 So.2d 559 (Miss.1992) and Article 3, Section 24 of the Mississippi Constitution. Venue was claimed to be based on Rules 57 and 65 of the Mississippi Rules of Civil Procedure.

¶ 5. On December 4, 2001, the Mississippi Parole Board, Donald B. Pope, Morris Scott, Marilyn Starks, Patricia Miller, and Kareem West (“Defendants”) filed an answer which set forth affirmative defenses which included (1) lack of jurisdiction; (2) failure to state a claim upon which relief can be granted; and (3) Miller has no standing.

¶ 6. On December 19, 2001, the Circuit Court of Sunflower County issued an order dismissing plaintiffs’ complaint with prejudice. The Court found that the Parole Board has exclusive authority to grant or deny parole under Miss.Code Ann. § 47-7-5 with absolute discretion. See Scales v. Miss. State Parole Bd., 831 F.2d 565, 566 (5th Cir.1987). Each plaintiff, who is eligible for parole, has received all that is constitutionally mandated, that being a hearing. All plaintiffs were given a chance to present their reasons for parole and the Board, using statutory factors, determined all to be unentitled for parole at this time. He also found that Plaintiff Miller had no standing since he is not even eligible for parole. From this adverse ruling, the inmates now appeal.

DISCUSSION

¶ 7. Questions of law are reviewed de novo. Meeks v. State, 781 So.2d 109, 111 (Miss.2001) (quoting Brown v. State, 731 So.2d 595, 598 (Miss.1999)).

I. WHETHER THE CIRCUIT COURT HAD JURISDICTION OVER THIS MATTER.

¶ 8. The plaintiffs argue that jurisdiction in the Circuit Court of Sunflower County is proper since they are presently domiciled in Sunflower County at the Mississippi Department of Corrections in Parch-man, Mississippi. They argue that the Parole Board is a state agency, therefore constitutional and abuse of discretion claims are proper in the circuit court of the plaintiffs’ county of residence.

¶ 9. The State argues that there are certain instances where a circuit court does have jurisdiction over matters such as these, but under the present circumstances the Circuit Court of Sunflower County lacked jurisdiction. The State argues, and the circuit court found, that the plaintiffs failed to state sufficient facts in their complaint to vest the circuit court with jurisdiction.

¶ 10. There are two justifications for the circuit court’s dismissal of this action based on lack of jurisdiction. First, statutorily the circuit court had no authority to adjudicate the matters presented. It is well settled that “[a] right of appeal is statutory.” Bickham v. Dep’t of Mental Health, 592 So.2d 96, 97-98 (Miss.1991) (citations omitted). “A circuit court has no authority to judicially create a right of appeal from an administrative agency in the absence of clear statutory authority therefore.” Id. at 98. Since Title 47, Chapter 7 does not contain a statutory mandate granting circuit courts jurisdiction over appeals concerning the denial of parole, the circuit court was correct in dismissing the petition due, in part, to lack of jurisdiction.

¶ 11. Second, although a constitutional challenge can justify the assertion of jurisdiction, under the present circumstances the plaintiffs failed to state a claim sufficient for the circuit court to assert jurisdiction. Although it is recognized that Mississippi courts have a duty to hear and adjudge cases concerning constitutional issues despite a statutory mandate, that duty only arises when certain criteria are met. Barrett v. Miller, 599 So.2d 559, 564 (Miss.1992) (citing Starnes v. City of Vardaman, 580 So.2d 733, 737 (Miss.1991); City of Mound Bayou v. Johnson, 562 So.2d 1212 (Miss.1990); Marx v. Truck Renting & Leasing Ass’n, Inc., 520 So.2d 1333, 1346 (Miss.1987)). The plaintiffs’ complaint failed to adequately state a claim upon which the circuit court could assert jurisdiction. The complaint alleged the Parole Board had abused its discretion in violation of the Constitution. The complaint called for the circuit court to review the board’s determinations. By statute, the Parole Board is given “absolute discretion” to determine who is entitled to parole within the boundaries of factors set forth in Miss.Code Ann. § 47-7-3. See Miss. Code Ann. § 47-7-5; Scales v. Miss. State Parole Bd., 831 F.2d 565, 566 (5th Cir.1987); Shanks v. State, 672 So.2d 1207, 1208 (Miss.1996). Additionally, the Parole Board is the only determiner of parole. Id. Miss.Code Ann. § 47-7-5(3) states that “[t]he [parole] board shall have exclusive responsibility for the,granting of parole as provided by Section 47-7-3 and 47-7-17.” This control is independent of the circuit court’s sentencing authority. Mitchell v. State, 561 So.2d 1037, 1039 (Miss.1990); Haynes v. State, 811 So.2d 283, 285 (Miss.Ct.App.2001). For these reasons, the plaintiffs’ complaint, which in essence requested the circuit court to determine parole eligibility, was properly dismissed as a claim for which the circuit court had no jurisdiction.

II. WHETHER THE PAROLE BOARD ABUSED ITS DISCRETION OR VIOLATED THE PLAINTIFFS’ RIGHT TO EQUAL PROTECTION UNDER THE UNITED STATES CONSTITUTION.

III. WHETHER PLAINTIFF ANTHONY MILLER LACKED STANDING TO BRING THIS ACTION.

¶ 12. Having found that the- circuit court lacked jurisdiction to adjudicate the action, we need not address the merits of these issues.

CONCLUSION

¶ 13. The Circuit Court of Sunflower County did not have jurisdiction over this matter. For this reason, we need not address whether the Parole Board abused its discretion or violated the plaintiffs’ rights to equal protection under the United States Constitution or whether Plaintiff Miller had standing to participate in this action. Therefore, we affirm the circuit court’s judgment.

¶ 14. AFFIRMED.

SMITH, P.j;, AND WALLER, J., CONCUR. CARLSON, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., CONCURS IN RESULT ONLY. COBB, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, C.J., AND CARLSON, J. DIAZ AND EASLEY, JJ., NOT PARTICIPATING.

COBB, Justice,

CONCURRING IN PART AND IN RESULT.

¶ 15. I agree that the trial judge’s decision to dismiss this action was the right result. I write separately, however, in order to preclude possible misunderstanding caused by the holding in the trial court and in the majority opinion that the trial court has no jurisdiction in this matter.

¶ 16. After a complete review of the record, which included the 39 page pro se complaint with 64 pages of attached exhibits, the circuit court judge dismissed with prejudice the action filed by Cotton and nine of his fellow inmates (hereafter “inmates”), stating: “this Court finds that the procedures followed by the Mississippi parole board in granting or denying parole do not, in any way, violate Petitioners’ constitutional rights and are not arbitrary.” (emphasis added). The judge then concluded that “[this Court] lacks jurisdiction over this matter.” In his initial order, he stated “that each petitioner who is eligible for parole has received a parole hearing” and that “[a]t each parole hearing, the parole board properly considered the criteria found in Section 47-7-47 [sic] of the Mississippi Code in making a determination to deny parole.” He correctly cited Scales v. Mississippi State Parole Board, 831 F.2d 565 (5th Cir.1987) (in Mississippi, the absolute discretion conferred on the Parole Board affords a prisoner no constitutionally recognized liberty interest) and correctly declared that the parole board had absolute discretion over parole matters and exclusive authority to grant or deny parole, pursuant to Miss.Code Ann. § 47-7-5. In fact, the inmates had already conceded both these points of law in paragraph 3 of their complaint. However, Scales does not state that a circuit court lacks jurisdiction over all claims concerning parole.

¶ 17. Cotton and the other inmates subsequently filed a motion for relief from judgment pursuant to M.R.C.P. 60(b), claiming that Scales was erroneously used as the standard of law because the plaintiffs did not allege a due process or liberty interest, and the court failed to address a number of claims presented in their complaint, including, among others, violation of the equal protection provisions of the Fourteenth Amendment, and arbitrariness. The circuit judge considered the motion, and in his order he again acknowledged that the petitioners’ complaint alleged that “they had been denied parole based on unconstitutional, arbitrary procedures exercised by the parole board.” He then reiterated his earlier finding that the circuit court lacked jurisdiction over the actions of the parole board. However he also further addressed, albeit summarily, the allegations of the inmates, and again ruled that “the actions of the parole board did not in any way violate the constitutional rights of Petitioners” and “the parole board in each of the petitioners’ parole hearings used the criteria accepted by the Mississippi Supreme Court and proscribed [sic] by Mississippi Law in determining to deny Petitioners’ parole.” Although the order did not specifically address each of the inmates’ claims, the court obviously responded to the inmates’ claims, ruled summarily on the merits of the claims, and found no violations. In both orders the circuit court states that it lacks jurisdiction, but then discusses the merits. In the present case, the inmates clearly acknowledge state, on the second page of their complaint, that “[p]laintiffs know they have no Due Process rights to parole” and “no liberty interest in being released on parole.” However, the inmates also allege, as acknowledged in the majority opinion, “errors with regard to circuit court jurisdiction, ... equal protection violations, and standing as to plaintiff Anthony Miller.” Maj. Op. at ¶ 1.

¶ 18. The majority states at least five times that the circuit court did not have jurisdiction over this matter. In my view, either the circuit court has jurisdiction to decide the issues before it, or it does not. Since it summarily considered some of the issues and correctly ruled on their merits, how can it be said to “not have jurisdiction”? In my view, the judge correctly dismissed the inmates’ complaint, but it should have been dismissed for failure to state a claim upon which relief can be granted. M.R.C.P. 12(b)(6). Although the inmates improperly sought relief under Rule 60(b), the Parole Board included “fail[ure] to state a claim for which relief can be granted” as one of its affirmative defenses.

¶ 19. The majority gives two justifications for the circuit court’s dismissal. First, the circuit court lacked statutory jurisdiction because Title 47, Chapter 7 of the Miss.Code does not contain a mandate granting the court jurisdiction over appeals concerning parole. Maj. Op. at ¶ 10. Second, the majority states that “although a constitutional challenge can justify the assertion of jurisdiction, under the present circumstances the plaintiffs failed to state a claim sufficient for the circuit court to assert jurisdiction.” Id. at ¶ 11. The majority goes on to find that our state courts have a duty to hear and adjudge cases concerning constitutional issues despite a statutory mandate, but then states that “that duty only arises when certain criteria are met.” It offers, however, no criteria to be used in the present situation. In support of this position, the majority cites four cases, all of which are 42 U.S.C. § 1983 cases, and none of which are on point. The inmates do, however, devote two paragraphs of their complaint to a general § 1983 allegation that the process and method used by the Parole Board to determine whether to grant or deny parole have deprived them of rights under the eighth and fourteenth amendments, and that they have no adequate remedy at law. The trial court did not address this claim.

¶ 20. In my view, Justus v. State, 750 So.2d 1277 (Miss.Ct.App.1999), arising out of very similar facts and circumstances, illustrates a practical approach and analysis. Justus was denied parole and filed a petition for a writ of habeas corpus, alleging that he was denied equal protection and due process when he was denied parole. Id. at 1278. The trial judge dismissed the claim, and the inmate appealed. Id. The Court of Appeals unanimously affirmed the trial court, but did not address why the trial court dismissed the case, nor did it address the jurisdiction of the trial court (though it did emphasize the discretion of the Parole Board). However, the trial court did address Justus’s allegations of equal protection violations and ultimately found no merit in the equal protection claim. Id.

¶ 21. The inmates in the case sub judice have also asserted an equal protection claim. While the majority states that certain constitutional challenges can justify the jurisdiction, it goes on to say that “under the present circumstances, the plaintiffs failed to state a claim ‘sufficient’ for the circuit court to assert jurisdiction” Maj. Op. ¶ 11. However, it gives no insight as to the point at which such sufficiency creates circuit court jurisdiction.

¶ 22. In my view, the circuit court had jurisdiction to decide the present case. Although the circuit court has no jurisdiction to review the Parole Board’s determinations and decide whether they were correct, the circuit court does have jurisdiction to determine whether or not the Board acted arbitrarily or in contravention of equal protection. While the circuit court may not be able to render or determine parole decisions, the inmates incarcerated in Sunflower County should be able to seek the protection of constitutionally protected rights in the Circuit Court of Sunflower County.

¶ 23. In the case at bar, although finding it had no jurisdiction, the trial court did consider whether or not the process and decision of the board was arbitrary and concluded that the Board did not abuse its discretion. Though the trial court did not address the constitutional claims with specificity, it considered the entire record before it, and the constitutional issues were clearly set forth.

¶ 24. It is certainly not my intention to burden the Circuit Court of Sunflower County (or any county) by requiring it to spend precious time addressing meritless, bare-bones allegations of various constitutional violations in the myriad complaints filed by MDOC inmates. Apparently the circuit judge here felt that the inmates had provided sufficient specificity to at least respond to some of the allegations. To simply find that the circuit court lacks jurisdiction because the complaint involves a parole board decision, without more, could mislead other judges in similar situations to dismiss cases for lack of jurisdiction without even considering any of the allegations in the petitions before them. Here, the learned circuit judge used the right process and reached the right decision, but used somewhat inexact language. I would affirm the dismissal, but with a clearer statement of the applicable law.

PITTMAN, C.J., AND CARLSON, J., JOIN THIS OPINION.

      . The record does not reflect the specific crimes for which Grubb, Jennings, Curry, Glasgcow, Pitchford, and Miller were convicted. The record only indicates that all received a life sentence with parole eligibility.

      . The record only states that Jennings has been denied parole "several times.” The record does not state the specific amount of times McWilliams was considered for and denied parole.

      . For the record, we are not, as the concurring opinion asserts, holding that the circuit court lacks jurisdiction in all matters which touch upon parole. What we are holding is that in a situation such as this, where the inmates are appealing to the circuit court for a determination as to their parole eligibility, the circuit court lacks jurisdiction as it has no authority to determine parole eligibility. The inmates in the present action are not asking the circuit court to review whether the parole board is following their statutorily mandated duties and requirements regarding determining parole eligibility; but rather the inmates are requesting that the circuit court itself should weigh the factors used for parole eligibility and determine itself whether each inmate petitioner is entitled to parole. Again, our holding today does not preclude inmate appeals to the circuit court concerning a constitutional matter; but rather we are holding that under the present circumstances the circuit court lacks jurisdiction to adjudicate the merits of plaintiffs' claims that they are entitled to parole under the application of certain parole factors.

      . Miss.Code Ann. § 47-5-17 contains a partial listing of the criteria to be considered by the Parole Board.

      . Barrett v. Miller, 599 So.2d 559 (Miss.1992) (arising out of actions by law enforcement officers in the course of searching a home);

        Starnes v. City of Vardaman, 580 So.2d 733 (Miss.1991) (action filed by a state inmate who was injured while on a work detail);

        City of Mound Bayou v. Johnson, 562 So.2d 1212 (Miss.1990) (action filed by an arrestee against the city and police officer for injuries at time of arrest);

        Marx v. Truck Renting & Leasing Ass'n, Inc., 520 So.2d 1333 (Miss.1987) (case brought in regard to state taxes on nonstate leased equipment).


author: COBB, Justice, McRAE, Presiding Justice,

text:
    FRANKLIN COLLECTION SERVICE, INC. and Unknown Attorney “A” v. Jerry STEWART and Leola Stewart; Franklin Collection Service, Inc. and Attorney T. Dale Beavers v. R.D. Malone. Franklin Collection Service, Inc. and Attorney Jeffrey Waldo v. Brenda Cockrell. Franklin Collection Service, Inc. and Attorney Mary E. Mason v. Walter & Ethel Woods. Franklin Collection Service, Inc. and Attorney Jeffrey Waldo v. William D. Binion. Franklin Collection Service, Inc. and Attorney T. Dale Beavers v. Shalonda Jones a/k/a Shalonda Smart. Franklin Collection Service, Inc. and Attorney T. Dale Beavers v. Annie P. Tate. Franklin Collection Service, Inc. and Attorney T. Dale Beavers v. Lee V. Wilkerson. Franklin Collection Service, Inc. and Attorney Mary E. Mason v. Bessie M. Neal.
    Nos. 2002-IA-00591-SCT to 2002-IA-00599-SCT.
    Supreme Court of Mississippi.
    Dec. 31, 2003.

      William V. Westbrook, III, Gulfport, John Paul Barber, Charles G. Perkins, Macon, attorneys for appellants.
    Armstrong Walters, Thomas L. Kesler, Columbus, Bennie L. Turner, West Point, attorneys for appellees.
   COBB, Justice,

for the Court.

¶ 1. Franklin Collection Service, Inc. (Franklin) filed nine separate actions in the Noxubee County Justice Court over a period of four and a half years between June 1996 and December 2000. All sought to obtain judgments for unpaid medical bills owed to various medical service providers plus attorney’s fees and court costs. It is undisputed that each of the justice court defendants was a Noxubee County resident and was properly served with process. Each of the standard “form” complaints stated the amount owed to the service provider plus a specific amount for the attorney’s fee and for court costs. Further, the complaints stated that the debts were incurred upon open account, that the indebtedness had been assigned fully to Franklin, that a written demand for payment had been made more than 30 days before the suit was filed, and that the debtors had failed or refused to pay. In addition, the complaint stated that Franklin had hired counsel to prosecute the collection suit. None of the justice court defendants answered the complaint filed against them, and default judgments were entered against each one. Details of each of the nine complaints, including the following itemization of the judgments, are as follows:

With the exception of Mrs. Neal, whose $50 attorney fee was $7 more than one-third of her indebtedness, the percentage of the debt owed which was allocated for attorney’s fees was well within the presumptively reasonable one-third of the indebtedness which this Court has traditionally approved as reasonable awards of attorneys’ fees in collection matters.

¶ 2. On December 18, 2000, each of the debtors filed separate civil actions against Franklin in the Noxubee County Circuit Court, alleging that the debts sued upon were not open accounts and that Franklin and its attorneys perpetrated a fraud on the court and abuse of process on the debtors. In January 2001, the case was removed to federal court. In June of 2001 it was remanded to the Noxubee County Circuit Court, after the federal court held that the debtor’s action was not completely preempted by the Fair Debt Collections Practices Act.

¶ 3. On April 4, 2002, the Noxubee County Circuit Court entered an order denying the motion to dismiss or for summary judgment filed by Franklin, and certified four issues for interlocutory appeal to this Court, which are consolidated into the three issues discussed below. We granted Franklin’s petitions to bring these consolidated interlocutory appeals. See M.R.A.P. 5.

FACTS

¶ 4. For the purposes of this opinion the facts are limited to those which led to this appeal, not the underlying facts which led to the original complaints in justice court against the circuit court plaintiffs.

¶ 5. These actions involve eleven plaintiffs, all Noxubee County residents against whom Franklin, through attorneys T. Dale Beavers (Beavers), Mary E. Mason (Mason), Jeffrey Waldo (Waldo), and Unknown Attorney A (Attorney A), instituted collection proceedings in the Justice Court of Noxubee County, concerning unpaid medical bills for various medical services. It is undisputed that service of process was properly obtained on all, that the amount billed by the medical providers was owed, and that none of the justice court defendants appeared in the justice court or contested the allegations in the complaint in any way. In due time, default judgments were entered. In all eases, the judgment sought by Franklin included the debt amount, plus a specific attorney’s fee, plus court costs. No appeals were perfected by any of the justice court defendants.

¶ 6. On December 18, 2000, the justice court defendants filed their circuit court complaints, in separate actions, against Franklin and Beavers, Mason, Waldo and Attorney A, seeking, as damages, recovery of the attorney’s fees awarded by the justice court judgments and also seeking punitive damages and court costs, based upon a putative claim for “misrepresentation and abuse of process” and “perpetration of] a fraud on the Justice Court of Noxubee County.” Franklin responded by filing a motion to dismiss or for summary judgment, arguing that because none of the justice court judgments had been appealed, any challenge in the circuit court concerning the propriety of the “open account” attorney’s fee remedy, as well as the fee amount awarded, was barred.

¶ 7. The circuit court denied Franklin’s motion to dismiss or for summary judgment; however, leave was given for Franklin to seek an interlocutory appeal. Four issues were certified for these consolidated interlocutory appeals. After careful consideration, this Court finds that the challenge to the application of the open account collection law and procedure raised by the plaintiffs is barred by the doctrine of res judicata and that the assertions made regarding misrepresentation, fraud and abuse of process are without merit. Accordingly, this Court reverses and renders the judgment of the Noxubee County Circuit Court. For the sake of clarity, the issues have been combined and reworded.

DISCUSSION

I. WHETHER THE JUSTICE COURT JUDGMENT BARS ANY LITIGATION CONCERNING THE AWARD OF ATTORNEY’S FEES WHEN NO DIRECT APPEAL WAS TAKEN FROM THE JUSTICE COURT RULING.

¶ 8. The plaintiffs argue that the res judicata argument is inapplicable because their failure to appear and to perfect an appeal does not bar this subsequent litigation which is based on a scheme to cheat and defraud. They further argue that Franklin used tactics that constituted a fraud upon the court and constituted ethical violations which led to an abuse of process. We hold that res judicata is applicable with regard to the questions regarding the open account procedure, award of attorney’s fees and failure to appeal, but that it does not foreclose, under the facts and circumstances of this case, our review of the allegations of misrepresentation, fraud and abuse of process.

¶ 9. The doctrine of res judicata reflects the refusal of the law to tolerate a multiplicity of litigation. Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337 (Miss.1997). Res judicata bars all issues that might have been (or could have been) raised and decided in the initial suit, in addition to all issues that were actually decided in the first action. It is a doctrine of public policy “designed to avoid the ‘expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.’ ” Id.

¶ 10. A judgment for default may be entered if the defendant fails to appear and the plaintiff appears. Uniform Rules of Procedure For Justice Court 2.06. In order for a court to enter a default judgment, the court must have had jurisdiction and proper service of process. McCain v. Dauzat, 791 So.2d 839, 842 (Miss.2001). A judgment by default is given the same effect as if a verdict was entered for the plaintiff and accordingly can have preclusive effect on other litigation. Strain v. Gayden, 197 Miss. 353, 20 So.2d 697, 700 (1945). See also In re Evans, 252 B.R. 366, 371 (Bankr.N.D.Miss.2000). The proper procedure for an appeal from a justice court judgment is found in Miss.Code Ann. § 11-51-91 (Rev.2002), which allows for a de novo trial by the circuit court.

¶ 11. None of the circuit court plaintiffs allege they were improperly served nor do any allege jurisdiction was improper in the justice court. Further, they do not dispute that the debt was actually owed. They did not avail themselves of presenting a defense in the justice court to the underlying collection action, and then they neglected to appeal from the default judgment rendered by the justice court.

¶ 12. The plaintiffs are basing their complaints upon the alleged improper collection of attorneys’ fees in the underlying collection actions instituted by Franklin but argue that they do not dispute the original debt. The amount of the debt for which Franklin sued included attorney’s fees and court costs, and this is the same amount awarded by the justice court in the default judgments.

¶ 13. The plaintiffs cannot simply fail to defend a suit to collect a debt and also fail to appeal the default judgment entered against them and then file suit and argue that the judgment, though not in dispute, was the result of fraud or abuse of process. If they do so, they do so at their own peril, especially in circumstances such as those before this Court, where their allegations of fraud and abuse of process are without merit. The proper avenue available to attack the judgment, the attorney’s fees awarded and the alleged fraud was to defend the action in justice court or to make a timely appeal of the judgment to the circuit court. The plaintiffs are procedurally barred by the doctrine of res judicata from bringing any action concerning the default judgments of the justice court.

II. WHETHER THE JUSTICE COURT MAY ENTER A DEFAULT JUDGMENT AND AWARD ATTORNEY’S FEES ON “OPEN ACCOUNTS.”

¶ 14. Franklin argues that the unpaid debts were “open accounts” and therefore subject to Miss.Code Ann. § 11-53-81 (Rev.2002) which provides for recovery of the attorneys’ fees along with the debts. The plaintiffs argue that the debts are not open accounts within the meaning of § 11-53-81. This Court has defined an “open account” as an account based on continuing transactions between the parties which have not closed or been settled. Westinghouse Credit Corp. v. Moore & McCalib, Inc., 361 So.2d 990, 992 (Miss.1978). We have also recognized that a collection for recovery, on an open account, amounts to a collection action where the debt is based on a series of credit transactions. Allen v. Mac Tools, Inc. 671 So.2d 636, 644 (Miss.1996).

¶ 15. It has long been held that § 11-53-81 is applicable in the collection of medical bills, either in a direct action by the unpaid medical provider or by a collection agent or agency acting on behalf of the medical provider. The availability of this remedy is generally well settled, and we find nothing in the cases before us to warrant a departure from the rule that accounts established by medical providers for services provided to their patients are open accounts within the purview of § 11-53-81, and the statutory provision that “the person who fails to pay the open account shall be liable for reasonable attorney’s fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff’ is applicable. In Anderson v. Lancaster, 215 Miss. 179, 60 So.2d 595 (1952) this Court acknowledged that medical accounts are considered “open accounts.” In Anderson, the doctor and patient had a verbal agreement concerning the date on which payment of the open account would be made, and this Court found for the doctor on a statute of limitations claim. Id. at 596-97. In Wise v. Gulf States Collection Services, 633 So.2d 1025, 1027 (Miss.1994), an attorney for the collection agency sent a collection letter regarding an unpaid bill due to Forrest General Hospital for an unpaid bill for an adopted baby’s seven-week stay in the hospital. The bill was disputed by the adopting parents who had not been involved with the hospital arrangements. This Court acknowledged that the case brought by the collection agency was “an ordinary contract case involving a suit on an open account” and because the adopting parents, who had not sought the services nor entered into any agreement to be responsible for the hospital bills, could not be found liable.

¶ 16. Miss.Code Ann. § 11-9-127 (Supp.2003) provides that a justice court judge can enter a default judgment against one or more parties that fail to appear before the court on the specified trial date. The plaintiffs do not deny that they were all properly served with process and all failed to appear and defend the collection action. Pursuant to statutory law, the justice court was not in error by entering a default judgment, which included reasonable attorney’s fees, on Franklin’s collection actions against the plaintiffs.

III. WHETHER A DEBTOR MAY PROCEED IN AN INDEPENDENT ACTION AGAINST THE CREDITOR COLLECTION AGENCY WHEN THE DEBTOR FAILED TO DEFEND OR APPEAL THE ORIGINAL JUDGMENT.

¶ 17. The plaintiffs allege that Franklin and its attorneys are liable for an abuse of process in the collection of attorney’s fees and that they violated certain ethical rules regarding fee sharing with non-lawyers.

¶ 18. “The elements of abuse of process are: (1) the party made an illegal use of the process, a use neither warranted nor authorized by the process, (2) the party had an ulterior motive, and (3) damage resulted from the perverted use of process.” McLain v. West Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss.1995). The record is devoid of any evidence to support the plaintiffs’ claims of abuse of process. The allegations of the plaintiffs that the debts owed were not debts for which attorney’s fees are authorized by the open account provisions of § 11-53-81, and that Franklin and its attorneys knew that, are simply unfounded. Franklin had ample cause to file the collection actions against the plaintiffs, and even if it were assumed, for argument sake, that Franklin violated any ethical rules regarding their attorneys, that alone would not be enough support this claim as an independent civil action.

CONCLUSION

¶ 19. We hold that the circuit court erred by denying Franklin’s motion to dismiss or for summary judgment. The plaintiffs’ actions are procedurally barred with regard to their claims on the merits regarding attorneys’ fees, by the doctrine of res judicata. Because we hold that collection of debts incurred for services performed by medical providers are properly pursued as open accounts under § 11— 53-81, there is no merit to the claims of abuse of process. Therefore, we reverse the circuit court’s orders denying Franklin’s motions to dismiss or for summary judgment, and we render summary judgment finally dismissing the plaintiffs’ complaints and actions with prejudice.

¶ 20. REVERSED AND RENDERED.

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

McRAE, Presiding Justice,

Dissenting.

¶21. The trial court’s denial of summary judgment should be affirmed as there are disputed issues of material fact. Such disputed issues of material fact are critical in determining: (1) Whether the collection proceedings in question were in fact open accounts within the meaning of Miss.Code Ann. § 11-53-81 (Rev.2002); and (2) Whether Franklin Collection was entitled to attorney’s fees during the collection proceeding. Also presented on appeal are two issues of law, those being: (3) Whether the plaintiffs are procedurally barred from pursuing a claim for abuse of process; and (4) Whether a private right of action exists for the plaintiffs against Franklin Collection for its alleged ethical and discipline violations. The plaintiffs are not procedurally barred from pursuing a claim for abuse of process and although the alleged ethical and discipline violations by Franklin Collection do not create a private right of action, they do provide evidence of the underlying claim of abuse of process. For these reasons, I dissent.

¶ 22. One of the critical areas of inquiry is whether the collection proceedings in question were in fact “open accounts” within the meaning of Miss.Code Ann. § 11-53-81 (Rev.2002). Section 11-53-81 provides for the recovery of “reasonable attorney’s fees” for the prosecution and collection of an “open account.” Miss. Code Ann. § 11-53-81. The critical factual issue which determines whether “reasonable attorney’s fees” are appropriate is the determination of whether the collection proceeding in question was in fact on an “open account.”

¶ 23. “Open account” has been defined several times by this Court. “[I]t is generally held to mean an account based on continuing transactions between the parties which has not been closed or settled but is kept open in anticipation of further transactions.” Westinghouse Credit Corp. v. Moore & McCalib, Inc., 361 So.2d 990, 992 (Miss.1978). It is a “[t]ype of credit extended through an advance agreement by a seller to a buyer which permits the buyer to make purchases without a note of security and is based on an evaluation of the buyer’s credit.” Allen v. Mac Tools, Inc., 671 So.2d 636, 644 (Miss.1996) (quoting Black’s Law Dictionary 1090 (6th ed.1990)). Essentially, an action on an open account is “an action to collect on a debt created by a series of credit transactions.” Allen, 671 So.2d at 644.

¶ 24. In our analysis we have found many transactions and debts to indeed be “open accounts” under the statute. Such transactions which have been found to be “open accounts” include a collection proceeding by a gasoline distributor against a debtor purchaser; a creditor suit initiated by a steel galvanizer against a steel fabricator for unpaid services; a creditor suit initiated by a box company against a toy manufacturer for unpaid services; and a collection proceeding initiated by a doctor or hospital to collect for unpaid medical bills. Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 53-54 (Miss.1998); McLain v. West Side Bone & Joint Ctr., 656 So.2d 119, 121 (Miss.1995); Wise v. Gulf States Collection Servs., 633 So.2d 1025, 1027 (Miss.1994); Dynasteel Corp. v. Aztec Indus., Inc., 611 So.2d 977, 979-80 (Miss.1992); Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss.1986); Anderson v. Lancaster, 215 Miss. 179, 60 So.2d 595, 596 (1952). Of course, assignees of those entitled to collect under an “open account” may also proceed under the statute and collect attorneys’ fees. Ashby v. Carr, 40 Miss. 64, 1866 WL 2918, **1-2 (1866). However, this Court has never addressed whether an account receivable, an unpaid medical bill in this case, can be sold to a collection agency and still keep its “open account” status. Looking to the definitions given above, it is apparent that an account receivable sold does in fact lose its “open account” status, as no other transactions are anticipated between the parties and the creditor. Here the hospital has essentially closed the account by selling it to the collection agency.

¶ 25. The record presented on appeal is incomplete, and a determination of whether the medical bills in question qualify for “open account” status are still up in the air. There is no evidence either way which indicates whether the medical accounts receivables were “sold” or “assigned” to Franklin Collection. Without this information, a determination cannot be made as to whether the collection proceedings were in fact on an “open account,” therefore invoking the “reasonable attorney’s fees” provision of § 11-53-81. More discovery and fact finding is needed on this issue making summary judgment at this point inappropriate.

¶ 26. Another critical issue in dispute is whether Franklin Collection was entitled to attorney’s fees in the collection proceedings. This issue in many respects hinges on whether the debt as held by Franklin Collection was an “open account,” which as stated earlier, fact finding is needed for such a determination. This inquiry also turns on information which emerged regarding the practices of Franklin Collection, lay persons drafting and signing complaints and the sending of lay persons to court to collect upon the debt.

¶ 27. Even if the collection proceeding is found to indeed be upon an “open account,” issues still exist with regard to the practices of Franklin Collection and the reasonableness of the fees assessed. Deposition testimony indicates that Franklin Collection not only had unlicensed individuals draft the collection complaints but also sent them to court to collect upon the debt. Honestly, how can Franklin Collection be entitled to attorney’s fees if no attorneys did any work? Also at issue is whether the attorney’s fees rendered and collected by Franklin Collection are in fact “reasonable.” If no attorney worked on the collection proceeding, then it is evident that any award of attorney’s fees is not reasonable. Further, if all that is required for collection is a fill-in-the-blank form and a five-minute wait in justice court, then the attorney’s fees awarded may indeed be unreasonable. For example, William Bin-ion owed Clay County Hospital $163.00 in unpaid medical bills, but in the end Franklin Collection sought a judgment for $267.00 which not only included the debt but $50.00 in attorney’s fees and $54.00 in court costs.

¶ 28. Also at issue is whether the plaintiffs can procedurally maintain an action for abuse of process. Franklin Collection argues that the plaintiffs are precluded from asserting this claim since they did not raise it as a counterclaim during the justice court collection proceeding. This is not so. Malicious prosecution and abuse of process claims are not mandatory counterclaims. Moon v. Condere Corp., 690 So.2d 1191, 1198-1200 (Miss.1997). Further, counterclaims in justice court are permissible, not compulsory. URPJC 2.07.

¶ 29. Lastly, as a question of law, we are called upon to determine whether a private right of action exists for the plaintiffs against Franklin Collection for its ethical and discipline violations. The straight answer is that no private right of action exists for violations of ethical and/or discipline rules. See Miss. R. Profl Conduct Scope. However, that does not mean that violations may not be used in support of a separate independent cause of action. Under the present circumstances, the plaintiffs have asserted a claim of abuse of process. In making their case, they should be able to use violations of the ethical and discipline rules to prove the elements of their claim. Other jurisdictions have held that ethical and discipline violations can be used as evidence to support a separate independent civil action. Allen v. Lefkoff, Duncan, Grimes, & Dermer, P.C., 265 Ga. 374, 374-77, 453 S.E.2d 719, 720-22 (1995); Mayol v. Summers, Watson, & Kimpel, 223 Ill.App.3d 794, 810, 166 Ill.Dec. 154, 585 N.E.2d 1176, 1186 (1992).

¶ 30. For the above reasons, I would affirm the learned trial judge and remand these cases for further proceedings.

      . See Dynasteel Corp. v. Aztec Indus., Inc. 611 So.2d 977, 987 (Miss.1992). See also Estate of Baxter v. Shaw Assocs., Inc., 797 So.2d 396 (Miss.Ct.App.2001) (There is a presumption in a collection suit in favor of awarding fees in the amount of one third of the indebtedness).

      . The fraud allegation was that Franldin and its attorneys "knew, or should have known, the debt owed by the Plaintiffs was not a debt for which attorney’s fees are authorized under § 11-53-81" (the open account statute) and that the attorneys did not “advise the Justice Court Judge the debt was not an open account.” The abuse of process allegation was that Franklin and its attorneys, in seeking collection of attorneys’ fees in this manner, made "[ajllegations attorney fees were owed pursuant to § 11-53-81 [which] were false."

      . See also Allen v. Mac Tools, Inc., 671 So.2d 636, 644 (Miss.1996); Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908, 915 (Miss.1993).

      . See also H & H Design Builders, Inc. v. Travelers’ Indem. Co., 639 So.2d 697 (Fla.Dist.Ct.App.1994); Central Ins. Underwriters, Inc. v. National Ins. Co., 599 So.2d 1371 (Fla.Dist.Ct.App.1992); Robert W. Gottfried, Inc. v. Cole, 454 So.2d 695 (Fla.Dist.Ct.App.1984).

      . The elements for abuse of process include: "(1) the party made an illegal use of the process, a use neither warranted nor authorized by the process; (2) the party had an ulterior motive; and (3) damage resulted from the perverted use of process.” McLain v. West Side Bone & Joint Ctr., 656 So.2d at 123 (citing State ex rel. Foster v. Turner, 319 So.2d 233, 236 (Miss.1975)). "[A]n action for abuse of process may arise where there is a 'malicious perversion of a regularly issued civil or criminal process, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby, and for which perversion an action will lie to recover the pecuniary loss sustained.' " Moon v. Condere Corp., 690 So.2d at 1197 (quoting State ex rel. Foster, 319 So.2d at 236).