author: ROBERTS, J.,

text:
    Richard LIAS, Administrator and Natural Son and Heir of the Estate of Charlie Lias, Deceased, and on Behalf of all other Wrongful Death Beneficiaries and Heirs of the Estate, Appellant v. Gay B. FLOWERS, Appellee.
    No. 2004-CA-02459-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.
    Rehearing Denied Jan. 16, 2007.
    Certiorari Denied April 5, 2007.

      Derek D. Hopson, Clarksdale, Phillip J. Brookins, William Walker, Jackson, attorneys for appellant.
    William C. Griffin, Frances R. Shields, Jackson, Juliette V. Wilson, attorneys for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMLARY OF THE CASE

¶ 1. This wrongful death action arose after a collision between an automobile and a riding lawnmower. Charlie Lias operated the lawnmower and subsequently died after his collision with Gay Flowers’s automobile. Richard Lias filed a wrongful death action on Charlie Lias’s behalf. The matter proceeded to trial. Ultimately, the trial court granted Flowers’s motion for directed verdict at the close of Richard’s case-in-chief. Richard filed an unsuccessful motion for new trial. Aggrieved, Richard appeals and claims the circuit court erred when it granted Flowers’s motion for directed verdict. Finding no error, we affirm.

FACTS

¶ 2. On September 22, 2000, Charlie Lias, eighty-one-years old, drove his riding lawnmower southbound on Old Highway 49 in Mattson, Mississippi. Mr. Lias was on his way to his church. He intended to mow the church grounds.

¶ 3. Ms. Gay Flowers left a morning prayer service and was on her way back home. As she traveled southbound on Old Highway 49, a two-lane state highway, she recognized Mr. Lias. Flowers testified that Mr. Lias made an sudden unexpected U-turn across the highway. According to Flowers, she veered left and tried to avoid Mr. Lias, but Mr. Lias drove his lawnmower into the side of her car. As a result of the collision, Mr. Lias was thrown from his lawnmower. Flowers testified that immediately after the collision, Mr. Lias recognized his neighbor Flowers and stated, “I’m sorry Ms. Gay.” Flowers arranged for an ambulance response. As she waited, community acquaintances arrived. Mr. Lias got up and waited in the cab of a friend’s pickup. When the ambulance arrived, Mr. Lias got in the ambulance and went to the hospital emergency room. Mr. Lias’s son, Byrd Lias, went to the hospital with Mr. Lias and subsequently drove Mr. Lias home.

¶ 4. Byrd noticed that his father was acting unusual, but Byrd attributed Mr. Lias’s behavior to pain medication he received at the hospital. Later that day, Byrd got a call from his sister, Lizzie Lias. Lizzie told Byrd that their father was being airlifted to a hospital in Memphis. Unfortunately, Mr. Lias passed away as a result of a subdural hematoma, a head injury that had not been initially diagnosed at the emergency room. Although irrelevant to the present issue, testimony from Dr. John Lancon indicated that Mr. Lias’s death was not caused by the lawnmower accident, but instead was the result of “brain hemorrhage due to hypertension or high blood pressure, as well as the taking of blood thinners for which he was taking two blood thinners and a condition called amyloid angiopathy of the elderly.”

¶ 5. The day after the accident, Deputy Billy Baker of the Coahoma County Sheriffs Department was dispatched based on Mr. Lias’s death after an automobile collision. Deputy Baker went and spoke to Mr. Lias’s family. During Deputy Baker’s investigation, Flowers visited the Lias family to offer her condolences. While Flowers was there, Deputy Norman Harris interviewed Flowers. Deputy Harris then constructed an accident report. According to that accident report, Flowers was driving approximately forty miles per hour at the time of the accident. About a month later, Flowers called Officer Baker and explained that she was mistaken about her speed. Flowers told Officer Baker that she could not have been going forty miles per hour when she hit Mr. Lias. Flowers said that she did not have enough time to reach that speed because she had recently gone through a stop sign.

PROCEDURAL HISTORY

¶ 6. On December 5, 2002, Richard Lias filed a wrongful death action in the Coaho-ma County Circuit Court. Richard claimed that Flowers negligently caused Mr. Lias’s death. Richard requested five million dollars in compensatory damages and five million dollars in punitive damages. Flowers denied liability. The matter proceeded to trial on August 30, 2004.

¶ 7. Richard called Flowers as an adverse witness. She was the only eyewitness to the collision who testified. On direct, Flowers testified that she had seen Mr. Lias as he drove his mower down the highway. She testified that she knew to look out for Mr. Lias because he was elderly, did not hear well, did not see well, and behaved unpredictably. She did not know how much time passed from the moment she first saw Mr. Lias until the accident. She could not predict the distance at which she saw him, but she testified that the distance was less than half a mile. Flowers also testified that the sky was overcast and that it had barely begun to rain at the time of the accident.

¶ 8. Flowers further testified that Mr. Lias drove on the shoulder of the highway. Richard’s attorney asked Flowers whether she told Deputy Baker that Mr. Lias was partly on the shoulder and partly on the pavement. Flowers responded that she was not certain whether she said that to Officer Baker. Flowers attempted to clarify her recollection of Mr. Lias’s position on or near the road. Flowers testified, “[h]e was on the shoulder of the road, but then when he started U-turning, he was partially on the pavement, partially on the highway, and as he U-turned, he came back into the center of the road.”

¶ 9. As for her speed, Flowers testified that she told Officer Baker that she was going forty miles per hour, but she corrected herself because she timed herself several times from the dead stop. In particular, Flowers testified, “I went over and over it several times, and I was at a dead stop, and by the time I got to him, when I saw him, I had slowed up even more. So I couldn’t have been going probably even 20 when I got to him actually. But when the officer asked me that, I just off the top of my head said, you know, BO, 40. I don’t know.”

¶ 10. Flowers testified as to the sequence of events surrounding the collision. According to Flowers, “I was behind him when he started making the U-turn, and I started veering as hard as I could to get out of his way to try to avoid him.” Flowers elaborated, “When I started approaching him, I started moving over just for safety’s sake, but then when he started U-turning, I started veering hard and headed toward the bayou and squealing on brakes to try to keep from going into the bayou myself, and when he hit, he hit my right front tire.” As for her position in the road at the point of impact, Flowers testified, “Actually when he hit it was almost in the middle because I was veering, and he — he was thrown into the middle of the road off his tractor.”

¶ 11. On cross-examination, Flowers’s attorney asked her to describe her version of events. Flowers testified:

I was on my way home from church, and I came into Mattson, stopped at the three-way stop, and as I approached the store — well, I got to the store, and a little past the store, I saw Mr. Charlie on his riding lawn mower, and I assume he was going to cut the grass, because that was — he used that lawn mower as his transportation because I don’t know if the children had taken his car away from him, but he didn’t have a car, and he used it to go to the store in Dublin or he went to the church which was just like not even a quarter of a mile past my house.
And he was headed down the road on the shoulder of the road, and when I saw him — I mean after I came out of the three-way stop, when I saw him, I started slowing up. As we’ve said, he was kind of unpredictable, and a lot of the people in our area would, you know, attest to that. But when I saw him, I started easing over, and before I got parallel with him, it started sprinkling, and he didn’t look back, and he made a u-turn right in the middle of the road. And when I saw him u-turning, I started veering to the left, and he hit the right side of the front of my car, and I think there are pictures of where all of the red on the tractor are right on my right front tire, and I did everything I could to avoid him. I have replayed it several times. I have even thought, you know, if I had sped up, maybe I could have gotten past him, but I couldn’t. I could not avoid him.

¶ 12. Flowers also testified as to her position after the accident. Flowers explained that when she stopped, her ear was pointed southeast in the northbound lane. That is, she veered into the oncoming left lane and came to a stop at an angle, as if she were headed off the left side of the road. The lawn mower came to rest in the middle of the road. Flowers went on to testify that Mr. Lias hit the right side of her car with the front of his lawnmower. She testified that she had no damage to the front of her car, but her right front tire blew out. Flowers testified that Mr. Lias was thrown off his tractor and he landed “pretty much right in the middle of the road.”

¶ 13. Richard called Officer Billy Baker. Primarily, Officer Baker’s testimony distinguished Flowers’s version of events. Officer Baker testified that, when he spoke with her the day after the accident, Flowers told him that Mr. Lias operated his lawnmower so that the two left wheels were on the pavement of the road, while the two right wheels were on the shoulder. Officer Baker also testified that the accident report incident to the collision indicated that Flowers said she was going forty miles per hour at the time of the accident. The accident report also showed that Mr. Lias turned across Flowers’s path and that Flowers swerved left into the northbound lane in effort to avoid a collision. On cross-examination, Officer Baker testified that, on October 23, Flowers called him and said she was mistaken when she told Deputy Harris that she was going forty miles per hour. She said she could not have been going that fast because she had just stopped at a stop sign.

¶ 14. At the conclusion of Richard’s case, Mrs. Flowers requested a directed verdict. The circuit court found:

there was really nothing else that Ms. Flowers could do under the circumstances, regardless of whether you believe the mower was partially on the highway or partially off. When you look at the photographs of the highway ..., the composite exhibits of the damage to the vehicle, the Cadillac car with a little red paint on the front right-side of the ... Defendant’s car — the Defendant testified that it blew her tire out, and you look at the frontal damage on the red Rally lawnmower operated by the deceased, Mr. Charlie Lias, ... this Court can only conclude that two good people were involved in an accident, that Mr. Lias was on his way to cut grass at his church, that it began to sprinkle a little bit, and he decided, for whatever reason, to make a U-turn just as Ms. Flowers was going south on Highway 49, that the front of the lawnmower made contact with the right-front side of the car lightly, enough to leave a little red paint on it, but collided — apparently the impact was to the tire, which blew the tire out. The Court notices the frontal damage, and the testimony was that the — somewhere in the record is that the hood flew off.
The only version of the facts came from Ms. Flowers herself who said she had been to a prayer meeting of sorts at eight o’clock in the morning at her church and was on her way home somewhere around 9:30, both of them going south. She said that as she approached, she slowed down, that as he began to turn, that she veered to the left as hard as she could and threw on brakes but could not avoid the accident, the mower colliding with the front right tire, obviously both vehicles stopping quickly. The lawnmower obviously stopping quickly, causing Mr. Lias to be thrown to the ground. He didn’t die at that time.
This Court does not have to reach the battle of the experts as to exactly what caused his death because to get to that we have to first get by liability. The Court finds that there is no proof of negligence, that Plaintiff is unable to support the burden that the Plaintiff would have to show negligence on the part of the Defendant in this case, and for that reason — and the Court, finding that the exhibits introduced into evidence support the Defendant’s version of the facts, finds that the motion for directed verdict should be granted.

¶ 15. Accordingly, the circuit court granted Mrs. Flowers’s motion for directed verdict. Following Richard’s unsuccessful motion for new trial, Richard appeals.

STANDARD OF REVIEW

¶ 16. This Court conducts a de novo review of a motion for directed verdict. Morgan v. Greenwaldt, 786 So.2d 1037(¶ 10) (Miss.2001) (citing Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995)). If we find that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted. Id. An issue should only be presented to the jury when the evidence creates a question of fact on which reasonable jurors could disagree. Id.

ANALYSIS

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED MRS. FLOWERS’S MOTION FOR A DIRECTED VERDICT.

¶ 17. Richard claims the trial court failed to consider the evidence in the light most favorable to him. Richard submits that he presented evidence that created a question of fact over which reasonable jurors could disagree. Richard raises the following points: (a) that Flowers’s speed contributed to the accident, (b) that Flowers did not sound her horn properly, and (c) that Flowers did not use reasonable care in passing Mr. Lias.

A. Speed.

¶ 18. Much of Richard’s argument on appeal is dedicated to Flowers’s speed. Officer Baker testified that, according to Flowers on the day after the accident, she was going forty miles per hour at the time of the accident. Richard points out that the posted speed limit along that section of Old Highway 49 was thirty miles per hour. At trial, Flowers testified that she could not have been going forty miles per hour because she did not have sufficient time to build up that speed. She testified that she was upset on the day after the accident and that she was mistaken about her speed.

¶ 19. Assuming that Flowers was going forty miles per hour, there is nothing about Flowers’s speed that indicates that she did not keep a proper lookout over Mr. Lias. Instead, all the evidence shows that Mr. Lias made an unexpected sudden U-turn into the side of Flowers’s car. Richard cites Louisville & N.R. Co. v. Garnett, 129 Miss. 795, 93 So. 241 (1922) and suggests that this case is on point. In Louisville, a man died after a train struck him. Louisville, 93 So. at 242. The decedent walked along a railroad track and never walked between the rails. Id. Rather, either a part of the train called a “pilot beam” or a “cylinder” struck the decedent. Id. The evidence indicated that the train was going between fifteen and twenty-five miles per hour, instead of what appears to be the recommended speed or perhaps the speed limit of six miles per hour. Id. The Louisville court held that, had the train not exceeded six miles per hour, “certainly the blow would have been with very much less force than it was while running at a speed of from 15 to 25 miles an hour; it might have done him little if any harm.” Id. However, in this case we are not dealing with a difference between six and fifteen or twenty five miles per hour; nor are we dealing with a train or a pedestrian that merely walked next to a railroad. The decedent in Louisville did not drive into the side of the train.

¶ 20. Flowers correctly cites McFarland v. Leake, 864 So.2d 959 (Miss.Ct.App.2003). In McFarland, this Court found that a trial judge did not err when he awarded summary judgment in favor of a defendant incident to an automobile accident where the plaintiffs sole contention was an affidavit from an accident recon-structionist that stated the defendant’s speed exceeded the limit by ten miles per hour. Id. at (¶ 6). This Court held that even if the defendant exceeded the speed limit by ten miles per hour, the plaintiff failed to demonstrate evidence of causation that related that speed to the wreck. Id.

¶ 21. Richard suggests that in McFarland, this Court “was seduced into error by its misplaced reliance on” Havard v. State, 800 So.2d 1193 (Miss.Ct.App.2001). McFarland’s reliance on Havard was simply to illustrate a point. That is, it is not enough to simply show that a party committed some misdemeanor traffic offense. Rather, a party must demonstrate that the speeding “must still be shown to have been the cause of the accident.” McFarland, 864 So.2d at (¶ 6) (citing Havard, 800 So.2d at (¶ 15)). Here, Richard has patently failed to demonstrate just how Flowers’s speed contributed to Mr. Lias’s sudden U-turn into the side of her car. As such, we find no reversible error.

B. Horn

¶ 22. According to Richard, Flowers failed to sound her horn and thereby failed to warn Mr. Lias of her presence. Richard cites language from the Mississippi Code which holds, “[t]he driver of a motor vehicle shall, when reasonably necessary to insure safe operation, give audible warning with his horn.... ” Miss.Code Ann. § 63-7-65(1) (Rev.2004). Richard also cites Smith v. Walton, 271 So.2d 409 (Miss.1973) and claims that Smith supports his contention that the trial judge erred when he sustained Flowers’s motion for a directed verdict.

¶23. In Smith, the Mississippi Supreme Court reversed a jury verdict in favor of a defendant motorist who struck a pedestrian as he walked along the side of the road. Id. at 414. The defendant in Smith testified that he first saw the plaintiff about a block away “but did not sound his horn and really didn’t pay too much attention” to the plaintiff. Id. at 411. When the plaintiff was half a car length away from the plaintiff, the plaintiff “suddenly stepped or jumped over on the highway.” Id. The defendant tried to swerve left away from the plaintiff, but the right corner of the defendant’s car hit the plaintiff. Id. Further facts indicated that it was dark at the time, that it was snowing and raining, that the defendant continued to drive near the edge of the pavement after he saw the plaintiff, and that the defendant was about a foot or a foot and a half on the highway when he struck the plaintiff. Id.

¶ 24. The supreme court reversed the jury’s verdict based on improper jury instructions. Id. at 414. In particular, the supreme court found that one jury instruction stated that the law required the plaintiff to walk on the left side of the road, when that particular law had been repealed. Id. at 413. The supreme court also found that a jury instruction failed to announce the law as stated in two statutes pursuant to the former Mississippi Code of 1942. Id. One of those two statutes, the former Section 8202(d), stated that “every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary.” Id. The other statute, formerly Section 8250, provided that “[t]he driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn when upon a highway.” Id. The supreme court found that the instructions did not reflect the relevant statutes. Accordingly, the supreme court reversed the jury’s verdict and remanded for a new trial.

¶ 25. Richard contends that Smith supports his assertion that a directed verdict was improper. We disagree. Smith is distinguishable from the present matter. Primarily, while the defendant in Smith struck a pedestrian, in the case sub judice, Mr. Flowers drove a lawnmower into the side of a motor vehicle. What is more, there is no absolute duty to sound one’s horn in the process of overtaking a vehicle. Clark v. Mask, 232 Miss. 65, 73-74, 98 So.2d 467, 471-72 (1957); Miss.Code Ann. § 63-7-65(1). Instead, the law requires the sounding of a horn “when reasonably necessary to insure safe operation.” Miss. Code Ann. § 63-7-65(1). There is no indication that, prior to Mr. Lias’s unexpected spontaneous U-turn, there was a reasonable need for Flowers to sound her horn. Rather, until Mr. Lias made his unexpected U-turn, the undisputed proof shows that Flowers moved over to her left and that she would have proceeded past Mr. Lias without incident. Perhaps Mr. Lias would not have made that U-turn, had Flowers sounded her horn, but such a holding would place a duty on motorists to accurately predict sudden and unexpected actions, while motorists are only held to a duty of reasonable care. Turner v. Turner, 524 So.2d 942, 947 (Miss.1988). There was no evidence that Flowers acted contrary to her duty.

¶ 26. Moreover, there was no evidence that Flowers hit Mr. Lias. Instead, all the evidence clearly indicates that Mr. Lias made an unpredictable U-turn into the side of Flowers’s car. Photographs of the scene reveal light damage to the front right quarter-panel of Flowers’s car. Those photographs also show significant damage only to the front of Mr. Lias’s lawnmower. The accident report shows that Mr. Lias hit Flowers’s car approximately in the center of the roadway. That supports Flowers’s contention that Mr. Lias made an unpredictable U-turn into her path.

C. Due Care in Passing

¶ 27. Finally, Richard alleges that (a) Flowers failed to attempt to drive her automobile into the northbound lane in anticipation that Mr. Lias might have driven his lawnmower further into the southbound lane and (b) Flowers failed to stay behind Mr. Lias until it was safe to pass him. Richard also notes that Byrd and Lizzie Lias testified that their father habitually rode his lawnmower on the pavement of the highway. That may very well be, but Flowers’s testimony, the only testimony of the facts of the accident, was that Mr. Lias rode on the shoulder of the highway or that Mr. Lias had his two left wheels on the highway and his two right wheels on the shoulder. Since we examine all inferences in Richard’s favor, we assume that Mr. Lias was halfway on the highway and halfway on the shoulder.

¶ 28. Even under that assumption, we must affirm the trial court’s decision. As mentioned, no evidence indicated that Flowers was negligent. Rather, Flowers testified that she slowed down and eased over when she saw Mr. Lias. That testimony indicates that Flowers kept a reasonable and proper lookout. It is undisputed that Mr. Lias made a sudden and unexpected U-turn across the highway and that he collided into the side of Flowers’s car as she attempted to avoid him. Flowers nearly drove off the left side of the road, but was unable to avoid Mr. Lias. No evidence suggests that Flowers was negligent in the amount of space she gave Mr. Lias or in attempting to pass. We find no reversible error.

¶ 29. THE JUDGMENT OP THE COAHOMA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ, SOUTHWICK, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: IRVING, J., GRIFFIS, J.,

license: Public Domain

text:
    DUNLAP ACRES, LTD. and Shannon Rentals, Ltd., Appellants v. INTERVEST DEVELOPMENT CORPORATION, Intervest Partners Corporation, Intervest Corporation, West Point Housing, L.P., Shannon Housing, L.P., J. Steve Nail and Rodney H. Dudley, Appellees.
    No. 2005-CA-01271-COA.
    Court of Appeals of Mississippi.
    Aug. 29, 2006.
    Rehearing Denied Jan. 16, 2007.
    Certiorari Denied April 12, 2007.

      Brenda B. Bethany C. Michael Elling-burg, Jackson, Attorneys for Appellants.
    Brooks R. Buchanan, Jackson, Attorney for Appellees.
   IRVING, J.,

for the Court.

¶ 1. This controversy is over the appropriate interest rate that is due under two promissory notes that are in default. The chancellor concluded that the proper rate was the legal rate of eight percent (8%). Dunlap Acres, Ltd. and Shannon Rentals, Ltd. appeal and argue that the promissory notes provided for a higher interest rate.

¶ 2. We find no merit to Dunlap’s argument. Therefore, we affirm the judgment of the chancellor.

FACTS

¶ 3. The relevant facts are not in dispute. Dunlap Acres, Ltd. (“Dunlap”) developed a fifty-unit multi-family property, known as Dunlap Acres, in West Point, Mississippi. Shannon Rentals, Ltd. (“Shannon”) developed a forty-eight-unit multi-family property, known as Shannon Rentals, in Shannon, Mississippi. In 1996, Intervest Development Corporation (Inter-vest) entered into negotiations with both Dunlap and Shannon for the purchase of both properties.

¶ 4. On April 11, 1996, Shannon sold the Shannon Rentals property to Intervest for the price of $132,400. As part of the sale, Shannon Housing, L.P. and Intervest, Shannon Housing L.P.’s general partner, executed a promissory note to pay Shannon the sum of $132,400. The promissory note was guaranteed by Intervest, Inter-vest Partners Corporation, J. Steve Nail, and Rodney H. Dudley.

115. On September 30, 1996, Dunlap sold the Dunlap Acres property to Intervest for the price of $140,000. As part of the sale, West Point Housing, L.P. and Intervest, West Point Housing, L.P.’s general partner, executed a promissory note to pay Dunlap the sum of $140,000. The promissory note was guaranteed by Intervest, Intervest Partners Corporation, J. Steve Nail, and Rodney H. Dudley.

¶ 6. In 1998, Dunlap commenced this action by filing a complaint against Inter-vest, Intervest Partners Corporation, In-tervest Corporation, West Point Housing, L.P., Shannon Housing L.P., J. Steve Nail, and Rodney H. Dudley. On October 17, 2000, the chancellor issued an opinion and order on Dunlap’s and Shannon’s motion for partial summary judgment that determined the amounts owed on the notes. On August 7, 2002, the chancellor issued an opinion and order on Dunlap’s and Shannon’s second motion for partial summary judgment that determined that the interest rate owed on the notes was eight percent (8%), pursuant to Mississippi Code Annotated section 75-17-1(1) (Supp.2005). On June 1, 2005, the chancellor entered an amended final judgment which held (1) that Intervest; Intervest Partners Corporation; West Point Housing, L.P.; Shannon Housing, L.P.; J. Steve Nail, and Rodney H. Dudley were in default and were liable to Dunlap and Shannon under the terms of the promissory notes for the purchase of the two parcels of property, and (2) that Intervest Corporation was not a party to the promissory notes and was not liable. The judgment also awarded $8,726.50 as reasonable attorneys’ fees and reaffirmed the chancellor’s earlier ruling that established the applicable interest rate on the promissory notes at eight percent (8%). It is from this final judgment that Dunlap and Shannon appeal.

STANDARD OF REVIEW

¶ 7. Since the issue is one of law, the chancellor’s finding that the appropriate interest rate is eight percent (8%) is reviewed de novo. Miss. State Highway Comm’n v. Patterson, 627 So.2d 261, 263 (Miss.1993).

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. The only issue raised on appeal is whether the chancellor erred in her determination of the interest rate to be applied. Apparently, neither party sought to introduce parol evidence at the trial court level, as there is no issue or argument here that parol evidence should or should not have been allowed to illuminate the issue.

¶ 9. The promissory notes are virtually identical and contain the following language with regard to interest: “The whole of the principal sum and, to the extent permitted by law, any accrued interest, shall bear, after default, interest at the highest lawful rate then in effect pursuant [to] the laws of the State of Mississippi or of the United States of America.” (emphasis added).

¶ 10. We begin by quoting the entire summary of Dunlap’s argument as set forth in its brief: “There is no construction of law which would enable Defendants [Ap-pellees] to avoid liability to Plaintiffs [Appellants] for interest at the maximum rate allowable by law as specified in the contracts. That rate is 15% compounded annually.” We will return to a discussion of this summary statement later in this opinion.

¶ 11. Dunlap and Shannon rely on Mississippi Code Annotated section 75-17-1(3) (Supp.2005), which provides:

Notwithstanding the foregoing and any other provision of law to the contrary, any partnership, joint venture, religious society, unincorporated association, or domestic or foreign corporation, whether organized for profit or nonprofit, may contract for and agree to pay a finance charge which will result in a yield not to exceed the greater of fifteen percent (15%) per annum or five percent (5%) per annum above the discount rate, excluding any surcharge thereon, on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the lender is located, each calculated according to the actuarial method, on any contract, loan, extension of credit or other obligation under which the principal balance to be repaid shall originally exceed Two Thousand Five Hundred Dollars ($2,500.00), or on any series of advances of money pursuant to a contract if the aggregate of sums advanced or originally proposed to be advanced shall exceed Two Thousand Five Hundred Dollars ($2,500.00); and as to any such agreement, the claim or defense of usury by such partnership, joint venture, religious society, unineor-porated association, or corporation, or their successors, guarantors, assigns or anyone on their behalf is prohibited.

¶ 12. The chancellor rejected Dunlap’s argument and agreed with Intervest that Mississippi Code Annotated section 75-17-1(1) was applicable. Section 75-17-1(1) provides that, “[t]he legal rate of interest on all notes, accounts and contracts shall be eight percent (8%) per annum, calculated according to the actuarial method, but contracts may be made, in writing, for payment of a finance charge as otherwise provided by this section or as otherwise authorized by law.” The chancellor held that “in viewing the evidence in the light most favorable to the non-moving party this Court finds that consistent with [section] 75-17-1(1) the higher contract interest rate should have been in writing and the specific rate was not; therefore, this court finds that the 8% rate is applicable.”

¶ 13. In resolving the issue before us, we look to the language of the promissory notes. “The most basic principle of contract law is that contracts must be interpreted by objective, not subjective standards. A court must effect a determination of the meaning of the language used, not the ascertainment of some possible but unexpressed intent of the parties.” Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987). “Our concern is not nearly so much with what the parties may have intended, but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy.” Facilities, Inc. v. Rogers-Usry Chevrolet, 908 So.2d 107, 111(¶7) (Miss. 2005). “[0]ur focus is upon the objective fact — the language of the [promissory notes].” Osborne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989). We are not concerned with some secret thought or idea that may have reposed with one of the parties but which was not communicated to the other party. “When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses.” Facilities, Inc., 908 So.2d at 111(¶ 7).

¶ 14. We conclude that the chancellor objectively interpreted the plain language of the promissory notes and reached the correct result. The notes provide that interest will be paid “at the highest lawful rate then in effect pursuant [to] the laws of the State of Mississippi or of the United States of America.” The key phrase is “rate then in effect.” While interest will be paid at the highest rate, that rate must be in effect at the time of the default. The common and ordinary meaning of something that is in effect is that it is in full force, operating, and functioning. The only rate in effect under the laws of the State of Mississippi when the default occurred was the default interest rate set forth in section 75-17-1(1).

¶ 15. An interest rate of fifteen percent is not presently the interest rate in effect in Mississippi. It was not the interest rate in effect when the promissory notes were executed or when the default occurred. While an interest rate of fifteen percent is allowed, it has to be placed in effect by the contracting parties. In other words, as the learned chancellor found, the parties have to contract for a specific rate of fifteen percent in order to place that rate in effect. That, the parties did not do.

¶ 16. Interestingly, as we have already noted, Dunlap, in summarizing its argument in its brief to this Court, says Inter-vest obligated itself by contract documents (the promissory notes) to pay “interest at the maximum rate allowable by law as specified in the contracts.” The key phrase in this argument is “allowable by law.” However, the promissory notes do not obligate Intervest to pay interest at the maximum rate allowable by law. The plain wording of the notes obligates Inter-vest to pay interest at the highest lawful rate then in effect. The highest interest rate that is allowable by law is not the highest interest rate that is in effect by law. If we were to accept Dunlap’s interpretation of the language of the notes, we would have to find that, although no specific interest rate percentage is included in the interest provision, interest is to be paid at some figure which could be astronomical. We reach this conclusion because section 75-17-1(5), a subsection detailing the amount of finance charges that parties may agree to pay, seems to permit such a result.

¶ 17. While the dissent does not say so explicitly, it apparently concludes that section 75-17-1(3) is the appropriate code section to apply because, and only because, this section allows parties to contract for interest at the specific rate of fifteen percent per annum. The problem with this reasoning is that, while section 75-17-1(5) does not include the specific figure of fifteen percent per annum, it certainly appears to allow parties to contract for interest at a rate greater than or less than fifteen percent. If the parties contracted that interest will be paid at the highest lawful rate, how can it then be said that the rate of fifteen percent is the highest lawful rate? It cannot be because the parties included that figure in the promissory notes. They did not. Logically, the only reason for this conclusion by the dissent is that the fifteen percent figure is the highest interest figure specifically mentioned in the statutory interest provisions. However, does that make it the highest lawful interest rate? It does not. And since the dissent and Dunlap believe that the promissory notes obligate Intervest to pay interest at the highest lawful rate, why are they willing to settle for something considerably less? The dissent admits that section 75-17-1(5) permits a far higher interest rate than fifteen percent.

¶ 18. In concluding that a fifteen percent interest rate should apply, the dissent seems fixated on only a portion of the wording used by the parties, and by so doing, fails to heed the teachings of Facilities, Inc., that a contract must be read as a whole, giving effect to all of its clauses. The dissent believes our interpretation does not give effect to the word “highest,” but we do not believe the dissent gives effect to the phrase “then in effect.” We take one last look at the wording of the promissory notes: “any accrued interest, shall bear, after default, interest at the highest lawful rate then in effect pursuant [to] the laws of the State of Mississippi or of the United States of America.” The phrase, “in effect,” modifies or limits the phrase, “highest laicful rate.” We reiterate: only one interest rate, was and is “in effect” in this state. Certainly, eontract-ing parties may place other rates in effect in their particular transaction. But, to do so, the rate has to be specified.

¶ 19. The dissent also suggests that if the chancellor found the interest provision ambiguous, she should have allowed parol evidence. First, that is not an issue in this appeal, and second, the chancellor did not find the provision ambiguous, even though Intervest urged that position.

¶ 20. Accordingly, we affirm the judgment of the chancellor.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., AND CHANDLER, J., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, BARNES, ISHEE AND ROBERTS, JJ.

GRIFFIS, J.,

DISSENTING.

¶ 22. I disagree with the majority’s decision to affirm the chancellor’s decision that the proper interest rate due under two promissory notes was the legal rate of eight percent (8%). Accordingly, I dissent.

¶23. This is a contract interpretation issue. The result is determined by the interpretation of the language of the promissory notes and the proper application of Mississippi Code Annotated Section 75-17-1. The majority and I simply disagree on which subsection applies. Section 75-17-1 actually provides for five categories that allow for differing rates of interest: eight percent, ten percent, fifteen percent, or an unlimited percent, depending upon certain circumstances. I begin with an analysis of the different parts of Section 75-17-1.

¶ 24. Subsection (1) provides that the “legal rate of interest ... shall be eight percent (8%) per annum ... but contracts may be made, in writing, for payment of a finance charge as otherwise provided by this section or as otherwise authorized by law.” Thus, subsection (1) sets the “legal rate of interest,” i.e., the default rate, at eight percent, and it allows the parties to agree to a higher or lower amount.

¶ 25. Subsection (2) provides that parties may “contract for and agree to pay” interest “which will result in a yield not to exceed the greater of ten percent (10%) per annum or five percent (5%) per annum above the discount rate.”

¶ 26. Subsection (3) provides:

Notwithstanding the foregoing and any other provision of law to the contrary, any partnership, joint venture, religious society, unincorporated association, or domestic or foreign corporation, whether organized for profit or nonprofit, may contract for and agree to pay a finance charge which will result in a yield not to exceed the greater of fifteen percent (15%) per annum or five percent (5%) per annum above the discount rate, excluding any surcharge thereon, on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where the lender is located, each calculated according to the actuarial method, on any contract, loan, extension of credit or other obligation under which the principal balance to be repaid shall originally exceed Two Thousand Five Hundred Dollars ($2,500.00), or on any series of advances of money pursuant to a contract if the aggregate of sums advanced or originally proposed to be advanced shall exceed Two Thousand Five Hundred Dollars ($2,500.00); and as to any such agreement, the claim or defense of usury by such partnership, joint venture, religious society, unincorporated association, or corporation, or their successors, guarantors, assigns or anyone on their behalf is prohibited.

Under this subsection, if the principal amount is greater than $2,500, the parties may agree to pay interest up to fifteen percent. However, since individuals are excluded, subsection (3) applies only to partnerships, corporations, and the like. Subsection (3) is applicable to the parties in this dispute.

¶ 27. Subsection (4) provides that parties may “contract for and agree to pay” interest “which will result in a yield not to exceed the greater of ten percent (10%) per annum or five percent (5%) per annum above the index of market yields of the Monthly Twenty-Year Constant Maturity Index of Long-Term United States Government Bond Yields ... on any loan, mortgage or advance which is secured by a lien on residential real property....”

¶ 28. Subsection (5) provides that parties may “may contract for and agree to pay ... any finance charge agreed to in writing by the parties” as long as the principal balance is greater than $2,000. Thus, under subsection (5), the parties may agree to pay an rate of interest as long as the amount agreed to is in writing.

¶ 29. Now, I turn to the contract to be interpreted, i.e., the promissory notes. The April 11, 1996 note provided that the maker, Shannon Housing, L.P., agreed to pay the sum of $132,400 in three installments. Likewise, the September 30, 1996 note provided that the maker, West Point Housing, L.P., agreed to pay the sum of $140,000 in three installments. Neither note provided for the payment of interest if the installments were made timely. The were principal only and zero interest notes. Interest would only accrue upon default of the maker. Both notes contain the following provision:

The whole of the principal sum and, to the extent permitted by law, any accrued interest, shall bear, after default, interest at the highest lawful rate then in effect pursuant [to] the laws of the State of Mississippi or of the United States of America.

(emphasis added).

¶ 30. In Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 110-11 (¶¶ 5-7) (Miss.2005), the Mississippi Supreme Court reversed this Court and provided the following summary of the law of contract interpretation:

“ ‘Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder.’ ” Parkerson v. Smith, 817 So.2d 529, 532 (Miss.2002) (quoting Miss. State Highway Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993)). We, as an appellate court, employ the de novo standard of review for questions of law. Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997).
“The primary purpose of all contract construction principles and methods is to determine and record the intent of the contracting parties.” Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 752 (Miss.2003) (citing Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989)). “ ‘In contract construction [cases, this Court’s] focus is upon the objective fact-the language of the contract. We are concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other.’ ” Turner v. Terry, 799 So.2d 25, 32 (Miss.2001) (quoting Osborne v. Bullins, 549 So.2d 1337, 1339 (Miss.1989)).

This Court has stated:

This Court has set out a three-tiered approach to contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351-53 (Miss.1990). Legal purpose or intent should first be sought in an objective reading of the words employed in the contract to the exclusion of parol or extrinsic evidence. [Cooper v. Crabb, 587 So.2d 236, 241 (Miss.1991).... ] First, the “four corners” test is applied, wherein the reviewing court looks to the language that the parties used in expressing their agreement. Pursue Energy Corp., 558 So.2d at 352 (citing Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975)). We must look to the “four corners” of the contract whenever possible to determine how to interpret it. McKee v. McKee, 568 So.2d 262, 266 (Miss.1990). When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses. Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992). Our concern is not nearly so much with what the parties may have intended, but with what they said, since the words employed are by far the best resource for ascertaining the intent and assigning meaning with fairness and accuracy. Simmons v. Bank of Miss., 593 So.2d 40, 42-43 (Miss.1992). Thus, the courts are not at liberty to infer intent contrary to that emanating from the text at issue. Id. (citing Cooper, 587 So.2d at 241). On the other hand, if the contract is unclear or ambiguous, the court should attempt to “harmonize the provisions in accord with the parties’ apparent intent.” Pursue Energy Corp., 558 So.2d at 352. Only if the contract is unclear or ambiguous can a court go beyond the text to determine the parties’ true intent. Id. “The mere fact that the parties disagree about the meaning of a contract does not make the contract ambiguous as a matter of law.” Turner, 799 So.2d at 32; Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987).
Secondly, if the court is unable to translate a clear understanding of the parties’ intent, the court should apply the discretionary “canons” of contract construction. Pursue Energy Corp., 558 So.2d at 352. Where the language of an otherwise enforceable contract is subject to more than one fair reading, the reading applied will be the one most favorable to the non-drafting party. Leach v. Tingle, 586 So.2d 799, 801-02 (Miss.1991) (citing Stampley v. Gilbert, 332 So.2d 61, 63 (Miss.1976)). Finally, if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence. [Pursue Energy Corp., 558 So.2d at 353]. It is only when the review of a contract reaches this point that prior negotiation, agreements and conversations might be considered in determining the parties’ intentions in the construction of the contract.
Royer, 857 So.2d at 752-53 (¶¶ 10-11) (emphasis added).

¶ 31. This issue came before the chancellor on the second motion for partial summary judgment filed by Dunlap and Shannon. In the first motion, Dunlap and Shannon asked the chancellor to enter a partial summary judgment finding the defendants in default of the payment terms. In response, the defendants claimed that the payment provisions were ambiguous, that they were not in default, and that summary judgment was not appropriate. The chancellor relied on the defendants’ admission, in their response to interrogatories, that they owed $125,000 on the Dunlap note and $72,400 on the Shannon note to grant partial summary judgment. Thus, the chancellor found that the defendants were in default of the payment terms of the promissory notes and Dunlap and Shannon were entitled to summary-judgment on that issue.

¶ 32. In the second motion for summary judgment, Dunlap and Shannon asked the chancellor to enter another partial summary judgment to adjudicate the interest at the rate of fifteen percent. To support the motion, Dunlap and Shannon relied on the chancellor’s first order granting partial summary judgment, the promissory notes, the affidavit of their general partner calculating the interest due at fifteen percent, and an interest calculation. Again, in their response, the defendants countered that the interest provision was ambiguous. Their memorandum, filed in the record, claimed that Section 75-17-1 contains “three different interest rates, all of which are arguably applicable. Those rates are 8 percent, 10 percent, and 15 percent. The parties never addressed which of those three rates would apply.” Further, the defendants argued that the “motion should be denied. The interest provisions are poorly drafted and provide the reader with no concrete impression as to what the interest rate should be. Therefore, the provisions are ambiguous and create issues of material fact. The ambiguity also prevents the interest provisions from being enforced, at all.” The chancellor held that “in viewing the evidence in the light most favorable to the non-moving party this court finds that consistent with § 75-17-1(1) the higher contract interest rate should have been in writing and the specific rate was not therefore, this court finds that the 8% rate is applicable.”

¶ 33. I am of the opinion that partial summary judgment was proper. On de novo review, I am of the opinion that the interest provisions of the promissory notes were not ambiguous. The parties’ intent can be ascertained through an objective reading of the words employed in the promissory notes. Facilities, Inc., 908 So.2d at 110-11 (¶¶ 5-7).

¶ 34. The proper interpretation of the interest rate in the promissory notes is governed by Section 75-17-1(3). The parties did not agree that interest would accrue at the “legal rate.” Miss.Code Ann. § 75-17-1(1). Instead, the parties agreed that the principal “shall bear ... interest at the highest lawful rate.” I am of the opinion that the “highest lawful rate then in effect” was fifteen percent (15%), pursuant to Section 75-17-1(3).

¶ 35. The parties use of the word “highest” before “lawful rate” is significant. It may not be disregarded. It must be accorded meaning because the parties inclusion indicated their agreement to give it meaning. The use of the word “highest” logically indicates that there is a lower rate. In Section 75-17-1(3), the Legislature enacted a law that provided that the “highest lawful rate” was “not to exceed the greater of fifteen percent (15%) per annum or five percent (5%) per annum above the discount rate.” Thus, the Legislature established the “highest lawful rate” that was applicable to the parties involved in this transaction and this litigation. Therefore, I conclude that fifteen percent (15%) per annum is the “highest lawful rate then in effect pursuant [to] the laws of the State of Mississippi.”

¶ 36. I will address the majority’s rationale. The majority seems to argue that since no specific amount was included the interest rate could be “astronomical.” The problem with this argument is the Section 75-17-1(5) requires that any such rate be agreed to in writing. The parties could have agreed to interest at the rate of twenty percent (20%), fifty percent (50%) or one thousand percent (1,000%). However, since they did not agree to any of these interest rates, subsection (5) is subject to the fifteen percent (15%) maximum legal rate provision of subsection (3). Subsection (5) is clearly and plainly not applicable to these circumstances.

¶ 37. The majority’s most compelling argument is that the phrase “rate then in effect” can only be interpreted to point to section 75-17-1(1) because it was the “only rate in effect ... when the default occurred.” I disagree. Under 75-17-1(3), it was lawful and legal for the parties to agree to an interest rate of up to fifteen percent. Subsection (3) authorized by law the parties to contract for fifteen percent interest. If an interest rate of fifteen percent is authorized by law then it is both “legal” and “lawful”. Section 75-17-1 authorized the parties to agree to eight percent, ten percent or fifteen percent. Fifteen percent, under subsection (3), was the “highest lawful rate then in effect.”

¶ 38. The majority’s opinion fails to consider the parties’ decision to include the word “highest.” The effect is that the majority rationale deletes or omits this word from the promissory notes without an explanation. Certainly, the majority gives no effect to the inclusion of the word “highest.” If the promissory notes simply said interest was due at the “lawful rate in effect,” the majority would be correct to apply Section 75-17-1(1). Likewise, if the notes said nothing of a specific interest rate, the majority would be correct to apply Section 75-17-1(1). This Court must give effect to the parties’ decision to incorporate the word “highest” before the words “lawful rate of interest in effect.” Undoubtedly, the parties’ use of the word “highest” indicates that there is a lower rate. I cannot agree with the majority as long as they disregard the parties’ use of the word “highest” in the promissory notes. The notes were not silent; rather, the parties agreed for interest to bear at a rate higher than the default rate.

¶ 39. Accordingly, I conclude that the chancellor failed to consider the plain language used in the promissory notes. The notes provided that interest shall accrue “at the highest lawful rate then in effect.” Pursuant to Section 75-17-1(3), the highest lawful rate was fifteen percent (15%). It was error for the chancellor, and now the majority of this Court, not to give effect to the parties’ agreement that after default the notes would bear “interest at the highest lawful rate then in effect pursuant [to] the laws of the State of Mississippi or of the United States of America”.

¶ 40. I continue with my analysis to consider yet another issue, albeit a procedural one. The only motion before the chancellor asked for a partial summary judgment finding the appropriate interest rate at fifteen percent. The defendants responded saying that the provision was ambiguous, and no interest should be charged. To reach the defendants’ position, it would require the chancellor to find that a genuine issue of a material fact was in dispute over the amount of interest. The defendants did not just argue that the eight percent rate was correct; indeed, they also argued that there was a genuine issue of material fact in dispute because no interest should be charged. The defendants argued that the interest provisions were ambiguous. If so, the proper actions, as argued by the defendants, was to deny the motion for partial summary judgment and litigate the issue.

¶ 41. Instead, the chancellor held that “in viewing the evidence in the light most favorable to the non-moving party this Court finds that consistent with § 75-17-1(1) the higher contract interest rate should have been in writing and the specific rate was not therefore, this court finds that the 8% rate is applicable.” The majority correctly recognizes that neither party presented “evidence” in dispute. So we are left to consider what evidence the chancellor viewed in the light most favorable to the defendants. Dunlap and Shannon argued that the language was not ambiguous and the proper rate was fifteen percent. The defendants argued that the language was ambiguous. If the chancellor found that the language was unambiguous, as proposed by Dunlap and Shannon, the chancellor could have entered partial summary judgment and assessed interest at fifteen percent. If the chancellor found the language was ambiguous, as proposed by the defendants, the chancellor should have moved to the next step in the interpretation of ambiguous contracts, i.e., allowing the introduction of extrinsic or par-ol evidence to ascertain the parties’ intent. In Pursue Energy Corp. v. Perkins, 558 So.2d 349, 353 (Miss.1990), the court held:

Application of “canons” of construction may provide a court with an objective inference of the parties’ intent. But if, at this step in the process, intent remains unascertainable (i.e., the instrument is still considered ambiguous), then the court may resort to a final tier in the three-tiered process of construction. This final tier entails consideration of extrinsic or parol evidence. In other words, consideration of the totality of the circumstances attendant the devising of an instrument may help reveal the parties’ intent.

¶ 42. The foundation for the majority’s decision is that the promissory notes were ambiguous as to the amount of interest to be charged. Thus, the default rate was the “lawful rate then in effect.” Accepting such logic, the majority should at a minimum reverse and remand for the chancellor to consider extrinsic or parol evidence to determine the intent of the parties.

¶ 43. I respectfully dissent. I would reverse and render judgment in favor of Dunlap and Shannon.

SOUTHWTCK, BARNES, ISHEE AND ROBERTS, JJ., JOIN THIS OPINION.

      . For brevity and clarity in the remainder of this opinion, we refer to the Appellants as Dunlap and the Appellees as Intervest.

      . Section 75-17-1(5) reads as follows:
      Notwithstanding the foregoing and any other provision of law to the contrary, any borrower or debtor may contract for and agree to pay and any lender or extender of credit may contract for and receive any finance charge agreed to in writing by the parties, notwithstanding that such charge is in excess of that otherwise allowed on any contract, credit sale, obligation or other extension of credit, regardless of the security taken or the purpose of the extension of credit, under which the principal balance to be repaid originally exceeds Two Thousand Dollars ($2,000.00), or on any series of advances of money pursuant to a contract if the aggregate of sums advanced or originally proposed to be advanced exceeds Two Thousand Dollars ($2,000.00), or on any extension or renewal thereof; and as to any such agreement, the claim or defense of usury or violation of any law prescribing, limiting or regulating the rate of finance charge by any borrower or debtor, or his successors, guarantors, assigns or anyone on his behalf is prohibited.


text:
    Robert D. MacDONALD, Decedent, by and through Nancy L. MacDONALD, Individually and as Executrix of the Estate of Robert D. MacDonald, Deceased, and Representative of all Heirs-at-Law of the Decedent, Robert D. MacDonald, Appellants. v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 2005-CA-00128-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.
    Rehearing Denied Feb. 13, 2007.
    Certiorari Denied April 26, 2007.

      Margaret P. Ellis, Jackson, attorney for appellants.
    William E. Whitfield, Samuel Trent Favre, attorneys for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. As she drove across the Bay St. Louis bridge, Jacqueline O’Shey crossed the median into oncoming traffic and collided with Robert and Nancy MacDonald’s car. Nancy suffered injuries and Robert tragically died. Nancy sued the Mississippi Department of Transportation (MDOT) on Robert’s behalf as well as her own. Nancy also sued Jacqueline, but they managed to settle amicably.

¶2. Nancy sued for defective design, negligent construction, negligent maintenance, negligent improvement in that MDOT failed to construct a median barrier, and failure to warn. MDOT denied liability and filed a motion for summary judgment as it applied to Nancy’s cause of action for defective design. The circuit court granted partial summary judgment in that it awarded summary judgment on Nancy’s defective design claim only, but not on Nancy’s other causes of action.

¶ 3. MDOT filed a second motion for summary judgment and claimed that it was entitled to immunity as to Nancy’s remaining causes of action. MDOT argued that it was entitled to summary judgment as to all of Nancy’s causes of actions because the circuit court granted summary judgment as to Nancy’s cause of action for defective design. The circuit court agreed and granted MDOT’s motion for summary judgment as it applied to Nancy’s remaining causes of action. Aggrieved, Nancy appeals and raises two issues, listed verbatim:

I. Whether the trial Court erred in its application of Miss.Code Ann. § 11-46-1, particularly § 11-46-9, and specifically whether the Court erred in granting summary judgment based upon MDOT’s argument that because it was immune from liability for the defective design claim that it enjoys immunity for all claims which were filed against them.
II. Whether MDOT was required to exercise ordinary care in performing a discretionary function of maintenance to the bridge in question.

After careful consideration, we are of the opinion that the circuit court erred when it granted summary judgment based on the concept that immunity as to one cause of action, as a matter of law, amounts to immunity as to all of Nancy’s causes of actions. Consequently, we reverse the circuit court’s decision and remand this matter for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶4. In Hancock County, Mississippi, a bridge known as “the Bay St. Louis bridge” (the bridge) connects two Mississippi municipalities, Bay St. Louis and Pass Christian. On February 5, 2000, Robert and Nancy MacDonald drove east on the bridge. At the same time, Jacqueline O’Shey drove across the bridge from the opposite direction. As their paths crossed, Jacqueline crossed the median, proceeded into the MacDonalds’ lane, and collided head-on into the MacDonalds’ car. Tragically, Robert died. Nancy suffered injuries but ultimately survived.

¶5. On June 13, 2001, Nancy filed a complaint in the First Judicial District of the Hinds County Circuit Court, by which she raised a wrongful death action on Robert’s behalf and sued individually as well. Nancy named the Mississippi Department of Transportation (MDOT) as a defendant, as well as O’Shey. As mentioned, Nancy and Jacqueline settled.

¶ 6. However, as to MDOT, Nancy alleged that MDOT caused her injuries and Robert’s death based on listed claims for (a) defective and unreasonably dangerous design, (b) defective and unreasonably dangerous construction of the bridge, (c) negligent maintenance and improvement of the bridge, (d) failing to warn the public of the dangerous propensities or conditions of the bridge, (e) failing to use proper materials for reasonably safe construction of the bridge, (f) failing to use proper materials for reasonably safe maintenance of the bridge, (g) failing to properly test and inspect the bridge, and (h) failing to construct a barrier in the center of the bridge. MDOT answered and denied liability. On February 7, 2002, the Hinds County Circuit Court transferred venue to the Hancock County Circuit Court.

¶ 7. On July 11, 2002, MDOT filed a motion for summary judgment. MDOT submitted that summary judgment was appropriate based on immunity under the Mississippi Tort Claims Act (MTCA). In the brief that accompanied MDOT’s motion for summary judgment, MDOT cited Mississippi Code Annotated Section 11-46 — 9(l)(p) (Rev.2002) for the proposition that a governmental entity shall not be liable for any claim:

[AJrising out of a plan or design for construction or improvements to public property, including but not limited to, public ... bridges ... where such plan or design has been approved in advance of the construction or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design.

MDOT submitted that it was immune from Nancy’s cause of action for defective design if it demonstrated that (1) the State Highway Commission approved the plan or design for the bridge prior to construction, and (2) that the plan or design was in conformity with the engineering or design standards that were in effect at the time the bridge plan or design was prepared. To that end, MDOT submitted minutes of a “highway commission” meeting dated January 31, 1951, and an affidavit from Harry Lee James, P.E.

¶ 8. The attached January 31, 1951 minutes reflected the highway commission’s resolution in which it approved construction of the bridge in accordance to the bridge plans and specifications. James’s affidavit indicated that MDOT employed him as “the Bridge Engineer.” James further stated that MDOT had continuously employed him in that capacity since 1999.

¶ 9. James attached the bridge plans and specifications to his affidavit and swore that he reviewed them. James concluded that the bridge plans and specifications “conform[ed] to industry standards which at the time of construction were proscribed by the American Association of State & Highway Officials.” What is more, James swore that “the building of the bridge specifically conformed at that time to engineering standards generally acceptable and preferable within the field of civil engineering.” James concluded that, “[bjased on [his] education, training and experience ... the bridge ... complied with sound engineering design and construction standards that existed in the bridge design industry in 1953.” Based on James’s review of the bridge plans and specifications, MDOT concluded that the circuit court should find that there was no genuine issue of material fact that it was entitled to immunity as to Nancy’s defective design claim. Consequently, MDOT submitted that the circuit court should award summary judgment accordingly.

¶ 10. On July 30, 2002, Nancy responded to MDOT’s motion for summary judgment. Nancy argued that the circuit court should overrule MDOT’s motion for summary judgment because (a) there existed disputed material facts, (b) MDOT failed to address all the causes of action she raised in her complaint, and (c) MDOT was not entitled to the immunity granted by the MTCA because MDOT failed to use ordinary care in performing its duties. Less than two weeks later, MDOT submitted a rebuttal to Nancy’s response. MDOT claimed that it was entitled to summary judgment as to Nancy’s defective design and negligent maintenance and that Nancy’s other claims were merely derivative of her defective design and negligent maintenance claims. MDOT reasoned that, based on the derivative nature of those claims, it had addressed each and every cause of action that Nancy alleged in her complaint.

¶ 11. MDOT reiterated its position that it was entitled to summary judgment based on section 11 — 46—9(l)(p). Additionally, MDOT also set forth arguments that were not contained in its initial motion for summary judgment. That is, MDOT addressed those causes of action other than defective design and construction.

¶ 12. Five months later, Nancy filed an objection to MDOT’s rebuttal. Nancy also filed a motion to strike portions of MDOT’s rebuttal. Nancy requested that the circuit court strike portions of MDOT’s rebuttal on the basis that it exceeded the scope of its initial motion. Nancy asked the circuit court to limit MDOT’s argument to those points raised in MDOT’s initial motion for summary judgment. On January 17, 2003, the parties went before the circuit court and presented their respective arguments for and against summary judgment.

¶ 13. On February 6, 2003, the circuit court filed an order and overruled MDOT’s motion for summary judgment regarding Nancy’s causes of action other than her defective design claim. Specifically, the circuit court stated that it was “of the opinion that [MDOT’s] motion [for summary judgment] should be denied with regard to all [Nancy’s] claims except the claim of defective design.” Accordingly, the circuit court granted partial summary judgment for MDOT as it pertained to Nancy’s cause of action for defective design. However, the circuit court also ordered that MDOT could renew its motion for summary judgment regarding Nancy’s other causes of action. Nancy does not appeal the circuit court’s decision to award partial summary judgment on MDOT’s behalf.

¶ 14. On July 26, 2004, MDOT filed its second motion for summary judgment. According to MDOT, because the circuit court granted summary judgment and found immunity based on section 11^16-ll(l)(p), MDOT was totally immune from Nancy’s remaining causes of action. MDOT submitted that it need only demonstrate immunity under one provision of the MTCA to be entitled to immunity as to each and every cause of action that Nancy raised in her complaint.

¶ 15. On August 11, 2004, Nancy responded to MDOT’s second motion for summary judgment and, quite naturally, disagreed that MDOT was entitled to immunity as to all of her causes of action because it had demonstrated immunity as to one of her causes of action. On September 1, 2004, the parties went before the circuit court for arguments on MDOT’s second motion for summary judgment. Ultimately, the circuit court granted MDOT’s second motion for summary judgment and entered a final judgment of dismissal based on its decision to award summary judgment as to Nancy’s defective design claim. That is, the circuit court found that MDOT was entitled to summary judgment as to all of Nancy’s remaining claims because it had awarded summary judgment as to Nancy’s cause of action for defective design.

¶ 16. Nancy appeals the circuit court’s decision to grant summary judgment as to her remaining claims. The Mississippi Trial Lawyers Association filed an amicus curiae brief in support of Nancy’s position. Additionally, the Mississippi Defense Lawyers Association filed its own amicus curiae brief in support of MDOT’s position.

STANDARD OF REVIEW

¶ 17. This Court conducts a de novo review of orders granting or denying summary judgment. Mantachie Natural Gas v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992). According to Rule 56 of the Mississippi Rules of Civil Procedure, a circuit court may grant summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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.” “A fact is material if it ‘tends to resolve any of the issues, properly raised by the parties.’ ” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991) (quoting Mink v. Andrew Jackson Casualty Ins. Co., 537 So.2d 431, 433 (Miss.1988)).

¶ 18. In determining whether there exists a genuine issue of material fact, we must view the evidence in the light most favorable to Nancy, the non-moving party. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997). Not only that, we must consider motions for summary judgment with a skeptical eye, because it is preferable to err on the side of the non-moving party. Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986).

ANALYSIS

I. Whether the trial Court erred in its application of Miss.Code Ann. § 11-46-1, particularly § 11-46-9, and specifically whether the Court erred in granting summary judgment based upon MDOT’s argument that because it was immune from liability for the defective design claim that it enjoys immunity for all claims which were filed against them.

¶ 19. Essentially, Nancy raised five separate causes of action in her complaint: (a) defective design, (b) negligent construction, (c) negligent maintenance, (d) negligent improvement, including improper testing, improper inspection and failure to construct a concrete median barrier, and (e) failure to warn of the bridge’s dangerous condition and propensities. The circuit court considered two motions for summary judgment. First, the circuit court granted partial summary judgment based on Mississippi Code Annotated Section 11-46-9(l)(p). That summary judgment applied solely to Nancy’s claim for defective design. That left Nancy with viable causes of action for negligent construction, negligent maintenance, negligent improvement, and failure to warn.

¶ 20. Incident to MDOT’s second motion for summary judgment, the circuit court awarded summary judgment as to all of Nancy’s remaining causes of action. The circuit court based its decision on an interpretation of the MTCA termed “Fra-sier’s octopus.” “Frasier’s octopus” stands for the principle that where one exemption listed at Section 11-46-9(1) applies, no further immunity is necessary, as that immunity in and of itself is sufficient to defeat a claim.

¶ 21. The term “Frasier’s octopus” originated from a law review article by Jim Frasier entitled, “A Review of the Substantive Provisions of the Mississippi Governmental Immunity Act: Employees’ Individual Liability, Exemptions to Waiver of Immunity, Non-jury Trial and Limitation of Liability,” 68 Miss. L.J. 703 (1999). That law review article stated, “the various exemptions [listed under Section 11-46-9(1)] are like an octopus’s arms; even if one doesn’t get you, another one may.” Id. at 743.

¶ 22. MDOT takes the position that this Court adopted “Frasier’s octopus” in Pearl River Valley Water Supply District v. Bridges, 878 So.2d 1013 (Miss.Ct.App.2004). In Bridges, an employee of a water supply district arrested a man. Id. at (¶ 5). The arrestee sued the water supply district and its employee. Id. at (¶ 9). The plaintiff in Bridges alleged that the water supply district’s employee used excessive force when the employee arrested him. Id. The circuit court found the water supply district and its employee jointly and severally liable to the arrestee. Id. at (¶10).

¶ 23. On appeal, this Court found that two separate provisions of the MTCA were relevant: the immunity that applies to law enforcement activities located at section 11 — 46—9(l)(c), and the “discretionary functions” immunity at section 11 — 46—9(l)(d). Id. at (¶ 11). This Court recognized that section 11-46-9(1) contains exemptions “lettered from (a) through (x).” Id. at (¶ 12). Further, Bridges recognized that the exemptions “are written in the disjunctive,” as indicated by the MTCA’s use of the word “or.” Id. Having recognized such, Bridges held that “[ajpplicability of any one of these sections creates immunity.” In so holding, Bridges cited Mr. Fra-sier’s law review article. Id. Finally, Bridges found that the employee was immune by virtue of the “law enforcement immunity” of section 11 — 46—9(1)(c) and that it was unnecessary to “review the discretionary function issue.” Id. at (¶¶ 32-33).

¶ 24. MDOT would have us apply the decision in Bridges to mean that, where a governmental entity is entitled to immunity as to one claim, that governmental entity is entitled to immunity as to all claims asserted by a plaintiff which caused his injuries. According to MDOT, because the circuit court found that summary judgment was appropriate as to Nancy’s defective design claim by way of section 11-46-9(l)(p), MDOT is also immune to Nancy’s negligent construction claim, her negligent maintenance claim, her negligent improvement claim, and her failure to warn claim.

¶25. We are of the opinion that MDOT’s position is misplaced. Bridges stood for the proposition that, as to any one specific claim, one basis for immunity is all that is necessary to find total immunity as to that claim only-not to every single claim raised by a plaintiff. It is true that, for any individual claim, where any one provision under section 11 — 46—9(1) grants immunity, a governmental entity is immune to that individual claim. However, where there are separate claims, that single provision may or may not be sufficient to create immunity as it applies to those other claims. Resolution of the question as to whether a single finding of immunity equates to immunity as to each and every claim raised depends on the facts of the case and the relevant claims. Therefore, such an issue must be decided on a case-by-case basis. Suffice it to say, the legal principle referred to as “Frasier’s octopus” applies to an individual claim, but may or may not apply to all claims.

¶ 26. We read Mr. Frasier’s law review article to comply with our current decision. In particular, Mr. Frasier’s law review article states:

It should also be noted that when one speaks of an original plan and design, one only contemplates construction and improvement, not subsequent routine maintenance. In other words, where the government designs and plans for construction of a roadway, or makes plans to improve its property, and those plans are approved and are in accordance with appropriate standards, the government is immune from liability no matter the ultimate result. But where a public entity engages in routine maintenance of its property, e.g., blacktopping a roadway, filling in street holes, or patching the wall of a government-designed building, the design exemption is inapplicable to that subsequent maintenance.

68 Miss. L. J. at 813 (footnotes omitted).

¶ 27. As authority, Mr. Frasier cited Costa v. Josey, 83 N.J. 49, 415 A.2d 337 (1980). Mr. Frasier noted that, in Costa:

a New Jersey court declared that if the initial design of a roadway contemplated that a concrete lane divider would be lowered by subsequent resurfacing, then the State could not be held liable for the divider’s later reduction in size and the resultant automobile collision for lack of a visible road divider. However, if the plan did not contemplate such a reduction ... and the divider’s height was reduced by routine blacktopping maintenance, then the State could be held liable for negligent maintenance and the design immunity would afford it no immunization against liability.

68 Miss. L.J. at 813-14 (citing Costa, 415 A.2d. at 340). To be entirely clear, this language is dicta, as we do not necessarily adopt Costa, nor do we reject it. We merely note that Mr. Frasier’s law review article does not advocate for the interpretation of “Frasier’s octopus” according to the circuit court’s resolution. Succinctly put, immunity as to one claim does not necessarily, as a matter of law, equate to immunity for all claims.

¶ 28. We find that the circuit court erred when it found that, because Section 11 — 46—9(l)(p) granted MDOT immunity from liability related to Nancy’s cause of action for defective design, MDOT was also immune for Nancy’s remaining claims. For clarity’s sake, we do not disturb the circuit court’s decision as to whether MDOT is immune from Nancy’s defective design claim pursuant to section 11-46-9(l)(p) — Nancy did not appeal on the basis of that ruling. We only find that immunity under that provision does not, as a matter of law, grant immunity to Nancy’s remaining causes of action. Accordingly, we remand this matter to the circuit court.

II. Whether MDOT was required to exercise ordinary care in performing a discretionary function of maintenance to the bridge in question.

¶ 29. In its second motion for summary judgment, MDOT submitted an alternative argument to its argument for “Frasier’s octopus.” MDOT argued that it was entitled to immunity as to Nancy’s remaining claims pursuant to Mississippi Code Annotated Section 11 — 46—11 (1)(d) (Rev.2002), otherwise known as the “discretionary function exemption.” MDOT submits that maintenance and improvement of the bridge, including whether to build a median barrier, was a discretionary function.

¶ 30. As for Nancy’s failure to warn claim, MDOT argues that it was entitled to immunity under section 11 — 46—9(l)(v). In its motion for summary judgment, MDOT submitted that the danger created by the lack of a median barrier was “open and obvious” to anyone that exercised due care. MDOT points to Nancy’s own deposition to prove that the danger was “open and obvious.” In her deposition, Nancy stated, “I remember us driving down the road in the right lane ... I reached over and grabbed [Robert’s] arm, and I said, I think it’s really strange that there’s no medians. There’s nothing separating ongoing traffic.”

¶ 31. The circuit court’s rationale for summary judgment was based entirely on its erroneous interpretation of “Frasier’s octopus.” The circuit court never reached the issues of whether maintenance or improvement of the bridge was a discretionary function, whether MDOT was required to exercise ordinary care in maintaining or improving the bridge, or whether the danger posed by the lack of a median barrier was “open and obvious.”

¶ 32. Because the circuit court did not render its decision to sustain MDOT’s second motion for summary judgment on any of MDOT’s alternative arguments, we find it inappropriate to consider any issues that the circuit court has not yet had an opportunity to rule upon. We refrain from comment as to the merits of those arguments. Suffice it to say that this opinion should not be taken in any way as a decision that Nancy can or cannot defeat an additional motion for summary judgment on remand, should MDOT pursue that course of action.

¶ 33. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT IS REVERSED AND REMANDED TO THE CIRCUIT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR.