author: DICKINSON, Justice, RANDOLPH, Justice,

text:
    W.A. COLEMAN v. STATE of Mississippi.
    No. 2004-CT-00346-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.
    Rehearing Denied Feb. 15, 2007.

      David M. Holly, Greenwood, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   ON WRIT OF CERTIORARI.

DICKINSON, Justice,

for the Court.

¶ 1. Without authorization, a deacon of Pillow Chapel Missionary Baptist Church (“Pillow Chapel”) in Greenwood, wrote church checks to himself. He was indicted, tried, and convicted under Mississippi’s embezzlement statute, Miss.Code Ann. Section 97-23-19 (Rev.2004) (“Embezzlement Statute”). The question presented is whether the deacon was indicted and tried under the correct statute.

BACKGROUND PACTS AND PROCEEDINGS

¶ 2. W.A. Coleman and James Brown, the two deacons at Pillow Chapel, were responsible for collecting monthly offerings from church members, depositing the funds into the church’s bank account, and paying for authorized maintenance and repairs to the church building and facilities.

¶3. Between January and July 2001, Coleman wrote checks totaling approximately $1,600.00 to himself, with no documentation of the purpose for the expenditures. When Brown became aware of Coleman’s conduct, he notified law enforcement officials, and an investigation ensued. Coleman was indicted under the Embezzlement Statute. The indictment stated:

That W.A. Coleman, that [sic] between the 22nd day of January, 2001 and 8th day of July, 2001, in Leflore County, Mississippi, being a deacon and in a position of trust at Pillow Chapel M.B. Church, and by virtue of his position as deacon, he, the said W.A. Coleman, he had in and under his care money, an amount being Two Hundred and Fifty Dollars ($250.00) or more, and did fraudulently and feloniously embezzle and convert said money to his own use, without the consent of James Brown, Trustee, and Pillow Chapel, M.B. Church, against the peace and dignity of the State of Mississippi.

¶ 4. In January 2004, the case proceeded to trial. The essence of Coleman’s defense was that he had written those checks to compensate himself for payments he made from his own funds for repair of church property, including plumbing and electrical work, as well as maintenance of the church’s lawn mower. The church’s pastor, however, testified that before any authorized work could be done for the church, the deacons were required to obtain approval from the congregation. The pastor also testified that the plumbing work which had been done was minor, there had been no electrical work done at the church, and the repairs performed were not worth $1,600.00.

¶ 5. At the completion of the State’s case in chief, Coleman moved for a directed verdict on the basis that the State had failed to prove the money had been embezzled from either an “incorporated company” or a “private person” as required by the Embezzlement Statute, under which he was indicted. Coleman also argued the State had failed to prove any misappropriation for personal use.

¶ 6. The trial court denied Coleman’s motion, and the trial proceeded. Coleman did not testify, but he called various witnesses to testify concerning the alleged work and repairs. The jury found Coleman guilty, and he was sentenced to a ten-year term of incarceration and ordered to pay restitution in the amount of $2,255.00. The trial court denied Coleman’s motion for a new trial or, in the alternative, for J.N.O.V., and he timely perfected an appeal, which we referred to the Court of Appeals.

¶ 7. Although Coleman briefed a variety of issues, the Court of Appeals addressed only the trial court’s denial of his motion for a directed verdict, holding that the State did not carry its burden of demonstrating that Coleman embezzled from an incorporated company or a private person, as required by the Embezzlement Statute. In reversing and rendering Coleman’s conviction, the Court of Appeals noted that Pillow Chapel was unincorporated, and insufficient evidence existed to prove that Coleman had embezzled from any private person. Coleman v. State, No. 2004-KA-00346-COA, 947 So.2d 964, 967, 2005 Miss.App. LEXIS 795, at *11 (Miss.Ct.App. Nov. 1, 2005).

¶ 8. The State applied to this Court for a writ of certiorari, and we granted that petition. Now, after careful review of the entire record, the briefs, and the arguments presented, we find the decision of the Court of Appeals was correct, and accordingly, we affirm the judgment of the Court of Appeals and reverse Coleman’s conviction.

DISCUSSION

I.

¶ 9. The interpretation of a statute presents a question of law which we are required to review de novo. Sykes v. State, 757 So.2d 997, 999 (Miss.2000). We begin our review by recognizing that this Court’s constitutional responsibility is not to determine whether Coleman committed a criminal act by violating some statute, but rather to determine whether his conduct, as proven to the jury, constituted a violation of the particular statute under which he was indicted. The State chose to seek an indictment under the Embezzlement Statute, which provides:

If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bail-ee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($500.00) or more, he shall be guilty of felony embezzlement, and, upon conviction thereof, shall be imprisoned in the Penitentiary not more than ten (10) years, or fined not more than Ten Thousand Dollars ($10,000.00), or both.

Miss.Code Ann. § 97-23-19 (Rev.2004).

¶ 10. It is bedrock law in Mississippi that criminal statutes are to be strictly construed against the State and liberally in favor of the accused. McLamb v. State, 456 So.2d 743, 745 (Miss.1984). When the words of a statute are plain and unambiguous there is no room for interpretation or construction, and we apply the statute according to the meaning of those words. Harrison v. State, 800 So.2d 1134, 1137 (Miss.2001). It is only when a statute is unclear or ambiguous that we look beyond the language of the statute to determine its meaning. Id. (citing Kerr-McGee Chem. Corp. v. Buelow, 670 So.2d 12, 17 (Miss.1995); Allred v. Webb, 641 So.2d 1218, 1222 (Miss.1994); Clark v. State ex rel. Miss. State Med. Ass’n, 381 So.2d 1046, 1048 (Miss.1980)). In State v. Traylor, 100 Miss. 544, 558-59, 56 So. 521, 523 (1911), this Court outlined our duty when statutes are presented for judicial interpretation: “The court has no right to add anything to or take anything from a statute, where the meaning of the statute is clear.... The law is that criminal statutes must be strictly construed. Such has been the law from time immemorial.”

¶ 11. Furthermore, this Court has held that “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under circumstances that every element of the offense existed....’” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). In reviewing the denial of a motion for directed verdict, if we determine the evidence points in favor of the defendant on any element of the offense such that a reasonable juror could not have found the defendant guilty beyond a.reasonable doubt, we must reverse the conviction. Edwards v. State, 469 So.2d 68, 70 (Miss.1985).

H.

Miss.Code Ann. Section 97-28-19

¶ 12. This Court does not get to decide what are the necessary or appropriate elements for the commission of a particular crime. The Mississippi Constitution grants that arduous responsibility to the Legislature which long ago determined that there should be a crime in Mississippi called embezzlement. The Embezzlement Statute, in a most specific, particular, and unambiguous manner, describes those who may be convicted under that statute for embezzlement. It follows that those not included on that list may not be convicted thereunder. The list is limited to certain persons who steal from “any incorporated company,” and certain persons who steal from “any private person.” Stated another way, the statute clearly provides only two categories of potential victims against whom the crime of embezzlement may be committed: either (1) “any director, agent, clerk, servant, or officer of any incorporated company," or (2) “any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person. ...” Miss. Code Ann. § 97-23-19 (emphasis added).

¶ 13. Thus, the potential victims under the statute are “any incorporated company,” and “any private person,” and part of the State’s burden of proof is to demonstrate that the defendant committed the wrongful act against one of those two potential victims. That being so, we must then determine whether Pillow Chapel was either an incorporated company or a private person when Coleman took the money. Because it is undisputed in this case that Pillow Chapel was not incorporated, we turn to the question of whether it was a “private person,” as that terminology was understood when the Legislature employed it in 1848.

III.

Private person

¶ 14. One might, at first blush, think that the “common and ordinary acceptation and meaning” of “private person” is uncomplicated and easily understood. However, some have argued that because Pillow Chapel is an entity made up of private persons, the entity itself is also a private person. Others posit that since an organization such as a religious society (or a church) is an “artificial person” under the law, it should be treated as a “private person” under the statute. We reject these arguments because to so hold would require that we recognize virtually every entity, organization, and “artificial person” as a private person. If these were valid arguments, it would necessarily follow that incorporated companies would also be private persons, since they are “artificial persons” made up of stockholders, who are private persons. This, of course, begs the question of why the Legislature would provide separate categories within the same statute for an “incorporated company” and a “private person.” Stated more simply, it is illogical to conclude that the Legislature would provide — within the same statute— that an agent or clerk of an incorporated company, or an agent or clerk of a private person, may be charged under the statute. Clearly, the language of the statute may not fairly be interpreted to apply the term “private person” to all “artificial persons” and organizations made up of private persons.

¶ 15. Earlier this year we decided Champluvier v. State, 942 So.2d 145, 153, 2006 Miss. LEXIS 636, at *26-27 (Miss. Nov. 9, 2006), wherein we held that an agent who stole money from a limited liability company was improperly indicted and convicted under the Embezzlement Statute because the business was neither an “incorporated company” nor a “private person.” Acknowledging the unambiguous language of the statute, we refused to broaden the two categories of embezzlement “victims” to cover limited liability companies (despite the fact that limited liability companies are “artificial persons”). Id. at 150, at *23-24. Because the State could not produce legally sufficient evidence on each element of the crime of embezzlement, we reversed and rendered the defendant’s conviction. Id. at 154, at *27-28.

¶ 16. In an attempt to make the Embezzlement Statute say what it does not say, the dissent directs our attention to the rules of statutory construction. However, we clearly stated in Champluvier that “the plain and unambiguous language of section 97-23-19 simply obviates any requirement to apply the rules of statutory construction.” Id. at 153, at *23.

¶ 17. The dissent tiptoes past Champluvier and cites as binding precedent State v. Journey, 105 Miss. 516, 532, 62 So. 354, 354 (1913), wherein a bailee took money from a corporation and was prosecuted under the Embezzlement Statute. In sustaining the defendant’s demurrer, the trial court held that the statute did not list “bailee” as one who could embezzle from an incorporated company. Id. at 355. This Court reversed, stating that “the language employed by the legislature refers to trustees, factors, carriers, or bailees of both artificial and natural persons.” Id. We easily distinguish Journey by recognizing that in the case before us today, Coleman was prosecuted for taking money from a church, an entity not specifically listed in the Embezzlement Statute. In Journey, it was clearly conceded that the defendant worked for and embezzled from a corporation, which is a listed victim under the statute. However, to the extent the decision in Journey is read to conflict with our decision in Champluvier or our decision today, Journey is overruled.

Miss.Code Ann. Section 79-11-31: Unincorporated religious societies

¶ 18. Pillow Chapel is neither a “private person” nor simply a group of private persons morphed into a private person. It is, instead, a church operating as an unincorporated religious society. Our Legislature provided for such societies in 1857 by enacting Section 79-11-31, which provides the framework for establishment of religious societies and their concomitant organization, leadership, rights to sue and be sued, etc. Specifically, it provides, in relevant part:

Any religious society, consisting of the members of any particular denomination or congregation, desiring to act as an organized body may do so by associating together and electing or appointing from its membership any number of officers, trustees, or managers, by whatever name known, for the purpose of managing the affairs of the society. Such society or association shall keep a record of its proceedings, which shall show the name of the society, its organization, and the election of the officers, trustees, or managers; but the society so organized at each particular locality shall be a distinct and independent society. Any society so organized may sue and be sued by its society name or appellation, and process may be served on its presiding or chief officer, or secretary, or on the trustees or manager.

Miss.Code Ann. § 79-11-31 (Rev.2004). Pillow Chapel easily meets these statutory requirements.

¶ 19. Concentrating (as we are bound to do) on the statute’s language, a church qualifies as a statutory “religious society” if its members (1) desire to act as an organized body; (2) associate together; (3) elect or appoint “any number of officers, trustees, or managers, by whatever name known,” from the membership to manage the affairs of the church; and (4) keep records of church proceedings.

Desire to act as an organized body and membership associating together

¶ 20. There can be no serious dispute that Pillow Chapel desired to act as an organized body and that its members associated together. According to the record, Pillow Chapel met regularly, elected deacons, had a bank account in the name of the church, incurred expenses in the church’s name for maintenance and repairs, and did numerous other things as a church body, rather than as a group of private persons. Additionally, testimony by the pastor, corroborated by Deacon Brown, demonstrated that the members intended the church to be considered a distinct entity, as they were “trying to get it incorporated.”

Officers, trustees, or managers

¶ 21. There can also be no doubt that Pillow Chapel elected or appointed from its members “any number of officers, trustees, or managers, by whatever name known,” to manage the church’s affairs. Indeed, if it did not, then the indictment was faulty since it averred that Pillow Chapel had deacons who were trustees, as they were in positions of trust for the church, and that the money was embezzled “without the consent of James Brown, Trustee, and Pillow Chapel, M.B. Church.” Although Pillow Chapel had only two deacons, the statute does not require more than two, but rather provides for “any number ... by whatever name known.”

Records kept of church proceedings

¶ 22. The record clearly indicates Pillow Chapel kept records of its proceedings, although, because of a fire, the existing records presented at trial consisted of thirty-six handwritten pages in a lined notebook. These records reflected discussions of such matters as offerings, the dates for activities such as Bible study, future events, the ushers’ schedule, etc. While it is true that the church’s records are not numerous, they do exist. We also note, by way of comparison, that our corporate statutes require corporations to keep numerous permanent records. See Miss. Code Ann. § 79-4-16.01 (Rev.2004). However, this Court has never disregarded a corporate entity simply because it did not keep records. See, e.g., T.C.L., Inc. v. Lacoste, 431 So.2d 918, 922 (Miss.1983), overruled in part on other grounds by C & C Trucking Co. v. Smith, 612 So.2d 1092, 1105-06 (Miss.1992); Richardson v. Jenkins Builders, Inc., 737 So.2d 1030, 1031-32 (Miss.Ct.App.1999).

¶ 23. Thus, based upon the record, we cannot say that Pillow Chapel does not qualify under the statute as a religious society, which is not a private person, but rather, a separate entity under our law.

Miss.Code Ann. Section 97-17-11(2)— “property of a church”

¶ 24. We have searched the Mississippi Code to learn whether the Legislature saw fit to provide protection to churches (whether or not they qualify as religious societies) that might be victimized by thieves, whether internal or external. If the Legislature has provided a separate statute recognizing a church as a victim, that fact would obviously further indicate that the Embezzlement Statute was not intended to redundantly cover unincorporated churches as potential victims. Not surprisingly, the Legislature indeed saw the need to enact a law which did, in fact, recognize a church (such as Pillow Chapel) as a potential victim:

Every person who shall be convicted of taking and carrying away, feloniously, the property of a church, synagogue, temple or other established place of worship, of the value of Five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not exceeding ten (10) years, or shall be fined not more than Ten Thousand Dollars ($10,000), or both.

Miss.Code Ann. § 97-17-41(2) (Rev.2004) (emphasis added).

¶ 25. Clearly, Coleman could have been indicted under this statute. See Ellis v. State, 469 So.2d 1256, 1260 (Miss.1985) (affirming conviction for grand larceny for stealing church property); Garrett v. State, 213 Miss. 328, 331, 56 So.2d 809, 810 (1952) (affirming conviction for grand larceny under prior code provision for stealing church property). Stewart v. State, 839 So.2d 535, 538 (Miss.Ct.App.2002) (affirming conviction for burglary with underlying offense of larceny for stealing church property).

CONCLUSION

¶ 26. We decline to speculate why Coleman was not indicted and prosecuted under Section 97-17-41(2), which specifically makes the “taking and carrying away, felo-niously, the property of a church” a crime. We are required to deal with the reality before us, that is, that Coleman was convicted under the Embezzlement Statute, which requires the victim be an incorporated company or a private person. Since Pillow Chapel is neither, we must affirm the judgment of the Court of Appeals, reverse Coleman’s conviction, and render judgment here discharging Coleman.

¶ 27. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY IS REVERSED AND RENDERED.

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

RANDOLPH, Justice,

Dissenting.

¶28. The majority decision not only requires a subversion of the plain language of Miss.Code Ann. Section 97-23-19 with an esoteric analysis which defeats the very purpose and intent of the legislative act, but also overrules a nearly century old precedent of this Court, but not before declaring the precedent case distinguishable, save for this Court’s recent pronouncement regarding Miss.Code Ann. Sect. 97-23-19. See Champluvier v. State, 942 So.2d 146 (Miss.2006). Contra State v. Journey, 105 Miss. 516, 62 So. 354 (1913).

¶29. Furthermore, it invalidates the verdict of twelve jurors, who found Coleman guilty, and finally, voids the trial court’s ruling, which was based on this Court’s decision in Journey, all without finding that the trial court abused its discretion or that there was- not sufficient, .credible evidence to support the jury’s verdict of guilty. The majority fails to address the appropriate standard of review by revising the issue before this Court by stating the question presented is “whether the deacon was indicted and tried under the correct statute,” which correctly would require a de novo standard of review. However, such issue was not pled by either party. This Court was asked to review the denial of Coleman’s Motion for a Directed Verdict. “When considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Sipp v. State, 936 So.2d 326, 333 (Miss.2006). After review of the record, this Court should respect the verdict by the jury, as well as recognize that the trial court correctly based its decision on established authority, i.e., Journey, which before today’s decision has never been criticized, much less overruled.

¶ 30. No citation is required for the proposition that the law recognizes persons, albeit natural or artificial. The trial court correctly found that Pillow Chapel Missionary Baptist Church was a private artificial person. Journey clearly recognized both natural and artificial persons. In Journey, a bailee was indicted under the predecessor statute to Miss.Code Ann. Section 97-23-19 for embezzling from a corporation. Journey, 62 So. at 354-55. The trial court granted Journey’s demurrer based on Journey’s contention that a bailee was not one of the listed individuals who could embezzle from an incorporated company, but rather was listed as one who could embezzle from a private person. In reversing the trial court’s ruling, this Court stated the following, “We do not so construe the statute. It is our opinion that the language employed by the legislature refers to trustees, factors, carriers, or bail-ees of both artificial and natural persons.” Id. at 355 (emphasis added).

¶ 31. The Court of Appeals circumvented Journey by finding that the current statute superseded Journey, thereby avoiding this Court’s clear pronouncement, and defiantly declared that Journey was no longer applicable. Coleman v. State, 947 So.2d 964, 967, 2005 Miss.App. LEXIS 795, 797 (Miss.Ct.App.2005). A thorough research of the evolution of Miss.Code Ann. Sect. 97-23-19, leads to the conclusion that there were no such changes. Accordingly, Journey was binding precedent for all courts of this state.

¶ 32. The majority concedes the church had money embezzled from it. Was not the church a group of private natural persons which collectively constitute a separate artificial person, i.e., Pillow Chapel? Following that path, I am led to the same destination, even had the analysis been limited to the church’s members, who are private natural persons. Either analysis results in either a person or persons being the victim of Coleman’s crime.

¶ 33. The majority’s analysis of Miss. Code Ann. Section 97-23-19 is flawed as it fails to consider established case law, common meanings of words, and the guidelines provided by the Legislature to interpret its statutes, which begin at Miss.Code Ann. Section 1-3-1, “This chapter is applicable to every statute unless its general object, or the context of language construed, or other provisions of law indicate that a different meaning or application was intended from that required by this chapter.”

¶ 34. Furthermore, the Legislature has provided a specific statute which addresses issues we seek to resolve today. ‘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.” Miss.Code Ann. Section 1-3-33. Miss.Code Ann. Section 97-23-19 fails to declare that a “private person” is to be used only in the singular.

¶ 35. Additionally, Miss.Code Ann. Section 1-3-65 instructs, “All words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning.” As my esteemed colleague, Justice Dickinson, recognizes those who may be prosecuted for embezzlement are “limited to certain persons who steal from ‘any private person,’ ” let us examine the common meanings of “private” and “person” as defined by Webster’s Dictionary. Private is defined as “(4) Belonging to a specific person or persons; (5) Not in an official or public position; (6) Not public.” Webster’s further provides the core meaning: “belonging or confined to a particular person or group.... ” Webster’s II New College Dictionary 880 (2001). The definition of person is as follows: “(7) Law A human being or organization with legal rights and duties.” Webster’s II New College Dictionary 820 (2001).

¶ 36. Coleman’s felonious conduct fits squarely within Miss.Code Ann. Section 97-23-19. Coleman was a trustee who “secreted, concealed, or converted” to his own use, “money which shall have come or been intrusted to his care or possession by virtue of his office.” See Miss.Code Ann. § 97-23-19.

¶ 37. Additionally, the majority asserts that Coleman’s crime may fall under the purview of Miss.Code Ann. Section 97-17-41(2), regarding taking the property of a church. In the cases cited by the majority, each and every defendant was charged with breaking into a church and stealing property which never was lawfully entrusted to them. Coleman was a trustee and deacon of the church, who lawfully came into possession of the money, before he criminally converted it to his own use. The case sub judice is readily distinguishable from the line of cases cited by the majority. Assuming arguendo Coleman was guilty of that crime as well, it is not our lot to direct what crime the District Attorney should have charged a defendant. Our charge is restricted to examining the statute at issue and case precedent. In applying these to the facts of this case, I agree with the jury and trial judge that Coleman was guilty of embezzlement.

¶ 38. Coleman additionally satisfies the statute’s requirement of being an agent or servant of any private person who fraudulently secreted, concealed, or converted to his own use money which was in his possession by virtue of his office as a deacon. In Footnote 3, the majority notes those who may be prosecuted from embezzling from a private person are trustees, factors, carriers, bailees, clerks, agents, and servants. Consistent with the statute, as well as this Court’s holding in Journey, Coleman is a trustee, guilty of embezzling from a private person. See State v. Journey, 105 Miss. 516, 62 So. 354 (1913).

¶ 39. This Court has made clear the constituent elements of the offense of embezzlement, those being: “(1) an agent or trustee of a private person, (2) embezzling or converting to his own use, (3) rights in action, money, or other valuable security, effects or property of any kind, (4) which have been intrusted to his care or possession by virtue of his position or employment.” May v. State, 240 Miss. 361, 363, 127 So.2d 423, 425 (1961). Miss.Code Ann. Section 97-23-19, as well as this Court’s clear rulings on the elements of the offense of embezzlement clearly support Coleman’s conviction for stealing $1,600 from Pillow Chapel.

¶ 40. . The majority’s holding today leaves us with a parallel paradoxical result to that addressed in my dissent in Champluvier v. State. See Champluvier v. State, 942 So.2d at 155, - 26, 2006 LEXIS 636 at ¶ 26 (Randolph, J., dissenting). Only now the majority has taken it a step further, ie., if a trustee steals from an unincorporated church, he is not guilty of the crime of embezzlement.

SMITH, C.J., COBB, P.J., AND EASLEY, J„ JOIN THIS OPINION.

      . Both Brown and Coleman were authorized to sign checks individually, without the safeguard of requiring two signatories. They were not, however, authorized to make expenditures without the approval of the members, which was determined at meetings held after their once a month church services.

      . The substantive language of the statute has remained unamended since our first code was published in 1848.

      . Those who may be prosecuted for embezzling from a "private person” are trustees, factors, carriers, bailees, clerks, agents, and servants. Miss.Code Ann. § 97-23-19.

      . See Miss.Code Ann. Section 1-3-65 (Rev. 2004) on the construction of statutory terms.

      . We view the Legislature’s enactment of Section 97-17-41 the same year it enacted the Embezzlement Statute as a further indication that the term "private person” found in the latter does not encompass the terms "church, synagogue, temple, or other established place of worship” found in the former. We also note that both statutes carry the same potential punishment.


source: Caselaw Access Project

author: COBB, Presiding Justice,

license: Public Domain

text:
    EAST MISSISSIPPI STATE HOSPITAL and the Mississippi Department of Mental Health v. Codell ADAMS and Levord Adams, Individually, and on behalf of all the Heirs at Law of Joe Cephus Adams, Deceased.
    No. 2005-IA-01899-SCT.
    Supreme Court of Mississippi.
    Jan. 18, 2007.

      Brett Woods Robinson, Laurel, attorney for appellants.
    Charles W. Wright, Jr., Meridian, attorney for appellees.
    Before COBB, P.J., DIAZ and RANDOLPH, JJ.
   COBB, Presiding Justice,

for the Court.

¶ 1. East Mississippi State Hospital (EMSH), a division of the Mississippi Department of Mental Health (MDMH), operates the Reginald P. White Facility, which is a licensed nursing home. Joe Cephus Adams (decedent) was admitted to the White Facility and during the short time he was a resident, he was involved in a number of altercations with other residents. One month after he was admitted, he was found unresponsive, and died two days later. An autopsy revealed his death was caused by blunt force trauma to the head.

¶ 2. Codell Adams and Levord Adams (plaintiffs), brothers of the decedent, filed a wrongful death suit against EMSH and MDMH (collectively referred to as defendants). The defendants answered and raised numerous affirmative defenses. Two years after the complaint and answer were filed, after extensive discovery was undertaken, the defendants filed a motion to dismiss and alternately for summary judgment, challenging the service of process claiming, inter alia, it was inadequate because the Mississippi Attorney General was not served as required by M.R.C.P. 4(d)(5). The plaintiff responded by arguing that defendants waived the right to challenge insufficiencies related to process. The trial judge denied defendants’ motion to dismiss, and we granted them permission to bring this interlocutory appeal pursuant to M.R.A.P. 5. After thorough review of the record, we affirm the judgment of the trial court and remand for further proceedings consistent with this opinion.

FACTS

¶ 3. The underlying relevant facts are undisputed. On June 11, 2002, the decedent was transferred from Laurel Wood Center and admitted to Reginald P. White Nursing Facility, a licensed home for the aged and infirm. While he was a resident, there were several incidents in which he and others were injured, and there were reports of the decedent hitting other residents and other residents hitting him. On July 10, 2002, the decedent became unresponsive and was taken to Rush Hospital Emergency Room, and was transferred to the University of Mississippi Medical Center where he died on July 12. An autopsy report revealed the cause of death as blunt force trauma to the decedent’s skull.

¶ 4. On July 2, 2003, the plaintiffs filed this wrongful death suit against EMSH and MDMH, alleging the defendants’ negligence proximately caused the decedent’s death because they had notice of the risk of other patients physically abusing the decedent, but failed to exercise the requisite degree of care and skill in his care, treatment, and security. The defendants answered on August 22, 2003, stating, inter alia, that the plaintiffs’ attempts at process were insufficient and inadequate and should be dismissed pursuant to Rules 12(b)(4) and 12(b)(5), M.R.C.P.. They reserved the right to amend their answer to raise other defenses. The case proceeded into the discovery phase, and on October 11, 2004, defendants filed a motion for summary judgment asserting immunity from liability under the discretionary function exemption found in Miss.Code Ann. Section ll-46-9(l)(d).

¶ 5. Subsequently, the case proceeded through motions to compel, for status conferences, and additional discovery. On June 9, 2005, defendants filed a motion to dismiss or alternatively for summary judgment, based on M.R.P.C. 4(d)(5) and the expiration of the statute of limitations, as well as insufficiencies related to process and the discretionary function exemption previously raised. In this motion, defendants asserted for the first time that service was inadequate because the plaintiffs served Dr. Ramiro Martinez, Administrator and Chief Executive Officer of EMSH, on behalf of EMSH, and served Carol F. Thweatt, Senior Attorney for the MDMH, instead of serving the Mississippi Attorney General pursuant to M.R.C.P. 4(d)(5).

¶ 6. The trial judge agreed that the Attorney General should have been served, but held that the “dilatory actions of the Defendants, after the initial assertion of the general defenses of insufficient process and insufficient service of process, waived the defenses.” The trial court further said:

As the precedent makes clear, a Defendant must timely pursue the defenses of insufficiency of process and insufficient service of process in their answer. However, the Defendants did not affirmatively pursue the matter until after two years of litigation and after the Defendants filed a Motion for Summary Judgment, defending the case on the merits.

After finding the defendants waived their defenses regarding process, the trial court denied their motion to dismiss and ultimately concluded that there were genuine issues of material fact in dispute which prevented summary judgment.

ANALYSIS

¶ 7. This Court is presented with an issue of first impression, as this is our first time to address M.R.C.P. 4(d)(5) which requires service of process on the Attorney General when suit is filed against the State of Mississippi or any one of its departments, officers or institutions. Here, there was no attempt to serve the Attorney General, even after the plaintiffs were made aware of this requirement by the defendants’ motion to dismiss or grant summary judgment. Intertwined with that requirement is the waiver issue. Namely, whether a defendant can generally raise defenses of insufficient process and service of process in the answer and then subsequently waive those defenses by failing to actively and specifically pursue them while participating in the litigation.

¶ 8. Defendants argue they preserved the defenses in their answer and therefore the trial court should have granted then-motion to dismiss. On the other hand, the plaintiffs maintain that “the Defendants have participated in substantial discovery in the form of interrogatories, production requests, depositions, designation of experts, scheduling order, and trial date order, all of which occurred from the filing of the lawsuit on July 2, 2003 until [the trial court’s denial in September 2005].” Although the plaintiffs admit the general defenses were raised in the defendants’ answer on August 22, 2003, they argue they were not specifically pursued until their June 9, 2005, motion to dismiss, or in the alternative for summary judgment. The plaintiffs further argue that defendants’ participation in the litigation and failure to pursue the insufficiencies related to process, especially the service upon the Attorney General, constituted a waiver.

Service of process on Attorney General

¶ 9. EMSH is an institution operated under the jurisdiction and control of MDMH pursuant to Miss.Code Ann. Section 41-4-11(2) (Rev.2005). Further, MDMH was created as a department of the State in Miss.Code Ann. Section 41-4-5 (Rev.2005). M.R.C.P. 4(d)(5) provides that the summons and complaint shall be served together “[u]pon the State of Mississippi or any one of its departments, officers, or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.” We agree that the trial court was correct in holding this provision applied, rather than M.R.C.P. 4(d)(8), which applies to “any governmental entity not mentioned above.” We also agree that the trial court was correct when it determined process was insufficient because the plaintiffs served the Chief Executive Officers of MDMH and the EMSH rather than the Mississippi Attorney General, and there was no subsequent effort to correctly serve process on the Attorney General within 120 days of the filing of the complaint as required by M.R.C.P. 4(h). Defendants referred to M.R.C.P. 12(b)(4) (pertaining to insufficiency of process) and M.R.C.P. 12(b)(5) (pertaining to the insufficiency of service of process) in their answer and affirmative defenses, but did not specifically refer to M.R.C.P. 4(d)(5) until their motion to dismiss. But our inquiry does not end there.

Waiver of defenses

¶ 10. The other important question to be answered in this interlocutory appeal is whether the defendants waived the defenses of insufficiency of process and insufficiency of service of process by failing to pursue them until almost two years after they raised them in their answer while actively participating in the litigation. M.R.C.P. 12(h)(1), which addresses waiver of insufficiency of process if neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof, is not applicable here, as the defendants raised the defenses of insufficient process and insufficient service of process in a responsive pleading (the answer). The Court of Appeals recently adopted the rule that “[o]nee the defense of failure of service of process has been made in the responsive pleading, it is not waived by the mere submission of other pleadings in the case, nor even by participation in a trial on the merits.” Page v. Crawford, 883 So.2d 609, 612 (Miss.Ct.App.2004); see also Mitchell v. Mitchell, 767 So.2d 1078, 1085 (Miss.Ct.App.2000). However, this Court has recently held to the contrary, in MS Credit Center, Inc. v. Horton, 926 So.2d 167, 181 (Miss.2006), which addressed the waiver of affirmative defenses in an arbitration case, but went on to announce:

Our holding today [in Horion ] is not limited to assertion of the right to compel arbitration. A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.

¶ 11. As set forth supra, defendants participated fully in the litigation of the merits for over two years without actively contesting jurisdiction in any way. They participated fully in discovery, filed and opposed various motions. While the defendants may have literally complied with Rule 12(h), they did not comply with the spirit of the rule. On this record we conclude that the defendants waived the defenses of insufficiency of process and insufficiency of service of process. The trial court’s exceptionally well reasoned and written Memorandum Opinion and Judgment denying defendants’ motion to dismiss or in the alternative for summary judgment is affirmed.

CONCLUSION

¶ 12. The defendants properly and timely raised the defenses of insufficient process and insufficient service of process in their answer. However, defendants’ subsequent participation in this litigation, together with their failure to pursue these defenses for two years after the case began, waived these defenses. Therefore, we affirm the trial court’s denial of defendants’ motion to dismiss, lift the stay imposed by this Court pending resolution of this interlocutory appeal, and remand this case to the trial court for further proceedings consistent with this opinion.

¶ 13. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.

      . M.R.C.P. 12(b)(4) pertains to insufficiency of process; 12(b)(5) pertains to insufficiency of service of process.

      . M.R.C.P. 4(d)(5) requires delivery of a copy of the summons and complaint to the Attorney General of the State of Mississippi when the State of Mississippi or any one of its departments, officers or institutions is being sued.

      .The summons actually listed Dr. Albert Ran-del Hendrix, Administrator and Chief Executive Officer of the MDMH, but this is of no consequence here.


author: SMITH, Chief Justice, DIAZ, Justice,

text:
    Billy G. ALEXANDER, et al. v. AC AND S, INC. f/k/a Armstrong Contracting & Supply Company, Inc., et al.
    No. 2005-CA-01031-SCT.
    Supreme Court of Mississippi.
    Jan. 18, 2007.

      Robert Gordon Taylor, III, Robert A. Pritchard, Jackson, Helen Elizabeth Swartzfager, Laurel, Attorneys for Appellants.
    T. Hunt Cole, Jr., Thomas W. Tardy, III, Laura Devaughn Goodson, Jackson, Attorneys for Appellees.
   SMITH, Chief Justice,

for the Court.

¶ 1. This case is before this Court on appeal from the Circuit Court of Jefferson County, Mississippi, by plaintiffs (hereinafter “Alexander”) who allege they suffered injuries caused by exposure to asbestos. The claims of plaintiffs in the action who were residents of Mississippi, or who alleged exposure to asbestos in the state, were transferred to the circuit court in the county where each plaintiff lived or claimed exposure to asbestos. Additionally, the claims of 159 plaintiffs who were neither residents of the state of Mississippi nor claimed exposure to asbestos within the state were “dismissed without prejudice pursuant to the recent decisions of the Mississippi Supreme Court.” The first-named plaintiff of the 159 was Billy G. Alexander, a resident of Muscle Shoals, Alabama, who claimed he had been exposed to asbestos in Alabama. Concerned about their ability to maintain suit in other jurisdictions, those 159 persons filed this appeal.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. This case was originally filed on April 27, 2000. There were fifteen plaintiffs, hailing from Mississippi, Louisiana, Texas, and Indiana, and 122 defendants. An amended complaint was filed on June 16, 2000, which added three more plaintiffs from Mississippi and 182 plaintiffs from Alabama.

¶ 3. The record is devoid of further pleadings until September 30, 2004, when defendant 3M Company filed a motion to dismiss predicated upon our order in Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004). The motion alleged that “[sjince the Complaint was filed ... [the] Plaintiffs have provided no information to make it possible to determine what claims each of them asserts against which Defendants.” Other defendants later filed a motion to dismiss predicated upon the Mangialardi order and argued that the order was applicable to asbestos cases. Alexander responded that Mangialardi should not be applied retroactively and that property rights and access to the courts under the Mississippi Constitution of 1890 were at risk; they also raised due process and equal protection concerns.

¶ 4. After a lengthy hearing on October 15, 2004, the trial court entered an order on December 23, 2004, after considering the merits of the briefs and arguments of the parties. The order required the parties to attend another hearing set for January 24, 2005, by which time the plaintiffs would be required to “inform the Court of any Plaintiffs residing outside out of the State of Mississippi who have original jurisdictional] within the State of Mississippi OR why, otherwise, each individual Plaintiffs case should not be dismissed.”

¶ 5. The trial court additionally directed the severance and transfer of “all those in-state Plaintiffs without original jurisdiction and venue in Jefferson County, Mississippi, to the appropriate court of venue and jurisdiction, and dismiss, without prejudice, all those out-of-state Plaintiffs without original jurisdiction and venue in Jefferson County, Mississippi.” The trial court also required Alexander to produce Mangialardi-compliant information in database form as to each plaintiff; specifically, their name, county and state of residence, county and state of alleged exposure, county of residence of a Mississippi defendant (if relevant), and whether the plaintiff should be dismissed for lack of jurisdiction and venue- or where the case should be transferred.

¶ 6. Over the next weeks, the plaintiffs began to produce the information required by the order, which in many cases demonstrated that the plaintiffs had no connection with the state of Mississippi; for instance, one plaintiff was a resident of Indiana who claimed to have been exposed to asbestos in Indiana. Alexander urged that venue in a Mississippi jurisdiction was still proper because the asbestos may have been manufactured or otherwise distributed by a Mississippi defendant; in addition, a conspiracy theory was offered that attempted to tie the various defendants together and establish venue in Mississippi.

¶ 7. On February 11, 2005, the trial court entered an agreed order that was signed by counsel for the plaintiffs and the “Liaison Attorney for Defendants.” The agreed order required further detail from Alexander in order to properly comply with Mangialardi and other “recent decisions of the Mississippi Supreme Court.” Important for purposes of this appeal is the requirement that “[f|or all Plaintiffs who are not residents of the State of Mississippi and whose cause of action did not occur or accrue in Mississippi, i.e. their alleged exposure to asbestos did not take place in the State of Mississippi, a notation of ‘Dismissal Without Prejudice’ ” was to be placed by their name in the database.

¶ 8. The trial court also required Alexander to file an amended complaint, but “determined that issues relating to venue and dismissal should be addressed prior to the filing of any amended complaint complying with Mangialardi" However, the trial court did not prohibit Alexander from filing an amended complaint prior to transfer.

¶ 9. The plaintiffs responded to this order on March 10, 2005. Despite the fact that the order was agreed to and signed by the parties, Alexander specifically noted their objections to its content. The only reason given for maintaining venue in Jefferson County was that “[t]he Plaintiffs were properly joined under Mississippi law” at the time of filing.

¶ 10. On April 29, 2005, the trial court entered a subsequent order which held that “[t]he claims of the plaintiffs in this action who are not residents of the State of Mississippi and who do not allege exposure to asbestos in the State of Mississippi ... are hereby dismissed without prejudice pursuant to the recent decision of the Mississippi Supreme Court.” The court found that the lawsuits of 159 of the plaintiffs in the original suit should be dismissed without prejudice. Alexander appeals, assigning four errors to the dismissal without prejudice.

I. WHETHER THE CIRCUIT COURT IMPROPERLY APPLIED MISS. R. CIY. P. 20 RETROACTIVELY RESULTING IN SEVERANCE AND DISMISSAL OF THE PLAINTIFFS’ CLAIMS
II. WHETHER THE CIRCUIT COURT FAILED TO PROPERLY APPLY THE DOCTRINE OF FORUM NON CONVENIENS OR TO TAKE MEASURES TO PROTECT THE PLAINTIFFS’ CASES FROM DISMISSAL
III. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS’ RIGHTS UNDER ARTICLE 3 SECTIONS 14 AND 24 OF THE MISSISSIPPI CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
IV. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS’ RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

¶ 11. We hold that the trial judge did not err in dismissing without prejudice the out-of-state plaintiffs whose causes of action accrued outside of Mississippi.

STANDARD OF REVIEW

¶ 12. In cases regarding joinder and venue, including cases where the severance of plaintiffs is at issue, we review to determine if the trial court abused discretion in its rulings. Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1095 (Miss.2004).

DISCUSSION

I. WHETHER THE CIRCUIT COURT IMPROPERLY APPLIED MISS. R. CIV. P. 20 RETROACTIVELY RESULTING IN SEVERANCE AND DISMISSAL OF THE PLAINTIFFS’ CLAIMS

¶ 13. Alexander argues that this case was properly filed in 2000, and that the amendments to Rule 20 and its comment in 2004 should not be applied retroactively as to affect their case. Alexander also argues that the application of the post-2004 line of cases dealing with venue and joinder, including Armond, the various other Janssen Pharmaceutica cases, and the Mangialardi order should not be applied retroactively.

¶ 14. However, this is clearly not a forum non conveniens case. Rather, it is simply a Rule 20 joinder issue, which we have already fully addressed in Albert v. Allied Glove Corp., 944 So.2d 1 (Miss.2006). In Albert, this Court mandated that the changes in Rule 20 must be applied to pending cases. Id. at 4. We made expressly clear that we will continue to recognize the precedent of Armond and Mangialardi and its application to all pending cases in the State of Mississippi, which held plaintiffs may not be joined under Rule 20 unless their claims are connected by a distinct, litigable event. Armond, 866 So.2d at 1099. Furthermore, this Court has consistently held that the trial judge did not err in dismissing without prejudice the claims of out-of-state plaintiffs whose causes of action accrued outside of Mississippi. See Albert, 944 So.2d at 5; Amchem Prods., Inc. v. Rogers, 912 So.2d 853, 855 (Miss.2005); Dillard’s, Inc. v. Scott, 908 So.2d 93, 96 (Miss.2005). Therefore, we find the trial court’s ruling to dismiss the plaintiffs’ suit without prejudice was correct.

II. WHETHER THE CIRCUIT COURT FAILED TO PROPERLY APPLY THE DOCTRINE OF FORUM NON CONVENIENS OR TO TAKE MEASURES TO PROTECT THE PLAINTIFFS’ CASES FROM DISMISSAL

¶ 15. Alexander and the other 158 appellants argue that the trial court failed to ensure that an alternate forum suitable for their claims existed when ordering their case dismissed without prejudice. According to Alexander, the danger is that while the cases were pending in Mississippi, the statute of limitations may have run in a valid alternate jurisdiction. To cure this possible problem, Alexander requested the trial court to require the defendants to waive the statute of limitations for the time period the cases were on file in Mississippi.

¶ 16. The trial court refused to include such a waiver, preferring to allow the alternate jurisdictions to address issues with savings statutes or other mechanisms that would allow the suits to be refiled. The trial court also based its decision on recent decisions of this Court which clearly mandated dismissal without prejudice as a result of forum non conveniens. See State Farm Mut. Auto. Ins. Co. v. Murriel, 904 So.2d 112, 116 (Miss.2004); Amchem, 912 So.2d at 859 (“The out-of-state Plaintiffs with no connection to the State of Mississippi and whose causes of action accrued out of state should be dismissed without prejudice based upon forum non-conve-niens”); Ill. Cent. R.R. v. Gregory, 912 So.2d 829, 836-37 (Miss.2005).

¶ 17. Alexander and the joint plaintiffs assert that under the doctrine of forum non conveniens, a suitable forum must exist for Alexander to refile his case, and if one does not, the trial court should issue an order requiring defendants to waive any statute of limitation defenses which could be raised in the alternative forums. However, this case does not turn on the doctrine of forum non conveniens. In addressing this same issue in Albert, we held that the determination of this joinder issue clearly falls under Rule 20, Armond, Mangialardi and the subsequent line of cases recognizing the dismissal of claims made by out-of-state plaintiffs with no connections to Mississippi and whose causes of action accrued outside of the state. See Albert, 944 So.2d at 5. Accordingly, this argument is without merit. We find that the trial court did not err in dismissing plaintiffs’ claims for the reasons discussed above in Issue I.

III. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS’ RIGHTS UNDER ARTICLE 3 SECTIONS 14 AND 24 OF THE MISSISSIPPI CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

¶ 18. Alexander argues that the circuit judge’s dismissal violates their due process rights under Article 3, Section 14 of the Constitution of this state as well as the Fourteenth Amendment to the United States Constitution. Alexander argues he was “also deprived due process in the taking of their property interest in their cases without any legitimate state interest,” and that “they were not given opportunity to be heard as to the merits of their case, but rather had their claims dismissed in a manner which will prevent them from ever being able to present their claims before any court.” However, Alexander does not offer any support for his statement that neither he nor the other 158 joint appellants can ever file a claim in another court. While the suit may have been dismissed without prejudice from a Mississippi court, neither Alexander nor the other 158 joint appellants have shown that they have attempted to file in another jurisdiction and been barred from doing so. Therefore, we simply do not know if there has been a deprivation. Notwithstanding, Alexander received the benefit of three separate hearings before the trial judge regarding the various intricacies of the case: one on October 15, 2004, one on February 7, 2005, and one on March 28, 2005. Even if Alexander demonstrated a deprivation, this was more than sufficient due process. Accordingly, we find no merit to this argument.

IV. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS’ RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

¶ 19. Alexander argues that the dismissal of his lawsuit may violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. This argument is based upon the concept that the citizens of other states should have equal access to bring lawsuits in Mississippi, and that by retroactively applying changes in Rule 20, we have deprived these litigants of their right to access to the courts of this state.

¶ 20. In support thereof Alexander provides only one citation: Minn. v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n. 12, 101 S.Ct. 715, 727, 66 L.Ed.2d 659, 673 (1981). However, it is unclear what this case — involving a state statute regulating the sale of milk in Minnesota — has to do with the present issue, as it involved the Commerce and Due Process components of the Fourteenth Amendment, and the footnote Alexander cites provides, no guidance. Alexander has not demonstrated that our refusal to hear claims over which we have no jurisdiction has deprived him of access to a court in another jurisdiction. Nor has Alexander demonstrated any concrete reason why the action should be maintained in Mississippi. Accordingly, there is no constitutional violation.

¶ 21. Today’s decision is consistent with our recent holdings in Albert, 944 So.2d at 8; Dillard’s, 908 So.2d at 100; Amchem, 912 So.2d at 859; and Smith, 926 So.2d at 846, where this Court directed claims of non-resident plaintiffs with no connection to the State of Mississippi to be dismissed without prejudice.

CONCLUSION

¶ 22. For the reasons stated above, this Court finds that the out-of-state plaintiffs whose causes of action accrued outside of Mississippi should be dismissed without prejudice. The judgment of the Circuit Court of Jefferson County, Mississippi, is affirmed.

¶ 23. AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. RANDOLPH, J., NOT PARTICIPATING.

DIAZ, Justice,

Dissenting.

¶ 24. The recent devastation our state suffered in the wake of Hurricane Katrina illuminates the need for an equitable and efficient judicial system capable of handling hundreds or even thousands of claims should the need arise. At this moment, our judicial system fails to meet the needs of Mississippians, especially those who may have suffered from this grievous and widespread tragedy. Because our Court continually fails to correct this problem, I must respectfully dissent from the majority.

¶ 25. As my colleague Justice Graves has noted before, Mississippi is the only state in the United States of America which does not have class actions. Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1102 (Miss.2004) (Graves, J., specially concurring). In Armond we grappled with our Rule 20 which had long allowed a type of “super-joinder.” Because we never adopted a class action rule, the only way to aggregate common claims was through joinder. We greatly narrowed the scope of Rule 20 in Armond, but declined to adopt a parallel rule, one “that alleviate[d] the great and unnecessary stress we place on Rule 20,” and would “create[ ] a class action procedure that will allow courts to fairly administer claims with numerous parties, protect[ ] the interests of both defendants and plaintiffs, and avoid[ ] inconsistent decisions.” Id. at 1104 (Graves, J., specially concurring).

¶ 26. Justice Graves warned that our failure to do so sparked a “true danger” to our judicial system: “the risk of unsettled law — that judges, juries, attorneys, parties, students, and citizens will not understand the procedures and policies of our court system.” Id. (Graves, J., specially concurring). This pronouncement was borne out almost immediately. It has taken dozens of cases in the past three years to cure the problems Justice Graves foresaw, and we seem no closer to a comprehensive, understandable doctrine. Notable among the many are Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 64 (Miss.2004) (where Justice Easley dissented because “litigants, their lawyers, and the trial courts are left without a clue as to how to proceed in [mass tort] cases,” and offered a criticism of the muddy distinction of “mature” and “immature” torts made in Armond); Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004) (where, via order, we created a new rule requiring the disclosure of “core information” in aggregated cases); Purdue Pharma, L.P. v. Estate of Heffner, 904 So.2d 100, 104 (Miss.2004) (where we determined that, even when a district court had found that there was no fraudulent joinder, join-der might still not be proper under the new Rule 20); Ms Life Ins. Co. v. Baker, 905 So.2d 1179 (Miss.2005) (where, less than a year after Armond, we were compelled to again provide a review of joinder and the changes to the comment to Rule 20); 3M Co. v. Johnson, 895 So.2d 151, 159 (Miss.2005) (overruling — without acknowledging — the portion of Armond referring to “mature torts,” by holding that “[although asbestos litigation is a ‘mature tort’ as discussed in dicta in Armond, this Court does not intend, nor will we proceed to exempt such cases from the require-ents of Rule 20”); Ill. Cent. R.R. v. Gregory, 912 So.2d 829 (Miss.2005) (another massive “review” opinion in the style of Baker, this time to attempt to reconcile Armond and Mangialardi); Canadian National/Illinois Cent. R.R. v. Smith, 926 So.2d 839 (Miss.2006) (clarifying what a trial court is required to do in order to dispose of misjoined claims); and lastly, Albert v. Allied Glove Corp., 944 So.2d 1 (Miss.2006) (refusing to apply forum non conveniens doctrine to misjoined claims in order to preserve statutes of limitation and prevent injustice). The doctrine of joinder has proved susceptible to multiple changes or modifications in one single calendar year, with no end in sight.

¶ 27. In the most recent line of cases— Albert, Coleman, and the case at hand— the interests of litigants and judicial economy are disregarded. We callously announce that, even if a case was filed validly pre-Armond, it is susceptible to a dismissal which might result in a time-barred claim. Basically, we are indifferent to what happens to litigants, their claims, or the immense time and money costs that will be involved in refiling, not to mention the hundreds of other courts which will have to grapple with our failure to craft a concrete, discrete, and understandable rule.

¶ 28. Fairness and justice were not the ultimate outcomes of Armond: instead, it was the total elimination of any aggregated claims. Despite all our vehement protests to the contrary, there is no such thing as a “distinct litigable event” in Mississippi. Our court has grappled constantly with joinder since Armond, which failed utterly to erase confusion regarding aggregate claims. As I wrote in my dissent in a companion case to the one at hand, “[jjoinder was broken pre-Armond, and it remains broken today, a tangled web of clashing precedent and theory.” Coleman v. A-Bex Corp., 943 So.2d 697 (Miss.2006) (Diaz, J., dissenting).

¶ 29. Yet after Armond, there seemed for many months to be a positive force towards reform of our rules, as many members of our bench and bar threw themselves into seeking innovative and flexible solutions for the grouping of mass claims. This great effort sparked lively and scholarly public debate, with many highlights replicated in a full volume of the Mississippi College Law Review. But at some point we as a Court stopped looking for ways to improve the current state of the judicial system, content to tinker endlessly with Rule 20. And as Justice Graves wrote almost three years ago, “[tjhere are multiple ways we could approach this problem, but we do not solve it when we refuse to address it.” Armond, 866 So.2d at 1103 (Graves, J., specially concurring). Indeed, we have eliminated even the limited forms of class action that were once possible in our courts of equity. Id. (Graves, J., specially concurring).

¶ 30. In the midst of our doldrums came Katrina.

¶ 31. The storm’s impact was numbing: 200,000 homes along the Gulf Coast were destroyed, displacing thousands of Mississippi families. Of our nearly three million Mississippi residents, 909,200 were without power the day after the storm. Ultimately, 47 counties were declared disaster areas and billions of dollars in damage were suffered. Yet all those billions paled to the losses suffered by the families and friends of the 231 Mississippians who died because of the storm.

¶ 32. After the tragedy came a tremendous struggle to cope. Homes were opened to strangers. Those who had lost power emptied their freezers, concocting feasts for neighbors, family, and friends. Mississippians came together in a time of desperate need, and we were blessed to receive help from all across America.

¶ 33. Then, homeowner after homeowner had insurance claims rejected. We all struggled to understand the scientific and contractual subtleties of “wind versus water.” And lawsuits began.

¶ 34. The overwhelming majority of these suits are situated in the federal court system, and many seek to establish large classes of plaintiffs pursuant to Fed. R.Civ.P. 23. When Mississippians were harmed, they petitioned for redress, but were only able to do so in the federal judicial system. This is a matter of grave concerns for at least two reasons — both of which are constitutional rights guaranteed to all Mississippians.

¶ 35. Our Mississippi Bill of Rights ensures that “[a]ll courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.” Miss. Const, art. 3, § 24. This right is underscored and supported by Section 25, which demands that “[n]o person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.” Miss. Const, art. 3, § 25.

¶ 36. At this moment in time we would allow a citizen harmed by Katrina to file suit in our state courts, but only if they filed alone. Common sense dictates that the costs ,of complex lawsuits are borne easier by the aggregation of claims; this also reduces the burden of multiple identical lawsuits pending in parallel courts and erases the dangers of inconsistent judgments. Yet we implicitly prohibit this aggregation, and accordingly, we foreclose Mississippians access to the court system which is their right.

¶ 37. We have within our power the ability to change the judicial system to better serve the interests of justice and the needs of our citizenry. In the past few years, we have made tremendous strides in modernizing our system of rules, moving from Frye to Daubert and adopting Miss. R. Civ. P. 35, which allows the mental and physical examination of parties when it is pertinent to their lawsuit. Our efforts at making the legal system more accessible-through the adoption of mandatory reporting of pro bono hours in Miss. R. Profl Cond. 6.1 and the creation of our access to justice commission — will have have a magnificent impact on our state, and reflect upon our true desire to uphold justice.

¶ 38. Yet we can do more, and indeed, we must do more. The most telling fact is this: “[i]n 1833, just a little over a decade after Mississippi was admitted to the Union, ‘the first provision for group litigation in federal courts was set forth as Equity Rule 48.’ ” Armond, 866 So.2d at 1103 (Graves, J., specially concurring) (citing Deborah Hensler, Nicholas Pace, Bonita Dombey-Moore, Beth Giddens, Jennifer Gross, & Erik Moller, Class Action Dilemmas 10 (2000)). One hundred and seventy-three years later, Mississippi has no provision for group litigation, even though the United States employed one in the nineteenth century. This must change, because we need one to fully serve the interests of justice.

¶ 39. Because we no longer provide open access to our state judicial system as is mandated by our constitution, for the reasons above, and for the reasons I previously stated in dissenting from Albert and Coleman, I must respectfully dissent.

GRAVES, J., JOINS THIS OPINION.

      . The footnote reads in its entirety: “The District Court also held that the Act violated substantive due process, and was apparently affirmed by the State Supreme Court on this ground. Conclusion of Law No. 1, App. A-23; 289 N.W.2d, at 87, n. 20. From our conclusion under equal protection, however, it follows a fortiori that the Act does not violate the Fourteenth Amendment’s Due Process Clause. See Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-125, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963).”

      . As an aside, 3M v. Johnson examined the peculiar term "distinct litigable event,” which we slid into the comment to Rule 20 post-Armond. There are only 21 reported and unreported cases which utilize that odd term, all of which are either situated in Mississippi state or federal courts, citing to the comment to Rule 20. This method of determining join-der is wholly unique to Mississippi and it, along with the phrase which describes it, appears to have no basis in prior Mississippi law nor any other federal or state precedent examining joinder.


author: CARLSON, Justice,

text:
    Marilyn C. DEDEAUX and Eugene Dedeaux v. PELLERIN LAUNDRY, INC.
    No. 2003-CT-02408-SCT.
    Supreme Court of Mississippi.
    Jan. 18, 2007.

      Robert H. Tyler, attorney for appellants.
    John Roger Miller, attorney for appel-lee.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. After the Court of Appeals, in addressing an issue not raised on appeal, reversed the trial court judgment and remanded this case for a new trial on the issue of damages only, we granted certio-rari to clarify an area of the law which had become muddled due to prior decisions from this Court. Having carefully considered the record and the issues before us, we affirm the judgment of the Court of Appeals, though for reasons different from those stated by that Court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The facts relevant to the disposition of today’s case are for the most part gleaned from the opinion of the Court of Appeals:

Marilyn and Eugene Dedeaux filed a claim against Pellerin Laundry, Inc. alleging that they sustained multiple damages as a result of an automobile accident between a vehicle driven by Marilyn and a vehicle owned by Pelle-rin. The jury returned a verdict in Marilyn’s favor and awarded her damages; however, it awarded zero damages to Eugene. In response, the De-deauxes moved for a new trial on the issue of damages, or in the alternative, for an additur. The trial court denied the motion for a new trial, but granted ... Marilyn an additur of $20,000 and Eugene an additur of $10,000. After a reduction to reflect Marilyn’s percentage of fault, Marilyn received a total recovery of $31,011.36, and Eugene received a recovery of $5,300.

Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 961, 961-62, 2005 WL 1530425, 2005 Miss. Ct.App. LEXIS 442, **1, 3, ¶¶ 1, 5, (Miss.Ct.App.2005).

¶ 3. After the trial court entered its final judgment, Marilyn C. and Eugene De-deaux filed their notice of appeal, and we assigned this case to the Court of Appeals.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 4. Before the Court of Appeals, the Dedeauxes raised four issues: “(1) [whether] the jury award in favor of Marilyn was nominal and against the overwhelming weight of the credible evidence, (2) [whether] the jury verdict failing to grant damages to Eugene was against the overwhelming weight of the evidence, (3) [whether] the trial court erred in refusing to grant their motion for a new trial on the issue of damages, and (4) [whether] the trial court erred in failing to grant a more substantial additur to the jury award in their favor.” Dedeaux, 947 So.2d at 962, 2005 Miss. Ct.App. LEXIS 442, *2, ¶ 2. On the other hand, Pellerin Laundry, Inc., summed up the issue on appeal as whether the trial judge abused his discretion in denying the Dedeauxes’ motion for a new trial on damages. Pellerin argued that the trial judge did not abuse his discretion and that the final judgment should be upheld. However, the Court of Appeals sua sponte decided “that Pellerin failed to affirmatively accept the additur in a timely manner; therefore, we order a new trial on the issue of damages only.” Dedeaux, 947 So.2d at 962, 2005 Miss. Ct.App. LEXIS 442, *2, ¶ 3.

¶ 5. The Court of Appeals determined that while the record revealed that the trial judge intended to grant a new trial on damages if Pellerin chose not to accept the court-ordered additur, the record was silent as to whether Pellerin had taken affirmative action to either accept or reject the additur; therefore, the Court of Appeals determined that a new trial as to damages was mandated pursuant to statute and case law. Dedeaux, 947 So.2d at 963, 2005 Miss. Ct.App. LEXIS 442, **7-8, ¶¶ 11-12. Subsequent to the judgment of the Court of Appeals, Pellerin timely filed a motion for rehearing before the Court of Appeals, asserting that it had timely accepted the trial court’s additur by mailing separate checks payable to Marilyn and Eugene, and a Satisfaction of Judgment, to the Dedeauxes’ attorney. Attached to the motion for rehearing were purported copies of the checks and Satisfaction of Judgment. Pellerin asserted that it never filed the Satisfaction of Judgment with the trial court because it was never signed by the Dedeauxes and returned to Pellerin. The Court of Appeals denied Pellerin’s motion for rehearing, prompting Pellerin’s filing of its petition for writ of certiorari with us. Pellerin thereafter filed a supplemental brief pursuant to the provisions of M.R.A.P. 17(h).

DISCUSSION

¶ 6. In considering the various issues which the parties raised before the Court of Appeals, as well as the additional issue generated by the Court of Appeals’ disposition of this appeal- by deciding, sua sponte, that this case had to be remanded for a new trial on the issue of damages only because “Pellerin failed to affirmatively accept the additur in a timely manner,” we have concluded that we can combine these issues and restate the critical issue for clarity in today’s discussion.'

WHETHER THE PLAINTIFFS ARE ENTITLED TO A NEW TRIAL ON THE ISSUE OF DAMAGES

¶ 7. Before proceeding further, we deem it necessary to give at least a brief history of how this Court has dealt with the issue of additur/remittitur. The following history will reveal that we have been less than consistent. In Altom v. Wood, 298 So.2d 700 (Miss.1974), this Court was confronted with a claim by the plaintiff that the amount of the jury verdict ($2,500) in a personal injury action was inadequate; thus, this Court had no issue before it concerning the trial court’s grant of an additur or a remittitur. Id. at 701. However, upon considering the amount of the jury verdict, when compared with the evidence, this Court determined that a grant of an additur was appropriate. Id. at 702. In considering the provisions of Miss.Code Ann. § 11-1-55 (1972), the Court also addressed the issue of which party had the option of accepting or rejecting the addi-tur. The Court found that in cases in which a remittitur was ordered, the plaintiff had the option of accepting the remitti-tur or having the case remanded to the trial court for a new trial on the issue of damages; however, in cases in which an additur was ordered, the defendant had the option of accepting the additur or having the case remanded to the trial court for a new trial on the issue of damages. Id. The Court reasoned that a court-ordered remittitur or additur impinged on the right to trial by jury; therefore, if a remittitur were ordered, the plaintiff had the option of accepting or rejecting the remittitur, and if an additur were ordered, the defendant had the option of accepting or rejecting the additur. Id. In reaching this conclusion, this Court acknowledged the pre-statute case of Woodmansee v. Garrett, 247 Miss. 148, 153 So.2d 812 (1963), in which this Court held that in cases involving unliquidated damages, the Court had no authority to increase the amount of the jury verdict without the consent of the party prejudiced, since such action “would be violative of the constitutional guarantee of trial by jury.” Altom, 298 So.2d at 702. In the end, this Court affirmed on condition that the defendant accept an additur of $10,000, resulting in a judgment for the plaintiff in the amount of $12,500, failing which the ease would be remanded to the trial court for a new trial on the issue of damages. Id.

¶ 8. Some fifteen years later, this Court considered the trial court’s grant of an additur and likewise addressed the appropriate procedure to be followed upon a court-ordered additur. In Odom v. Parker, 547 So.2d 1155 (Miss.1989) (Parker), the jury returned a verdict for the mother of an injured minor in the amount of $1,516.49, which mirrored to the penny the amount of medical bills incurred by the mother for treatment of her minor daughter; and, the jury likewise found for the injured minor, but awarded zero damages. Id. at 1156. In addressing the subsequently filed motion for a new trial, which, inter alia, claimed that the jury had awarded inadequate damages, the trial judge, without offering the election of a new trial as to damages, simply granted an additur of $983.51 in favor of the minor plaintiff, resulting in a total judgment for both plaintiffs in the amount of $2,500. Id. On appeal, this Court considered two statutes, one of which has since been repealed. The repealed statute, Miss.Code Ann. § 11-7-213, provided, inter alia, that when a motion for a new trial raised only the issue of whether the awarded damages were excessive or inadequate, “the party aggrieved may elect to appeal from the order granting a new trial.” Id. at 1157. In reading section 11-7-213 in conjunction with section 11-1-55, and in applying prior case law, the Court found that, absent the trial judge making a specific finding that the jury verdict “was influenced by bias, prejudice or passion, it is error to order a new trial or an additur or remittitur.” (citations omitted). Id. Of significant import, this Court stated:

A fair interpretation of Miss.Code Ann. § 11-1-55 is as follows: when either party moves for a new trial on the issue of damages, and the circuit judge finds merit in the motion, he can deny it upon condition of an additur or remittitur (as the case may be), which, however, must then be accepted by both parties. Thus, when the circuit judge finds the motion for a new trial on damages is meritorious, and enters such an additur or re-mittitur, each party must be given the choice of deciding whether: (1) he wants to accept it, or (2) he wants a new trial on damages, or (3) he wants to appeal the order as an abuse of discretion by the circuit judge.
We have repeatedly held and recognized thar when a motion for a new trial on damages is found by the circuit judge to be meritorious, the defendant may (1) refuse to accept the additur or remitti-tur and have the case re-tried on the amount of damages, (2) appeal the order to this Court on the basis that the circuit judge abused his discretion in disturbing the jury verdict at all, or in the amount of the additur or remittitur, or (3) accept the additur or remittitur and pay the judgment. City of Jackson v. Ainsworth, 462 So.2d 325 (Miss.1984); Cortez v. Brown, 408 So.2d 464 (Miss.1981); Toyota Motor Company, Ltd. v. Sanford, 375 So.2d 1036 (Miss.1979); Standard Products, Inc. v. Patterson, 317 So.2d 376 (Miss.1975); Mississippi State Highway Commission v. Rogers, 271 So.2d 731 (Miss.1973).
We have never before addressed the specific question whether the plaintiff as the defendant has the absolute right to reject such remittitur or additur and have a new trial on damages, or must appeal the decision to this Court as an abuse of discretion. We see no reason for a distinction between the right of the defendant and the plaintiff in rejecting the additur or remittitur and having a new trial on the amount of the damages, rather than being required to appeal to this Court. When either the circuit judge or this Court directs an additur or remittitur this is usurping the function of a jury, and it should not be binding unless accepted by both parties. Either should have the absolute right if he chooses to risk another jury trial on the amount of the damages.

547 So.2d at 1157-58 (emphasis in original) (footnote omitted).

¶ 9. Because the trial judge did not offer the plaintiffs the option of rejecting the additur and demanding a new trial as to damages, the Court reversed the trial court judgment and remanded this case for the trial judge to then consider whether to order a new trial on damages or an addi-tur, and in the event that the trial court ordered an additur, “either party may accept or reject it and have a new trial on the issues of the amount of damages.” Id. at 1158.

¶ 10. With our decision in Parker, we supposedly laid to rest the procedural quagmire which had evolved over time concerning the issues of additur/remitti-tur — new trial as to damages — which party was offered the election of accepting or rejecting or demanding a new trial on damages — and the like. Because trial court intervention via the invocation of an additur or remittitur was nothing less than a judicial usurpation of the function of a jury, this Court in Parker found that a court-ordered additur or remittitur, as the case might be, would be binding only if accepted by both parties, and that either party should have the right of choosing “to risk another jury trial on the amount of damages.” Id.

¶ 11. Only three years later, we once again addressed this issue in Odom v. Roberts, 606 So.2d 114 (Miss.1992) (Roberts). In this personal injury action, the trial judge directed a verdict as to liability against the defendant and in favor of the plaintiffs; however, the jury returned verdicts awarding only nominal damages ($336.25 for the wife, and $240.75 for the husband). Id. at 117. The trial judge overruled all post-trial motions, including the plaintiffs’ motion for an additur, or alternatively, for a new trial on damages. Id. On appeal, this Court granted extremely modest additurs ($21.55 for the wife, and $10.95 for the husband), and directed that the plaintiffs were entitled to a new trial in the event the defendant refused to accept the additur. Id. at 118. However, we went further. In discussing Altom and Parker, we ultimately retreated from our position taken in Parker, and returned to the position taken by the Court in Altom. Id. at 121-22. In fact, in Roberts, we acknowledged that Parker was decided in an opinion which “fail[ed] to encounter Altom v. Wood, much less overrule it.” Id. at 119. In reaffirming the view taken in Altom and expressly overruling Parker; this Court stated:

The correct rule is that stated in Altom v. Wood. By way of amplification, in the case of a remittitur, that is, where the trial court has granted a remittitur, or, in the alternative, a new trial on the issue of damages only, the plaintiff only may elect (1) to reject the remittitur and have the case retried on the issue of damages only, (2) to appeal to this court on grounds the circuit court should not have granted the remittitur at all, or, alternatively, the remittitur granted was legally excessive, or, (3) to accept the remittitur. In such a case the defendant’s only procedural avenue is that it may (cross) appeal to this court arguing that the trial court abused its discretion and that the remittitur was legally inadequate.
Where the trial court has granted an additur, or, in the alternative, a new trial on the issues of damages only, the defendant only may elect (1) to reject the additur and have the case retried on the issue of damages only, (2) to appeal to this court on grounds the circuit court should not have granted the additur at all, or alternatively, the additur granted was legally excessive, or, (3) to accept the additur and pay the judgment. The plaintiff can only (cross) appeal to this court arguing that the trial court abused its discretion and that the additur is legally inadequate.
Where the trial court has denied a re-mittitur, the defendant may appeal to this court on grounds the trial court abused its discretion in failing to order the remittitur and, if he can convince the court on that score, may argue that the damage award be reduced to such amount as would no longer be contrary to the overwhelming weight of credible evidence. If the defendant should be successful, to any extent, the plaintiff would then have the option of accepting the remittitur or going to trial again on the issue of damages only. Conversely, where, as here, the trial court has denied a plaintiffs motion for an additur, the plaintiff may appeal on grounds that the trial court had abused its discretion in failing to order an additur, whereupon it becomes incumbent upon this court, if it finds the trial court did abuse its discretion, to order an additur up to the point where the verdict is no longer so low that it is contrary to the overwhelming weight of the credible evidence. This we have done on the appeal of Teena and Leonard Odom. And it follows from what we have said, the right to accept the additur (and pay the judgment), on pain of a new trial on damages only, lies exclusively with the defendant, Albert V. Roberts.

Id. at 121-22.

¶ 12. As thus can be noted from a careful reading of Roberts, the Court not only returned to the procedure discussed in Altom concerning the appropriate action to be taken upon a grant or denial of an additur or remittitur, but likewise offered guidance to the trial judges concerning the appropriate amounts to be awarded upon granting an additur or remittitur. Id. at 120, 122. See Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1163 (Miss.1992). We stated that when determining the amount of the additur to be awarded, the trial judge (or the appellate court) “should aim at the amount of additur, which when added to the original verdict, would yield the lowest verdict that could withstand a motion for additur, given the evidence.” Roberts, 606 So.2d at 120. Conversely, one can deduce that (by applying similar logic) when the trial or appellate court is attempting to arrive at the appropriate amount of a remittitur, it should be done by arriving at the amount of the remitti-tur, which when reduced from the original verdict, would yield the highest verdict which could withstand a motion for remitti-tur, “given the evidence.”

¶ 13. We followed Roberts, when we again addressed the additur/remittitur issue in Hamilton v. Hammons, 792 So.2d 956 (Miss.2001). This Court stated:

Where the trial court has granted an additur or, in the alternative, a new trial on the issue of damages only, the defendant only may elect (1) to reject the additur and have the case retried on the issue of damages only, (2) to appeal to this court on grounds the circuit court should not have granted the additur at all, or alternatively, the additur granted was legally excessive, or, (3) to accept the additur and pay the judgment. The plaintiff can only (cross) appeal to this court arguing that the trial court abused its discretion and that the additur is legally inadequate.

Id. at 966 (quoting Roberts, 606 So.2d at 121 (emphasis added)). We have also stated that once the trial court grants the additur, “the defendant has thirty days from the date of entry of the order granting the additur to accept the additur, reject the additur and request a new trial, or file an appeal to this Court.” Estate of Berry v. Dahlem, 741 So.2d 932, 935 (Miss.1999).

¶ 14. Therefore, with all of this having been said, we certainly find no fault with the language incorporated into the Court of Appeals’ opinion in today’s case, where the Court of Appeals dutifully considered and applied the principles espoused by this Court in Roberts. However, upon reflection, this Court has come to the stark realization that the practical effect of our decision in Roberts is grossly unfair to plaintiffs and defendants. Consider this example:

A plaintiff has a case reasonably valued at $50,000. The jury returns a verdict for $1,000. The trial judge grants an additur of $1,000.

Thus, in applying Roberts to this factual scenario, only the defendant would have the option of rejecting the additur and electing to demand a new trial on damages; or appealing on the grounds that the trial court abused its discretion in granting the additur, or, alternatively, that the addi-tur was excessive; or, accepting the additur and paying the judgment. Roberts, 606 So.2d at 121. What rational, lucid defendant would not promptly pay the $2,000, and be done with the case, knowing that the defendant had been given a “gift” by the jury and the trial judge, and the plaintiff could do absolutely nothing about it? Additionally, a fair interpretation of Roberts and its progeny, Hamilton, is that plaintiffs and defendants, depending on the circumstances, could be forever foreclosed from appealing from a trial court’s denial of a motion for a new trial which had been filed on the grounds that the jury verdict (including the verdict as to damages), was contrary to the substantial weight of the evidence. See, e.g., Jesco, Inc. v. Whitehead, 451 So.2d 706, 714 (Miss.1984) (Robertson, J., specially concurring). See also Miss. R. Civ. P. 59(a). Surely, this was not the intended consequences of our decision in Roberts.

¶ 15. Up to this point we have failed to mention one significant occurrence surrounding our decision in Roberts, and that is the fact that Justice Banks wrote a succinct, yet eloquent dissent, which we set out here, verbatim:

Because I believe that we got it right in Odom, by and through Odom v. Parker, 547 So.2d 1155 (Miss.1989), I dissent.
I do not agree that a judicial award of the least or the most that the offended litigant would have been awarded or suffered at the hands of a fair-minded jury-cures the verdict rendered by a jury, where such verdict is so out of accord with the evidence that it can be said to evince bias and prejudice on the part of the jury.
The majority suggests that the “bias and prejudice” standard is just another way of saying that the verdict is erroneous as a matter of law and that all that is required is a judgment notwithstanding the verdict of sorts. That is, enough should be added or subtracted from the jury’s verdict to make it legal and no more. In this way, it is said, the party with the benefit of the illegal verdict has its right to a jury trial protected.
In my view, both sides have a right to a jury trial and a fair trial at that. A verdict which, as to damages, is so [dissonant] with the evidence as to evince bias and prejudice should be treated as a nullity with no party having rights therein. The trial court’s suggestions as to adjustments to damages, in the form of an additur or remittitur, should be taken as just that, suggestions which the parties may accept in lieu of new trial. Such a procedure would promote a suggested award which is fairly responsive to the evidence rather than one targeted to a minimum sustainable verdict.

Id. at 122 (Banks, J., dissenting). Upon reflection, we today embrace and adopt in toto Justice Banks’s dissent in Roberts. Finding, like Justice Banks, that “we got it right” in Parker, we now expressly overrule RobeHs, Altom, and all other cases which might be in conflict with today’s decision, and we reinstate and affirm our holding in Parker.

¶ 16. We thus state, hopefully with clarity, the procedure to be hereafter followed by the trial bench and bar when confronted with the post-trial issues of ad-diturs and remittiturs. Any party aggrieved by the amount of damages awarded pursuant to a jury verdict may file a motion for an additur or remittitur. Miss. Code Ann. § 11-1-55. If the trial judge grants a motion for an additur or remitti-tur, such grant of an additur or remittitur shall take effect only if accepted by all the parties. If all the parties do not agree to the additur or the remittitur, then each party shall have the right to either demand a new trial on damages, or appeal the order asserting an abuse of discretion on the part of the trial judge. Likewise, if a trial judge determines that the grant of an additur or remittitur is required, then in arriving at the appropriate amount of the additur or remittitur, the trial judge should not be bound by the restrictions which we have heretofore placed on trial judges by having to consider the amount which “should be added or subtracted from the jury’s verdict to make it legal and no more.” Roberts, 606 So.2d at 122 (Banks, J., dissenting). See also Roberts, 606 So.2d at 120. By eliminating these so-called guidelines for trial judges to utilize in attempting to arrive at the appropriate amount of the additur or remittitur, this unbridled procedure “would promote a suggested award which is fairly responsive to the evidence rather than one targeted to a minimum [or maximum] sustainable verdict.” Id. at 122 (Banks, J., dissenting). Finally, this rule announced today does not impinge upon a party’s right to appeal the jury verdict and trial court judgment on the issue of liability. Hopefully, this newly-established procedure will provide all parties with a level playing field in dealing with issues of additurs and remittiturs.

¶ 17. With all of this having been said, we now turn to the relevant facts of today’s case. The record reflects that at the hearing on post-trial motions, the trial judge ruled from the bench by granting, inter alia, an additur of $20,000 to Marilyn and an additur of $10,000 to Eugene on his loss of consortium claim. As noted by the Court of Appeals, at this point, the record reveals the following colloquy between the trial judge and counsel:

[DEDEAUXES’ ATTORNEY]: Your Honor, procedurally if the — if I understand it correctly, the plaintiffs have to accept the additur or take it up on appeal?
THE COURT: Actually I think it’s up to the defense. The defense has the option of accepting it or not.
[PELLERIN’S ATTORNEY]: I believe that’s correct, your Honor. But if I don’t accept the additur, do we do a new trial on damages?
THE COURT: I think that’s what the law is. I think the option is up to the defense, that they accept or not. And if they do not accept, I think we would have a new trial on damages. I think the law used to give the plaintiff the option, but it’s been changed quite sometime ago.
[PELLERIN’S ATTORNEY]: I believe, as you say, I believe it is my option.
THE COURT: I know under the current case law it’s the option of the defense to accept or not. So get the judgment and get it to the Court for entry. And then, Mr. Miller [Pellerin’s attorney], you can advise Ms. Lee [Dedeaux-es’ attorney] what your client’s position is. All right. Y’all have a good day. Thank you.

947 So.2d at 963, 2005 Miss.App. LEXIS 442, **6-7, ¶ 10. Although the record clearly reveals that the trial court envisioned that there would be a new trial as to damages only, in the event that Pellerin did not accept the additur, the final judgment did not reflect that the denial of the Dedeauxes’ motion for a new trial as to damages was conditioned on Pellerin’s acceptance of the additur. The final judgment merely stated that the trial court “overrules the Motion for a New Trial.” However, in the end, this omission in the final judgment is of no moment based on our disposition of today’s case.

¶ 18. The learned trial judge in today’s case likewise dutifully followed the then-existing case law on additurs by offering only to Pellerin the option of whether to accept the additur or demand a new trial on damages. However, based on our pronouncement in today’s case, and for the reasons herein stated, we find that the Dedeauxes likewise were entitled to have the same option of either accepting the additur or demanding a new trial as to damages. Had this option been offered to all the parties and all parties agreed to the additur, the case would have ended. On the other hand, if any of the parties opted for a new trial on damages, then such a trial as a matter of right should have been available to any party so requesting the new trial. In their post-trial motion, the Dedeauxes clearly requested, inter alia, a new trial as to damages. Because the Dedeauxes were procedurally barred from protesting the legal sufficiency of the addi-tur and instead demanding a new trial, we find this issue to have merit.

CONCLUSION

¶ 19. For the reasons stated, we affirm the judgment of the Court of Appeals; therefore, the trial court judgment is reversed, and this case is remanded to the Circuit Court for the First Judicial District of Harrison County for a new trial as to damages only.

¶ 20. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY IS REVERSED, AND THIS CASE IS REMANDED TO THE CIRCUIT COURT FOR A NEW TRIAL AS TO DAMAGES.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.

      . Miss.Code Ann. § 11-1-55 (Rev.2002) states:
      The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an additur or remit-titur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

      . Actually, Miss.Code Ann. § 11-1-55 provides, inter alia, that an additur or remittitur may be ordered by the trial judge upon a finding that the jury verdict as to damages “was influenced by bias, prejudice, or passion, or that the damages .awarded were contrary to the overwhelming weight of credible evidence.”

      . Specifically, on this issue, this Court stated, “[Parker] stands overruled to the extent that it may be seen in conflict with what we decided today, and the same holds for any prior decisions intimating a view contrary to today’s.” 606 So.2d at 122.

      . Certainly, on the other hand, the trial court's denial of an additur or remittitur would be subject to appellate review via an assignment of error asserting that the jury verdict (including the verdict as to damages) was contrary to the substantial weight of the evidence.