author: SAUNDERS, Judge.

text:
    Cynthia BRIDGES, Dept. of Rev., State of La. v. Clark L. WHITE.
    No. CA 2007-408.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Daivd M. Hamsen, Monica Doss Washington, Elroy A. James, Joseph F. Stevenson, Louisiana Department of Revenue, Legal Department, Baton Rouge, LA, for Plaintiff/Appellant, Cynthia Bridges, Department of Revenue.
    William Christian Gambel, Milling, Benson, Woodward, L.L.P., New Orleans, LA, for Defendants/Appellees, Clark L. White, Estate of Lisa White.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

- 11 This is an income tax case. The Louisiana Department of Revenue conducted an audit of two taxpayers for the years 1997 through 2001. The taxpayers agreed to pay the taxes according to the audit for the years 1999-2001, but did not agree to pay the audited taxes for the years 1997-1998.

The Department filed suit against the taxpayers to collect the taxes from 1997-1998. In response, the taxpayers filed exceptions of prematurity and vagueness. The trial court overruled the taxpayers’ exception of vagueness, sustained their exception of prematurity, and dismissed the Department’s petition.

The Department and the taxpayers have both appealed. We affirm the trial court’s ruling on the exception of vagueness, reverse the trial court’s ruling on the exception of prematurity, and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY:

The Louisiana Department of Revenue (hereinafter “the Department”) audited the tax returns filed by Clark and Lisa White (hereinafter “the taxpayers”), a husband and wife, for the years 1997 through 2001. Prior to 1997 the taxpayers filed Louisiana Resident Returns. For the years 1997 through 2001, the taxpayers filed Louisiana Non-Resident Returns. The issue in the audit was whether the taxpayers were residents of Louisiana during the years 1997 through 2001. The taxpayers claimed that they were residents of Florida for the years in question.

The taxpayers agreed to pay the taxes found due for the years 1999-2001. However, the taxpayers did not agree with the audit for the 1997-1998 years. As a result, the Department filed suit to collect the taxes for those unpaid years.

The taxpayers responded to the suit by filing Dilatory Exceptions of Prematurity and Vagueness. On August 8, 2006, the trial court sustained the | ^taxpayers’ exception of prematurity and dismissed the Department’s petition. Further, the trial court overruled the taxpayers’ exception of vagueness.

The Department has appealed the ruling of the trial court regarding the taxpayers’ exception of prematurity. In response, the taxpayers appealed the trial court’s ruling regarding their exception of vagueness. We affirm the trial court’s overruling of the taxpayers’ exception of vagueness. We reverse the trial court’s finding that the Department’s petition was premature and remand the case for further proceedings not inconsistent with this opinion.

DEPARTMENT’S APPEAL:

The Department alleges that the trial court erred by sustaining the taxpayers’ Dilatory Exception of Prematurity and dismissing its petition. We agree.

The issue before us is a question of law which seeks the correct interpretation of La.R.S. 47:1561 and its relation to La.R.S. 47:15(12) and (14) of the Taxpayer’s Bill of Rights.

Louisiana Revised Statute 47:1561 states:

In addition to following any of the special remedies provided in the various chapters of this subtitle, the collector may, in his discretion, proceed to enforce the collection of any taxes due under this subtitle by means of any of the following alternative remedies or procedures:
(1) Assessment and distraint, as provided in R.S. 47:1562 through 47:1573.
(2) Summary court proceeding, as provided in R.S. 47:1574.
(3) Ordinary suit under the provisions of the general laws regulating actions for the enforcement of obligations.
The collector may choose which of these procedures he will pursue in each case, and the counter-remedies and delays to which the taxpayer will be entitled will be only those which are not inconsistent with the proceed initiated by the collector, provided that in every case the taxpayer shall be entitled to proceeding under R.S. 47:1576 except | ¡¡(a) after he has filed a petition with the board of tax appeals for a redetermination of the assessment, or (b) when an assessment for the tax in question has become final or (c)when a suit involving the same tax obligation is pending against him; and provided further, that the fact that the collector has initiated proceedings under the assessment and distraint procedure will not preclude him from thereafter proceeding by summary or ordinary court proceedings for the enforcement of the same tax obligation.(Emphasis added.)
La.R.S. 47:15, in pertinent part, states:
There is hereby established a Taxpayer’s Bill of Rights to guarantee that the rights, privacy, and property of Louisiana taxpayers are safeguarded and protected during tax assessment, collection, and enforcement processes administered under the tax laws of this state. This Taxpayer’s Bill of Rights consists of a statement, in nontechnical terms, of the rights and obligations of the Department of Revenue and taxpayers. The rights afforded taxpayers to assure that their privacy and property are safeguarded and protected during tax assessment and collection are available only insofar as they are implemented in accordance with the Constitution of Louisiana and Louisiana Revised Statutes of 1950 or the administrative rules of the Department of Revenue. The rights assured Louisiana taxpayers are:
(12) The right to request that any assessment of taxes due, including penalty and interest, be reviewed at the management level of the Department of Revenue in accordance with R.S. 47:1563.
(14) the right to hearing in order to dispute an assessment of taxes, interest, and penalties by timely filing an appeal with the Board of Tax Appeals in accordance with R.S. 47:1414, 1431, and 1481. A taxpayer shall not be required to pay the disputed tax, interest, and penalties in order to exercise this right.
(Emphasis added.)

Absent clear evidence of a legislative intent to the contrary, a statute should first be interpreted according to its plain language. Cleco Evangeline, L.L.C. v. La. Tax Comm’n, 01-2162 (La.4/3/02), 813 So.2d 351. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9. This principle of statutory interpretation applies to tax statutes. Tarver v. E.I. du Pont de Nemours and Co., 93-1005 (La.3/24/94), 634 So.2d 356.

In interpreting the language of La.R.S. 47:1561 it is clear to this court that the collector of taxes, has the discretion to file an ordinary suit to collect taxes as was done in the case before us. It is only if the collector chooses to make a tax assessment that the rights numbered (12) and (14) in the Taxpayer’s Bill of Rights can be asserted. Here, no such assessment was made; therefore, the rights cited by the taxpayers cannot be invoked by them.

The First Circuit Court of Appeal has addressed a similar issue in the case of Bridges v. Smith, 01-2166 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, writ denied, 02-2951 (La.2/14/03), 836 So.2d 121. The Smith court looked to legislative history and found that La.R.S. 47:15 was not enacted with the intention to create any new rights or change the existing laws. Rather, the Taxpayer’s Bill of Rights was an attempt to codify all rights a taxpayer had under Louisiana Law in one place.

We agree with the First Circuit’s assessment of the Taxpayer’s Bill of Rights. It does not create any new rights and does not conflict with or add to the existing rights in the tax assessment and collection procedure found at La.R.S. 47:1561, et seq.

Accordingly, we find that the trial court erred in sustaining the taxpayers’ Dilatory Exception of Prematurity and erred in dismissing the Department of Revenue’s petition. As such, we reverse the trial court’s ruling and remand the case for further proceedings.

TAXPAYERS’ APPEAL:

The taxpayers have also appealed from a ruling made by the trial court. The | .^taxpayers contend that the trial court erred in overruling their Dilatory Exception of Vagueness. We disagree.

This court recently addressed the Dilatory Exception of Vagueness in Smart v. Gold, Weems, Bruser, Sues & Rundell, 06-1414, p. 5 (La.App. 3 Cir. 4/4/07), 955 So.2d 263, 267:

The purpose of the dilatory exception of vagueness, which is provided for by La.Code Civ.P. art. 926, is to place a defendant on notice of the nature of the facts sought to be established and, thus, enable him or her to identify the cause of action and prevent its future re-litigation after a judgment is obtained. Snoddy v. City of Marksville, 97-327 (La.App. 3 Cir. 10/8/97), 702 So.2d 890. See also Thomas v. Sonic, 06-0014 (La.App. 1 Cir. 11/3/06), 950 So.2d 822. However, the exception does not permit the defendant to demand exactitude and detail beyond what is necessary for the above purposes. Snoddy, 702 So.2d 890. An exception of vagueness will be denied if the petition fairly informs the defendants of the nature of the cause of action and includes sufficient particulars for the defendant to be able to prepare his or her defense. Id.

The Department’s petition clearly meets the requirements to overcome an exception of vagueness. The petition to collect taxes filed by the Department states the cause of action (to collect unpaid Louisiana income taxes), from which tax years (1997-1998), why those taxes are sought (taxpayers filed Louisiana NonResident tax returns rather than Louisiana Resident tax returns), on what basis those taxes are sought (an audit of the 1997-1998 years revealed to the Department that the taxpayers were actually Louisiana residents under its tax laws), and, finally, how much was being sought in unpaid taxes, plus interest and penalties ($254,-245.00 in unpaid taxes, $272,335.13 in interest, and $127,122.50 in penalties).

The taxpayers contend that a petition must plead facts which at least suggest that the suit was brought within the time provided by law. This contention lacks merit as there is no such legal requirement. The petition filed by the Department states the Ryears for which it is seeking that Louisiana resident taxes be paid by the taxpayers. This places the taxpayers on notice of the contested time frame and allows them to assert or plead prescription if they feel it is warranted. The law does not require that the petition filed by a plaintiff negate the affirmative defense of prescription. Nor is the question of whether a suit is brought timely properly addressed with an exception of vagueness. Accordingly, we affirm the trial court’s overruling of the taxpayers’ exception of vagueness.

CONCLUSION:

Thé Department raised one assignment of error, contending that the trial court erred in granting the taxpayers’ Dilatory Exception of Prematurity and dismissing its petition. We reverse the trial court’s finding and remand the case for further proceedings not inconsistent with this opinion. The taxpayers also raised one assignment of error, contending that the trial court erred in overruling their exception of vagueness. We affirm the trial court’s ruling on this issue. All costs of this appeal are to be paid by the taxpayers.

REVERSED IN PART, AFFIRMED IN PART, REMANDED.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    DAVID COOK TRUCKS AND EQUIPMENT v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al.
    No. 07-830.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    William D. Dyess, Natchitoches, Louisiana, for Plaintiff-Appellee, David Cook Trucks and Equipment.
    Stephen A. Quidd, Baton Rouge, Louisiana, for Defendant-Appellant, Louisiana Department of Public Safety and Corrections.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

11 Defendant, the State of Louisiana, through the Department of Public Safety and Corrections, Office of Motor Vehicles (the Department), appeals an ex parte order from the trial court ordering it to remove certificates of destruction issued for fifteen vehicles and issue certificates of title on the same vehicles, declaring them salvage/Katrina vehicles. Finding that the use of summary proceedings was not authorized in this instance and that the Department was entitled to a contradictory hearing, we reverse both the trial court’s judgment and amended judgment and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On April IS, 2007, Plaintiff, David Cook Trucks and Equipment (Cook Trucks), filed an “Ex Parte Petition to Remove Certificate of Destruction and Declare Salvage/Katrina Vehicles” relative to fifteen vehicles it its possession. Cook Trucks alleged that it lawfully owned all of the fifteen vehicles, that all fifteen vehicles were water damaged as a result of flooding due to Hurricane Katrina, that all fifteen vehicles weighed in excess of 20,000 pounds, that all fifteen vehicles were statutorily exempt from certificates of destruction pursuant to La.R.S. 32:702(15), and that it was entitled to an ex parte order directed to the Department to properly remove the certificates of destruction and issue salvage/Katrina titles for them. Plaintiff further alleged that it had made all necessary attempts to obtain removal of the certificates of destruction and that no fees were due and owing. The same date the petition was filed, the trial court signed an order for the relief requested by Plaintiff therein.

|2On April 18, 2007, Plaintiff filed an “Amended Ex Parte Petition to Remove Certificate of Destruction and Declare Salvage/Katrina Vehicles. This amendment corrected a vehicle identification number for one of the vehicles and added a sixteenth vehicle to the list. In response, the trial court signed an amended judgment.

The Department filed this appeal, alleging that the trial court erred in granting the requested order without requiring Plaintiff to comply with the Code of Civil Procedure and the provisions of La.R.S. 13:5101, et seq., with regard to civil actions against the State or an agency of the State. For the reasons that follow, we agree with Defendant and reverse the ex parte orders issued by the trial court and remand the matter for further proceedings.

DISCUSSION

Louisiana Code of Civil Procedure article 2593 provides, in pertinent part, that “[a] summary proceeding may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise proved by law.” The use of summary proceedings is governed by La. Code Civ.P. art. 2592 which sets out eleven instances in which summary proceedings are authorized. The list is exclusive. However, number eleven provides for use of summary proceedings in “all other matters in which the law permits summary proceedings to be used.” That the State is the adverse party is of no consequence in this matter as “[a]ll procedural questions arising in suits on claims against the state, state agencies, or political subdivisions shall be determined, except as the contrary is specified in this Part, in accordance with the rules of law applicable to suits between private parties.” La.R.S. 13:5103.

Plaintiff essentially attempted to use a summary proceeding in this case. However, Plaintiff filed an ex parte motion rather than a contradictory motion. | ^Louisiana Code of Civil Procedure article 963 provides, in pertinent part, that if the written motion applies for an order to which the mover is clearly entitled without supporting proof, “the court may grant the order ex parte and without hearing the adverse party.”

We find no provision in La.R.S. 32:701 et seq. providing for the use of summary proceedings against the Department or authorizing the use of ex parte orders in this regard. We further find that Plaintiff was not clearly entitled to the relief sought in its ex parte petitions since there was no evidence as to the fulfillment of the conditions set forth in La.R.S. 32:702(15) for exemption from the certificate of destruction statute. We agree with the Department that if it is not allowed to contest such matters, it cannot protect consumers from incorrectly branded motor vehicles or provide consumers with notice that a vehicle is flood damaged. Louisiana Revised Statutes 32:707.3(A) provides that when a motor vehicle is determined to be “water damaged” (defined as “any vehicle, other than an antique vehicle or a vehicle in excess of 20,000 pounds gross vehicle weight (GVW), whose power train, computer, or electrical system has been damaged by flooding as a result of a gubernatorially declared disaster or emergency and that is a ‘total loss’ ” by La.R.S. 32:702(15)), the insurance company that obtains ownership of the vehicle must apply for a certificate of destruction. That statute further states that no motor vehicle for which a certificate of destruction has been issued “shall be later issued a salvage or reconstructed title or otherwise titled or registered by the office of motor vehicles for use on the roads or highways of this state.” Whether or not the sixteen vehicles in question are exempt from the issuance of certificates of destruction because they were water damaged by | ¿Hurricane Katrina and are in excess of 20,000 pounds is a determination which requires supporting proof. Thus, the matter should not have been handled ex parte.

DECREE

Since supporting proof was required for the relief requested by Plaintiff, the use of ex parte proceedings in this case was unauthorized. Thus, we reverse the ex parte orders issued by the trial court and remand this matter for further proceedings in accordance with this opinion. Costs of this appeal are assessed to Plaintiff-Appel-lee, David Cook Trucks and Equipment.

REVERSED AND REMANDED.


author: WALLER, Presiding Justice,

text:
    OXFORD ASSET PARTNERS, LLC v. CITY OF OXFORD, Mississippi and State of Mississippi.
    No. 2006-CA-01712-SCT.
    Supreme Court of Mississippi.
    Oct. 18, 2007.

      Danny A. Drake, David W. Mockbee, Jackson, attorneys for appellant.
    Paul B. Watkins, Jr., Pope S. Mallette, Oxford, Office of the Attorney General by Mary Jo Woods, attorneys for appellees.
    Before WALLER, P.J., EASLEY and GRAVES, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This appeal is taken from the Lafayette County Circuit Court’s dismissal of Oxford Asset Partners’ request for a declaratory judgment that House Bill 1671 is unconstitutional and from the grant of summary judgment in favor of the City of Oxford. House Bill 1671 is a private law which enables the City of Oxford to obtain municipal parking facilities in exchange for the conveyance of air and development rights. H.B. 1671, Reg. Sess. (Miss.2006). Because we find the last sentences of Sections 3 and 4 of House Bill 1671 unconstitutional, we affirm in part and reverse and render in part the circuit court’s grant of summary judgment to the City of Oxford.

FACTS

¶ 2. On April 5, 2005, the Mayor and Board of Aldermen of the City of Oxford, Mississippi, (“the City”) resolved to solicit proposals to increase the availability of parking in downtown Oxford. The City published requests for proposals on April 8, 2005, and again on April 15, 2005. After receiving three proposals, the City formed a committee to consider two of the three proposals, both of which contemplated the City conveying land to a private developer who would build a parking garage and a hotel. The developer would then convey the parking garage back to the City.

¶ 3. On August 18, 2005, following the withdrawal of one proposal, the City authorized the negotiation of a non-binding letter of intent with the remaining developer, Craigside Leasing Corporation of Greenwood, Mississippi (“Craigside”). The Craigside project consisted of a six-story structure on the parking lot behind City Hall, the first three floors of which would consist of a municipal parking garage, while the top three floors would be a hotel. In exchange for the air and development rights to operate a hotel above the parking garage, Craigside would construct and then re-convey the parking garage to the City. On October 10, 2005, the City executed a non-binding Preliminary Development Agreement with Craigside.

¶ 4. To determine whether the proposal could be executed under the general laws of Mississippi, the City requested an opinion from the Attorney General’s office regarding the legality of the transaction. In an opinion dated January 26, 2006, the Attorney General maintained that the construction of such a facility under the proposed agreement would violate existing general laws. 2006 WL 753077 (Miss. A.G.).

¶ 5. In an attempt to address the Attorney General’s opinion, Noel Akins, representative of House District 12, and Warner F. McBride, representative of House District 10, introduced House Bill 1671 during the 2006 Regular Session of the Mississippi Legislature. H.B. 1671, Reg. Sess. (Miss.2006). The bill authorized the City to negotiate with any public or private actor for the construction or expansion of municipal parking facilities in exchange for air and development rights. The bill was signed into law on April 5, 2006.

¶ 6. House Bill 1671, Section 2, expressly exempts the Mayor and the Board of Aldermen of the City of Oxford from the provisions of Mississippi Code Sections 21-37-23 and 21-37-25, which dictate the process to acquire and operate a municipal parking facility. Miss.Code Ann. §§ 21-37-23, 21-37-25 (Rev.2001). House Bill 1671, Section 3, further exempts City officials from the restrictions in Section 21-17-1 governing the disposition of municipal property. Miss.Code Ann. § 21-17-1 (Rev.2001). Finally, House Bill 1671, Section 4, exempts City officials from Section 31-7-13, which requires advertisements for bids on government projects. Miss. Code Ann. § 31-7-13 (Rev.2005).

¶ 7. Oxford Asset Partners, LLC (“Oxford Asset”) filed its complaint against the City on May 15, 2006, arguing that H.B. 1671 violates Article IV, Sections 87 and 90 of the Mississippi Constitution. Oxford Asset notified the Attorney General of its constitutional challenge, as required by law, and the Attorney General joined the City’s defense of H.B. 1671. The trial judge heard oral arguments on August 31, 2006. The trial judge dismissed Oxford Asset’s request for declaratory judgment and granted summary judgment to the City on September 26, 2006.

STANDARD OF REVIEW

¶ 8. This Court reviews a circuit court’s grant of summary judgment de novo. Myers v. City of McComb, 943 So.2d 1, 4 (Miss.2006). In considering the constitutionality of a legislative enactment, this Court recognizes that duly enacted statutes and laws have a strong presumption of constitutionality, and that the party challenging the constitutionality of a law must prove beyond a reasonable doubt that the law is in “palpable conflict with some plain provision of the constitution.” In the Interest of T.L.C., 566 So.2d 691, 696 (Miss.1990). This Court will invalidate a statute on constitutional grounds only “where it appears beyond all reasonable doubt that such statute violates the constitution.” Richmond v. City of Corinth, 816 So.2d 373, 375 (Miss.2002) (quoting Wells v. Panola County Bd. of Educ., 645 So.2d 883, 888 (Miss.1994)).

DISCUSSION

¶ 9. On appeal, Oxford Asset asserts that H.B. 1671 violates two provisions of the Mississippi Constitution. First, Oxford Asset argues that H.B. 1671 violates Article IV, Section 87 of the Mississippi Constitution by suspending multiple general laws for the benefit of a private entity. Second, Oxford Asset argues that H.B. 1671 violates Article IV, Section 90 of the Mississippi Constitution by vacating public property in the form of air and development rights above a publicly owned parking garage.

I. WHETHER HOUSE BILL 1671 OFFENDS ARTICLE IV, SECTION 87 OF THE MISSISSIPPI CONSTITUTION.

A. The Restrictions Placed Upon Private Laws by Section 87.

¶ 10. Article IV, Section 89 of the Mississippi Constitution sets forth a procedure through which local and private legislation may be passed by the Legislature, and emphasizes that laws enacted pursuant to Section 89 must be given effect by this Court. Miss. Const, art. IV, § 89 (1890). At the same time, Article IV, Section 87 of the Mississippi Constitution limits the Legislature’s authority to enact private legislation.

¶ 11. Oxford Asset argues that H.B. 1671 violates the second clause of Section 87, which prohibits the enactment of special or local laws that suspend any general law for the benefit of individuals or private corporations or associations. Miss. Const, art. TV, § 87. In order for a private law to offend the second clause of Section 87, the private law must: (1) suspend a general law or laws (2) for the benefit of an individual or private corporation or association. Id.

B. Whether House Bill 1671 Suspends any General Laws.

¶ 12. We must first determine whether H.B. 1671 suspends any general laws. We previously have defined “suspend” under Section 87 as “[t]o interrupt; to cause to cease for a time; to postpone; to stay, delay, or hinder; to discontinue temporarily....” In re Validation of $15,000,000 Hospital Revenue Bonds v. City of Hattiesburg, 361 So.2d 44, 49 (quoting Black’s Law Dictionary, (Revised 4th Ed.1968)).

¶ 13. Both Oxford Asset and the City concede that H.B. 1671 suspends general laws. Indeed, H.B. 1671 expressly renders Sections 21-37-23, 21-37-25, 21-17-1, and 31-7-13 of the Mississippi Code inapplicable. H.B. 1671, §§ 2-4, Reg. Sess. (Miss.2006). We agree that H.B. 1671 suspends general laws.

C. Whether House Bill 1671 Benefits a Private Party.

¶ 14. Because H.B. 1671 suspends general laws, we turn to the issue of whether the bill is “for the benefit of an individual or private corporation or association.” Miss. Const, art. IV, § 87. Oxford Asset asserts that H.B. 1671 directly benefits a private entity by: (1) allowing the transfer of public property to a private entity without an objective determination of the value of the public property transferred; (2) permitting the construction of a parking garage by a private entity without the requirements of competitive bidding; and (3) conveying the air and development rights above public property in exchange for construction work with no regard for the value of the construction work. On the other hand, the City counters that H.B. 1671 is for the benefit of a municipality and therefore the prohibitions of Section 87 do not apply. See Brandon v. City of Hattiesburg, 493 So.2d 324, 326 (Miss.1986) (“The prohibitions of Section 87 are wholly inapplicable to public entities such as the City of Hattiesburg.”); Greenwood v. Telfair, 207 Miss. 200, 206-207, 42 So.2d 120, 122 (1949) (Section 87 had no application to “a local and private law applying to a municipal corporation.”); Feemster v. Tupelo, 121 Miss. 733, 743-744, 83 So. 804 (1920) (even though the effect of the private law may be to suspend the general law, “the prohibition [of Section 87] applies to private and not municipal corporations.”).

¶ 15. In determining the beneficiary of private or local laws, we consider: (1) to whom the legislation is directed or applied and (2) whether the aim or thrust of the bill is to benefit the public. See Bond v. Marion County Board of Supervisors, 807 So.2d 1208, 1217 (Miss.2001). We find that H.B. 1671 applies to the City and that the aim of the bill is to increase the availability of public parking for the City of Oxford. Each section of H.B. 1671 is directed or applied to the “governing authorities” of the City of Oxford. H.B. 1671, Reg. Sess. (Miss.2006). Additionally, the bill is aimed at expanding parking facilities in order to meet the needs and expectations of the community. Accordingly, we hold that H.B. 1671 benefits the City of Oxford and that the benefit to any private party is indirect.

¶ 16. Where private laws indirectly benefit private parties, we have further subjected the private laws to a two-part constitutional inquiry. Bond, 807 So.2d at 1217-1219. In doing so, we have ensured minimal, yet necessary, constitutional restraints upon private laws that indirectly benefit private parties. We find these constitutional parameters to be of particular importance where private parties indirectly benefit from private laws.

D. Whether House Bill 1671 Satisfies the In Re Validation Test.

¶ 17. The Legislature may suspend a general law by a private law that concerns the same subject matter so long as “(1) the object and purpose of each act is consistent with the other; and (2) where the differences between them are primarily procedural and minor.” Bond, 807 So.2d at 1219 (citing In re Validation of $7,800,000 Combined Util. Sys. Revenue Bond v. Gautier Util. Dist. of Jackson County, 465 So.2d 1003, 1017 (Miss.1985)); Croke v. Lowndes County Bd. of Supervisors, 733 So.2d 837, 840 (Miss.1999) (referred to as the “In re Validation” test based on the case name from which the test was derived) ).

¶ 18. The first prong of the In re Validation test requires that the object and purpose of both the private law and the general law be consistent with each other. See Bond, 807 So.2d at 1219 (citing Gautier Util. Dist., 465 So.2d at 1017). Having previously determined that the aim of H.B. 1671 is to benefit the public by facilitating the construction or acquisition of municipal parking facilities, we find that the special law furthers the same purposes as the general law.

¶ 19. The second prong of the In re Validation test requires that the differences between the general law and the private law be primarily procedural and minor. Id. We find that Section 2 of H.B. 1671 passes muster, but that the last sentences of Sections 3 and 4 of the private bill fail the In re Validation test.

¶ 20. House Bill 1671, Section 2, expressly renders Section 21-37-23 of the Mississippi Code inapplicable. H.B. 1671, § 2, Reg. Sess. (Miss.2006). In general, Section 21-37-23 authorizes a municipality to establish and operate a municipal parking facility, while H.B. 1671 both authorizes and sets forth means by which such a facility may be acquired. H.B. 1671; Miss.Code Ann. § 21-37-23 (Rev.2001). Pursuant to H.B. 1671, the City ultimately seeks to exchange the air and development rights above a parking facility in exchange for the construction of the parking facility itself. Eventually, in direct contrast to the prohibition in Mississippi Code Section 21-37-23, H.B. 1671 would allow a commercial enterprise to be on the same property as a municipal parking facility. Miss.Code Ann. § 21-37-23 (Rev.2001).

¶ 21. We cannot say that permitting a commercial enterprise to occupy the same grounds as a municipal parking facility is such a major deviation from Section 21-37-23 as to render H.B. 1671 invalid. We have previously upheld private laws that granted a utility district the authority to not only pay double the maximum per annum interest allowed under state law for utility bonds, but also relieved the district from any administrative review of rates charged by the district. Gautier Util. Dist., 465 So.2d at 1017 n. 5. Allowing a commercial enterprise to be located on the same property as a parking facility is no more a substantive difference than what this Court previously has considered a minor change. Accordingly, we find that the differences between H.B. 1671 and Section 21-37-23 are primarily procedural and minor.

¶22. House Bill 1671, Section 2, also eliminates procedural safeguards for the establishment of a municipal parking facility contained in Section 21-37-25 of the Mississippi Code. H.B. 1671, § 2, Reg. Sess. (Miss.2006). These requirements include adoption of an ordinance declaring the necessity of a parking facility, publication of notice, a public hearing on the matter, and appellate procedures for aggrieved citizens. Miss.Code Ann. § 21-37-25 (Rev.2001). While H.B. 1671 discards these procedures, we previously have found that the denial of a right to notice, hearings, and even an election were primarily procedural and minor. Croke, 733 So.2d at 840 (private law circumvented procedures for public input, hearings, and even an election if one were found needed); Gautier Util. Dist., 465 So.2d at 1017 n. 5 (private law permitted the issuance of bonds without publication of a notice, a hearing, or other manner for taxpayer protest). Based on our precedent, we find that the differences between H.B. 1671 and § 21-37-25 are primarily procedural and minor.

¶23. While Section 2 of H.B. 1671 satisfies the In re Validation test, we find that the last sentences of Sections 3 and 4 of H.B. 1671 do not pass constitutional scrutiny. The last sentence of Section 3 in H.B. 1671 relieves the City from compliance with Section 21-17-1 of the Mississippi Code. H.B. 1671, § 3, Reg. Sess. (Miss.2006). Section 21-17-1(2) sets forth a specific manner in which municipal real property may be sold, conveyed, or leased. Miss.Code Ann. § 21-17-1(2) (Rev.2001). Section 21-17-1(2) initially sets forth general requirements for publication of notice of intent to sell or lease and provides that the lease or sale must go to the highest bidder. However, under certain conditions, Section 21-17-1(2) permits the conveyance of real property without the requirements of publication of notice and the acceptance of competitive bids. A municipality may convey municipally owned property without having to comply with the advertisement or bid requirements if: (1) the property is no longer needed for municipal purposes; (2) the sale of the property as provided by law is not best for the financial well-being of the municipality; and (3) the purpose for which the property is sold will foster the “the development and improvement of the community” and the general welfare. Miss.Code Ann. § 21-17-1(2) (Rev.2001).

¶24. While Section 21-17-1(2) allows the conveyance of municipal property without compliance with advertising or bid requirements, the municipality is not completely unrestrained. Section 21-17-l(2)(b)(i) requires that if the municipality does not follow the advertisement and competitive bidding process, the consideration for the conveyance “shall not be less than the average of the fair market price for such property as determined by three (3) professional property appraisers selected by the municipality and approved by the purchaser....” Miss.Code Ann. § 21-17 — l(2)(b)(i) (Rev.2001).

¶25. House Bill 1671 seeks to relieve the City from not only the advertisement and bidding requirements, but also from the appraisal requirements of Section 21-17 — 1 (2)(b)(i) which ensure that fair market price is obtained for the property. H.B. 1671, § 3, Reg. Sess. (Miss.2006).

¶ 26. We find that rendering Section 21-17-1 inapplicable constitutes a substantive and major change. We recognize that Section 21-17-1(2) does not always require advertisement and competitive bidding. However, in exchange for relief from such requirements, Section 21 — 17—1 (2)(b)(i) requires an appraisal to ensure that the conveyance is not for less than fair market value. The purpose of requiring competitive bidding in the conveyance of municipal property is to award the property to the highest bidder as a way of ensuring that the municipality receives fair value, and thus protect against the waste of public funds. See Miss.Code Ann. § 21-17-1(2) (Rev.2001). When public bidding requirements are relieved under Section 21-17-1(2), the appraisal requirements under Section 21 — 17—l(2)(b)(i) fill in the gap to ensure that at least fair market value is obtained.

¶27. House Bill 1671 strays too far from the general law of Section 21-17-1 by failing to ensure that the consideration received for the conveyance of municipal property is at least equivalent to fair market value. Under the transaction enabled by H.B. 1671, the consideration that would be received by the City is the construction of a parking facility in exchange for air and development rights above such parking facility. However, H.B. 1671 lacks any objective safeguards to ensure that the parking facility received by the City is at least equivalent to the fair market value of the air and development rights conveyed by the City.

¶28. House Bill 1671, Section 8, does state that in order to convey air and development rights above the parking facility, the City “shall” request, receive, and consider proposals “for the development of additional public parking.” However, such proposals are considered not on the basis of ensuring that the City receives adequate value, but on vague notions that “the use of the air and development rights ... will promote and foster the development and improvement of the city and the civic, social, educational, cultural, moral, economic, and industrial welfare thereof.” H.B. 1671, § 8, Reg. Sess. (Miss.2006).

¶ 29. We do not suggest or imply that the City has some ulterior motive for seeking to enter into any transaction pursuant to H.B. 1671. However, allowing private legislation to avoid significant safeguards opens the door for potential abuse and waste of public property. The public interest associated with a municipality receiving fair value in the conveyance of public property — and the corresponding concern that the buyer or lessee may receive a windfall — is of such substantial importance that exempting H.B. 1671 from the requirements of Section 21-17-1 cannot be considered merely procedural and minor. Accordingly, the last sentence of Section 3 in H.B. 1671 fails the second prong of the In re Validation test.

¶ 30. Finally, the last sentence of Section 4 in H.B. 1671 relieves the City from compliance with Section 31-7-13 of the Mississippi Code, which contains the general bid requirements for construction contracts. H.B. 1671, § 4, Reg. Sess. (Miss.2006); Miss.Code Ann. § 31-7-13 (Rev.2005). House Bill 1671, Section 4, authorizes the City “in their discretion, to negotiate with public or private entities for the construction, enlargement, or expansion of parking facilities” when the City determines that it would “better serve the public interest.”

¶ 31. Even if the differences between H.B. 1671 and every other general law previously discussed in this opinion were found to be primarily procedural and minor, we find that rendering Section 31-7-13 inapplicable is substantial enough to cause the last sentence in Section 4 of H.B. 1671 to fail the second prong of the In re Validation test. Public bidding requirements serve a number of significant purposes. We have noted that the purposes of competitive bidding are to “secure economy in the construction of public works and the expenditures of public funds ... to protect the public from collusive contracts; to prevent favoritism, fraud, extravagance, and improvidence” so as to secure “the lowest cost to taxpayers.” Landmark Structures, Inc. v. City Council for Meridian, 826 So.2d 746, 749 (Miss.2002) (quoting Hemphill Constr. Co. v. City of Laurel, 760 So.2d 720, 724 (Miss.2000)). Because the protections afforded through bidding requirements are so great, we cannot deem H.B. 1671’s noncompliance with such requirements to be primarily procedural and minor.

¶32. Our position regarding the substantive nature of public bidding is not inconsistent with Bond. In Bond, we found that public bidding requirements did not apply, and, even if they did, the private legislation did nothing to relieve the Board of its obligation to comply with the public bidding statutes. Bond, 807 So.2d at 1218. House Bill 1671, on the other hand, does relieve the City from having to comply with public bidding requirements and therefore renders a substantive change from the general law.

¶ 33. In sum, we find that the last sentences of Sections 3 and 4 of H.B. 1671 fail the second prong of the In re Validation test and are therefore unconstitutional. While H.B. 1671 furthers the same object and purpose as the general laws, the differences between H.B. 1671 and Sections 21-17-1 and 31-7-13 of the Mississippi Code are substantive and major.

¶ 34. Mississippi Code Section 1-3-77 requires that if any “section, paragraph, sentence, clause, phrase, or any part” of an act be found unconstitutional, the remaining portions shall remain in effect. Miss.Code Ann. § 1-3-77 (Rev.2005); see, Lewis v. State, 765 So.2d 493, 500 (Miss.2000). Section 1-3-77 applies unless contrary intent appears on the face of the act. Miss.Code Ann. § 1-3-77 (Rev.2005). Because H.B. 1671 indicates no contrary intent, we find Section 1-3-77 to be applicable. Accordingly, we sever only the last sentences of Sections 3 and 4 of House Bill 1671. While it remains questionable whether the City’s desired goal can be achieved under the remaining, non-offending portions of the bill, the City is not disqualified from continuing to pursue this project or any other private legislation that might be necessary.

CONCLUSION

¶ 35. Because we find the last sentences of Sections 3 and 4 of House Bill 1671 unconstitutional, we reverse and render the circuit court’s grant of summary judgment to the City of Oxford as to the last sentences of Sections 3 and 4, and affirm the circuit court’s grant of summary judgment as to the remaining portions of House Bill 1671.

¶ 36. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

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

Appendix

House Bill 1671

AN ACT TO AUTHORIZE THE GOVERNING AUTHORITIES OF THE CITY OF OXFORD, MISSISSIPPI, TO CONSTRUCT, ACQUIRE, MAINTAIN, IMPROVE, EXPAND, ENLARGE, OPERATE AND PROVIDE MUNICIPAL PARKING FACILITIES; TO AUTHORIZE THE GOVERNING AUTHORITIES TO LEASE, RENT, SELL OR EXCHANGE MUNICIPAL PARKING FACILITIES OR THE AIR AND DEVELOPMENT RIGHTS ABOVE MUNICIPAL PARKING FACILITIES; TO AUTHORIZE THE GOVERNING AUTHORITIES TO NEGOTIATE FOR THE CONSTRUCTION, ENLARGEMENT OR EXPANSION OF PARKING FACILITIES UNDER CERTAIN CIRCUMSTANCES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. As used in this act:

(a) “City” means the City of Oxford, Mississippi.

(b) “Governing authorities” means the Mayor and Board of Aldermen of the City of Oxford, Mississippi.

(c) “Parking facility” means any property owned by the City of Oxford, Mississippi, and utilized as a public parking lot.

(d) “Air and development rights” means the right to use, control and occupy the space above a piece of property.

SECTION 2. The governing authorities are authorized and empowered, in their discretion, to construct, acquire, maintain, improve, expand, enlarge, operate and provide municipal parking facilities for motor vehicles belonging to members of the general public. In providing municipal parking facilities as authorized by this act, the provisions of Section 21-37-23 and Section 21-37-25 regarding the establishment and operating of parking facilities and the legislative process for parking facilities shall not apply.

SECTION 3. The governing authorities are authorized and empowered to lease, rent, sell or exchange parking facilities, or the air and development rights above parking facilities, to any person, firm, association or corporation for commercial or industrial purposes under such terms and conditions and for such periods of time as the governing authorities deem proper. In conveying parking facilities under the provisions of this act, any provisions of Section 21-17-1 regarding the disposition of municipal property shall not apply.

SECTION 4. The governing authorities are authorized and empowered, in their discretion, to negotiate with public or private entities for the construction, enlargement or expansion of parking facilities authorized by this act, when the governing authorities find that because of the nature of the project or any portion of the project, or because of special circumstances with respect to the project or any portion of the project, it would better serve the public interests or more effectively achieve the purposes of this act to enter into such contracts by negotiation. The requirements of the general laws of the State of Mississippi governing the advertisement of bids and the letting of public construction contracts by municipalities shall not apply to transactions authorized by this section.

SECTION 5. The governing authorities, in their discretion, are authorized to convey or grant upon such terms and conditions as the governing authorities deem proper, easements or licenses as may be required for the construction or enlargement of the existing parking facilities and for the utilization of the air and development rights above such parking facilities.

SECTION 6. The governing authorities are authorized and empowered, in their discretion to sell, lease or rent for such terms and period of time as the governing authorities determine appropriate, the air and development rights over parking facilities in exchange for the construction of an enlarged or improved parking facility by the grantee of such rights.

SECTION 7. The governing authorities, in order to provide for the expansion, enlargement or construction of public parking facilities as authorized by this act, are authorized and empowered, in their discretion, to sell, convey or lease the existing parking facilities or portions thereof on such terms and for such periods of time as the governing authorities determine appropriate in order to allow for the construction, enhancement or enlargement of the public parking facilities, or as may be necessary for the development of the air rights above such parking facility.

SECTION 8. In order to convey the air and development rights above parking facilities, the governing authorities shall have requested, received and considered proposals for the development of additional public parking and shall find and determine by resolution that the use of the air and development rights to be sold, conveyed or leased will promote and foster the development and improvement of the city and the civic, social, educational, cultural, moral, economic or industrial welfare thereof.

SECTION 9. This act shall take effect and be in force from and after its passage.

      . Because local and private legislation is not as readily accessible as general laws, we have appended H.B. 1671 to this opinion.

      . While Oxford Asset cites Article IV, Section 90, in its appeal, it does not cite any legal authority to support its position that H.B. 1671 violates this constitutional provision. This Court is under no obligation to consider an issue where the party has failed to cite authority. E.g., Crenshaw v. Roman, 942 So.2d 806, 809 n. 4 (Miss.2006) (citing Brown v. State, 534 So.2d 1019, 1023 (Miss.1988)).

      . Section 87 reads "No special or local law shall be enacted for the benefit of individuals or corporations, in cases which are or can be provided for by general law, or where the relief sought can be given by any court of this State; nor shall the operation of any general law be suspended by the Legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable, and would be advantageous, no special law shall be enacted.” Miss. Const, art. IV, § 87 (emphasis added).

      . The case in which the In re Validation test originated applied the test to determine whether a local and private act could enact upon the same subject matter as a general law without offending our “constitutional scheme” in Sections 87-90. Gautier Util. Dist., 465 So.2d at 1008, 1016-1017. In Croke, this court applied the In re Validation test to uphold a private law in the context of a broad, due-process challenge to the private law. Croke, 733 So.2d at 839-841. In Bond, after analyzing the private law under Sections 87, 89, and 90 separately, we then applied the In re Validation test and concluded that the private law did not offend the constitutional scheme of Sections 87-90. Bond, 807 So.2d at 1218-1220. Thus, the In re Validation test has been used to determine whether private laws offend our constitutional scheme in Sections 87-90 and has been applied in due-process challenges to private laws.


author: DICKINSON, Justice, GRAVES, Justice,

text:
    Stephen W. MILLER v. R.B. WALL OIL COMPANY, INC.
    No. 2005-CT-01966-SCT.
    Supreme Court of Mississippi.
    Dec. 6, 2007.

      David N. Gillis, Wayne E. Ferrell, Jr., Jackson, attorneys for appellant.
    Melton James Weems, Roy A. Smith, Jr., Jackson, attorneys for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. This is a slip-and-fall case in which the trial court granted summary judgment. Finding genuine issues of material fact which must be decided by a jury, we reverse and remand for trial.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On January 12, 1995, Stephen Miller slipped and fell on diesel fuel spillage at the Bogue Chitto Truck Stop (Truck Stop). At the time of the accident, the truck stop was being operated by Mary Jo Bueto, who was leasing it from R.B. Wall Oil Co. (Wall), a distributor of Shell gasoline products. As a result of injuries he sustained in the fall, Miller filed suit against Bueto, Wall and Shell Oil Company. Wall filed a motion for summary judgment, which the trial court granted. On appeal, the case was assigned to the Court of Appeals, which dismissed the appeal due to improper Mississippi Rule of Civil Procedure 54(b) certification. Miller v. R.B. Wall Oil Co., 850 So.2d 101, 102 (Miss.Ct.App.2002).

¶ 3. The trial court re-entered final judgment in compliance with Rule 54(b), and Miller again appealed. The appeal was again assigned to the Court of Appeals, which found no genuine issue of material fact regarding the element of notice. Miller v. R.B. Wall Oil Co., 970 So.2d 157, 160, 2006 WL 3593423 (Miss.Ct.App. Dec. 12, 2006). As such, the Court of Appeals affirmed the trial court’s grant of summary judgment in favor of Wall. R.B. Wall Oil Co., 970 So.2d at 162.

¶ 4. Miller filed a petition for certiorari, which we granted to review whether there are triable issues as to: (1) whether Wall can be held liable for the alleged negligence of Bueto and her employees, (2) whether Miller is entitled to punitive damages, and (3) whether Miller is entitled to reasonable expenses and attorney’s fees for defending Wall’s motion for summary judgment and for costs associated with filing this appeal.

DISCUSSION

¶ 5. Summary judgment is appropriate where “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.” Miss. R. Civ. P. 56(c). The burden of demonstrating that there are no genuine issues of material fact is upon the movant, and the non-moving party must be given the benefit of every reasonable doubt. Moss, 935 So.2d at 398. “Issues of fact ... are present where one party swears to one version of the matter in issue and another says the opposite.” Id. (quoting Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)).

¶ 6. When we review a trial court’s grant of summary judgment, our standard of review is de novo (Moss v. Batesville Casket Co., 935 So.2d 393, 398 (Miss.2006)), and we “must confine [our] review to what appears in the record.” Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001).

I.

¶ 7. The record initially before us was scant, rendering it nearly impossible to make any determination on the merits of Miller’s assignments of error. Curiously, the Court of Appeals had rendered an opinion as to Miller’s claims, setting forth detailed findings of fact throughout its opinion in support of its conclusion that there were no genuine issues of material fact as to whether the Bueto or any of her employees had notice of a spill. This led to the ultimate determination that the trial court had correctly granted summary judgment as to Wall. R.B. Wall Oil Co., 970 So.2d at 160-62.

¶ 8. Specifically, the Court of Appeals referred to the testimony of Bueto, Donnie McWilliams, and Jason Miller, in support of its conclusion that summary judgment was properly granted. R.B. Wall Oil Co., 970 So.2d at 160-61.

¶ 9. Although the transcripts were missing from the record, they were included in the Designation of the Record. Our Rules of Appellate Procedure obligate the appellant to examine the record and submit any proposed changes to the record or certify that the record is correct and complete. The rule states:

For fourteen (14) days after the clerk’s notice of completion under Rule 11(d)(2), the appellant shall have the use of the record for examination. On or before the expiration of that period, appellant’s counsel shall deliver or mail the record to one firm or attorney representing the appellee, and shall append to the record (i) a written statement of any proposed corrections to the record, (ii) a certificate that the attorney has carefully examined the record and that with the proposed corrections, if any, it is correct and complete, and (iii) a certificate of service. Counsel for the appellee shall examine the record and return it to the trial court clerk within fourteen (14) days after service, and shall append to the record (i) a written statement of any proposed corrections to the record, (ii) a certificate that the attorney has carefully examined the record and that with the proposed corrections, if any, it is correct and complete, and (ni) a certificate of service. Corrections as to which counsel for all parties agree in writing shall be deemed made by stipulation. If the parties propose corrections to the record but do not agree on the corrections, the trial court clerk shall forthwith deliver the record with proposed corrections to the trial judge. The trial judge shall promptly determine which corrections, if any, are proper, enter an order under Rule 10(e), and return the record to the court reporter or the trial court clerk who shall within seven (7) days make corrections directed by the order.

Miss. R.App. P. 10(b)(5).

¶ 10. It appears from the Designation of the Record that only one of the nine documents Miller designated as part of the appellate record actually was included in the record forwarded to this Court from the trial court. Clearly, Miller failed to comply with Mississippi Rules of Appellant Procedure 10(b)(5), which required him to review and certify the record as complete. We point out Miller’s deficiency to serve as notice and a warning to all appellate counsel that failure to comply with Rule 10(b)(5) in future cases will be at the attorney’s own peril.

¶ 11. On August 21, 2007, this Court ordered Miller to supplement the record with all documents designated, but not included in the appellate record. Miller timely complied by providing the missing documents and properly re-certified the record pursuant to Mississippi Rule of Appellate Procedure 10(b)(5). Thus, this Court agreed to proceed with a review of the case.

II.

¶ 12. Miller first claims there are material facts at issue regarding whether Bueto acted as Wall’s agent and whether Bueto was on notice of the allegedly dangerous conditions on the truck stop premises. These issues are addressed separately below.

Agency

¶ 13. This Court has adopted a nonexclusive list of factors for determining whether an agency relationship exists:

Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the su-bemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees.

Kisner v. Jackson, 159 Miss. 424, 132 So. 90, 91 (1931).

¶ 14. Several of these factors weigh in favor of the existence of an agency relationship between Beuto and Wall. First, evidence shows that Wall regularly inspected Bueto’s operation of the truck stop. Bueto testified that while she had some authority concerning the price of the gasoline that she sold, she could not change the price without consulting Wall. Bueto was not allowed to price the gasoline outside certain, limitations under any circumstances. Wall also received one-half of all profits from the sale of gasoline. In addition, Wall owned the land, buildings, gas pumps and storage tanks. Bueto was required to call Wall if any repairs to the pumps were needed.

¶ 15. Control and the right to control are key to determining whether an agency relationship exists. Fruchter v. Lynch Oil Co., 522 So.2d 195, 199 (Miss.1988). In Fruchter this Court examined a similar factual situation and determined that an agency relationship was not created between an oil company and the operator of a gas station. Id. at 201. However, in Fruchter, the operator set his own prices and received as profit the difference between the price paid to the oil company and the price at which he sold the fuel. Id. at 200. In contrast, Bueto testified she did not and could not set her own prices, and that she split profits with Wall. She received fuel from Wall, sold it, reimbursed Wall for the cost of the fuel, and the split the profits with Wall. Stated another way, Wall took its profits — not from its sale of fuel to its customer, Bueto — but rather from Bueto’s sales to the general public.

¶ 16. The determination of whether an agency relationship exists is a question of fact for the jury. Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989). Because a significant material factual dispute exists regarding the agency relationship, summary judgment on that issue was inappropriate.

Notice

¶ 17. The Court of Appeals found the defendants had no notice of the dangerous condition and therefore could not be held accountable for Miller’s injuries. A business owner has a duty to keep his premises in a reasonably safe condition for invitees. Drennan v. Kroger Co., 672 So.2d 1168, 1170 (Miss.1996). Where an injured party demonstrates that the dangerous condition was created by the negligence of the business or its employees, the injured party need not prove notice to the business. Id. at 1171. However, if the dangerous condition was created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it. Id.

¶ 18. In this case, no evidence was presented that the oil was spilled by anyone associated with the truck stop. Therefore, to escape summary judgment, Miller must provide evidence that Bueto or her employees had sufficient notice of the oil spill to allow remedial action.

¶ 19. One of Bueto’s employees testified that there was always gas and oil on the ground at the site of the fall. McWilliams testified that a week before the accident, he spilled a large quantity of diesel fuel on the ground. One of the pumps was broken and did not shut off when the vehicle was fully fueled, causing fuel to continue to spill on the ground until the pump was shut off manually. McWilliams also stated that on two occasions he told Bueto’s employees about the problem with the pump and the spilled fuel. He stated that he attempted to rinse the fuel off of the ground. Furthermore, McWilliams stated that, at the time of the accident, the area was very wet, dirty, and covered in diesel fuel. Miller further testified that, when he told Bueto’s employee that he had slipped on the fuel, the employee stated that management was aware of the broken fuel pump and that someone had been called to fix it.

¶ 20. This evidence is sufficient to create a question of fact for the jury regarding whether the defendants had notice of the dangerous condition in time to take remedial measures. Thus, summary judgment was not warranted.

III.

¶21. Miller next argues that the trial court erred in granting summary judgment to Wall on the issue of punitive damages. Punitive damages cannot be awarded unless a plaintiff can prove by clear and convincing evidence that the defendant acted either with actual malice or with gross negligence evidencing a willful, wanton, or reckless disregard for the safety of others. Neider v. Franklin, 844 So.2d 433, 438 (Miss.2003).

¶ 22. In this case, Miller has not presented evidence that Bueto or Wall engaged in actions that could be characterized as malicious or willful and wanton, and certainly not evidence a jury could find clear and convincing. Therefore, the trial judge was correct when granting summary judgment on the issue of punitive damages.

IY.

¶ 23. Finally, Miller argues he is entitled to reasonable expenses and attorney’s fees because Wall’s summary judgment motion was made without good cause. Mississippi Rule of Civil Procedure 56(h) states:

If summary judgment is denied the court shall award to the prevailing party the reasonable expenses incurred in attending the hearing of the motion and may, if it finds that the motion is without reasonable cause, award attorneys’ fees.

Miss. R. Civ. P. 56(h). Miller properly requested attorney’s fees and costs in his brief to this Court. Rule 56(h) states that a trial judge must award reasonable expenses to a prevailing party. However, because Miller did not prevail on all issues presented for summary judgment, he is not a “prevailing party” within the meaning of Rule 56(h), and is not entitled to an award of expenses.

¶ 24. An award of attorney’s fees is within the discretion of the trial judge and may be granted only where the trial court finds the motion was filed without reasonable cause. Because we find Wall’s motion was made with reasonable cause, the trial judge may not award attorney’s fees to Miller.

CONCLUSION

¶ 25. We find that Miller has presented genuine issues of material fact concerning the existence of an agency relationship and notice of the alleged dangerous condition. Therefore, the trial court erred in granting summary judgment in favor of Wall, and we remand this case for a trial on the merits. On the issue of punitive damages, we find that the trial court properly granted summary judgment in favor of Wall. An award of attorney’s fees may not be granted because Wall’s motion was made with reasonable cause. And finally, because Miller did not prevail on all issues presented for summary judgment, he is not entitled to an award of expenses.

¶ 26. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

GRAVES, Justice,

Concurring in Part and Dissenting in Part.

¶ 27. While I concur with the majority’s holding that the trial court erred in granting summary judgment in favor of Wall, I respectfully disagree with the finding that the trial court did not err in granting summary judgment with regard to punitive damages. In deciding whether summary judgment is proper, the evidence in the case must be viewed in the light most favorable to the plaintiff. Moss v. Batesville Casket Co., 935 So.2d 393, 399 (Miss.2006) (citations omitted). Summary judgment is improper if genuine issues of material fact exist, and is therefore inappropriate if a reasonable juror could differ on a genuine issue of material fact. Moss, 935 So.2d at 398; Strantz v. Pinion, 652 So.2d 738, 741 (Miss.1995) (citation omitted). Moreover, even where a material fact issue does not exist, summary judgment is improper if a triable issue would result from a complete presentation of the evidence. Strantz, 652 So.2d at 741 (citation omitted).

¶28. The majority finds that the evidence before this Court on review “is sufficient to create a question of fact for the jury regarding whether the defendants had notice of the dangerous condition in time to take remedial measures,” and therefore finds that “summary judgment was not warranted.” (Majority Opinion at ¶20). However, the majority then finds summary judgment appropriate on the issue of punitive damages. That result is based on the artificial separation of factual issues which are inextricably intertwined. These facts do not lend themselves to pretrial separation regarding compensatory and punitive damages.

¶ 29. The trial court’s grant of summary judgment and the findings of fact and law therewith indicate that the trial judge granted summary judgment in favor of Wall Oil on both the issue of compensatory damages and the issue of punitive damages. However, the finding on punitive damages was predicated solely on the trial court’s finding that there was no possibility of an award for compensatory damages. The majority finds that summary judgment on compensatory damages was not proper and reverses on that issue. A finding by this Court that summary judgment as to compensatory damages is inappropriate is necessarily a determination that there exist genuine issues of material fact. Those factual issues may support a claim for punitive damages. But, inasmuch as there has been no full development of facts, a decision regarding Miller’s punitive damages claim at this time is premature. This Court, in its majority opinion, has determined that the compensatory damages claim is viable, at least to the extent that it survives a motion for summary judgment. Hence, any decision which is premised on the now-erroneous finding that the compensatory damages claim is not viable, should be reversed.

¶ 30. The majority has correctly recognized that Wall was responsible for repairs to the gas pumps. Furthermore, evidence shows Wall’s employees visited the truck stop daily, and that Wall had notice of the dangerous condition for at least one week prior to Miller’s slip and fall. The notice came via Wall’s communications with Mrs. Bueto and through their own presence on the property. Clearly, if the majority is able to find a question of fact regarding whether Wall had notice that there was a faulty fuel pump which was causing fuel to spill, then that same evidence should present a question of fact regarding Wall’s conduct in allegedly allowing the fuel pump to remain in a state of disrepair for at least one week. Moreover, that same evidence could be relevant in determining whether or not Wall’s conduct was malicious or grossly negligent in allegedly causing the conditions which led to Miller’s injuries, and if so, whether or not such conduct “evidenc[ed] a willful, wanton or reckless disregard for the safety of others.... ” Miss.Code Ann. § 11-1-65 (Rev.2002). Because there exist genuine issues of material fact which are inseverable on the issues of compensatory and punitive damages, I find that the trial court erred in granting summary judgment in favor of Wall.

¶ 31. For the foregoing reasons, I respectfully concur in part and dissent in part.

DIAZ, P.J., EASLEY AND LAMAR, JJ., JOIN THIS OPINION.

      . Rule 54(b) of the Mississippi Rules of Civil Procedure mandates that "when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” Miss. R. Civ. P. 54(b).

      . The trial court found "that inasmuch as there are no genuine issues of material fact which can make R.B. Wall Oil Company liable for any alleged injuries suffered by Stephen Miller, there are no facts or evidence by which the plaintiff is entitled to or can recover punitive damages.” The trial court correctly stated that "[t]he existence of actual damages is, in Mississippi, a necessary prerequisite to the jury's right to consider and assess punitive damages.” Harbin v. Jennings, 734 So.2d 269, 274-75 (Miss.1999) (citations omitted). See also, Miss.Code Ann. § 11-1-65 (Rev.2002).


author: DIAZ, Presiding Justice,

text:
    Stella SPANN v. STATE of Mississippi.
    No. 2006-KA-01117-SCT.
    Supreme Court of Mississippi.
    Dec. 6, 2007.

      Wesley Thomas Evans, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorneys for appel-lee.
    Before DIAZ, P.J., EASLEY and GRAVES, JJ.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. Stella Spann was convicted of selling a controlled substance under Mississippi Code Section 41-29-139 (Rev.2005) and sentenced to thirty years in custody, with fifteen years to serve and five years supervised probation. Aggrieved, she appeals her conviction and sentence.

FACTS

¶ 2. On May 7, 2004, Mike Jernigan was working with the Brandon Police Department as a paid confidential informant, and was instructed to go to Cherry Hill Lane and purchase crack cocaine. Before going to Cherry Hill Lane, Jernigan met with three police officers who wired his car with audio and video surveillance and also put an audio recording device in his shirt pocket. Jernigan drove to Cherry Hill Lane, and Sergeant Martin Mann followed at a distance so he could observe any activity and hear the audio.

¶ 3. On Cherry Hill Lane, Willie Holmes approached Jernigan’s car. When asked if he had any crack, Holmes said that he did not, but that Stella Spann would know where to find some. Jernigan and Holmes then drove to Spann’s house. Jernigan gave Holmes $40, and Holmes retrieved Spann from her house. Holmes and Spann got into Spann’s car, and they told Jernigan to follow. On the way, Spann’s car ran out of gas, and Jernigan took Holmes to a gas station for more fuel. They returned to Spann’s car, and Jerni-gan was told to wait at the gas station while Spann and Holmes drove off.

¶ 4. After roughly fifteen minutes, Spann and Holmes returned, positioning the car so that the drivers’ sides were facing. Jernigan testified that he witnessed Spann give the drugs to Holmes. Spann then asked Jernigan if he would give her “a drop or anything for going through all this trouble to get this.” Jernigan replied that he could not give her anything because the drugs where not his. Holmes then got out of the car and handed the crack cocaine to Jernigan. The entire package weighed 3.25 grams, and testing revealed that the cocaine base was 0.25 grams.

ISSUES

¶ 5. Spann argues that the trial court erred by (1) allowing the State to amend the indictment to reflect habitual offender status; (2) refusing to grant a directed verdict; (3) refusing to allow the defense to present a witness; and (4) refusing to give a jury instruction on the lesser charge of possession.

DISCUSSION

I. Amending the Indictment.

¶ 6. The defendant argues that the trial court erred in allowing the State to amend the indictment to charge her as a habitual offender. While the trial court did allow the amendment, Spann was not sentenced as a habitual offender. Therefore, this issue is moot.

II. Sufficiency of the Evidence.

¶ 7. When reviewing a case for sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence must show “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush, 895 So.2d at 843 (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Keeping in mind the reasonable doubt standard, if “reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Bush, 895 So.2d at 843 (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 8. Spann argues that the evidence cannot support a conviction for the sale of a controlled substance, and at most, the evidence could only support a conviction for possession. Specifically, Spann argues that “[tjhere was no evidence produced at trial that [she] ever exchanged money or transferred cocaine for money from Mike Jernigan.”

¶ 9. To prove sale of a controlled substance, the State need not prove that the defendant personally placed the substance in the hands of the buyer or that the defendant personally profited from its sale. Sullivan v. State, 749 So.2d 983, 993 (Miss.1999); Turner v. State, 573 So.2d 1340 (Miss.1990). As long as the jury is given a proper instruction on aiding and abetting, the State need only prove “substantial knowing participation in the consummation of a sale, or in arranging for the sale.” Williams v. State, 463 So.2d 1064, 1066 (Miss.1985). “Any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal offender.” Hoops v. State, 681 So.2d 521, 533 (Miss.1996) (quoting Sayles v. State, 552 So.2d 1383, 1389 (Miss.1989)).

¶ 10. In the present case, the jury was given the exact aiding and abetting instruction which this Court adopted in Milano v. State, 790 So.2d 179, 185 (Miss.2001), and there was sufficient evidence that Spann knowingly participated in the sale. It is uncontradicted that Spann had possession of the crack cocaine, that she handed the drugs to Holmes, who then gave them to Jernigan, and that she asked Jernigan if she could have a “drop” for “going through all that trouble.” Because she substantially and knowingly participated in the sale, it does not matter that she did not personally hand the drugs to Jerni-gan or receive any compensation. There was sufficient evidence to support a finding that Spann aided and abetted the sale, and therefore to render her liable as a principal. Therefore, this issue is without merit.

III. Witness.

¶ 11. Spann also argues that the trial court erred by refusing to allow testimony from a defense witness. The standard of review governing the admissibility of evidence is whether the trial court abused its discretion. Peterson v. State, 671 So.2d 647, 655 (Miss.1996) (citing Baine v. State, 606 So.2d 1076, 1078 (Miss.1992); Wade v. State, 583 So.2d 965, 967 (Miss.1991)). This Court must first determine if the proper legal standards were applied. Peterson, 671 So.2d at 655-56 (citing Baine, 606 So.2d at 1078). If the trial court incorrectly applied the rules of evidence, resulting in prejudice to the accused, then a reversal is warranted. Peterson, 671 So.2d at 656 (citing Parker v. State, 606 So.2d 1132, 1137-1138 (Miss.1992)).

¶ 12. On cross-examination, Jernigan denied knowing Spann prior to the day in question, and also denied smoking crack cocaine with her and a woman named Mary Reed. Spann argues that the trial court committed reversible error by refusing to allow testimony from Reed that she had previously consumed drugs with Jerni-gan and the defendant. Spann argued at trial that the testimony was admissible under Mississippi Rule of Evidence 608(b) to contradict Jernigan’s claim that he had never met Spann. The trial judge refused to allow the testimony because: (1) the State was unfairly surprised as the witness was not produced until the morning of trial; (2) the testimony concerned a collateral matter and was not probative of truthfulness; and (3) the defense could not prove specific instances of conduct with extrinsic evidence.

¶ 13. On appeal, the defendant argues that the evidence was admissible under Mississippi Rules of Evidence 608(b) and 616. Rule 608(b) provides:

Speciñc instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

(emphasis supplied). The rule clearly states that specific instances of conduct “may not be proved by extrinsic evidence.” Reed’s testimony was extrinsic evidence of prior conduct, which is prohibited under this rule.

¶ 14. This Court examined a similar argument in Pinson v. State, 518 So.2d 1220, 1223 (Miss.1988). Pinson was convicted of rape, and the victim’s husband testified that his marriage had broken up because of the attack and that he had not been involved with another woman. Id. Pinson attempted to present a witness who would testify that the husband was, in fact, living with another woman. Id. The trial court refused to allow the testimony, and this Court affirmed, holding that “[sjpecific instances of conduct under our Rules of Evidence may not be proved by extrinsic evidence for impeachment purposes; they may only be inquired about on cross-examination.” Id. In the present case, defense counsel cross-examined Jernigan about his prior drug use with the defendant, and the defendant denied the prior conduct. Accordingly, the evidence was inadmissible as extrinsic evidence under Rule 608(b).

¶ 15. Spann also argues on appeal that the evidence was relevant to prove Jernigan’s “bias, prejudice, or interest” against her under Mississippi Rule of Evidence 616. However, because this issue was not raised at trial, and because Spann does not argue that plain error applies, this issue does not require examination. See Flowers v. State, 947 So.2d 910, 927 (Miss.2007) (recognizing that issues not presented to the trial judge are procedurally barred, but when substantial rights are affected, this Court will review the issue under “plain error”).

¶ 16. For the foregoing reasons, the trial judge did not err in refusing Reed’s testimony.

IV. Lesser-included Offense.

¶ 17. Spann argues that she was entitled to a jury instruction setting forth the lesser-included offense of possession. On review, “[j]ury instructions are to be read together and taken as a whole with no one instruction taken out of context.” Austin v. State, 784 So.2d 186, 192 (Miss.2001). “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Howell v. State, 860 So.2d 704, 745 (Miss.2003) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). “We will not find reversible error ‘where the instructions actually given, when read together as a whole,’ fairly announce the law of the case and create no injustice.’” Adkins v. Sanders, 871 So.2d 732, 736 (Miss.2004) (quoting Coleman v. State, 697 So.2d 777, 782 (Miss.1997)).

¶ 18. When reviewing the denial of a lesser-included offense instruction, this Court “[takes] the evidence in the light most favorable to the accused and considers] all reasonable favorable inferences which may be drawn in favor of the accused from the evidence.” Ormond v. State, 599 So.2d 951, 961 (Miss.1992) (quoting Mease v. State, 539 So.2d 1324, 1330 (Miss.1989)). To be entitled to a lesser-included offense instruction, Spann must point to evidence from which a jury could reasonably find her not guilty of selling a controlled substance and at the same time find her guilty of possession. Ladnier v. State, 878 So.2d 926, 932 (Miss.2004) (citing Toliver v. State, 600 So.2d 186, 192 (Miss.1992)). Furthermore, “[o]nly where the evidence could only justify a conviction of the principal charge should a lesser offense instruction be refused.” Mease, 539 So.2d at 1330 (emphasis in original) (citations omitted).

¶ 19. The defendant argues that the jury could have found her guilty of possession because she momentarily possessed the drugs. This Court has held “the mere fact that one must possess a controlled substance before they can sell it is not enough to require a lesser included offense instruction.” Reynolds v. State, 658 So.2d 852, 856 (Miss.1995). Spann cannot point to any other evidence that would support a conviction for possession. Moreover, the evidence can warrant only a conviction for aiding and abetting the sale of a controlled substance. The evidence shows that Spann substantially and knowingly participated in the sale, and no reasonable juror could have found that Spann merely possessed the crack cocaine. Accordingly, the trial court did not err in refusing the lesser-included offense instruction.

CONCLUSION

¶ 20. This Court finds that the trial court did not err by refusing a directed verdict, by excluding improper impeachment testimony, or by refusing a lesser-included offense instruction. The conviction and sentence are therefore affirmed.

¶ 21. CONVICTION OF SALE OF COCAINE, A SCHEDULE II CONTROLLED SUBSTANCE, AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN (15) YEARS TO SERVE AND FIVE (5) YEARS ON POST-RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED.

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

      . The proper aiding and abetting instruction is as follows:
      The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise. If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.
      Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
      Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
      In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

        Milano, 790 So.2d at 185 (Miss.2001) (quoting Fifth Cir. Pattern Jury Instructions (Criminal) 2.06 (Aiding and Abetting) (Agency) (1998)).