author: EASLEY, Justice, RANDOLPH, Justice, DIAZ, Presiding Justice,

text:
    Janice CALDWELL and Husband, Robert C. Caldwell v. NORTH MISSISSIPPI MEDICAL CENTER, INC. and Elizabeth Brown, Executrix of the Estate of Alan Paul Brown, M.D., Deceased.
    No. 2006-CA-00630-SCT.
    Supreme Court of Mississippi.
    May 24, 2007.

      John H. Cocke, Clarksdale, attorney for appellants.
    John G. Wheeler, William Daniel Pres-tage, Tupelo, attorneys for appellees.
   EASLEY, Justice,

for the Court.

FACTUAL AND PROCEDURAL HISTORY

¶ 1. On May 5, 2005, Janice Caldwell and Robert C. Caldwell, collectively, “the Cald-wells,” filed suit against North Mississippi Medical Center, Inc., (NMMC) and Alan Paul Brown, M.D., (Dr. Brown), collectively, “the Defendants,” alleging medical malpractice. The Defendants filed their joint answer and defenses on June 9, 2005. One of the affirmative defenses alleged that the Caldwells failed to state a claim upon which relief could be granted due to their failure to comply with Miss.Code Ann. § 11-1-58 (Supp.2006). After filing his answer and defenses, Dr. Brown died.

¶ 2. On August 12, 2005, the Caldwells filed a motion for substitution to replace Dr. Brown as the defendant and substitute the Estate of Alan Paul Brown, M.D., Deceased (the Estate) as the defendant. On September 12, 2005, the trial court granted the substitution of the Estate in place of Dr. Brown. The Caldwells filed an expert disclosure in lieu of certificate of counsel on September 15,2005.

¶ 3. On October 12, 2005, the Caldwells filed an amended complaint substituting the Estate for Dr. Brown. However, neither a certificate executed by the attorney for the plaintiff nor an expert disclosure in lieu of certificate of counsel accompanied the amended complaint filed against NMMC and the Estate. NMMC and the Estate then filed an amended joint answer and defenses to the amended complaint. Among the defenses raised, NMMC and the Estate, now substituted for Dr. Brown, raised the affirmative defense that the Caldwells had failed to comply with Miss. Code Ann. § 11-1-58 (Supp.2006).

¶ 4. On December 28, 2005, the Defendants filed a joint motion to dismiss for the Caldwells’ failure to comply with Miss. Code Ann. § 11-1-58. On March 10, 2006, the trial court conducted a hearing on the motion to dismiss. Following its bench ruling, the court entered its detailed order of dismissal without prejudice on March 21, 2006.

¶ 5. The Caldwells now appeal to this Court raising the following assignment of error: whether the trial court erred in granting the motion to dismiss the Defendants.

ANALYSIS

¶ 6. On appeal, the Caldwells contend that the trial court erred by granting NMMC’s motion to dismiss for the Cald-wells’ failure to strictly comply with the statutory requirements of Miss.Code Ann. § 11-1-58. The Caldwells assert the error was corrected before NMMC filed its motion to dismiss, thereby substantially complying with the requirements of Miss.Code Ann. § 11-1-58. This Court reviews a trial court’s decision to grant or deny a motion for summary judgment or a motion to dismiss under a de novo standard. Monsanto v. Hall, 912 So.2d 134, 136 (Miss.2005).

¶ 7. To address the Caldwells’ assignment of error, we must examine the application and operation of Miss.Code Ann. § 11-1-58, which was effective on and after January 1, 2003, as to all causes of action filed on or after that date. The Caldwells’ action was filed on May 5, 2005, for alleged injuries received in August 2003, so it is governed by that statute.

¶ 8. Miss.Code Ann. § 11 — 1—58(l)(a) (Supp.2006) provides:

(1) In any action against a licensed physician, health care provider or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certificate executed by the attorney for the plaintiff declaring that:
(a) The attorney has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action;....

(Emphasis added).

¶ 9. Miss.Code Ann. § 11 — 1—58(l)(b) requires that the suit be dismissed for failure to comply with these mandatory requirements unless the attorney for the plaintiff declares:

The attorney was unable to obtain the consultation required by paragraph (a) of this subsection because a limitation of time established by Section 15-1-36 would bar the action and that the consultation could not reasonably be obtained before such time expired. A certificate executed pursuant to this paragraph (b) shall be supplemented by a certificate of consultation pursuant to paragraph (a) or (c) within sixty (60) days after service of the complaint or the suit shall be dismissed;

(Emphasis added).

¶ 10. “The phrase ‘intent of the Legislature,’ is often used when what is really meant is ‘intent of the statute.’ ” Pope v. Brock, 912 So.2d 935, 937 (Miss.2005). When construing the meaning of a statute, we must look at the words of the statute. Pinkton v. State, 481 So.2d 306, 309 (Miss.1985). “In construing statutes, the chief desire of the courts is to reach the real intention of the Legislature, and knowing this, to adopt that interpretation which will meet the real meaning, though such interpretation may be beyond or within, wider or narrower, than the mere letter of the statute.” Gambrill v. Gulf States Creosoting Co., 216 Miss. 505, 62 So.2d 772, 775 (1953); see Miss. Casino Operators Ass’n v. Miss. Gaming Comm/n, 654 So.2d 892, 894 (Miss.1995). As such, “our duty is to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.” Pope, 912 So.2d at 937.

¶ 11. In the original complaint filed by the Caldwells on May 5, 2005, NMMC and Dr. Brown were named as defendants. NMMC and Dr. Brown filed their joint answer on June 9, 2005, raising various defenses. Among the various defenses raised, NMMC and Dr. Brown specifically raised the following in the second defense:

The plaintiffs failed to comply with the requirements of MISS. CODE ANN. § 15-1-36(15) (1972, as amended) and § 11-1-58 (2002), and thus, the Complaint fails to state a claim upon which relief can be granted and should be dismissed with prejudice.

¶ 12. Dr. Brown died on June 9, 2005. On August 12, 2005, the Caldwells filed a motion for substitution to replace Dr. Brown as the named defendant and substitute Dr. Brown’s Estate as the defendant. The amended complaint substituting the “Estate of Alan Paul Brown, M.D., Deceased for the Defendant, Alan Paul Brown, M.D.,” was filed on October 12, 2005. The trial court granted the motion to substitute the Estate for the late Dr. Brown on September 12, 2005.

¶ 13. The Caldwells filed an expert disclosure in lieu of certificate of counsel on September 15, 2005. However, clearly this was neither filed by the Caldwells when the original complaint was filed on May 5, 2005, as required by Miss.Code Ann. § 11-1-58(1), nor was it filed within 60 days of serving the complaint as alternatively required by Miss.Code Ann. § 11 — 1—58(l)(b). Further, the amended complaint did not attach a certificate executed by the attorney for the plaintiff or an expert disclosure in lieu of certificate of counsel when it was filed. The Caldwells ask this Court to find that they substantially complied with Miss. Code Ann. § 11-1-58 by untimely filing the expert disclosure in lieu of certificate of counsel before they filed the amended compliant. The Caldwells’ argument is seriously flawed.

¶ 14. First, this Court has held that we apply strict compliance in examining whether the requirements of Miss.Code Ann. § 11-1-58(1) were satisfied. Walker v. Whitfield Nursing Ctr., Inc., 931 So.2d 583, 588-89 (Miss.2006). In Walker, this Court rejected Walker’s request that this Court find that she substantially complied with the mandatory requirements of Miss. Code Ann. 11-1-58(1). Id. at 589. The Court further stated:

. In University of Mississippi Medical Center v. Easterling, 928 So.2d 815, 820 (Miss.2006), this Court adopted strict compliance as to the ninety-day notice requirement under Miss.Code Ann. § 11-46-11(1). While Easterling’s holding is specifically limited to the ninety-day notice requirement under Miss.Code Ann. § 11-46-11(1), this Court has clearly indicated that when reviewing statutory requirements, this Court will examine the record to determine compliance or non-compliance. Clearly, Walker did not comply with the mandatory prerequisites of Miss.Code Ann. § 11 — 1— 58(l)(a) when she filed her suit.

Walker, 931 So.2d at 589.

¶ 15. Second, the Caldwells’ position that the amended complaint substantially complied with Miss.Code Ann. § 11-1-58 because of the expert disclosure in lieu of certificate of counsel filed on September 15, 2005, is also flawed. Neither a certificate executed by the attorney for the plaintiff nor an expert disclosure in lieu of certificate of counsel was attached to the amended complaint when filed as required under Miss.Code Ann. § 11-1-58.

¶ 16. In the joint amended answer of NMMC and the Estate, filed on October 18, 2005, they raised as their second defense the following:

The plaintiffs have failed to comply with the requirements of MISS. CODE ANN. § 15-1-36(15) (1972, as amended) and § 11-1-58 (2002), and thus, the Amended Complaint fails to state a claim upon which relief can be granted and should be dismissed with prejudice.

¶ 17. Third, the Estate was substituted in place of the deceased Dr. Brown to allow the action to after Dr. Brown’s death. See M.R.C.P. 25(a)(1). Dr. Brown originally had raised the affirmative defense that the Caldwells failed to state a claim upon which relief could be granted due to their failure to comply with Miss. Code Ann. § 11-1-58 in his answer and defenses. The Estate reasserted this defense in its answer to the amended complaint.

¶ 18. Also, a review of the record reveals that the Caldwells appear to have failed to act upon information contained in the Defendants’ answer and defenses informing them that the requirements of Miss.Code Ann. § 11-1-58 had not been met. As stated before, NMMC and Dr. Brown had detailed in their answer and defenses filed on June 9, 2005, that the Caldwells’ complaint failed to comply with the prerequisites of Miss.Code Ann. § 11-1-58. The certificate of service attached to the Defendants’ answer and defenses indicates that the answer and defenses were mailed to the Caldwells’ attorney on June 8, 2005. Therefore, the Defendants put the Caldwells on notice in their answer that Miss.Code Ann. § 11-1-58 had not been complied with in filing the complaint. The answer was mailed to the Caldwells’ counsel and filed with the circuit clerk before the sixty-day deadline after service of the complaint allowed under Miss.Code Ann. § ll-l-58(b) had expired.

¶ 19. Finally, the Caldwells argue on appeal that Miss.Code Ann. § 11-1-58(7) does not contain any specific time requirements as contained in Miss.Code Ann. § 11-1-58(1). The Caldwells contend that since they filed an expert disclosure in lieu of certificate of counsel as provided in Miss.Code Ann. § 11-1-58(7) on September 15, 2005, months after the complaint was filed on May 5, 2005, they are not bound by any time restrictions as contained in Miss.Code Ann. § 11-1-58(1).

¶ 20. While Miss.Code Ann. § 11 — 1— 58(7) allows the expert’s information, e.g., written report or records, to be substituted in lieu of a certificate of compliance from the attorney, it does not alleviate the requirement of furnishing the expert’s information as required under Miss.Code Ann. § 11-1-58(1). Walker, 931 So.2d at 589-90. Specifically, Miss.Code Ann. § 11 — 1— 58(7) (Supp.2006) provides:

The plaintiff, in lieu of serving a certificate required by this section, may provide the defendant or defendants with expert information in the form required by the Mississippi Rules of Civil Procedure. Nothing in this section requires the disclosure of any “consulting” or non[-]trial expert, except as expressly stated herein.

¶ 21. The Court stated that “the mandatory time requirement for furnishing the expert’s information provided under Miss. Code Ann. § 11 — 1—58(l)(a) and (b)” applies. Walker, 931 So.2d at 589. This Court specifically rejected the same argument as the Caldwells’ in Walker, holding:

Unlike sub-section (1), sub-section (7) does not specify when the expert’s information or report must be supplied by the plaintiff. However, sub-section (7) specifically references the certificate requirement of sub-section (1), and subsection (7) only provides that the expert’s information could be furnished in lieu of the plaintiffs attorney having to file a certificate. Miss.Code Ann. § 11-1-58(1), which was adopted effective January 1, 2003, by the Legislature as a part of tort reform legislation, specifically provides in sub-section (1) that in cases against a licensed physician, health care provider, or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical, or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certificate executed by the attorney for the plaintiff.
This Court applies the plain meaning of the statute when the statute is not ambiguous. Claypool v. Mladineo, 724 So.2d 373, 382 (Miss.1998). Here, a literal reading of Miss.Code Ann. § 11— 1-58, provides that the stated purpose of sub-section (7) can reasonably be construed to provide an alternative to furnishing a certificate of expert consultation by the plaintiffs attorney. However, the statute does not alter the time requirement stated under sub-section (1) for furnishing the expert’s information. Therefore, the time for compliance as stated in sub-section (1) applies to sub-section (7).
For this Court to conclude otherwise would render Miss.Code Ann. § 11 — 1— 58(7) meaningless if the requirements of Miss.Code Ann. § 11-1-58 could be so easily circumvented. See Evans v. Boyle Flying Serv., Inc., 680 So.2d 821, 825 (Miss.1996) (When construing the meaning of a statute, this Court must seek the intention of the Legislature, and knowing it, must adopt that interpretation which will meet the Legislature’s real meaning.). Thus, the trial court correctly found that Walker failed to comply with Miss.Code Ann. § 11 — 1— 58.

Walker, 931 So.2d at 590.

¶ 22. While Judge Aycoek did not have the benefit of this Court’s holding in Walker when rendering her decision to sustain the Defendants’ motion to dismiss and to dismiss the Caldwells’ complaint without prejudice, the Caldwells’ assignment of error on appeal is not a matter of first impression for this Court. We specifically addressed this same issue raised on appeal by the Caldwells in Walker, 931 So.2d at 588-89.

¶ 23. To reiterate, the Caldwells, as the plaintiff in Walker, essentially raise the issue of whether strict compliance with the statutory requirements of Miss.Code Ann. § 11-1-58 is required. See Walker, 931 So.2d at 588. In Walker, the Court held:

Walker basically concedes her failure to strictly comply with Miss.Code Ann. § 11 — 1—58(l)(a) and provides no persuasive argument to demonstrate that she complied with the mandatory requirements of Miss.Code Ann. § 11-1-58(1). However, Walker asks this Court to find that she substantially complied with Miss.Code Ann. § ll-l-58(l)(a) because her attorney claimed in documents filed in September 2005, to have consulted with an expert, Nurse Bader, in February 2004, before filing suit on April 7, 2004.
The record reflects that even if Walker’s attorney did speak to Nurse Bader before filing suit, this information was not supplied to Whitfield until more than a year later in 2005, well after the complaint was filed and served in April 2004. Likewise, when the complaint was filed nothing accompanied the complaint to inform Whitfield that an expert had been consulted nor was any information from Nurse Bader supplied to Whitfield at the time.
... Clearly, Walker did not comply with the mandatory prerequisites of Miss.Code Ann. § ll-l-58(l)(a) when she filed her suit.

Walker, 931 So.2d at 588-589.

¶ 24. In Walker, 931 So.2d at 588, this Court held that Miss.Code Ann. § 11 — 1— 58(l)(b) requires that the suit be dismissed for failure to comply with the mandatory requirements of Miss.Code Ann. § 11 — 1— 58. The Court stated:

Walker did fail to state a claim upon which relief can be granted due to Walker’s blatant failure to comply with the notice prerequisites of Miss. Code Ann. § 11-1-58. Without an attorney’s certificate of compliance of consultation with an expert or a medical report from an expert attached to the complaint when the case was filed as required under the statute, Walker failed to state a claim upon which relief can be granted. As such, Walker is left unable to allege any claim of medical malpractice in the complaint. The language of Miss.Code Ann. § 11-1-58 is clear and unambiguous that based on the failure to comply with its mandatory statutory requirements, the complaint shall be dismissed. Therefore, Walker’s complaint must be dismissed.

Walker, 931 So.2d at 591 (emphasis added). See also Arceo v. Tolliver, 949 So.2d 691, 694 (Miss.2006) (This case followed the logic of Walker in dismissing the compliant without prejudice for failure to comply with the statutory requirements of Miss.Code Ann. § 15-1-36(15), which provides that a plaintiff has two years from the date of the alleged negligent act in which to commence a lawsuit against medical providers.).

¶ 25. Thus, we find that the trial court reached the correct result in finding that the Caldwells failed to comply with Miss.Code Ann. § 11-1-58 (Supp.2006). Further, the trial court properly dismissed the Caldwells’ amended complaint against NMMC and the Estate without prejudice.

CONCLUSION

¶ 26. For the foregoing reasons, the judgment of the Circuit Court of Lee County to dismiss the Caldwells’ amended complaint against North Mississippi Medical Clinic, Inc., and the Estate of Alan Paul Brown, M.D., deceased, without prejudice is affirmed.

¶ 27. AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. LAMAR, J., NOT PARTICIPATING.

RANDOLPH, Justice,

Specially Concurring:

¶28. I concur with Justice Easley’s well-reasoned and cogent analysis of this ease. While the result is harsh, the trial court appropriately applied a legislative enactment. Trial court judges cannot allow harsh results to deter them from their sworn duty to defend and uphold the laws of this state. All courts are charged with the responsibility of interpreting our law and rules, and none may deviate from that responsibility.

¶ 29. Unfortunately, the dissent meanders from the issues related to the case sub judice. After taking a tangential excursion of examining Constitutional issues raised by neither party, the dissent offers an unsolicited opinion on issues not raised in this appeal.

¶ 30. Secondarily, the dissent cites South African law, suggesting that a foreign country provides a better mechanism to resolve disputes than the courts of the United States, and Mississippi in particular. Citing the laws of a foreign nation as an introduction to an analysis of Mississippi’s Constitution vis a vis one of its statutes, seems a bit peculiar, out of place and unprecedented. As the dissent raises and addresses issues not properly before this Court, I respectfully cannot join the dissent.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., JOIN THIS OPINION.

DIAZ, Presiding Justice,

Dissenting:

¶ 31. “The first aspect that flows from the rule of law is the obligation of the state to provide the necessary mechanisms for citizens to resolve disputes that arise between them.” President of RSA v. Modderklip Boerdery, 2005(8) BCLR 786(CC) at ¶ 39 (S.Afr.). For

This obligation has its corollary in the right or entitlement of every person to have access to courts or other independent forums provided by the state for the settlement of such disputes.
[For] [t]he right of access to court is indeed foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance. As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable.

Id. at ¶¶ 39-40 (internal citations, quotations, and footnotes omitted). Because today’s decision values procedural rules over the constitutionally-protected substantive rights of Mississippians, and strays from the rule of law, I must respectfully dissent.

¶ 32. It is indeed true that our statutes require that a litigant filing a claim sounding in medical negligence attach either a certificate of consultation with an expert, a certificate asserting that a looming time bar has prevented expert consultation, or a certificate noting that the attorney made three separate good faith attempts with three different experts to obtain a consultation. See Miss.Code Ann. § 11 — 1— 58(l)(a)-(c) (Rev.2002). It is also true that in this case counsel for the Caldwells failed to do so, even though the record demonstrates that he consulted with an expert as required by statute more than a year before filing suit. A certificate affirming this consultation was inadvertently omitted from the complaint.

¶ 33. The majority finds that this technical failure on behalf of a lawyer destroys the ability of the Caldwells to seek redress in our court system. I cannot agree. The statute was crafted by our Legislature to control a perceived problem regarding medical negligence cases; specifically, to filter out possibly non-meritorious claims. It was not created to bar valid claims, nor to trump the constitutional guarantees of the federal and state constitutions.

¶ 34. For “a cause of action is a species of property protected by the Fourteenth Amendment’s Due Process Clause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982). Under the majority’s interpretation of the statute at hand, the Caldwells are denied a right to pursue their claims without due process. The Fourteenth Amendment makes clear that:

No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const, amend. XIV, § 1; see also U.S. Const, amend. I (“Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances”); Miss. Const, of 1890 art. 3, § 24 (“All courts shall be open; and every person for an injury done to him, in his land, goods, person or reputation, shall have a remedy by due course of the law, and right and justice shall be administered, without sale, denial, or delay”); Miss. Const, of 1890, art. 3, § 25 (“No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both”); Miss. Const, of 1890, art. 3, § 31 (“The right of trial by jury shall remain inviolate”).

¶ 35. There are other paths we might choose that do not damage the constitutional rights of Mississippians. We might adopt the route used by some states when attorneys fail to comply with technical matters. Instead of depriving litigants of their property rights in a claim, the attorney is subject to sanction. See, for example, CaLCode Civ. Proc. § 365 (“Failure to comply with [notice requirements in professional negligence actions] shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein ... failure to comply with such provisions by any attorney at law shall be grounds for professional discipline and the State Bar of California shall investigate and take appropriate action in any such cases brought to its attention”). Or we might carve an exception for good faith errors, as when an attorney can demonstrate, as in this case, that omission of a certificate was simply a mistake.

¶ 36. I remain determined that out of caution, out of respect for the rights of Mississippians, we should not default to barring claims. Instead, we should always defer to the federal and state constitutional rights of Mississippians that grant and protect their access to the court system. These constitutional rights trump all lesser statutes which would purport to bar citizens from a day in court.

¶ 37. Further, it is my belief that because this statute infringes upon constitutional rights, we should review it under strict scrutiny. The right to a jury of one’s peers and the right of access to the court system of the state of Mississippi is a fundamental right and it should be reviewed accordingly. See Mississippi Comm’n on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1011 (Miss.2004) (restrictions on First Amendment-guaranteed speech are reviewed with strict scrutiny); Associated Press v. Bost, 656 So.2d 113, 117 (Miss.1995) (“Strict scrutiny review has also been applied when a statute infringes upon a fundamental right”); Doe v. Doe, 644 So.2d 1199, 1210 (Miss.1994) (parents’ right to raise children is fundamental and any deprivation is reviewed with strict scrutiny); Miss. H.S. Activities Ass’n, Inc. v. Coleman By and on Behalf ofLaymon, 631 So.2d 768, 774 (Miss.1994) (noting that the right to travel is fundamental and restrictions are reviewed with strict scrutiny).

¶38. It is undisputed that the Cald-wells have a property interest in this cause of action which is protected under both federal and state constitutions. See Arceo v. Tolliver, 949 So.2d 691, 698-704 (Miss.2006) (Graves, J., dissenting). Accordingly, I would reverse the trial court’s grant of summary judgment and remand this case for further proceedings. For these reasons, I must respectfully dissent.

GRAVES, J., Joins this Opinion.

      . Based on the allegations taken straight from the Caldwells' compliant, Janice went to the emergency room at NMMC because of back pain and flank pain. Janice was diagnosed with kidney stones and a urinalysis showed a kidney infection. Janice was discharged by Dr. Brown with pain medicine but no antibiotics. Janice returned the next day and was diagnosed as being uro-septic and admitted into the hospital. Janice underwent surgery, was given antibiotics, ■ and was placed on a ventilator for a long period of time.

      . The order granting the substitution was signed by Circuit Court Judge Sharion Aycock on September 9, 2005, but the order was not processed and filed until September 12, 2005.

      .Today we do not address whether Miss. Code Ann. § 11-1-58 requires compliance when an amended complaint is filed where the original complaint satisfied the attachment requirements of Miss.Code Ann. § 11-1-58. Here, we do not have to reach that question because the Plaintiff did not satisfy the requirements of Miss.Code Ann. § 11 — 1— 58 when the original complaint was filed. The Plaintiff failed to attach either a certificate executed by the attorney for the plaintiff to the original complaint or an expert disclosure in lieu of certificate of counsel. The substitution of the Estate for the deceased Dr. Brown merely substituted the Estate in the place of the deceased Defendant, Dr. Brown, and his affirmative defenses previously asserted in the original answer.

      . NMMC, which was named in both the original complaint and the amended complaint, raised the affirmative defense of failure to comply with Miss.Code Ann. § 11-1-58 in both its original and amended answers and defenses.

      . The comments to M.R.C.P. 25 make clear that M.R.C.P. 25 'only applies to allow substitution in the event of death, incompetency, transfer of interest, or public officers' succession in office. See cmts. M.R.C.P. 25.

      . While the summons and returns were not made a part of the record by the parties, the circuit clerk's docket states that NMMC (on Bruce J. Toppin) was served on May 9, 2005, and Dr. Brown (on Alan Paul Brown) was served on May 12, 2005. Both the returns were filed with the circuit clerk on May 18, 2005.

      . Judge Aycock rendered her bench ruling on March 10, 2006, and her order of dismissal on March 21, 2006. This Court’s opinion in Walker was handed down on June 8, 2006.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    LAUREL YAMAHA, INC. v. Norman Decker FREEMAN and Susan Freeman, Individually, and on Behalf of the Wrongful Death Beneficiaries of Christopher Brandon Freeman.
    No. 2005-IA-01605-SCT.
    Supreme Court of Mississippi.
    May 31, 2007.

      Laura L. Gibbes John H. Holloman, III, F. Hall Bailey, Jackson, attorneys for Appellant.
    Craig N. Orr, Robert D. Gholson, Laurel, attorneys for Appellees.
   RANDOLPH, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. This interlocutory appeal arises from a wrongful death action filed by Norman Decker Freeman and Susan Freeman (collectively “the Freemans”) against Laurel Yamaha, Inc. (“Laurel Yamaha”). The Freemans’ son, Christopher Brandon Freeman (“Brandon”), purchased a 2002 Yamaha YZF600R sport motorcycle from Laurel Yamaha. Three days later, Brandon had an accident on this motorcycle which resulted in his death.

¶ 2. The Freemans filed a lawsuit, alleging, inter alia, that Laurel Yamaha: 1) negligently failed to determine whether Brandon was licensed and competent; 2) negligently entrusted the motorcycle to Brandon; 3) negligently trained and supervised its staff; and 4) negligently failed to sell Brandon a properly sized helmet.

¶ 3. Following discovery, Laurel Yamaha filed a Motion for Summary Judgment. Laurel Yamaha asserted it had no legal duty to Brandon and therefore could not be negligent under the law. Laurel Yamaha also claimed the Freemans’ demand for hedonic damages was precluded per Mississippi Code Annotated Section 11 — 1— 69. A hearing was held on Laurel Yamaha’s Motion for Summary Judgment, and the trial court denied the Motion for Summary Judgment.

¶ 4. From the Order Denying the Motion for Summary Judgment, Laurel Yamaha filed a Petition for Interlocutory Appeal, which was granted.

¶ 5. Laurel Yamaha raises the following issues on appeal:

1) Whether Mississippi law recognizes a claim for negligent entrustment in the context of a sales transaction.
2) Whether Mississippi law imposes any duty on a seller, sufficient to support a negligence claim, to restrict motor vehicle sales to licensed drivers or to determine the competence of drivers as part of the sale.
3) Whether any factual basis exists to support the Freemans’ claims for negligent training or supervision of Laurel Yamaha’s staff.
4) Whether any factual basis exists that the helmet sold to Brandon was too large.
5) Whether any legal basis exists for the Freemans’ hedonic damages claim.

STATEMENT OF THE FACTS

¶ 6. Brandon was an eighteen-year-old student who attended Jones County Junior College, living at the home of his parents in Laurel, Mississippi. He also held a part-time job.

¶ 7. Prior to April 10, 2004, Brandon called Laurel Yamaha and spoke with the assistant manager, Keith Pitts (“Pitts”). Pitts described the motorcycle inventory then available. On April 10, 2004, Brandon drove in a car to Laurel Yamaha. After arriving at Laurel Yamaha, Brandon was assisted by Pitts in shopping for a motorcycle. Pitts revealed the following-facts by sworn affidavit: Brandon told Pitts that he had never owned a motorcycle before; Brandon told him that several of his friends had bikes and motorcycles and that he was experienced in operating motorcycles. Brandon selected a 2002 Yamaha YFZ600RP motorcycle for purchase. Brandon demonstrated a familiarity with this particular type of motorcycle. According to Pitts:

As I observed [Brandon] during this discussion, he appeared to be very familiar with this type of motorcycle and he already knew of many of the features I pointed out to him. [Brandon] appeared both physically and mentally capable of operating the motorcycle and had knowledge about motorcycles that indicated he was experienced with them.

¶ 8. Conversely, Brandon’s riding competency was questioned by a friend, Jacob Staples (“Staples”), who had been riding with Brandon seconds prior to the fatal accident. In his deposition, Staples opined: “Knowing and being able to ride bikes for six years, I knew [Brandon] was not competent.”

¶ 9. To finance the motorcycle, Brandon needed credit approval. Brandon told Pitts that his father would not co-sign a loan for him, but would allow Brandon to purchase the motorcycle if he could finance it himself. Once Brandon was approved for financing, Pitts told Brandon to call his father to approve Brandon’s purchase of the motorcycle. To give Brandon privacy, Pitts stepped away from his desk as Brandon used the telephone. In affidavits, Brandon’s parents testified that no call was made to them and that they did not have any conversation with Brandon consenting to the purchase. Brandon told Pitts he spoke with his father and that his father approved of the purchase.

¶ 10. While verifying Brandon’s credit information, Pitts asked to see Brandon’s driver’s license. Brandon presented a valid Mississippi driver’s license. However, the license did not have an “E” endorsement. Pitts told Brandon he would need to obtain an “E” endorsement in order to operate his motorcycle on the highway and Brandon nodded his head in agreement.

¶ 11. After completing the credit approval process, Pitts asked another employee of Laurel Yamaha, Dirk Creel (“Creel”), to go over the features of the motorcycle with Brandon. After the sales transaction was completed, Pitts saw Brandon leave the premises on the motorcycle. Pitts testified that when Brandon left the premises, he was operating the motorcycle competently and observing the rules of traffic. Pitts saw Brandon operating the motorcycle on the street later that same day as an experienced driver would. Other than one day after the sale, when Brandon came to Laurel Yamaha to make a payment, Pitts testified he had no further contact with Brandon or the Free-mans after completion of the sale.

¶ 12. An “E” endorsement is required to operate a motorcycle on the highways of the State of Mississippi. See Miss.Code Ann. § 63-1-6 Rev.2004). The statute states specifically “upon the highways” of the state. Laurel Yamaha asserts, and the Freemans concede, Mississippi law does not require an “E” endorsement for motorcyclists who choose to operate their motorcycles on race tracks, off-road areas, driving courses or private property. Furthermore, according to the Freemans, twenty-one days before the purchase of the motorcycle, Brandon took and failed the motorcycle licensing test. Pitts testified Brandon did not tell him he had taken and failed the test.

¶ 13. Three days after the sale, Brandon left his parents’ home for a ride on the motorcycle. Brandon’s friend, Staples, riding his own motorcycle, was with Brandon. Staples testified he and Brandon went riding sometime between 8:00 and 9:00 p.m. on Mississippi Highway 15, which has a posted speed limit of 55 miles per hour. A speed advisory sign indicating 45 miles per hour was posted within .3 miles of the crash site. Around 9:30 p.m., Brandon and Staples decided to return to their respective homes. Staples testified when he pulled into his driveway, Brandon continued to travel northbound going to his parents’ home. Staples stopped and watched Brandon, and from his driveway, Staples saw Brandon leave the highway and then saw the motorcycle flipping. Staples rode his motorcycle up a hill to where Brandon was located. He found Brandon unconscious, ten feet from his motorcycle. Staples left to get help and never saw Brandon regain consciousness.

¶ 14. Accident Reconstructionist Brett Alexander, who was retained by the Free-mans, opined the accident was caused by “inexperience and incompetence in operating such a high powered motorcycle.” A separate accident reconstructionist, Donald Rawson, retained by Laurel Yamaha, prepared an Accident Reconstruction/Analysis Report. The report stated, “The straight skid mark was indicative of a skilled rider utilizing both brakes to maintain a straight path” and “the speed of the motorcycle at the time it left the highway was calculated at 81 miles per hour. There is additional speed not accounted for such as the damage caused to the front fork, which was sufficient enough to fracture the front fork and cause extensive damage to the instrument housing.”

¶ 15. The death certifícate lists the cause of death as trauma to the head resulting from a motorcycle accident. All parties agree Brandon was not wearing a helmet after the accident. Staples testified that when he saw Brandon after the accident, Brandon’s helmet was not on his head, but was lying on the road. Staples further testified that on his way to get help, he stopped to pick up the helmet and put it in the back of his truck. The investigating officer testified that when he arrived at the scene he looked for a helmet but could not locate one. The officer testified that Staples stated to him that Staples, in a panic, picked up the helmet, and took it to his home when he went to seek help. The officer stated he asked Staples for the helmet twice, but never received it. During his deposition, the officer was shown the helmet for the first time. The officer did not observe any damage to the helmet and there were no scratches or gashes on the helmet. He was asked if the helmet was in a condition consistent with the elements of this accident. He opined that the helmet did not appear to have been worn during the accident. In the report prepared by Rawson, it was observed that there were no scratches or abrasions on the helmet and that the helmet had no other noticeable defects.

¶ 16. In their Complaint, the Freemans allege the helmet sold to Brandon by Laurel Yamaha was too big and that Laurel Yamaha failed to advise Brandon on the proper fitting of the helmet. In her affidavit, Susan Freeman stated the helmet was too big for Brandon. She based this opinion by comparing a size tag found inside Brandon’s baseball cap to a size chart found on HJC’s website, which would call for a size small helmet, rather than the medium size helmet purchased by Brandon.

STANDARD OF REVIEW

¶ 17. This is an interlocutory appeal stemming from a denial of Laurel Yamaha’s Motion for Summary Judgment. See M.R.A.P. 5.

We review de novo a trial court’s disposition of a motion for summary judgment. Webb v. Braswell, 930 So.2d 387, 395 (Miss.2006). In conducting our review, the evidence must be viewed in the light most favorable to the non-moving party. Hataway v. Estate of Nicholls, 893 So.2d 1054, 1057 (Miss.2005). The movant carries the burden of demonstrating that no genuine issue of material fact exists. Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000).

Franklin Collection Serv. v. Kyle, 955 So.2d 284, 287-88, 2007 Miss. LEXIS 11, *6 (Miss.2007).

ANALYSIS

I. Whether Mississippi law recognizes a claim for negligent entrustment in the context of a sales transaction.

¶ 18. The Freemans argue that Laurel Yamaha should be liable for negligent entrustment of the motorcycle to Brandon. In furtherance of this proposition, the Freemans assert Laurel Yamaha, in selling the motorcycle to Brandon, violated the Restatement (Second) of Torts § 390. The Restatement (Second) of Torts § 390 provides:

One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

¶ 19. The Freemans argue that Laurel Yamaha bears responsibility based on the Restatement, as it sold the motorcycle to Brandon, when it knew or had reason to know, that Brandon, because of his youth and inexperience, or otherwise, would use it in a manner involving unreasonable risk of physical harm to himself. See Restatement (Second) of Torts § 390. Laurel Yamaha argues that there is no evidence in the record to show, that at the time of sale, Pitts or Creel knew or had any reason to know that Brandon, a college student, would operate the motorcycle in a manner involving an unreasonable risk of physical harm, and that no evidence of same existed at the time ownership and control passed to Brandon.

¶ 20. Laurel Yamaha asserts that Mississippi law does not establish a claim of negligent entrustment in the context of a sales transaction. In support of this assertion, Laurel Yamaha directs this Court to Sligh v. First National Bank of Holmes County, 735 So.2d 963 (Miss.1999). The Freemans seek to distinguish Sligh by asserting that Brandon, unlike the purchaser of the vehicle in Sligh, was not duly licensed to operate a motorcycle. However, as will be discussed infra, Brandon was not required to produce a license which showed the “E” endorsement. Further, it is uncontroverted that Brandon demonstrated he was familiar with the operation and features of the motorcycle he purchased.

¶ 21. Sligh was a case of first impression for this Court. The Court held Har-reld Chevrolet was not liable for negligent entrustment as “[a]fter the sale of the vehicle, Harreld Chevrolet had no control over it.” Id. at 969. In finding no claim based on a negligent entrustment theory, Sligh held, “There is no evidence in the record which would indicate that Harreld had knowledge of [Plaintiffs] drinking habits. Harreld Chevrolet sold a truck to [Plaintiff] and no further relationship existed between the two.” Sligh, 735 So.2d at 970.

¶ 22. Sligh, in reviewing the decisions of other states, held, “The paramount requirement for liability under the theory of negligent entrustment is whether or not defendant had a right to control the vehicle.” Id. (citations omitted). Once the purchase was completed, ownership and control of the motorcycle passed to Brandon on April 10, 2004. The accident occurred on April 13, 2004. At the time of the accident, Brandon clearly owned, controlled and was in possession of the motorcycle, with no right to control enjoyed by Laurel Yamaha. “Suppliers in terms of the Restatement must have the right to control the chattel.” Id. (quoting Broadwater v. Dorsey, 344 Md. 548, 555, 688 A.2d 436 (1997)). Absent the right to control, no action lies for negligent entrustment.

¶ 23. Further, this Court has held, “The three primary indicia of ownership .[are]: title, possession, and control.... ” Hobbs Automotive, Inc., d/b/a Kim’s Chrysler, Dodge, Jeep, Toyota v. Dorsey, 914 So.2d 148, 167 (Miss.2005). Brandon met all three and Laurel Yamaha meets none. Title passed to Brandon, and he was in control and possession of the motorcycle, just prior to and up to the time of the accident. In Sligh, we quoted the Supreme Court of Florida, holding,

It is clear under existing law there is no liability on the part of the seller of a motor vehicle where beneficial ownership or legal title, together with possession, have been transferred to a purchaser and injuries occur because of the negligence of the purchaser operating the vehicle. In short, transfer of ownership cuts off liability on the part of the former owner.

Sligh, 735 So.2d at 969 (quoting Horne v. Vic Potamkin Chevrolet, Inc., 533 So.2d 261, 262 (Fla.1988)). See also Savage v. LaGrange, 815 So.2d 485 (Miss.App.2002).

¶ 24. The Freemans’ desire to distinguish Sligh must fail. In Sligh, this Court clearly addressed negligent entrustment in the context of a completed sales transaction. The doctrine of negligent entrustment “ ‘ought not to be extended where the party sought to be charged had no control over the machine and the other party actually committing the injurious wrong was the owner, sui juris.’ Sligh, 735 So.2d at 969 (quoting Estes v. Gibson, 257 S.W.2d 604, 607-08 (Ky.Ct.App.1953)). The facts herein, as well as applicable law, require the same result. The claim of negligent entrustment is without merit.

II. Whether Mississippi law imposes any duty on a seller, sufficient to support a negligence claim, to restrict motor vehicle sales to licensed drivers or to determine the competence of drivers as part of the sale.

To succeed on a claim for negligence, the plaintiff must prove duty, breach, causation and injury. Meena v. Wilburn, 603 So.2d 866, 869 (Miss.1992). The plaintiff must show “(1) the existence of a duty ‘to conform to a specific standard for the protection of others against the unreasonable risk of injury,’ (2) a breach of that duty, (3) causal relationship between the breach and alleged injury, and (4) injury or damages.” Id. at 870 n. 5 (citing and quoting Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)).

Rein v. Benchmark Construction Co., 865 So.2d 1134, 1143 (Miss.2004) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 174 (Miss.1999)).

¶ 25. The Freemans assert Laurel Yamaha’s sale to Brandon constituted a “knowing sale and relinquishment of a dangerous instrumentality” and was viola-tive of Miss.Code Ann. Sects. 63-1-6 and 63-1-63.

¶ 26. It is uncontested that Brandon produced his driver’s license to Pitts and Pitts was aware Brandon’s license did not bear an “E” endorsement. However, an “E” endorsement is not a prerequisite for purchasing a motorcycle in the state of Mississippi. See Miss.Code Ann. § 63-1-6 (Rev.2004). An “E” endorsement is required for operating a motorcycle on the highways in Mississippi.

¶ 27. The Freemans contend that allowing Brandon to purchase a motorcycle without an “E” endorsement is a violation of public policy. The Freemans offer no authority in support of their contention, nor does their contention comport with the mandates of Miss.Code Ann. Sect. 63-1-6. “[Wjhere the statute is plain and unambiguous there is no room for construction.” See Gannett River Publ. Co. v. Entergy, 940 So.2d 221, 224 (Miss.2006); Bailey v. Al-Mefty, 807 So.2d 1203, 1206 (Miss.2001).

¶ 28. Laurel Yamaha argues Mississippi law does not impose any duty on a seller to determine whether a driver is licensed and/or competent. Laurel Yamaha’s counter-public policy argument is that “if a motor vehicle seller is required to vouch for the competency of every person to whom he sells a motor vehicle, then sellers would be required to monitor each and every customer throughout the entire period of ownership .... [sellers] could be held liable for any injuries caused by a driver after the purchase of a vehicle and could be named as defendants to every motor vehicle accident case filed in this state where allegations of driver negligence or incompetence were raised.”

¶ 29. The Freemans also assert that Laurel Yamaha violated Miss.Code Ann. Sect. 63-1-63 and that this constituted negligence per se. “To prevail in an action for negligence per se, a party must prove that he was a member of the class sought to be protected under the statute, that his injuries were of a type sought to be avoided, and that violation of the statute proximately caused his injuries.” Gallagher Bassett Servs. v. Jeffcoat, 887 So.2d 777, 787 (Miss.2004) (citation omitted). Miss.Code Ann. Sect. 63-1-63 provides: “No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under the provisions of this article or in violation of any of the provisions of this article.”

¶ 30. The Freemans again offer a public-policy argument akin to negligent entrustment, without citing persuasive authority. They assert that a prudent retailer would have inquired as to why Brandon was not licensed and would not have let him drive away from the dealership. In support of this argument, the Freemans cite case law regarding negligence in the operation of motor vehicles. However, each case cited by the Free-mans involves drivers under eighteen, in vehicles owned by another. Brandon was age eighteen when he purchased this motorcycle. Miss.Code Ann. Sect. 93-19-13 allows, “All persons eighteen years of age or older, if not otherwise disqualified, or prohibited by law, shall have the capacity to enter into binding contractual relationships affecting personal property....”

¶ 31. Brandon legitimately entered into the contract to purchase the motorcycle, and legal title and control passed to Brandon. As discussed supra, once Brandon gained legal title to the motorcycle and it was in his possession, Brandon controlled its use. Accordingly, the statute does not impose a duty on Laurel Yamaha, because when this accident occurred, the motorcycle was not “owned by [Laurel Yamaha] or under [its] control.” See Miss.Code Ann. § 63-1-63 (Rev.2004).

¶ 32. “Whatever the Legislature says in the text of the statute is considered the best evidence of the legislative intent.” Miss. Dep’t of Transp. v. Allred, 928 So.2d 152, 155 (Miss.2006). There is no language in either Miss.Code Ann. Sect. 63-1-6 or Miss.Code Ann. Sect. 63-1-63 which imposes a legal duty upon Laurel Yamaha. This Court is bound by the plain meaning of these statutes, and “[i]t is the task of the Legislature and not this Court to make the laws of this state.” Id. at 156. Upon the facts of this case, this Court is unwilling to impose duties which were not expressly created by statute.

III. Whether any factual basis exists to support the Freemans’ claim for negligent training or supervision of the Laurel Yamaha staff.

¶ 33. As we have determined, there is no Mississippi law which imposes any duty on a seller, sufficient to support a negligence claim, to restrict motor vehicle sales to licensed drivers or to determine the competence of drivers as part of the sale, this issue becomes moot. Therefore, this Court will not address it.

IV. Whether any factual basis exists to support the Freemans’ claim that the motorcycle helmet sold to Brandon was too large.

¶ 34. In an affidavit, Brandon’s mother, Susan, testified the helmet size was too big, when compared to the size tag found in Brandon’s high school baseball cap. Additionally included with the affidavit was information from a website which provided sizing references for helmets. According to that sizing chart, Susan opined Brandon should have been sold a “small” instead of a “medium.”

¶35. In the affidavit presented, the Freemans provide no proof that Laurel Yamaha was negligent in the fitting or sale of this helmet. There was no evidence before the trial court or before this Court that would allow a determination that Laurel Yamaha did or did not follow any sort of procedure in the fitting or sale of the helmet. The affidavit of Susan alone is insufficient proof.

¶ 36. “ Tf any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. It is not our duty to weigh the competing evidence; it is our duty to determine if there is conflicting evidence for trial’ ” Estate of Johnson v. Chatelain, 943 So.2d 684, 687 (Miss.2006) (citations omitted). The Freemans have not put forth sufficient facts with which to show there is a genuine issue for trial.

Y. Whether any legal basis exists for the Freemans’ hedonic damages claim.

¶ 37. In their Complaint, the Freemans demand hedonic damages. However, as this Court has found no causes of action against Laurel Yamaha exist, the Free-mans have no claim for damages. Therefore, we find this issue to be moot.

CONCLUSION

¶ 38. Mississippi law does not recognize a claim for negligent entrustment in the context of a sales transaction. Furthermore, Mississippi law does not impose a duty on sellers to restrict sales to purchasers of motorcycles that have an “E” endorsement or to determine their competence before the sale. Additionally, the Freemans failed to present sufficient proof regarding whether Laurel Yamaha was involved in the selection of the helmet. The Freemans have not presented facts sufficient to create a triable issue. Further, the issue regarding hedonic damages is moot.

¶ 39. The trial court erred in not granting summary judgment to the defendants in this case. Therefore, the trial court is reversed, and this case is remanded for entry of judgment consistent with this opinion.

¶ 40. REVERSED AND REMANDED.

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

      . Miss.Code Ann. Sect. 63-1-6 states:
      No person shall drive or operate a motorcycle upon the highways of the State of Mississippi without first securing either a regular operator's license with a motorcycle endorsement upon it, or a restricted motorcycle operator’s license, except those persons especially exempted by Section 63-1-7, Mississippi Code of 1972; provided, however, that any person possessing a valid Mississippi operator’s license issued prior to July 1, 1985, may operate a motorcycle upon the highways of this state until such time as said license expires. Upon the expiration of a license issued prior to July 1, 1985, and the payment of One Dollar ($ 1.00), the applicant for renewal may obtain the necessary motorcycle endorsement without further examination.
      A motorcycle endorsement may be issued any person who holds a valid Mississippi driver’s license and meets the other requirement for such endorsement contained in this chapter.
      A restricted motorcycle operator’s license may be issued to any applicant who fulfills all the requirements necessary to obtain a Mississippi operator’s license that may be applicable to the operation of a motorcycle. Such license shall entitle the holder thereof to operate a motorcycle, and no other motor vehicle, upon the highways of this state.


author: EASLEY, Justice,

text:
    G. David GARNER v. STATE OF MISSISSIPPI DEMOCRATIC EXECUTIVE COMMITTEE, Wayne Dowdy, Chairman, and Wilton A. McNair.
    No. 2007-EC-00884-SCT.
    Supreme Court of Mississippi.
    June 7, 2007.
    Rehearing Denied June 14, 2007.

      David Shoemake, Audry Regnal Black-ledge, Hattiesburg, David Garner, Oby Thomas Rogers, Collins, attorneys for appellant.
    Ben J. Piazza, Jr., attorney for appellee.
   EASLEY, Justice,

for the Court.

¶ 1. Wilton A. McNair filed papers to qualify to run for the office of District Attorney for the Thirteenth Circuit Court District in the August 7, 2007, Democratic Party primary election. G. David Garner, a resident of the district, filed an objection to McNair’s candidacy. Garner alleged that McNair is not a resident of the Thirteenth District, which includes Covington, Jasper, Simpson, and Smith Counties. The State of Mississippi Democratic Executive Committee rejected that objection and certified McNair as a qualified candidate. Garner sought judicial review as authorized by Miss.Code Ann. § 23-15-961, and the special judge found that McNair was a resident of Covington County and that he was qualified to run for office in the Thirteenth District. Garner appealed. In light of the impending deadlines for finalizing the ballots and pursuant to Miss.Code Ann. § 23-15-961(6) (Rev. 2001), we have expedited this appeal. We find that the trial court erred in ruling that McNair is a resident of Covington County. We conclude that McNair is not a qualified candidate for the position and that his name should be stricken from the ballot.

FACTUAL BACKGROUND

¶ 2. McNair and his wife bought a house in Jackson, in Hinds County, in 1994. They continue to own that home and spend the majority of their time there. McNair is an assistant district attorney in the Twenty-First Judicial District, which includes Yazoo, Humphreys, and Holmes Counties. His wife teaches school in Jackson. McNair testified that he and his wife spend week nights at the house in Jackson because it is closer to their employment locations. McNair and another witness testified that since March of 2007, when the challenge to his candidacy was filed, the McNairs have spent the weekends at a family-owned house in Collins, Covington County. The McNairs attend religious services at a church in Jackson where Ms. McNair serves on the ministerial staff.

¶ 3. Indisputably, the Jackson house was McNair’s residence and domicile until at least late in 2002. At that point, McNair decided to run for District Attorney of the Thirteenth District, which is composed of Covington, Jasper, Simpson, and Smith Counties. He withdrew the homestead exemption he had previously filed for his home in Jackson. He also registered to vote in Covington County in 2002, at a time when he resided in Hinds County. Even though he claimed that the Hinds County home was no longer his principal residence when he withdrew his claim for homestead in 2002, McNair signed a deed of trust in November of 2004 in which he stated that the Jackson home was in fact his principal residence and would remain so for a year after execution of that document.

¶ 4. McNair grew up in Covington County. Prior to 2005, his mother owned property and a home outside Collins. The house was rented by a tenant who has lived there for approximately six years. All of the utilities for the Covington County house are in the tenant’s name. In 2005, McNair’s mother transferred a one-fourth interest in the property to McNair.

¶ 5. McNair claims that he considers himself to be a Covington County resident as that is where he was raised, where some of his family lives, where he owns property, and where he does his banking. He claims that he has stayed in the home in Collins at various times over the years. After the candidacy contest was filed in March, McNair changed his driver’s license address from Jackson to a post office box in Collins. Covington County also allowed him to claim a one-fourth homestead exemption on his interest in the Cov-ington County property. McNair also signed a lease on the Collins house in which he and his wife are co-tenants along with the state trooper who was already living there. Finally, McNair claims that he is renovating his house in Jackson so that he can sell it. The house is not presently for sale. McNair further stated that if he loses the election, he intends to maintain a home in Jackson for convenience in commuting. According to McNair’s testimony, whether he will move to Covington County is contingent upon his winning the election.

ANALYSIS

¶ 6. The trial judge erred in determining that McNair is qualified to run in Covington County. In an election contest, the standard of review for questions of law is de novo. Ladner v. Necaise, 771 So.2d 353, 355 (Miss.2000) (citing Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000)). Further, we review findings of fact by a trial judge sitting without a jury for manifest error, i.e., whether the findings were the product of prejudice, bias, or fraud, or manifestly against the weight of the credible evidence. Boyd v. Tishomingo Co. Democratic Exec. Comm., 912 So.2d 124, 128 (Miss.2005).

¶ 7. A candidate for district attorney is required to be a resident of the district. Miss.Code Ann. § 23-15-299(7) requires the political parties to determine the qualifications of the candidates seeking office. The primary qualification is “whether each candidate is a qualified elector of the state, state district, county or county district which they [sic] seek to serve ...” The committee’s obligation to determine residency is reiterated in Miss. Code Ann. § 23-15-359(9) (Rev.2001).

¶ 8. In Mississippi, residence and domicile are synonymous for election purposes. Hinds County Election Comm’n v. Brinston, 671 So.2d 667, 668 (Miss.1996). A person’s domicile in election matters has been defined as the place:

where he has his true, fixed, permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning ... A domicile continues until another is acquired; before a domicile can be considered lost or changed, a new domicile must be acquired by removal to a new locality with intent to remain there, and the old domicile must be abandoned without intent to return thereto.

Smith v. Deere, 195 Miss. 502, 505-06, 16 So.2d 33, 34 (1943)(internal citations omitted).

¶ 9. The question is whether the trial court was manifestly wrong in determining that McNair’s true home and principal establishment is in Covington County. We determine that the trial court erred in that finding. The proof put forth at the hearing overwhelmingly evidences that McNair resides in Hinds County and had not established residency in Covington County.

¶ 10. The trial judge determined that the McNairs had never established Jackson as their permanent residence and had never abandoned their previous domicile in Covington County. He based that finding on McNair’s extensive testimony “that he considered Covington County to be his home, and ... that the home in Jackson was for the convenience of shortening commuting times to and from work.”

¶ 11. We find that the trial court clearly erred in finding that McNair was never a resident of Hinds County. McNair admits that his residence was in Jackson until he decided to run for District Attorney in Covington County in 2002, when he first took steps to circumvent the election, homestead, and voting laws of this State. Only then did he drop his homestead exemption in Hinds County and change his voter registration to Covington County.

¶ 12. The question then is whether McNair abandoned his established Hinds County domicile in 2002 when he chose to run for office in Covington County. Evidence supporting McNair’s claim of a change in domicile includes that he changed his voting registration to Coving-ton County in 2002. Further, he has purchased his car tags in Covington County since 2002. Other than those changes, there is little if any evidence that McNair abandoned his Hinds County residence and established a residency and a domicile in Covington County. Although he claims that he intended Covington County to be his residence, he was still residing in the Jackson home. He spent the great majority of his time there compared to Coving-ton County. After this candidacy contest was filed, McNair undertook additional measures to try to shore up his claim of Covington County residency. He changed his driver’s license from Jackson to a Cov-ington County post office box. He filed for homestead exemption in Covington County on his quarter interest in his mother’s former home. He signed a lease to share the house which was already rented by a state trooper, and he claims that he began spending weekends in Covington County.

¶ 13. McNair claims that the house in Jackson is not his permanent residence and that he maintains that home and spends time there for convenience purposes only. The Jackson house is much closer to where he currently works and where his wife works. We find unpersuasive McNair’s argument that he maintains the house in Jackson for convenience only. McNair bought the Jackson house in 1994. McNair worked for Rusty Fortenberry, then District Attorney of the Thirteenth District, until 1999. McNair lived in the house in Jackson while working in the Covington County district and continued to live there even after he took a job with a district attorney’s office on the Gulf Coast in 1999.

¶ 14. After a review of the evidence, we find that McNair has not established a residency or a domicile in Covington County. Despite McNair’s declared desire to be a Covington County resident, we conclude that his legal residence is located in Hinds County. McNair’s assertions of residence in Covington County are completely contradicted by his actual living arrangements. McNair’s “true, fixed, permanent home and principal establishment” is in Jackson. We therefore find that McNair is not qualified to run for office as a Covington County resident.

¶ 15. McNair also argues that the determination of his residency is premature at this point. He claims in essence that a candidate’s qualifications should not be judged until the time of the election. He cites Miss.Code Ann. § 23-15-299(7) (Rev.2001), which states:

Upon receipt of the proper fee and all necessary information, the proper executive committee shall then determine whether each candidate is a qualified elector of the state, state district, county or county district which they seek to serve, and whether each candidate meets all other qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to office.

This Court has ruled that the statutory framework for determining a candidate’s qualifications requires that the determination be made upon filing for office and not at the time of the election. In Grist v. Farese, 860 So.2d 1182 (Miss.2003), this Court considered a case in which a candidate’s qualifications for office were challenged upon his filing to run for district attorney. The trial judge ruled that the issue entailing whether the candidate had been practicing law for two years was premature in that, theoretically, the candidate might begin practicing law between the time of qualification for office and the election. This Court ruled that the circuit judge’s interpretation of Miss.Code Ann. § 23-15-299(7) negated the qualification challenge process otherwise set out in the statute and that qualification questions could be determined prior to the election. The statute requires the committee to find that each candidate meets the residency requirements or has presented absolute proof that he will meet the residency requirements, subject to no contingencies, at the time of the general election.

¶ 16. According to the statute, determination of the residency issue prior to the election is not premature. At qualification, McNair was required either to reside in the district or present absolute proof without contingency that he will reside in the district at the time of the election. McNair failed to meet either requirement.

CONCLUSION

¶ 17. We conclude that the trial judge erred in finding that McNair is a qualified candidate for office in the Thirteenth Judicial District. We find that McNair resides at his home in Jackson where he lived seven days a week prior to the candidacy contest and still lives at least five days a week even now. The trial court’s judgment is therefore reversed and judgment is rendered for Garner. McNair’s name shall not be placed on the ballot.

¶ 18. In light of exigencies related to finalizing the ballot, and pursuant to this Court’s obligation to expedite candidate qualification appeals, any motion for rehearing shall be filed on or before June 11, 2007. Any response thereto shall be filed on or before June 13, 2007.

¶ 19. REVERSED AND RENDERED.

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