author: RANDOLPH, Justice, DICKINSON, Justice, DIAZ, Presiding Justice,

text:
    O. Tuck ADAMS, Individually, and as Administrator of the Estate of Mary Jane Adams, Deceased v. BAPTIST MEMORIAL HOSPITAL-DESOTO, INC., Michael A. Dorrity, M.D., Jolee Rutherford, M.D., Mandalay Resort Group f/k/a Circus Circus Enterprises, Inc., and Circus Circus Mississippi, Inc. d/b/a Gold Strike Casino Resort.
    No. 2006-IA-00455-SCT.
    Supreme Court of Mississippi.
    Aug. 16, 2007.
    Rehearing Denied Oct. 11, 2007.

      Sara Bailey Russo, Ralph Edwin Chapman, Dana J. Swan, Clarksdale, attorneys for appellant.
    Walter Alan Davis, Oxford, Bradley Keith Overcash, Gainsville, L. Carl Hag-wood, Eugenia G. McGown, John Ramsey MeCarroll, III, attorneys for appellees.
    Before WALLER, P.J., DICKINSON and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

FACTS AND STATEMENT OF THE CASE

¶ 1. On November 12, 2004, Mary Jane Adams (“Mary Jane”), a resident of Richmond, Virginia, fell at the Goldstrike Casino (“Goldstrike”) in Tunica County, Mississippi, and sustained a neck injury, severe chest wall pains, and multiple rib fractures. Mary Jane was transported to Baptist Memorial Hospital-DeSoto, (“Baptist Memorial”) in DeSoto County, Mississippi. Mary Jane informed personnel at Baptist Memorial she was on Coumadin therapy, and she also was wearing a medic alert bracelet to indicate such. While at Baptist Memorial she was treated by Doctors Michael Dorrity (“Dr. Dorrity”) and Jolee Rutherford (“Dr. Rutherford”).

¶2. Mary Jane was released the next day and given permission by her physicians to fly home to Richmond. The following morning, her husband attempted to rouse her, but he was unable to do so. On Mary Jane’s death record, the cause of death is listed as blunt trauma to the chest suffered as the result of her fall at the Goldstrike.

¶ 3. This interlocutory appeal stems from a Complaint filed by Tuck Adams (“Adams”), Mary Jane’s husband, against Baptist Memorial Hospital-DeSoto, Inc.; Dr. Dorrity; Dr. Rutherford; Mandalay Resort Group flk/a Circus Circus Enterprises, Inc.; and Circus Circus Mississippi, Inc. The Complaint was filed in Tunica County. The Complaint charged Mandalay Resort Group f/k/a Circus Circus and Circus Circus Mississippi with negligence in the maintenance of their casino, the Goldstrike, in Tunica, Mississippi. The Complaint charged the medical defendants with negligence in the treatment and care of Mary Jane.

¶ 4. Circus Circus Mississippi d/b/a Goldstrike Casino filed its Answer. Baptist Memorial filed a separate Answer claiming, inter alia, that venue in Tunica County was not proper as to it, and that venue was proper only in DeSoto County, where Baptist Memorial is located. Baptist Memorial later filed a separate Motion to Transfer Venue, citing Miss.Code Ann. Sect. 11-11-3(3) (Rev.2004), and averring the acts of alleged medical negligence by the medical defendants all occurred only in DeSoto County. Drs. Dorrity and Rutherford filed a separate Answer, as well as a Motion to Transfer Venue to DeSoto County.

¶ 5. Goldstrike filed a Response to and Joinder in the Motion to Transfer Venue filed by Baptist Memorial. Goldstrike asserted a forum non conveniens argument that it is located adjacent to DeSoto County, that many of its employees who would be witnesses in the case were residents of DeSoto County, and that venue as to the majority of the defendants was proper in DeSoto County.

¶ 6. In Response to the Motions to Transfer, Adams argued that pursuant to Miss.Code Ann. Sect. 11 — 11—3(l)(a)(i), the action could be brought in Tunica County, where “a substantial event that caused the injury occurred.” See Miss.Code Ann. § ll-ll-3(l)(a)(I) (Rev.2004). Adams asserted Goldstrike’s failure to maintain reasonably safe premises precipitated the injury and ultimate death of his wife. Adams further argues that if other, non-medical defendants were being sued, subsection 1 of Miss.Code Ann. Sect. 11-11-3 would apply.

¶ 7. A hearing was held on the medical defendants’ Motion to Transfer Venue, as well as Goldstrike’s Motion for Joinder in Baptist Memorial’s Motion to Transfer Venue. The trial court correctly granted the Motion to Transfer as to the medical defendants and ordered that the action against the medical defendants be transferred to DeSoto County. However, the trial judge denied Goldstrike’s Motion. Before the trial court entered its Order, Adams filed a Motion to Reconsider and to Stay Entry of Order. Adams argued that this is a wrongful death case and that the case could not be severed pursuant to Miss.Code Ann. Sect. 11-7-13, which states, in pertinent part, “[Tjhere shall be but one suit for the same death which shall ensue for the benefit of all parties concerned .... ” Adams cited Mississippi Rule of Civil Procedure 82(c) and this Court’s decision in Long v. McKinney, 897 So.2d 160 (Miss.2004).

¶ 8. In its Response, Baptist Memorial pleaded the facts sub judiee were distinguishable from McKinney and further argued that if Adams’s contention that the claims against the defendants should not be severed was correct, then pursuant to Miss.Code Ann. Sect. 11-11-3(3), the only permissible venue for the one suit was DeSoto County.

¶ 9. The trial court affirmed its earlier decision by granting the Motion to Transfer to DeSoto County as to the medical defendants only. The trial judge again denied the joinder request of Goldstrike. The trial court “[was] cognizant that this order will in effect constitute a severance of the claims presented against the Defendants in this case.”

¶ 10. Adams filed a second Motion to Reconsider, which was denied by the trial court. Adams appeals from this denial and Order Granting Transfer of Venue as to the three medical defendants. Adams presents the following issues on interlocutory appeal:

I. Whether the trial erred in severing the case?

II. Whether the trial court erred in granting the Motions to Transfer. Venue? ,

STANDARD OF REVIEW

¶ 11. The resolution of this case requires the Court to employ separate standards of review.

“In reviewing a trial court’s ruling on a motion to change venue, this Court applies the abuse of discretion standard”. ... A trial judge’s ruling on such an application “will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly or properly exercised under the circumstances of the case.”

Wayne General Hospital v. Hayes, 868 So.2d 997, 1001 (Miss.2004) (citing Guice v. Miss. Life Ins. Co., 836 So.2d 756, 758 (Miss.2003)).

¶ 12. Additionally, the Court must interpret a statute, and “statutory interpretation is a matter of law which this Court reviews de novo.” Franklin Collection Serv., Inc. v. Kyle, 955 So.2d 284, 287 (Miss.2007) (citations omitted).

ANALYSIS

I. Whether the trial court erred in severing the case?

¶ 13. Adams argues there is no legal basis to sever, relying on Miss.Code Ann. Sect.11-7-13 and Long v. McKinney, 897 So.2d 160 (Miss.2004). The medical defendants, as well as Goldstrike, agree the case should not be severed pursuant to Miss.Code Ann. Sect. 11-7-13. All parties are correct. An action for wrongful death cannot be severed pursuant to Miss.Code Ann. Sect. 11-7-13 and.this Court’s holding in Long. Severance of -this case is violative of Miss.Code Ann. Sect. 11-7-13 and would certainly not promote judicial efficiency. See M.R.C.P. 1.

¶ 14. Severance of this action is also inconsistent with Miss.Code Ann. Sect. 85-5-7 (Rev.1999), which addresses the limitation of joint and several liability for' damages caused by two or more persons; contribution between joint tortfeasors; and determination of percentage of fault. Adams correctly asserts in his brief that separate trials would create, and almost certainly would result in, inconsistent holdings, including apportionment of fault. This analysis is applicable not only in wrongful death actions, but in other suits as well, because splitting the cause of action is prohibited by prior decisions of this Court and most certainly would lead, to inconsistent verdicts by the separate juries. Miss.Code Ann. Sect.11-7-13 and 85-5-7 dispassionately eliminate this conundrum. See Alexander v. Elzie, 621 So.2d 909, 910 (Miss.1992) (Mississippi is among the majority of states which do not allow splitting a cause of action).

¶ 15. For these reasons, the trial court erred in severing this wrongful death case.

II. Whether the trial court erred in granting the Motions to Transfer Venue?

¶ 16. Adams asserts that while DeSoto County may also be a proper venue for this action, the action was properly brought in Tunica County and should not be transferred. The medical defendants and Goldstrike counter that the only permissible venue for all defendants is DeSo-to County, pursuant to Miss.Code Ann. Sect. 11-11-3(3). The pertinent portions of Miss.Code Ann. Sect. 11-11-3 state:

(1) (a)(i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred....
(3) Notwithstanding subsection (1) of this section, any action against a licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred....

¶ 17. The medical defendants suggest that the meaning of the word “notwithstanding” is clear and therefore, subsection (3) is to control regardless of the language of subsection (1). The medical defendants further argue that since Adams concedes the alleged acts of medical negligence took place wholly in DeSoto County, utilizing “a straightforward application of Miss.Code Ann. Sect. 11-11-3(3), the only appropriate venue for claims against the medical defendants is DeSoto County.”

¶ 18. Initially, Adams argued venue was proper in Tunica County pursuant to M.R.C.P. 82(c) and Miss.Code Ann. Sect. 11 — 11—3(l)(a)(i), as an action shall be commenced where a substantial event that caused the injury occurred. See Miss. Code Ann. § ll-ll-3(l)(a)(I) (Rev.2004)(emphasis added). Adams asserts the injury would not have occurred and necessitated medical care but for the fall at the casino in Tunica County.

¶ 19. Adams and the medical defendants argue there is a conflict between Miss.Code Ann. Sect. 11 — 11—3(1)(a)(i) and 11-11-3(3). However, the Legislature has furnished guidance through its “notwithstanding” language contained in Miss.Code Ann. Sect. 11-11-3(3).

¶ 20. Miss.Code Ann. Sect. 11-11-3(3) states, “Notwithstanding subsection (1),” and this “notwithstanding” language is quite telling in determining venue for medical providers. “Notwithstanding” is defined by Webster’s Dictionary as “(1) In spite of; (2) Nevertheless; (3) In spite of the fact that.” . See Webster’s II New College Dictionary 749 (3d 2001).

¶ 21. “When construing the meaning of a statute, we must look at the words of the statute.” Pinkton v. State, 481 So.2d 306, 309 (Miss.1985). Further, “[o]ur duty is to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.” Pope v. Brock, 912 So.2d 935, 937 (Miss.2005).

¶ 22. The “notwithstanding” language is clear. Regardless of Goldstrike’s joinder as a defendant, the only proper venue for a suit against medical providers is the county in which the alleged act or omission occurred. This Court addressed the issue of when medical providers are not found in the same county in its recent decision in Rose v. Bologna, 942 So.2d 1287 (Miss.2006).

¶ 23. The dissent incorrectly concludes that this Court, by following the mandate of Miss.Code Ann. Sect. 11-11-3, is “creating a special class of medical defendants.” The contentions advanced by the dissent reveal an aversion to the legislative act and are better suited for debate before the Legislature.

¶ 24. Enacting venue statutes referencing only certain groups of defendants is not novel to this State. We have noted:

The first statute dealing with venue was contained in the 1807 Statutes of the Mississippi Territory. This statute provided that all civil cases shall be commenced in the circuit court of the county in which the defendant may be found or if a real action, action of ejectment, or trespass quare clausum fregit, then in the county where the cause of action arose. In addition, no free-holder of the territory could be sued out of the county of his permanent residence unless it be one of the actions for which the statute made an exception. The venue statute found in Hutchinson’s Code of 1848, one of the first codes following statehood, contains almost the identical language as that of the 1807 statute.

Clark v. Luvel Dairy Prods., Inc., 731 So.2d 1098, 1105 (Miss.1998) (emphasis added). Venue regarding specific classes of defendants was long recognized by our previous venue statutes. Separate venue statutes were enacted for railroad, express, steamboat, power, superpower, telephone and insurance companies, executors, nonresident motorists and state boards. See Hemingway’s 1917, § 487 (1930); Miss.Code Ann. §§ 11-11-5, -7,’ -13 (repealed 2002); see also Miss.Code Ann. §§ 11-11-9, -15 (Rev.2004).

¶ 25. The dissenting opinion is structured loosely around a perceived constitutional violation which has no application to the case sub judice and was not raised by either party. “This Court ‘may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record.’” Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973).

¶ 26. Contrary to the language of the dissent, this Court firmly recognizes and accepts the responsibility of ensuring the preservation of every citizen’s constitutional rights. The author of the dissent has a penchant for the repetitious citation of the same provisions of the Constitution, as evidenced by recent dissents in civil matters, wherein Miss. Const. Art. 3, Sections 24- and 25 have been cited. The dissent fails to demonstrate injury to the plaintiffs case, as it is still pending in a court of competent jurisdiction. The plaintiff still “has a remedy by due course of the law” and has not been “debarred from prosecuting any civil cause for him[self].... ” See Miss. Const, art. 3, § 24; see also Miss. Const, art. 3, § 25.

¶ 27. Adams additionally argues there is a conflict between Miss.Code Ann. Sect. 11-11-3(3) and Mississippi Rule of Civil Procedure 82(c), which states in pertinent part, “Where several claims or parties have been properly joined, the suit may be brought in any county in which any one of the claims could properly have been brought....” M.R.C.P. 82(c).

¶ 28. However, before applying M.R.C.P. 82(c), one must examine M.R.C.P. 82(b), which states, “Except as provided by this rule, venue of all actions shall be as provided by statute.” Therefore, a determination as to where the action could properly have been brought circuitously leads us to the venue statute, Miss.Code Ann. Sect. 11-11-3 (Rev.2004).

The presence of medical providers in this action renders subsection (1) inapplicable, as the “notwithstanding” language of subsection (3) negates the language of subsection (1). Therefore, as subsection (3) is applicable, the only proper venue for this action is DeSoto County. Adams’s claim that M.R.C.P. 82(c) is in conflict with the venue statute is unfounded.

CONCLUSION

¶ 29. According to Miss.Code Ann. Sect. 11-7-13, and consistent with this Court’s holding in Long, the trial judge erred in severing this wrongful death action.

¶ 30. The trial judge did not err in transferring the medical defendants to De-Soto County. However, it was error not to order Goldstrike to DeSoto County along with the medical defendants. Therefore, we reverse the trial court’s severance order and its denial of reconsideration, and we remand this case to the trial court with directions to transfer the entire case to the Circuit Court of DeSoto County for further proceedings consistent with this opinion.

¶ 31. REVERSED AND REMANDED.

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

DICKINSON, Justice,

concurring:

¶ 32. Although I fully concur with Justice Randolph’s majority opinion, I write separately to address two issues raised by Presiding Justice Diaz in his dissenting opinion.

¶ 33. First, the dissent incorrectly finds that “the majority today enforces the creation of a special class of defendants.... ” It is the Legislature, not this Court, who enacted Section 11-7-13, which provides that there shall be but one wrongful death suit. And it was the Legislature-not this Court-who decided that a suit against a medical provider “shall be brought only in the county in which the alleged act or omission occurred.” Miss.Code Ann. § 11-1 l-3(3)(Rev.2004)

¶ 34. As members of the judiciary, we are required to follow the law as it is written-even when the written law conflicts with our personal view. I am pleased that a majority of the current Court leaves legislating to the Legislature.

¶ 35. Second, the dissent completely misstates the law regarding this Court’s review of constitutional issues. Mississippi Rule of Appellate Procedure 44, which applies to appeals before this Court, clearly requires notice to the Attorney General as a prerequisite to any challenge of a statute on constitutional grounds. It is inconceivable that an attack on the constitutionality of a statute enacted by our Legislature should be defended by a private lawyer representing the partisan interests of a party in litigation, rather than the Attorney General of the State, whose duty it is to represent the State and defend its statutes. See Capitol Stages, Inc. v. State, 157 Miss. 576, 128 So. 759 (1930).

¶ 36. The dissent cites several cases for the proposition that this Court has, on occasion, found plain constitutional error which was not raised in the trial court. While this assertion is true, it is irrelevant. The cases in which this Court found plain error did not relate to any statute challenged on constitutional grounds and, therefore, there was no requirement of (or need for) notification to the Attorney General.

¶ 37. Finally, I find it both interesting and instructive that the dissent-after having much to say about the constitutional right of citizens to bring lawsuits provides no constitutional analysis whatsoever which supports the untenable theory that the statutes in question are unconstitutional as written or as applied. After pointing us to authority which indeed establishes the preeminence of constitutional provisions over statutes; the dissent fails to take the next crucial step of informing us how the particular statutes in question violate the constitution, and why they should be declared unconstitutional.

¶ 38. Stated another way, the dissent boldly states that these statutes are unconstitutional, and we have the power to declare statutes unconstitutional, even where a constitutional issue is not raised by the parties. The dissent fails, however, to provide any analysis which demonstrates why these particular statutes are unconstitutional.

¶ 39. In conclusion, we are left with the reality that the parties neither raised nor briefed the constitutional issue; the Attorney General was not notified and has taken no position on the issue; and the dissent provides us. no constitutional analysis. Under such circumstances, I follow the law which, in my view, has been properly set forth by the majority.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, RANDOLPH AND LAMAR, JJ„ JOIN THIS OPINION.

DIAZ, Presiding Justice,

concurring in part and dissenting in part:

¶ 40. I agree with the majority that this case should not have been severed. However, because the majority today enforces the creation of a special class of defendants in violation of precedent and due process, I must respectfully dissent. In addition, I believe that fealty to the Constitution compels us to address the constitutional issues inherent in this case.

I. The Special Class of Defendants.

¶ 41. We have previously held that “venue is a valuable right possessed by both plaintiff and defendant.” Forrest County Gen. Hosp. v. Conway, 700 So.2d 324, 326 (Miss.1997) (emphasis added). In the case at hand, the injury first occurred and the cause of action first accrued in Tunica County. But for the injury which was the cause of death, there would be no wrongful death action, nor would there have been any necessity for medical care.

¶ 42. Yet the majority, based upon a dictionary entry, creates a special class of medical defendants. This special class is judicially endowed with greater rights created solely by this Court, greater' rights which are neither available to other’ persons or professions nor authorized by our state constitution. The special class of defendants has a “venue veto power” regardless of the nature of the action, the surrounding facts and circumstances, the extent to which the events in question actually occurred within a certain venue, or the degree of alleged culpability of the special class defendants versus other defendants. The majority reaches this conclusion regardless that the Bill of Rights of our Constitution of 1890 guarantees 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. Further, “[n]o person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.” Miss. Const, of 1890, art. Ill, § 25 (emphasis added).

¶43. The arguments proposed in the majority opinion reveal an aversion to these Constitutional rights and bedrock protections guaranteed to the citizens of the State of Mississippi, and are better suited for a political stump speech at the Neshoba County Fair. Despite repeated citations to the same provisions of the Constitution by the author of the dissent, the author of the majority opinion continues to ignore the Constitutional questions that are implicated by this case, which must be resolved. “While the legislature generally has the power to enact any law it sees fit, nevertheless, it is restricted in its enactment of laws by the provisions of our State Constitution and cannot by statutory enactment alter or nullify a clear, unambiguous mandate of the Constitution,” because “[s]ueh a statute would be unconstitutional.” Saxon v. Harvey, 223 So.2d 620, 624 (Miss.1969). Ultimately, no matter the rhetoric of the majority, “[t]he wisdom of the drafters of our Constitution is not subject to question by this Court, and is to be modified or altered by amendment only.” Id. at 624. “If there exists an irreconcilable conflict ... then the constitutional provisions must prevail.” Id.; see also Board of Trustees of State Institutions of Higher Learning v. Ray, 809 So.2d 627, 636 (Miss.2002) (“The general principle followed when considering a possible conflict between the constitution and a statute is that the constitutional provision prevails”). The approach should be no different in today’s case.

¶44. While in this case the “primary” defendant, Goldstrike Casino, later supported the transfer of venue to DeSoto County, one may easily imagine a scenario where a primary defendant wishes to take advantage of the venue statutes that provide suit must be filed in its county of residence. Let us imagine a person is injured in Rankin County while hunting on private property, and that they are airlifted to Hinds County for treatment of injuries. While under treatment, the person receives a minute but compensable injury as a result of medical treatment. If this hypothetical plaintiff files suit against the Rankin County property owner, under the majority’s rule, the suit must be transferred to Hinds County, regardless of the Rankin County property owner’s wishes, and regardless of the fact that 95% of the injury occurred and accrued in Rankin County. This is a perverse result.

¶ 45. I certainly acknowledge that because of the ambiguity created by these statutes we must proceed to “to discern and give effect to the legislative intent.” City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). I further agree with the majority that lawmakers intended to ensure that cases that primarily center upon medical malpractice claims would only be brought in the county in which the alleged act or omission occurred. Yet I remain far from convinced that in a case that does not primarily center on a medical malpractice claim the Legislature intended to achieve so harsh a result as the denial of venue rights to one group of defendants in favor of another.

¶ 46. Notwithstanding the majority’s analysis, and in lack of a clear guidance from the Legislature, I would advance a test that would ascertain where the bulk of the action accrued or occurred. This approach to venue would balance the competing interests of venue with the intention of the Legislature.

II. The Constitution Must Be Obeyed.

¶ 47. The majority winces at any mention of the Constitution in this case. However, it provides no citation beyond Shelton for its blanket assertion that we cannot address the constitutionality of the statute of our own accord. Shelton itself provides no citation for that assertion, either, because that case involved a judgment for a creditor; on appeal, the record was missing “a sworn itemized statement of appellant’s account.” Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). Shelton has nothing to do with whether this Court can address constitutional issues sua sponte, but rather deals with the instances when a record is complete. Id. Additionally, we have noted that Shelton is no longer good law for the proposition its stands for, as it was “decided prior to the adoption of the Mississippi Rules of Appellate Procedure in 1995.... ” Norwood v. Extension of Boundaries of City of Itta Bena, 788 So.2d 747, 752 (Miss.2001).

¶ 48. Moreover, when circumstances warrant, this Court has knowingly gone outside the record. See Samuels v. Mladineo, 608 So.2d 1170, 1182 (Miss.1992). On motion for rehearing in Samuels, we acknowledged that we had gone outside the record and declared that we would do so again should circumstances warrant; indeed, we noted that “[ajdditional authorities support our conclusion that what was done was neither novel nor beyond the scope of judicial function.” Id. at 1186.

¶ 49. Beyond the mere black and white pages of the record, our own rules allow for the contemplation of other issues. Despite the majority’s protests to the contrary, it is well established that this Court may review issues on its own motion when “plain error” is noted, since “the court may, at its option, notice a plain error not identified or distinctly separate.” M.R.A.P. 28(a)(3); see Gray v. State, 549 So.2d 1316, 1321 (Miss.1989) (citing Johnson v. State, 452 So.2d 850, 853 (Miss. 1984); House v. State, 445 So.2d 815, 820 (Miss.1984); Hooten v. State, 427 So.2d 1388 (Miss.1983); Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965)). “Plain error” is an error which affects the substantive rights of the parties, in this case the constitutional right of access to court and equality between all parties. See Bryant v. State, 844 So.2d 1153, 1156 (Miss.2003) (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)). This rule is used “to prevent the manifest miscarriage of justice, despite failure to preserve the error.” Id. (citing Johnson v. Fargo, 604 So.2d 306, 311 (Miss.1992)).

¶ 50. The concurrence discusses M.R.A.P. 44(c), arguing that notification to the Attorney General is required or a constitutional challenge must fail. However, the language of the rule itself and the Comment to that rule make it clear that this Court has the inherent power to address such a case, since “Subsection (c) permits action to proceed in the case without notice by special order if the court determines that urgent action is necessary or that the challenged statute, order, or directive is so patently invalid that no response need be required from the affected body.” Comment, M.R.A.P. 44 (italics added). In my view, this is a arrow in the quiver of the Court which has been wholly abandoned, resulting in injustice to the parties and the citizenry of the State. Indeed, the issue of constitutionality of a statute is exactly the sort of “jurisdiction as properly belongs to a court of appeals.” Miss. Const, of 1890, art. 6, § 146.

¶ 51. It is imperative that we remain committed to the ideal that “Constitutional provisions are generally construed to be mandatory or compulsory,” and “will not be considered advisory or directory merely unless it is plainly apparent that the adopters or framers so intended it.” George H. Ethridge, Mississippi Constitutions, at 48 (1928). The inclusion of the rights of access to court in our Bill of Rights signifies that the framers of the Constitution of 1890 did not mean for those safeguards to be treated as callously as the majority does today. The Bill of Rights in our Constitution precedes the sections creating the authority of the Legislature; the body of the executive; or the powers of the judiciary, and as we have long held, these rights are more important than any statute. See Saxon, supra.

¶ 52. The Constitution is always in force and always applicable in the law. If a statute plainly clashes with a constitutional provision, we should not hesitate to invalidate it in order to safeguard the Constitution and the rights it vests in our citizenry.

¶ 53. Because I cannot join the majority’s creation of a special class of defendants with special rights superior to those of other Mississippians, an act which is in direct contradiction with our state constitution, I must respectfully dissent.

GRAVES, J., JOINS THIS OPINION IN PART.

      . These defendants collectively will be referred to as the “medical defendants.”

      . In its Answer, Goldstrike denied that Mandalay Resort Group does business in Tunica County as the Goldstrike Casino and denied that the Circuit Court of Tunica County had jurisdiction over Mandalay Resort Group. This issue is not addressed by the Circuit Court, and in all of its pleadings, Circus Circus, Inc. refers to itself as Circus Circus, Inc. d/b/a Goldstrike.

      . See Randolph, J., specially concurring in Caldwell v. North Miss. Med. Ctr., Inc., 956 So.2d 888, 895(Miss.2007).

      . Including the present case and Caldwell, 956 So.2d at 895 (Randolph, J., specially concurring); see also Coleman v. A-Bex Corp., 943 So.2d 697, 702 (Miss.2006) (Randolph, J., not participating); Cleveland v. Mann, 942 So.2d 108, 121 (Miss.2006) (Randolph, J., joining the dissent in part).

      . The dissent's reliance on the exception to the rule for "urgent action" on "patently invalid” statutes is itself so patently invalid, that it justifies little more than a parenthetical footnote response. If these statutory provisions-born among the recent "tort reform” statutes-are indeed patently invalid and unconstitutional, one wonders how and why the lawyers in this case (and every other case to come before this Court in the past few years) missed the issue and failed to brief it, relying instead on one of this Court’s Justices to raise the issue sua sponte-without benefit of proper briefing by the parties or notification to the Attorney General.

      . No Justice on this Court, to my knowledge, questions the validity of the constitutional provisions cited by the dissent. However, they simply have nothing to do with venue.


source: Caselaw Access Project

author: GRAVES, Justice,

license: Public Domain

text:
    In re GUARDIANSHIP OF Reshan Danielle HOLMES, A Minor. Bauhaus USA, Inc. v. Lillie Regina Holmes Copeland, Natural Guardian and Next Friend of Reshan Danielle Holmes, A Minor, Bancorpsouth Bank and Bill Benson, Chancery Clerk.
    No. 2006-CA-00465-SCT.
    Supreme Court of Mississippi.
    Sept. 27, 2007.

      Thomas H. Lawrence, Polly Montgomery Haley, C.R. Montgomery, attorneys for appellant.
    Roy 0. Parker, Jr., Les Alvis, Gary L. Carnathan, Tupelo, attorneys for appel-lees.
   GRAVES, Justice,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Rashan Danielle Holmes, a minor, was injured in an automobile accident on June 1, 1996. Holmes was covered under the Bauhaus Group Employee Benefit Plan (the Plan) as a dependent of her mother and guardian, Lillie Regina Holmes Copeland. The Plan advanced payments for Holmes’ medical expenses of more than $46,000.

¶ 2. The Plan contains a reimbursement and subrogation clause, which states:

Medical care benefits are not payable to or for a person covered under this Plan when the injury or illness to the Covered Person occurs through the act, omission or alleged negligence of another person or which arises out of any claim or cause of action which may accrue against any third party for responsible injury, illness or death....
However, the plan may elect to advance payment for Medical Care expenses incurred for an injury or illness in which a third party may be liable if the Covered Person agrees to the following:
The Covered Person will reimburse the Plan out of the Covered Person’s recovery for all benefits paid by the Plan. The Plan will be reimbursed prior to the Covered Person receiving any monies recovered from a Third Party or their insurer as a result of judgment, settlement or otherwise....

¶ 3. Copeland, on behalf of Holmes, filed suit against third-party tortfeasors and subsequently entered into a settlement agreement for $750,000. Bauhaus asserted a subrogation lien on the advance payments of medical benefits to Holmes.

¶4. Copeland then filed a Petition for Authority to Settle Doubtful Claim of Minor, requesting approval of the final settlement offer. Copeland agreed that the portion of the settlement over which rights were contested, $78,161.47, would be deposited into the registry of the Lee County Chancery Court until resolution of rights by the court. Further, Copeland asked the court to find the subrogation claim invalid since Holmes was not made whole by the settlement. Subsequently, the chancery court approved the final settlement and released the tortfeasors but left the $78,161.47 in the court registry.

¶ 5. Bauhaus filed a motion for summary judgment on January 15, 2004, asserting that Mississippi law is pre-empted by the Employee Retirement Income Security Act of 1974 (ERISA) and that the plan provides Bauhaus with the right of full reimbursement. The chancery court denied Bauhaus’ motion on June 4, 2004, finding that ERISA does not pre-empt Mississippi law. Specifically, the court held: “After reviewing the briefs of the parties, and the pertinent case law, including the federal law in this case, the Court finds that the case law in regard to this matter has been well settled, and that the administration of a minor’s estate is entirely a matter of state law, and is not preempted by ERISA.”

¶ 6. By opinion issued on October 7, 2005, and subsequent order on March 7, 2006, the chancery court granted Copeland’s petition to settle doubtful claim and ordered disbursement to Holmes of the funds held in the registry. Thereafter, Bauhaus filed this appeal, raising the following issues: 1) Whether the chancery court incorrectly held that Mississippi’s made-whole rule applied to cases involving minors despite the Mississippi Supreme Court’s ruling in Yerby v. United Healthcare Insurance Co., 846 So.2d 179 (Miss. 2002); and 2) whether the chancery court incorrectly held that ERISA does not preempt Mississippi’s common law rule requiring chancery court approval to assign a minor’s right to insurance proceeds. This Court finds that ERISA does not preempt state law in the instant case and affirms the judgment of the Lee County Chancery Court.

ANALYSIS

¶ 7. The deciding issue in this case is whether ERISA pre-empts the right of the state court with regard to assigning a minor’s rights to insurance proceeds. This issue has previously been addressed by this Court. See Cooper Tire & Rubber Co. v. Striplin, 652 So.2d 1102 (1995). In Striplin, this Court held that ERISA does not pre-empt state law requiring court approval for contracts affecting a minor’s estate with regard to subrogation rights of the ERISA plan to insurance proceeds due to the child. The Court found:

It is clear that state courts have traditionally regulated minors’ business. Miss. Const. Art. 6 § 159 (“The chancery court shall have full jurisdiction in the following matters and cases, viz: (d) Minor’s business”); Alack v. Phelps, 230 So.2d 789 (Miss.1970) (minors are under the disability of age and cannot legally act for themselves, therefore, state equity courts are required to protect their interest). For these reasons, Cooper Tire’s pre-emption argument is without merit.

Id. at 1104. Further, this Court reiterated the necessity of court approval prior to assigning a child’s rights to insurance proceeds. See Methodist Hosps. of Memphis v. Marsh, 518 So.2d 1227 (1988) (mother had no legal authority, absent prior chancery court approval, to execute any document granting a lien against the estate of an injured minor); and McCoy v. Preferred Risk Ins. Co., 471 So.2d 396 (1985) (parents had no authority to assign uninsured motorist benefits to hospital).

¶ 8. The United States District Court for the Northern District of Mississippi found that ERISA does not pre-empt state law in the instant case. The Fifth Circuit Court of Appeals affirmed the district court’s dismissal of the suit as not authorized by ERISA but did not reach the pre-emption argument.

¶ 9. In the factually similar case of Clardy v. ATS, Inc. Employee Welfare Benefit Plan, 921 F.Supp. 394 (N.D.Miss. 1996), the District Court set out the following standard: “[FJederal law will only preempt a state law pertaining to domestic relations if: 1) Congress has positively expressed its intent to preempt the state law and 2) the state law does major damage to a clear and substantial federal interest.” Id. at 398 (citing Boggs v. Boggs, 849 F.Supp. 462, 465 (E.D.La.1994), rev’d, 520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997), and Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979)).. The District Court set out that the “ERISA preemption is not all-encompassing, and state actions which affect employee benefit plans in ‘too tenuous, remote, or peripheral a manner’ will not justify a finding that the law ‘relates to’ a plan.” The District Court further found:

ERISA does indeed state its intent to preempt state law by positive enactment. [ ... ] However, this court can find no damage to any clear and substantial federal interest in this case which would justify preemption of this state law of domestic relations. Indeed, it is the opinion of this court that the opposite is true. The most fundamental concern of Congress in enacting ERISA was “the continued well-being and' security of employees and their dependents.” [ ... ] Displacing this state law requirement which polices the disposition of a minor’s rights would take away a protection from the dependents' of an employee, rather than ensure their continued well-being and security.

Clardy, ⅜1 F.Supp. at 398 (citations omitted). The Clardy court further found:

[TJhe state law under consideration today does not prevent subrogation of claims, nor does it even directly address the matter of subrogation. The administration of a minor’s estate is entirely a matter of state law, and is law of general application which affects a broad range of matters entirely unrelated to ERISA plans. “[A] preemption provision designed to prevent state interference with federal control of ERISA plans does not require the creation of a fully insulated legal world that excludes these plans from regulation of any purely local transaction.” [Citation omitted]. The defendants in this case would have this court preempt not a state law which impinges upon contractual subrogation fights under ERISA, but a state law of general application which has only an incidental effect upon an ERISA plan. The state law in question today relates to ERISA in “too tenuous, remote, or peripheral a manner” to be preempted in this case.

Id. at 399.

¶ 10. In Boggs v. Boggs, 520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997), the United States Supreme Court found that ERISA pre-empts a state law allowing a non-participant spouse to transfer by testamentary instrument an interest in undistributed pension plan benefits. Specifically, the Court in Boggs found:

In the face of this direct clash between state law and the provisions and objectives of ERISA, the state law cannot stand. Conventional conflict pre-emption principles require pre-emption “where compliance with both federal and state regulations is a physical impossibility, ... or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” [Citations omitted]. It would undermine the purpose of ERISA’s mandated survivor’s annuity to allow Dorothy, the predeceasing spouse, by her testamentary transfer to defeat in part Sandra’s entitlement to the annuity § 1055 guarantees her as the surviving spouse. This cannot be. States are not free to change ERISA’s structure and balance.

Id. at 844,117 S.Ct. 1754.

¶ 11. There is no direct clash between state law and the provisions of ERISA in the instant case. Moreover, compliance with both federal and state regulations is not a physical impossibility. Mississippi law does not absolutely prohibit assignment, but requires prior chancery approval.

¶ 12. Further, there is clearly established precedent of the United States Supreme Court to support a finding against pre-emption in the instant case. The United States Supreme Court has said:

Insofar as marriage is within temporal control, the States lay on the guiding hand. “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U.S. 586, 593—594[, 10 S.Ct. 850, 34 L.Ed. 500] (1890). Federal courts repeatedly have declined to assert jurisdiction over divorces that presented no federal question. See, e.g., Ohio ex rel. Popovici v. Agler, 280 U.S. 379[, 50 S.Ct. 154, 74 L.Ed. 489] (1930). On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has “positively required by direct enactment” that state law be pre-empt-ed. Wetmore v. Markoe, 196 U.S. 68, 77[, 25 S.Ct. 172, 49 L.Ed. 390] (1904). A mere conflict in words is not sufficient. State family and family-property law must do “major damage” to “clear and substantial” federal interests before the Supremacy Clause will demand that state law be overridden. United States v. Yazell, 382 U.S. 341, 352 [86 S.Ct. 500, 15 L.Ed.2d 404] (1966).

Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). See also Rose v. Rose, 481 U.S. 619, 625, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987).

¶ 13. In Yazell, the United States Supreme Court affirmed the appellate court in finding that federal law did not preempt a Texas statute. 'Specifically, the Court found:

We decide only that this Court, in the absence of specific congressional action, should not decree in this situation that implementation of federal interests requires overriding the particular state rule involved here. Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family-property arrangements. They should be overridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied.

Id. at 352, 86 S.Ct. 500. Further, “[e]ach State has its complex of family and family-property arrangements. There is presented in this case no reason for breaching them.” Id.

¶ 14. Bauhaus cites Egelhoff v. Egelhoff, 532 U.S. 141, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) as authority for pre-emption. In Egelhoff, the United States Supreme Court held that ERISA pre-empted a Washington state statute which provided that the designation of a spouse as a beneficiary of nonprobate assets was revoked automatically upon divorce, to the extent that the state statute applied to employee benefit plans governed by ERISA. Egel-hoff divorced his wife and then died intestate two months later, with the former wife still being listed as a beneficiary under a life insurance policy and pension plan. The life insurance proceeds were paid to the former wife. Egelhoff s children by a previous marriage filed suit to recover the insurance proceeds and the pension plan benefits.

¶ 15. The United States Supreme Court held that ERISA pre-empted the Washington state statute. In doing so, the Court acknowledged that “Courts have disagreed about whether statutes like that of Washington are pre-empted by ERISA.” Egel-hoff, 532 U.S. at 146, 121 S.Ct. 1322. Further, “we have recognized that the term ‘relate to’ cannot be taken ‘to extend to the furthest stretch of its indeterminacy,’ or else ‘for all practical purposes pre-emption would never run its course.’” Id. (Citations omitted). Moreover, “to determine whether a state law has the forbidden connection, we look both to the ‘objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,’ as well as to the nature of the effect of the state law on ERISA plans.” Id. at 147, 121 S.Ct. 1322 (citing California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S, 316, 325, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997)).

¶ 16. The Court agreed that the Washington statute had impermissible connections with ERISA plans, finding:

The statute binds ERISA plan administrators to a particular choice of rules for determining beneficiary status. The administrators must pay benefits to the beneficiaries chosen by state law, rather than to those identified in the plan documents. The statute thus implicates an area of core ERISA concern. In particular, it runs counter to ERISA’s commands that a plan shall ‘specify the basis on which payments are made to and from the plan,’.... In other words, unlike generally applicable laws regulating ‘areas where ERISA has nothing to say,’ Dillingham, 519 U.S. at 330[, 117 S.Ct. 832,] which we have upheld notwithstanding ' their incidental effect on ERISA plans, see, e.g., ibid., this statute governs the payment of benefits, a central matter of plan administration.

Egelhoff, 532 U.S. at 147-48, 121 S.Ct. 1322.

¶ 17. In analyzing the involvement of both family law and probate law, the Court reiterated that there is “a presumption against pre-emption in areas of traditional state regulation such as family law.... But that presumption can be overcome where, as here, Congress has made clear its desire for pre-emption.” Id. at 151,121 S.Ct. 1322.

CONCLUSION

¶ 18. Family law is an area traditionally regulated by the states. There is a presumption against pre-emption. Although ERISA does state its intent to preempt state law by positive enactment, there is no clear intention of Congress to pre-empt cases dealing with minors’ rights. Moreover, there is no damage to any clear and substantial federal interest. Accordingly, for the reasons stated above, the judgment of the Lee County Chancery Court is hereby affirmed.

¶ 19. AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ„ CONCUR. EASLEY, J., CONCURS IN RESULT ONLY.

      . Copeland was an employee of Bauhaus.

      . Copeland asserts damages of $46,336.31; Bauhaus asserts that the damages were $46,229.45.

      . Even if we determined that ERISA preempts state law, Bauhaus' claim that it had a right to reimbursement from a non-party to its plan would have to be analyzed under federal common law. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989).

      . Bauhaus USA, Inc. v. Copeland, 2001 WL 1524373, 2001 U.S. Dist. LEXIS 24108 (N.D.Miss.2001).

      . Bauhaus USA, Inc. v. Copeland, 292 F.3d 439 (5th Cir.2002).


author: EASLEY, Justice, for the Court.

text:
    Albert John CHIMENTO, Sr. v. Robert Albert FULLER and Gerald D. Mills, Sr.
    Nos. 2006-CA-01494-SCT, 2001-IA-00057-SCT.
    Supreme Court of Mississippi.
    Sept. 27, 2007.

      James L. Farrior, III, attorney for appellant.
    Byron J. Stockstill, Richard C. Fitzpatrick, Poplarville, attorneys for appel-lees.
    Before WALLER, P.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice, for the Court.

¶ 1. This case involves the distribution of proceeds from a court-ordered sale of 31.3 acres of land located in Pearl River County, Mississippi, and whether the statute of limitations applies to a loan creditor. Gerald D. Mills, Sr., seeks the proceeds from a judicial foreclosure sale. Mills, however, never filed a foreclosure action on his $35,000 .promissory note to preserve his interest in the real estate as collateral. In addition, Mills never filed suit on the note to preserve his monetary interest of $35,000. We find that this case should be reversed and rendered.

PROCEDURAL HISTORY

¶ 2. In July 1990, Robert Albert Fuller and Albert John Chimento, Sr., purchased 31.3-acres of property for $130,000. Fuller and Chimento signed two promissory notes and deeds of trust in the amount of $95,000 to Chimento Home Builders, Inc., (CHB) and $35,000 to Mills. The CHB loan had. first priority over Mills’s loan. CHB also assigned its interest to Mohammed Esmail on July 19,1990.

¶ 3. After Fuller and Chimento failed to pay the $95,000 loan, Esmail began foreclosure proceedings. Fuller filed a complaint seeking injunctive relief on the foreclosure action. Esmail, Chimento, and Mills were named defendants in the suit. However, Mills was never served with process. In 1993, the chancellor enjoined the foreclosure of the property. In 1997, the chancellor entered another order granting a temporary injunction and leave for Fuller to amend his complaint. On June 10, 1997, the trial court entered an order finding that the 1993 order which enjoined foreclosure tolled the statute of limitations on the $95,000 Chimento note. •

¶ 4. In 1998, Mills notified Chimento and Fuller that he had retained counsel. In 1999, the chancellor presided over a two-day trial. The chancellor, in a corrected order, ruled in part that the land was to be partitioned by a judicial sale. Fuller filed a motion to reconsider, which the chancellor denied.

¶ 5. Fuller filed an interlocutory appeal with this Court on the issue of the partition of the land only. Fuller wanted the land to be partitioned in kind instead of by a judicial sale. This Court in Fuller v. Chimento, 824 So.2d 599, 603 (Miss.2002), affirmed the chancellor’s ruling which required a partition by sale and remanded the case for further proceedings.

¶ 6. Following this Court’s ruling in Fuller, the 31.3 acres were sold in August 2003 and the proceeds, less the costs of sale and taxes, in the amount of $199,358.21 were deposited with the chancery court for disbursement. On August 1, 2006, the chancellor entered his judgment concerning the distribution of the sale proceeds. The chancellor found that the statute of limitations had been tolled in favor of Mills, and he should receive all the proceeds from the sale. Following this ruling, Chimento timely filed a notice of appeal with this Court.

FACTS

¶ 7. In July 1990, Fuller and Chimento purchased 31.3 acres of property for $130,000 in Pearl River County, Mississippi. Chimento and Fuller signed a deed of trust to CHB on July 19, 1990, in the amount of $95,000 with a promissory note. The terms of the promissory note called for seven monthly installments of $1,187 plus $395.83 for points payable on August 19, 1990, like installments due on the nineteenth day of each succeeding month, and principal and balance due on or before February 19,1991.

¶ 8. Chimento and Fuller also signed a deed of trust to Mills on July 19, 1990, in the amount of $35,000 with a promissory note. The terms of the payment were for six monthly installments in the amount of $437.50 payable on August 19, 1990, like installments due on the nineteenth day of each succeeding month, and principal and balance due on or before January 19, 1991. The deed also stated on its face that “[tjhis deed of trust is second and inferior to that certain deed of trust of even date herewith to Chimento Home Builders, Inc., in the principal sum of $95,000.00.”

¶ 9. On July 19, 1990, CHB assigned its loan to Esmail. In 1993, Esmail tried to foreclose on the property when Chimento and Fuller failed to make payments on the $95,000 loan. Fuller filed a complaint in 1993 to enjoin Esmail from foreclosing on the property. Chimento and Mills were made party to Fuller’s action, however, Mills was never served with a complaint.

¶ 10. On March 18, 1993, the chancellor enjoined the foreclosure of the property. Thereafter, in 1994, Esmail assigned the $95,000 deed of trust to Chimento. On April 20, 1994, Esmail’s substituted trustee, Sam P. Cooper, Jr., filed a motion to dissolve the injunction. In response, Fuller filed a motion to enforce the injunction on March 26,1997.

¶ 11. On April 18, 1997, the chancellor entered an order for a temporary injunction and granted Fuller leave to amend his complaint. Fuller filed an amended complaint, and Chimento answered and filed a counterclaim. On June 10, 1997, the trial court entered an order finding that the 1993 order which enjoined foreclosure tolled the statute of limitations on the $95,000 Chimento note.

¶ 12. In 1998, Mills notified Chimento and Fuller that he had retained counsel. Prior to this notification, Mills had not participated in the 1993 complaint filed by Fuller to enjoin the foreclosure action commenced by Esmail for Fuller and Chi-mento’s failure to pay Esmail on his $95,000 note. Importantly, Mills never took any action on his $35,000 note whatsoever. Mills never sought foreclosure. or collection from Fuller and Chimento for their failure to pay Mills’s $35,000 note.

¶ 13. In 1999, the chancellor presided over a two-day trial. In' a corrected order, the chancellor ruled, in part, that: (1) Chi-mento and Fuller were tenants in common; (2) Esmail’s assignment of the deed of trust and note to Chimento merged the secured interest into one of the owners and extinguished the security interest created by the deed of trust to CHB and subsequently assigned to Esmail and Chi-mento, respectively; (3) Mills’s appearance through counsel was notice of his claims to the other parties; ' (4) Chimento reserved and raised affirmative defenses at trial and in the post-trial filings; (5) Mills was the first lien holder of the property “subject to a determination of whether the statute of limitations has run as to its enforcement; or, whether the injunction of 1993 applied to Mills’ secured interest”; and (6) the land was to be partitioned by a judicial sale. Fuller filed a motion to reconsider, which the chancellor denied.

¶ 14. As stated earlier, Fuller filed an interlocutory appeal with this Court on the issue of the partition of the land only. This Court in Fuller, 824 So.2d at 603, affirmed the chancellor’s ruling which required a partition by sale and remanded for further proceedings.

¶ 15. Following this Court’s ruling in Fuller, the 31.3 acres were sold in August 2003 and the proceeds, less the costs of sale and taxes, were deposited in the amount of $199,358.21 with the chancery court for disbursement. On August 1, 2006, the chancellor entered his judgment concerning the distribution of the sale proceeds. The chancellor addressed two issues: (1) whether the statute of limitations was-tolled by the 1993 and 1997 injunctions for Mills’s alleged claim on the sale proceeds, and (2) the amount of proceeds that each party was entitled to recover from the sale.

¶ 16. As to the issue of the statute of limitations, the chancellor found:

The statute of limitations issues [revolve] around the timing, procedural necessity to plead or raise an affirmative defense, and whether the statute of limitations may be waived. The three year statute of limitations would run from January, 1991, the date the last installment, payment to Mills was due, and would therefore limit any legal enforcement action on his part in January of 1994. He did not enter the fray until 1998 when his attorney made an appearance for him without filing any pleadings. No foreclosure or demand action was initiated in the interim. His involvement of record was simply that he was named in the initial injunctive action as a party, although he was not served with process. His attorney participated from 1998 on, and was fully involved in the, trial of the matter by preparing and filing a pretrial finding of fact and conclusions of law as directed by the Court on all issues to be heard. The statute of limitations issue was not raised until the day of the hearing in 1999 when Chimento’s counsel reserved the right to raise all defenses to Mills’ claim, stating that no response on his part was necessary to a claim where no formal pleadings were filed and the claim was dealt with only through claimant’s counsel in the pretrial filings and at the hearing, which Mills asserts complies with MRCP 8(a). Fuller does not object to Mills’ claims at this point since the deed of trust on which his claim is based was known to every party. Mills was made a party to the initial injunctive request to stop foreclosure of Chimen-to’s deed of trust, but he was never served with process, raising the question of whether the injunction against foreclosure was applicable to him. In the Corrected Judgment the Court found Mills’ (sic) has a first lien on the sale proceeds subject to a determination of the applicability of the statute of limitations and the injunction of 1993.
The Court continues to ponder the effect of Mills’ lack of pleading but recognizes that the salient facts of his position were adequately presented through the pretrial findings by his counsel and the public record of his deed of trust as known to each party and there was no surprise to Chimento or Fuller at the hearing. The more troubling question is Mills failure to affirmatively act to preserve his lien between 1994 and 1998 when he was not represented by counsel and took no action. Stated differently, can it be implied that he was protected by an injunction that did not specifically include his interests granted at a hearing where he was not processed. Or, was the statute of limitations tolled simply because the suit was filed and Mills was named a party. Indeed, there is no record that he even knew the injunction had been granted, as no relief was sought from him by that complaint, until the second injunction request was made by Chimento in 1997. Arguably, had he attempted to foreclose his lien he probably would have been enjoined also, but does that obviate his legal responsibility to protect his rights by making the effort and extend the limitations of his actions? Perhaps that question is answered by Mills’ payment of the city and ad valorem taxes in 1993 in the amount of $18,999.50, an obvious effort to protect his interest in the secured property. The Court finds the total of the actions of the parties with the filing of the initial litigation naming Mills as a party, coupled with the language in the mortgage note of July 19, 1990 from Chimento and Fuller to Mills waiving a lack of diligence in collection acts to toll the statute of limitations in this matter.

Therefore, the chancellor found that the statute of limitations was tolled on Mills’s claim. In addition, the chancellor awarded the entire $199,358.21 to Mills since his claim amount exceeded the proceeds held by the chancery court.

¶ 17. On August 28, 2006, Chimento timely filed a notice of appeal with this Court, raising the issue of whether Mills’s claim of a first hen on the sale proceeds of land is barred by the statute of limitations.

DISCUSSION

¶ 18. The chancellor found that Mills’s claim was not barred by the statute of limitations. In his August 1, 2006, order the chancellor held:

The Court finds the total of the actions of the parties with the filing of the initial litigation naming Mills as a party, coupled with the language in the mortgage note of July 19, 1990 from Chimento and Fuller to Mills waiving a lack of diligence in collection acts to toll the statute of limitations in this matter.

¶ 19. Chimento argues that Mills is barred by the statute of limitations. He asserts that there is a three-year statute of limitations for Mills’s note and deed of trust which began to run in January 1991 when the last installment payment was due on Mills’s $35,0000 loan, and expired in 1994. In addition, Chimento asserts that the statute of limitations is not tolled by simply naming a person in a lawsuit, such as Mills, without anything more. Further, Chimento argues that the complaint filed by Fuller in 1993 sought to enjoin foreclosure on the $95,000 Chimento note and not Mills’s $35,000 note and deed of trust. Finally, Chimento argues that Mills never filed any pleadings that could be considered as a claim for relief or which could toll the statute of limitations.

¶20. Mills argues that the chancellor correctly ruled that the statute of limitations was tolled. Mills and Fuller dispute the three-year statute of limitations that the chancellor and Chimento assert. Instead, Mills and Fuller argue that the six-year statute of limitations applies in this case. In addition, Mills argues that Chi-mento waived any statute-of-limitations defense. Mills and Fuller also argue that the language of the note waived the statute of limitations.

¶ 21. Fuller asserts that the chancellor’s ruling should be affirmed and the sale proceeds should go to Mills. The majority of Fuller’s brief fully supports Mills’s arguments on appeal. However, Fuller alternatively argues that in the event that this Court does not affirm the chancellor’s ruling, the sale proceeds should be distributed as set forth in the Corrected Judgment of May 2, 2000, and the Judgment of July 28, 2006.

¶ 22. In Stephens v. Equitable Life Assurance Society of the United States, 850 So.2d 78, 82 (Miss.2003), this Court set forth the standard of review for statute-of-limitations issues and held:

This Court uses a de novo standard of review when passing on questions of law including statute of limitations issues. ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999) (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss. 1998)). See also Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001).

A. The language of the note.

¶23. For ease and clarity of the issues, the language of the note will be addressed first. Mills argues that the language of the promissory note signed by Fuller and Chimento waives the statute of limitations. The language of the note states, in part:

And it is hereby expressly agreed that failure to pay this note punctually at maturity shall constitute default hereunder or, if this note be payable in installments, that if default be made in any of the payments of the aforesaid installments when and as the same shall become due and payable, then and in that event the unpaid balance of the aforesaid principal sum at the option of the holder or holders hereof shall become and be due and payable, and the holder or holders hereof may proceed to have seized and sold the property described in the act with which this note is identified, given to secure the same under the terms and in the manner provided in said act. Every person at any time liable for the payment of the debt evidenced hereby waives any homestead or exemption right against said debt, and waives presentment for payment, demand, protest and notice of non-payment of this note and any or all lack of diligence or delays in collection which may occur and consents that the holder or holders may extend the time of payment or otherwise modify the terms of payment of any part or whole of the debt at any time at the request of any other person liable, and agrees in case suit be brought for collections hereof or the same has to be collected upon demand of an attorney, to pay all the attorney’s fees so incurred, which fees are hereby fixed at twenty-five per cen-tum on all amounts, principal and interest, due and owing by the maker, with a minimum fee of $100.00.

(Emphasis added). Mills specifically argues that Fuller and Chimento waived any defenses, such as the statute of limitations, based on the highlighted language pertaining to “any or all lack of diligence or delays in collection.”

¶ 24. We find that when viewed in context, the language of the note refers to collection of payments by Mills only and does not specifically “waive the statute of limitations” or waive Mills’s obligation to assert his legal rights. This Court has upheld an express waiver of the statute of limitations endorsed upon a note as sufficient to prevent the bar of the statute of limitations. See Bowmar v. Peine, 64 Miss. 99, 104, 8 So. 166 (1886) (This Court upheld an endorsement on a deed of trust where the debtor specifically waived the “statute of limitations” on the deed of trust); Crane v. French, 38 Miss. 503, 531— 32 (1860) (Court found generally that a contract to waive the statute of limitations was in violation of public policy and void and generally that the waiver of a statute of limitations had been allowed only in the context of renewing a prior loan agreement and only for a new statute of limitations period, not indefinitely).

¶ 25. Here, the plain language of the note does not expressly waive the “statute of limitations.” Furthermore, the language of the note concerns only collections periods. This language does not operate to excuse Mills from asserting his legal rights in a timely manner prescribed by the applicable statute of limitations.

¶ 26. More importantly, the Legislature codified and prohibited any waiver of the statute of limitations by contract. Mississippi Code Annotated Section 15-1-5 provides:

The limitations prescribed in this chapter shall not be changed in any way whatsoever by contract between parties, and any change in such limitations made by any contracts stipulation whatsoever shall be absolutely null and void, the object of this section being to make the period of limitations for the various causes of action the same for all litigants.

Miss.Code Ann. § 15-1-5 (Rev.2003)(emphasis added). We find that Section 15 — 1— 5 renders any changes to the statute of limitations null and void. Therefore, any issue of whether the language of the promissory notes waived the statute of limitations is without merit, as it is prohibited by Mississippi Code Annotated Section 15 — 1— 5.

B. The statute of limitations.

¶ 27. Chimento argues that Mississippi Code Annotated Section 15-1-21 (Rev. 2003), which concerns actions on mortgages, deeds of trust, and statutory liens, is applicable. He claims that Section 15 — 1— 21 limits the commencement of an action upon a deed of trust to the same time period as the underlying note or debt. Chimento also argues that Mills’s note and deed of trust are subject to the three-year statute of limitations of Mississippi Code Annotated Section 15-1-29 and that it is applicable in this case. Section 15-1-29 concerns accounts and unwritten contracts. Mills argues that the six-year statute of limitations for negotiable installment notes (Miss.Code Ann. § 75-3-118) is applicable. However, Mills acknowledges that he did not raise this argument at the trial court.

¶ 28. While both parties argue either a three-year or six-year statute of limitations, this Court does not need to address this issue. Mills never filed suit to foreclose on his $35,000 note and never filed suit for collection on the note; therefore, more than six years passed between the time that Mills’s last installment on his note was due and payable, on January 1991, and any action, or more accurately, non-action by Mills.

C. Application of the facts.

¶ 29. On appeal, Mills and Chi-mento raise a number of statute-of-limitations sub-issues. However, we address only dispositive issues raised by the parties.

¶ 30. The chancellor emphasized a number of problematic issues with the facts of the case, yet found that, based on the actions of the parties and the language of the notes, the statute of limitations was tolled on Mills’s claim. Therefore, Mills was awarded all the proceeds from the sale of the 31.3 acres of land, as the dollar amount of his claim exceeded the recovered proceeds from the sale.

¶ 31. We find that the chancellor erred and the case should be reversed and rendered against Mills since Mills’s claim clearly is barred by the statute of limitations.

¶ 32. Mills took no action whatsoever to preserve his lien for non-payment of his $35,000 promissory note and deed of trust. Mills never filed a foreclosure action for failure to pay his $35,000 note, which would have protected his real estate collateral. Mills never filed suit on the note to preserve his right to the money owed on the note. In addition, Mills never petitioned the trial court to intervene in the action. Mills completely failed to assert his legal rights to his $35,000 note. The 1993 complaint resulted in the chancellor granting an injunction concerned the $95,000 note. The injunction did not affect Mills’s $35,000 note, nor did it inhibit Mills from pursuing his own claims for nonpayment of his $35,000 note. Fuller’s filing of his complaint is not equivalent to Mills filing his own complaint. In other words, Mills filed no action or pleadings which tolled the statute of limitations as to him.

¶ 33. Fuller argues that Mississippi Code Annotated Section 15-1-57 (Rev. 2003) is applicable to this case. Mississippi Code Annotated Section 15-1-57 provides:

When any person shall be prohibited by law, or restrained or enjoined by the order, decree, or process of any court in this state from commencing or prosecuting any action or remedy, the time during which such person shall be so prohibited, enjoined or restrained, shall not be computed as any part of the period of time limited by this chapter for the commencement of such action.

Fuller claims that the 1993 injunction order for the $95,000 note prevented Mills from collecting and foreclosing on the property. Therefore, the statute of limitations would not have run in this case pursuant to Section 15-1-57. We disagree. In Grant v. State, 686 So.2d 1078, 1084 (Miss.1996), this Court held:

[T]he savings clause in § 15-1-57 of Miss.Code Ann. only applies where a plaintiff is personally prohibited or restrained from bringing suit. It speaks in terms of a person being prohibited by law from bringing suit. White [v. White, 601 So.2d 864, 865 (Miss.1992) ]. The statute was enacted to protect those who are disabled to sue at all, not a rule that says they will lose if they bring suit. Id.

Grant v. State, 686 So.2d at 1084. In addition, the Court in Grant further held:

This Court in White v. White, determined that where there is a claim, it must be brought, if at all, within the applicable limitations period, regardless of whether the current substantive law permits recovery. Id. There can be no tolling of the statute of limitations unless the person is personally prohibited from bringing suit....
The decision in White explained that there was no savings or tolling of the statute of limitations unless an individual is personally prohibited or restrained from commencing or prosecuting his claim; the fact that he cannot recover because of an applicable defense or immunity does not toll the running of the statute of limitations. White, 601 So.2d at 865.

Grant, 686 So.2d at 1084.

¶ 34. The 1993 order addressed Es-mail’s $95,000 note, not Mills’s $35,000 note. Again, this order was not against Mills and his note was not encumbered by the order. Mills filed no complaint to preserve his rights on the $35,000 note and toll the statute of limitations. We find that reliance on Section 15-1-57 is without merit.

¶ 35. Notwithstanding these facts, Mills also asserts that Chimento failed to assert the affirmative defense of statute of limitations. Mills participated in the 1998 pre-trial hearings and the 1999 trial before the chancellor. However, Mills contends that Chimento failed to raise the affirmative defense of statute of limitations to court-ordered, pre-trial proposed findings of fact and conclusions of law which set forth his claims. Mills claims that Chi-mento waited almost a year to raise the defense of statute of limitations during trial. Mills cites MS Credit Center, Inc. v. Horton, 926 So.2d 167, 180 (Miss.2006), for his assertion that Chimento’s alleged failure to timely raise an affirmative defense in the face of active participation at trial acts as a waiver to an affirmative defense. In addition, Mills argues that his supplemental and amended proposed findings of fact and conclusions of law satisfied the notice pleading requirements of Mississippi Rule of Civil Procedure 8(a). We find Mills’s argument to be disingenuous.

¶ 36. In Horton, this Court held:
A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.

Horton, 926 So.2d at 180. Horton is distinguishable from the facts of this case. In Horton, the plaintiff filed a complaint and the defendants had an opportunity to respond by filing an answer and affirmative defenses. Id. See E. Miss. State Hosp. v. Adams, 947 So.2d 887, 891 (Miss.2007) (Defendants had the opportunity to answer and assert defenses to plaintiffs complaint and participated in litigation, but waited more than two years to bring the motion to dismiss). Here, Mills filed no pleadings with the chancery court to which Chimento could respond until more than ten months after the trial.

¶ 37. Mills also argues that his supplemental and amended proposed findings of fact and conclusions of law satisfy the pleading requirements of Mississippi Rule of Civil Procedure 8(a). We disagree. Mills argues that, like Mississippi Rule of Civil Procedure 8(a), his findings of fact and conclusions of law contained short and plain statements of the facts which entitled him to relief and provide notice. However, Rule 8(c) concerning affirmative defenses requires a party to plead its affirmative defenses and states, in part “[i]n pleading to a preceding pleading, a party shall set forth” various affirmative defenses which are listed in the rule. M.R.C.P. 8(c) (emphasis added). The comment to Rule 8 notes that the list of affirmative defenses stated in the Rule is not exhaustive.

¶ 38. Here, Mills never filed any pleadings in the case, nor did he seek to intervene in the case. At best, Mills filed his findings of fact and conclusions of law, however, that was more than ten months after trial and after the chancellor’s May 2000 judgment in the case. In other words, Chimento had no preceding pleadings to which to respond and allege his affirmative defenses. At trial, Mills did not testify, .yet Chimento asserted his right to argue affirmative defenses on Mills’s note. Chimento also specifically argued the statute of limitations when it was discussed at the trial and before the chancellor made a ruling on the issues. In addition, Chimento asserted the statute of limitations in his answer to the initial 1993 complaint to enjoin foreclosure on the $95,000 note. The record reveals that in 1997, White, as the substituted trustee, filed an answer and affirmative defenses to Fuller’s 1993 amended complaint. The answer specifically stated that “[t]he affirmative defense of laches and/or the statute of limitations bars relief sought in Plaintiffs Complaint.” Mills also never filed his own complaint or claim against Chimento or Fuller for failure to pay his $35,000 note.

¶ 39. More specifically, on the first day of trial, Mills attempted to clarify the issues to the chancellor. Mills also attempted to “amend” the pleadings by stating that “the pleadings would be amended to take care of these issues ...” Later that day, Chimento’s counsel stated:

Judge, I understand at the beginning of this case that [Mills’s counsel] read into the record what he believed the issues to be. I seem to recall that he mentioned something about amending pleadings, but I want the record to be clear on my part that I in no way at that point or at this point intend to stipulate that there is any pleadings for him to amend because he hasn’t filed any pleadings at all and that, you know, we still believe we’re entitled to raise our defenses to the note....

Following testimony, the chancellor and the attorneys addressed a number of issues. In particular, the chancellor noted that Mills had no pleadings to which other parties could respond. Mills asserted that his findings of fact and conclusions of law were, in essence, pleadings. Chimento again argued that the findings of fact and conclusions of law were not pleadings. When questioned by the chancellor concerning what was owed on the two notes, if anything, Chimento responded:

Well, as far as what’s owed to Mr. Mills, we take the position that, one, the statute of limitations has run, two, he has never filed any pleadings in this action requesting the Court award him any damages or any judgment on that note and, therefore, this Court has no jurisdiction in this action to find that Mr. Mills is due anything under the note or award him a judgment against the property on the note simply because nothing’s been filed to — no suit’s been filed on the note and that the statute of limitations has run and that we’re in a court of equity here, that it’s not fair for him to sit there and hold this note for nine years and say, “Now I want $160,000 instead of the $35,000.”
Now, I understand that, you know, you’ve heard that there was an injunction and, therefore, Mr. Mills was enjoined from foreclosing, but that didn’t enjoin him from suing Mr. Chimento individually on the note back in '91, '92, and '93. He could have done that at any time. He was not enjoined from doing that, and if their argument is that this deed of trust to Esmail had merged and that Mills is not the first mortgage, well, he’s never — Mills has never been enjoined from foreclosing that we know of, Judge. Unless I’m severely mistaken, he never tried to foreclose, and he’s never been enjoined from foreclosing. Only the first mortgagor, Mr. Esmail, through Mr. Chimento tried to foreclose, and that’s when the injunction came in, and Mr. Chimento feels that he should be reimbursed the payments he’s made to Mr. Esmail in the amount of $110,000, which is for the benefit of both of the parties plus interest, which the statute grants him....

The first time that Mills filed any document concerning proposed findings of fact and conclusions of law with the Chancery Court of Pearl River County was on June 23, 2000, almost ten. months after trial and after the May 2000 judgment.

¶ 40. Even assuming ad arguendo that the chancellor considered Mills’s findings of fact and conclusions of law to be pleadings and the chancellor allowed Mills’s oral request to amend these “pleadings” to conform to the proof, Mills’s claim still fails. Chimento objected to these findings of fact and conclusions of law being considered pleadings and the chancellor acknowledged Chimento’s right to reserve his defenses. Further, Mills did not testify, and Chimen-to orally asserted the statute of limitations soon after the chancellor heard the testimony and before his judgment. Accordingly, we find that this issue is without merit.

CONCLUSION

¶ 41. For the foregoing reasons, we find that the judgment of the Chancery Court of Pearl River County, Mississippi, should be reversed and rendered in part and reversed and remanded in part. The chancellor erred by finding that the statute of limitations was tolled in favor of Mills and awarding Mills all the proceeds from the land sale/ The chancery court’s finding that Mills’s claim is not barred by the statute of limitations should be reversed. Since Mills is barred by the statute of limitations, the chancery court’s judgment awarding Mills all the proceeds from the land sale should be reversed and remanded for proper distribution of the proceeds to Fuller and Chimento.

¶ 42. REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, 33., CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY.

      . Glenn L. White was substituted as the trustee for Albert John Chimento, Sr., by the time of the chancellor's April 18, 1997, order for temporary injunction.

      . Mississippi Code Annotated Section 15 — 1— 21(Rev.2003) provides:
      When a mortgage or deed of trust shall be given on real or personal estate, or when a lien shall be given by law, to secure the payment of a sum of money specified in any writing, an action or suit or other proceedings shall not be brought or had upon such lien, mortgage, or deed of trust to recover the sum of money so secured except within the time that may be allowed for the commencement of an action at law upon the writing in which the sum of money secured by such lien, mortgage, or deed of trust may be specified. In all cases where the remedy at law to recover the debt shall be barred, the remedy in equity on the mortgage shall be barred.

      . Mississippi Code Annotated Section 15 — 1— 29 (Rev.2003) provides:
      Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three (3) years next after the cause of such action accrued, and not after, except that an action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after.

      . Mississippi Code Annotated Section 75-3-118 (Rev.2002), a Uniform Commercial Code negotiable-instrument general provision, states:
      (a) Except as provided in subsection (e), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six (6) years after the due date or dates stated in the note or, if a due date is accelerated, within six (6) years after the accelerated due date.
      (b) Except as provided in subsection (d) or (e), if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note must be commenced within six (6) years after the demand. If no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten (10) years....