author: STEWART, J.

text:
    TOWN OF HAYNESVILLE, INC., Plaintiff-Appellee v. ENTERGY CORPORATION and Entergy Louisiana, Inc., Defendants-Appellants.
    No. 42,019-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 2, 2007.

      Kenneth P. Carter, Margaret J. Savoye, New Orleans, The Boles Law Firm, by Michael L. Dubos, Monroe, for Appellants.
    Colvin, Weaver & Cerniglia, by: James H. Colvin, Charles E. Weaver, Shreveport, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   STEWART, J.

| Entergy Louisiana (ELI) appeals the trial court’s finding that it was a single business enterprise for the purpose of triggering a Most Favored Nation agreement requiring it to pay increased franchise fees to the city of Haynesville. Because we find that the trial court erred in its determination of the existence of a single business enterprise, and for the reasons more fully discussed below, we reverse the judgment.

FACTS

This matter involves a franchise fee dispute between the Town of Haynesville and Louisiana Power & Light Company (LP & L), also later known as Entergy Louisiana (ELI), in which Haynesville alleged that it is entitled to higher franchise fees based on the terms of a Most Favored Nation (“MFN”) side letter agreement. The issue before this Court relates to the interpretation and application of the triggering condition for ELI’s obligation to pay a higher fee pursuant to the MFN side letter agreement.

LP & L has provided electric service to much of north and southeast Louisiana for nearly 60 years. In the municipalities that LP & L has served, it has obtained franchises giving it various rights, including the right to use the streets and public ways of the municipality to provide electric service to service locations within the municipality. These long term agreements support the capital investment needed to supply service.

On January 15, 1985, LP & L entered into a franchise agreement with the Town of Haynesville. The franchise granted LP & L the right to supply electric service to Haynesville for twenty-five years in exchange for a franchise fee of 2% of the gross receipts from the sale of electric service for | ¿retail and commercial purposes within Haynesville. Haynesville also wanted the right to increase its 2% fee in the event that LP & L ever contracted to pay a higher fee to another municipality. As a result, the parties entered into a side letter agreement containing a “Most Favored Nation” clause that provided:

As part and portion of the consideration for the franchise renewal contract granted by the Town of Haynesville to Louisiana Power and Light Company (the “Company”) ... the Company does hereby further agree, that in the event the Company contracts with any other town or municipality in the renewal of its franchise contracts to pay as a franchise fee more than two (2%) percent of the gross receipts of the Company from the sale of electric service ... the Company will increase the franchise fee more than two (2%) percent of gross receipts of the Company from the sale of electric service ... the Company will increase the franchise fee paid to the Town of Haynesville. (Emphasis added)

At the time the side letter was executed, LP & L’s sister operating companies, AP & L, MP & L, and NOPSI had franchise or similar agreements relating to the locations that they served. These arrangements vary in their terms and conditions, including the amount of the fee to be paid.

A history of Entergy and LP & L would be useful at this point. Middle South Utilities, Inc. (MSU) was formed in 1949 as a “public utility holding company” under the Public Utility Holding Company Act of 1935 (PUHCA). As a holding company, MSU owned 100% of the common stock of four subsidiaries, Arkansas Power and Light Company (AP & L), Mississippi Power and Light Company (MP & L), Louisiana Power and Light Company (LP & L), and New Orleans Public Service, Inc. (NOPSI). In 1963, MSU formed a service company to provide certain services for these companies.

|sMSU changed its name to Entergy Corporation on May 19, 1989. In 1992, Entergy announced its plans to acquire Gulf States Utilities, Inc. (GSU), a public utility company serving southwest Louisiana and southeast Texas. In 1996, each of the five subsidiaries changed their names to signify their affiliation with Entergy and their geographical and jurisdictional separateness.

Now turning to the instant case, Haynesville instituted this suit alleging that ELI breached its franchise agreement with the Town by failing to pay a franchise fee of 3% of the gross receipts from sales of electricity because ELI paid the City of West Monroe a franchise fee of 3% and by failing to pay to the Town a 5% franchise fee that had been traditionally paid by GSU.

On July 11, 2001, Haynesville filed a motion for summary judgment on its 3% claim. The trial court granted the Town’s motion. ELI appealed. On January 31, 2003, this Court affirmed the decision of the trial court. On March 29, 2005, the trial court addressed the merits of the Town’s 5% claim against ELI. The trial court determined that MFN agreement is ambiguous, that Entergy is a single business enterprise, and that the Town is entitled to receive the 5% franchise fee paid by Energy Gulf States, Inc. to the municipalities it serves. ELI filed a motion for new trial which was denied. This appeal ensued.

DISCUSSION

Contractual Interpretation

The interpretation of a contract is the determination of the common intent of the parties with the courts giving the contractual words their [4generally prevailing meaning unless the words have acquired a technical meaning. La. C.C. arts. 2045, 2047; Campbell v. Melton, 2001-2578 (La.5/14/02), 817 So.2d 69. A doubtful provision must be interpreted in light of, inter alia, the conduct of the parties before and after the formation of the contract. La. C.C. art. 2053. Contract interpretation of ambiguous terms requires construction against the contract’s drafter. La. C.C. art. 2056; Campbell v. Melton, supra. Factual findings which are pertinent to the interpretation of a contract will not be disturbed absent manifest error. Campbell v. Melton, supra; Murray v. German Mut. Ins. Co., 37,697 (La.App. 2 Cir. 9/24/03), 856 So.2d 81, writ denied, 2003-3168 (La.2/13/04), 867 So.2d 698.

Entergy contends that the MFN letter agreement is not ambiguous and should be enforced as written. When the words of a contact are clear and do not lead to absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. The determination of whether a contract is clear or ambiguous is a matter of law. Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,441 (La.App. 2d Cir.12/8/99), 748 So.2d 594.

In conjunction with the January 15, 1985, franchise renewal, Haynesville negotiated a side letter agreement with a “Most Favored Nation” clause. The only parties mentioned in the MFN agreement are Haynesville and LP & L. The term “company” used in the contract refers to no entity other than LP & L. The triggering event for the MFN clause is described explicitly as “the Company” contracting with another town or municipality | fin the renewal of its franchise for a fee exceeding 2% of the gross receipts of electric sales. Despite the fact that in January 1985, LP & L had a parent corporation and subsidiary corporations, no words are used to expand the triggering event beyond LP & L’s contracting with another town or municipality in the renewal of LP & L’s franchise fee.

The trial court erred in its determination that the MFN clause is ambiguous in that “it does not provide for what is intended in the event the obligor, Louisiana Power and Light changes ownership, changes names, or through the actions of a parent or affiliated company, pays a franchise fee of greater than 2% to some other municipality.” We find that the trial court erred with respect to this finding on several fronts.

First, a change in the name of a corporation has no effect on the rights and obligations of the parties to an agreement. See Pro Source Roofing, Inc. v. Boucher, 36,269 (La.App. 2d Cir.7/24/02), 822 So.2d 881 citing Alley v. Miramon, 614 F.2d 1372 (5th Cir.1980). Thus, the absence of a provision in the contract that addresses what happens if LP & L changes its name is irrelevant and creates no ambiguity in the agreement.

Second, the agreement is not ambiguous because it does not state what is intended should LP & L change ownership. When ELI entered into its franchise agreement with Haynesville in 1985, it was owned by MSU. After MSU changed its name to Entergy in 1988 and LP & L changed its name to ELI in 1996, neither activity changed the ownership of LP & L.

Finally, the payments of a 5% fee by LP & L to another municipality that it serves cannot serve as the basis of the Town’s claims. Instead, the |fiTown’s claims are based upon the payments of 5% by GSU to municipalities served by GSU. There is no evidence that a parent or affiliate paid on behalf of LP & L any franchise fee to any municipality in the renewal of its franchise served by LP & L in greater percentages than received by Haynesville. There is simply no ambiguity relating to the fact that LP & L must contract to pay a franchise fee higher than 2% in order to trigger the obligations of LP & L in the renewal of its franchise contracts. (Emphasis added) This instant situation does not present such a scenario. The language of the contract is clear and unambiguous. Thus, we hold that the trial court’s determination that the contract was ambiguous was in error.

Single Business Enterprise

Where two or more corporations operate a single business, the courts have been unwilling to allow affiliated corporations that are not directly involved to escape liability simply because of the business fragmentation. Green v. Champion Ins. Co., 577 So.2d 249 (La.App. 1st Cir.1991), writ denied, 580 So.2d 668 (La.1991); Lucey Manufacturing Corp. v. Oil City Iron Works, 15 La.App. 12, 131 So. 57, 61 (2d Cir.1930).

Citing Green v. Champion Ins. Co., supra, the trial court noted the courts may disregard the concept of corporate separateness to extend liability to affiliated corporations to achieve equity. The Green court stated that whether an affiliated group of entities is a “single business enterprise” (SBE) is a question of fact. In determining whether a corporation is an “alter ego” or part of a “single business entity,” the court must look at |7the substance of the corporation rather than the form. The Green court supplied a nonexclusive list of considerations similar to those used to “pierce the corporate veil.”

The trial court determined that Entergy was a single business enterprise because of four factors to wit:

1. Testimony and exhibits that were admitted into evidence shows that Entergy Corporation has ownership of sufficient stock of its subsidiaries to give it actual working control over such subsidiaries;
2. They share common directors and/or officers;
3. Entergy published an advertisement in the official journal for Claiborne Parish on May 9, 1996, which publicly stated that Entergy and its subsidiaries were considered to be “one” company operating under “one name,” and the ad went on to state as follows “we are unifying five separate power companies into one cohesive whole. Streamlining operations, Eliminating redundancies, Pooling resources.”
4. The checks sent by Entergy as payment to Haynesville pursuant to its franchise agreement reflect that payment is made to the Town of Haynesville by “Entergy Services, Inc. Agent for Entergy Corporation, Entergy Mississippi Inc., Entergy Services, Inc., Systems Fuels, Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy New Orleans, Inc., System Energy Resources, Inc., Entergy Operations Inc., Entergy Arkansas Inc.”

With respect to the trial court’s finding that Entergy had working control over all of its subsidiaries, we note that control alone is not 18sufficient to warrant a piercing of the corporate veil. “The determination of whether the corporate veil has been pierced and the corporation is merely the ‘alter ego’ of the shareholder is made by considering the totality of the circumstances.” Shoemaker v. Giacalone, 34,809 (La.App. 2d Cir.06/20/01), 793 So.2d 230, writ denied, 2001-2614 (La.12/14/01), 804 So.2d 632. The involvement of a sole or majority shareholder in a corporation is not sufficient alone to establish a basis for disregarding the corporate entity. Id. Louisiana courts are very hesitant to hold a shareholder, officer or director personally liable for corporate obligations. Id. It should be kept in mind that in Louisiana the concept of the separation of the corporate entity from those who compose it is the general rule and is firmly established. Id. La. C.C. art. 24. Consequently, we find that the mere fact that there is a commonality of personnel and centralization of power by virtue of ownership of stock insufficient to warrant a piercing of the corporate veil. Moreover, the corporate structure and activities of Entergy are in compliance with the PUHCA, 18 C.F.R. § 45.1 et seq. The act allows for the interdependence and overlap of officers or directors in public utility companies as long as compliance with regulatory guidelines is met, or in some instances the overlap of officers must receive regulatory approval. To find that the commonality of personnel or centralization of certain aspects of control constitute a single business enterprise in the context of a public utility would undermine the PUHCA.

We also find that the court erred with respect to its finding that Entergy is a single business enterprise because of the subject advertisement. |flThe trial court heavily relied upon a newspaper advertisement which ran May 9, 1996, in the Homer, Louisiana, newspaper stating that LPL was now Entergy which had unified “five separate power companies into one cohesive whole.” The advertisement extolled various advantages to the citizens by having one “world class energy company” supply its electricity. After stating that Entergy was putting 12,000 employees and 80 years of experience to work for the customers, the ad concluded with “One company. One name. And one commitment to serve you like no other company can. Entergy.” The semantics of a commercial advertisement cannot be construed to alter an unambiguous agreement between Entergy and Haynesville.

Lastly, the court also erred in its determination that the contract was ambiguous and because LP & L changed its name to Entergy Louisiana and Entergy Services sent checks to Haynesville “as agent for” a number of Entergy subsidiaries. We find that there are several errors in the court’s reasoning with respect to this determination.

First, ELI makes remittances and performs similar services for each of the individual utilities that are subsidiaries of En-tergy Corporation in its role as a service company in the Entergy holding system. That fact does not make the contract ambiguous.

Moreover, the events did not occur until 1996, more than ten years after the MFN agreement. Thus, subsequent changes, not contemplated by the parties at the time of the agreement, cannot be considered to render the contract ambiguous. The testimony of Mr. Crocker established that the |inTown did not contemplate that the “Company” in the MFN agreement was any other entity other than LP & L.

In addition, no evidence was offered indicating that it was the intent of the parties that the application of the MFN agreement would be triggered by payment of a franchise fee higher than 2% by any Entergy subsidiary other than ELI. The Town argued that the agreement should be interpreted to find that ELI is a single business enterprise and that its corporate form should be disregarded. However, Louisiana law is well established that corporate separateness is to be recognized and respected. Piercing the corporate veil is considered a radical remedy only employed in exceptional circumstances. There has been no evidence or allegation that Entergy or any of its corporate subsidiaries were formed or structured to commit fraud or deceit on the Town of Haynesville.

There is also no grounds to pierce the corporate veil on the basis of the “alter ego” theory. An alter ego analysis involves the consideration of five factors:

(1) commingling of corporate and shareholder funds
(2) failure to follow statutory formalities for incorporating and transacting corporate affairs;
(3) undercapitalization
(4) failure to maintain separate bank accounts and bookkeeping records; and
(5) failure to hold regular shareholder and director meetings.

Amoco Prod. Co. v. Texaco, Inc., 2002-240 (La.App. 3d Cir.1/29/03), 838 So.2d 821, writ denied, 2003-1102, 2003-1104 (La.6/06/03), 845 So.2d 1096. The evidence in this case establishes that Entergy Corporation and its subsidiaries are not alter egos of each other. None of the five factors are satisfied by the evidence in the record. There is. simply no wrongdoing _[iior other extraordinary circumstances present in the relationship between Haynesville and LP & L that justifies disregarding the law of persons and the Louisiana corporations.

Lastly, the terms of the MFN agreement are not affected by the single business enterprise theory. Indeed, if it had been the parties’ intent to provide for an increase in the fee paid by LP & L to Haynesville in the event an affiliate were to pay a higher fee to one of its municipalities, this could have been stated expressly or, in any event, should have been proven by the Town by introduction of evidence regarding that intent. The use of the single business enterprise theory for the purpose of interpreting this provision of the agreement is improper.

Moreover, even under the single business enterprise theory, there is no allegation or evidence that the SBE misappropriated resources thereby making LP & L unable to meet its obligations under the contract. Consequently, we find that the court’s finding of a single business enterprise was improper, and we reverse any award of damages.

CONCLUSION

Based on the above, we reverse the trial court’s judgment finding that the contract was ambiguous and that Entergy is a single business enterprise. We also reverse the award of damages. Costs assessed equally between the parties.

REVERSED.

DREW, J., concurs with the result.

      . The illustrative list are considerations of whether a group of entities constitute a “single business enterprise”:
      1. corporations with identity or substantial identity of ownership, that is, ownership of sufficient stock to give actual working control; 2. common directors or officers; 3. unified administrative control of corporations whose business functions are similar or supplementary; 4. directors and officers of one corporation act independently in the interest of that corporation; 5. corporation financing another corporation; 6. inadequate capitalization ("thin incorporation”); 7. corporation causing the incorporation of another affiliated corporation; 8. corporation paying the salaries and other expenses or losses of another corporation; 9. receiving no business other than that given to it by its affiliated corporations; 10. corporation using the property of another corporation as its own; 11. noncompliance with corporate formalities; 12. common employees; 13. services rendered by the employees of one corporation on behalf of another corporation; 14. common offices; 15. centralized accounting; 16. undocumented transfers of funds between corporations; 17. unclear allocation of profits and losses between corporations; and 18. excessive fragmentation of a single enterprise into separate corporations. Green, supra at pp. 257-258.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Donald R. GRIFFIN, Appellant.
    No. 41,946-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 2, 2007.

      Annette Fuller Roach, Lake Charles, Louisiana Appellate Project, for Appellant.
    William Robert Coenen, Jr., District Attorney, Johnny R. Boothe, Penny Wise Douciere, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS, and MOORE, JJ.
   BROWN, Chief Judge.

| defendant, Donald Griffin, pled guilty to driving while intoxicated, third offense, a violation of La. R.S. 14:98(D), and, in accordance with an agreement, was sentenced to three years at hard labor, to be served concurrently with any prior sentence. Defendant filed a pro se motion to reconsider his sentence. The trial court denied that motion after a hearing at which defendant appeared unrepresented by counsel. Defendant has appealed. Finding no error, we affirm his conviction and sentence.

Facts and Procedural Background

On May 11, 2006, while driving on La. Hwy. 610, defendant was stopped by a Franklin Parish Sheriffs deputy for improper lane usage. Defendant’s blood alcohol level was .215%. Defendant, who had two recent convictions for DWI, was charged by the state on May 25, 2006, with DWI, third offense.

On June 27, 2006, defendant, represented by his appointed counsel, appeared before the trial court and pled guilty.

At the beginning of the Boykin colloquy, the court asked defendant:

And Mr. Griffin, is this what you want to do, plead guilty to the DWI third offense for a three-year hard labor sentence to run concurrently with the second offense sentence?

Defendant gave an affirmative response. After the court thoroughly explained to defendant his Boykin rights, the following exchange occurred:

Court: Do you understand that since you’ve entered into a plea agreement with regard to the length of the sentence that you will not be allowed to appeal from this sentence as being too harsh or too severe?
[^Defendant: Yes, sir.
Court: In other words, you can’t come back later and say, “Well, judge, you gave me too much time,” because I’m going to give you exactly what ya’ll have agreed to. Do you understand that?
Defendant: Yes, sir.

The court then spoke with defendant’s attorney, who stated that he had discussed the case with his client and was satisfied that defendant’s decision to accept the plea agreement was freely and voluntarily made with an understanding of its consequences. At that time, the court accepted the plea. Defendant waived the sentencing delays and asked to be sentenced that day.

After reviewing defendant’s age, education, work history, and recent medical history, the court imposed the agreed-to sentence, which was three years at hard labor. Although statutorily required, defendant’s sentence did not include any term without benefit of probation, parole or suspension of sentence, nor did it include a fine. The court then revoked defendant’s probation on his earlier second offense DWI conviction and ordered that the sentences for both offenses be served concurrently. The court warned defendant that if he got a fourth DWI conviction, the court would sentence him to 20 or 30 years imprisonment. Finally, the court informed defendant of the delays for appeal and seeking post-conviction relief.

Defendant’s motion for copies of his Boykin and sentencing transcripts was granted by the trial court. Defendant also filed a timely pro se motion to reconsider sentence in which he urged that the court failed to articulate its reasons for sentence and failed to follow La. C. Cr. P. art. 894.1. Defendant also complained that his sentence was excessive because |she was being treated for throat cancer. The trial court held a hearing on defendant’s motion to reconsider sentence. Defendant, who appeared at the hearing without counsel, argued that his sentence was too severe because the trial court did not consider a suspended sentence or a rehabilitation treatment program along with home incarceration. The trial court denied defendant’s motion to reconsider based upon the fact that defendant had agreed to the sentence as part of his plea bargain. On appeal, defendant, represented by counsel, urges two assignments of error.

Discussion

Assignment of Error No. 1: The sentence is illegally lenient. Defendant asks for the opportunity to withdraw his guilty plea or to accept the originally agreed to sentence with an amendment to correct that portion which is illegally lenient.

A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2(A)(2). Defendant received precisely the sentence that he agreed to as a part of his plea bargain. Notwithstanding this, he filed a motion to reconsider sentence and has now appealed from the denial of his motion. While his appeal is timely, defendant is not entitled to a review of his sentence for excessiveness. La. C. Cr. P. art. 881.2(A)(2); State v. Bush, 39,150 (La.App.2d Cir.07/08/04), 875 So.2d 134, writ denied, 04-2052 (La.01/07/05), 891 So.2d 668.

|4On appeal, defendant now assigns as error that the trial court did not impose a mandatory $2,000 fine. Therefore, defendant seeks to set aside his plea because the sentence is illegally lenient.

Defendant is not prejudiced in any way by the trial court’s failure to impose the mandatory fine. La. C. Cr. P. art. 882(A) provides that an illegally lenient sentence may be corrected at any time by an appellate court on review. This court, however, is not required to take such action. See State v. Haynes, 04-1893 (La.12/10/04), 889 So.2d 224; State v. Sims, 40,300 (La.App.2d Cir.10/26/05), 914 So.2d 594; State v. Price, 05-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112; State v. Paul, 05-612 (La.App. 5th Cir.02/14/06), 924 So.2d 345. Given defendant’s apparent indigent status and state of health, amendment of his sentence to include such a fine would be injudicious. In light of the above, we decline to correct defendant’s sentence.

Assignment of Error No. 2: The trial court erred in not affording defendant the right to counsel at the hearing on his timely filed motion to reconsider sentence.

Defendant appeared without counsel at the hearing on his pro se motion to reconsider. The fact that he appeared without assistance of counsel was not discussed at the hearing.

La. C. Cr. P. art. 881.1(D) provides that:

The trial court may deny a motion to reconsider sentence without a hearing, hut may not grant a motion to reconsider without a contradictory hearing. If the court denies the motion without a hearing, the party who would have made or filed the motion may |Bproffer the evidence it would have offered in support of the motion. (Emphasis added).

After this court’s writ denial, the trial court decided to hold a hearing on defendant’s motion to reconsider sentence. Such a hearing was not necessary given that there was no legitimate support for defendant’s motion to reconsider.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.

      . Defendant was facing a six-month term related to an imminent revocation of probation on a prior conviction for DWI, second offense.

      . The trial court denied the motion on procedural grounds. Defendant applied to this court for supervisory relief, which was denied, but the matter was remanded for the trial court to rule on the merits of defendant’s motion to reconsider so his conviction and sentence could become final.

      . The trial court also failed to order that 30 days of defendant's sentence was to be served without benefit of parole, probation, or suspension of sentence. This deficiency will be corrected automatically. See La. R.S. 15:301.1, which is self-operative.


text:
    James David WRIGHT and Robert E. Wright, Jr., Plaintiffs-Appellants v. Linda Wright Gore LARSON, et al., Defendants-Appellees.
    No. 42,101-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 2, 2007.

      Theus, Grisham, Davis & Leigh, L.L.P., by Paul D. Spillers, Jenny Thompson Garrett, for Appellants.
    Blanchard, Walker, O’Quin & Roberts, by John T. Cox, Jr., for Appellee, Linda Larson.
    Wiener, Weiss & Madison, by John M. Madison, Jr., for Appellees, Argent Financial, David McDonald, and National Independent Trust.
    Before BROWN, STEWART, and PEATROSS, JJ.
   BROWN, Chief Judge.

1 plaintiffs, James and Robert Wright, together with their sister, Linda Larson, were principal beneficiaries of a trust set up by their elderly parents. Named as defendants were Linda, who served as co-trustee, Argent Financial Group, Inc., the successor in interest to the original corporate co-trustee, and David Kyle McDonald, an officer/employee of the corporate co-trustee. McDonald, who was added more than three years after the institution of the action, filed an exception of prescription. The trial court granted this exception and dismissed plaintiffs’ claims against McDonald. While plaintiffs’ appeal was pending, McDonald filed an exception of no cause of action. For the reasons set forth below, we affirm the trial court’s judgment.

Facts and Procedural History

On April 29, 1983, Robert E. Wright, Sr., and his wife, Estelle C. Wright, established a trust, naming themselves as the income and principal beneficiaries and their three children, James, Robert Jr., and Linda, were also listed as principal beneficiaries. Named as co-trustees were Linda and The Trust Company of Louisiana. The Trust Company of Louisiana is a former trade name of Argent Financial Group, Inc. Argent assumed all liabilities of The Trust Company as its successor in interest.

| ¡.Estelle Wright died on August 28, 1988; at that time, the trust, by its terms, became irrevocable. According to plaintiffs, as of December 31, 1988, the trust balance exceeded $200,000. On May 14, 1993, Linda requested that The Trust Company distribute all remaining funds and assets (the trust balance at that time was approximately $5,000) to Robert Sr. A final accounting for the fiscal year ending July 31, 1993, was provided to Robert Sr. and Linda.

Robert Sr. died on January 6, 2002. On October 28, 2002, plaintiffs, James David Wright and Robert E. Wright, Jr., filed suit against defendants, Linda Wright Gore Larson, the Estate of Robert E. Wright, Sr., and Argent Financial Group, Inc., f/k/a The Trust Company of Louisiana, asserting claims for breach of fiduciary duty, misconduct, errors, omissions, and other intentional wrongdoing. A second supplemental and amending petition was filed on December 15, 2005, adding as defendant David Kyle McDonald.

Plaintiffs have alleged that, from January 1, 1989, through May 1993, their father, Robert Sr., and their sister, Linda, with the participation of the co-trustee, The Trust Company of Louisiana/Argent Financial Group, Inc., diverted assets from the trust and disposed of trust property and assets without the knowledge or consent of plaintiffs. This reversion of assets and depletion of trust property, contend plaintiffs, occurred in violation of the specific, explicit terms of the trust.

Until his death, plaintiffs contend, Robert Sr. and Linda conspired to intentionally and deliberately withhold information about the trust from them. As for The Trust Company/Argent Financial Group, Inc, plaintiffs 13take issue with the fact that they were not provided an accounting until after their father’s death on January 6, 2002.

In the amending petition, plaintiffs alleged that: (1) McDonald was a trust officer of the co-trustee; (2) McDonald was president of The Trust Company of Louisiana during the time that this company served as co-trustee of the Wright Trust; (3) McDonald currently serves as president of National Independent Trust Company and as an employee of Argent Financial Group, Inc., the holding company which owns National Independent, the successor of The Trust Company of Louisiana; (4) in all of these capacities, McDonald had discretionary authority over matters pertaining to the administration and management of the Wright Trust; (5) McDonald breached fiduciary duties owed to plaintiffs as principal beneficiaries of the Wright Trust; and (6) McDonald committed acts of negligence in the management and administration of the Wright Trust. On February 21, 2006, plaintiffs filed a third supplemental and amending petition, alleging that McDonald committed fraud by intentionally withholding from plaintiffs the annual and final accountings which he knew they were entitled to as principal beneficiaries.

On January 31, 2006, McDonald filed an exception of prescription. A hearing was held by the trial court on March 23, 2006. The trial court sustained the exception by oral ruling on April 20, 2006. A judgment of dismissal was signed on May 9, 2006. Thereafter, a hearing on a motion for new trial filed by plaintiffs on May 17, 2006, was held on May 30, 2006. Plaintiffs’ motion for new trial (on defendant McDonald’s exception of ^prescription) was denied and judgment dismissing their suit against McDonald was maintained. It is from this judgment that plaintiffs have appealed.

Discussion

Plaintiffs’ first assignment of error is that the trial court erred in finding that their action against McDonald for acts, omissions, and breaches of fiduciary duty had prescribed pursuant to La. R.S. 9:2234. In support of their argument, plaintiffs urge the applicability of the two-year period set forth in La. R.S. 9:2234(A), which requires that a beneficiary file suit against a trustee for acts, omissions, or breaches of fiduciary duty within two years of the date that the trustee renders, “by actual delivery or mail to the beneficiary,” an accounting for the period the alleged acts, omissions, or breaches occurred. In fact, because they have yet to receive an accounting, plaintiffs take the position that the limitation periods set forth in La. R.S. 9:2234 have not begun to run against their claim.

However, La. R.S. 9:2234(A) also provides, in addition to the two-year period which is triggered by actual delivery or mailing of an accounting to the beneficiary by the trustee, for a three-year peremptive period as follows:

[Ajctions [for acts, omissions, or breaches of duty] shall in all events, even as to actions within two years of disclosure, be filed within three years of the date that the trustee renders an accounting for the accounting period in which the alleged act, omission, or breach of duty occurred. (Emphasis added).

Subpart (C) of La. R.S. 9:2234 provides in part that:

The two-year and three-year periods of limitation provided for in this section are peremptive periods within the meaning of Civil Code particle 3458, and in accordance with Civil Code article 3461, may not be renounced, interrupted, or suspended.

The above statutory language and construction leaves no doubt but that the legislature intended to perempt all claims against trustees which were not brought within the applicable time period. Clearly, both the two-year and three-year periods of limitation are peremptive, not prescriptive, as recognized by the trial court.

In their original petition, plaintiffs alleged that from January 1, 1989, through May 1993, their father and sister, with the participation of the corporate co-trustee, diverted and disposed of trust assets without their knowledge or consent. They also averred that all remaining funds and assets of the trust were distributed to Robert Sr. on May 14, 1993. The final accounting for the fiscal year that ended on July 31, 1993, was rendered and delivered to Robert Sr. and Linda, but not delivered to plaintiffs.

In its revision of La. R.S. 9:2234, the legislature also included the following provision in subpart (C):

[A] beneficiary shall have one year from July 9, 1999, to bring an action for damages against a trustee arising out of an act, omission, or breach of duty for a transaction disclosed in any prior accounting.

This provision extended the time that plaintiffs had to file suit for acts, omissions, or breaches of fiduciary duty for transactions which occurred from 1989 to 1993 until one year from July 9, 1999— without this provision, plaintiffs would have had to file suit by July 31, 1996. Plaintiffs did not file their action against defendants Larson and Argent until October 28, 2002, some two years after July 9, 2000, which, according to La. R.S. 9:2234(C) is the latest date that their claim for acts, omissions, and breaches | fiof fiduciary duty which occurred between 1989 and 1993 could have been asserted, and against defendant McDonald until December 15, 2005, which is five and one-half years later than the time provided by statute.

While we agree with the trial court that this seems to be an inequitable result, we note that plaintiffs were not unaware of their status as beneficiaries to the trust and should have been more involved in protecting their interests. When they failed to receive the first couple of annual accountings, plaintiffs could have been in touch with the corporate co-trustee (assuming a lack of cooperation on the part of their sister and father) and, at that time determined that they needed to be more involved.

The second assignment of error made by plaintiffs is that the trial court erred in finding that their action against McDonald for negligence in administering the trust had prescribed.

This claim appears to fall within the scope of La. R.S. 9:2234(D), which provides that all actions brought against any trustee are governed by the provisions of La. R.S. 9:2234. Therefore, as it is a claim for damages by a beneficiary against a trustee, not having been brought within three years of the date of the final accounting for the complained-of period, it is untimely.

Should we apply the prescriptive period applicable to general tort claims, which is one year, the result would be the same. Plaintiffs took McDonald’s deposition on December 10, 2004; at that time, the facts giving rise to their negligence claim were disclosed, yet suit was not filed until 17Pecember 15, 2005, more than one year later. As such, their negligence claim has prescribed. See La. C.C. art. 3492.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs are assessed to plaintiffs-appellants, James and Robert Wright, Jr.

      . Mr. and Mrs. Wright named themselves as income and principal beneficiaries of the trust and provided that income and principal disbursements would be made so that "they may live in the manner in which they are accustomed” and "as may be required for their support, maintenance, medical expenses, and welfare.”

      . Motions for summary judgment were filed by all defendants and were taken up at the hearing on McDonald’s exception of prescription. The trial court ultimately granted the summary judgment motions, but thereafter reversed itself and granted a new trial motion filed by plaintiffs. That portion of plaintiffs’ motion seeking a new trial on McDonald’s exception of prescription was denied and it is actually this judgment from which plaintiffs have appealed.

      . Based upon our resolution of this issue, we find merit to the exception of no cause of action filed by McDonald and hereby grant the exception. Statutes of peremption do not merely bar the remedy, they destroy the cause of action itself. Azar-O’Bannon v. Azar, 00-0101 (La.App. 4th Cir.09/27/00), 770 So.2d 458, writ denied, 00-3004 (La.01/12/01) 781 So.2d 557; Estate of Williams v. Louisiana Office of Risk Management, 93-795 (La.App. 3d Cir.03/02/94), 634 So.2d 1260, writ denied, 94-0793 (La.05/06/94), 637 So.2d 1054. The result is that, upon expiration of the prescribed period, a cause of action or substantive right no longer exists to be enforced. Bunge Corp. v. GATX Corp., 557 So.2d 1376 (La.09/20/06), 940 So.2d 105.


author: DICKINSON, Justice, CARLSON, Justice,

text:
    OKTIBBEHA COUNTY HOSPITAL v. MISSISSIPPI STATE DEPARTMENT OF HEALTH, Mississippi State University and Premier Radiology, P.A.
    No. 2006-SA-00358-SCT.
    Supreme Court of Mississippi.
    May 17, 2007.
    Crane D. Kipp, George Quinn Evans, Jackson, attorneys for appellant.
    Andy Lowry, Allison Carter Simpson, Thomas L. Kirkland, Ridgeland, Donald E. Eicher, Flowood, attorneys for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. The Oktibbeha County Hospital appeals the entry of a final judgment affirming the grant of a certificate of need (“CON”) for a magnetic resonance imaging unit to Mississippi State University and Premier Radiology, P.A. This Court is asked to determine whether Miss.Code Ann. § 41-7-191(16)(Rev.2005) is a legislative mandate, and if so, whether such interpretation complies with certain constitutional provisions.

BACKGROUND FACTS AND PROCEEDINGS

¶2. On June 1, 2005, the Mississippi State Department of Health received an application for a CON from Mississippi State University and Premier Radiology, P.A., for the acquisition and offering of magnetic resonance imaging (MRI) services pursuant to House Bill 1345, now codified as Miss.Code Ann. § 41-7-191(16)(Rev.2005). The application was suspended on August 19 as the State Health Officer submitted a request for an official opinion of the Attorney General’s office regarding clarification of the scope of that statute. The Attorney General responded on September 16, 2005, reasoning that § 41-7-191(16) was a mandate to issue the CON to Mississippi State University and did not require compliance with ordinary CON application procedures, including hearings. Brian W. Amy, M.D., M.H.A., M.P.H., Op. Att’y Gen. 2005-0452 (Sept. 16, 2005).

¶ 3. The Department gave public notice on September 26 of its intent to act on the application at its October 6, 2005, meeting. On October 4, 2005, Oktibbeha County Hospital (“OCH”) asked the Department for a hearing during the course of review of the application. The Department denied the request as not well taken based on the Attorney General’s opinion regarding the scope and mandate of § 41-7-191(16). The State Health Officer approved the CON application and issued the certificate to Mississippi State University and Premier Radiology, P.A., on October 6, 2005. OCH timely filed a notice of appeal to the Hinds County Chancery Court pursuant to Miss.Code Ann. § 41-7-201(2)(Rev.2005). On January 27, 2006, that court issued its opinion affirming the final order of the Mississippi State Department of Health. Aggrieved by this ruling, OCH appeals.

¶ 4. Although OCH raises numerous issues on appeal, we need address only the following three: (1) whether Miss.Code Ann. § 41-7-191(16) is a legislative mandate to the Mississippi State Department of Health to issue a CON for Mississippi State University’s MRI project; (2) whether Miss.Code Ann. § 41-7-191(16) violates the Mississippi Constitution or the Constitution of the United States; and (3) whether the Department of Health violated its own regulations in issuing the CON without providing for a hearing during the course of review.

DISCUSSION

I.

¶ 5. Judicial review of a final order of the State Department of Health is controlled by Miss.Code Ann. § 41-7-201(2)(f) (Rev.2005), which provides that a reviewing court may vacate the agency’s order if it finds that the final order is based on an error of law, “is not supported by substantial evidence, [or] is contrary to the manifest weight of the evidence.” Singing River Hosp. Sys. v. Biloxi Reg’l Med. Ctr., 928 So.2d 810, 811-12 (Miss.2006) (quoting St. Dominic-Jackson Mem’l Hosp. v. Miss. State Dep’t of Health, 728 So.2d 81, 83 (Miss.1998)); Miss.Code Ann. § 41-7-201(2)(f)(Rev.2005). Generally, we afford the Department of Health’s decisions great deference on review, however, because the issues here pose questions of law, we conduct a de novo review. Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000).

¶ 6. The Mississippi Legislature has defined “certificate of need” as:

a written order of the State Department of Health setting forth the affirmative finding that a proposal in prescribed application form, sufficiently satisfies the plans, standards and criteria prescribed for such service and other project by Section 41-7-171, et. seq., and by rules and regulations promulgated thereunder by the State Department of Health.

Miss.Code Ann. § 41-7-173(b)(Rev.2005).

¶ 7. At issue here is whether one such regulation promulgated by the State Department of Health requires a CON to issue or simply waives portions of the application process. In order to resolve these issues, we must look first to the text of the statute. The pertinent parts of the statute are as follows:

The State Department of Health shall issue any certificates of need necessary for Mississippi State University and a public or private health care provider to jointly acquire and operate a linear accelerator and a magnetic resonance imaging unit.
For purposes of this subsection, the projection of need as reported in the current State Health Plan are waived.

Miss.Code Ann. § 41-7-191(16)(Rev.2005) (emphasis added).

¶ 8. OCH argues that the language in the statute is ambiguous and that the first sentence is inconsistent with the last sentence quoted above. OCH suggests using the canons of statutory construction to interpret this statute as allowing only the waiver of certain provisions by Mississippi State University and the private health care provider of their choice. First, we must determine if the statute is ambiguous.

¶ 9. Throughout Miss.Code Ann. § 41-7-191, the Legislature provided for an increase in supplemental medical services through discretionary (“may”) and mandatory (“shall”) clauses. Discretionary sections of Miss.Code Ann. § 41-7-193(1) are to be applied by the State Department of Health; however, for mandatory provisions, like Miss.Code Ann. § 41-7-191(16), the Legislature has waived the necessity of satisfying “the specifications and criteria established by the State Department of Health” by directing the issuance of a CON.

¶ 10. By mandating the issuance of “any” CON in Miss.Code Ann. § 41-7-191(16), the Legislature preemptively ordered its issuance without the requirement that the State Department of Health “set[ ] forth ... affirmative finding[s]” that “the plans, standards, and criteria prescribed” and “rules and regulations promulgated” by the State Department of Health were sufficiently satisfied. There is no language in this or any other statute which identifies conditions under which the State Department of Health may refuse to issue the certificates of need mentioned in § 41-7-191(16).

¶ 11. We find no ambiguity in the language of Miss.Code Ann. § 41-7-191(16). Without listing a single exception or qualification, the statute clearly mandates the State Department of Health to issue the CON. Although the statute singles out “projection of need” for specific waiver, we do not read into the statute the legislative intent to waive nothing else, particularly in light of the statutory language (“The State Department of Health shall issue any certificates of need necessary ....”) which clearly mandates issuance of the CON. Thus, there is no reason to engage the principles of statutory construction.

II.

¶ 12. OCH next contends that if the statute is determined to be a legislative mandate, it violates the Mississippi Constitution and the Constitution of the United States. Specifically, OCH argues that Miss.Code Ann. § 41-7-191(16) is a clear infringement of Article 4, Section 87; Article 3, Section 14 of the Mississippi Constitution of 1890; and the Fourteenth Amendment due process clause of the United States Constitution.

¶ 13. The Mississippi State Department of Health counters that OCH is procedurally barred from raising these constitutional issues pursuant to Rule 24(d) of the Mississippi Rules of Civil Procedure. Under that section, where an action seeks to “restrain or enjoin enforcement, operation, or execution of any statute of the State of Mississippi” by challenging the constitutionality, the party asserting the unconstitutionality “shall notify the Attorney General of the State of Mississippi within such time as to afford him [or her] an opportunity to intervene and argue the question of constitutionality.” The Department of Health notes that the Attorney General was not notified and, therefore, this defense is procedurally barred. In response, OCH contends that because a special assistant attorney general represented the State Department of Health, the Attorney General thereby had notice and OCH has complied with Rule 24(d).

¶ 14. The notice requirement of Rule 24(d) is strenuous. We have procedurally barred previous challenges to the constitutionality of a statute because of a party’s failure to notify the Attorney General of the constitutional attack. See Powers v. Tiebauer, 939 So.2d 749, 754-55 (Miss.2005) (sending Attorney General the appellate brief per Miss. R.App. P. 44 was not sufficient notice under Miss. R. Civ. P. 24(d)); Cockrell v. Pearl River Valley Water Supply Dist., 865 So.2d 357, 360 (Miss.2004) (holding that constitutional claims are procedurally barred when notice is not provided to the Attorney General); Pickens v. Donaldson, 748 So.2d 684, 691-92 (Miss.1999) (same); Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 202-03 (Miss.1999) (same).

¶ 15. Similarly, Rule 44(a) of the Mississippi Rules of Appellate Procedure requires service of any appellate brief challenging the validity of a statute “on the Attorney General, the city attorney, or other chief legal officer of the governmental body involved.” Miss. R.App. P. 44(a). That Rule further states:

Except by special order of the court to which the case is assigned, in the absence of such notice neither the Supreme Court nor the Court of Appeals will decide the question until the notice and right to respond contemplated by this rule has been given to the appropriate governmental body.

Miss. R.App. P. 44(c).

¶ 16. Here, OCH did not comply with either Rule. Supposed “notice” to the special assistant attorney general is not sufficient under Mississippi Rule of Civil Procedure 24(d) or Mississippi Rule of Appellate Procedure 44. To comply with these rules, a party challenging the constitutionality of a legislative enactment must serve of copy of his or her brief on the Attorney General. Miss. R. Civ. P. 24(d); Miss. R.App. P. 44(a). Thus, the Oktibbeha County Hospital is precluded from raising a constitutional challenge to Miss.Code Ann. § 41-7-191(16) without prior notice to the Attorney General.

III.

¶ 17. OCH next contends the State Department of Health violated its own regulations in issuing the CON without providing for a hearing during the course of review. We reiterate that upon passing Miss.Code Ann. § 41-7-191(16), the Legislature effectively waived all CON requirements as they relate to any endeavor entered into between Mississippi State and any public or private health care provider in the acquisition of a “linear accelerator and a magnetic resonance imaging unit.” See Miss.Code Ann. § 41-7-191(16)(Rev.2005). Accordingly, this issue is without merit because the Legislature had the ability to and did waive such requirements.

CONCLUSION

¶ 18. We find that, under the facts of this case, Section 41-7-191(16) mandated the State Department of Health to grant the CON to Mississippi State University, and that all other issues raised by OCH are without merit. Therefore, we affirm the Chancery Court of Hinds County.

¶ 19. AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., AND RANDOLPH, J., CONCUR. CARLSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. EASLEY AND GRAVES, JJ., NOT PARTICIPATING.

CARLSON, Justice,

Dissenting:

¶ 20. Because the majority finds that Miss.Code Ann. § 41-7-191(16) (Rev.2005) is a legislative mandate requiring the Mississippi State Department of Health to issue a CON to Mississippi State University and Premier Radiology, P.A., I respectfully dissent.

¶ 21. In 2004, Miss.Code Ann. § 41-7-191 was amended by the Mississippi Legislature to add section (16), which states in toto:

The State Department of Health shall issue any certificates of need necessary for Mississippi State University and a public or private health care provider to jointly acquire and operate a linear accelerator and a magnetic resonance imaging unit. Those certificates of need shall cover all capital expenditures related to the project between Mississippi State University and the health care provider, including, but not limited to, the acquisition of the linear accelerator, the magnetic resonance imaging unit and other radiological modalities; the offering of linear accelerator and magnetic resonance imaging services; and the cost of construction of facilities in which to locate these services. The linear accelerator and the magnetic resonance imaging unit shall be (a) located in the City of Starkville, Oktibbeha County, Mississippi; (b) operated jointly by Mississippi State University and the public or private health care provider selected by Mississippi State University through a request for proposals (RFP) process in which Mississippi State University selects, and the Board of Trustees of State Institutions of Higher Learning approves, the health care provider that makes the best overall proposal; (c) available to Mississippi State University for research purposes two-thirds (2/3) of the time that the linear accelerator and magnetic resonance imaging unit are operational; and (d) available to the public or private health care provider selected by Mississippi State University and approved by the Board of Trustees of State Institutions of Higher Learning one-third (1/3) of the time for clinical, diagnostic and treatment purposes. For purposes pf this subsection, the provisions of Section 41-7-193(1) requiring substantial compliance with the projection of need as reported in the current State Health Plan are waived.

Miss.Code Ann. § 41-7-191 (Rev.2005).

¶ 22. Based on this statute, Mississippi State Department of Health issued a CON to Mississippi State University and Premier without following normal CON review procedures. I respectfully submit this was error. The majority fails to strictly construe the entire statute. The last sentence of Miss.Code Ann. § 41-7-191(16) is an express waiver of compliance with the projection of need requirement, and nothing more.

¶23. Miss.Code Ann. § 41-7-193(1) (Rev.2005) states in part:

A certificate of need shall not be granted or issued to any person for any proposal, cause or reason, unless the proposal has been reviewed for consistency with the specifications and the criteria established by the State Department of Health and substantially complies with the projection of need as reported in the state health plan in effect at the time the application for the proposal was submitted.

(Emphasis added). It is well-established in Mississippi that a statute is interpreted according to its plain meaning if no ambiguity exists. Harrison County Sch. Dist. v. Long Beach Sch. Dist., 700 So.2d 286, 288-89 (Miss.1997). Therefore, this Court should first consider whether the statute is ambiguous. Miss. Dep’t of Transp. v. All-red, 928 So.2d 152, 154 (Miss.2006). If an ambiguity does exist, this Court will then turn to the principles of statutory construction. Id. “Whether the statute is ambiguous or not, the ultimate goal of this Court is to discern and give effect to the legislative intent.” Id. (quoting from City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992)). The best evidence of the legislative intent comes directly from the text of the statute. Id. at 155 (quoting Pegram v. Bailey, 708 So.2d 1307, 1314 (Miss.1997)).

¶ 24. However, of utmost importance is the common maxim that statutes in pari materia should be construed together. Id. “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.” Id. Considering Section 41-7-193(1) and its applicability to Section 41-7-191(16), it is abundantly clear that the legislative intent was to waive only the projection of need requirement. The CON application was still required to be “reviewed for consistency with the specifications and the criteria established by the State Department of Health.” Miss. Code Ann. § 41-7-193(1) (Rev.2005). The Legislature had the opportunity to insert language within Section 41-7-191(16) which explicitly waived all of the requirements of Section 41-7-193; however, the Legislature chose not to do so. Therefore, a plain reading of the statute reveals that the clear legislative intent was to waive only the projection of need requirement.

¶ 25. Furthermore, the word “shall” in subsection (16) is instructive to the Mississippi State Department of Health and this Court. The “shall” language in Section 41-7-191(16) simply instructs the Mississippi State Department of Health that if the applicant meets all CON review criteria, then the Mississippi State Department of Health has no discretion and must issue the CON. However, until such criteria are met, no CON can be issued.

¶26. Thus, the Mississippi State Department of Health’s final order and the chancery court’s final judgment were arbitrary and capricious and not supported by substantial evidence. Therefore, I find that the chancery court’s final judgment should be vacated and this matter remanded to Mississippi State Department of Health, which should then perform its necessary functions and abide by the CON review criteria, which would include permitting OCH a hearing on the CON application. The Mississippi State Department of Health must follow the first prong of Miss.Code Ann. § 41-7-193, which states: “A certificate of need shall not be granted or issued to any person for any proposal, cause or reason, unless the proposal has been reviewed for consistency with the specifications and the criteria established by the State Department of Health.”

¶ 27. Thus, for the reasons stated, I would reverse the final judgment of the Chancery Court for the First Judicial District of Hinds County, and remand this matter to the Mississippi State Department of Health for further proceedings consistent with this opinion, including, but not limited to, reviewing Mississippi State University’s CON application in accordance with the statutory and regulatory procedures of Mississippi State Department of Health’s CON program, for consistency with all applicable, duly-adopted criteria and standards and for conformity with the 2005 State Health Plan. Because the majority finds otherwise, I respectfully dissent.

      . Subsection (2) outlines numerous such discretionary directives. For example, see Miss. Code Ann. § 41 — 7—191 (2)(b) ("[t]he department may issue certificates of need in Harrison County to provide skilled nursing home care for Alzheimer’s disease patients and other patients, not to exceed one hundred fifty (150) beds.”) (emphasis added); Miss.Code Ann. § 41-7-191(2)(c) ("[t]he department may issue a certificate of need for the addition to or expansion of any skilled nursing facility that is part of an existing continuing care retirement community located in Madison County ... ”) (emphasis added); and Miss. Code Ann. § 41-7-191 (2)(f) (”[t]he State Department of Health may issue a certificate of need for conversion of a county hospital facility in Itawamba County to a nursing facility ...”) (emphasis added).

      . Miss.Code Ann. § 41-7-193(l)(Rev.2005).


author: DICKINSON, Justice, DIAZ, Presiding Justice,

text:
    MEDICAL ASSURANCE COMPANY OF MISSISSIPPI v. Ronald V. MYERS, Sr., M.D.
    No. 2005-IA-01001-SCT.
    Supreme Court of Mississippi.
    May 17, 2007.

      Jeffrey Ryan Baker, Walter T. Johnson, Jackson, C.R. Montgomery, Canton, Robert M. Jones, J. Collins Wohner, Jackson, attorneys for appellant.
    H.L. Merideth, Jr., Greenville, David L. Merideth, Ridgeland, Edward Blackmon, Jr., Canton, attorneys for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. The central issue on appeal in this action between a doctor and his former medical malpractice insurer is venue. The Chancery Court of Holmes County originally granted the insurer’s motion to transfer the case to the Circuit Court of Madison County. Five months later, the chancellor granted the doctor’s motion to reconsider and transferred the case to the Circuit Court of Holmes County instead. The issue before this Court is whether— after transferring the case to Madison County — the chancery court abused its discretion by granting the doctor’s motion to reconsider and transferring the case to the Circuit Court of Holmes County.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Medical Assurance Company of Mississippi (“MACM”) insured Dr. Ronald V. Myers from 1998 through 2004, but the company elected not to renew his coverage when his policy expired on January 1, 2005, under its own terms. One reason for MACM’s decision was Dr. Myers’s refusal to allow its Risk Management Department to conduct a full review of his practices in Tchula (Holmes County), Belzoni (Hum-phreys County), Greenville (Washington County), and Indianola (Sunflower County).

¶ 3. Believing MACM owed him a statutory duty to renew his policy, Dr. Myers sued the company for damages and petitioned for an injunction to force it to insure him. On December 8, 2004, Dr. Myers filed his complaint in the Chancery Court of Holmes County. One week later, MACM filed a motion to dismiss for lack of subject matter jurisdiction and, alternatively, moved the court to transfer the case to the Circuit Court of Madison County.

¶ 4. Chancellor Janace H. Goree heard arguments on the issues of jurisdiction and venue on December 16, 2004. That same day, the chancellor ruled from the bench that Dr. Myers’s action was essentially a contract claim, so the Chancery Court of Holmes County did not have subject matter jurisdiction. The chancellor concluded by stating “the Court is going to hereby transfer this case to the Circuit Court of Madison County.” Thereafter, the parties agreed to prepare an order consistent with this ruling. The order, filed January 27, 2005, incorporated the bench ruling in toto.

¶ 5. On December 22, 2004, Dr. Myers filed with the chancery court a Motion to Reopen and Reconsider. The motion asked the court to reopen the case for the admission of additional evidence and rear-gument and to reconsider the bench ruling transferring the case to the Circuit Court of Madison County. On January 6, 2005, this Court decided Snyder v. Logan, 905 So.2d 531 (Miss.2005), a case dealing with permissible venues for an action between an insured and her insurer under the former venue statute. Dr. Myers thereafter argued in his February 7, 2005, brief supporting his motion that Snyder represented a change in controlling venue law and justified the court’s reconsideration of the case.

¶ 6. On April 12, 2005, the chancellor held a hearing on Dr. Myers’s motion to reconsider. After taking the matter under advisement, the chancellor granted Dr. Myers’s motion to reconsider the issue of venue. The chancellor found that credible evidence satisfactorily established a factual basis to support Dr. Myers’s preference of venue in Holmes County. The order concluded, “IT IS THEREFORE ORDERED AND ADJUDGED that this case shall be transferred to the Circuit Court of Holmes County, Mississippi.”

¶ 7. On May 23, 2005, MACM filed its Petition for Permission for Interlocutory Appeal, which this Court granted. MACM argues that the chancery court had no authority to entertain any motions, including a motion to reconsider, after ruling from the bench and entering an order transferring the case to the Circuit Court of Madison County. MACM also argues that venue is proper in Madison County. Because we conclude that the proper county of venue in this case is Madison County, we need not address the question of whether the chancellor had authority to consider the motion for reconsideration.

DISCUSSION

¶ 8. The question before us is whether, after it transferred this case to Madison County, the chancery court abused its discretion by granting Dr. Myers’s motion to reconsider, and then transferring the ease to the Circuit Court of Holmes County.

Relief under Mississippi Rule of Civil Procedure 60(b)

¶ 9. MACM argues the chancery court erred in granting Dr. Myers’s motion to reconsider because he failed to satisfy the requirements of Mississippi Rule of Civil Procedure 60(b) for relief from an order. Dr. Myers asserts the chancery court properly entertained his motion because the court failed to consider the venue issue when it transferred the case to the Circuit Court of Madison County based on its lack of subject matter jurisdiction, and because the chancery court’s ruling was not a “final judgment, order or proceeding.”

¶ 10. Rule 60(b) governs relief from a judgment or order based on mistakes, inadvertence, newly discovered evidence, fraud, and other specified circumstances. It states, in part:

On motion and upon such terms as are just, the court may relieve a party or his legal representation from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken.

Miss. R. Civ. P. 60(b).

¶ 11. A trial court’s grant of relief under Miss. R. Civ. P. 60(b) is reviewed for abuse of discretion. R.N. Turnbow Oil Invs. v. McIntosh, 873 So.2d 960, 963 (Miss.2004). In his December 20, 2004, motion to reconsider, Dr. Myers simply asked the court to reopen the case for the admission of additional evidence and rear-gument and to reconsider its bench ruling transferring the case to the Circuit Court of Madison County. In his brief filed two months later, Dr. Myers argued that a case handed down by this Court on January 6, 2005, Snyder v. Logan, 905 So.2d 531 (Miss.2005), constituted an intervening change in controlling law. This basis for reconsideration does not fit within the first five enumerated reasons for relief under 60(b). As such, this Court must determine whether the trial court abused its discretion by granting relief pursuant to the catchall category of 60(b)(6), “any other reason justifying relief from the judgment.” Significantly, “[rjelief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances.” Briney v. U.S. Fid. & Guar. Co., 714 So.2d 962, 966 (Miss.1998).

¶ 12. Although never explicitly stated, the chancery court apparently granted Dr. Myers’s motion to reconsider because it did not specifically address and analyze the issue of venue in its original order transferring the case to the Circuit Court of Madison County. In contrast, the court’s May 10, 2005, order did include findings of fact and conclusions of law explaining its decision to transfer the case to Dr. Myers’s original venue choice— Holmes County. However, unless extraordinary and compelling circumstances justified the transfer from the Circuit Court of Madison County to the Circuit Court of Holmes County, the first order transferring the case to the Circuit Court of Madison County must be enforced.

Venue: The Circuit Court of Holmes County

¶ 13. Both parties agree the circuit court, rather than the chancery court, has jurisdiction in this ease. The dispute concerns whether the Circuit Court of Holmes County is a proper venue for Dr. Myers’s action. While Dr. Myers acknowledges that Madison County would also be a permissible venue, he claims that his choice of venue — Holmes County — should be respected because “the plaintiff is entitled to choose between any of the permissible venue options where credible evidence or factual basis supports the venue selected.” Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 387 (Miss.2001). MACM, on the other hand, contends that Madison County is the only proper venue given the facts of this case.

¶ 14. This Court has held that “[a]n application for change of venue is addressed to the discretion of the trial judge, and [her] ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances.” Guice v. Miss. Life Ins. Co., 836 So.2d 756, 758 (Miss.2003). Pursuant to Miss.Code Ann. Section 11-11-3 (Rev. 2004), venue is appropriate in the following counties:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

The defendant MACM has its principal place of business in Madison County, so a substantial alleged act, omission, or injury-causing event must have occurred in Holmes County to make it a proper venue for this action.

15. Significantly, the Legislature amended Section 11-11-3, effective September 1, 2004, to set venue where substantial acts or events causing the injury occurred, not where the cause of action accrued, as was permissible under the former statute. Since Dr. Myers filed his action on December 8, 2004, the current statute, quoted above, controls the disposition of this case.

¶ 16. Given this foundation, we must determine whether the chancery court abused its discretion in finding that credible evidence supported Dr. Myers’s position that a substantial act, omission, or injury-causing event (or substantial component thereof) occurred in Holmes County. If no basis exists for such a finding, then the chancellor’s decision granting Dr. Myers’s Motion to Reconsider must be reversed, and the original judgment transferring the case to the Circuit Court of Madison County must be reinstated.

1. Whether Snyder v. Logan changed controlling venue law

¶ 17. Contrary to Dr. Myers’s claims, Snyder did not represent a change in controlling venue law. In that case, the plaintiff, Snyder, purchased auto insurance from the defendants in December 2000, but the policy was cancelled in December 2001 for failure to pay the premiums. 905 So.2d at 532. Snyder paid the requested amount and was informed that she would be covered from January 7, 2002, through February 7, 2002. Id. On January 8, 2002, Snyder was involved in a single-car accident. When the defendants denied her claim, she filed suit in Jefferson County Circuit Court for misrepresentation, negligence, breach of contract, and bad faith. Id.

¶ 18. The trial court found venue to be appropriate where Snyder purchased her auto insurance (Adams County), where one defendant had a registered agent for process (Rankin County), and where the plaintiff conducted business with another defendant (Warren County), but not in Jefferson County. Id. Interpreting the former venue statute, and relying on Stubbs v. Mississippi Farm Bureau Casualty Insurance Co., 825 So.2d 8, 13 (Miss.2002), the Court found that the plaintiffs action against her insurer could be brought in Jefferson County because the car accident occurred there. Snyder, 905 So.2d at 534.

¶ 19. The decision did not break any new ground, but merely relied on prior pronouncements of this Court regarding the former venue statute. Its position that an action could be properly filed in multiple venues, including where a substantial alleged act or injury-causing event occurred, was anything but novel. The rationale of the Court advanced in Snyder was the same reasoning propounded by the Court in cases decided before the chancery court ruled to transfer Dr. Myers’s case.

2. Whether the chancellor’s findings support the venue change

¶ 20. In its Order Granting Reconsideration of Venue, the chancery court made the following findings of fact justifying transfer of the case to the Circuit Court of Holmes County:

(1) Myers completed his application to [MACM] for the malpractice insurance in Holmes, County, Mississippi.
(2) MACM issued the policy from Madison County to Myers in Holmes County, Mississippi.
(3) The second quarter of premium was paid by Myers to MACM from Holmes County and mailed to MACM in Madison County.
(4) There were discussions between Myers and MACM in 2004, by mail and probably by telephone, from and between Holmes County and Madison County about insurance coverage on a clinic in Tupleo [sic] that was ultimately excluded from coverage by MACM.
(5) There were multiple written communications to and from Myers in Holmes County and to and from MACM in Madison County pertaining to a review by MACM Risk Management Committee at various Myers’ clinics, including the clinic in Holmes County, Mississippi.
(6) The letter advising Myers that his malpractice insurance had been can-celled [] was sent by U.S. Mail in Tchula, Holmes County, Mississippi, and received by him in Tchula, Holmes County, Mississippi.[]
(7) One of the clinics operated by Myers and insured by MACM is located in Tchula, Holmes County, Mississippi.
(8) Myers selected Holmes County, Mississippi to file his lawsuit.

¶21. As stated above, the venue statute permits a case to be filed where a substantial alleged act, omission, or injury-causing event occurred. Therefore, even if an act or omission did not cause the injury, it can nevertheless establish venue if it is both substantial and alleged by the plaintiff. Dr. Myers’s complaint does not allege that his decision not to give MACM’s risk management team full access to his practice, including his practice in Holmes County, contributed to his claim. Thus, that fact — even if true — does not meet the “alleged” portion of the test.

¶ 22. Next, we note that the basis for Dr. Myers’s action was MACM’s decision not to renew his coverage once it expired on January 1, 2005, under its own terms. With respect to establishing Dr. Myers’s cause of action and claims of wrongful conduct, we find little or no relevance to the particular place he completed his application or mailed his premium payments. Dr. Myers is not claiming that MACM rejected his application or decided not to renew his policy for failure to pay premiums. Completing an application in, and making payments from, Holmes County cannot be considered substantial acts or injury-causing events in this case.

¶ 23. Additionally, the chancery court’s finding of communications “from and between Holmes County and Madison County” and “to and from Myers in Holmes County and to and from MACM in Madison County” is an insufficient basis for establishing venue. MACM never communicated to Dr. Myers from Holmes County, and all of MACM’s deliberations, meetings, correspondence, and communication with Dr. Myers occurred in or were transmitted from its offices in Madison County. MACM never met with Dr. Myers in Holmes County, but the parties did meet in Madison County. In other words, Dr. Myers is suing MACM based on the company’s own acts or omissions, all of which occurred in Madison County.

If 24. The location of the mailbox where Dr. Myers received his policy, non-renewal notice, or other communications from MACM is likewise immaterial. As MACM properly notes, “Dr. Myers’s receipt of information in Holmes County is a passive function of his presence there and is not a substantial event causing the damages he claims.” Along those same lines, Dr. Myers is not claiming that his own actions or communications contributed to his injuries, so where he performed those actions or from where he made those communications does not impact this Court’s venue analysis. Since it is MACM’s decision not to renew the insurance policy that is the alleged cause of Dr. Myers’s injuries, every substantial act, omission, or injury-causing event occurred in Madison County.

¶25. Finally, Dr. Myers argues that because he operated a clinic in Holmes County, a substantial injury-causing event occurred or accrued in Holmes County. However, under the amended statute, venue is no longer set by where a cause of action accrued. Even though Dr. Myers claims he was damaged when he experienced being uninsured in Holmes County (and in Humphreys, Washington, and Sunflower counties), this could be the result of substantial acts, omissions, or injury-causing events which occurred in Madison County alone. Following Dr. Myers’s logic, a plaintiff injured in an automobile accident in Madison County could establish venue in every county in which the plaintiff traveled simply by showing that, in each county, his or her injuries worsened.

¶ 26. The venue statute does not allow the “piling” of acts or events to establish venue. It specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there. In American Home Products Corp. v. Sumlin, 942 So.2d 766 (Miss.2006), the plaintiff filed suit against a pharmaceutical company for injuries sustained from taking Redux. The plaintiff obtained the prescription, filled it, and ingested the pills in Wayne County. Id. at 771. However, she filed suit in Smith County because the echocardiogram revealing her injuries was performed there. Id. Whether the test was properly performed was a major point of contention between the parties. Id. at 769. Nevertheless, this Court held that venue was only proper in Wayne County, saying “the performance and interpretation of an echocardiogram, alone, is not sufficient so as to constitute a ‘substantial component’ of this claim. Likewise, any emotional distress or psychological pain resulting from the findings of an echocardiogram does not constitute a substantial component of the claim.” Id. at 771 (internal citations omitted). Thus, the performance of an echocardiogram or the place where the plaintiff experienced her injuries was not “substantial” enough to establish venue in a particular county. The same is true of the receipt of correspondence, the location of a single clinic in a multi-clinic operation, or the place where Dr. Myers “experienced” being uninsured.

¶27. We conclude the chancery court abused its discretion in finding credible evidence supported transfer of the case to the Circuit Court of Holmes County. Madison County was the county of proper venue under Section 11-11-3, and the chancellor’s original decision to transfer the case there was correct. Therefore, the chancery court improperly granted Dr. Myers’s motion to reconsider its original order transferring the case to the Circuit Court of Madison County, as there were no extraordinary circumstances compelling relief from the original order.

CONCLUSION

¶ 28. For the reasons discussed herein, we reverse the chancery court’s Order Granting Reconsideration of Venue, reinstate the chancery court’s original order transferring the case to the Circuit Court of Madison County, and remand the case for further proceedings consistent with its opinion.

¶ 29. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. GRAVES, J., NOT PARTICIPATING.

DIAZ, Presiding Justice,

Dissenting.

¶ 30. Because the majority today declines to address the critical issue at hand in this case, I must respectfully dissent. The threshold issue that must be decided before any other is whether the chancery court retained the jurisdiction to reconsider the motion to transfer venue after previously ordering the transfer. Instead of deciding this point, the majority leaps ahead of itself and concludes that venue is proper. In my view, this issue must addressed first, and we provide no guidance to the Bench and Bar by ignoring it.

¶ 31. There is only one practical method for determining at what point a transferring court loses jurisdiction over a case after granting a motion to change venue. Simply, the full transfer of a case should not be effected until after a motion for reconsideration has been granted or denied by a trial court (assuming, of course, that one is filed). This bright-line method avoids the needless complications that have arisen in other jurisdictions and preserves uniformity with other motions. Just as we will not find error with a trial court regarding issues never presented to it for consideration, we should not find error when a trial court has never had the opportunity to correct itself. See Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985). Other methods that involve immediate transfers from court to court would squander judicial resources and slow the passage of justice. It goes without saying that the trial court which ruled on the original motion is in the best position to adjudicate if a motion for reconsideration is worthy of deliberation or simply a repeat of the arguments the court has already considered. The original court can best separate the wheat from the chaff.

¶ 32. The majority also misplaces its analysis of motions to reconsider upon Mississippi Rule of Civil Procedure 60(b). The trial court ruled verbally on December 16, 2004, and the motion to reconsider was filed on December 22. Because the motion to reconsider was filed less than ten days after the ruling, it was filed pursuant to Rule 59. See MRCP 59(e); Cannon v. Cannon, 571 So.2d 976, 978 (Miss.1990) (if a “motion was filed more than ten days after the entry of the final judgment ... [the] appeal cannot be considered under Rule 59”); Bresler v. Bresler, 824 So.2d 641, 642 (Miss.Ct.App.2002) (motions to reconsider will be treated “as a Rule 59 motion [when] filed within ten days after the judgment”); compare MRCP 60, which focuses exclusively on mistakes, inadvertence, fraud, or new evidence, and which allows six months’ time to file a motion. For a discussion of the differences between the rules, see Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991), which makes clear that “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).”

¶ 33. Because today the majority forgoes providing practical guidance to our trial courts and practitioners on this sticky procedural issue, and because it misapprehends the process by which a motion to reconsider is filed, I must respectfully dissent.

      . Dr. Myers chose to abandon his motion to reopen and proceed only on his motion to reconsider. Therefore, only the motion to reconsider is before this Court on appeal.

      . The timing of the transfer of jurisdiction to a transferee court is a matter more appropriately addressed by this Court pursuant to its rule-making authority.

      . Dr. Myers’s suit against MACM is for failing to renew his policy, not for cancelling it.

      . This appears to be a misstatement by the chancery court. The non-renewal notice was sent by MACM from Madison County to Dr. Myers in Holmes County.