author: DIAZ, Justice,

text:
    Joshua PHILLIPSON v. STATE of Mississippi.
    No. 2005-KA-02345-SCT.
    Supreme Court of Mississippi.
    Nov. 30, 2006.
    Dan W. Duggan, Jr., Brandon, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before WALLER, P.J., DIAZ and DICKINSON, JJ.
   DIAZ, Justice,

for the Court.

¶ 1. This case presents the question of whether a defendant accused of statutory rape is entitled to a lesser-included jury instruction regarding fornication. Because fornication is not a lesser-included crime of statutory rape, we affirm the ruling of the trial court to exclude the instruction.

FACTS AND PROCEEDINGS BELOW

¶2. The facts of this case are not in dispute. Joshua Phillipson was arrested, tried, and convicted for the statutory rape of B.G., a minor female. At the time of the event, May 18, 2004, Phillipson was 20 years old and the minor was 15. Phillip-son was sentenced to 2½ years in the custody of the Mississippi Department of Corrections for the crime.

¶ 3. The sole issue on appeal is whether the Rankin County Circuit Court committed reversible error in refusing jury instruction D6, which read:

The Court instructs the jury that if you find that the state has failed to prove any one the essential elements of the crime of STATUTORY RAPE, you must find the defendant not guilty. You will then proceed with your deliberations to decide whether the state has proved beyond a reasonable doubt all the elements of the lesser crime of FORNICATION. If warranted by the evidence, you may find the defendant guilty of a crime lesser than STATUTORY RAPE. However, notwithstanding that right, it is your duty to accept the law as given to you by the court. If the facts and the law warrant a conviction for the crime of STATUTORY RAPE, then it is your duty to make such a finding, uninfluenced by your power to find a lesser offense. This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge, but does justify a verdict for FORNICATION.
FORNICATION is defined as unlawful sexual intercourse between two unmarried persons.

¶ 4. Because it was not error to refuse this instruction, we affirm the ruling of the trial court.

STANDARD OF REVIEW

¶ 5. Jury instructions are not reviewed in isolation, but read as a whole to determine if the jury was properly instructed. Milano v. State, 790 So.2d 179, 184 (Miss.2001). The instructions must fairly announce the law of the case and not create injustice. Id. at 184. “In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Adams v. State, 772 So.2d 1010, 1016 (Miss.2000).

DISCUSSION

¶6. Phillipson argues that he should have received a jury instruction on fornication because it presented a viable theory of the case. “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Adams, 772 So.2d at 1016 (internal quotations and citations omitted). We greatly value the right of a defendant to present his theory of the case, and “[w]here a defendant’s proffered instruction has an evidentiary basis, properly states the law, and is the only instruction presenting his theory of the case, refusal to grant it constitutes reversible error.” Id. (internal quotations & citations omitted).

¶ 7. In the case of instructions regarding a lesser-included offense, “the defendant may request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment.” Id. (internal quotations & citations omitted).

¶ 8. “The crime of statutory rape is committed when ... [a]ny person seventeen (17) years of age or older has sexual intercourse with a child who ... [i]s at least fourteen (14) but under sixteen (16) years of age; [and][i]s thirty-six (36) or more months younger than the person; and ... [i]s not the person’s spouse.” Miss.Code Ann. § 97-3-65(l)(a) (Rev.2006). It is undisputed that Phillipson was 20 years old and B.G. was 15; this is a difference of more than 36 months; and they are unmarried.

¶ 9. Phillipson admitted having sexual intercourse with B.G., while insisting it was consensual. Under our laws, a minor that fits the criteria of the statute simply does not have the legal power to consent. The age of a minor is complete bar to the legal exercise of consent to sexual intercourse. “At the heart of [the statutory rape statute] is the core concern that children should not be exploited for sexual purposes regardless of their ‘consent,’ ” as “[t]hey simply cannot appreciate the significance or the consequences of their actions.” Collins v. State, 691 So.2d 918, 924 (Miss.1997).

¶ 10. Accordingly, consent is not and cannot be a defense to a charge of statutory rape. Miss.Code Ann. § 97-3-65(2). Statutory rape is also a “strict liability” crime, and a defendant cannot maintain a “mistake of age” defense. Collins, 691 So.2d at 923. As a result there are no lesser-included crimes to statutory rape.

¶ 11. Despite our law on statutory rape, Phillipson offers that he should have been able to present evidence that he committed “fornication,” not statutory rape. He cites to a legal dictionary’s definition of the term and asks that we apply “the common law definition of fornication to the facts in th[is] case.” Our law does not explicitly prohibit “fornication” in and of itself. We decline this offer to adopt fornication as a “common law” crime, as the Legislature is the body that properly defines and prohibits criminal behavior.

¶ 12. In addition to his “common law” crime argument, Phillipson suggests his instruction also fits the Mississippi Code, specifically Section 97-29-1:

If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.

Miss.Code Ann. § 97-29-1 (Rev.2006). What Phillipson does not perceive is that this law is a prohibition on cohabitation that involves adultery or fornication. There was no evidence that he and B.G. were cohabitating. Even if there were, charges under this section are still separate from a statutory rape charge. The reasoning behind the prohibition on statutory rape was discussed infra: it is to protect against exploitation and vulnerability, not to prevent cohabitation.

¶ 13. The crimes are separate and unrelated, as the trial court found — indeed, as counsel for Phillipson admitted at trial. The following discussion was had between the trial court, Rankin County District Attorney David Clark, Rankin County Assistant District Attorney Jamie McBride, and counsel for the defense Dan Duggan, regarding Instruction D6:

MR. MeBRIDE: Judge, I think that’s a mistake of the law. I mean, it talks about a lesser included crime of fornication. And, Judge, I don’t believe there is such a lesser included crime as statutory rape. In fact, I believe the crime of fornication actually involves having to live together, Judge.
THE COURT: I thought it had to do with something about prohibited within the — created by the incest statute within the degrees of civil kinship or something.
MR. MeBRIDE: It was the only one I could find but I thought it was referring to was 97-29-1, it says, “Adultery and fornication, unlawful cohabitation. If any man and woman shall unlawfully cohabitate whether adultery or fornication. ...” And, then, it goes on and it talks about habitual, sexual intercourse ....
[...]
Judge, usually those statutes have clear — for instance, in statutory rape, we had the age on it, which is not required under the fornication statute. And under the fornication statute, it requires cohabitation. There was just one instance in there, of course. The key word is habitual.
THE COURT: Which fornication statute are you referring to, Mr. Duggan? MR. DUGGAN: Well, there are a number of them and—
THE COURT: Yeah. All right. There’s the one I was thinking about, the civil kinship. Well, can you point me to one that you’re basing the instruction on?
MR. DUGGAN: No.
THE COURT: I don’t see where it fits.
MR. DUGGAN: It does not, Judge.
THE COURT: D6 is refused.

(Emphasis added). As the trial court held, the instruction simply does not fit. Accordingly, the sole issue on appeal has no merit.

CONCLUSION

¶ 14. The trial court properly refused the instruction detailing a lesser-included crime to statutory rape as there is no such creature. Because there was no error, the judgment of the trial court is affirmed.

¶ 15. CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWO AND ONE-HALF (2⅜) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.

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

      . We omit the name of the minor out of respect for her age and the crime involved.


source: Caselaw Access Project

author: DICKINSON, Justice,

license: Public Domain

text:
    SIERRA CLUB, Everett Kennard and Boswell Kennard v. MISSISSIPPI ENVIRONMENTAL QUALITY PERMIT BOARD and Willie (Bill) Carroll Cook d/b/a Cook Swine Farm.
    No. 2005-CC-01472-SCT.
    Supreme Court of Mississippi.
    Nov. 30, 2006.

      Robert B. Wiygul, Biloxi, attorney for appellants.
    Ricky L. Boggan and James T. MeCaf-ferty, attorneys for appellees.
    Before SMITH, C.J., GRAVES And DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. In this administrative dispute, the Mississippi Environmental Quality Permit Board (“Permit Board”) issued an air pollution control permit to the owner and operator of a swine concentrated animal feeding operation (“CAFO”). Several neighbors appealed the Permit Board’s decision. Finding that the agency’s decision to issue the permit was supported by substantial evidence, we must affirm.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Bill Cook is the owner and operator of a CAFO in Oktibbeha County, Mississippi. The facility includes eight barns housing up to 7,040 swine as they are being grown from approximately forty to fifty pounds each to approximately 250 pounds each. The barns have slatted floors to allow the manure to drop into a holding area, and a collection system flushes the waste into an anaerobic lake. The liquid is later drawn from the top of the lake and sprayed as fertilizer on fields. There is no dispute that Cook’s facility meets the exacting federal and state requirements for CAFOs with respect to the control of water pollution. This case revolves around the sole issue of the facility’s satisfaction of state air quality standards.

¶3. When Cook’s facility began operations in 1996, the Permit Board did not require air pollution permits for swine CA-FOs. As such, the Permit Board only issued a National Pollutant Discharge Elimination System (“NPDES”) permit to Cook. That decision was appealed to the Chancery Court of Oktibbeha County by Everett Kennard and others, and the chancellor held the CAFO was required to obtain an air permit. The Permit Board and Cook then appealed the decision to this Court.

¶ 4. While the matter was on appeal, the Mississippi Legislature amended Miss. Code Ann. Section 49-17-29 (Rev.2002) to allow the Mississippi Environmental Quality Commission (“Commission”) to establish categories of sources not required to obtain an air permit and to allow for the issuance of multimedia permits, that is, permits combining both water pollution and air pollution control standards. Because the resulting regulatory amendment by the Commission did not exempt CA-FOs, the parties agreed Cook would submit an application for an air permit.

¶ 5. On December 13, 1999, Cook submitted his application. The Mississippi Department of Environmental Quality (“MDEQ”), acting as technical staff for the Permit Board, created a draft permit and published a public notice on October 18, 2000, inviting public comment on the draft permit. After receiving many comments, MDEQ conducted a public hearing on May 31, 2001. On March 12, 2002, MDEQ recommended to the Permit Board that an air pollution control chapter be added to Cook’s existing NPDES permit, thus transforming it into a multimedia permit. These controls included the construction of a windbreak wall behind the exhaust fans of each housing unit based on MDEQ staff determinations that the exhaust fans were the primary source of off-site odor transfer. After further review, the Permit Board accepted MDEQ’s recommendation and issued the multimedia permit to Cook.

¶ 6. The objectors to the permit (the Mississippi Chapter of the Sierra Club, Everett Kennard, and Boswell Kennard [hereinafter “Kennard”]), as well as Cook, requested an evidentiary hearing before the Permit Board regarding the multimedia permit. The Permit Board required all parties to file written direct and rebuttal testimony from witnesses prior to the hearing. In general, Kennard argued the permit required too little of Cook and was thus an arbitrary and capricious action, while Cook argued the permit required too much and was thus an action beyond the authority of the Permit Board.

¶ 7. On September 10, 2002, the Permit Board conducted an evidentiary hearing on Cook’s multimedia permit. The testimony of multiple lay witnesses and experts was presented by the parties and considered by the Permit Board. At the conclusion of the hearing, the Permit Board deliberated and then voted to affirm its previous issu-anee of the Cook facility multimedia permit as written.

¶ 8. Kennard again appealed the Permit Board’s decision to the Chancery Court of Oktibbeha County, and Cook cross-appealed. On August 25, 2003, the chancellor denied both the appeal and cross-appeal, finding that

[t]he Permit Board has determined that the air pollution control conditions of the permit are necessary to operated the CAFO in compliance with the ambient air quality regulation. That decision is supported by substantial evidence, is not arbitrary or capricious, is within the power of the Permit Board to make and does not violate any statutory or constitutional right of Cook. The Permit Board has determined that additional air pollution control conditions are not necessary to operate the CAFO in compliance with the ambient air quality regulation. That decision is also supported by substantial evidence, is not arbitrary or capricious, is within the power of the Permit Board to make and does not violate a statutory or constitutional right of the Objectors.

The chancellor also noted that “[a]n administrative appeal is not a means to have a court re-weigh evidence and reach a different conclusion.” The chancellor found the Permit Board’s decision was supported by substantial evidence, was not arbitrary or capricious, was within the Permit Board’s power, and did not violate any party’s rights. Therefore, the chancellor affirmed the Permit Board’s decision.

¶ 9. Aggrieved, Kennard filed this appeal, raising three issues for our review: (1) whether the Permit Board’s interpretation of Mississippi Air Quality Standard APC-S-4 was unreasonable and contrary to the regulation’s plain language; (2) whether the Permit Board provided sufficient findings of fact and conclusions of law with respect to the technical and expert evidence presented to it; and (3) whether the Permit Board’s decision not to require a monitoring regime for Cook’s facility was arbitrary and capricious. We find no merit in Kennard’s assignments of error and affirm the chancellor’s judgment.

DISCUSSION

¶ 10. We review this matter under the same standard recognized by the chancellor in his review of the administrative order issued by the Permit Board. Understanding he was not sitting as a fact-finder in a nuisance trial, but rather was acting as an appellate court reviewing a decision of an administrative agency, the learned chancellor articulated the correct standard as follows:

An administrative appeal is not a means to have a court re-weigh evidence and reach a different conclusion. And a permit from an administrative agency is not an authorization to operate a nuisance. A court performs two different functions when determining whether to enjoin a permitted operation as a nuisance and when determining to reverse or affirm an administrative decision. The court must respect that difference. An equity suit is fact driven. An administrative appeal is law driven. Both proceedings are ultimately public policy driven. And public policy is uniquely fitted for the legislature. The legislature has delegated the permitting decision to the Permit Board.

By statutory mandate, “[ajppeals shall be considered only upon the record as made before the Permit Board.” Miss.Code Ann. § 49-17-29(6)(b) (Rev.2002). See also Golden Triangle Reg’l Solid Waste Mgmt. Awth. v. Concerned Citizens Against the Location of the Landfill, 722 So.2d 648, 652 (Miss.1998). This Court has previously held:

Matters of law will be reviewed de novo, with great deference afforded an administrative agency’s construction of its own rules and regulations and the statutes under which it operates. Therefore, an agency’s decision will not be disturbed on appeal absent a finding that it (1) was not supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.

McDerment v. Miss. Real Estate Comm’n, 748 So.2d 114, 118 (Miss.1999) (internal citations omitted).

¶ 11. Substantial evidence is “something less than a preponderance of the evidence but more than a scintilla or glimmer. The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness.” Miss. Dep’t of Envtl. Quality v. Weems, 653 So.2d 266, 280-81 (Miss.1995) (internal citations omitted). An action “is arbitrary or capricious if the agency entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. at 281 (internal citations omitted). A rebuttable presumption exists in favor of agency decisions, and this Court may not substitute its own judgment for that of the agency. Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1216 (Miss.1993).

¶ 12. Against this background of authority and precedent establishing our standard of review, we now proceed to review the Permit Board’s decision.

I. Whether the Permit Board’s interpretation of Mississippi Air Quality Standard APC-S-4 was unreasonable and contrary to the regulation’s plain language.

¶ 13. Kennard takes issue with the Permit Board’s interpretation of Mississippi Air Quality Standard APC-S-4, arguing the Permit Board erroneously focused on a single factor and ignored the factors favorable to the objectors. This led to an unreasonable interpretation of the regulation at odds with its plain and unambiguous language. Therefore, Kennard argues the Permit Board’s decision should be reversed and the matter remanded with instructions as to the regulation’s proper interpretation.

Mississippi Air Quality Standard APC-S-i

¶ 14. This Court’s only precedent addressing state regulation of odor is Mississippi Air & Water Pollution Control Permit Board v. Pets & Such Foods, Inc., 394 So.2d 1353, 1355 (Miss.1981), where this Court reversed the agency’s decision because the regulation in effect at that time failed to set an objective standard “with which to measure concentrations of odors in the ambient air.” The next year, the Legislature addressed the regulation’s deficiency by amending Miss.Code Ann. Section 49-17-19 (Rev.2002) to read, “[i]n establishing ambient air quality standards for odor, the commission shall adopt recognized objective standards if they exist. In the absence of a recognized objective ambient air quality standard for odor, the commission may adopt such subjective standards as may be appropriate.”

¶ 15. Based on the amended statute, the Commission adopted the current version of APC-S-4, which provides:

There shall be no odorous substances in the ambient air in concentrations sufficient to adversely and unreasonably:
(1) affect human health and well-being;
(2) interfere with the use of enjoyment of property; or
(3) affect plant or animal life.
In determining that concentrations of such substances in the ambient air are adversely and unreasonably affecting human well-being or the use or enjoyment of property of plant or animal life, the factors to be considered by the Commission will include, without limiting the generality of the foregoing, the number of complaints or petitioners alleging that such a condition exists, the frequency of the occurrence of such substances in the ambient air as confirmed by the Department of Environmental quality staff, and the land use of the affected area.

Through this amendment, the Commission provided the necessary objective standards by adding three reasonably measurable parameters.

¶ 16. According to Kennard, the Permit Board improperly focused on the second factor, “the frequency of the occurrence of such substances in the ambient air as confirmed by the Department of Environmental quality staff,” and since MDEQ staff could not confirm the existence of off-site odors, the Permit Board obviously failed to consider the other factors when issuing a permit with such lax restrictions. Ken-nard points to passages in the Permit Board’s findings allegedly bearing out this erroneous interpretation, such as the following:

The factors required to be considered by the Commission limit the applicability of the section in recognition that APC-S-4 is a subjective standard, the application of which by the Commission or Permit Board must rely in chief on the expertise of the agency and the evidence gathered by its staff. Thus, the Commission built into the regulation the requirement that violations of the standard be judged not only by the land use of the area and the number of complaints received from the public, but also by the number of times that MDEQ staff can confirm these occurrences. That part of the standard will almost always work to limit the Commission’s and the Permit Board’s involvement with odor issues to those cases where MDEQ staff can verify the nature, frequency, and severity of the complaints.

¶ 17. Generally, this Court accords great deference to an agency’s interpretation of its own rules and regulations. Molden v. Miss. State Dep’t of Health, 730 So.2d 29, 32-33 (Miss.1998). However, where an administrative agency’s interpretation is contrary to the unambiguous terms or best reading of a statutory provision, the agency is not entitled to deference. Miss. Gaming Comm’n v. Imperial Palace of Miss., Inc., 751 So.2d 1025, 1029 (Miss.1999). In this case, we find no error in the Permit Board’s construction and application of the pertinent regulations.

¶ 18. Kennard’s claim that the Permit Board ignored the complaints made by neighbors of the CAFO is not supported by the record. The Permit Board detailed several of the neighbors’ complaints in its findings, and it ultimately affirmed the imposition of multiple air quality control requirements. In fact, the Permit Board noted that “[i]t is chiefly in response to the complaints of offsite odors registered by the Kennard family and other Cook neighbors that MDEQ suggested several odor control features be included in the Cook facility multimedia permit....” Kennard’s dissatisfaction with the extent of air quality control measures ordered by the Permit Board does not indicate the Permit Board disregarded complaints by neighbors or suggest the Permit Board elevated MDEQ staff findings to a level of unwarranted importance.

¶ 19. APC-S-4 requires the Permit Board to examine three relatively objective factors in arriving at its permitting decisions, and the regulation also allows for additional considerations. The Permit Board had before it credible, albeit conflicting, evidence, and we are unable to say it did not consider all of this evidence in arriving at its decision. The record does not indicate the Permit Board’s interpretation and application of APC-S-4 was contrary to the plain language of the regulation. As such, its interpretation is entitled to the requisite deference by this Court. See Miss. State Tax Comm’n v. Mask, 667 So.2d 1313, 1314 (Miss.1995).

Economic burden of air quality control measures

¶ 20. Kennard also argues the Permit Board unreasonably interpreted various regulations to find it “[could not] include terms that impose a large economic burden in the permit.” Not only does Kennard overstate the conclusion of the Permit Board with respect to the role of economically burdensome control measures, Kennard cannot show that the Permit Board’s interpretation of the regulatory scheme was in any way erroneous or unreasonable.

¶ 21. The Mississippi Administrative Procedures Act requires that prior to the adoption of a rule or significant amendment, each agency proposing such rule must consider the “economic impact the rule will have on the citizens of our state and the benefits the rule will cause to accrue to those citizens.” Miss.Code Ann. Section 25-43-3.105 (Rev.2002). Moreover, Miss.Code Ann. Section 49-17-34(2) (Rev.2002) specifically mandates that

[a]ll rules, regulations and standards relating to air quality, water quality or air emissions or water discharge standards promulgated by the commission after April 16, 1993 shall be consistent with and shall not exceed the requirement of federal statutes and federal regulations, standards, criteria and guidance relating to air quality, water quality, or air emission or water discharge standards.[]

¶ 22. Finally, the Legislature has given the following unambiguous instructions regarding the adoption of environmental regulations:

It is the intent of the Legislature to provide protection for the public health and safety and the environment for the citizens of Mississippi. In providing for such protection, the Legislature recognizes that environmental rules and regulations should have an identifiable scientific basis and should be adopted after consideration of the costs to the regulated community of implementing the rule or regulation.

Act of July 1, 1994, ch. 598 § 2(1), 1994 Miss. Laws (codified as amended at Miss. Code Ann. § 49-2-11 (Rev.2002)).

¶ 23. Given this legislative framework, the Permit Board properly read APC-S-4 to require cost effective measures, if possible, to achieve the stated goal of the regulation. Additionally, nowhere in the Permit Board’s findings does the agency state that costly control measures will never be ordered. It simply found that in this case, current violations of APC-S-4 did not exist to a degree that would justify the imposition of conditions in Cook’s permit that would place a potentially insurmountable economic burden on the facility. Crediting the evidence presented by MDEQ staff and the expert testimony of Dr. Mike Williams, the Permit Board found the installation of a windbreak wall was a reasonable means of meeting state air quality standards, and the more elaborate measures advocated by Kennard’s expert, Dr. Ronald Miner, were unnecessary.

¶ 24. Despite Kennard’s protestations to the contrary, the Permit Board obviously determined the requirements it placed in Cook’s air quality permit would result in the facility’s compliance with state air quality standards. Its interpretation of APC-S-4 was neither unreasonable nor contrary to the plain language of the regulation. Therefore, this Court defers to the Permit Board’s interpretation.

II. Whether the Permit Board provided sufficient findings of fact and conclusions of law with respect to the technical and expert evidence presented to it.

¶ 25. Kennard next argues the Permit Board ignored “voluminous technical evidence and expert testimony submitted with respect to the odor and human health impacts of industrial hog farms,” resulting in findings of fact and conclusions of law insufficient for appellate review. Thus, Kennard asks this Court to reverse the Permit Board’s decision and remand the matter so proper findings can be made.

¶ 26. We have held that an agency must clearly explain its factfinding and reasoning for a decision in order to facilitate review by the courts. McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 324 (Miss.1992). Conclusory remarks alone do not equip a court to review the agency’s findings. Miss. Sierra Club, Inc. v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 524 (Miss.2002). Accordingly, findings on factual issues must be specific enough for the reviewing court to determine whether the decision is supported by substantial evidence. Id. at 523.

¶ 27. In this case, the Permit Board was presented with conflicting yet credible testimony from expert witnesses, lay witnesses, and MDEQ staff. The Permit Board drafted twenty-five pages of findings and conclusions which referenced key portions of the evidence offered by Ken-nard. While the findings may not have referred to each piece of technical evidence before the Permit Board, this Court does not require administrative agencies to exhaustively discuss in their findings every bit of evidence presented for their consideration. Rather, the agency’s findings must be specific enough to allow this Court to evaluate whether the decision is supported by substantial evidence.

¶28. The Permit Board has provided such findings, including a discussion of the testimony by Dr. Miner, Kennard’s expert who recommended more restrictive control measures, and an explanation of the technical evidence and testimony refuting Dr. Miner’s conclusions. The findings reveal the Permit Board rejected Dr. Miner’s “worst-case view” based on testimony and technical evidence presented by Dr. Williams; Dwight Wylie, Chief of MDEQ’s Air Division; Jerry Cain, Chief of MDEQ’s Environmental Permits Division;- and the Iowa Concentrated Animal Feeding Operations Air Quality Study, Final Report (Iowa State University and The University of Iowa Study Group, February 2002).

¶ 29. Essentially, the crux of Kennard’s complaint with the Permit Board’s findings is that the agency did not give the desired discussion of or credence to his evidence and expert. However, that dissatisfaction does not equate with insufficient findings. The Permit Board included ample discussion of the reasoning for its findings, allowing for proper appellate review. The Permit Board found that odor problems existed at Cook’s facility, although perhaps not to the extent argued by Kennard, and it took positive steps to address those problems with the inclusion in Cook’s permit of an air pollution chapter requiring several control measures, including a windbreak wall. Finally, it fully explained its decision not to include further measures suggested by Kennard’s expert, Dr. Miner.

¶ 30. The Permit Board provided sufficient findings of fact and conclusions of law with respect to the technical and expert evidence presented to it. The decision to affirm the air permit as previously issued was supported by substantial evidence, was neither arbitrary nor capricious, was within the Permit Board’s power, and was not violative of any party’s rights. As such, this Court affirms the Permit Board’s decision.

III. Whether the Permit Board’s decision not to require a monitoring regime for Cook’s facility was arbitrary and capricious.

¶ 31. Kennard finally argues the Permit Board’s failure to require a program to monitor odor as a term in Cook’s permit was arbitrary, capricious, and contrary to law. We find no legal merit to this argument. As a separate issue, the Permit Board directed MDEQ staff “to develop a monitoring program around the Cook facility to try to determine with some degree of accuracy the strength and frequency of occurrence of offsite odor,” and to report back with its findings. Then, should the collection of additional data so require, the permit could be reopened and amended based on the new information. As previously noted, the Permit Board believed that Cook’s facility emitted some amount of objectionable odor, but its extent was difficult to quantify. The Permit Board’s decision to further study the situation and possibly revise the permit based on the results of that study cannot be considered arbitrary or capricious.

CONCLUSION

¶ 32. Faced with conflicting yet credible testimony, the Permit Board made the following observation:

Put bluntly, if the Permit Board accepts only the testimony of Kennard’s witnesses, then the permit recommendations of MDEQ are not sufficient. But if the Permit Board accepts only the testimony of Cook’s witnesses, then the Permit Board has no justification for requiring the additional odor and emission control elements of the multimedia permit. The Permit Board finds that the objective truth, if such a state exists with odor, is somewhere in the middle.

After evaluating the evidence presented by both sides, the Permit Board arrived at a decision imposing several air quality control requirements on Cook’s facility. We agree with the chancellor that the Permit Board’s decision was supported by substantial evidence and may not be disturbed on appeal.

¶ 33. Kennard’s attack on the Board’s decision is very different from a claim of nuisance or some other civil wrong which requires a showing of wrongful conduct directed at him. In his appeal of the decision of the Permit Board, the sole question is whether the Permit Board’s decision to issue the permit was supported by substantial evidence in the record and within the body’s legislative grant of authority. It was, and therefore we affirm both the judgment of the chancellor and the decision of the Permit Board.

¶ 34. AFFIRMED.

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

APPENDIX

a. The air requirements chapter requires the following best management practices:
1. Operators of the facility shall practice odor control methods during the course of manure removal and field application. Odor control methods shall be those methods identified in the Comprehensive Nutrient Management Plan (CNMP) created for the facility. Odor reduction and control shall be obtained through chemical, biological, or mechanical means where deemed appropriate.
2. Operators shall consider wind direction and other relevant conditions before spray application occurs.
3. Low pressure systems shall be used and spray head orientation such to minimize aerosol drift and stripping of volatile compounds.
4. Influent pipes shall not be designed such that a free fall of wastes occurs from the influent pipe to the lagoon or from the houses to the lagoon surface. Influent pipes shall be designed for below-water discharge into the lagoons.
5. Dead animals shall be stored in closed containers. These “dead boxes” shall be completely closed and sealed at all times except when depositing carcasses. Containers with damaged lids are prohibited. The Pollution Prevention Plan shall include an approvable method of treatment and/or disposal of contaminated soils around the dead animal handling and storage areas.
6. Facilities shall not expand operations, either in size or number of animals, prior to amending or enlarging the waste handling procedures and structures to accommodate any additional wastes that will be generated by the expanded operations. The facility shall not be expanded without Permit Board approval.
7. Waste handling, treatment, and management shall not result in the destruction or adverse modification of the critical habitat of endangered or threatened species, or contribute to the taking of endangered or threatened species of plant, fish, or wildlife.
8. Solids, sludges, manure, or other pollutants removed in the course of treatment or control of wastewa-ters shall be disposed of in a manner such as to prevent significant degradation of ambient air quality.
9. Dead animals shall be properly disposed of off-site within three (3) days unless otherwise provided for by the State Board of Animal Health. Animals shall be disposed of in a manner to prevent significant degradation of ambient air quality. Incinerators require additional permit coverage from the Department and are not allowed by the issuance of this permit.
10.Collection, storage, and disposal of liquid and solid waste should be managed in accordance with recognized practices of good agricultural management. The economic benefits derived from agricultural operations carried out at the land disposal site shall be secondary to the proper disposal of waste.
b. The air requirements chapter requires the permittee to submit a study plan to the Permit Board to determine the optimum barn flushing frequency in order to minimize odors associated with barn flushing by April 12, 2002 and begin implementation of the study plan by April 26, 2002. ■
c. The air requirement chapter requires the permittee to construct a dust control barrier (commonly known as an air dam or windbreak wall, or the equivalent) at a suitable distance behind the exhaust fans of each housing unit. The barrier shall extend from the ground to a height exceeding the tallest exhaust fan mounted in the housing unit and shall be as wide as the housing unit. Alternatively, mechanical dust collection devices may be installed on the individual exhaust fans.
d. The multimedia permit includes the broad reopener provision, as follows:
This permit shall also be modified, or alternatively, revoked and reissued, for the inclusion of new Best Management Practices (BMPs) and technology requirements if the BMPs and technology requirements so approved:
(a) Contain different conditions or are otherwise more stringent than any BMP or technology requirement in the permit; or control any pollutant not limited in the permit.
(b) The Air Pollution Control Requirements established in this permit are subject to revision if and when more stringent regulatory requirements become applicable.

      . See the appendix for a list of the control features added to Cook’s NPDES permit in the new air requirements chapter.

      . Kennard’s position that the Permit Board's decision is no more than a litigating position, and thus not entitled to deference, is equally unpersuasive. The Permit Board considered the necessary factors under APC-S-4 and arrived at a decision supported by substantial evidence.

      . Significantly, there are no federal air quality standards.

      . Kennard’s charge that the Permit Board's decision was merely a way to avoid making a difficult and politically volatile decision is completely unsupported by either the facts or the law, and it does not warrant discussion by this Court.


author: WALLER, Presiding Justice, EASLEY, Justice,

text:
    The ESTATE OF Samuel JOHNSON, M.D. v. Joshua Cosby CHATELAIN, a Minor, By and Through His Mother and Adult Next Friend, Theresa CHATELAIN.
    No. 2005-IA-00642-SCT.
    Supreme Court of Mississippi.
    Nov. 30, 2006.

      Mildred M. Morris, Molly M. Walker, Jackson, attorneys for appellant.
    J. Andrew Phelps, Hattiesburg, William L. Ducker, Purvis, attorneys for appellee.

      Before WALLER, P.J., EASLEY and GRAVES, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This medical malpractice case concerns a physician who was working at a state hospital at the time the alleged negligence occurred. The circuit court denied the physician’s motion for summary judgment based on sovereign immunity. We find that sovereign immunity does apply, and we reverse the circuit court’s judgment, and render judgment for the physician’s estate.

FACTS

¶2. Samuel Johnson, M.D., Professor and Director of Ophthalmology at the University of Mississippi Medical Center, performed surgery on Joshua Chatelain, then nearly twenty-five (25) months old, to correct the child’s estropia (“cross-eye” syndrome). Both parties agree that Joshua’s estropia was corrected and has remained so; Dr. Johnson performed tests for vision prior to and after the surgery; Joshua seemed to pass these tests; and both Dr. Johnson and Joshua’s mother, Theresa Chatelain, assumed that Joshua had sight in both eyes before and immediately after surgery.

¶ 3. A few months after the surgery, Theresa allowed Jonathan Calkwood, M.D., a neurologist, to examine Joshua’s eyes. Theresa alleges that Dr. Calkwood stated that Joshua had been blind in his right eye since birth and that the surgery performed for estropia would not have improved visual acuity in that eye.

¶ 4. Theresa filed a medical malpractice suit in Hinds County Circuit Court against Dr. Johnson, alleging that Dr. Johnson performed an unnecessary, merely cosmetic, surgery, thereby causing unnecessary pain and anguish which amounted to gross negligence. Theresa asked for an award of punitive damages in addition to actual damages.

¶ 5. The circuit court denied Dr. Johnson’s motion for summary judgment, ruling that the question of whether Dr. Johnson was a state employee remained in dispute and that the issue was one for a jury to decide. We granted Dr. Johnson permission to appeal from this ruling. See M.R.A.P. 5.

¶ 6. Johnson raises two issues: (1) whether Dr. Johnson is protected by sovereign immunity; and (2) whether the plaintiff provided genuine issues of material fact.

DISCUSSION

¶ 7. We conduct a de novo review when reviewing a lower court’s grant or denial of summary judgment. Saucier ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351, 1354 (Miss.1998). The evidence must be viewed in the light most favorable to the non-moving party. Id.

¶ 8. Summary judgment is proper if there is no genuine issue of material fact. M.R.C.P. 56(c). The burden of demonstrating that there is no genuine issue of material fact falls upon the party requesting the summary judgment. Corey v. Skelton, 834 So.2d 681, 684 (Miss.2003). We must carefully review all evidentiary matters before the Court — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. — in the light most favorable to the party against whom the motion for summary judgment is made. Id. In Corey, we also stated:

[When] a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of his pleadings; his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed.

Id. at 684 (citing Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000)). It is not our duty to weigh the competing evidence; it is our duty to determine if there is conflicting evidence for trial. Id.

SOVEREIGN IMMUNITY

¶ 9. Dr. Johnson performed surgery on Joshua on March 3, 1993. The statute pertaining to sovereign immunity, as it existed in March of 1993, provided that, “[f]rom and after July 1, 1992, as to the state, and from and after October 1, 1992, as to political subdivisions ... no employee shall be held personally hable for acts or omissions occurring within the course and scope of the employee’s duties.” Miss.Code Ann. § 11-46-7(2) (Supp.1991). The presumption of an employee’s actions being within the scope of employment is rebuttable. Miss.Code Ann. § 11-46-5(3) (Supp.1991).

¶ 10. The circuit court denied Dr. Johnson’s motion for summary judgment because it found that a question of fact existed as to Dr. Johnson’s status as a state employee. Courts consider the following factors in determining whether a physician is acting as a state employee: (1) the nature of the function performed; (2) extent of state’s interest; (3) degree of control and direction exercised by the state over the employee; (4) level of judgment and discretion required to perform act; and (5) compensation received for services rendered. Sullivan v. Washington, 768 So.2d 881, 884 (Miss.2000); Miller v. Meeks, 762 So.2d 302, 310 (Miss.2000). With few exceptions, independent contractors are excluded from the definition of “state employee” and therefore do not benefit from the provisions of the sovereign immunity statutes.

1. The Nature of the Ftmction Performed.

¶ 11. Attached to the motion for summary judgment was an affidavit from a member of the Board of Trustees of State Institutions of Higher Learning averring that, during the surgery, Dr. Johnson functioned as an attending physician and as a supervisor over a resident physician. He did not have a private patient relationship with Joshua; rather, he served a public function by providing care for a patient who had little ability to pay.

2. The Extent of the State’s Interest.

¶ 12. The State has a strong interest in maintaining a practical and educational environment for residents and supervising physicians in its state hospitals, meeting the needs of both the physicians and the patients. Sullivan, 768 So.2d at 885. Also, UMMC is fulfilling its operational purpose under Miss.Code Ann. § 37-115-31 (1996) by providing care to Joshua, regardless of his ability to pay.

3. The Degree of Control and Direction Exercised by the State Over the Employee.

¶ 13. The fact that Dr. Johnson was obligated to fulfill his duty as teacher and supervisor of residents at the time of the surgery and throughout Joshua’s treatment shows a certain amount of control exercised by UMMC. There was less state control exercised over the actual performance of the surgery and subsequent diagnosis and treatment. However, state control existed in the form of regulations.

4. Level of Judgment and Discretion Required to Perform Act

¶ 14. Dr. Johnson exercised some amount of judgment and discretion in his treatment, observations and diagnosis of the child. However, as in Sullivan,

while this is a consideration, it is not determinative. Virtually every act performed by a person involves the exercise of some discretion. Obviously, a professional necessarily retains a significant amount of discretion in the operation of his profession. This is especially true of physicians who are bound to exercise their judgment without interference from others. The Hippocratic Oath requires that the physician “... use [his] power to help the sick to the best of [his] ability and judgment.”

Sullivan, 768 So.2d at 885 (quoting Miller v. Meeks, 762 So.2d 302, 310 (Miss.2000)).

5. Compensation Received for Services Rendered

¶ 15. The affidavit stated that Dr. Johnson was not an independent contractor and that billing for physician care was done through the medical departments. It is mandated that the money received by the Ophthalmology Department is to be collected and shared with UMMC under a percentage arrangement.

¶ 16. In Sullivan, we found certain factors, factors which are also found in the present case, to be indicative of a state employed physician, including the following:

a. Treatment of patients in a facility provided by UMMC which was used as a base for teaching. In Sullivan, we found that physicians-professors functioning in this environment play a vital part in a working teaching hospital where the primary purpose is to educate future doctors in the State of Mississippi.
b. Supervision of the progress of interns and residents provides the training necessary to ensure that Mississippi has a ready pool of competent physicians, which constitutes a strong state interest.
c. An assignment to the operating room to supervise a student indicates state control over the employee.
d. Serving a public function by providing care for patients unable to pay indicates state interest and state control.
e. State control is suggested where a physician cannot choose his patients.
f. No private patient relationship with the patient/plaintiff indicates that the physician is a state employee rather than an independent contractor.
g. Although the physician must exercise his own discretion and judgement in the treatment procedures, this fact does not necessarily prove that the physician is an independent contractor since any professional must exercise some discretion of his own to perform his duties properly. Sullivan, 768 So.2d at 884-85.

¶ 17. In Sullivan, we found that these factors weighed in favor of determining that the physician is a state employee and not an independent contractor.

¶ 18. After evaluating Dr. Johnson’s circumstances under these factors, we find that Dr. Johnson fits well within the definition of a state employee who enjoys immunity.

¶ 19. There is further evidence that Dr. Johnson acted as a state employee. The affidavit states that UMMC employed Dr. Johnson and that the hospital is owned and operated by the Board on behalf of the State of Mississippi. It affirms that Dr. Johnson was employed by that hospital throughout the treatment of the child.

¶20. Miss.Code Ann. § 11-46-5(3) (1991), the applicable statute at the time of the incident at issue, states that “it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.” On appeal, Theresa does not challenge the fact that Dr. Johnson was an employee of the State.

¶ 21. Additional evidence suggests that there was never a dispute over whether Dr. Johnson was an employee:

¶22. Paragraph 6 of Johnson’s motion for summary judgment states that the physician was an employee of the state. In response, Theresa admitted that “apparently Dr. Johnson was an employee of the University Medical Center.”

¶23. Paragraph 1 of the motion for summary judgment states that Dr. Johnson was licensed in the State of Mississippi and was a Professor and Chairman of the Ophthalmology Department at UMMC and then directs the reader to Dr. Johnson’s affidavit which was attached. In the response to the motion, Theresa admits paragraph 1 but denies the issues in three paragraphs of the Johnson affidavit — paragraphs 12, 13 and 14. The rest of Johnson’s affidavit is uncontested.

¶ 24. In paragraph 4 Johnson states that he has a contract with the State and is an employee of the State, which is uncontested for purposes of summary judgment consideration.

¶ 25. Johnson’s status as a state employee, the affidavit from the Board, Theresa’s failure to rebut the presumption and the fact that Johnson clearly met the Sullivan standard of state employment lead us to find that the circuit court’s conclusion that there were genuine issues of material fact as to whether Johnson was a state employee and the subsequent denial of summary judgment was clearly in error.

¶26. Although the circuit court addressed only the state employment status issue and was in error on that issue, we will address the remaining issue of whether sovereign immunity applied to Dr. Johnson.

¶27. Johnson claims that the circuit court erroneously relied on Sparks v. Kim, 701 So.2d 1113 (Miss.1997), as a basis for denial of summary judgment. Sparks holds that the sovereign immunity doctrine is not to be applied retroactively. Id. at 1114. It may be inferred that the circuit court believed that Johnson contended the 1993 amendments to the sovereign immunity statutes applied to him retroactively, although the circuit court never explicitly stated so. It did, however, state that it “acknowledges that in accordance with Mississippi law, retroactive application of the Sovereign Immunity Doctrine is not allowed,” and then cited to Sparks. It may be inferred that this is one reason for the denial of summary judgment.

¶ 28. Johnson contends that his source of defense does not stem from the 1993 amendments, but from the amendments to Miss.Code Ann. § 11-46-3 (Supp.1995) and Miss.Code Ann. § 11-46-6 (Supp.1995) which were made effective as of September 16, 1992, by the 1992 Extraordinary Session of the Mississippi Legislature.

¶ 29. Furthermore, he argues, the circuit court did not apply Jones v. Baptist Memorial Hospital-Golden Triangle, Inc., 735 So.2d 993, 996 (Miss.1999), which explicitly states that “ § 11-46-3 and § 11-46-16 of House Bill No. 2 (1992) [of the 1992 Special Session Amendments to the Mississippi Code Annotated (1972)] as well as Miss.Code Ann. § 11-46-7(2) ... are controlling regarding the law of sovereign immunity in causes of action which accrued from September 16, 1992, until April 1, 1993.” Id. The surgery occurred within the controlling time frame — in March of 1993.

¶ 30. Johnson was employed by the State at the time in question and the laws of the 1992 Extraordinary Session provide immunity to physicians at the time of the incident. We find that Johnson was immune from suit throughout his treatment of the child and that, therefore, he was erroneously denied summary judgment.

CONCLUSION

¶ 31. Because Theresa has failed to create an issue of material fact as to Dr. Johnson’s status as a governmental employee, we find that the circuit court erred in denying Dr. Johnson’s motion for summary judgment. Therefore, we reverse the circuit court’s judgment and render judgment here finally dismissing with prejudice the plaintiffs complaint and this action against the Estate of Dr. Johnson.

¶ 32. REVERSED AND RENDERED.

SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.

EASLEY, Justice,

Specially Concurring.

¶ 33. While I am sensitive to any allegations of harm to a child, I cannot ignore the weaknesses of this case, both legally and factually. This case demonstrates a complete and utter lack of a maintainable cause of action against the late, Dr. Samuel Johnson, a former professor and Chairman of the Ophthalmology Department at the University of Mississippi Medical Center (UMMC). First, the majority is correct in its holding that the cause of action against Dr. Johnson’s estate is barred by the doctrine of sovereign immunity.

¶ 34. The majority provides a detailed analysis of the factors that outline Dr. Johnson’s status as an employee of the State employed at UMMC at the time in question that the eye surgery was performed. UMMC is a teaching institution operated by the Board of Trustees of State Institutions of Higher Learning, a state agency. Even the plaintiff, Joshua Chate-lain’s mother, admitted in her affidavit in response to the motion for summary judgment that Dr. Johnson was a state employee employed by UMMC. Chatelain’s surgery was performed at UMMC and the billing was handled by UMMC. Dr. Johnson was employed by UMMC throughout the treatment provided to Chatelain.

¶ 35. In Pickens v. Donaldson, 748 So.2d 684, 687 (Miss.1999) this Court held that:

The MTCA [Mississippi Torts Claim Act] provides:
the exclusive civil remedy against a governmental entity or its employee for acts or omission which give rise to a suit.

See City of Tupelo v. Martin, 747 So.2d 822, 826 (Miss.1999) (the MTCA provides the exclusive remedy for an injured party by a governmental entity’s act or omissions); see also Miss.Code Ann. § 11-46-7(1). Miss.Code Ann. § 11-46-5(3) (1992), applicable at the time, provides:

[I]t shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.

(Emphasis added).

¶ 36. Here, the plaintiffs failure to rebut the presumption that Dr. Johnson was a state employee and the facts that demonstrate that Dr. Johnson was a state employee at the time of the treatment leaves no question that sovereign immunity applied. Accordingly, Dr. Johnson’s estate is clearly immune from being sued in his individual capacity.

¶ 37. Secondly, even if that Dr. Johnson was not immune as a state employee, the facts regarding Chatelain’s treatment provided by Dr. Johnson fail to demonstrate any medical malpractice. The plaintiff failed to offer any affidavit or sworn testimony from any medical expert that Dr. Johnson acted with gross negligence in performing the surgery. The trial court should have granted the motion for summary judgment based on the plaintiffs failure to demonstrate the existence of a material fact. See Moss v. Batesville Casket Co., 935 So.2d 393, 398 (Miss.2006). In Batesville Casket Co., this Court held:

Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c); see Saucier ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351, 1354 (Miss.1998). The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). See also Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). A fact is material if it “tends to resolve any of the issues properly raised by the parties.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995).
“If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.” Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001).

Batesville Casket Co., 935 So.2d at. 398 (emphasis added).

¶ 38. Had Dr. Johnson not performed the corrective eye surgery, Chatelain would have spent the rest of his life cross-eyed. Surely, the plaintiff does not expect the Court to accept that she would have refused to help her son correct this situation. The plaintiff sought Dr. Johnson to perform the procedure, and the surgery was performed when Chatelain was twenty-five months old. The surgery was apparently successful. Even the plaintiff does not dispute that the estropia, or cross-eyed syndrome, was corrected. The facts do not reveal that Chatelain’s suffered any complications from the surgery to correct the estropia.

¶ 39. Further, neither Dr. Johnson nor the plaintiff was aware of Chatelain’s blindness in his right eye. Months later, it was discovered that Chatelain had been blind in his right eye since birth. There is no evidence or allegation that the blindness in the right eye was attributable to the surgery by Dr. Johnson. Based on the facts that Chatelain only has vision in his left eye, would the plaintiff want her son’s cross-eyed syndrome to remain uncorrected? What harm resulted from the correction of Chatelain’s cross-eyed syndrome?

¶ 40. In fact, the sole allegation in the complaint amounts to Dr. Johnson performing a purely cosmetic, unnecessary surgery on Chatelain. The plaintiff seeks not only alleged actual damages but also punitive damages for Dr. Johnson’s alleged gross negligence. Obviously, the complaint is completely devoid of merit. For the reasons stated herein, I am compelled to write separately to find that the trial court erred in denying the motion for summary judgment.

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

      . During the course of the suit, Dr. Johnson died, and Theresa amended the complaint to name Dr. Johnson's estate as the defendant.

      . Miss.Code Ann. § 11-46-7(1) (1991), applicable at the time, provides:
      The remedy provided by this chapter against a governmental entity or its employee is, from and after July 1, 1992, as to the state, and, from and after October 1, 1992, as to political subdivisions, exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee or the estate of the employee for the act or omission which gave rise to the claim or suit; and any claim made or suit filed against a governmental entity or its employee to recover damages for any injury for which immunity has been waived under this chapter shall be brought only under the provisions of this chapter, notwithstanding the provisions of any other law to the contrary.
      (Emphasis added).


text:
    Roger WEINER, M.D. v. Scotty A. MEREDITH, Coahoma County Coroner.
    No. 2005-CA-02329-SCT.
    Supreme Court of Mississippi.
    Nov. 30, 2006.

      Mark P. Caraway, Cory Louis Radicioni, Jackson, attorneys for appellant.
    Tom T. Ross, Jr., Clarksdale, attorney for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. Following his patient’s death, a physician completed a death certificate stating that the cause of death was congestive heart failure due to coronary artery disease. Thereafter, the county coroner filed a death certificate which proclaimed the cause of death to be closed head trauma. The physician who disagreed with the coroner’s finding petitioned the chancery court for an amendment to the death certificate which had been filed with the Mississippi Department of Health. The question presented is whether the chancery court had jurisdiction to conduct an evi-dentiary hearing to determine the cause of death and amend the death certificate.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On January 28, 2005, Thomas Harrell was admitted to Northwest Mississippi Regional Medical Center in Clarksdale. According to a letter from Dr. Steven Hayne to Coahoma County Coroner Scotty A. Meredith, Harrell had suffered a traumatic injury to the head and never regained consciousness. On February 11, 2005, Harrell was pronounced dead by Vernon T. Hughes, Jr., D.O. Dr. Roger Weiner, who was Harrell’s treating physician, completed a death certificate stating the cause of death to be “Congestive Heart Failure” due to “Coronary Artery Disease.” Some of Harrell’s family members contacted the coroner’s office about the cause of death listed by Dr. Weiner.

¶ 3. Meredith, acting in his capacity as Coroner of Coahoma County, reviewed the medical records and interviewed Dr. Hayne. He then, on February 28, 2005, filed a death certificate with the Mississippi Department of Health listing Harrell’s cause of death as “Closed Head Trauma.”

¶ 4. Because he disagreed with the Coroner, Dr. Weiner petitioned the Chancery Court of Coahoma County to hold an evi-dentiary hearing on the matter and amend the death certificate. On November 23, 2005, the chancellor held he had no jurisdiction to hear the matter, and he denied the relief requested by Dr. Weiner. Dr. Weiner appealed.

DISCUSSION

I.

¶ 5. This is a case of first impression for this Court. Because we find the statutes pertinent to this case to be unambiguous, we apply the plain meaning of the statutes to the issues before this Court. See Walker v. Whitfield Nursing Ctr., Inc., 931 So.2d 583, 590 (Miss.2006). We must apply a de novo standard of review in determining whether the chancery court has jurisdiction to hear a particular matter. C.T. v. R.D.H. (In re D.N.T.), 843 So.2d 690, 697 (Miss.2003). Likewise, this Court applies a de novo standard of review to matters regarding statutory interpretation. Austin v. Wells, 919 So.2d 961, 964 (Miss.2006).

II.

¶ 6. The first issue raised by Dr. Weiner is whether the chancellor erred in finding the chancery court, under Miss. Code Ann. Section 41-57-13, had no jurisdiction to conduct the hearing and amend the death certificate. Dr. Weiner argues that the chancery court indeed had jurisdiction to amend Harrell’s death certificate pursuant to the plain language of the following statute:

Death certificate errors in the recording of personal information of the deceased may be corrected by affidavit of the informant and the funeral director of the funeral home that disposed of the body. Items in the medical certification or of a medical nature may be amended upon receipt of the specified amendment form from (a) the person originally certifying the information or, if deceased or incapacitated, from the person responsible for the completion of such items, or (b) the State Medical Examiner. All other amendments to a death certificate require adjudication by a chancery court in the county of residence of the complainant or in any chancery court district in the state if the complainant is a nonresident....

Miss.Code Ann. § 41-57-13(1) (Rev.2005) (emphasis added).

¶ 7. Dr. Weiner argues his requested amendment to Harrell’s death certificate falls under the “all other amendments” provision of the statute and, therefore, requires an “adjudication by a chancery court.” We agree.

¶ 8. While the determination and certification of the cause of death are items within the meaning of “in the medical certification” and “of a medical nature,” the statutory term “may,” as used in the second sentence of this provision, is a permissive term, not a mandatory term, such as “shall.” In other words, the statute specifically provides that errors in a death certificate “in the medical certification” or relating to an item “of a medical nature” may be amended by the person originally certifying the information — in this case, the Coroner — or by the State Medical Examiner using a specified form. This gives those two specified persons the ability to amend the death certificate as to items “in the medical certification” or relating to an item “of a medical nature” without having to go to the chancery court. In contrast, the last sentence of the statute requires “all other amendments,” that is, all amendments not concerning errors in the recording of personal information and items not in the medical certification and of a medical nature sought to be amended upon specified form by either the person originally certifying the certificate or the State Medical Examiner, be adjudicated in the chancery court.

III.

¶ 9. Dr. Weiner argues that the “all other amendments” provision of the statute gives the chancery court jurisdiction to amend Harrell’s death certificate as to the cause of death. In arguing that the chancery court has jurisdiction over his claim pursuant to Miss.Code Ann. Section 41-57-13(1), Dr. Weiner states “[t]he statute, by its plain language does not preclude actions to amend certificates that are brought by someone other than the person originally certifying and the State Medical Examiner.” A plain reading of the statute supports Dr. Weiner’s argument.

¶ 10. The statute does not preclude actions to amend death certificates as to the cause of death that are. brought by someone other than the person originally certifying or the State Medical Examiner. The statute simply provides that items “in the medical certification” and “of a medical nature” can be amended by either the person originally certifying the certificate or by the State Medical Examiner on a specified, form. The Legislature, according to the plain language of Miss.Code Ann. Section 41-57-13(1), simply allowed the person originally certifying the certificate or the State Medical Examiner. to amend the death certificate by specified form, rather than having to adjudicate the amendment before a chancery court. This is a reasonable reading of the statute, since it is likely that such an amendment would not involve a conflict between two parties, but a mere error in the medical certification that would need to be corrected by either the person originally certifying the certificate or the State Medical Examiner.

¶ 11. An even more convincing argument, although not specifically addressed by the parties, is the existence of the permissive term “may,” rather than the mandatory term “shall” in the statute. This- Court has consistently held that “in construing the meaning of statutes ... the word ‘may’ is generally considered permissive or discretionary as opposed to mandatory....” McNeil v. Hester 753 So.2d 1057, 1072 (Miss.2000). See also Murphy v. State, 253 Miss. 644, 649, 178 So.2d 692, 693 (1965); Leflore Bank & Trust Co. v. Leflore County, 202 Miss. 552, 558, 32 So.2d 744, 746 (1947). In applying this rule, it is clear that the second sentence of Miss.Code Ann. Section 41-57-13(1) simply permits the person originally certifying the death certificate or the State Medical Examiner to present a specified amendment form and amend “items in the medical certification” or “of a medical nature.” The statute does not provide that' an amendment in the medical certification or of a medical nature can only be made by the person originally certifying the death certificate or the State Medical Examiner.

• ¶ 12. This Court reads the statute to allow items “in the medical certification” and “of a medical nature” (such as the cause of one’s death) to be handled in a certain procedural way by two specified persons. The “all other amendments” language which follows means that any other dispute concerning information on a death certificate, whether medical or otherwise, requires adjudication by a chancery court in the county of residence of the complainant or in any chancery court district in the state if the complainant is a nonresident. Since the requested amendment in this case was not made by Meredith or the State Medical Examiner, a plain application of the statute simply results in a finding that the amendment cannot be made by an amendment form, bnt instead must be adjudicated in the chancery court.

¶ 13. We find the chancellor erred in his interpretation of Miss.Code Ann. Section 41-57-13(1). The chancery court, therefore, does have jurisdiction to hold an evidentiary hearing and rule on whether Harrell’s death certificate should be amended as to the cause of death.

IV.

¶ 14. Dr. Weiner also argues that the Coroner “did not have authority in this matter because Harrell’s death did not ‘affect the public interest.’ ” Meredith argues, however, that he was acting pursuant to his statutory authority as a county medical examiner investigator. Having decided that the chancellor erred by finding no jurisdictional basis to amend Harrell’s death certificate pursuant to Miss. Code Ann. Section 41-57-13(1), we find this argument to be moot, and, therefore, we will not address the merits of this claim.

V.

¶ 15. Dr. Weiner next argues that the procedural and/or substantive deficiencies in Meredith’s investigation are not “of a medical nature” and therefore, should be adjudicated under the “all other amendments” provision of Miss.Code Ann. Section 41-57-13. Specifically, in addition to seeking an amendment to the death certificate, Dr. Weiner asserts that (1) Meredith did not have “authority” to issue a certificate of death in this case, and (2) Meredith failed to comply with procedural and/or substantive requirements in determining the cause of Harrell’s death, causing the death certificate to be invalid. Again, having previously determined that the chancellor erred by finding no jurisdictional basis to amend Harrell’s death certificate pursuant to Miss.Code Ann. Section 41-57-13(1), we find this argument to be moot, and we will not address the merits of this claim.

VI.

¶ 16. Meredith argues that, pursuant to Miss.Code Ann. Section 41-61-65(3) (Rev.2005), the circuit court has authority to hear this case. Dr. Weiner, on the other hand, argues that the provisions of that section do not govern this case because this “cause of action also seeks adjudication of procedural and/or substantive aspects of Meredith’s investigation,” and “matters under the statute are more appropriately limited to ‘autopsy’ determinations by the medical examiner.”

¶ 17. There is no evidence in the record that either party preserved these arguments by presenting them to the chancery court. Only now on appeal do the parties raise the applicability (or non-applicability) of Section 41-61-65. It is well established that this Court does “not entertain arguments made for the first time on appeal as the ease must be decided on the facts contained in the record and not on assertions in the briefs.” Chantey Music Publ’g, Inc. v. Malaco, Inc., 915 So.2d 1052, 1060 (Miss.2005). Therefore, adhering to our established precedent, we will not address the merits of these arguments.

CONCLUSION

¶ 18. This Court concludes that the disagreement between Dr. Weiner and Meredith should be heard in chancery court pursuant to Miss.Code Ann. Section 41-57-13(1). The chancellor, erred in determining that Miss.Code Ann. Section 41-57-13 provides no jurisdictional basis for the chancery court to amend the death certifícate under these circumstances. Therefore, we reverse the chancellor’s Order denying Dr. Weiner’s Request for an Evidentiary Hearing and Request for Amendment of Harrell’s death certificate as to the cause of death and remand this case to the chancery court for an eviden-tiary hearing and ruling on whether Harrell’s death certificate should be amended.

¶ 19. REVERSED AND REMANDED.

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

      . Although Meredith contends this issue is properly before the Court because jurisdictional matters may be raised at any stage in a proceeding, this case was not dismissed for lack of jurisdiction, but rather, the chancellor denied Dr. Weiner’s petition.


author: SMITH, Chief Justice, DIAZ, Justice,

text:
    David COLEMAN, Jasper Denson, William Elm, James Lee Gill, James F. McGowan and William Mulligan v. A-BEX CORPORATION., et al.
    No. 2005-CA-01038-SCT.
    Supreme Court of Mississippi.
    Nov. 30, 2006.

      Robert Gordon Taylor, III, Robert A. Pritchard, Jackson, Helen E. Swartzfager, Laurel, attorneys for appellants.
    T. Hunt Cole, Jr., Thomas W. Tardy, III, Laura Devaughn Goodson, Edwin S. Gault, 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 “Coleman”) who allege they suffered injuries caused by exposure to asbestos. This appeal began after the trial court severed the claims of plaintiffs in an asbestos case. 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 the six plaintiffs who were neither residents of the state of Mississippi nor claimed exposure to asbestos within the state were dismissed without prejudice.

¶ 2. Concerned about their ability to maintain suit in other jurisdictions, these six persons filed this appeal. They assign four errors to the dismissal without prejudice. Restated, and placed in logical order, they ask:

I. WHETHER THE CIRCUIT COURT IMPROPERLY APPLIED MISS. R. CIV. 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 OF 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.

¶ 3. 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.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶4. This case was originally filed on February 4, 2000, with eleven plaintiffs and 77 defendants. On October 12, 2004, Laurel Machine & Foundry Company filed a Motion to Dismiss predicated upon our order in Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 498 (Miss.2004), alleging that the “[t]he complaint fail[ed] to include basic information required by Mangialardi, and the complaint fail[ed] to meet the standards required by Mangia-lardi.” The plaintiffs 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.

¶5. The trial court ordered that the plaintiffs 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. This information would be used to transfer the plaintiffs to proper venues.

¶ 6. Over the next weeks, the plaintiffs began to produce the information required by the order, which in many cases demonstrated that the plaintiff had no connection with the state of Mississippi. For instance, plaintiff David Coleman is a resident of McKeesport, Pennsylvania, who alleged he was exposed to asbestos in Duquesna, Pennsylvania. The plaintiffs continued to insist that venue in a Mississippi jurisdiction was still proper.

¶ 7. On April 29, 2005, the trial court entered a subsequent order which held that it would “comply with the Mississippi Supreme Court’s recent rulings with regard to subject matters” like the one at hand, and ordered the claims of six plaintiffs dismissed without prejudice. Those plaintiffs appealed to this Court from the order dismissing their case. It is not contested that the six plaintiffs are not residents of Mississippi and do not allege exposure to asbestos in this State.

STANDARD OF REVIEW

¶ 8. 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.

¶ 9. Coleman argues that this case was properly filed in 2000, and that the amendments in the substance and comment of Rule 20 in 2004 should not be applied retroactively as to effect their case. Coleman 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.

¶ 10. First, it should be made clear that this is not a forum non conve-niens case. This is simply a Rule 20 join-der issue, which the Court has already addressed in Albert v. Allied Glove Corp., No. 2005-CA-01022-SCT, 944 So.2d 1, 2006 WL 3437801 (Miss.2006). In Albert, this Court mandated that the changes in Rule 20 must be applied to pending eases. We made expressly clear that we will continue to recognize the precedent of Ar-mond 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 ferial 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; 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.

¶ 11. Coleman and the other five plaintiffs 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 Coleman, 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, Coleman argues that the defendants should be required to waive the statute of limitations for the time period the cases were on file in Mississippi.

¶ 12. However, Coleman’s reliance on the doctrine of forum non conveniens is misplaced. 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. 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 OF THE UNITED STATES CONSTITUTION.

¶ 13. Coleman also argues 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 of the United States Constitution. Citing Garrett v. Gay, 394 So.2d 321, 322-23 (Miss.1981), Coleman argues that his personal injury claims are property rights and dismissal had caused him to suffer the loss of these rights. However, Coleman does not cite to any cases in support of his position that, by retroactive application of the amended Rule 20 and emerging case law, his rights to due process have been violated. Nor does Coleman offer support for his statement that neither he nor the other 158 Joint Appellants can ever file a claim in another court based upon the facts in this case.

¶ 14. Coleman has not yet demonstrated that he was been deprived of his property interest in his lawsuit. While the suit may have been dismissed without prejudice from a Mississippi court, neither Coleman 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 do not know if there has been a deprivation.

¶ 15. Despite Coleman’s arguments to the contrary, there was ample due process. Indeed, counsel for Coleman extensively briefed the trial court on the merits of their argument. They also 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 Coleman demonstrated a deprivation, this was more than sufficient due process. We find that this argument is without merit.

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

¶ 16. Coleman argues that the dismissal of his lawsuit may violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, which forbids states to “make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.” 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. In support thereof Coleman provides only one citation: Minn. v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n. 12, 101 S.Ct. 715, 66 L.Ed.2d 659 (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 Clause and the Due Process clause of the Fourteenth Amendment. Coleman 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. Further, Coleman has not offered any reason as to why his case should be fixed in the Mississippi.

¶ 17. Today’s decision is consistent with our recent holdings in Albert, 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

¶ 18. For the reasons stated above, this Court finds 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.

¶ 19. AFFIRMED.

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

DIAZ, Justice,

Dissenting:

¶ 20. For the same reasons I set forth in my dissent to Albert v. Allied Glove Corp., No. 2005-CA-01022-SCT, 944 So.2d 1, 2006 WL 3437801 (Miss. Nov. 30, 2006), I am compelled to respectfully dissent. I continue to be concerned about our treatment of Rule 20. In the nearly three years since our ruling in Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004), we have continually failed to craft a clear and understandable doctrine regarding joinder despite our repeated tinkering with our precedent and the language of the rule itself.

¶ 21. This piecework has resulted in a tangled and convoluted doctrine that no trial court can adequately apply. This confusion also creates a constant stream of fresh challenges on appeal, wasting judicial resources time and again as we must constantly reassess the doctrine. Joinder was broken pre-Armond, and it remains broken today, a tangled web of clashing precedent and theory.

¶ 22. In the case at hand we might have invoked a predictable and well-thought out doctrine adopted by many state courts and the federal courts to deal with misfiled cases. Forum non convienens could be employed by trial courts to separate mis-joined claims, reducing the need for extensive Mangialardi-based discovery. This would have two immediate effects: first, it would reduce the massive burden on our trial courts, who are still grappling with what to do with hundreds, and possibly thousands, of pre-2004 claims by litigants with no connection to Mississippi. No extensive hearings or orders would be needed-only a defendant willing to file a motion that another venue is more convenient. Secondly, the parties would avoid the tremendous time and money cost of compiling Mangialardi-compliant discovery, after which our trial courts must stand as gatekeepers, scrutinizing lengthy spreadsheets to ascertain if potential litigants have connections with Mississippi.

¶ 23. In the post-Armond years in Mississippi, we still have not adequately addressed what constitutes joinder in Mississippi, and despite extensive symposia, debates, and thoughtful contemplation, we seem no closer today in adopting a class action or class action-like rule by which our trial courts could navigate cases with multiple plaintiffs. See Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1102-04 (Miss.2004) (Graves, J., specially concurring); Deborah J. Challener, Foreward: Love It or Leave It; An Examination of the Need for and Structure of a Class Action Rule in Mississippi 24 Miss. C.L.Rev. 145 (2005); David Rosenberg & John Scanlon, Class Actions: To Be or Not to (b)(3)?, 24 Miss. C.L.Rev. 153 (2005); along with several other recent articles (indeed, an entire issue of the Mississippi College Law Review was dedicated to a scholarly examination of the pros and cons of a class action rule in Mississippi).

¶ 24. Our state constitution requires 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. Our ongoing failure to preserve access to our courts deprives Mississippi citizens of their constitutionally-guaranteed rights and also overburdens our appellate and trial courts while overburdening the Bar.

¶25. There are innovative and sometimes even basic solutions we could use to correct these problems and return to the mandate of our constitution, but the majority continues to decline to do so. Accordingly, I must respectfully dissent.

GRAVES, J., JOINS THIS OPINION.

      . The Plaintiffs hail from Pennsylvania, West Virginia, Oklahoma, and Texas.