author: RANDOLPH, Justice, DIAZ, Presiding Justice,

text:
    The ESTATE OF Stacey Kay KLAUS by Alta KLAUS, Administratrix and Alta Klaus as Personal Representative of the Wrongful Death Beneficiaries of Stacey Kay Klaus. v. VICKSBURG HEALTHCARE, LLC d/b/a River Region Health Systems, River Region Medical Corporation, Triad Hospitals, Inc., Stephanie Van-derford, R.N., and Eugene Ferris, III, M.D.
    No. 2006-IA-00675-SCT.
    Supreme Court of Mississippi.
    Nov. 29, 2007.
    Rehearing Denied Jan. 31, 2008.
    Jerry Campbell, Vicksburg, Attorney for Appellants.
    Kristopher Alan Graham, Stuart Bragg Harmon, Jackson, R.E. Parker, Sr., Clifford C. Whitney, III, Vicksburg, Attorneys for Appellees.
   RANDOLPH, Justice,

for the Court.

¶ 1. In this interlocutory appeal, the Court is asked to address the legislatively-instituted cap on non-economic damages found in Mississippi Code Annotated Section ll-l-60(2)(a) (Supp.2007) and its effect, vel non, on the wrongful-death statute, i.e., Mississippi Code Annotated Section 11-7-13 (Rev.2004).

FACTS

¶2. Stacey Kay Klaus (“Stacey”) died following surgery at River Region Hospital. On July 18, 2005, Stacey’s mother, Alta, filed a medical malpractice complaint against the Appellees in the Circuit Court of Warren County, Mississippi, as Admin-istratrix of Stacey’s estate and “as personal representative of the wrongfuLdeath beneficiaries of [Stacey].... ” Stacey’s wrongful-death beneficiaries (“Klauses”) are Alta; her father, Sylvain; and her half-sister, Marian.

¶ 3. Subsequently, the Klauses filed a “Motion for Declaratory Judgment” in the trial court, stating:

2. Under Miss.Code Ann. § 11-1-60, non-economic damages are limited to $500,000.00 for “the plaintiff.”
3. This wrongful death claim actually has three plaintiffs being the mother, father and half-sister. Although by statute each plaintiff must share equally in any award, each plaintiff has a separate claim for damages incurred for the death of [Stacey] because each plaintiff has a different relationship with [her].
4. The rights of each beneficiary plaintiff is affected by Miss.Code Ann. § 11— 1-60. [The Klauses] pursuant to Rule 57 M.R.C.P. seeks a declaration from this Court, deciding whether each plaintiff’s non-economic damages are limited to $500,000.00 or the suit’s total non-economic damages are limited to $500,-000.00.

(Emphasis added). Dr. Eugene Ferris filed his Response to that motion, arguing that “the noneconomic damages of all of the wrongful death beneficiaries of [Stacey], in the aggregate, are capped at the statutory maximum of $500,000 under Miss.Code Ann. § 11-1-60.” Following hearing, the circuit court entered a “Declaratory Judgment” finding that “the limitation on non-economic damages in 11 — 1— 60(2)(a) to $500,000.00 applies to this cause of action regardless of the number of beneficiaries.” This Court granted the Klaus-es’ timely petition for interlocutory appeal. See M.R.A.P. 5.

ISSUE

¶ 4. This Court will consider:

(1) Does Mississippi Code Annotated Section ll-l-60(2)(a) limit non-economic damages to $500,000 for all wrongful death beneficiaries and the estate in an action for medical malpractice?

ANALYSIS

¶ 5. As this interlocutory appeal involves “a question of law and interpretation of a statute[,] ... the standard of review is de novo.” Miss. Dep’t of Transp. v. Allred, 928 So.2d 152, 154 (Miss.2006) (citing Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)). This Court has stated that:

[i]n considering a statute passed by the legislature, ... the first question a court should decide is whether the statute is ambiguous. If it is not ambiguous, the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction. Whether the statute is ambiguous or not, the ultimate goal of this Court is to discern and give effect to the legislative intent.

City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992) (citations omitted).

¶ 6. Mississippi Code Annotated Section 11 — 1—60(2)(a) provides that:

[i]n any cause of action filed on or after September 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages.

Miss.Code Ann. § ll-l-60(2)(a) (Supp. 2007) (emphasis added). In pertinent part, the wrongful-death statute authorizes that:

[t]he action for such damages may be brought in the name of the personal representative of the deceased person ... for the benefit of all persons entitled under the law to recover, ... or by the parent for the death of a child, ... or by a sister for the death of a sister, ... or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on the merits. Except as otherwise provided in Section 11-1-69, in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.

Miss.Code Ann. § 11-7-18 (Rev.2004) (emphasis added).

¶ 7. The Klauses argue that these two statutes, read together, create an ambiguity. Specifically, they maintain that the “shall not award the plaintiff more than Five Hundred Thousand ($500,000.00) for noneconomic damages” language of Mississippi Code Annotated Section 11 — 1— 60(2)(a) is incongruent with the fact that, under the wrongful-death statute of Mississippi Code Annotated Section 11-7-13, multiple plaintiffs may have standing to file suit. The Appellees respond that “[wjrongful death actions are, inherently, derivative” and, therefore, “any defense which would have been available against the deceased, is available against the wrongful death beneficiaries.” See Lee v. Thompson, 859 So.2d 981, 987 (Miss.2003). Therefore, the Appellees argue that “the plain language of § 11-1-60 establishes that the cap applies to the total amount of recoverable damages and that it is not multiplied by the number of parties involved.” Furthermore, the Appellees assert that following this Court’s decision in Allred, Mississippi Code Annotated Section 11-1-60, “when read in pari materia with §§ 1-3-1 and 1-3-33, applies regardless of the number of plaintiffs.”

¶ 8. In Allred, this Court addressed the question of:

when multiple governmental defendants have been sued in “single occurrence” jurisdictions, such as Mississippi, does the limitation of liability [in Mississippi Code Annotated Section 11^46 — 15(l)(a) ] provide for one maximum dollar amount of liability for a single tortious act, regardless of the number of governmental entities sued, or does the maximum dollar amount of liability apply separately to each governmental entity defendant?

Allred, 928 So.2d at 154. In response to Allred’s argument that the $50,000 limit in Mississippi Code Annotated Section 11-46-15(1) is to be applied per person, see id. at 153, this Court found:

Miss.Code Ann. Section 1-3-1, states, “this chapter is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required by this chapter.” Specifically pertinent in this case is Miss.Code Ann. Section 1-3-33 which states, “words used in the singular number only, either as descriptive of persons or things, shall extend to and embrace the plural number; and words used in the plural number shall extend to and embrace the singular number, except where a contrary intention is manifest.”
The common maxim is that statutes in pari materia are to be construed together, When a statute is in pari materia with a later one, it is simply part of its context to be considered by the Court in deciding whether the meaning of a provision in the later statute is plain. See Rupert Cross, Statutory Interpretation 128 (1976). Applying Miss.Code Ann. Section 1-3-33 to an analysis of the Mississippi Tort Claims Act, it is abundantly clear that the Act fails to manifestly express a contrary intention, as required by Miss.Code Ann. Section 1-3-33. The Legislature had the opportunity to declare that the statute at issue was to be read only in the singular, but did not. Additionally, the Legislature did not manifestly express a contrary intention not to include plural language in its Declaration of Legislative Intent. Miss.Code Ann. § 11-16-3. The Legislature had the opportunity to manifest an intent that the statute should be read only in the singular; however, it is clear the Legislature did not do so. There being no ambiguity, the Court is bound to simply apply the statutes according to their plain meaning.

Allred, 928 So.2d at 155-56 (emphasis added). Therefore, this Court concluded that Mississippi Code Annotated Section 11-46-15(1) “shall be interpreted by using singular or plural language.” Id. at 156 (emphasis added).

¶ 9. The learned circuit judge did not have the benefit of Allred when he entered “Declaratory Judgment” in favor of the Appellees. Nonetheless, he correctly observed that the Klauses’ “argument that the use of the singular form of ‘plaintiff in § 11-1-60 MCA would apply to each beneficiary, individually, is not persuasive.... ” Just as in Allred, “[t]he Legislature had the opportunity to declare that the statute at issue was to be read only in the singular, but did not. Additionally, the Legislature did not manifestly express a contrary intention not to include plural language in its Declaration of Legislative Intent.” Id. Accordingly, the statute is to be applied according to its plain meaning and “the plaintiff’ in Mississippi Code Annotated Section ll-l-60(2)(a) “shall be interpreted by using the singular or plural language” when considered in pari materia with Mississippi Code Annotated Section 1-3-33 (Rev.2005).

¶ 10. While acknowledging the rectitude of the majority view, stating it “is consistent with the legislative purpose behind Section ll-rl-60” (Dissenting Opinion at ¶ 21), the dissent then mulls over the potential unintended consequences of the legislative act and concludes that these potential unjust results were “not fully taken into consideration by the Legislature.” (Dissenting Opinion at ¶ 23). ' If perchance the Legislature should subscribe to these assumptions, it may amend Mississippi Code Annotated Section 11 — 1— 60 and expressly manifest a contrary intention to the plain language of Mississippi Code Annotated Section 1-3-38. See Miss. Ethics Comm’n v. Grisham, 957 So.2d 997, 1003 (Miss.2007) (“[t]he power to change this result lies with the legislature to amend the statute.”). However, the dissent’s suggestion that this Court should redress the perceived legislative error by judicial fíat requires an act of judicial activism. To properly preserve the separation of powers mandated by the Mississippi Constitution, see Miss. Const, art. I, §§ 1-2, this Court should act with restraint. See Grisham, 957 So.2d at 1003 (“[t]he privilege to amend a statute, not constitutionally infirm, does not rest with this Court.”).

CONCLUSION

¶ 11. By enacting Mississippi Code Annotated Section ll-l-60(2)(a), the Legislature expressly instituted a cap on non-economic damages recoverable by “the plaintiff.” Mississippi Code Annotated Section 1-3-33 provides that words written in the singular are to be read in the plural. In light of Mississippi Code Annotated Section 1-3-33 and this Court’s decision in Allred, the cap on noneconomic damages applies to plaintiff or plaintiffs. Therefore, the cap on noneconomic damages in Mississippi Code Annotated Section 11 — 1— 60(2)(a) applies to all plaintiffs who bring a wrongful-death action pursuant to Mississippi Code Annotated Section 11-7-13. Accordingly, the judgment of the Circuit Court of Warren County is affirmed, and this case is remanded to that court for further proceedings consistent with this opinion.

¶ 12. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON, AND LAMAR, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.

DIAZ, Presiding Justice,

Dissenting.

¶ 13. “In considering a statute passed by the legislature ... the first question a court should decide is whether the statute is ambiguous.” City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). Section ll-l-60(2)(a) provides in pertinent part: “In a cause of action filed on or after September 1, 2004, ... the trier of fact ... shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000) in noneconomic damages.” Miss.Code Ann. § ll-l-60(2)(a) (Supp.2007) (emphasis added). When read alone, this provision is unambiguous: It caps the amount of noneconomic damages a plaintiff can recover in a medical malpractice action at $500,000. However, Section ll-l-60(2)(a) becomes ambiguous when considered in the context of a wrongful death action, where one action is frequently filed by multiple plaintiffs.

¶ 14. The majority finds the provision at issue unambiguous and contends that it “is to be applied according to its plain meaning[.]” According to the majority, the plain meaning of Section ll-l-60(2)(a) is that the noneconomic damages cap set forth in that provision applies to all wrongful death beneficiaries in the aggregate, rather than to each beneficiary individually. The majority reaches this conclusion by reading the term “plaintiff’ in its plural form (“plaintiffs”) in accordance with Mississippi Code Annotated Section 1-3-83 (Rev.2005).

¶ 15. I agree that the term “plaintiff’ Section 11 — 1—60(2)(a) must be read in both its singular and plural form because the Legislature did not express an intent that the statute be read only in the singular. Miss.Code Ann. § 1-3-33 (Rev.2005). However, even if one reads the term “plaintiff’ in its plural form, the plain meaning of Section ll-l-60(2)(a) is not that the noneconomic damages cap applies to all wrongful death beneficiaries in the aggregate. When “plaintiffs” is substituted for “plaintiff,” the statute remains ambiguous: “the trier of fact ... shall not award the plaintiff[s] more than Five Hundred Thousand Dollars ($500,000) for non-economic damages.” Miss.Code Ann. § ll-l-60(2)(a) (Rev.2005). When read in that form, the statute can be interpreted to mean either that plaintiffs cannot recover more than a total of $500,000 in noneco-nomic damages in a wrongful death action or that each plaintiff in a wrongful death action cannot recover more than $500,000 in noneconomic damages.

¶ 16. “Where statutes are ambiguous or in conflict with one another, it is proper to resort to the rules of statutory construction.” Miss. Gaming Comm’n v. Imperial Palace of Miss., Inc., 751 So.2d 1025, 1028 (Miss.1999). “The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein.” Clark v. State ex rel. Miss. State Med. Ass’n, 381 So.2d 1046, 1048 (Miss.1980).

¶ 17. The intent of the Legislature in enacting Section 11-1-60 is explicitly stated in the statute: “It is the intent of this section to limit all noneconomic damages to the above.” Miss.Code Ann. § 11-1-60 (Supp.2007). Based on a plain reading of the statute, it is clear that the Legislature intended to cap the amount of noneconomic damages that could be recovered by a single plaintiff in a single medical malpractice cause of action. However, it is not apparent that the Legislature intended to cap the total amount of noneconomic damages that could be recovered by multiple plaintiffs in a wrongful death action premised on medical malpractice at $500,000.

¶ 18. When the Legislature has intended to place a cap on plaintiffs’ damages in the aggregate in other contexts, it has done so explicitly. For example, in Mississippi Code Annotated Section 11-46-15(1) (Rev.2002), a provision of the Mississippi Tort Claims Act, the Legislature “establish[ed] a per occurrence cap on governmental liability.” Allred v. Yarborough, 843 So.2d 727, 730 (Miss.2003). Section 11-46-15(1) provides in pertinent part: “In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter-” Miss.Code Ann. § 11-46-15(1) (Rev.2002) (emphasis added).

¶ 19. It is well-settled that “the omission of language from a similar provision on a similar subject indicates that the legislature had a different intent in enacting the provisions, which it manifested by the omission of the language.” City of Natchez, 612 So.2d at 1089. The fact that Section ll-r-l-60(2)(a) does not contain language similar to that of Section 11-46-15(1), limiting damages for all claims arising out of a single occurrence or incident, indicates that the Legislature did not intend for the $500,000 noneconomic damages cap to apply to all claims arising out of a single act of medical malpractice.

¶20. “[I]n determining the legislative intent, [the Court] may look not only to the language used [in the statute] but also to [the statute’s] historical background, its subject matter, and the purposes and objects to be accomplished.” Clark, 381 So.2d at 1048. Section 11-1-60 was passed in the special session of the Mississippi Legislature on tort reform in 2002. E. Farish Percy, Checking Up on the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Reforms the Cure?, 73 Miss. L.J. 1001, 1002 (2004). The ultimate purpose of Section 11-1-60 was to alleviate the perceived medical malpractice liability insurance crisis in Mississippi. See id. at 1001-1003, 1034-37. Specifically, Section 11-1-60 was designed to put an end to excessive damage awards in medical malpractice eases, which, in turn, would help bring down the cost of medical malpractice insurance in the state. See id. at 1036 n. 126.

¶21. Although the majority’s holding that Section ll-l-60(2)(a) limits noneco-nomic damages per medical malpractice incident in the aggregate is consistent with the legislative purpose behind Section 11-1-60,1 believe the holding will have ramifications that the Legislature did not intend. “Unthought of results must be avoided if possible, especially if injustice follows, and unwise purpose will not be imputed to the Legislature when a reasonable construction is possible.” McCullen v. State ex rel. Alexander, 217 Miss. 256, 271, 63 So.2d 856, 861 (1953) (internal quotation marks and citation omitted). Many “unthought of [and unjust] results” will flow from today’s holding.

¶ 22. First, wrongful death beneficiaries who are members of smaller classes of beneficiaries will receive more damages for their claims for loss of society and companionship than beneficiaries who belong to larger classes. Second, in wrongful death cases where the jury determines that the decedent’s pain and suffering between injury and death and the wrongful death beneficiaries’ claims for loss of society and companionship warrant an award of damages in excess of $500,000, the beneficiaries will not be fully compensated for the decedent’s pain and suffering or their loss of society and companionship. Third, today’s holding will affect medical malpractice cases not involving wrongful death. A married couple that brings a medical malpractice action consisting of a personal-injury claim and a claim for loss of consortium will not be fully compensated if the jury determines that the injured spouse’s damages for pain and suffering and the other spouse’s damages for loss of consortium exceed $500,000.

¶ 23. I do not believe the Legislature intended for the noneconomic damages cap set forth in Section 11 — 1—60(2)(a) to produce such unjust results. This Court has noted that the Legislature did not contemplate the impact that the tort reform measures it enacted would have on the wrongful death statute: “The Legislature clearly made major reforms in various statutes during recent sessions which included passing Mississippi Code Ann. Section 11-11-3(3). However, it. is equally clear that the wrongful death statute, Section 11-7-13, was not considered concern-tag events and multiple defendant doctors such as what we have before us now, when these changes in various statutes where made.” Rose v. Bologna, 942 So.2d 1287, 1290(¶ 9) (Miss.2006). Clearly, the impact that Section 11-1-60 could potentially have on the wrongful death statute was not fully taken into consideration by the Legislature.

¶24. “The purposes of the wrongful death statute are to prevent the wrongful termination of life and provide the beneficiary with compensation for the loss of companionship and society of the deceased, the pain and suffering of the deceased between injury and death, and punitive damages.” 66 Fed. Credit Union v. Tucker, 853 So.2d 104, 109-10 (Miss.2003); see also Miss.Code Ann. § 11-7-13 (Rev.2004) (“the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit ”) (emphasis added). To hold that the Legislature intended for the noneco-nomic damages cap on medical malpractice actions to apply to wrongful death beneficiaries in the aggregate, would mean that the Legislature enacted Section 11-1-60 in direct contravention of one of the purposes of the wrongful death statute: to fully compensate all beneficiaries for their loss of society and companionship and the pain and suffering of the decedent. This Court should not impute such an unwise purpose to the Legislature, especially when a reasonable construction of the statute that does not produce unjust results is possible. McCullen, 63 So.2d at 861.

¶25. Construing Section 11 — 1—60(2)(a) to apply to each wrongful death beneficiary separately, rather than in the aggregate, prevents that provision from abrogating an essential part of the -wrongful death statute. Further, such a construction gives effect to the Legislature’s intent in enacting Section 11-1-60-limiting the amount of noneconomic damages awarded in medical malpractice cases — because each beneficiary will not be allowed to recover more than $500,000 in noneconomic damages. This approach does not subvert the cap created by the Legislature. Rather, it balances the Legislature’s goal of protecting the health care industry with the mandate of the wrongful death statute that all wrongful death beneficiaries be fully compensated for their claims. Accordingly, I would hold that the noneco-nomic damages cap set forth in Section 11-l-60(2)(a) applies to each wrongful death beneficiary individually.

¶26. The Supreme Court of Florida reached the same conclusion when faced with a very similar issue. St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 967-71 (Fla.2000). In that case the court was presented with the question of whether the $250,000 noneconomic damages cap in the arbitration provisions of Florida’s Malpractice Act applied to all wrongful death claimants in the aggregate or to each claimant individually. Id. at 967. The provision in question reads as follows:

Noneconomic damages shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant’s injuries resulted in a 50-percent reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages.

Fla. Stat. § 766.207(7) (b) (emphasis added).

¶ 27. The court acknowledged that the provision stated that “noneconomic damages shall be limited to a maximum of $ 250,000 per incident,” but concluded that the use of the singular “claimant” made the provision ambiguous. Phillipe, 769 So.2d at 968. Because the statute was ambiguous, the court proceeded to “look to the legislative intent for guidance.” Id. It determined that the noneconomic damages cap provided “liability insurers with the ability to improve the predictability of the outcome of claims for the purpose of loss planning in risk assessment for premium purposes.” Id. at 970.

¶ 28. After discerning the legislative intent, the court “conelude[d] that the cap on noneconomic damages applies to each claimant individually.” Id. at 972. The court explained its reasoning as follows: “[I]n order for the assessment of a surviv- or’s noneconomic damages to be equitable, each survivor’s loss must be independently determined. Moreover, the loss of a survivor [should] not [be] diminished by the mere fact that there are multiple survivors.” Id. at 971. The court also determined that its holding was consistent with the purpose of the arbitration provision:

Such an interpretation would provide increased predictability in the outcome of the claims as the insurers would no longer be contending with the possibility of exorbitant noneconomic damage awards but would have a fixed dollar amount ($ 250,000), which each claimant’s award could not exceed. Moreover, this interpretation does more to promote early resolution of medical negligence claims, as it provides an equitable result which will in turn further encourage claimants to seek resolution through arbitration.

Id. at 970. In addition, the court acknowledged that “were we to interpret the non-economic damages cap to apply to all claimants in the aggregate, we conclude that such an interpretation would create equal protection concerns.” Id. at 971.

¶ 29. I find the Supreme Court of Florida’s analysis and reasoning to be very persuasive. I agree that each wrongful death beneficiary’s noneconomic damages must be determined separately in order to be equitable _ and that the recovery of a beneficiary should not be reduced by the existence of other beneficiaries. Like the Florida Supreme Court, I conclude that applying the noneconomic damages cap per beneficiary is consistent with the legislative goal of limiting health care providers’ exposure to liability. I also believe that the holding in today’s case creates equal .protection concerns.

¶30. For these reasons, I would hold that the noneconomic damages cap of Section 11 — 1—60(2)(a) applies to each wrongful death beneficiary individually, reverse the judgment of the circuit court and remand this case for further proceedings consistent with that holding. Accordingly, I must respectfully dissent.

GRAVES, J., JOINS THIS OPINION.

      . Subsequently joined by the other Appellees.

      . Mississippi Code Annotated Section 11-46-15(l)(a) states, in pertinent part, that:
      (1) In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:

      (a) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993, the sum of Fifty Thousand Dollars ($50,000.00). Miss.Code Ann. § 11 — 46—15(l)(a) (Rev.2002) (emphasis added).

      . Under the wrongful death statute, only one wrongful death action may be brought on behalf of all the wrongful death beneficiaries: ‘‘[T]here shall be but one (l) suit ...” Miss. Code Ann. § 11-7-13 (Rev.2004). But a wrongful death action may be brought "by all interested parties,” and "all parties interested may join the suit[J" Id.

      . In fact, not many large medical malpractice verdicts were returned in the period preceding the movement for tort reform. One study found that the number of medical malpractice verdicts exceeding one million dollars averaged one per year from 1995 through mid-2002. Neil Vidmar and Leigh Anne Brown, Tort Reform and the Medical Liability Insurance Crisis in Mississippi: Diagnosing the Disease and Prescribing a Remedy, 22 Miss. C.L.Rev. 9, 15-20 (2002) (concluding that "there is no evidence that Mississippi juries are out of control in medical malpractice cases”).

      . By stating that today’s holding is consistent with the legislative purpose behind Section 11-1-60, I do not mean that the majority’s application of Section 1 l-l-60(2)(a) is correct in any regard. I am not "validating” the majority’s "analysis” at all. I am simply stating the obvious: Applying Section 11 — 1— 60(2)(a) per medical malpractice incident in the aggregate, as the majority does, is consistent with the statute’s legislative purpose of limiting the amount of noneconomic damages awarded in medical malpractice cases because it will limit the amount of noneconomic damages awarded in medical malpractice cases. Of course, the construction of the statute that I advocate is also consistent with the legislative purpose behind the statute. The ultimate question is not whether a particular application of Section 11 — 1—60(2)(a) is consistent with the general purpose of the statute, but whether it effectuates the intent of the Legislature. In my view, the majority’s application of Section 11 — 1—60(2)(a) in this case does not effectuate the intent of the Legislature. Accordingly, I do not acknowledge the "rectitude” of the holding in this case.

      .As discussed infra, there is nothing “potential” about the unjust results of today’s decision, contrary to the majority's assertion.

      . As a result of the holding in today’s case, in wrongful death cases not premised on medical malpractice, the beneficiaries will not be fully compensated if a jury determines that the noneconomic damages exceed $1,000,000. Miss.Code Ann. § 11 — 1—60(2)(b) (Supp.2007).

      . This will be the effect because in a medical malpractice case involving a primary personal-injury claim and a loss-of-consortium claim, there is one cause of action and more than one plaintiff, as in a wrongful death action. See Choctaw, Inc. v. Wichner, 521 So.2d 878, 881 (Miss.1988) (holding that a claim for loss of consortium is a derivative claim, not an independent cause of action).

      . The majority claims that my proposed construction of Section 11 — 1—60(2)(a) is intended to "correct [a] perceived legislative error by judicial fiat,” and would constitute an "act of judicial activism.” The majority is mistaken. I am not attempting to correct a legislative error; rather, I am seeking to discover the intent of the Legislature in enacting Section 11 — 1—60(2)(a) and apply it accordingly. After construing the statute, unlike the majority, I find that the Legislature did not intend for Section 1 l-l-60(2)(a) to cap the total amount of noneconomic damages that can be recovered in a wrongful death action at $500,000. Accordingly, my conclusion is the opposite of judicial activism.

      . I not only have equal protection concerns about the application of the noneconomic damages cap on medical malpractice actions to wrongful death cases, but I also have equal protection concerns about the cap itself. Several courts have held that such a cap violates their state's equal protection clause. The Alabama Supreme Court held that placing a cap on noneconomic damages in medical malpractice cases "creates a favored class of tort-feasors, based solely upon their connection with health care[J” Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 166-67 (Ala.1991); see also Carson v. Maurer, 120 N.H. 925, 940-41, 424 A.2d 825, 835-36 (1980), overruled, on other grounds by Cmty. Res. for Justice, Inc. v. City of Manchester, 154 N.H. 748, 917 A.2d 707, 721 (2007). Because this issue was not raised on appeal, I will not address it.


source: Caselaw Access Project

author: WALLER, Presiding Justice,

license: Public Domain

text:
    Coye A. HOLMAN and Ted Holman v. HOWARD WILSON CHRYSLER JEEP, INC.
    No. 2005-CT-01154-SCT.
    Supreme Court of Mississippi.
    Jan. 10, 2008.

      Mark W. Prewitt, Vicksburg, attorney for appellants.
    Jeffrey P. Hubbard, Jackson, Susan D. McNamara, attorneys for appellee.
   ON MOTION FOR REHEARING ON WRIT OF CERTIORARI

WALLER, Presiding Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn and this opinion substituted therefor.

¶ 2. Coye and Ted Holman filed suit against Howard Wilson Chrysler Jeep, Inc., in the Circuit Court of Rankin County, Mississippi, seeking actual and punitive damages for claims related to their purchase of a 2002 Jeep Grand Cherokee. They made six claims in their original complaint, alleging Howard Wilson: negligently failed to notify them the vehicle they purchased had previously been damaged in an automobile accident; concealed or misrepresented the fact the vehicle had sustained damage; and committed fraud. Howard Wilson answered and, after discovery, filed a motion for summary judgment. At the hearing on the motion for summary judgment, the Holmans expressed their desire to amend their complaint to add a claim that Howard Wilson violated Mississippi’s Consumer Protection Act when selling them the Jeep. Miss.Code Ann. §§ 75-24-1 through 75-24-175 (Rev. 2000). The circuit court considered the merits of this proposed amendment when hearing the motion for summary judgment, and decided that the additional claim would not change its ruling even if the amendment were granted. The circuit court then allowed the Holmans to amend their complaint, and shortly thereafter entered its order granting summary judgment in favor of Howard Wilson on all claims.

¶ 3. The Court of Appeals affirmed the judgment of the circuit court in a 9-0 opinion. Holman v. Howard Wilson Chrysler Jeep, Inc., 972 So.2d 645, 2006 WL 3290633, 2005-CA-01154-COA (Miss.Ct.App. November 14, 2006). The Hol-mans filed a petition for writ of certiorari, which this court granted. We find genuine issues of material fact exist concerning whether Howard Wilson was under a duty to disclose the repaired damage to the Holmans’ vehicle prior to purchase, whether the language of the purchase contract is sufficient to place the Holmans on notice of the damage to the vehicle from the prior accident, and whether Howard Wilson violated the Consumer Protection Act when selling the Jeep to the Holmans. Therefore, we reverse the judgment of the Court of Appeals which affirmed the judgment of the circuit court, and remand this matter for further proceedings.

FACTS

¶ 4. The Holmans purchased a 2002 Jeep Grand Cherokee from Howard Wilson on July 30, 2002. The purchase price of the Holmans’ vehicle was listed on the purchase contract as $33,685. The Jeep was a demonstrator vehicle and had been driven 8,821 miles when purchased. Within the purchase contract was a clause which states, in full:

4. The Vehicle may have suffered damages and may have had repairs performed on it during prior ownership or usage, during transit or while in the control or possession of Howard Wilson. It is acknowledged that the Vehicle has been inspected in accordance with the law, and that it has been test driven and fully inspected by offeror(s) and all others requested or desired by offeror(s) to do so. The Vehicle is fully acceptable to offeror(s) in its present condition. Howard Wilson has no obligation to furnish any loaner car to offeror(s) or to provide any other substituted transportation to offeror(s) for any reason.

¶ 5. On October 2, 2003, the Holmans’ insurance agent informed them that the Jeep was involved in an automobile accident prior to their purchase of it. The Holmans contacted Howard Wilson and confirmed that the vehicle had been in a wreck and was repaired prior to their purchase. The repair bill indicated that several automotive parts were replaced or repaired, including the condenser, deflector, cross-members and brackets, freon and coolant, and the front bumper. The bill for the repairs totaled $2,190.38.

STANDARD OF REVIEW

¶ 6. We apply a de novo standard of review to a trial court’s grant of summary judgment. Moss v. Batesville Casket Co., 935 So.2d 393, 398 (Miss.2006). “The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Howard v. City of Biloxi, 943 So.2d 751, 754 (Miss.Ct.App.2006) (citing City of Jackson v. Sutton, 797 So.2d 977, 979 (Miss.2001)). If any triable issues of material fact exist, this Court will reverse the trial court’s decision to grant summary judgment. Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006).

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO THE HOLMANS’ CLAIMS OF NEGLIGENCE, MISREPRESENTATION AND FRAUD.

¶ 7. Howard Wilson made three arguments in its motion for summary judgment: (1) It owed the Holmans no duty to disclose the damage to them due to Regulation One of the Mississippi Motor Vehicle Commission; (2) it had, in fact, disclosed the possibility of damage to them within the terms of the purchase contract; and (3) the Holmans suffered no damages due to the failure to disclose. It reiterates these arguments on appeal. The Holmans argue that the Consumer Protection Act and Regulation One of the Mississippi Motor Vehicle Commission are in direct conflict, and the regulation must give way. Miss.Code Ann. §§ 75-24-1 through 75-24-175 (Rev.2000); 50-014 Miss.Code R. § 003-2 (2005). They claim a genuine issue of material fact remains to be tried: Whether Howard Wilson sold the Jeep demonstrator vehicle to them as new.

¶ 8. The Court of Appeals agreed Regulation One “did not require [Howard Wilson] to disclose any damage.” Holman, 972 So.2d at 647, 2005-CA-01154-COA at ¶ 7. It also concluded that the disclosure recited above “fulfilled [Howard Wilson’s] duty [to disclose] had there been one.” Id. at ¶ 12. Finally, the Court of Appeals found the Holmans “failed to show any connection with the prior damage to the damages they allegedly suffered.” Id.

¶ 9. The duty to disclose is based upon a theory of fraud that recognizes that the failure of a party to a business transaction to speak may amount to the suppression of a material fact which should have been disclosed and is, in effect, fraud. Welsh v. Mounger, 883 So.2d 46, 49 (Miss.2004) (discussing Guastella v. Wardell, 198 So.2d 227 (Miss.1967)). According to the Restatement (2d) of Torts:

(2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated ...
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and ...
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.

Restatement (Second) of Torts § 551 (1977). See also Welsh, 883 So.2d at 50 (discussing Guastella, 198 So.2d 227, and Restatement (Second) of Torts § 551).

¶ 10. Howard Wilson indicated that its policy was to disclose whether a vehicle had been stolen, had flood damage, or had wreck damage. The Holmans state in their affidavit that they intended to buy a new vehicle when they purchased the Jeep and that they expressed this intention to the salesperson at Howard Wilson. Giving the Holmans the benefit of the doubt and all favorable inferences, their affidavit reflects that the salesperson told them the Jeep was new, as indicated in the title and sales documents. There is enough evidence in the record to find a genuine issue of material fact exists whether Howard Wilson owed the Holmans a duty to disclose the damage prior to the consummation of the sale of the Jeep.

¶ 11. Howard Wilson argues the language within the purchase contract met its duty to disclose: “The Vehicle may have suffered damages and may have had re-fairs performed on it during prior ownership or usage, during transit or while in the control or possession of Howard Wilson.” (Emphasis added). The Holmans bear the burden at trial of proving this language did not put them on notice of the damage to the vehicle done in the automobile accident and the further burden of demonstrating the knowledge of the damage would be material to their purchase of the automobile. We find the adequacy of this notice a question for the jury. See Hobbs Automotive, Inc. v. Dorsey, 914 So.2d 148, 154 (Miss.2005); Lane v. Oustalet, 873 So.2d 92, 95-98 (Miss.2004). See generally Davidson v. Rogers, 431 So.2d 483 (Miss.1983); Averitt v. State, 246 Miss. 49, 63, 149 So.2d 320 (1963) (an affirmative defense is a question of fact to be submitted to the jury).

¶ 12. Howard Wilson also argues it was under no duty to disclose the vehicle’s prior damage to the Holmans at the time of purchase, due to Mississippi Motor Vehicle Commission Regulation One. The regulation reads:

On any vehicle, corrected damage exceeding six percent (6%) of the manufacturer’s suggested retail price, as measured by retail repair costs, must be disclosed in writing prior to dealer transfers and consumer deliveries. Damage to glass, tires and bumpers and any damaged components or options which can be replaced by identical components are excluded from the six percent (6%) regulation when replaced by identical manufacturer’s original equipment.
This regulation does not waive or alter any requirements or obligations which may be created by other Federal or State laws and regulations.

50-014 Miss.Code R. § 003-2 (2005). The retail repair costs associated with fixing the Holmans’ car after the accident exceeded the six-percent retail repair costs discussed in the regulation. By its own terms, the regulation required Howard Wilson to disclose this damage to the Hol-mans in writing, unless some of the costs were excluded from the calculation. The exception within the regulation simply removes the requirement imposed by the regulation that dealers and customers are to be notified in writing of corrected damage repairs performed on a particular vehicle. Nothing in the regulation indicates that Howard Wilson is relieved from its potential duty to disclose as examined above in Welsh.

¶ 13. Howard Wilson argues these repairs are excluded from the calculation as they were “corrected damage” to “damaged components” which were replaced by “identical components.” As noted above, the exception in the regulation merely removes the requirement that a purchaser be notified in writing of corrected damage. It does not relieve Howard Wilson of any other requirement under Mississippi law. Further, the regulation offers little guidance as to what constitutes a “component” of a vehicle. It specifically identifies glass, tires and bumpers as qualifying under its disclosure exemption, if replaced. The Motor Vehicle Commission Law offers only indirect guidance. Cf. Miss.Code Ann. § 63-17-55 (Rev.2000) (“ ‘Specialty vehicle’ means a motor vehicle manufactured by a second stage manufacturer by purchasing motor vehicle components, e.g. frame and drive train.... ”).

¶ 14. Howard Wilson identifies the purpose of Regulation One as protecting automobile dealers from being forced to disclose minor damage to vehicles “sustained in transit.” The Mississippi Automobile Dealers Association, as amici, similarly state this purpose: “The vast movement and management of a fleet of automobiles in the delivery, sale and marketing to the public dictates there will be instances of damage to vehicles in the process.” The Motor Vehicle Commission likewise offers this as the purpose of the regulation in its amicus brief. “Automobiles often sustain minor damage in transit from the manufacturer to the dealer. Often times this damage is as simple as a cracked windshield or a scratch in the paint. As a result, Regulation One was enacted to protect both dealers and consumers.” We see nothing in our case law or statutes that disagrees.

¶ 15. Assuming this is the purpose of Regulation One, we find the damage done to the Holmans’ Jeep, which was corrected by repairs performed by Howard Wilson, falls outside the purpose of the regulation. This vehicle was involved in an automobile accident, not damaged in transit. The regulation appears to cover new vehicles. It was illegal for the Hol-mans’ demonstrator vehicle to be represented and sold as a new car under the Mississippi Motor Vehicle Commission Act. Miss.Code Ann. § 63-17-73(l)(b)(2) (Rev. 2004). The very purpose of the act which gives the Commission the power to promulgate regulations is to “prevent frauds, unfair practices ... impositions and other abuses upon the citizens of the State of Mississippi.” Miss.Code Ann. § 63-17-53 (Rev.2004). Since the purpose of the regulation and the Mississippi Motor Vehicle Commission Act would not be served by an interpretation of the regulation which allowed a demonstrator vehicle involved in a documented automobile accident to be sold as new after the accident damage is repaired, we find Regulation One offers no relief to Howard Wilson. The circuit court erred in relying upon this regulation to grant summary judgment for Howard Wilson; and therefore, its judgment is reversed.

II. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO THE HOLMANS’ CLAIMS UNDER THE CONSUMER PROTECTION ACT.

¶ 16. The Holmans amended their complaint with the court’s permission to allege a violation of the Consumer Protection Act prior to the court granting summary judgment in favor of Howard Wilson. The circuit court concluded that the addition of this claim would not affect its judgment. A discussion of the effect the summary judgment had on the Holmans’ claim under the Consumer Protection Act does not appear in the Court of Appeals opinion, yet the Holmans pursued this claim in their briefs and petition for writ of certiorari. The act allows the Holmans to pursue this claim on their own behalf, so we address it below. Miss.Code Ann. § 75-24-15(1) (Rev.2000).

¶ 17. At the hearing, the Hol-mans argued that the Consumer Protection Act permitted them to recover damages because Howard Wilson sold them a car it represented as “new” when it was, in fact, “used” or “reconditioned.” See Miss. Code Ann. § 75-24-5(2)(f) (Rev.2000). Howard Wilson denied it sold them the demonstrator car as a new car. These arguments, on their face, suggest a genuine issue of material fact exists concerning whether Howard Wilson sold the Holmans the demonstrator Jeep as a new vehicle. We find factual support for the Holmans’ argument in the record. Therefore, summary judgment is inappropriate.

¶ 18. In responding to the motion for summary judgment, the Holmans offered their affidavit which provided, in pertinent part:

After looking around for a while we decided upon a new 2002 Jeep Grand Cherokee.
We talked to the sales representative who advised that the Jeep was new as reflected on the title and other applicable sales documents.
When the sales representative stated the Jeep was “new”, it carried with it the generally accepted connotation that it had never sustained any damages. Based upon this and other representations of good quality, we decided to, and did, purchase the vehicle on July 81, 2002.

As noted above, the Manufacturer’s Suggested Retail Price on the manufacturer’s vehicle invoice matched the price of the vehicle listed on the purchase contract the Holmans signed. On the face of the Howard Wilson purchase contract there is one area where one of three boxes can be marked to identify the vehicle being sold as “new vehicle,” “demo,” or “used vehicle.” The area immediately adjacent to the “new vehicle” box was marked on the Holmans’ purchase contract. These facts stand in opposition to Howard Wilson’s claim it did not sell the Holmans the demonstrator Jeep as new. Since there exists a genuine issue of material fact as to whether Howard Wilson sold the demonstrator Jeep to the Holmans as a new car, the circuit court erred in granting summary judgment to Howard Wilson. Its judgment is therefore reversed, and this matter remanded for further proceedings.

¶ 19. We are urged by the Motor Vehicle Commission and the Mississippi Automobile Dealers Association to find that the Consumer Protection Act and Regulation One do not conflict, as alleged by the Holmans. We agree that the Consumer Protection Act does not conflict with Regulation One. The language of Regulation One specifically states that it does not waive or alter any requirements or obligations created by state law. The purpose of both the Mississippi Motor Vehicle Commission Act and the Consumer Protection Act is to protect the citizens of Mississippi from deceptive and unfair trade practices. Miss.Code Ann. §§ 63-17-53 (Rev.2004), 75-24-5 (Rev.2002). Both the Motor Vehicle Commission Act and the Consumer Protection Act prohibit the sale of a used or reconditioned car as a new car. Miss.Code Ann. §§ 63-17-73(l)(b)(2) (Rev.2004), 75-24-5(2)(f) (Rev. 2002). While the regulation identifies “any Vehicle” within its coverage, we have noted above that the purpose of the regulation is to cover corrected damage done to new vehicles while “in transit.” Under the circumstances, we perceive no conflict between the regulation and the Consumer Protection Act.

CONCLUSION

¶20. After reviewing the trial court’s grant of summary judgment, we find that there exist genuine issues of material fact in this case that should be presented to a jury. Mississippi law allows recovery for damages by fraud as well as for violations of the Consumer Protection Act. Therefore, we reverse the - judgments of the Court of Appeals and of the circuit court and remand this matter to the' trial court for further proceedings consistent with this opinion.

¶ 21. REVERSED AND REMANDED.

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

      . In their complaint, the Holmans also made claims for breach of express or implied warranties and intentional infliction of emotional distress. The merits of these claims were not addressed at the hearing or in the motion for summary judgment, yet the circuit court granted summary judgment and dismissed the entire case. These claims were not raised on appeal and have, therefore, been waived. See, e.g., Vail v. Jackson, 206 Miss. 299, 41 So.2d 357 (1949). The parties have participated in the attorney general’s dispute resolution program as required by law. Miss.Code Ann. § 75-24-15(2) (Rev.2000).

      . There is some discrepancy as to the purchase price of the car. The only executed copy of the purchase contract in the record lists this amount, however, there is what appears to be a draft contract listing the vehicle price as $31,299. This discrepancy is explained by an exhibit in the record. The DaimlerChrysler Motors vehicle invoice in the record identifies $33,685 as the Manufacturer’s Suggested Retail Price, and $31,299 as the total price for the vehicle beginning with the Factory Wholesale Price and adding the options included with the vehicle such as leather seats, a trailer tow package, and chrome aluminum wheels.

      .The record reflects the accident occurred March 12, 2002, when the vehicle had approximately 8,745 miles on its odometer.

      . This regulation also can be accessed at the Commission’s internet website: www.mmvc. state.ms.us/mmvc/MotorVeh.nsfy’webpages/ regulations_one?OpenDocument

      . Six percent of $33,685 is $2,021.10. The retail repair costs listed in the invoice totaled $2,190.38.


author: SMITH, Chief Justice, DIAZ, Presiding Justice,

text:
    Mark Dwayne SUMRELL v. STATE of Mississippi.
    No. 2005-CT-00963-SCT.
    Supreme Court of Mississippi.
    Jan. 10, 2008.

      Stephen Nick, Greenville, attorney for appellant.
    Office of the Attorney General by Desh-un Terrell Martin, attorney for appellee.
   ON WRIT OF CERTIORARI.

SMITH, Chief Justice,

for the Court.

¶ 1. Mark Dwayne Sumrell was convicted of felony shoplifting and sentenced to life imprisonment as a habitual offender by the Washington County Circuit Court. We assigned the case to the Court of Appeals which affirmed his conviction and sentence in Sumrell v. State, 972 So.2d 648, 2006 WL 3490836, 2006 Miss.App. LEXIS 901 (Miss.Ct.App. Dec. 5, 2006) Sumrell filed a petition for certiorari which this Court granted. Finding no reversible error, we affirm.

FACTS

¶ 2. On October 13, 2003, James Ross, a security guard at the Kroger grocery store in Greenville, Mississippi, saw Mark Dwayne Sumrell remove a leather jacket from a rack in Kroger. Ross followed Sumrell and saw him put on the jacket. Ross also noticed that the price tags had been removed from the jacket. Sumrell approached the store exit without paying for the jacket. Ross apprehended Sumrell and asked him remove the jacket and go to the store’s office with him. Sumrell asked if he could remove the jacket and leave, but Ross insisted that Sumrell go to the office, where Ross called police.

¶ 3. The police arrived, questioned Sum-rell, photographed the leather jacket, and arrested Sumrell for shoplifting. Sumrell had two prior shoplifting convictions, thus he was charged with third-offense shoplifting, a felony. Miss.Code Ann. § 97-23-93(6) (Rev.2006).

¶ 4. The trial court appointed Carol White-Richard, of the Washington County Public Defender’s Office, as counsel for Sumrell. Ultimately, White-Richard accepted a job with the Washington County District Attorney’s Office and Stephen Nick was appointed as Sumrell’s new counsel.

DISCUSSION

¶ 5. We find no merit to nor reason for discussion of most of the issues raised on certiorari. We adopt the reasoning and analysis of the Court of Appeals on those issues. We do, however, address the following issues raised for the first time on certiorari.

I. Whether Sumrell Legitimately Raised the Issues Before the Court of Appeals that he now argues before this Court.

¶ 6. After a careful review of the record, this Court concludes that Sumrell never raised either of the issues that he now claims were not addressed by the Court of Appeals: (1) that he was improperly sentenced under Mississippi Code Section 99-19-83; and (2) an Eighth Amendment proportionality claim. While pro se litigants are afforded some leniency, they “must be held to substantially the same standards of litigation conduct as members of the bar.” Perry v. Andy, 858 So.2d 143, 146 (Miss.2003).

¶ 7. Appellate counsel was appointed to represent Sumrell in his appeal. Sumrell’s appeal was filed on April 28, 2005, and was assigned to the Court of Appeals in May. In August, Sumrell mailed his own letter to the clerk of the Mississippi Supreme Court and copied his attorney. The letter stated that he was attempting to perfect his own appeal, listing three issues that he intended to raise in his appeal. The issues Sumrell listed included an argument that he was illegally sentenced under the habitual-offender statute, but he failed to mention the issue of proportionality. Sumrell did attach a list of citations to cases he deemed important including Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), which addresses proportionality. In relation to the statement of issues in an appellant’s brief, Mississippi Rules of Appellate Procedure 28(a)(3) states that “[n]o separate assignment of errors shall be filed” and that “[n]o issue not distinctly identified shall be argued by counsel, except upon request of the court.” We find that a mere letter to the Clerk does not sufficiently raise or preserve an issue for appeal.

¶ 8. In April of the following year, Sum-rell’s court-appointed appellate counsel filed Sumrell’s appellant’s brief. This brief officially asserted Sumrell’s issues for appeal. It included four issues, which were properly addressed by the Court of Appeals. One of the issues stated, “The appellant asserts that counsel did not sufficiently contest the requested amendment to the indictment, [i].e. changing same from 99-19-81 to 99-19-83.” The brief included an excerpt from the trial transcript which included a statement of Sum-rell’s trial counsel asserting that the State did not show in the indietment that Sum-rell was sentenced to and actually served more than one year on the underlying offenses.' However, the issue as raised on appeal, was couched as an ineffective-assistance-of-counsel claim.

¶ 9. In May, Sumrell sent another letter to the Clerk of the Mississippi Supreme Court and copied his attorney and the Mississippi Attorney General. This letter stated that Sumrell wanted his attorney to supplement his brief with the argument that the State failed to prove that he was sentenced to, and actually served, a year on each of the underlying offenses. Again, we find that this letter did not act as a pro se brief, nor did it bring or preserve this issue before the Court of Appeals. Sum-rell did not file a supplemental or reply brief, and in December 2006, the Court of Appeals handed down its decision unanimously affirming the trial court.

¶ 10. In April 2007, Sumrell finally filed a pro se motion for post-conviction relief and an accompanying supporting brief, which he should have done in the very beginning of the appeal process. In this accompanying brief, Sumrell for the first time legitimately argues that the trial court erred in sentencing him under the habitual-offender statute because the State failed to prove that he was sentenced to and actually served more than one year on the underlying offenses. This is also the first time Sumrell legitimately asserted that the sentence violated his constitutional rights because it was not proportionate to the crimes committed.

¶ 11. This Court recognizes that issues not raised on direct appeal or before the trial court are procedurally barred and are not subject to further review. Wilcher v. State, 479 So.2d 710, 712 (Miss.1985). The Court of Appeals had rendered its opinion four months prior to Sumrell filing this pro se brief, and the Court of Appeals opinion was final as that court had denied Sumrell’s motion for rehearing and issued its mandate.

¶ 12. In May 2007, Sumrell’s appellate counsel filed a petition for certiorari with this Court. Again, he raised the same issues he had raised before the Court of Appeals. The issues raised included the ineffective-assistance-of-counsel issue relating to the amendment of the indictment under the habitual offenders statute. The petition made no mention whatsoever of the proportionality issue.

¶ 13. In June 2007, Sumrell filed a pro se petition for certiorari with this Court. In it, Sumrell asserted that the State did not prove he was sentenced to and served one year for the underlying offenses. Sumrell never legitimately raised this issue before the Court of Appeals. Furthermore, Sumrell’s petition for certiorari failed to mention the proportionality issue. This Court has held that issues not raised at trial or on direct appeal are procedurally barred. McFarland v. Entergy Miss., Inc., 919 So.2d 894, 904 (Miss.2005).

¶ 14. Based on the above facts gleaned from the record, we find that Sumrell did not legitimately raise before the Court of Appeals either of the issues he now attempts to argue before this Court. Therefore, consideration by this Court by way of certiorari is inappropriate. We accordingly apply the procedural bar. Procedural bar notwithstanding, the Court will address these issues on the merits.

II. Whether Sumrell Was Properly Sentenced Under Mississippi’s Habitual Offender Statute.

¶ 15. Mississippi’s habitual-offender statute, Mississippi Code Annotated Section 99-19-83 provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-83 (Rev.2007). We note at the outset that the State must prove that the Sumrell actually served one year or more on two felony convictions. At trial, the trial court admitted the Mississippi Department , of Corrections pen pack into evidence. The pen pack established the following facts:

1. Sumrell was convicted of armed robbery, cause number 22,242, and sentenced to probation on September 23,1991.
2. Sumrell’s probation on the armed robbery conviction was revoked on February 22, 1993, and he was sentenced to a three-year sentence. Sumrell began serving this sentence on February 11,1993.
3. Sumrell was convicted of possession of cocaine, cause number 23,077, on February 22, 1993, and he was sentenced to a three-year sentence to run concurrently with his robbery sentence. Sumrell began serving this sentence on February 11, 1993.
4. An amended order was entered on July 20,1993.
5. Sumrell was released from jail on both the robbery and possession-of-cocaine sentences on March 23, 1994.

¶ 16. The above facts indicate that Sumrell served more than one year on both sentences. All the documents in the pen pack establish that Sumrell, in fact, was sentenced and served a year on the separate offenses of robbery and possession of cocaine. Therefore, the circuit court did not err in sentencing Sumrell in the present case as a habitual offender under Mississippi Code Annotated Section 99-19-83.

III. Whether SumrelPs Life Sentence Was Disproportionate In Light of His Crimes.

¶ 17. “[T]he general rule in Mississippi is that a sentence that does not exceed the maximum term allowed by the statute, cannot be disturbed on appeal.” Edwards v. State, 800 So.2d 454, 468 (Miss.2001) (citing Fleming v. State, 604 So.2d 280, 302 (Miss.1992)). This Court “will review a sentence that allegedly imposed a penalty that is disproportionate to the crime.” Id.

¶ 18. In Edwards, this Court discussed the proportionality analysis as laid out by the United States Supreme Court:

The United States Supreme Court set forth a three-prong test for an Eighth Amendment proportionality analysis in Solem as follows:
(i) the gravity of the offense and the harshness of the penalty;
(ii) the sentence imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for commission of the same crime in other jurisdictions.
This Court noted, however, that Solem was overruled in Harmelin v. Michigan, 501 U.S. 957, 965-66, 111 S.Ct. 2680, 2686-87, 115 L.Ed.2d 836 (1991) “to the extent that it found a guarantee of proportionality in the Eighth Amendment. In light of Harmelin, it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality.’ ” Hoops v. State, 681 So.2d at 538 (citations omitted). The appellate courts will not apply the three-prong disproportion-ality test when there is a lack of this initial showing. Young v. State, 731 So.2d 1120, 1125 (Miss.1999); Williams v. State, 784 So.2d 230, 236 (Miss.Ct.App.2000).

800 So.2d at 469. Applying our reasoning in Edwards to the case at bar, we find no merit to the issues.

CONCLUSION

¶ 19. While Sumrell eventually did raise both of the issues that he now attempts to argue before this Court, he did not do so legitimately under the Rules of Appellate Procedure and our case law, or at the proper time to preserve the issues for appeal. Thus, we apply the procedural bar. Alternatively, procedural bar notwithstanding, we find no valid basis for the issues Sumrell raises considering the merits. We therefore affirm the judgments of the Court of Appeals and the trial court.

¶ 20. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF LIFE IMPRISONMENT, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. LAMAR, J., CONCURS IN RESULT ONLY. DIAZ, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES AND DICKINSON, JJ.

DIAZ, Presiding Justice,

Concurring in Part and Dissenting in Part:

¶ 21. I concur in the affirmance of Sum-rell’s conviction for felony shoplifting, but I dissent from the affirmance of his sentence as a habitual offender. By holding that the trial court did not err in sentencing the defendant under Section 99-19-88, the majority makes a finding of fact that the trial judge never addressed, that the State never attempted to prove, and that is simply unsupported by the record. For these reasons, I must respectfully dissent in part.

¶ 22. Although the bulk of the majority opinion is devoted to finding that Sumrell is procedurally barred, prior precedent requires that this Court apply plain-error review to the habitual offender issue. This Court has previously held that when a defendant is wrongfully sentenced under Section 99-19-83 rather than Section 99-19-81, such an error is a denial of due process and is “too significant a deprivation of liberty to be subjected to a procedural bar.” Smith v. State, 477 So.2d 191, 195 (Miss.1985). Because this is the exact issue raised in this case, this Court is bound by prior precedent to apply plain-error review.

¶ 28. Regarding the merits, the majority fails to acknowledge that the State must prove “beyond a reasonable doubt” that Sumrell actually served a year or more on each conviction. “Even though a defendant is not entitled to have a jury to pass upon the issue, the state has the burden of proving beyond a reasonable doubt all the elements required to convict an accused under Miss.Code Ann. § 99-19-83.” Ellis v. State, 485 So.2d 1062, 1063 (Miss.1986) (citing Wilson v. State, 395 So.2d 957 (Miss.1981)). “An essential ingredient of [Section 99-19-83] is that the defendant shall have served at least one year under each sentence.” Ellis, 485 So.2d at 1064. Accordingly, if the State fails to prove that the defendant actually served one year or more on two felony convictions, this Court must vacate the sentence and remand the case for resentencing. Armstrong v. State, 618 So.2d 88, 89 (Miss.1993) (citing Ellis, 485 So.2d 1062).

¶ 24. Despite the majority’s conclusion, the State failed to prove beyond a reasonable doubt that Sumrell served at least a year or more on each conviction. At the sentencing hearing, the trial court admitted Sumrell’s pen pack during the testimony of Melvin Edwards of the Mississippi Department of Corrections. Edwards testified that the pen pack showed that Sum-rell was convicted on September 23, 1991 for robbery and sentenced to three years supervised probation. He also testified that the documents demonstrated that Sumrell was convicted for possession of cocaine on- February 22, 1993. Edwards never stated the sentence for the possession conviction, and he also never stated that Sumrell actually served a year or more on each charge.

¶ 25. The pen pack, consisting of MDOC documents and court orders, does show that Sumrell was convicted of possession of cocaine and robbery; however, it does not show, beyond a reasonable doubt, that he served at least one year for each crime. On February 22, 1993, the Washington County Circuit Court ordered Sum-rell to serve a three-year sentence for his possession conviction. On July 20, 1993, Sumrell was sentenced to another three-year term for violating his probation. Sumrell entered MDOC custody on February 22, 1993, and was discharged March 23, 1994. Therefore, while he served roughly thirteen months for his possession conviction, Sumrell served only eight months for his probation violation.

¶ 26. The majority finds that Sumrell’s probation was revoked on February 22, 1993. However, the order entered on that day sentenced Sumrell only on the possession charge. The trial court did not order his probation revoked until July.

¶ 27. This Court has held that any uncertainties in sentencing orders “must be resolved in favor of the accused.” State v. Willis, 539 So.2d 1043, 1045 (Miss.1989); See also Anderson v. State, 288 So.2d 852, 855 (Miss.1974) (citing Johnson v. State, 260 So.2d 436 (Miss.1972)). In addition, the orders imposing sentences control over the other documents contained in the pen pack. See Anderson, 288 So.2d at 855. Therefore, the record fails to establish that Sumrell actually served a year or more on both charges.

¶28. Moreover, the trial court never found that Sumrell actually served a year or more on both prior convictions. The sentencing order simply tracked the language of the amended indictment, which failed to include this essential element. The original indictment charged Sumrell as a habitual offender under Section 99-19-81, which, if convicted, would require Sumrell to be sentenced to five years. The prosecution moved to amend the indictment to charge Sumrell under Section 99-19-83. Sumrell’s attorney objected to the amendment at trial, and the prosecution admitted that the indictment was deficient:

Defense: Even with the amendment as the motion sets out, it still does not satisfy the requirements of that statute under 99-19-83, and we are objecting to the State proceeding under that particular statute because of the errors.
Court: In what respect?
Defense: The fact that this does not satisfy the requirements of the statute.
Court: What does it not satisfy?
Defense: It — Number 1, it doesn’t state the crime with which he’s been charged. It does not state that he was sentenced and actually served more than a year I think is what the requirement is. Not only must he be sentenced to more than a year, he must actually have served more than a year under that sentence.
Court: And your indictment — your indictment doesn’t include this?

Prosecution: Probably not that portion. Over this objection, the court allowed the amendment and sentenced Sumrell under Section 99-19-83 without finding that Sumrell had served at least a year or more on each conviction. Without such a finding, the trial court could not have sentenced Sumrell to life as a habitual offender. Ellis, 485 So.2d at 1064.

¶ 29. Because there was neither a finding nor an attempt to prove this essential element of Section 99-19-83, Sumrell should not have been sentenced to life imprisonment as a habitual offender. Armstrong, 618 So.2d at 90; Ellis, 485 So.2d at 1064; Smith, All So.2d at 196. In Ellis, this Court was presented with an almost identical scenario. The indictment charged the defendant as a habitual offender under Section 99-19-83 but did not allege that he had actually served any time. Ellis, 485 So.2d 1062. At his sentencing hearing, the State presented certified copies of two prior convictions, one with a sentence of three years and one with a sentence of five years. Id. at 1062-68. No further findings were made on the record, and the trial judge sentenced Ellis to life under Section 99-19-88. Id. at 1063. This Court vacated the sentence and remanded the case for resentencing under Section 99-19-81 because “the state never proved, nor indeed attempted to prove in the circuit court that he had actually served one year or more on these [prior] sentences.” Ellis, 485 So.2d at 1063. See also Ellis v. State, 520 So.2d 495, 496 (Miss.1988).

¶ 30. Ellis is indistinguishable from the present case; and therefore, I would vacate Sumrell’s sentence and remand for resentencing under Section 99-19-81 as originally charged.

GRAVES AND DICKINSON, JJ., JOIN THIS OPINION.


author: WALLER, Presiding Justice, EASLEY, Justice,

text:
    Linda JONES v. STATE of Mississippi.
    No. 2007-KM-00344-SCT.
    Supreme Court of Mississippi.
    Jan. 10, 2008.
    David M. Holly, Greenwood, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

      Before WALLER, P.J., DICKINSON and LAMAR, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Aggrieved by the circuit court’s dismissal of her appeal from a guilty-plea-eonviction in justice court for first-offense DUI and careless driving, Linda Jones seeks review by this Court. We reverse and remand, finding the Circuit Court of Tunica County was in error for failing to allow a trial de novo.

DISCUSSION

¶ 2. Jones’s claim of error is that the circuit court abused its discretion by denying her the right to a trial de novo after conviction in a justice court, a claim which is not disputed by the State. The right to appeal from any conviction of a criminal offense from justice court is provided under Section 99-35-1 of the Mississippi Code Annotated (Rev.2007). The statute makes no exception as to appeals with the inclusive language, “[i]n all cases of conviction of a criminal offense.” Id. The statute does not differentiate based upon the manner of conviction, plea or trial, and we are constrained from doing so. Further, the mandatory language within the statute, “[o]n appearance of the appellant in the circuit court the case shall be tried anew” precludes dismissal of an appeal by the circuit court. Id. (Emphasis added).

II3. Though this Court has not spoken to this issue in sixty years, we uniformly and consistently have held that any defendant who has been convicted of a criminal offense in a justice court may appeal even though he or she pleaded guilty. Neblett v. State, 75 Miss. 105, 21 So. 799 (1897). A convicted defendant, although he may have pleaded guilty, may take an appeal to circuit or county court and be granted a trial de novo. Little v. Wilson, 189 Miss. 825, 199 So. 72, 73 (1940). Pleading guilty in justice court does not estop a defendant from appealing to the circuit court. Ball v. State, 202 Miss. 405, 32 So.2d 195, 196 (1947).

¶ 4. The dissent makes note that there is nothing in the record to show that Jones’s plea was not voluntarily and knowingly made. However, the record must affirmatively show that the plea was voluntary and knowingly made. Boykin v. Ala., 395 U.S. 238, 239-42, 89 S.Ct. 1709, 1710-12, 23 L.Ed.2d 274, 277-79 (1969) (error to accept a guilty plea on a silent record without any showing that the plea was intelligent and voluntary). The absence of proof is no proof.

¶ 5. Unlike circuit and county courts, stenographic notes of justice court proceedings are not required. See Miss.Code Ann. §§ 9-13-1 to 9-13-63 (Rev.2002). In this case, there is no transcript or record of any plea colloquy between Jones and the justice court to review constitutional safeguards required for pleas. See Dock v. State, 802 So.2d 1051, 1054-56 (Miss.2001) (citing Boykin, 395 U.S. at 239-42, 89 S.Ct. 1709). The appellate record contains only a few documents, including the intoxilyzer test, the ticket/affidavit, the waiver of attorney form, and order adjudicating guilt.

¶ 6. Regardless, statutory authority mandates that Jones’s appeal to the circuit court be tried de novo. See Miss.Code Ann. § 99-35-1 (Rev.2007).

CONCLUSION

¶ 7. We reverse the judgment of the circuit court dismissing Jones’s appeal and remand this case to the Circuit Court of Tunica County for a trial de novo on the merits.

¶ 8. REVERSED AND REMANDED.

DIAZ, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J.

EASLEY, Justice,

Dissenting.

¶ 9. Linda Jones entered a guilty plea to the charge of DUI first offense and careless driving in the Justice Court of Tunica County, Mississippi. After pleading guilty in justice court, Jones appealed her conviction to the Circuit Court of Tunica County. Circuit Court Judge Albert B. Smith, III, presided over Jones’s case. Judge Smith examined whether Jones’s guilty plea was voluntary, knowing, and freely given. Nothing in the record was presented to show that the plea was not voluntarily and knowingly made. Jones does not argue that the plea was based on any coercion or misunderstanding. Clearly, Jones admitted her guilt and pleaded guilty. Therefore, no factual dispute is alleged in this case. This Court should not be in the practice of making excuses for those that break the law.

¶ 10. Judge Smith declined to allow Jones a de novo review in the circuit court based on the admission and guilty plea. De novo means “anew” or “afresh.” Black’s Law Dictionary 226 (5th ed.1983). De novo review allows the court to reexamine the evidence decided by the finder of fact, which is viewed in a light most favorable to the nonmoving party as opposed to being bound by the fact finders’ determination. See Cockrell v. Pearl River Valley Water Supply Dist, 865 So.2d 357, 360 (Miss.2004); see also Conrod v. Holder, 825 So.2d 16,18 (Miss.2002).

¶ 11. However, here there is no factual dispute. Jones stated under oath that she was guilty. “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin v. Ala., 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). She made no assertion that she had been misled or coerced into confessing her guilt when she, in fact, was not guilty. Had she made such an assertion, then even though she had pleaded guilty, there would be a factual dispute for the circuit court to reexamine.

¶ 12. Likewise, had Jones pleaded nolo contendere, which means “I will not contest it,” or had he been tried and convicted in a bench trial or a jury trial, a factual dispute would then exist, and the conviction could be reexamined. See Black’s Law Dictionary 545 (5th ed.1983). While Mississippi Code Annotated Section 99-35-1 (Rev.2007) provides for de novo appeal to circuit court from justice court in cases of conviction of a criminal offense, it is illogical to apply that allowance where a guilty plea was undisputably made voluntarily, knowingly, and without coercion or misunderstanding. Therefore, I do not agree with this Court’s holdings in Ball v. State, 202 Miss. 405, 32 So.2d 195 (1947), and Little v. Wilson, 189 Miss. 825,199 So. 72 (1940), that a de novo appeal from justice court to circuit or county court is appropriate in every case where there was a guilty plea in justice court, especially in cases where no irregularities in the process are alleged.

¶ 13. That being said, I do not in any way disagree that de novo appeal of the evidence is completely proper in cases of nolo contendere, trial, or where the guilty plea is in dispute. However, I am troubled by situations such as this case, where a defendant represents under oath to the court one thing as to the evidence and then asks to be allowed to change his or her position, again under oath, as to the evidence in another court, while making no allegation of irregularities with the process. What then is the point of allowing guilty pleas in the justice court system, if they can be automatically set aside and the case retried de novo by simply appealing to circuit or county court? The law should protect the innocent, not the guilty.

¶ 14. Nowhere in Jones’s appeal does she assert that the justice court rendered an incorrect punishment or legal ruling to justify a de novo review of the law in this case. Nowhere is any dispute raised as to the evidence of her guilt. See Wilson v. State, 967 So.2d 32, 41 (Miss.2007) (“This issue presents a question of law, for which the standard of review is de novo.”); DeLoach v. State, 722 So.2d 512, 518 (Miss.1998) (citing Rose v. State, 586 So.2d 746, 751 (Miss.1991)); Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

¶ 15. I disagree that the outcome reached here was intended by allowing a de novo appeal of a criminal conviction from justice court to circuit or county court. To allow Jones to escape due to a technicality is a slap in the face of justice.

SMITH, C.J., joins this opinion.

      . Jones was fined $758.50, sentenced to forty-eight hours in jail (which were suspended), placed on eleven months, twenty-eight days probation, and ordered to attend Mississippi Alcohol Safety Education Program.

      . See also Rule 12.02(c) of the Uniform Circuit and County Court Rules.