author: CARLSON, Justice, for the Court.

text:
    In re Susan C. SMITH.
    No. 2005-CP-00415-SCT.
    Supreme Court of Mississippi.
    April 20, 2006.

      Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   CARLSON, Justice, for the Court.

¶ 1. Today’s case involves a pro se appeal from the incarceration of an attorney for direct criminal contempt. The attorney was representing a mother and her daughter in the Chancery Court for the First Judicial District of Carroll County, in Carrollton, in a divorce and a paternity suit, respectively, when the attorney was held in direct criminal contempt by the chancellor for comments she made in open court. The events that led up to the comments are more complex, but the essential fact to this appeal is that the attorney openly insulted the chancery court during a proceeding in which she appeared in her professional capacity. She now appeals the order of the chancery court finding her in contempt. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. There is but one principal fact to this appeal: an attorney, Susan C. Smith, in open court, on February 16, 2005, made disparaging remarks to the court by saying, inter alia, “I believe that the actions of this Court have been so reprehensible as to disgust any court,” and afterward, she refused to genuinely apologize, despite being given multiple opportunities by the court to do so. (Emphasis in original). Because of this comment by the attorney, as well as her other actions that day, the chancellor found Smith in direct criminal contempt and incarcerated her for five days. A more detailed factual background is needed to explain exactly what actions of the chancery court Smith found to be reprehensible and disgusting.

¶ 3. When these events transpired, Smith, a Greenville attorney, had been representing a defendant in a divorce, and the defendant’s son in a paternity action. Smith was present in chancery court on February 16, 2005, for a contempt hearing concerning her client. This hearing was actually the second of two hearings in the cases in which Smith was one of the attorneys. The first hearing, a temporary hearing on matters related to child custody, had taken place on February 4, 2005, and neither Smith nor her clients were present. The husband of Smith’s client in the divorce action had filed a complaint for divorce a few months before the first hearing. At the time the divorce action was commenced, process was issued by the clerk for service upon Smith’s client, who was directed to appear in court on January 25, 2005, for a hearing on the issue of temporary child custody. Smith’s client was served with the summons on January 12, 2005. Smith made an appearance in the case representing the defendant. Both attorneys and the chancellor, through a telephone conference, later agreed to reschedule the hearing for February 4, 2005. Smith claims she was unable to attend the February 4th hearing because her mother had been admitted into the hospital shortly before she was to leave for the hearing. Smith argued at the second hearing that her mother was admitted to the hospital the day before the hearing scheduled for February 4th. Smith’s paralegal apparently contacted the court by phone shortly before the end of the work day on February 3rd to request a continuance. The chancellor told this person she should contact opposing counsel, and that he (the chancellor) required more information before considering the request for a continuance. On the other hand, we find in the record, including an affidavit submitted by Smith, evidence that Smith’s mother was actually admitted to the hospital on February 2nd. Smith never formally filed a motion for a continuance with the chancery court, rather she simply had a copy of her mother’s hospital admission papers faxed to the court.

¶ 4. During the hearing of February 4, 2005, in the absence of Smith and her client, the chancellor granted temporary child custody to the husband because of concerns the court had after hearing testimony from the husband about the child’s welfare during the times the child was with the mother. Out of concern for the child’s physical safety, the chancellor also issued a handwritten order the same day that the Carroll County Department of Human Services go to the child’s home, investigate the child’s circumstances, and, if warranted, take the child into custody. The husband, who owned the house, authorized the law enforcement officials to do whatever necessary to enter the home to obtain the child. The mother apparently refused to surrender custody of the child to the Carroll County Sheriff, so the chancellor, believing the child to be in danger, issued an additional order on that same day, this time ordering the Mississippi Highway Patrol to aid the sheriffs department in procuring custody of the child. Evidently, once the law enforcement officials gained entry into the home, they found the mother without the child and arrested the mother on charges of reckless endangerment and kidnaping. The mother was later released on bond. Because the ■ mother refused to obey the court’s order by not surrendering the child, or even disclosing the child’s location, the husband filed a complaint for contempt against his wife, Smith’s client. Process was issued and served on the mother to appear in court on February 16, 2005, for the contempt hearing. The mother, Smith’s client, likewise did not attend this second hearing. It was at this second hearing that Smith was found to be in direct criminal contempt for the statements she made to the chancellor.

¶ 5. Exactly what had happened after the chancellor issued his several orders following the February 4th hearing is not entirely clear. Apparently Smith, despite being unable to travel' to court on the day of February 4, 2005, had maintained telephone contact that day with both her client and the court, while law enforcement officials surrounded the mother’s home in their attempts to locate the child. The chancellor understood Smith as trying to procure an agreement that her client would come out of the home if she could be guaranteed that she would not be arrested by the law enforcement officials. When the court demanded to know the location of the child, Smith was non-responsive and evasive. Smith admits these facts in her brief to this Court. Smith also admits that she understood the chancellor to believe she was interfering in a police situation and was thus endangering her license to practice law. The chancellor also warned Smith that the consequences may be even more severe if she were helping to hide the child. Later, the mother was arrested on charges of reckless endangerment and kidnaping, but she was thereafter bonded out of jail by her parents. After Smith’s client was released, Smith set a time frame within which her client was to surrender the child, but Smith’s client did not honor this time frame. Smith claims she has had no dealings whatsoever with her client since that time. Smith later filed a motion to withdraw as counsel. The chancellor denied this motion to withdraw on February 11, 2005. Smith claims in her brief that her client then retained attorney Dennis Baker as counsel, which fact was verified by opposing counsel at the second hearing, wherein opposing counsel revealed to the court discussions with Baker in attempts to come to an agreement with Baker. Apparently, Baker later told opposing counsel that he (Baker) was not counsel of record, and that he was not going to represent the mother or have anything further to do with her after instructing her to return the child. It appears from the record that the child was evidently returned the day before the contempt hearing.

¶ 6. Smith would later claim that her first notice that she was still required to attend the February 16th hearing was around 5:00 p.m., on the day before the contempt hearing, when the chancellor personally telephoned Smith. However, in her brief, Smith admits that earlier in the day on February 15th, she called the court herself and learned the hearing was scheduled for the next day, despite the personal notice served on her client. Smith also admits in her brief that she received notice of the denial of her motion to withdraw as counsel on February 14th, two days before the contempt hearing of her client. Smith claims that during their telephone conversation, the chancellor lost patience with Smith and told her she had better be in court the next day or he would send the sheriff to physically bring her to court. Smith then prepared and filed an answer to the contempt petition against her client and a motion for the chancellor to recuse himself. At the beginning of the contempt hearing the next day, Smith asked to have her recusal motion heard first.

¶ 7. At the outset of the second hearing, Smith stated to the court that her appearance there was under protest and threat of coercion. After the chancellor gave Smith an opportunity to respond to her opposing counsel when she presented her motion for recusal, the following exchange took place.

BY THE COURT: All right. Ms. Smith, you may respond, and I understand your client is not here today.
BY MS. SMITH: Your Honor, my first response, if it please the Court—
BY THE COURT: (Interposing) Is your client here today?
BY MS. SMITH: I do not see her present in the Courtroom.
BY THE COURT: Do you know where she is?
BY MS. SMITH: No, sir.
BY THE COURT: Have you had communication with her today?
BY MS. SMITH: No, sir.
BY THE COURT: Did you have communication with her yesterday?
BY MS. SMITH: No, sir.
BY THE COURT: Was she aware she’s supposed to be in Court today?
BY MS. SMITH: To the best of my knowledge, no.
BY THE COURT: Was she served with a summons?
BY MS. SMITH: I’ve never seen one.
BY THE COURT: My information is, she was served and the return is in the documents in the Court file.
BY MR. GWIN: Yes, sir.
BY MS. SMITH: Mr. Gwin has had the Court file. I have not had a privilege to see it.
BY THE COURT: Okay. But, at any rate, she’s not here today. You may continue.
BY MS. SMITH: Thank you, Your Honor. As Your Honor is aware, I have filed a motion for a change of venue within the motion for recusal. With all due respect to the Court, I believe that the actions of this Court have been so reprehensible as to disgust any Court, and I ask that this Court be changed, either the Judge, or at least the venue to change, and that is before the Court today.
BY THE COURT: I’ll rule on that now. I want you to put on some proof to that effect.
BY MS. SMITH: Your Honor, my client is not here today; however, I believe that the Court records do, in fact, show that there have been handwritten orders by this Court where this Court, with, I’m told, thirty years experience on the Bench knew very well that he did not designate this child as endangered; he did not have probable cause in order to enter a house to demand that that child be removed from the house; he had no reason to believe that that child was in the house, because I assured Mr. Gwin, and I believe I assured Your Hon- or when we were on the phone with what we all believed to be a hostage situation, that that child was not there. I believe that Your Honor circumvented the law that exists by asking DHS to do his work for him. DHS was originally instructed to go out, but it was with the police department. When you involved a police department, you created a situation in which there was a custody; not custody of the child, I’m talking about custody of an adult, preventing that adult from leaving, preventing that adult from having the freedoms that we have here in the United States. With all due respect, this Court ignored the basic freedom given to any person, and this is a Court of equity. This Court took testimony, as exampled by the defense— excuse me, by the Plaintiffs attorney today. Heard testimony, knowing full well that I could not be here on February 4th. In a private conference with Your Honor over the telephone, I will state before this Court as an officer of the Court that I was discouraged; that I felt threatened; that I believed that Your Honor was not only sarcastic, but failed to recognize that I had a member of my family in the hospital, failed to take that into consideration, and acted on his own as the orders that have already been established by this Court start out to say. On the Court’s own motion that you had nothing more than allegations before you. The child was never ruled endangered. The child was never ruled as in need of supervision. You didn’t put that in the order. I believe that by further going on in later orders — in fact, I think there were five within one day; I’ve never seen that. Now, maybe in thirty years, I’ll be able to say I’ve seen it more than once, but with all due respect to the Court, things were transpiring so quickly and spiraling based upon what Your Honor started.
That child wasn’t found in the house. That child was never in danger in that house. Kristie Hunt had every right to be in that house. It was her marital residence. She didn’t have to come out. This man is a reserve officer. He knows the laws. He’d better know the law of probable cause. He also knows there was a domestic violence charge against him. Conviction of it means he doesn’t get to carry a firearm anymore. He doesn’t even get to go hunting anymore. He had a lot to lose. So, based on his sole testimony alone, Your Honor still didn’t decide that that child was an endangered child, and you sent the DHS out to investigate. DHS, I believe, faced the same intimidation that I’ve faced in order to be here today. They have to come in here and deal with you on a regular basis. If you send them out there and you say, “Go check; I’m concerned about that child,” they’re going to come back and they’re going to tell you, “I’m concerned about that child.” And then we started the second spiral when DHS says they’re concerned about it. The sheriffs already out there. She’s not letting them into the house, and you gave the sheriff an order at that particular point to use all means necessary to enter a house? Believe it or not, the sheriff didn’t stand on that. The sheriff was at least smart enough to know what probable cause is, and he knew he didn’t have it, so he came back to you and he said, “Write an order, Judge,” and in one of the orders, it says, “I’ve been asked by the sheriff ...” You didn’t say, even then, that you found the child to be in danger. You had no probable cause to force that woman to exit her house. She didn’t have custody of the child. She didn’t have physical possession of that child at that point.
I believe that the further orders in which Your Honor has just bypassed the Court proceedings and designated this man as the father shows what you told me in conversations and what I would profess before this Court, as an officer of the Court, that you have already decided this case; that you have already decided that not only is he the father, but he’s going to get permanent custody. That’s good for him.
Kristie came to me with the thought that she could not get a good hearing here, a fair hearing here, and I took it with a grain of salt, but I should’ve realized that someone traveling from Carroll County all the way over to Washington County had a reason. There is a child involved here. This Court can be overturned at a later time. The Supreme Court has done that. Even where the father has held custody of the child for three years, the Supreme Court has, in fact, gone back and overturned situations saying it was wrong to begin with. We’re going to make the Chancellor go back and look at it again, and the Chancellor, at that particular point, said, “Okay. I’m giving the child to the mom.” Well, then, Dad took it up to the Mississippi Supreme Court at that particular point, and the Supreme Court said, “Well, we didn’t say that the Chancellor shouldn’t recognize that those next three years were spent with Dad.” In the meanwhile, the child’s with the mom for a considerable period of time. I don’t want that to happen here. I don’t believe that an eleven-month-old child should be tossed back and forth while the judiciary is deciding the issues that have already come before it.
Now, I’ve never met you before, I have no reason to question, before this case, but as an officer of the Court, I know that I was threatened. I know that when we were in a hostage — what we all believed to be a hostage situation caused by Your Honor that I was threatened by Your Honor that if you did not tell me where that child was ... — if I did not tell you where that child was, which I had no knowledge of at that point and couldn’t, that you were going to do everything in your power to get rid of my Bar license, to put me in jail. I’m trying to negotiate when a SWAT team’s outside! I did not find that to be appropriate. You got to the point later on in saying that conversation — this whole conversation is inappropriate. Well, it was, but the point was, a life was at stake, and it wasn’t the child’s.
I’m concerned at the precedent this sets, so concerned that I realize it’s confidential, but that I have already contacted the Mississippi Commission on Judicial Performance. Now, they’re the ones who told me Your Honor’s retiring, and the Internet confirmed it, but I can’t believe that you’ve done this. I cannot believe that.
BY THE COURT: Ms. Smith, I’m going to give you an opportunity to withdraw and apologize for what you’ve said to the Court today.
BY MS. SMITH: Sir, I stand on what I have presented to the Court.
BY THE COURT: Okay. This is a direct contempt hearing. What you say about the Court, many of those facts are untrue. They’re downright falsehoods of what the Court has said and done. Your attitude has continually been contemptuous of the Court on the phone. Your attitude today is contemptuous of the Court. Do you have anything to say in your defense, because this is a direct contempt hearing, other than what you’ve said?
BY MS. SMITH: I regret that Your Honor has perceived my testimony before this Court in that manner.
BY THE COURT: Okay. The Court finds you in contempt, orders that you be directly incarcerated for five (5) days in jail, and you’re in the custody of the sheriff.

¶ 8. Smith was placed in the county jail for two nights until a post-contempt status hearing was held on February 18, 2005, at which time the chancellor gave Smith an opportunity to apologize, which she refused to do in what the chancellor perceived to be a genuine and sincere manner. Afterward, Smith completed serving the three days remaining on her sentence. The chancellor, on his own motion, later recused himself. Smith later filed a motion for relief from judgment with the chancery court after learning of the recu-sal, but also after filing notice of the appeal to this Court. Smith, representing herself, now appeals the conviction of direct criminal contempt. Smith raises five issues, some of which we find to be irrelevant, and none of which have any merit.

DISCUSSION

¶ 9. When this Court reviews cases of criminal contempt, the standard of review is ab initio. Brame v. State, 755 So.2d 1090, 1093-94 (Miss.2000) (citing Terry v. State, 718 So.2d 1097, 1103 (Miss. 1998)). “[T]his Court proceeds ab initio to determine whether the record proves the appellant guilty of contempt beyond a reasonable doubt.” Purvis v. Purvis, 657 So.2d 794, 797 (Miss.1994) (citing Lamar v. State, 607 So.2d 129, 130 (Miss.1992)). The burden of proof to establish that contempt has been committed is on the party asserting that contemptuous conduct has occurred. In Interest of Holmes, 355 So.2d 677, 679 (Miss.1978). In a proceeding for criminal contempt, evidence of guilt must be established beyond a reasonable doubt. Id.

I. WHETHER QUESTIONS OF JURISDICTION OVER SMITH’S CLIENT OR THE ACTIONS OF PLAINTIFF’S COUNSEL EXONERATE SMITH OF HER ACTIONS.

¶ 10. Smith attempts to frame the first three issues as assignments of error on the part of the chancellor concerning jurisdiction, and on the part of her opposing counsel for not informing the trial court of her personal situation, or of the possibility of new counsel. Smith first claims the chancery court had no jurisdiction over Smith’s client because of the possibility of improper service, framing the issue this way: “[wjhether the court had jurisdiction over the defendant such that any hearing temporary or otherwise would be held.” In her second assignment of error, Smith in essence claims that her opposing counsel was engaged in ex parte communications with the chancellor to gain a tactical advantage, framing the issue this way: “[wjhether plaintiffs counsel was obligated [to] act with candor to the tribunal and at all times whether such violation of same fueled the fire for the events that transpired on February 16, 2005.” In her third assignment of error, Smith claims her opposing counsel was at fault for not disclosing to the court information about Baker, the attorney who supposedly replaced Smith, framing the issue this way: “[w]hether plaintiffs counsel was obligated to immediately advise the court and counsel of record for the defendant that the defendant had sought, hired and received advise (sic) from new attorney. Ms. Smith could not have been representing the defendant at the time the court demanded Ms. Smith’s presence, thus the plaintiffs attorney had the last opportunity to avoid the events which transpired on February 16, 2005.”

¶ 11. Each of these “issues” lacks merit, clarity, and citations to supporting case law. Smith’s few citations to the Mississippi Professional Rules of Conduct are irrelevant. “Failure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Byrom v. State, 863 So.2d 836, 863 (Miss.2003) (citing Simmons v. State, 805 So.2d 452, 487 (Miss.2001)). “This Court has held that it is the duty of an appellant to provide authority and support of an assignment. If a party does not provide this support this Court is under no duty to consider assignments of error when no authority is cited.” Hoops v. State, 681 So.2d 521, 526 (Miss.1996) (internal citations omitted). Attempting to decipher exactly which errors Smith argues occurred at the trial level is difficult. First, questions of jurisdiction over her client and proper service of process on her client are entirely irrelevant in this case. The matter before us now on appeal are Smith’s charges of direct criminal contempt of court. Smith was in no way relieved of her duty as an attorney to be respectful to the court by questions of jurisdiction or proper service of process. As to Smith’s second and third assignments of error, opposing counsel in this case was simply not at fault for failing to disclose any pertinent fact to the chancellor. The facts that Smith’s mother had been admitted to the hospital and that her client had contacted a new attorney were already known to the court. While it is true that Smith filed a motion to withdraw as counsel of record, it is also true that her motion to withdraw was denied by the chancellor. Smith thus continued to be the attorney of record representing the mother, and Smith should not have assumed otherwise since her motion to withdraw was denied. In any case, Smith, as an officer of the court, was never given license to stray from her charge and ethical responsibilities as a lawyer. The questions of whether the facts Smith considered pertinent to her first three issues were known by the trial court, or whether her opposing attorney was obligated to disclose these facts to the chancellor have no bearing whatsoever on the issues presented by this appeal. Thus, these “issues” are without merit.

II. WHETHER THE CHANCELLOR’S FINDING OF SMITH’S CRIMINAL CONTEMPT SHOULD HAVE BEEN CONSTRUCTIVE AND NOT DIRECT, AFFORDING HER MORE PROCEDURAL SAFEGUARDS.

¶ 12. Smith frames her next two assignments of error in this way: “[w]hether the court failed to provide procedural due process to Ms. Smith, the defendant’s counsel when Ms. Smith was charged and convicted of direct criminal contempt” and “[w]hether the trial judge erred when he found defense counsel in direct contempt of court.” After attempting to glean a coherent argument from Smith’s briefs, we have determined that Smith evidently argues that the judge actually found her in constructive contempt of court, and not direct contempt of court, because his basis for doing so seems to include her actions which occurred outside the presence of the court. If this were the case, Smith would indeed be due more procedural safeguards than she was given in this case.

¶ 13. The analysis for determining the type of contempt before the Court was set out by this Court in Cooper Tire & Rubber Co. v. McGill, 890 So.2d 859, 868-69 (Miss.2004). Contempt convictions are to be carefully examined. Melvin v. State, 210 Miss. 132, 48 So.2d 856 (1950). “Generally speaking, contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than we are.” Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). The first question is whether the contempt is civil or criminal in nature, which we determine by looking at the primary purpose of the contempt order. Cooper Tire, 890 So.2d at 868. “If the primary purpose of the contempt order is to enforce the rights of private party litigants or enforce compliance with a court order, then the contempt is civil. The contemnor may be jailed or fined for civil contempt; however, the con-temnor must be relieved of the penalty when he performs the required act.” Id. (citing Purvis v. Purvis, 657 So.2d 794, 796-97 (Miss.1994)). In a case of civil contempt, we would be bound by the manifest error rule. Id. If, however, the order is designed to punish the contemnor for disobedience of a court order, the contempt is criminal and punishment does not terminate upon compliance with the court order. Common Cause of Miss. v. Smith, 548 So.2d 412, 415-16 (Miss.1989). A judge issues a citation for criminal contempt to vindicate the dignity and authority of the court. This is proper only when the con-temnor has wilfully, deliberately and contumaciously ignored the court, or the court’s directive. Premeaux v. Smith, 569 So.2d 681, 684 (Miss.1990) (citing Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987)). “This Court is not bound by the manifest error rule when the appeal involves a conviction of criminal contempt. Instead, this Court proceeds ab initio to determine whether the record proves the appellant guilty of contempt beyond a reasonable doubt.” Purvis, 657 So.2d at 797. See also Lamar, 607 So.2d at 130; Premeaux, 569 So.2d at 683-84; Miss.Code Ann. § 11-51-11 (Supp.1994) (general statute pertaining to contempt appeals). In this case, the contempt was clearly criminal, as the chancellor’s order was to punish Smith for her words and to vindicate the dignity and authority of the court, not to enforce the rights of any of the litigants.

¶ 14. We further discussed the two forms of criminal contempt, direct and constructive, in In re Williamson, 838 So.2d 226 (Miss.2002).

Direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice. Punishment for direct contempt may be meted out instantly by the judge in whose presence the offensive conduct was committed ....
Unlike . direct contempt, constructive contempt involves actions which are committed outside the presence of the court ... In the case of constructive criminal contempt, we have held that defendants must be provided with procedural due process safeguards, including a specification of charges, notice, and a hearing.

Id. at 237 (citations omitted). Because the trial judge elaborated somewhat at the February 16 hearing about actions of Smith that occurred outside the court, Smith apparently argues now that she should have actually been charged with committing constructive, and not direct, criminal contempt. If Smith’s actions actually constituted constructive criminal contempt, her due process rights would guarantee her more than the immediate sentence she received, including a different judge to hear the contempt proceedings. “As noted, a person charged with constructive criminal contempt is afforded certain procedural safeguards. The citing judge must recuse himself from conducting the contempt proceedings involving the charges.” Cooper Tire, 890 So.2d at 869. “[I]t is necessary for that individual to be tried by another judge in cases of constructive contempt where the trial judge has substantial personal involvement in the prosecution.” In re Williamson, 838 So.2d at 238 (citing Terry v. State, 718 So.2d 1097 (Miss.1998)). However, this is not remotely close to being a case of constructive contempt; therefore, Smith was not due more than the hearing she received, and she was thus not denied any due process protections.

¶ 15. We have held that a charge of contempt of court consists of words spoken or acts done in the presence of the court which tend to embarrass the court or prevent the orderly administration of justice. Jordan v. State, 216 Miss. 542, 62 So.2d 886, 888 (1953). More specifically, direct criminal contempt “may consist of an open insult, in the presence of the court, to the person of the presiding justice, or a resistance to or defiance of power of the court.” Neely v. State, 98 Miss. 816, 54 So. 315, 316 (1911). No shortage of Mississippi case law exists defining direct criminal contempt as such. “[Disorderly conduct in the court room, or the use of violence, or threatening, or insulting language to the court, witnesses, or counsel is contempt.” Id. A contempt which is direct, in the immediate presence of the court, may be summarily punished without affidavit, pleading or formal charges. Varvaris v. State, 512 So.2d 886, 887-88 (Miss.1987). See also Miss. Bar v. Lumumba, 912 So.2d 871, 880-82 (Miss. 2005); Lumumba v. State, 868 So.2d 1018, 1020 (Miss.Ct.App.2003); Thomas v. State, 734 So.2d 339, 341 (Miss.Ct.App.1999). Finding another factual scenario that fits more squarely within the law than this one is hard to imagine. Smith’s openly disorderly conduct before the chancery court is clear. Smith used insulting language and was displaying both a resistance to, and a defiance of, the appropriate power and authority of the court. She chose to use words in the presence of the court which can easily be said to have a tendency,to embarrass or prevent the orderly administration of justice.

¶ 16. We do not doubt the existence of Smith’s passionate concern for her client or that Smith believed she was acting in the best interests of her client, notwithstanding that the chancellor disagreed with what the best interests of the child were. Smith acted as she did almost certainly because of what she perceived to be an unwarranted siege by law enforcement on February 4. Though this might have been cause for her immediate action on that day, her continued defiance and hostility toward the chancellor almost two weeks later clearly constitutes contempt. The chancellor’s finding her in contempt was based solely on her words and behavior at the February 16 hearing. The chancellor felt it necessary to provide some record of the relationship between Smith and the chancery court, as well as the behavior displayed by each in the events leading up to the hearing. Her words, after all, were describing the court’s actions and those events. However, the chancellor’s reasons for finding Smith in direct criminal contempt had little to do with the pre-hearing events, which at that point had essentially become irrelevant, but had everything to do with Smith’s actual words in open court referring to the court as reprehensible and disgusting. This was made even more clear on the post-contempt status hearing two days into Smith’s sentence, where the judge made it clear that the keys to the jailhouse door were in her hands, and that he would gladly release Smith from her sentence if she were willing to apologize to the court for those specific words.

BY THE COURT: You made a statement, something to this effect, addressed to the Court: “This Court has been so reprehensible as to disgust any Court.” You’re directly calling the Court reprehensible and disgusting. Do you apologize for that?
BY MS. SMITH: I believe that is language quoted with the Mississippi Supreme Court with which to address case law in—
BY THE COURT: (Interposing) Do you apologize?
BY MS. SMITH: Perhaps I did not have any authority—
BY THE COURT: (Interposing) Do you apologize?
BY MS. SMITH: In other circumstances, I might have used other words.
BY THE COURT: Do you apologize?
BY MS. SMITH: What is it you want me to apologize for?
BY THE COURT: I said for those words.
BY MS. SMITH: For those words. In other circumstances, I might have used other words.
BY THE COURT: Okay. Well, I think there’s no need to go further. I really wanted to let you out of there, ■ that confinement. I really did. I was hoping you’d have some change of heart, but I can’t see it.

¶ 17. As mentioned, Mississippi case law is clear that this court will conduct an ab initio review for an appeal of a criminal contempt conviction and determine “whether on the record, the contemptor (sic) is guilty beyond a reasonable doubt.” Premeaux v. Smith, 569 So.2d 681, 683-84 (Miss.1990). The transcripts of both hearings on February 16th and February 18th leave no room for doubt. Because the record unquestionably reveals, beyond a reasonable doubt, that Smith was guilty of direct criminal contempt, we find this issue to be without merit.

CONCLUSION

¶ 18. Finding no error in the chancellor’s judgment of direct criminal contempt entered against Susan C. Smith, we affirm the judgment of the Chancery Court for the First Judicial District of Carroll County-

¶ 19. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P JJ., EASLEY, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Some confusion existed as to whether the person who contacted the court was Smith's sister, working as her secretary. This has led Smith to point out more than once in her pleadings and her brief that she has no sister, but that her mother has worked in Smith’s office, and that the two are often confused as sisters.

      . Smith stated in her motion, "[u]nder Rule 1.16 of the ABA Modem (sic) Rules where representation has commenced a lawyer shall withdraw from the representation.” Mississippi Rule of Professional Conduct 1.16 prevents a lawyer’s representation of certain clients if one of three conditions exists. The rule also allows a lawyer to withdraw from representation, once it has commenced, under any of the same conditions. Smith never attempted to show those conditions, or even quote that portion of the rule.


source: Caselaw Access Project

license: Public Domain

text:
    RALPH WALKER, INC. v. Michael E. GALLAGHER.
    No. 2005-IA-00586-SCT.
    Supreme Court of Mississippi.
    April 20, 2006.

      Robert R. Stephenson, Jackson, attorneys for appellant.

      Wendy Sehenique Wilson, Willie T. Ab-ston, Jackson, attorneys for appellee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   CARLSON, Justice, for the Court.

¶ 1. This interlocutory appeal arises from a vehicular accident and comes before us after the trial judge denied a motion to dismiss filed by one of the defendants whose name was added to the action in the amended complaint. The parties present the question of whether the amended complaint, which was filed almost five years after the collision, would be time-barred by the three-year statute of limitations, when the original complaint was timely filed within the applicable three-year period. At issue is the relation-back doctrine under Rules 9(h) and 15(c) of the Mississippi Rules of Civil Procedure. Finding the trial court erred in denying the added defendant’s motion to dismiss we reverse and render judgment in favor of this added defendant.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. While driving in Jackson on May 18, 1999, Michael Gallagher was struck by an eighteen-wheeler tractor and trailer rig driven by Dwayne Anders, an employee of Randy Hunt Trucking, Inc., which was a corporation owned and operated by Randy Hunt. Anders allegedly ran a red light. Gallagher commenced suit in the Circuit Court for the First Judicial District of Hinds County on March 21, 2002, two years and ten months after the collision, but within the three-year statute of limitations. In his original complaint, which contained allegations of negligence, Gallagher named as defendants Dwayne An-ders, Randy Hunt, and Randy Hunt Trucking, Inc. During discovery, Gallagher became aware of the existence of Ralph Walker, Inc., which owned the trailer that Anders was pulling at the time of the accident. At that time, Anders was primarily hauling loads under Walker’s direction. Also, an oral agreement existed that Walker was to handle dispatching for the tractor truck operated by Anders and owned by Hunt Trucking, Inc., which received payment for those miles dispatched by Walker. Gallagher also learned through discovery that Anders was driving a load to Walker’s place of business at the time of the accident. On March 15, 2004, Gallagher filed a motion requesting the trial' court’s permission to file his first amended complaint, which would include Walker in the lawsuit. Circuit Judge To-mie T. Green granted Gallagher’s motion to amend the complaint, and on April 9, 2004, almost five years after the collision, Gallagher filed his first amended complaint, adding Ralph Walker, Inc. as a defendant. Walker later filed a motion to dismiss pursuant to the provisions of Miss. R. Civ. P. 12(b)(6), claiming that because the first amended complaint had been filed outside the three-year period prescribed by the applicable statute of limitations, it was time barred and should be dismissed. Gallagher responded by arguing that the amended complaint related back to the original complaint, thus tolling the statute of limitations, and that justice required that Gallagher be permitted to add Walker, because Gallagher did not know of Walker’s existence until late in the discovery process. Walker replied to that response by arguing that the relation-back doctrine under Rules 9 and 15 of the Mississippi Rules of Civil Procedure did not apply in this case. The trial judge denied Walker’s motion to dismiss without a written opinion or memorandum. The trial judge later dismissed, with prejudice, the claims against the other three defendants, noting they consented to the judgment due to the amicable settlements of their claims. After the trial court denied Walker’s motion to dismiss, Walker filed a motion for certification for interlocutory appeal, which the trial judge also denied. We granted this interlocutory appeal to resolve the issue of whether the claim against Walker was time-barred, because the amended complaint naming Walker was filed outside the three-year period prescribed by the applicable statute of limitations, namely Miss.Code Ann. § 15-1-49 (Rev.2003).

DISCUSSION

WHETHER AN AMENDED COMPLAINT FILED OUTSIDE THE THREE-YEAR STATUTE OF LIMITATIONS RELATES BACK TO THE ORIGINAL, TIMELY COMPLAINT WHEN NO PROOF OF NOTICE HAS BEEN SHOWN.

¶ 3. Although disputed in the briefs, there is no question that our standard of review in this case is de novo. An appellate court is to review de novo the grant, or denial, of a motion to dismiss for failure to state a claim. Webb v. DeSoto County, 843 So.2d 682, 684 (Miss.2003). Gallagher acknowledges this, but in doing so cites to a case where, after we stated the standard of review, we also said that the trial court has the discretion in deciding to grant or deny a motion to dismiss and that we will not reverse the trial court unless that discretion is abused. Nguyen v. Mississippi Valley Gas Co., 859 So.2d 971, 976-77 (Miss.2002). In making that observation, this Court relied on cases not entirely on point regarding motions to dismiss under Miss. R. Civ. P. 12(b)(6). Therefore, this citation by Gallagher is, at the very least, confusing.

¶ 4. First, we have explicitly stated that, in reviewing Rule 12(b)(6) motions to dismiss, we are actually not required to defer to the trial court’s judgment or ruling. Roberts v. New Albany Separate School Dist., 813 So.2d 729, 730-31 (Miss. 2002). Instead, we sit in the same position the trial court did. Id. Additionally, it is clear that our standard here is de novo, and not abuse of discretion. See, e.g., Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513 (Miss.2005); Roberts, 813 So.2d at 730-31; Arnona v. Smith, 749 So.2d 63, 65-66 (Miss.1999). A motion for dismissal under Miss. R. Civ. P. 12(b)(6) raises an issue of law, and we unquestionably review questions of law under a de novo standard of review. Lowe v. Lowndes County Bldg. Inspection Dept., 760 So.2d 711, 712 (Miss.2000). See also Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999); Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). We have said, “Notwithstanding our respect for and deference to the trial judge, on matters of law it is our job to get it right. That the trial judge may have come close is not good enough.” UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So.2d 746, 754 (Miss.1987). Under a de novo standard of review, we will affirm only if the moving party can show beyond doubt that the plaintiff failed “to state a claim upon which relief can be granted.” Miss. R. Civ. P. 12(b)(6). In order for us to affirm a grant, or reverse a denial, of a Rule 12(b)(6) motion to dismiss, it must be such that no set of facts would entitle the opposing party to relief. Lowe, 760 So.2d at 712.

¶5. This case centers around the relation back of amendments to pleadings under Miss. R. Civ. P. 15(c). Rule 15(a) allows a party to amend a pleading subject to certain timeliness requirements, or otherwise, “by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.” Miss. R. Civ. P. 15(a). An amended pleading which is changing the party against whom a claim is asserted relates back to the date of the original pleading under section (c) when certain requirements are met. Miss. R. Civ. P. 15(c). . Here the pleading being amended is the complaint, and the party against whom the claim is asserted is Walker, the newly-named defendant.

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. Am amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not-be prejudiced in maintaining the party’s defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Am amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

Miss. R. Civ. P. 15(c).

¶ 6. Walker makes several arguments based on an incorrect interpretation of the rule’s language. Walker first argues that because no party was actually changed here, and instead Walker’s name was added later, the rule does not apply. Rule 15 applies here as it clearly contemplates a “new party to be added by the amendment,” as one can easily see in the comment to the rule. Id. (comment). Walker also argues that Rule 15(c) has three requirements: (1) the amendment must arise from a mistake of a party’s identity; (2) the defendant must have had notice within 120 days of the expiration of the statute of limitations; and, (3) the plaintiff must have exercised reasonable ■ diligence to discover the new party’s identity. Walker applies an erroneous reading of the rule. As it applies to this case, Rule 15(c) states that for an amended complaint to relate back to the date of the original complaint when the amended complaint does not change a named defendant, there is only one requirement: the claim in the amended complaint must arise out of the same conduct, transaction, or occurrence as that set forth in the original complaint. Id. However, when the amended complaint does change a named defendant, as here, there are two additional requirements: notice and knowledge by the defendant who would be named. Id. These two additional requirements must be met within the Rule 4(h) time period, or 120 days of the original complaint. Brown v. Winn-Dixie, Montgomery, Inc., 669 So.2d 92, 94 (Miss. 1996) (citing Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986)). Thus, it is not that one of the requirements of Rule 15(c) is that the amendment change a party; instead, it is that only those amended pleadings which do change a party are the pleadings which have three requirements. To pinpoint the rule as it applies to this case, the three requirements of a complaint that changes a named defendant are: (1) the claim in the amended complaint must arise out of the same conduct, transaction, or occurrence as that set forth in the original complaint; (2) the newly-named defendant must have received notice of the action within the 120 days; and, (3) the newly-named defendant must have or should have known that an action would be brought against him within the 120 days unless a mistake existed as to the parties’ identities.

¶ 7. The first “same conduct, transaction, or occurrence” requirement is clearly met in this case, as both complaints refer to the May 18, 1999, collision. This is not disputed. We must therefore determine if the other two requirements are met: (1) whether Walker received notice of the action; and, (2) whether Walker knew, or should have known, that an action would be brought against him. These tests together essentially ask “whether the new party to be added by the amendment (if any) is served before expiration of the period provided by Rule 4(h) for service of a summons and complaint.” Miss. R. Civ. P. 15(c) (comment). This time period is 120 days after the filing of the complaint. The questions under Rule 15(c)(1) and (2) are then whether Walker received notice of the lawsuit within 120 days after the filing of the original complaint and whether Walker knew or should have known he would be named in the suit within 120 days after the filing of the original complaint. Winn-Dixie Montgomery, 669 So.2d at 94. See also Curry v. Turner, 832 So.2d 508, 513 (Miss.2002) (considering a case where the motion to amend was filed before the statutory period of limitations had run, but where the court did not grant the motion until after the expiration of the statutory period). If the answer to both is in the affirmative, the amended complaint will relate back to the date of the original complaint, and the suit will not be time-barred by the statute of limitations. Both parties agree that the applicable statute of limitations is three years. Miss.Code Ann. § 15-1-49 (Rev.2003); Schiro v. American Tobacco Co., 611 So.2d 962, 965 (Miss. 1992). However, we arrive at a different result if either question under Rule 15(c)(1) and (2) is answered in the negative, because then, the amended complaint does not relate back, resulting in the suit being time-barred.

118. Clearly Walker did not receive notice of the institution of the action within 120 days after the filing of the complaint. The original complaint was filed on March 21, 2002, and during the next 120 days after the filing of the original complaint, only two events occurred. On April 18, 2002, the original three defendants were served with a copy of the complaint and summons and the plaintiffs first discovery requests. On May 6, 2002, those defendants filed their answers to the complaint and their discovery requests. The defendants’ responses to discovery were not filed until almost two years later, on February 12, 2004. In considering the provisions of Miss. R. Civ. P. 15(c)(1), the question becomes whether Walker, within 120 days after the filing of the complaint, had received sufficient notice so that he would not be prejudiced in maintaining his defense on the merits. Walker received no formal notice within this time period. The complaint was filed on March 21, 2002, and Walker was not even named as a defendant until April 2004. Gallagher offers no proof or evidence outside of speculative theories that Walker had notice sufficient to meet the requirements of Rule 15(c)(1). Gallagher first asserts that Walker presented no evidence showing the lack of notice, whether at the hearings on the motion to dismiss or in its pleadings. Gallagher is essentially arguing that the lack of evidence from Walker showing an absence of notice must actually prove the existence of notice to Walker. This is nonsensical. No proof has been presented of any notice to Walker whatsoever within the 120 days after the original complaint was filed, and we cannot assume Walker had notice sufficient to satisfy the rule based solely on speculation.

¶ 9. The test in Miss. R. Civ. P. 15(c)(2) is also failed here. This part of the rule essentially asks whether, because of the existence of a mistake as to the parties’ identities on the part of the mov-ant or complainant, the newly-named defendant did not know that an action would be brought against him within the 120 days. Curry, 832 So.2d at 513. The purpose of this rule is to allow some leeway to a party who made a mistake, so long as the party does what is required within the time period under the rule. In this part of his argument, Gallagher puts forward several theories that Walker must in some way have been given knowledge of the suit within the 120 days. First, Gallagher argues that damage must have resulted to Walker’s trailer from the collision and that this should have made Walker aware of pending litigation. Second, Gallagher points out that, because Anders was driving to Walker’s business, the delay in delivery which must have resulted should have given Walker knowledge of the lawsuit. Third, Gallagher asks whether any insurance claims had been made by Walker for the damage to his trailer. Fourth, Gallagher points to the business relationship between Walker and the other three defendants. Gallagher asserts that a reasonable person should “assume litigation will follow an accident” between an 18-wheeler and a car. None of these theories convince us that Walker knew, or should have known, within 120 days of the complaint, a lawsuit existed. Gallagher makes many great leaps in his reasoning, relying almost entirely on assumptions. The litigation here did not begin until almost three years after the accident, and the existence of damage to Walker’s trailer is simply insufficient to prove Walker’s knowledge of litigation. A delay in delivery and the existence of a business relationship also do not automatically rise to the level of putting Walker on notice of the existence of a lawsuit, particularly when Walker was not brought into the proceedings until almost two years after the complaint was filed.

¶ 10. Rule 15(c) makes one exception for pleadings amended under Rule 9(h). Those are pleadings by a party who “is ignorant of the name of an opposing party and so alleges in his pleading.” Miss. R. Civ. P. 9(h). Rule 9(h) states that in those cases, “the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party.” Id. Rule 9(h) pleadings are not considered amendments changing a party against whom a claim is asserted and are allowed under Rule 15(c) to relate back to the date of the original pleading. Miss. R. Civ. P. 15(c). In any case, in order for Rule 9(h) to apply, there must be a substitution of a true party name for a fictitious one, which is not the case today. Both Gallagher and Walker also delve into discussions of when reasonable diligence is required to determine an opposing party’s identity, relying on Nguyen. These discussions are not applicable today as reasonable diligence is a standard only for determining the efforts made to discover the true identity of a named fictitious party under Rule 9(h). Nguyen, 859 So.2d at 978-79. “The relation back privilege provided for fictitious parties under Rule 15(c)(2) requires the plaintiff to actually exercise a reasonably diligent inquiry into the identity of the fictitious party.” Doe v. Miss. Blood Serv., Inc., 704 So.2d 1016, 1019 (Miss.1997). “The purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but unidentified, who can only be ascertained through the use of judicial mechanisms such as discovery. It is not designed to allow tardy plaintiffs to sleep on their rights for seven years, make only one telephone call prior to the running of the statute, and then enjoy the benefits of the rule.” Id. As Gallagher did not have knowledge of Walker, or name any fictitious party to determine Walker’s identity, this discussion is not on point or dispositive in this case. Further, even if this discussion were helpful to us in the disposition of today’s case, Gallagher’s lack of any attempt to get answers to the discovery before almost two years had passed would be indicative of Gallagher’s lack of any reasonable diligence to correct a mistaken identity or uncover the true identity of an earlier-unknown party.

¶ 11. In trying to convince this Court of the correctness of the trial court’s ruling, Gallagher argues that the trial judge should be given deference in having granted leave to file the amended complaint under Miss. R. Civ. P. 15(a). Our only question today is whether the amended complaint relates back to the original complaint, not whether leave should have been granted to amend the complaint. Because we are required to conduct a de novo review of today’s case, we need not defer to the trial court’s ruling. The rules allowing an amended complaint to relate back to the date of an original complaint are clear, and the facts of today’s ease unquestionably fail to meet their requirements.

¶ 12. For the reasons stated, we are constrained as a matter of well-established law to find that the trial court erred in denying Walker’s motion to dismiss.

CONCLUSION

¶ 13. The facts of this case do not meet the requirements of the rules allowing an amended complaint to relate back to the original complaint. Walker did not have notice or knowledge of the lawsuit within 120 days of the original complaint. Because of this, and for all of the foregoing reasons, we reverse the judgment of the Circuit Court for the First Judicial District of Hinds County, and render judgment here in favor of Ralph Walker, Inc.

¶ 14. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P JJ., AND DICKINSON, J., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Anders, Hunt, and Randy Hunt Trucking, Inc. are not parties to this appeal.


text:
    M.W.F. v. D.D.F.
    No. 2003-CT-02642-SCT.
    Supreme Court of Mississippi.
    April 20, 2006.

      Billy Parlin, attorney for appellant.
    Darryl A. Hurt, Jr., Lucedale, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. After eighteen years of marriage, D.D.F. sought a divorce from M.W.F. The chancellor granted D.D.F. a divorce on the ground of habitual cruel and inhuman treatment. M.W.F. appealed, and the Court of Appeals unanimously affirmed the decision of the chancellor by an opinion handed down on July 26, 2005. M.W.F. v. D.D.F., 926 So.2d 923, 2005 WL 1744979 (Miss.Ct.App.2005). The Court of Appeals denied M.W.F.’s motion for rehearing on October 11, 2005.

¶ 2. M.W.F. has filed a petition for writ of certiorari. D.D.F. has not filed a response to the petition. After a careful review of the record, we are constrained, as a matter of law, to find that the chancery court judgment from which M.W.F. appeals was not a final judgment. Because the judgment was not certified pursuant to Miss. R. Civ. P. 54(b), this Court and the Court of Appeals lack jurisdiction to consider the appeal. Thus, having granted the petition for writ of certiorari, we now find the appeal must be dismissed for want of jurisdiction.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. The record reveals D.D.F. filed her complaint for divorce on the statutory ground of habitual cruel and inhuman treatment. M.W.F. responded that D.D.F. was not entitled to a divorce and counterclaimed for separate maintenance. Both parties sought custody of the children, support, and certain assets. Prior to trial, the parties agreed to bifurcate the proceedings and first try the divorce issue. The trial concerning the issue of divorce was held in October, 2003, and the chancellor thereafter entered the “Judgment of Divorce” on November 19, 2003. The chancellor granted D.D.F. a divorce on the ground of habitual cruel and inhuman treatment. The judgment states, in pertinent part,

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Attorneys for the parties shall schedule a trial date for resolution of the remaining issues raised in the pleadings by the respective parties.

On November 24, 2003, M.W.F. filed a Notice of Appeal from this judgment of divorce, and the chancery court, on December 1, 2003, entered a Temporary Order in which the chancellor awarded temporary custody of the children to D.D.F. and awarded temporary use of certain assets to each party. The Temporary Order states, in pertinent part,

That the parties stipulated and agreed to bifurcate the trial of this cause of action and to first submit to the Court the issue of divorce and allow the Court to reserve ruling on other issues pending determination of the issue of divorce.
That on November 24, 2003, the Court heard the Motion for Temporary Features of [D.D.F.] to provide for temporary issues pending the appeal to the Mississippi Supreme Court.
The Court finds that it has jurisdiction to enter a Temporary Order respecting the temporary issues in this cause since the Court reserved jurisdiction of all property issues at the time the trial was bifurcated.
The Court finds that a Temporary Order should issue in this cause to provide for property issues, pending appeal.
That the Court reserves jurisdiction of all issues in this cause for final disposition after the conclusion of the appeal in this cause.

ANALYSIS

¶ 4. “The parties have not raised an issue as to whether the [chancery] court’s [judgment] is appealable. However, [this Court] must address this question on our own initiative.” Williams v. Delta Regional Medical Center, 740 So.2d 284, 285 (Miss.1999) (citing Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 899 (Miss.1987)) (sua sponte dismissing appeal for improper Rule 54(b) certification). Generally, only final judgments are appealable. See Miss. Code Ann. §§ 9-3-9 <& 11-51-3; M.R.A.P. 5. In the present matter, the parties raised before the chancellor various claims concerning grounds for divorce, as well as custody of the children, child support, alimony, and property division. The “Judgment of Divorce” only addressed the issue of grounds for divorce. The judgment was not certified pursuant to Miss. R. Civ. P. 54(b), which states:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Miss. R. Civ. P. 54(b) (emphasis added). “Absent a certification under Rule 54(b), any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” Miss. R. Civ. P. 54(b) cmt.

If the court decides that an order that does not dispose of all the claims of all the parties and that is not appealable under any other statute or rule should be given the status of a final judgment, Rule 54(b) requires it to take two separate steps before an appeal can be perfected. The court must make “an express determination that there is no just reason for delay” and it must make “an express direction for the entry of judgment.

Id. (emphasis added). “Without the entry of a Rule 54(b) certificate, a trial court order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim action, is interlocutory.” Owens v. Nasco Int’l, Inc., 744 So.2d 772, 774 (Miss.1999) (citing Williams, 740 So.2d at 285). See also Salts v. Gulf Nat. Life Ins. Co., 849 So.2d 848, 850-51 (Miss.2002); Gilchrist v. Veach 754 So.2d 1172, 1173-74 (Miss.2000).

¶ 5. Although the chancellor’s temporary order discusses the appeal, it does not use the specific and express language required by Miss. R. Civ. P. 54(b). If the chancellor desired the judgment of divorce to be final and appealable, she did not “do so in a definite, unmistakable manner.” Miss. R. Civ. P. 54(b) cmt. We thus find the “Judgment of Divorce” entered in this case was an interlocutory order. Because this Court did not grant permission for an interlocutory appeal, this Court and the Court of Appeals lack jurisdiction to consider this issue on appeal. Accordingly, this appeal must be dismissed for want of jurisdiction.

CONCLUSION

¶ 6. The -chancellor’s judgment of divorce was not certified as a final judgment pursuant to the provisions of Miss. R. Civ. P. 54(b). Thus, the chancellor’s order was interlocutory in nature, and not appeal-able. Therefore, the judgment of the Court of Appeals is vacated and this appeal is dismissed for lack of jurisdiction.

¶ 7. THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THIS APPEAL IS DISMISSED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . This case is confidential because there was testimony at trial regarding the molestation of one of the minor children by M.W.F.’s brother.


author: DICKINSON, Justice, for the Court.

text:
    DELTA AND PINE LAND COMPANY v. Reginald BURNS. Delta and Pine Land Company v. Carlos Harris. Delta and Pine Land Company v. Vernon Smith. Delta and Pine Land Company. v. Milton Boyd. Delta and Pine Land Company v. Tommie Gray. Delta and Pine Land Company v. Rodney Burns. Delta and Pine Land Company v. Horace Anderson.
    Nos. 2004-IA-02558-SCT, 2004-IA-02560-SCT to 2004-IA-02565-SCT.
    Supreme Court of Mississippi.
    April 20, 2006.

      Stephen L. Thomas, Margaret Oertling Cupples, Danielle Daigle Ireland, Jackson, Edward Blackmon, Canton, John D. Brady, Columbus, attorneys for appellant.
    Mark Thomas McLeod, Mitchell Harry Tyner, Sr., Ridgeland, attorneys for appel-lees.
   DICKINSON, Justice, for the Court.

¶ 1. In these seven consolidated lawsuits brought by numerous farmers against Delta and Pine Land Company (“DPL”), the question presented is whether the farmers who brought suit for poor cotton crop production were required by Miss. Code Ann. Section 69 — 3—19(3)(e) (1999) (“the Seed Act”) to file an administrative complaint prior to bringing suit.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. This appeal arises from a lawsuit filed in the Circuit Court of Holmes County on March 14, 2002, by fifty-six plaintiffs against DPL. The seven Appellees before us, along with the other forty-nine plaintiffs, are farmers who purchased and planted the “NuCotn 33B” cotton seed variety produced by DPL during the 1999 crop season. The farmers allege that the NuCotn 33B seed was “inferior seed, causing [them] to obtain cotton yields substantially less than what they would have obtained had the seed been of proper quality.”

¶ 3. On August 11, 2004, DPL filed a number of motions in the trial court, including a Motion to Sever Plaintiffs’ Claims and to Transfer Venue, a Motion to Dismiss, a Motion to Enforce Forum Selection Clause, a Motion to Enforce Limitation of Remedies Clauses, and a Motion to Dismiss Warranty Claims. On December 17, 2004, following a hearing on these motions, the circuit court entered an Order severing the plaintiffs’ claims and transferring the claims of certain plaintiffs to other venues. Additionally, in each of the severed cases in which Holmes County was a proper venue, the trial court denied DPL’s remaining motions but certified its denials of the motions to dismiss for interlocutory review under former Mississippi Rule of Appellate Procedure 5(a). Thereafter, DPL filed its petitions for permission to bring interlocutory appeals, and on January 24, 2005, this Court granted DPL’s petitions for permission to bring interlocutory appeals and its motions to consolidate the seven interlocutory appeals.

DISCUSSION

¶ 4. Mississippi, like many other agricultural states, has adopted a Seed Act which establishes labeling requirements for agricultural seed distributed in the state. See Miss.Code Ann. § 69-3-1 et seq. The Seed Act provides that, before a consumer can sue a distributor of agricultural seed for alleged failure of the seed to perform as represented by the label or labeling, the consumer must first file an administrative complaint with the Mississippi Department of Agriculture (“MDA”) “within such time as to permit inspection of the crops.” Miss.Code Ann. § 69-3-19(3)(e)(i) (1999). Specifically, the Seed Act provides:

As a prerequisite to filing a cause of action against a seedsman, a consumer who is damaged by the failure of agricultural, vegetable, flower or forest tree seed to produce or perform as represented by the label attached to such seed under the provisions of Section 69-3-5, Mississippi Code of 1972, shall make a sworn complaint against such seedsman alleging damages sustained. The complaint shall be filed with [MDA] and [MDA] shall send a copy of the complaint to the seedsman by certified mail, within such time as to permit inspection of the crops, plants or trees by the seed arbitration council or its representatives and by the seedsman from whom the seed was purchased.

Miss.Code Ann. § 69-3-19(3)(e)(i) (1999).

¶ 5. In order to enforce its provisions, the Seed Act requires a seedsman to notify consumers of the mandatory arbitration requirement as follows:

Language setting forth the requirement for filing and serving such complaint shall be legibly typed or printed on the seed packages or the analysis label attached to the packing containing the seed at the time of purchase by the consumer as follows:
“NOTICE: As a prerequisite to maintaining a legal action based upon the failure of seed to which this label is attached to produce as represented, a consumer shall file a sworn complaint with the Commissioner of Agriculture and Commerce within such time as to permit inspection of the crops, plants or trees.”
If language setting forth the requirement is not so placed on the seed package or analysis label, the filing and serving of a complaint under this paragraph is not required.

Miss.Code Ann. § 69-3~19(3)(e)(ii) (1999).

¶ 6. In compliance with this statute, each bag of NuCotn 33B sold in 1999 contained a NOTICE TO BUYER, which provided, in pertinent part:

The seed laws of several states including ... Mississippi ... require arbitration, conciliation or mediation of disputes based upon alleged failure of the seed to properly produce or perform as represented by the label or labeling before certain legal actions may be maintained against a seller. A timely complaint ... with the required filing fee (where applicable) must be filed with the Department of Agriculture, State Plant Board, Seed Commission or other applicable officials as required by state law within such time to allow the inspection of seed, crops, or plants by designated agency.

¶ 7. The plaintiffs assert that the Nu-Cotn seed they purchased and planted in 1999 was defective, causing them to experience an abnormally low cotton yield. The complaint alleges negligence, breach of implied warranty of merchantability, breach of warranty of fitness for a particular purpose, breach of express warranties, gross negligence, fraud, intentional interference with prospective economic opportunities, and tortious interference with a business relationship.

¶ 8. DPL contends the trial court committed error by denying its motion to dismiss. The plaintiffs assert that the trial court’s denial was proper because their First Amended Complaint does not allege damage due to the failure of the seed “to produce or perform as represented by the label.” Thus, the plaintiffs claim they were not required to file an administrative complaint prior to filing suit.

¶ 9. The issue presented by DPL is:

Did the trial court err in failing to grant DPL’s motion to dismiss the plaintiffs’ claims, arising out of an alleged defect in cotton seed manufactured by DPL, for failure to comply with prerequisites to suit, where the plaintiffs failed to file administrative complaints against DPL “within such time as to permit inspection of the crops” pursuant to the Seed Act?

¶ 10. This appeal turns on the question of whether the plaintiffs were required by Miss.Code Ann. Section 69-3-19(3)(e)(i)(1999) to file an administrative complaint and submit their claims against DPL to non-binding arbitration before the Commission of Agriculture and Commerce as a prerequisite to filing suit in circuit court. Our analysis begins with a review and discussion of the applicable sections of the Mississippi Seed Act. Furthermore, this court employs a de novo standard of review of a trial court’s grant or denial of a motion to dismiss. See Harris v. Miss. Valley State Univ. 873 So.2d 970, 988 (Miss.2004).

¶ 11. The Seed Act requires that seed container labels include certain specific representations such as the kind and variety of seeds contained, lot number, net weight, origin, percentage by weight of types of seeds and inert matter, and the like. Miss.Code Ann. § 69-3-5 (1999). Under the 1999 version of the statute, a consumer alleging damage “by the failure of agricultural, vegetable, flower or forest tree seed to produce or perform as represented by the label attached to such seed under the provisions of Section 69-3-5” must file a complaint with the MDA for submission of claims to the arbitration council as a condition precedent to the right to sue in court. Miss.Code Ann. § 69 — 3—19(3)(e)(i) (1999) (emphasis added).

¶ 12. The provision requiring the manufacturer to attach a specific notice informing consumers of the administrative complaint requirement states that complaints must be filed with the MDA only if the claims are “based upon the failure of seed to which this label is attached to produce as represented.” Miss.Code Ann. § 69-3-19(3)(e)(ii) (1999). In fact, DPL’s “NOTICE TO BUYER” placed on each bag of NuCotn 33B sold in 1999 only informed consumers that claims “based upon alleged failure of the seed to properly produce or preform as represented by the label or labeling ” must first be filed with the MDA. (emphasis added).

¶ 13. The plaintiffs insist their claims do not allege damage by failure of the seed to produce or perform in accordance with the labeling requirement of Miss.Code Ann. Section 69-3-5. Rather, they point out that the First Amended Complaint alleges claims of negligence, breach of implied warranty of merchantability, breach of warranty of fitness for a particular purpose, breach of express warranties, gross negligence, fraud, intentional interference with prospective economic opportunities, and tortious interference with a business relationship. Specifically, the plaintiffs assert that DPL engaged in wrongful conduct, such as failure to maintain adequate inventory controls and procedures to assure a sufficient inventory of quality seed, failure to properly store the cotton seed inventory held for resale, and other misconduct, so as to render itself more attractive financially for a pending merger with Monsanto. Plaintiffs maintain that DPL’s “NOTICE TO BUYER” and other package labeling did not contain any warranties or representations regarding these types of allegations and claims and, therefore, because their claims do not allege damage by failure of the seed to produce or perform in accordance with the labeling requirement of Miss.Code Ann. Section 69-3-5, they were not required to first file an administrative complaint with the MDA, nor were they required to submit their claims to arbitration prior to filing suit in state court.

¶ 14. DPL quite aggressively argues that the plaintiffs’ failure to file administrative complaints with the MDA within such time as to permit inspection of the crops deprived them of the ability to investigate the crops and defend itself in these cases. DPL’s inability to engage in an evidence gathering process and investigate the seed claims while the crop was still planted certainly limited the theories available to defend the claims against them.

¶ 15. However, we are bound by the words and provisions of the statutes that our Legislature enacts. The applicable provision of the 1999 version of the Seed Act specifically states that only claims relating to damage by failure of the seed to produce or perform in accordance with the labeling requirement of Miss.Code Ann. Section 69-3-5 must first be submitted to the MDA. Miss.Code Ann. Section 69-3-19(3)(e)(ii) (1999). Indeed, the current revised provision of the Seed Act, which took effect on July 1, 2000, broadens the scope of actions covered by the administrative complaint requirement to include allegations of damage for failure of the seed to perform “[a]s represented by the label or labeling whether related to specific representations on the label, other information on the seed container, or conditions attributable to the quality of the seed....” See Miss.Code Ann. § 69-3-22 (2000). (Emphasis added). Under this current version of the Seed Act the plaintiffs clearly would have been required to file an administrative complaint with the MDA prior to filing suit against DPL in the circuit court. However, the 1999 version of the statute in effect at the time of the plaintiffs’ claims did not include the additional language, “or conditions attributable to the quality of the seed.” Plaintiffs recognize and agree that they may not pursue any claim based upon failure of the seed to perform as represented by the label. Instead, they claim their suit is unrelated to representations of the labeling. Thus, plaintiffs were not required to first file an administrative complaint prior to commencing suit against DPL.

¶ 16. In arguing to the contrary, DPL relies on this Court’s enforcement of a cropduster statute similar to the Seed Act. Its reliance is misplaced. The cropduster statute at issue in Evans v. Boyle Flying Service, Inc., 680 So.2d 821 (Miss.1996) applied to negligence actions and provided a specific time limit for submission of a claim to MDA. See Miss.Code Ann. § 69-21-123. This Court properly enforced the statute to bar property owners’ claims against a cropduster for negligent application of chemicals because the plaintiffs failed to first file notice of their claims. Id. at 829. However, the 1999 version of the Seed Act only required filing administrative complaints for allegations of damage based on non-conformance with Section 69-3-5 labeling representations. The 1999 Seed Act did not require administrative complaints for negligence actions, fraud actions, or any other actions outside this scope.

¶ 17. Finally, it is worth noting that at one point in the course of defending claims regarding NuCotn 33B, DPL agreed that the plaintiffs were not asserting any label violations. DPL defended many administrative complaints filed by plaintiffs in other NuCotn 33B disputes by arguing that “no provision exists for consumers to be allowed or required to file complaints with the Department or Council as a result of damages, other than for damages arising out of ... label representations required by § 69-3-5.” In its answer to the administrative complaints, DPL stated that the claims failed to allege damages resulting from the violation of representations made on the seed label as required by § 69-3-5. Following an unsuccessful arbitration process with the MDA, the plaintiffs proceeded to private litigation in circuit court where DPL then asserted the contrary position that the plaintiffs’ claims somehow triggered the administrative complaint requirement.

¶ 18. We are not persuaded by DPL’s attempt to argue that the plaintiffs in this appeal were first required to file administrative complaints within time to permit inspection of the crops. According to the plain language of the Seed Act as written in 1999, the plaintiffs were only required to pursue the administrative remedies if their claims arose from damages relating to the label requirements and representations. The plaintiffs in this case do not allege label violations but rather claims of negligence, breach of implied warranty of merchantability, breach of warranty of fitness for a particular purpose, breach of express warranties, gross negligence, fraud, intentional interference with prospective economic opportunities, and tor-tious interference with a business relationship. Therefore, the circuit court properly denied DPL’s motion to dismiss such claims based on the plaintiffs’ failure to file administrative complaints. Any remaining factual question of whether any of the claims presented at trial wander into the area of label representations must be decided by a properly-instructed jury.

CONCLUSION

¶ 19. For these reasons, we affirm the circuit court’s denial of Delta and Pine Land Company’s Motion to Dismiss.

SMITH, C.J., WALLER AND COBB, P JJ., EASLEY, CARLSON AND GRAVES, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . See e.g., Ala.Code §§ 2-26-70, et seq.; Ark. Code Ann. §§ 2-23-101, et seq.; Cal. Food & Agrie. Code §§ 52251, et seq.; Colo.Rev.Stat. §§ 35-27-101, et seq.; Ga.Code Ann. §§ 2-11-70, et seq.; Idaho Code §§ 22-413, et seq.; 710 Ill. Comp. Stat. 25/1, et seq.; Ind.Code Ann. §§ 15-4-11-1, et seq.; Tex. Agrie. Code Ann. §§ 64.001, et seq.

      . At the time the plaintiffs' claims accrued, section 69 — 3—19(3)(e) (1999) governed. This section has since been repealed. Section 69-3-22 became effective on July 1, 2000, and is almost identical to the former section 69-3-19(3)(e) with one major exception. The new section broadens the scope of actions covered by the administrative complaint requirement and includes allegations of damage for failure of the seed to perform ''[a]s represented by the label or labeling whether related to specific representations on the label, other information on the seed container, or conditions attributable to the quality of the seed.... ” Miss. Code Ann. 69-3-22 (2000).


text:
    Darrell ALLEY v. NORTHERN INSURANCE COMPANY.
    No. 2005-CA-00481-SCT.
    Supreme Court of Mississippi.
    April 20, 2006.

      John R. Santa Cruz, Preston J. Mauf-fray, attorneys for appellant.
    Trace D. McRaney, attorney for appel-lee.
   WALLER, Presiding Justice, for the Court.

¶ 1. This appeal involves issues pertaining to stacking of uninsured/underinsured insurance benefits. Finding that our precedent has resolved the first two issues raised on appeal (whether an insurance agent has a duty to explain the legal implications of uninsured/underinsured benefits and whether an injured employee may stack when the tortfeasor is not underin-sured) and that the third issue (whether the type of insurance policy is relevant to the question of stacking) is procedurally barred and/or frivolous, we affirm the circuit court’s grant of summary judgment to the employer’s uninsured benefits carrier.

FACTS

¶ 2. After having an automobile accident with Betty H. Meyer, Darrell Alley filed suit against Meyer and Northern Insurance Company of New York, which had issued an insurance policy to Hancock County providing uninsured/underinsured motorist coverage. Alley was acting in the course and scope of his employment with Hancock County at the time of the accident and was driving an automobile owned by Hancock County. Meyer had in effect a $100,000 automobile liability insurance policy. Alley had no personal uninsured/underinsured coverage. The Hancock County policy provided $25,000 per vehicle uninsured/underinsured coverage for each of Hancock County’s 109 covered vehicles. Alley alleges Meyer’s liability coverage is not sufficient to cover his injuries and damages.

¶ 3. Northern Insurance filed a motion for summary judgment, contending that Meyer was not underinsured because her $100,000 liability coverage exceeded the Hancock County $25,000 uninsured/under-insured coverage, arguing that, under Mascarella v. U.S. Fidelity & Guar. Co., 833 So.2d 575 (Miss.2002), Meyer could not be considered an underinsured driver unless her liability coverage was less than Hancock County’s uninsured/underinsured coverage. Mascarella involved an issue certified to this Court by the United States Court of Appeals for the Fifth Circuit: “[wjhether an injured insured is entitled to stack the underinsured motorist coverage of other vehicles covered under his fleet policy thereby making the third-party tort-feasor’s vehicle an underinsured motor vehicle.” Id. at 576. The circuit court granted Northern Insurance’s motion for summary judgment, finding as follows:

(1) To determine whether an insured vehicle is underinsured, a court must compare the limits of liability coverage on that vehicle to the uninsured limits provided through the injured party’s own coverage.
(2) Mascarella controls. Marscarella, just like Alley, was injured while driving a vehicle which was part of his employer’s fleet. Also, just like Alley, Marscarella did not own or insure the fleet and was “not otherwise insured.” Marscarella was not allowed to stack his employer’s uninsured/underinsured insurance limits. Therefore, Alley is not allowed to do so.
(3) Meyers’ liability limits of $100,000 are more than the sum of (1) the limit of liability for uninsured/underinsured motorist coverage ($25,000) applicable to the vehicle Alley was driving plus any other uninsured/underinsured motorist coverage applicable to Alley ($0). Therefore Meyers was not an underin-sured motorist.
(4) The fact that Hancock County had a policy covering 109 vehicles did not take the case outside of the Mascarella holding or increase the uninsured/underin-sured motorist limits available to Alley.

¶ 4. From this ruling, Alley appeals.

DISCUSSION

I. WHETHER MATERIAL QUESTIONS OF FACT WHICH WOULD PRECLUDE SUMMARY JUDGMENT EXISTED.

¶ 5. Alley contends the circuit court erred by failing to consider an affidavit submitted by the Hancock County Chancery Clerk and that Northern Insurance never disclosed the limited availability of uninsured/underinsured motorist coverage to county employees. The Chancery Clerk averred as follows: (1) he purchased the Northern Insurance policy on behalf of Hancock County; (2) uninsured/underin-sured motorist coverage was purchased to provide equal uninsured/underinsured motorist coverage to the drivers regularly assigned to the covered vehicles; (3) Northern Insurance never explained: (a) the definition of, or the limitations implied by, the term “named insured,” as it related to the policy; (b) the circumstances’ under which an employee would be entitled to stack uninsured/underinsured motorist coverage; or (c) the availability of the stacked coverage was dependent upon the amount of the insurance coverage available on vehicles involved in accidents with county vehicles. Alley, citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 76 (Miss. 1996), contends that an insurer has a duty to explain uninsured/underinsured motorist coverage to an insured so the insured knows he has an option to increase the coverage limits.

¶ 6. We have recently partially overruled Berry, holding that an insurance agent has no absolute, court-created duty to explain an insured’s right to purchase additional uninsured motorist coverage over and above the amount of coverage required by statute. Owens v. Miss. Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074 (Miss. 2005). Optional coverage which exceeds the statutory limit is not required by statute, id. at 1075, and therefore insurance agents should not be required to inform insureds of optional coverage. Also, as Northern Insurance suggests, we question an insurance agent’s competence to explain such esoteric legal issues as stacking when seasoned attorneys find it difficult to do so.

¶ 7. Northern Insurance also argues that Alley does not have standing to complain of an alleged breach of duty owed by Northern Insurance to Hancock County. Because we have held that insurance agents do not have the duty to inform Hancock County of the option of additional coverage, this issue is moot.

II. WHETHER THE CIRCUIT COURT ERRED IN NOT ALLOWING STACKING OF HANCOCK COUNTY’S UNINSURED/UNDERINSURED COVERAGE.

¶ 8. Class II insureds are not entitled to uninsured motorist benefits beyond those for which the named insured contracted regarding that covered vehicle. Meyers v. American States Ins. Co., 914 So.2d 669, 675 (Miss.2005). Persons included in Class I consist of the “named insured, and residents of the same household, his spouse and relatives of either, while in a motor vehicle or otherwise.” Glennon v. State Farm Mut. Auto. Ins. Co., 812 So.2d 927, 931 (Miss.2002) (quoting Miss.Code Ann. § S3 — 11—103(b) (1999)). A Class II insured is “any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies.” Id. An employee who drives a vehicle covered under his employer’s business automobile policy is not a Class I insured because the employee is not a named insured. Harris v. Magee, 573 So.2d 646, 656 (Miss.1990). Therefore, Alley was a Class II insured under the Hancock County policy.

¶ 9. Under Mascarella, a Class II insured may stack his own uninsured motorist coverage with that of the vehicle in which he was riding, but a Class II insured does not have the right to stack an employer’s uninsured motorist coverage. Mascarella, 833 So.2d at 580. Under this ruling, Alley may not stack Hancock County’s uninsured motorist coverage.

III. WHETHER THE TYPE OF POLICY HAS RELEVANCE TO THE QUESTION OF STACKING.

¶ 10. Alley argues that Mascarella should not be applied to the instant case because Mascarella involved a commercial fleet policy for a closely-held corporation which covered only 8 vehicles and the instant case involves a municipal policy covering 109 vehicles. The relevant cases, Mascarella, Meyers, Harris, and Glennon, only consider whether the injured party is an employee of the named insured or is the named insured. We find the type of entity of the named insured — i.e., a corporation or a municipality — is irrelevant. Also, Alley failed to raise this issue before the circuit court, and it is therefore procedurally barred from review by this Court. Finally, Alley cites absolutely no ease law or statute in support of his proposition.

CONCLUSION

¶ 11. We find the first two issues raised by Alley have been disposed of by previous precedent, and the third issue is procedurally barred and/or frivolous. We affirm the judgment of the circuit court.

¶ 12. AFFIRMED.

SMITH, C.J., COBB, P.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Alley originally named Zurich North America as a defendant, but later amended the complaint to name Northern Insurance Company of New York as the proper defendant.