author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Lee Roy WARREN, Appellant.
    No. 42,699-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      See also 865 So.2d 227.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY, and PEATROSS, JJ.
   BROWN, C.J.

| defendant, Lee Roy Warren, pled guilty to attempted second degree murder and armed robbery. He was sentenced to 50 years at hard labor without benefit of parole on the attempted murder charge and 65 years at hard labor without benefit of parole on the armed robbery charge. The sentences were ordered to be served consecutively. Defendant has appealed, asserting that his guilty plea should be set aside because the trial court failed to apprise him of the minimum and maximum sentences and/or that his sentences would be without benefit of parole, probation, or suspension. We affirm.

Facts

The Ouachita Parish Grand Jury indicted defendant and three others on charges of aggravated kidnaping, attempted second degree murder, and armed robbery. In exchange for the state’s dismissal of the aggravated kidnaping charge, an unrelated drug charge, and some unrelated misdemeanor charges, defendant pled guilty to attempted second degree murder and armed robbery. The state agreed not to file a habitual offender bill of information against defendant; however; the PSI reveals that at the time of the instant offenses defendant was a first felony offender. A pre-sentence investigation was ordered.

At around 10:00 p.m. on January 17, 2002, defendant and his three co-defendants were standing in the parking lot of a pool hall on Montgomery Street in West Monroe. They decided to rob the next car that passed. Misty Barlow, a 22-year-old, who worked for Johnny’s Pizza, was delivering pizza to a home across the street. Defendant walked up to Misty | ¡.and, armed with a gun, forced her into the back seat of her car. He threatened to shoot her when she had difficulty getting into the back seat because she had a prosthetic leg. The other three got into the car, and they drove off. One of the men threw a baby seat out of the victim’s car. When the victim begged for her life and told them she had a baby at home, one of the men stated that they would have killed her baby had she been in the car. As the men rode around, defendant held a gun on the victim and the four discussed what to do with the victim. Someone came up with the idea to kill her so she couldn’t identify them, and the others agreed. When the car stopped and the victim got out, she tried to run, but fell into a ditch when defendant shot her in the shoulder. Defendant fired at the victim a second time while she lay on the ground. Defendant cheeked the victim to insure that she was dead. The victim laid still and pretended to be dead, and the men left. Following an investigation, law enforcement officers arrested the four perpetrators. Defendant confessed to his participation, including shooting the victim.

Defendant and two of his co-defendants entered guilty pleas. The final co-defendant, Solomon Moore, went to trial and was convicted of second degree kidnaping, attempted second degree murder, and armed robbery. See State v. Moore, 37,-935 (La.App.2d Cir.01/28/04), 865 So.2d 227, unit denied, 04-0507 (La.07/02/04), 877 So.2d 142.

At the Boykin hearing, the trial court determined that defendant was 19 years old (18 at the time of the offense) and that it was his intent to plead guilty to attempted second degree murder and armed robbery. The trial |scourt explained to defendant his rights against self-incrimination, to a jury trial, to confrontation, and to present evidence on his own behalf. The trial court further explained that by pleading guilty defendant was giving up his right to appeal the conviction and his right of compulsory process. Throughout all of this, defendant repeatedly indicated that he understood and still wanted to plead guilty.

During the colloquy, the trial court asked defendant about whether his retained counsel had explained to him the nature and consequences of pleading guilty to attempted second degree murder and armed robbery. Defendant agreed that his attorney had explained the nature and consequences of the charges and guilty pleas.

The trial court was assured by defendant that no one had threatened him or otherwise coerced him into pleading guilty, that defendant had completed the 11th grade, and that he could read and write the English language. The trial court then accepted defendant’s guilty plea.

After ordering a pre-sentence investigation, the trial court sentenced defendant to 50 years at hard labor without benefit of parole for the attempted murder charge and 65 years at hard labor without benefit of parole for the armed robbery charge. The sentences were ordered to be served consecutively. Defendant’s sole assignment of error on appeal is that his guilty plea was not intelligently, knowingly, and voluntarily entered because the trial court failed to inform him of the mandatory minimum and maximum sentences for the offenses to which he pled guilty and that the ^sentences would be served without benefit of parole, probation, or suspension of sentence.

Discussion

The Louisiana Supreme Court adopted the federal constitutional standards set out in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which requires that a guilty plea be recorded and show that defendant was informed of and waived three specific federal constitutional rights. These rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. State v. Guzman, 99-1753 (La.05/16/00), 769 So.2d 1158, 1163, fn. 4, citing State ex rel. Jackson v. Henderson, 255 So.2d 85, 260 La. 90 (1971). The Louisiana Supreme Court has reiterated that advice on sentencing is not part of the core Boykin constitutional requirements. See State v. Guzman, supra; State v. Anderson, 98-2977 (La.03/19/99), 732 So.2d 517; State v. Nuccio, 454 So.2d 93 (La.1984).

For guilty pleas entered after August 15, 1997, La. C. Cr. P. art. 556.1 indicates that the trial court, prior to accepting a plea of guilty, should inform the defendant, inter alia, of the nature of the charge(s) to which the plea is offered and the .minimum and maximum penalties provided by law. However, that article further provides that any variance from the specified procedure that does not affect substantial rights of the accused shall not invalidate the plea. La. C. Cr. P. art. 556.1(E); State v. Honeycutt, 41,601 (La.App.2d Cir.02/28/07), 953 So.2d 914; State v. Goins, 40,364 (La.App.2d Cir.01/25/06), 920 So.2d 375, writ denied, 06-1097 (La.11/09/06), 941 So.2d 38.

We have reviewed the guilty plea colloquy. Retained counsel represented defendant at the guilty plea proceeding. Defendant stated that he had consulted with his attorney about the nature and consequences of the charges and the nature and consequences of his guilty pleas. He also stated that his attorney had explained to him that a pre-sentence investigation report would be ordered and that he would be sentenced at a later date. In open court, the trial court thoroughly advised defendant of his constitutional rights per Boykin and détermined that defendant knowingly and voluntarily waived these rights. Throughout the plea colloquy, defendant indicated his willingness to plead guilty.

Under the facts and circumstances of this case, we do not find that defendant’s guilty pleas should be invalidated. Defendant acknowledged that he had consulted with his attorney as to the nature and consequences of the charges and his guilty pleas prior to the guilty plea hearing. Furthermore, by pleading guilty, defendant avoided additional sentencing exposure through dismissal of the most serious charge, aggravated kidnaping, which carries a mandatory sentence of life imprisonment at hard labor without benefit (La. R.S. 14:44), and the dismissal of other unrelated charges. Additionally, there was overwhelming evidence of defendant’s guilt and participation as the trigger-man, including the victim’s testimony and defendant’s confession. In light of the above, the trial court’s failure to inform defendant of the mandatory minimum and maximum penalties for | Bthe offenses does not appear to have been a material factor impacting defendant’s decision to plead guilty, and his substantial rights were not affected. Accordingly, we will not vacate defendant’s guilty plea.

Conclusion

For the reasons set' forth above, defendant’s convictions and sentences are AFFIRMED.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Derek Christopher WRIGHT, Appellant.
    No. 42,678-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Carey J. Ellis, III Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Dale Montgomery, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   GASKINS, J.

hThe defendant, Derek Christopher Wright, pled guilty to attempted possession of a firearm by a convicted felon. He was sentenced to five years at hard labor without benefit of parole, probation, or suspension of sentence, to be served consecutively to any other sentence. He appeals his sentence as excessive. We affirm.

FACTS

On August 10, 2006, the defendant and the mother of his child got into an argument. During the course of this altercation, he threatened to kill her with a gun. The police were called, and they found him to be in possession of a gun.

The defendant, who had been convicted of cocaine possession in 2003, was charged with possession of a firearm by a convicted felon. He was also charged with illegal possession of a stolen firearm.

Trial was scheduled to begin on November 27, 2006. During jury selection, the defendant agreed.to plead guilty to the lesser offense of attempted possession of a firearm by a convicted felon. Pursuant to the plea agreement, the charge of illegal possession of a stolen firearm was dismissed. At the defendant’s guilty plea, the trial court ordered a presente.nce investigation (PSI) report. Although the state and the defendant requested that the trial court agree to a sentencing cap of five years, the court refused to accept any agreement which included a sentencing cap. The defendant agreed to plead guilty even though the court informed him that the maximum sentence for the charge to which he was pleading guilty |2was seven and a half years at hard labor without benefit of parole, probation or suspension of sentence.

The defendant was sentenced on January 30, 2007. Prior to imposing sentence, the court acknowledged receipt of a letter from the defendant’s mother and heard the defendant’s request for leniency. The court then noted the defendant’s lack of a juvenile criminal record before reviewing his extensive adult criminal history. The trial court listed the defendant’s extensive misdemeanor convictions, which included illegal carrying of a weapon, two criminal mischiefs, simple battery under the Family Violence Relief Act, unauthorized use of a movable, drug loitering, and two criminal trespasses. The defendant also had two prior felony convictions and at least one instance of revoked probation. He was on parole at the time of the instant offense. The court further considered that the defendant had been expelled from high school, did not have a GED, and was unemployed.

The trial court imposed a sentence of five years at hard labor without benefit of parole, probation, or suspension of sentence, to be served consecutively to any other sentence. The trial court gave the defendant credit for time already served and recommended him for treatment in the Blue Walters Program or another substance abuse treatment program within the Department of Corrections.

No motion for reconsideration of sentence was filed. The defendant now appeals his sentence as excessive.

I,LAW

When a defendant fails to timely file a motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164; State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. Estes, 42,093 (La.App.2d Cir.5/9/07), 956 So.2d 779. Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless in fliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

A defendant’s reduction in sentencing exposure through plea bargaining is a valid consideration in sentencing if the lesser offense does not adequately describe the defendant’s conduct. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Morgan, 40,976 (La.App.2d Cir.4/12/06), 926 So.2d 822.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. McCall, 37,442 (La.App.2d Cir.8/20/03), 852 So.2d 1162, writ denied, 2004-0039 (La. 12/17/04), 888 So.2d 858.

DISCUSSION

Pursuant to La. R.S. 14:27(D)(3) and 14:95.1, the maximum sentence for attempted possession of a firearm by a convicted felon is imprisonment at hard labor for not more than seven and a half years without benefit of parole, probation, or suspension of sentence and a fine of not more than $2,500. Thus, the sentence of five years imposed by the trial court is a mid-range sentence that is neither grossly disproportionate to the seriousness of the offense, nor does it constitute needless infliction of pain and suffering.

Considering the circumstances, which include the defendant’s extensive criminal history and the fact that he received a reduction in sentencing exposure through his plea agreement, the sentence of five years does not shock the sense of justice. In addition, the fact that the defendant was threatening to kill the mother of his child with the gun further shows |fithat he was in need of correctional treatment and that any lesser sentence would deprecate the severity of the offense. Thus, the trial court-which carefully and fully articulated its reasons for sentence-did not abuse its wide discretion, and the sentence is not constitutionally excessive.

Accordingly, this assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Had the defendant been convicted of the original charge of possession of a firearm by a convicted felon, he would have faced a sentencing range of imprisonment at hard labor for 10 to 15 years without benefit of parole, probation or suspension of sentence and a fine of between $1,000 to $5,000.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Larry Davis MURRAY, IV, Appellant.
    Nos. 42,655-KA, 42,656-KA, 42,657-KA, 42,658-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Louisiana Appellate Project by Laura M. Pavy, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Edward C. Jacobs, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

|-i This criminal appeal arises from the 26th Judicial District Court, Parish of Bossier, State of Louisiana. The defendant, Larry Davis Murray, IV, was convicted of: computer-aided solicitation of a minor, a violation of La. R.S. 14:81.3; attempted carnal knowledge of a juvenile, a violation of La. R.S. 14:27 and La. R.S. 14:80; possession of a Schedule III CDS (hydroco-done) with intent to distribute, a violation of La. R.S. 40:968; and, possession of a Schedule IV CDS (alprazolam), a violation of La. R.S. 40:969. Murray was sentenced as follows: 10 years at hard labor without benefits for computer-aided solicitation; 5 years at hard labor for attempted carnal knowledge of a juvenile; 10 years at hard labor for possession of hydrocodone with intent to distribute; and, 5 years at hard labor for possession of alprazolam. All sentences were ordered to run concurrently, with credit for time served. Murray now appeals. For the following reasons, we affirm the convictions and sentences.

FACTS

The Northwest Louisiana Internet Crimes Against Children Task Force investigated a complaint that Murray had been soliciting sex from a 15-year-old minor boy, C.C., by sending text messages to C.C.’s cellular phone. The complaint had been made to the Webster Parish Sheriffs Office by C.C.’s father. Detectives Scotty Tucker and Dustin Reynolds from the Webster Parish Sheriffs Office used C.C.’s cellular phone to contact Murray and impersonated the juvenile. The conversations included discussion about oral sex, anal sex, and other sexual desires that Murray | ¡>had. On July 25, 2006, a meeting was arranged between Murray and the officers, impersonating as C.C., in the Brookshire’s parking lot in Haughton, Louisiana. Officers from the Bossier Parish Sheriffs Office, Webster Parish Sheriffs Office, Louisiana Attorney General’s Office, and the Bossier/Webster District Attorney’s Office were waiting for the defendant. When Murray arrived at the designated time, he was in the process of sending another text message to C.C.’s cell phone and was found to be in possession of hydrocodone and alprazolam. A search of Murray’s vehicle produced condoms, lubrication, Lortabs, Xanax, and beer.

Murray was placed under arrest and charged with computer-aided solicitation for sexual purposes, attempted carnal knowledge of a juvenile, possession of a Schedule III CDS with intent to distribute, and possession of a Schedule IV CDS. Murray was sentenced as follows: computer-aided solicitation, 10 years at hard labor without benefit of parole, probation, or suspension of sentence; attempted carnal knowledge of a juvenile, 5 years at hard labor; possession of hydrocodone with intent to distribute, 10 years at hard labor; and, possession of alprazolam, 5 years at hard labor. All sentences were ordered to run concurrently, with credit for time served. This appeal ensued.

LAW AND DISCUSSION

Murray’s sole assignment of error is that his cumulative sentence is excessive. In reviewing a sentence for excessiveness, this court must first determine whether there has been compliance with La. C. Cr. P. art. 894.1 in the imposition of sentence. The articulation of the factual basis for a | ¡¡sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. State v. Price, 40,437 (La. App.2d Cir.01/25/06), 920 So.2d 389. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La. 1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

A second inquiry is made to determine whether the sentence is too severe given the circumstances of the case and the defendant’s background. If it is a needless imposition of pain and suffering and is grossly disproportionate to the seriousness of the offense so as to shock one’s sense of justice, the sentence is considered unconstitutionally excessive as violative of La. Const, art. 1, § 20. Both inquiries must be made to determine if the sentence imposed is proper. State v. Lobato, 603 So.2d 739, 751 (La.1992).

A trial court has broad discretion to sentence within the statutory limits. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641. Absent a Dshowing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 1999-1753 (La.05/16/00), 769 So.2d 1158.

In the case at hand, before imposing the sentence, the trial court carefully reviewed the sentencing guidelines as required by La. C. Cr. P. art. 894.1. In particular, the trial court examined Murray’s criminal record as outlined in the pre-sentence investigation report which reflected several priors including possession of marijuana, possession of drug paraphernalia, driving under suspension, and the issuance of two active warrants for his arrest in Tennessee, concerning his failure to appear in district court on 19 counts of issuing worthless checks. At the time of the instant arrest, the trial court noted that Murray was on probation for failure to return a leased vehicle. The trial court also relayed a statement from C.C.’s mother in which she stated that her son had suffered significant emotional and psychological problems due to the defendant’s “perverted activities.” Further, the trial court believed that a suspended sentence would present an undue risk that the defendant would commit another offense during that period of time. Nonetheless, the trial court took into consideration that this was Murray’s first felony, and accordingly made the sentences concurrent, clearly benefitting Murray.

Murray’s sentence is not too severe given the circumstances of the case. He continued to harass the victim after the victim repeatedly rejected his sexual advances, and attempted to use drugs and alcohol in exchange for sexual favors. Murray took no responsibility for his actions, showed no | Bremorse, nor did he offer any apologies to the victim. Thus, the maximum sentence does not shock the conscience of the court or appear to be a needless imposition of pain and suffering. There is no showing of an abuse of the trial court’s discretion in the imposition of these sentences.

Error Patent Discussion

Our error patent review indicates that Murray’s sentence is illegally lenient as the trial court did not impose a fine of not more than $10,000.00, as required by La. R.S. 14:81.3. Although we find the omission of the imposition of a fine to be error, we refrain from amending Murray’s sentence where the state did not object at sentencing nor on this appeal. State v. Jackson, 2004-0728 (La.App. 5th Cir.12/14/04), 892 So.2d 71, unit denied, 2005-0548 (La.01/09/06), 918 So.2d 1033.

CONCLUSION

For the foregoing reasons, we affirm the convictions and sentences for Larry Murray, IV.

AFFIRMED.

      . In accordance with La. R.S. 46:1844(W), initials will be used to protect the minor victim’s identity.


text:
    M’Lee RUSSELL, Individually and on Behalf of Emma White, Plaintiff-Appellee v. HOUSE OF RAEFORD FARMS OF LOUISIANA, INC., Defendant-Appellant.
    No. 42,676-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Nelson, Zentner, Sartor, & Snellings, by George M. Snellings, IV, Monroe, for Appellant House of Raeford Farms of Louisiana.
    Mayer, Smith & Roberts, by John C. Turnage, Shreveport, for Appellees M’Lee Russell and Emma White.
    Tracy W. Houck & Assoc., by Tracy W. Houck, Ruston, for Appellee Esther McBroom Byrd.
    Derrell McBroom, Sr., Pro Se Appellee.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| ¶ House of Raeford Farms appeals a judgment from the Office of Workers Compensation, District IW, Parish of Cad-do, State of Louisiana, which awarded dependency benefits to M’Lee Russell and her minor child, Emma White. For the following reasons, we affirm.

Facts

Derrell McBroom, Jr. was employed by House of Raeford Farms in Arcadia, Louisiana. On June 9, 2004, at House of Rae-ford Farms, he was shot and killed by a disgruntled ex-employee. At the time of McBroom’s death, he was divorced, but had no children. As far as his immediate family, he was survived by his parents. When McBroom died, Russell and her child, Emma, lived with him in his home. House of Raeford Farms paid all of McBroom’s funeral expenses and, pursuant to La. R.S. 23:1231(B)(2), paid each of his parents $75,000.00.

Russell was also an employee of House of Raeford Farms and had been employed by it and its predecessor since 1997. At the time of McBroom’s death, Russell was a manager with the company. A year after McBroom’s death, Russell quit her job with House of Raeford Farms. At the time she was earning approximately $40,000.00 a year.

In June 2005, House of Raeford Farms was served with Russell’s 1008 Petition, wherein she sought workers compensation benefits as a result of McBroom’s death. Russell claimed that she and her child were McBroom’s dependents, despite the fact that she was unmarried to him and Emma was not his child. The matter was tried in the Office of Workers Compensation (“OWC”) and it was stipulated that McBroom was killed in |2the course and scope of his employment. The OWC rendered judgment in favor of Russell and her child, ruling that Russell and Emma were entitled to indemnity benefits in the amount of $173.83 per week and $114.00 per week, respectively, from June 9, 2004, up to the date of trial (October 16, 2006) and continuing. The OWC further also ordered House of Raeford Farms to pay total penalties of $4,000.00 for failure to pay indemnity benefits to Russell and Emma, in addition to $7,500.00 in attorney-fees. House of Raeford Farms appeals this judgment, which M’Lee Russell has answered.

Discussion

On appeal, House of Raeford Farms raises two assignments of error. First, it argues that the OWC erred in determining that Russell and her child, Emma, were dependents of McBroom at the time of his death. The appellant urges that Russell and her child were erroneously determined to be “other dependents” as contemplated by La. R.S. 23:1232(8), because they failed to prove they were dependent upon McBroom for support. We disagree.

The applicable statutes for death benefits in the workers compensation law are: La. R.S. 23:1231, which provides for weekly compensation to legal dependents who are “actually and wholly or partially actually” dependent upon his earnings for support at the time of death; La. R.S. 23:1232, which specifies the basis for computing the payment due to the various classes of dependents; and, La. R.S. 23:1252, which provides that, “the question of legal and actual dependency in whole or in part, shall Ube determined in accordance with the facts as they may be at the time of death.... ” A claimant other than a spouse or child of the decedent must prove that the deceased employee was actually making contributions at the time of his death and that the claimant was totally or partially dependent on the contributions. However, the claimant does not have to show that he would have lacked the necessities of life without the support, only that he relied upon it to maintain his accustomed standard of living. Hurks v. Bossier, 367 So.2d 309 (La.1979); Hunt Plywood, Inc. v. Estate of Davis, 26,161 (La. App.2d Cir.10/26/94), 645 So.2d 248, writs denied, 1994-2871, 1994-2877 (La.01/27/95), 649 So.2d 388; Winn v. Thompson-Hayward Chemical Co., 522 So.2d 137 (La.App. 2d Cir.1988).

The question of actual dependency, in whole or in part, is a matter of proof with the onus resting upon the claimant. McDermott v. Funel, 258 La. 657, 247 So.2d 567 (1971). Therefore, it is the responsibility of a claimant to prove actual dependency upon the earnings of the decedent at the time of his death by a preponderance of the evidence. La. R.S. 23:1252.

After actual dependency has been shown, the question becomes whether the claimant totally or partially relied upon the decedent’s assistance. Hunt Plywood, Inc., supra. Total dependency exists where an individual relies, for support, entirely upon contributions from the deceased employee. However, where that aid is only one of several sources from which the claimant derives support, the dependency will be classified as only partial. Id., citing, Malone and Johnson, 14 Louisiana Civil Law Treatise-Workers Compensation Law and Practice § 310 (2d ed.1980). Other sources of Lsupport do not preclude the award of compensation— a finding of partial dependency may be appropriate. Lathrop v. Hercules Transp., 1995-0936 (La.App. 1st Cir.1995), 666 So.2d 395.

Louisiana jurisprudence has firmly established the principle that actual dependency, in whole or in part, and the extent thereof, is a question of fact which must be proved by a preponderance of credible evidence. McDermott, supra; Castle v. Prudhomme Tank Truck Line, Inc., 417 So.2d 1205 (La.App. 1st Cir.1982), writ denied, 422 So.2d 423 (La.1982). Because dependency is a question of fact, the OWC’s findings should not be disturbed on appeal absent manifest error or clear wrongness, even where a conflict in the evidence exists. Bruno v. Harbert Intern., Inc., 593 So.2d 357 (La.1992); Hunt Plywood, Inc., supra.

Moreover, and of particular relevancy to the facts at hand, the Louisiana Supreme Court previously noted that, “the status as concubine arises when a man and a woman live together in a permanent relationship as husband and wife, although without benefit of matrimony or a putative marriage.” Henderson v. Travelers Ins. Co., 354 So.2d 1031, 1033 (La.1978). Noting that a concubine is a “wife without title,” the Henderson court determined that a man and a woman living together in such a permanent relationship constituted a family for purposes of the workers compensation act. Id. In Henderson, it was noted that even a concubine’s nephew, who was living in the household and was dependent on the wage-earner, could be entitled to benefits as a member of the family.

1 sHere, because Russell was not favored with the presumption of dependency afforded a surviving spouse under La. R.S. 23:1251, she was relegated to the status of an “other dependent” under La. R.S. 23:1232(8). Thus, it was incumbent upon Russell to prove her and her child’s actual dependency (either total or partial) upon McBroom.

At the trial of the matter, the OWC heard testimony relative to Russell and Emma’s dependency on McBroom. The record clearly reflects that before McBroom’s tragic death, he and Russell had been involved in a permanent and loving relationship that was shortly going to culminate in their marriage. In fact, the evidence was consistent that the couple was planning to wed only ten days after McBroom was murdered, and Russell was wearing the engagement ring that McBroom had given her. Several witnesses, including Russell, testified that she and Emma had moved into McBroom’s home, where the child had her own bedroom and a playroom — Emma even had friends over to play at the residence. Pri- or to Russell moving into McBroom’s residence, she testified that he had financed her move out of her prior matrimonial domicile and into an apartment in Ruston, Louisiana. There was also testimony that after Russell moved into McBroom’s home, she had use of his expensive pickup truck. Further, the evidence at trial indicated that as a result of living with McBroom, Russell had the benefit of his utilities, insurance, furniture, | f,appliances and other items. She also testified that prior to his death, the couple vacationed’ together when ’ Emma was at her father’s house. Finally, Russell also testified that she and McBroom were planning on soon building a home on some property he owned near the mobile home they lived in.

Here, in its judgment, the OWC correctly noted the standard of proof for a showing of actual dependency, noting that Russell had to show only that, she relied on McBroom’s contributions to maintain her accustomed mode of living. The OWC concluded that Russell had proven partial dependency on McBroom at the time of his death, noting the various witnesses it relied upon in reaching a conclusion. The OWC gave particular notice to the fact that the couple was scheduled to be married, they had combined their two households, and that Russell and Emma had lived with McBroom 3 to 4 months prior to his death. Such findings clearly were within the trial court’s discretion and were not an abuse of discretion. The record on review supports the determination that Russell and Emma were partially dependent on McBroom’s contributions to maintain their accustomed standard of living, and the OWC was not in error in so finding. Additionally, noting Russell’s assignment of error cited in her answer to the appeal, we do not find the award to be improperly low. The award of benefits stands as made by the OWC.

In its second assignment of error, appellant argues, in the alternative, that it should not have been assessed with penalties and attorney’s fees. Specifically, House of Raeford Farms argues that it had no knowledge of Russell’s relationship with McBroom, and it acted reasonably in not paying |7her benefits. The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the trial court’s finding shall not be disturbed absent manifest error. Authement v. Shappert Eng’g, 2002-1631 (La.02/25/03), 840 So.2d 1181. The crucial inquiry in making this determination is whether the employer had an objective reason to deny benefits. Id. Here, we conclude that House of Raeford Farms did not have an objective reason to deny benefits to Russell and her child, and the penalties and attorney’s fees were properly assessed.

Notably, we view as most convincing on this issue the testimony of Carolyn Gross-man, the human resources manager at House of Raeford Farms. Of extreme significance is that Grossman, as human resources manager, was the local person that coordinated the company’s employees. Grossman, a member of the company’s management, testified that she knew Russell was living with McBroom and that she knew the couple was getting married-she even saw the engagement ring. Grossman even testified that other House of Raeford Farms “management” was aware the couple lived together, citing her boss, Bill Ovitt, as an example. Russell later testified that Ovitt, who she said was over Louisiana operations for the company, was a personal friend of McBroom’s, and he knew the couple lived together. Further, Grossman described how Bill Lewis, the safety director from House of Raeford Farms’ corporate office, came to Arcadia to investigate McBroom’s death. According to Russell, Lewis offered her counseling after McBroom’s death. Notably, during Russell’s testimony, she described how she was called immediately after McBroom’s shooting — obviously, the lacouple’s relationship was well known enough to warrant an immediate call to her. Finally, we note the reality of the situation — two individuals in a small community both working for the same employer begin a romantic relationship. Both McBroom and Russell worked at House of Raeford Farms while they dated, lived together, and got engaged. Even without the direct testimony at trial that certain company personnel knew of the relationship, we find it unlikely that pertinent House of Raeford Farms personnel would not have known of the relationship.

Here, House of Raeford Farms urges that it acted reasonably upon McBroom’s death in not paying benefits to Russell, because it had no knowledge of the extent of their relationship, let alone the fact that she and her child might have been dependent on him. We note, that even after Russell had filed her claim for compensation, House of Raeford Farms still refused to make any payments to her. Considering all the facts, it is unreasonable to think that the relationship between the couple was not known of — at least to the extent to warrant an investigation into the exact terms of the relationship. Such would have been the reasonable expectation, which House of Raeford Farms failed to meet. We believe that House of Raeford Farms did not reasonably controvert Russell’s claim, and the OWC’s conclusion was not manifest error. See La. R.S. 23:1201 F. The OWC clearly acted within its discretion in assessing penalties and attorney’s fees against House of Raeford Farms, which amounts were reasonable as well. So considering, we likewise will not increase the amount of either the penalties or the attorney’s fees, as Russell has requested in her answer to the 19appeal. Moreover, Russell requests $3,000.00 in attorney’s fees for the preparation involved in responding to the appeal by House of Raeford Farms. Considering the complexity of issues involved in this matter, we award $2,000.00 in additional attorney’s fees to Russell for her defense of the appeal.

Conclusion

For the foregoing reasons, the judgment by the trial court against House of Raeford Farms and in favor of M’Lee Russell individually and on behalf of her child, Emma White is affirmed. Russell is awarded additional attorney’s fees in the amount of $2,000.00 for her defense of the appeal. All costs of this appeal are also assessed to House of Raeford Farms.

AFFIRMED.

      . In the allocation of dependents enumerated in La. R.S 23:1232, parents are allocated benefits only in the event they are proven to be "dependent.” McBroom's parents were voluntarily paid benefits under La.' R.S. 23:1231(B)(2). House of Raeford Farms never made a showing, other than mere claims of his mother’s dependency, that McBroom's parents were actually "dependent parents” entitled to the payment of benefits under La. R.S. 23:1232. Thus, Russell’s status as an "other dependent” under subsection (8) is at issue.


author: DIAZ, Presiding Justice,

text:
    RAS FAMILY PARTNERS, LP and Ray A. Sims v. ONNAM BILOXI, LLC. Onnam Biloxi, LLC v. RAS Family Partners, LP and Ray A. Sims.
    Nos. 2006-IA-00976-SCT, 2006-IA-01414-SCT.
    Supreme Court of Mississippi.
    Nov. 15, 2007.

      Lawrence Cary Gunn, Hattiesburg, attorney for appellants.
    Megan Marthine Barber Conner, John G. Corlew, Jackson, Katherine A. Smith, attorneys for appellee.
    Before DIAZ, P.J., CARLSON and RANDOLPH, JJ.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. The dispute in these consolidated cases centers around an agreement between Onnam Biloxi, LLC, RAS Family Partners, LP, and Ray A. Sims. This Court is asked to determine whether jurisdiction is proper in either chancery or circuit court. Finding that jurisdiction was proper in circuit court, we affirm the circuit court’s order denying the motion to transfer and reverse the chancery court’s order denying same.

FACTS

¶ 2. RAS Family Partners, LP, agreed to lease ten acres of land on the Biloxi Bay to Onnam Biloxi, LLC, for casino development. Ray A. Sims is the managing partner of RAS, and he also contracted with Onnam to sell his shares of stock in another corporation that owns land adjacent to the proposed casino development. Both the lease and stock sale agreements were subject to certain contingencies, which included approval of the site by the Mississippi Gaming Commission; obtaining a gaming license and other necessary permits; approval of the building plan by the City of Biloxi; a hazardous substances inspection; and the negotiation of a tidelands lease.

¶ 3. The closing of the lease and stock sale was to take place on September 30, 2005. On August 29, 2005, Hurricane Katrina devastated the Gulf Coast region, impeding the conditions precedent to the agreements. In a letter dated November 1, 2005, RAS and Sims notified Onnam that “[ajll agreements between RAS Family Partners and Onnnam Biloxi [had] expired by their own terms.”

¶ 4. On November 30, 2005, Onnam filed suit in federal court against RAS and Sims. RAS then filed a separate suit against Onnam in the Circuit Court of Harrison County on December 27, 2005, seeking a declaratory judgment that the contracts were no longer binding as well as damages for breach of contract and malicious filing of a lis pendens notice. RAS amended its circuit court complaint to include Sims as a plaintiff on February 27, 2006.

¶ 5. Onnam’s federal suit was dismissed on January 24, 2006, pursuant to a provision in the lease agreement, which designated state court as the chosen forum. Onnam then filed suit that same day against RAS and Sims in the Chancery Court of Harrison County, seeking specific performance of the lease agreement and damages from Sims for breach of the stock sale agreement.

¶ 6. Onnam filed a motion in the circuit court action to transfer to chancery court, while RAS and Sims filed a motion in the chancery court action to transfer to circuit court. Both motions were denied, and this Court granted both of the interlocutory appeals that followed.

¶ 7. The parties ask us to determine the appropriate jurisdiction, specifically whether the circuit court has priority jurisdiction.

STANDARD OF REVIEW

¶ 8. Jurisdiction is a question of law which this Court reviews de novo. Trustmark Nat’l Bank v. Johnson, 865 So.2d 1148, 1150 (Miss.2004). We use this same standard of review when examining a ruling on a motion to transfer from chancery court to circuit court, or vice-versa. ERA Franchise Systems, Inc. v. Mathis, 931 So.2d 1278, 1280 (Miss.2006).

DISCUSSION

¶ 9. RAS and Sims argue that the circuit court has priority jurisdiction because they were the first to file suit. Onnam, on the other hand, argues that the chancery court has proper jurisdiction because (1) the suit involves a purely equitable matter which properly belongs in chancery court, and (2) priority jurisdiction, even if applicable, does not preclude the circuit court from considering a motion to transfer.

¶ 10. “The principle of priority jurisdiction presupposes that the first court in which suit is filed is a court of competent jurisdiction.” Harrison County Dev. Comm’n v. Daniels Real Estate, Inc., 880 So.2d 272, 276 (Miss.2004), overruled on other grounds by City of Jackson v. Estate of Stewart, 908 So.2d 703, 711 (Miss.2005). Accordingly, we address the issues in the following order: (1) whether the circuit court could have subject matter jurisdiction over the case at all; and (2) if so, we then determine priority jurisdiction by examining in which court the suit was first filed.

I. Whether the Circuit Court is a Court of Competent Jurisdiction.

¶ 11. Generally speaking, circuit courts are courts of law and chancery courts are courts of equity. See Miss. Const, art. 6, § 159 (granting chancery courts jurisdiction over “all matters in equity”); Miss. Const, art. 6, § 156 (granting circuit courts “original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court”). However, chancery courts are courts of limited jurisdiction, while circuit courts are courts of general jurisdiction. IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 112 (Miss.1998) (citing Hall v. Corbin, 478 So.2d 253 (Miss.1985)). Therefore, “if one issue is properly before the circuit court it has jurisdiction to decide all issues.” Id. at 111. To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought. Durant v. Humphreys Country. Mem’l Hosp./Extended Care Facility 587 So.2d 244, 250 (Miss.1991); Hood v. Dept. of Wildlife Conservation, 571 So.2d 263, 266 (Miss.1990). If the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject matter jurisdiction. IP Timberlands Operating Co., 726 So.2d at 111.

¶ 12. RAS’s and Sims’s complaint seeks a declaratory judgment that the contracts are no longer binding as well as damages for breach of contract and malicious filing of a lis pendens notice. The request for declaratory judgment does not affect our analysis as declaratory judgments are “ju-risdictionally neutral.” Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948, 952 (Miss.2000). Breach of contract actions, on the other hand, are better suited for circuit court. Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1089 (Miss.1999).

¶ 13. The complaint also requests damages for the alleged breach of contract and malicious filing. While chancery courts may certainly award legal and punitive damages as long as chancery jurisdiction has attached, damages are traditionally considered a legal remedy. Id. at 1090. Because the complaint seeks legal remedies, the circuit court is a court of competent jurisdiction.

¶ 14. Onnam counters that the paramount claim is the equitable remedy of specific performance, and therefore, the case properly belongs in chancery court. As discussed above, the complaint clearly seeks legal remedies. Additionally, On-nam stipulated to the circuit court’s jurisdiction in its answer and cross-complaint, acknowledging that “[t]his Court has jurisdiction of the parties and subject matter.” Finally, Onnam’s cross-complaint, which is nearly identical to its complaint filed with the chancery court, seeks a legal remedy in the form of damages for breach of contract. This argument is therefore without merit.

II. Whether the Circuit Court has Priority Jurisdiction.

¶ 15. Because the circuit court is a court of competent jurisdiction, we next determine whether the circuit court has priority jurisdiction.

¶ 16. The “first to file” or “race to the courthouse” rule is well-established in Mississippi case law: “[w]here two suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit.” Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 804 So.2d 1000, 1006 (Miss.2001) (quoting In re Petition of Beggiani, 519 So.2d 1208, 1210 (Miss.1988)). To determine which court first acquired jurisdiction, we look at “the date the initial pleading is filed, provided process issues in due course.” Scruggs, 804 So.2d at 1006 (quoting Huffman v. Griffin, 337 So.2d 715 (Miss.1976)).

¶ 17. The circuit court complaint was filed on December 27, 2005, and the chancery court complaint was filed on January 24, 2006. Because the chancery complaint was filed nearly a month after the first pleading in circuit court, .the circuit court has priority jurisdiction.

¶ 18. The chancellor found that priority jurisdiction did not apply because: (1) the summonses were served on the same date; and (2) Sims was not a party to the circuit court action until after the chancery action had been filed. These facts are of no matter. First, priority jurisdiction attaches as long as process issues “in due course.” Id. The summons for the circuit court action was served January 26, 2006, and thus, service of process was accomplished within the 120-day time frame required under Mississippi Rule of Civil Procedure 4(h). Second, Sims was added as a party through an amended complaint which was filed before a responsive pleading was served. Under Mississippi Rule of Civil Procedure 15(c) this amendment relates back to the date of the original complaint.

CONCLUSION

¶ 19; Because the case was filed first in the circuit court, and because the circuit court is a court of competent jurisdiction, this case properly belongs in that court. The chancery court’s order denying the motion to transfer is reversed, and Case Number 2006-IA-00976-SCT is remanded to the chancery court with directions to transfer that case to the Harrison County Circuit Court, Second Judicial District. The circuit court’s order denying the motion to transfer is affirmed, and Case Number 2006-IA-01414-SCT is remanded to the circuit court for further proceedings consistent with this opinion.

¶ 20. NO. 2006-IA-00976-SCT: REVERSED AND REMANDED. NO. 2006-IA-01414-SCT: AFFIRMED AND REMANDED.

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


author: GRAVES, Justice, SMITH, Chief Justice,

text:
    Mary P. BURLESON as the Personal Representative of Bobby (NMN) Shiers, Jr., Deceased, for the Benefit of Ashley Nicole Shiers, Rebecca Lee Shiers, Brittany M. Hearn, Destiny Kathleen Massey and Rainy Eva Deann Massey, Minor Children of Bobby (NMN) Shiers, Jr., Deceased v. Roy Michael LATHEM d/b/a Log Haul Hunting & Fishing Club of Edwards, Inc.
    No. 2006-CA-02025-SCT.
    Supreme Court of Mississippi.
    Nov. 15, 2007.

      R. Charles Robb, attorney for appellant.
    William M. Dalehite, Jr., Jackson, J. Seth McCoy, attorney for appellee.
   GRAVES, Justice,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On May 15, 1999, Roy Michael La-them shot Bobby Shiers,' Jr., with a .38 caliber handgun on hunting club property in Hinds County, Mississippi. At the time of the shooting, Bobby Shiers was fleeing from law enforcement authorities in Edwards, Mississippi. On May 24, 1999, Bobby Shiers, Jr., died in Warren County, Mississippi, as a result of the gunshot wound. Lathem pleaded guilty to manslaughter and was serving his sentence in the Hinds County penal institute at the commencement of the civil suit.

¶ 2. On May 15,' 2002, Mary P. Burleson, the mother and personal representative of Bobby Shiers, Jr., filed a complaint against Lathem in the Circuit Court of Warren County, asserting a claim for wrongful death on behalf of and for the benefit of the five minor children of the deceased. The summons was issued on September 12, 2002. Lathem was served with process on September 17, 2002, 125 days- after the filing of the complaint, exceeding the 120-day requirement of Mississippi Rule of Civil Procedure 4(h). On October 15, 2002, Lathem filed his answer to the complaint, asserting only the affirmative defenses of failure to state a claim upon which relief can be granted and improper venue.

¶ 3. On August 13, 2004, the circuit court sua sponte entered an Order Dismissing Complaint without prejudice for failure to prosecute, pursuant to Mississippi Rule of Civil Procedure 41(d)(1). Burleson filed a Motion To Set Aside the Order Dismissing the Complaint, or Alternatively to Reinstate the 'Complaint on April 27, 2005, and on August 1, 2005, Lathem filed an Opposition to Plaintiffs Motion To Set Aside Order Dismissing Complaint, or Alternatively to Reinstate the Complaint. On August 5, 2005, Burleson filed a Motion for Leave to Amend Complaint. The trial court entered an Order Reinstating the Complaint on August 16, 2005, after hearing arguments of counsel. Burleson subsequently filed a Revised Motion for Leave to Amend Complaint on August 26, 2005.

¶ 4. On April 13, 2006, the trial court entered an Order Granting Leave to Amend the Complaint; Burleson filed the Amended Complaint on that date. On May 9, 2006, Lathem filed his Answer and Affirmative Defenses to Plaintiffs Amended Complaint, which set forth several affirmative defenses, including insufficiency of process and insufficiency of service of process. In addition, Lathem filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment pursuant to Mississippi Rule of Civil Procedure 4(h) asserting that service of process had not occurred within 120 days from the filing of the Complaint. In his motion, Lathem also alleged that the statute of limitations had run.

¶ 5. The circuit court held a motion hearing on October 19, 2006, regarding La-them’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. The trial court heard arguments presented by counsel regarding Lathem’s allegation of insufficiency of service of process. The Court did not address Lathem’s second allegation, that the statute of limitations had run. Based on Burleson’s failure to comply with Rule 4(h), the trial court dismissed the case without prejudice on October 19, 2006, and on October 20, 2006, entered an order sustaining Lathem’s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. Burleson filed a timely Notice of Appeal to this Court on November 20, 2006.

¶ 6. On appeal, this Court addresses the issue of whether Lathem waived insufficiency of process as an affirmative defense by failing to raise it in his initial responsive pleading or by motion simultaneously therewith. This Court finds that Lathem waived the defense. Accordingly, we reverse the trial court’s ruling and remand the case for a decision on the merits.

DISCUSSION

I. Whether Lathem waived Insufficiency of Service of Process as an Affirmative Defense by Failing to Raise it in His Initial Responsive Pleading or by Motion Simultaneous Therewith.

¶ 7. When reviewing a trial court’s grant or denial of a motion to dismiss or a motion for summary judgment, this Court applies a de novo standard of review. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006); Park on Lakeland Drive, Inc. v. Spence, 941 So.2d 203, 206 (Miss.2006); McLendon v. State, 945 So.2d 372, 382 (Miss.2006); Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005). “When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Scaggs, 931 So.2d at 1275 (citing Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (Miss.1999)).

¶ 8. Burleson does not dispute that process was not served within the 120-day requirement set forth under Rule 4(h); however, Burleson argues that any Rule 4(h) objection was waived when Lathem failed to timely plead a Rule 12(b)(5) affirmative defense in the initial responsive pleadings. Lathem argues that he preserved a Rule 4(h) objection and Rule 12(b)(5) defense by asserting “a common catch-all defense,” that is, a Rule 12(b)(6) defense in the initial Answer. Thus, the issue before this Court is whether Lathem properly asserted insufficiency of process as an affirmative defense in his initial answer filed on October 15, 2002, thereby precluding waiver.

¶ 9. Mississippi Rule of Civil Procedure 4(h) provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint ... the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

(Emphasis added). Thus, “M.R.C.P. 4(h) simply provides that a party shall be dismissed from an action if service is not had on that party within 120 days ...” Rains v. Gardner, 731 So.2d 1192, 1194 (Miss. 1999). The underlying rationale of Rule 4(h) is two-fold: First, it provides the defendant with notice that a lawsuit has been filed against him, and second, it requires a party “to bring claims to a court for judicial review in a timely manner.” Johnson v. Rao, 952 So.2d 151, 162 (Miss.2007) (Graves, J., dissenting); Holmes v. Coast Transit Auth., 815 So.2d 1183, 1187 (Miss. 2002). See also Chauvin Int’l Ltd. v. B & S Sportswear, Inc., 1993 WL 403352 (S.D.N.Y.1993) (The purpose of service of process is to give notice to the defendant that suit has been filed against him.). “The rules which govern service of process should be ‘applied in a manner that will best effectuate their purpose of giving the defendant adequate notice.’ ” Johnson, 952 So.2d at 160 (Graves, J., dissenting) (citing Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.1988)).

¶ 10. In this case, Lathem received notice of the lawsuit through service of process, satisfying the underlying rationale of the rule. Nevertheless, service was untimely, occurring five days late, and this Court has succinctly stated that “[u]n-timely service of process is insufficient service of process.” Heard v. Remy, 937 So.2d 939, 942 (Miss.2006). However, a finding of defective service does not end the inquiry, inasmuch as Rule 4(h) must be viewed in conjunction with the pertinent provisions of Rules 12 and 15 of the Mississippi Rules of Civil Procedure. Even when service of process is insufficient, this Court has held that service-of-process defenses must be affirmatively asserted either in the initial responsive pleading or by motion. Otherwise, they are waived. Rains, 731 So.2d at 1195.

¶ 11. This Court has previously held that if a party fails to serve process within the 120-day requirement prescribed by Rule 4(h), the court shall dismiss the suit sua sponte or by motion, which should be made by the party upon whom process has been improperly served, that is, “the only party to have standing to make such motion.” Rains, 731 So.2d at 1195. This Court in Rains stated that when asserting a Rule 4(h) objection, the “proper vehicle

is a motion filed under the provisions of M.R.C.P. 12(b)(4) or (5).” Rains, 731 So.2d at 1195. Mississippi Rule of Civil Procedure 12 provides in pertinent part:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(4) Insufficiency of process
(5) Insufficiency of service of process
No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion ...

¶ 12. Further, Mississippi Rule of Civil Procedure 12(h) requires that a defense of insufficiency of process or insufficiency of service of process made by motion must be filed concurrently with other initial motions in a lawsuit or with the responsive pleadings. Rains, 731 So.2d at 1195 (finding that the defendant preserved insufficiency of process as an affirmative defense by asserting it in the initial pleadings and in the answer); see also Heard v. Remy, 937 So.2d 939 (Miss.2006) (finding that even though the defendant did not specifically use the phrases “insufficiency of process” or “insufficiency of service of process,” his Rule 4(h) defense was sufficiently set forth and preserved in the initial responsive pleadings); Young v. Huron Smith Oil Co., 564 So.2d 36 (Miss.1990) (holding that the defendant waived insufficient service of process as an affirmative defense by failing to assert it in a timely manner pursuant to M.R.C.P. 12). Once the responsive pleadings have been filed, a party’s failure to plead a Rule 4(h) objection by filing a Rule 12(b)(4) or (5) defense constitutes waiver. Heard, 937 So.2d at 941. Mississippi Rule of Civil Procedure 12 provides in pertinent part:

(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of ... insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

Thus, this Court in Rains stated:

[A] moving party has a choice of making a M.R.C.P. 4(h) objection to process by filing a M.R.C.P. 12(b)(4) or (5) motion prior to filing a responsive pleading; by asserting other general affirmative defenses; or by filing them simultaneously therewith. The M.R.C.P. 4(h) defense is waived only after the filing of an answer or affirmative defenses if the defense is not asserted prior to or simultaneously within the answer.

Rains, 731 So.2d at 1197. The party filing the motion has thus waived a Rule 12(b)(4) or (5) defense by failing to plead it prior to or concurrently with the answer; however, the issue may be revisited with an amended answer upon leave of the court pursuant to Rule 15. Id. The comment to Rule 12(h)(1) reiterates that a party asserting one defense should bring forward all defenses that he has at the time, which allows the court “to do a reasonably complete job.”

¶ 13. In the instant case, Burleson failed to timely serve Lathem with process. However, Lathem failed to timely assert his Rule 4(h) or 12(b)(4) or (5) defense in the initial responsive pleadings; that is, the affirmative defenses were not submitted prior to or simultaneous with Lathem’s answer. Lathem asserted the affirmative defenses of insufficiency of process and insufficiency of service of process only in the amended answer. Burleson was not on notice in Lathem’s “first defense move” that Lathem would pursue dismissal based on insufficiency of service of process. See Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir.1983) (“defendants wishing to raise any of these four defenses [lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process] must do so in their first defensive move, be it a Rule 12 motion or a responsive pleading”); Heard, 937 So.2d at 942. Thus, Lathem waived the affirmative defenses of insufficiency of process and insufficiency of service of process set forth in the amended answer unless his amended answer falls within the provisions of Rules 12(h)(1)(B) and 15(a). Although La-them has waived improper service of process, the defense is preserved if it is asserted in an amendment as a matter of course pursuant to Rule 15(a).

¶ 14. If an affirmative defense is not asserted in the initial responsive pleadings or by motion prior to or simultaneously therewith, Rule 12(h)(1)(B) provides that such a defense may be permissible as an amendment pursuant to Rule 15(a). Mississippi Rule of Civil Procedure 15(a) provides in pertinent part:

A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served .... Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires....

(Emphasis added). Rule 15(a) specifically allows a party to amend a pleading “as a matter of course at any time before a responsive pleading is served.... ” If a responsive pleading is not permitted, then the party has thirty days after the pleading has been served to amend it without leave of court. The underlying rationale for this rule is best articulated in the comment to Rule 15 as follows:

[Cjourts are organized for the purpose of hearing and determining causes on their actual merits... it would be a hopelessly visionary and impractical expectation that every party in every case could always successfully communicate at once to his solicitor all of the material facts with complete accuracy, or that any solicitor, although having all the facts, may reach such a height of professional perfectibility as to stand above the possibility of error or omission in pleading them — as a consequence of which there would sometimes be a failure of full justice on the actual merits unless amendment and correction in the pleadings, and in other procedural steps, were seasonably and judiciously allowed.

M.R.C.P. 15 cmt. Thus, after the thirty-day time period has expired, a party still has the opportunity to amend the pleading; however, the party may only amend “by leave of the court or upon written consent of the adverse party.” M.R.C. P. 15(a); Rains, 731 So.2d at 1197 (Rule 12(h)(1) states that a 4(h) defense may be raised in an amended answer if filed by leave of the court pursuant to Rule 15). Rule 15(a) provides that the court shall grant a party’s request “when justice so requires.”

¶ 15. Lathem did not assert deficient service of process as an affirmative defense in the answer filed on October 15, 2002. Based on Rule 15(a), Lathem had thirty days from the service of his answer to submit any amendments without leave of court. The comment to Rule 15(a) notes that, unlike the federal rules, the Mississippi rules do not limit the number of times a party may amend as a matter of course. Thus, Lathem had the entire thirty days to amend his pleading as often as he deemed necessary; however, Lathem chose not to amend at all. Once this thirty-day time period expired, Lathem, pursuant to Rule 15(a), needed leave of the court or written consent of opposing counsel in order to amend his answer. The record does not reflect Lathem’s request to the court or to opposing counsel to amend the answer nor does Lathem argue that such a request was made. Although Burleson amended her complaint, she did so after requesting permission of the court, which was granted on April 13, 2006.

¶ 16. Lathem further asserts that he preserved his Rule 4(h) defense by asserting a catch-all Rule 12(b)(6) in his initial answer. We find this argument to be without merit. Such an interpretation of the rules would allow the defendant more than one bite at the apple, since he could plead

a Rule 12(b)(6) defense in the initial responsive pleadings, with the intent of asserting other Rule 12 defenses at a later time. Lathem’s reasoning rejects the interpretation of the rules in Mississippi case law. It also fails to explain the existence of the remaining Rule 12(b) defenses and other affirmative defenses, which would be unnecessary if a party need only assert a Rule 12(b)(6) defense to preserve any objections to allegations set forth in the complaint.

¶ 17. Lathem failed to assert insufficiency of process and insufficiency of service of process as affirmative defenses in the initial responsive pleadings or by motion simultaneously therewith. Further, he failed to amend his answer within the thirty-day period permissible under the rules, and he did not obtain leave from the court or from opposing counsel to subsequently amend. Although he untimely asserted deficient service of process as an affirmative defense in his answer to the amended complaint and by motion, La-them did not present any objections until May 9, 2006, more than three and a half years after the filing of the initial responsive pleadings. Moreover, even if this Court had found that Lathem properly asserted such affirmative defenses in the answer to the amended complaint or by motion, Lathem simply waited too long pursuant to Rule 15(a). Thus, Lathem has waived insufficiency of process and insufficiency of service of process as affirmative defenses.

CONCLUSION

¶ 18. For the foregoing reasons, the judgment of the Circuit Court of Warren County sustaining Lathem’s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, is reversed, and this case is remanded to that court for a decision on the merits.

¶ 19. REVERSED AND REMANDED.

WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. SMITH, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

SMITH, Chief Justice,

Dissenting.

¶ 20. The majority reverses the learned trial judge’s grant of Lathem’s Motion to Dismiss because Burleson failed to serve process upon Lathem within 120 days. The majority holds that a Rule 4(h) affirmative defense was waived by Lathem. I disagree and therefore dissent.

¶ 21. Lathem’s first affirmative defense in his Answer alleged Burleson’s complaint failed to state a claim upon which relief can be granted. This Court has held that the use of such language affirmatively within an answer is sufficient to preserve the failure to comply with the requirements of a statute, i.e. Mississippi Code Annotated Section 11-1-58 (Rev.2002). Walker v. Whitfield Nursing Ctr., Inc. 931 So.2d 583, 591 (Miss.2006). Here, by not effecting service of process within 120 days, Burleson failed to state a claim upon which relief can be granted, and upon the proper motion to dismiss, the trial court was correct in dismissing the complaint. Additionally, Lathem asserted the specific language of insufficiency of process as affirmative defense in his answer to Burle-son’s amended complaint, which he filed on May 9, 2006. Burleson argues that La-them “actively participated in litigation for four years” thus waiving his assertion regarding failure of service of process. Participation in what litigation? There was none! This assertion pales by comparison to Burleson never responding to discovery and her failure to prosecute the claim for more than a year. Burleson’s non-action on her part resulted in dismissal of the case by the trial judge on August 13, 2004. Burleson did get the dismissal set aside and filed an Amended Complaint on April 13, 2006. Lathem responded by Answer to the Amended Complaint on May 9, 2006, and specifically pleaded his defense under Rule 4(h), along with a Motion to Dismiss based upon failure to comply with that rule.

¶ 22. What is unmistakably clear is that service of process was not timely, nor did Burleson move for additional time to serve process on Lathem. Even more critical is the fact that Burleson did not attempt to make any showing of “good cause” for her failure to timely serve process. See Heard v. Remy, 937 So.2d 939, 943 (Miss.2006); Crumpton v. Hegwood, 740 So.2d 292, 295 (Miss.1999); LeBlanc v. Allstate Ins. Co., 809 So.2d 674, 677 (Miss.2002).

¶ 23. In my view, Burleson did not comply with the requirement of Mississippi Rules of Civil Procedure 4(h) that process be served within 120 days of the filing of the complaint. Thus, the trial court was correct in dismissing the complaint. I would affirm the trial court.

¶ 24. I respectfully dissent.

      . Lathem's brief contends that the Rule 12(b)(6) "common catch-all defense” includes a Rule 4(h) defense.

      . Lathem subsequently asserted insufficiency of process and insufficiency of service of process as affirmative defenses in his answer to the amended complaint and by motion filed on May 9, 2006.

      . Mississippi Rule of Civil Procedure 15(a) provides in pertinent part: "A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading whichever period may be longer, unless the court otherwise orders.” (Emphasis added).
      Burleson filed the amended complaint on April 13, 2006. Lathem filed his amended answer and Motion to Dismiss on May 9, 2006, exceeding the ten-day time requirement prescribed by the rule. The record does not reflect the court providing additional time for Lathem to file an amended answer or Motion to Dismiss.


author: WALLER, Presiding Justice,

text:
    Willie NELSON d/b/a Nelson Plumbing Company v. CITY OF HORN LAKE Acting by and through its BOARD OF ALDERMEN.
    No. 2006-CA-02122-SCT.
    Supreme Court of Mississippi.
    Nov. 15, 2007.

      Christopher Solop, Joseph M. Gianola, Jr., attorneys for appellant.
    John D. Price, Jackson, Billy C. Campbell, Jr., attorneys for appellee.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This appeal is taken from the DeSo-to County Circuit Court’s order affirming the City of Horn Lake’s decision to reject Nelson Plumbing Company’s lowest bid for construction on the Goodman Road Sanitary Sewer Improvements project. Because we find that the City of Horn Lake complied with Mississippi Code Annotated Section 31 — 7—13(d)(i), did not violate Nelson’s due process rights, and did not act arbitrarily and capriciously in rejecting Nelson’s lowest bid, we affirm.

FACTS

¶ 2. On June 1 and June 8, 2005, the Mayor and Board of Aldermen of the City of Horn Lake (“the City”) advertised bids for the Goodman Road Sanitary Sewer Improvements project (“the Goodman Project”). The City required that bidders have a certificate of responsibility issued by the Mississippi State Board of Public Contractors and specified that the contract would be awarded to “the lowest responsive, responsible Bidder.” Additionally, the City reserved the right to conduct an investigation of the bidders’ capacity to perform the work and reserved the right to reject any bid if the City determined that a bidder could not carry out the obligations of the contract.

¶ 3. Willie Nelson d/b/a Nelson Plumbing Company (“Nelson”) is a Mississippi sole proprietorship holding a valid certificate of responsibility for various classifications of work. Of the five companies that submitted bids for the Goodman Project, Nelson submitted the lowest bid in the amount of $2,294,035.5o. Nevertheless, on September 20, 2005, the City’s Board of Aldermen unanimously voted to award the contract for the Goodman Project to Free-land and Lemm Construction Company (“Freeland”), who had submitted the second lowest bid at $2,298,761.62 — an amount $4,726.12 higher than Nelson’s bid.

¶ 4. The City justified its decision to award the contract to Freeland rather than Nelson on two grounds. First, the City cited nine complaints it had received about Nelson from corporate and municipal entities in Arkansas, Tennessee, and Mississippi. The complaints pertained to Nelson’s conduct under prior contracts, as well as payment disputes with previous suppliers. Second, the City cited its own previous difficulties with Nelson in the construction of City Hall. The City stated that Nelson’s failure to perform work according to contract specifications for the City Hall project resulted in delay and caused damages to the City and other contractors.

¶ 5. On September 22, 2005, Nelson submitted a letter to the mayor and city clerk protesting the City’s decision to deny him the Goodman Project contract. Nelson stated that he had conformed to all the requirements of the bid documents, that he held a valid certificate of responsibility, and that the City had unlawfully awarded the contract to Freeland. On September 23, 2005, the City responded to Nelson’s written protest by affirming its decision to award the contract to Freeland.

¶ 6. On September 26, 2005, Nelson submitted a supplemental protest. Nelson alleged that the City acted arbitrarily and capriciously in denying him the contract. Nelson also argued that he never had an opportunity to respond to suppliers’ complaints of late payment or non-payment and, regardless, that such complaints should not have been considered by the City.

¶ 7. On September 29, 2005, Nelson filed a Notice of Appeal and Bill of Exceptions in the DeSoto County Circuit Court, appealing the City’s decision to award the Goodman Project contract to Freeland. On April 10, 2006, Nelson filed a Motion to Compel, requesting that the circuit court order the mayor to sign the Bill of Exceptions. On May 8, 2006, the City filed its Designation of Appeal Record, which included its Corrections to the Bill of Exceptions that had been signed by the mayor on April 5, 2006.

¶ 8. Oral arguments were heard in the DeSoto County Circuit Court before the Honorable Robert P. Chamberlin on November 16, 2006. On December 1, 2006, the circuit court entered an order dismissing Nelson’s appeal and affirming the City’s decision. Nelson filed a Notice of Appeal with this Court on December 12, 2006.

¶ 9. Nelson raises seven issues on appeal, which we have consolidated into five: (I) whether the City violated Mississippi Code Annotated Section 31 — 7—13(d)(i) (Rev.2005) in awarding the Goodman Project contract to Freeland and, if not, whether the City had the right to reject Nelson’s bid for the reasons set forth in its Resolution # 09-07-05; (II) whether the City violated Nelson’s substantive and/or procedural due process rights; (III) whether the City acted arbitrarily and capriciously in reaching its decision to award the Goodman Project to Freeland rather than Nelson; (IV) whether the circuit court erred in excluding an Occupational Safety and Health Administration (OSHA) news release from the record; and (V) whether Nelson is entitled to lost profits and attorney’s fees from the City and whether individual members of the Board of .Aldermen may be held personally liable. Because we find issues I through IV dis-positive, we do not address issue V.

STANDARD OF REVIEW

¶ 10. The scope of review is limited when examining the actions of a municipal board. Sunland Publ’g Co. v. City of Jackson, 710 So.2d 879, 881-82 (Miss.1998). Issues I, II, and IV are subject to a de novo standard. For questions of law, a municipal board’s decision is reviewed de novo. See A & F Props., LLC v. Madison County Bd. of Supervisors, 933 So.2d 296, 300 (Miss.2006). A de novo standard is also applied to issues of statutory interpretation. Weiner v. Meredith, 943 So.2d 692, 694 (Miss.2006) (citing Austin v. Wells, 919 So.2d 961, 964 (Miss.2006)).

¶ 11. Issue III is subject to an arbitrary-and-capricious standard of review. This Court will not set aside the action of the governing body of a municipality unless such action is “clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without substantial evi-dentiary basis.” Sunland Publ’g Co., 710 So.2d at 882 (citing City of Jackson v. Capital Reporter Publ’g Co., 373 So.2d 802, 807 (Miss.1979)). An act is arbitrary and capricious when it is done at pleasure, without reasoned judgment or with disregard for the surrounding facts and circumstances. Watkins v. Miss. Bd. of Bar Admissions, 659 So.2d 561, 568 (Miss.1995). Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion or ... more than a ‘mere scintilla’ of evidence.” Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1010 (Miss.2000) (quoting Hooks v. George County, 748 So.2d 678, 680 (Miss.1999)).

DISCUSSION

I. Whether the City violated Mississippi Code Annotated Section 31-7-13(d)(i) in awarding the Goodman Project contract to Freeland and, if not, whether the City had the right to reject Nelson’s bid for the reasons set forth in its Resolution # 09-07-05.

A. Mississippi Code Annotated Section 31 — 7—13(d)(i) (Rev.2005).

¶ 12. The City awarded the Goodman Project contract to the second-lowest bidder based on complaints about Nelson and his conduct under previous contracts. Nelson argues that the City’s minutes failed to include “detailed calculations” specifying costs that would have been incurred had his lowest bid been accepted, including costs for additional supervision. Nelson asserts that detailed, mathematical calculations are an objective requirement essential to protecting the integrity of the public procurement system. The City counters that the term “calculations” does not refer to numbers, but to the governing authority’s deliberations in reaching its final decision.

¶ 13. Mississippi Code Annotated Section 31 — 7—13(d)(i) requires a city to place on its minutes detailed calculations and a narrative summary when accepting a bid other than the lowest bid submitted.

If any governing authority accepts a bid other than the lowest bid actually submitted, it shall place on its minutes detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid, including the dollar amount of the accepted bid and the dollar amount of the lowest bid.

Miss.Code Ann. § 31-7-13(d)(i) (Rev.2005). The term “detailed calculations” in Mississippi Code Annotated Section 31-7-13(d)(i) requires, at least, that “the dollar amount of the accepted bid and the dollar amount of the lowest bid” be included in the governing authority’s minutes.

¶ 14. Nelson’s bid was not rejected on considerations to which “detailed calculations” are attributable, but for the reasons described under the “narrative summary.” When awarding contracts, a governing authority may consider a bidder’s “responsibility” concerning matters that relate to the prompt and efficient performance of a contract, including the bidder’s honesty and integrity, skill and business judgment, experience and capability of performing the contract, conduct under previous contracts, and the quality of previous work. Parker Bros. v. Crawford, 219 Miss. 199, 208-09, 68 So.2d 281, 284-85 (1953). When a lowest bid is denied based upon such considerations, as in the subject case, there will most likely be little in the way of “detailed calculations” to include in the governing authority’s minutes.

¶ 15. Because the City rejected Nelson’s bid for reasons that cannot be reduced to “detailed calculations,” the City’s minutes provided the minimal, requisite “detailed calculations” pursuant to Mississippi Code Annotated Section 31-7-13(d)(i) by citing the dollar amounts of the lowest bid and the accepted bid.

B. The City’s right to reject Nelson’s bid for the reasons set forth in its Resolution # 09-07-05.

¶ 16. The City’s advertisement for bids stated that the contract would go to “the lowest responsive, responsible Bidder.” The term “responsible” is not limited to financial resources and ability. Id. at 284. All matters that relate to a bidder’s prompt and efficient performance of the contract are material to a bidder’s “responsibility,” including the bidder’s honesty and integrity, skill and business judgment, experience and facilities for performing the contract, conduct under previous contracts, and the quality of previous work. Id. at 284-85.

¶ 17. Resolution # 09-07-05, as incorporated into the City’s minutes, stated that the City had decided not to award the Goodman Project contract to Nelson based on numerous complaints regarding his pri- or work and its own previous difficulties with Nelson in the construction of City Hall. These are appropriate considerations in determining the “responsibility” of a bidder. See id.

¶ 18. The City also reserved the right to investigate bidders “to determine the ability of the Bidder to perform the work,” as well as the “right to reject any bid if the evidence submitted by or investigation of such Bidder fails to satisfy the [City] that such Bidder is properly qualified to carry out the obligations of the Contract and to complete the work contemplated therein.”

¶ 19. Because the City’s advertisement for bids allowed for consideration of bidders’ “responsibility” and because the City also reserved the right to investigate bidders, we find that the City had the right to reject Nelson’s bid for the reasons set forth in Resolution # 09-07-05.

II. Whether the City violated Nelson’s substantive and/or procedural due process rights.

¶ 20. Nelson argues that the City violated his constitutionally protected substantive and procedural due process rights. Nelson maintains that he acquired a property interest in the Goodman Project contract because he was the lowest, responsive bidder. Additionally, Nelson argues that the City violated his procedural due process rights by not affording him notice and a hearing.

A. Substantive due process.

¶ 21. For substantive due process to be implicated, there first must be a protected property interest. University of Miss. Med. Ctr. v. Hughes, 765 So.2d 528, 536 (Miss.2000). This Court has stated that a contract right constitutes an enforceable property interest. Id. (citing Wicks v. Miss. Valley State Univ., 536 So.2d 20, 23 (Miss.1988)). However, federal constitutional law determines whether a property interest “rises to the level of a constitutionally protected interest.” Id. (citing, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30, 39 (1978)). The United States Supreme Court has defined “property” for the purpose of the due process clause as being more than a unilateral expectation, but a “legitimate claim of entitlement.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972).

¶ 22. Nelson argues that his property interest in the Goodman Project contract attached once he acquired status as the lowest bidder. In arguing that he has an enforceable property interest in the Goodman Project contract, Nelson relies heavily upon Shepard v. City of Batesville, 2007 WL 108288, 2007 U.S. Dist. LEXIS 1519 (N.D.Miss. January 8, 2007). In Shepard, the federal court for the Northern District of Mississippi found that Mississippi Code Annotated Section 31-7-13 gave the plaintiff a protected property interest in projects for which he was the lowest and best bidder. Shepard, 2007 WL 108288, *8, 2007 U.S. Dist. LEXIS at 27. However, Shepard is distinguishable from the facts of the subject case. In Shepard, the plaintiff actually had been awarded various contracts over a two-year period, but had been used for only one project. Id. (“[tjhere is absolutely no question that the Plaintiff was awarded the contracts.... ”). The City of Batesville had instead used alternate bidders without providing the plaintiff any notice or hearing as to why he had not received the jobs. Id., 2007 WL 108288, *8, at 27-28.

¶ 23. In contrast to Shepard, Nelson was never awarded the Goodman Project contract. The City, in its advertisement for bids, reserved discretion to award the contract to “the lowest responsive, responsible Bidder” and determined that Nelson did not meet such criteria. Having never been awarded the Goodman Project contract, Nelson never had a “legitimate claim of entitlement” to such contract. See Roth, 408 U.S. at 577, 92 S.Ct. 2701; Shepard, 2007 WL 108288, *7, 2007 U.S. Dist. LEXIS at 24-25 (citing Expert Masonry, Inc. v. Boone County, 440 F.3d 336, 348 (6th Cir.2006)(a constitutionally protected property interest in a public bid contract may arise by being awarded the contract and then being deprived of it, or by the governing authority abusing its discretion in awarding the contract)).

¶ 24. Because no property interest vested upon Nelson’s status as the lowest bidder, we find that Nelson did not acquire a constitutionally protected property interest in the Goodman Project contract. Therefore, we hold that the City did not violate Nelson’s substantive due process rights.

B. Procedural due process.

¶ 25. A two-step analysis is required in analyzing procedural due process claims: “(1) does the plaintiff have a property interest entitled to procedural due process protection; and (2) if yes, what process is due?” Harris v. Miss. Valley State Univ., 873 So.2d 970, 985 (Miss.2004) (citing Bluitt v. Houston In-dep. Sch. Dist., 236 F.Supp.2d 703, 733 (S.D.Tex.2002)). If no constitutionally protected right is at stake, then procedural due process is not an issue. Miss. High Sch. Activities Ass’n, Inc. v. Coleman, 631 So.2d 768, 774 (Miss.1994) (citing Miss. High Sch. Activities Ass’n, Inc. v. Farris, 601 So.2d 393, 396 (Miss.1987)).

[16] ¶ 26. Because Nelson had no constitutionally protected right in the Goodman Project contract, we find that procedural due process is not invoked. See id. Nevertheless, Nelson received the requisite procedural due process provided under Mississippi law.

¶ 27. Mississippi bid laws do not require a hearing when a governing authority rejects a lowest bid. Rather, Mississippi Code Annotated Section 31-7-13(d)(i) requires the governing authority’s minutes to provide “detailed calculations and narrative summary showing that the accepted bid was determined to be the lowest and best bid.” Miss.Code Ann. § 31—7—13(d)(i) (Rev.2005). If a party remains dissatisfied with the governing authority’s decision, Mississippi Code Annotated Section 11-51-75 sets forth the procedure by which an aggrieved party such as Nelson may appeal the decision. Miss.Code Ann. § 11-51-75 (Rev.2005).

¶ 28. Nelson attempts to contrast the process afforded him with the process afforded the lowest bidder in Parker Brothers. In Parker Brothers, the school board made efforts to contact the lowest bidder prior to the board’s decision to accept the second-lowest bid. Parker Brothers, 68 So.2d at 282. Additionally, the board noted that the lowest bidder had been free “at any time to present their qualifications to the Board;....” Id. Yet the lowest bidder never actually contacted the school board and no hearing was conducted prior to the board’s decision. Id. at 282-83. Even if a hearing had been held prior to the board’s decision, such a hearing is not required under Mississippi law. See Miss.Code Ann. §§ 11-51-75, 31-7-13(d)(i) (Rev. 2005).

¶ 29. Accordingly, we find that Nelson received the requisite procedural due process under Mississippi law.

III. Whether the City acted arbitrarily and capriciously in reaching its decision to award the Goodman Project to Freeland rather than Nelson.

¶ 30. Nelson makes three arguments that the City acted arbitrarily and capriciously in denying him the Goodman Project contract: first, that the City engaged in a “witchhunt” to deny him the Goodman Project contract and did not investigate Freeland or other bidders; second, that the City improperly considered his conduct under a previous contract with the City which dated back five years; and finally, that the City unlawfully considered the complaints filed against him concerning previous payment disputes.

¶ 31. The record provides some evidence that the City investigated other bidders. In a memo to the Mayor and Board of Aldermen, the city engineer stated that “[a]fter some research on the various bidders, it appears that the City would be best served by awarding the contract to the second [lowest] bidder, Freeland and Lemm.” The City’s investigation was focused primarily on Nelson because he had submitted the lowest bid.

¶ 32. Nelson also argues that the City is time-barred when considering his past performance. For support, Nelson cites Title 48 of the Code of Federal Regulations, Section 42.1503, which effectively permits agencies to look back only three years on a contractor’s past performance. 48 C.F.R. § 42.1503 (2004). However, the City was not bound by the Code of Federal Regulations for this project, arid no similar provision exists under Mississippi law. Therefore, the City’s consideration of Nelson’s past performance was not an arbitrary and capricious act.

¶ 33. Finally, Nelson argues that complaints concerning his payment disputes with previous suppliers should not have been considered by the City because these suppliers were protected by Nelson’s payment bond. This Court has held that where bond is given under Mississippi Code Annotated Section 85-7-185 (Rev. 1999), the bond serves in lieu of any equity or trust in favor of materialmen and laborers. See Dickson v. United States Fid. & Guar. Co., 150 Miss. 864, 117 So. 245, 248 (1928). Even though Section 85-7-185 affords protection for “persons furnishing labor or material,” neither this provision nor Mississippi case law prohibits a governing authority from considering a contractor’s prior disputes with creditors. Miss.Code Ann. § 85-7-185 (Rev.1999). The aggregate of such disputes may bear upon the contractor’s honesty, integrity, business judgment, conduct under previous contracts, and pecuniary ability—all of which have been held to be appropriate considerations in awarding a public contract. See Parker Bros., 68 So.2d at 284-85.

¶34. Additionally, the complaints regarding Nelson were not isolated to payment disputes with suppliers. The complaint from the City. of Pine Bluff, Arkansas, alleged that Nelson had not complied with the specifications of a contract. The complaint from Allen & Hoshall of Memphis, Tennessee, cited dissatisfaction with Nelson’s performance on a project, stated that a lawsuit had been filed against Nelson, and added that Nelson was not allowed on other projects. Finally, the City’s prior difficulties with Nelson on the City Hall project were extensively documented in the record and centered largely on Nelson’s failure to comply with contract specifications.

¶ 35. While recognizing that disputes and complications are not uncommon within the construction industry, we find substantial evidence that the City did not act arbitrarily and capriciously in reaching its decision to award the contract to Freeland rather than Nelson.

IV. Whether the circuit court erred in excluding an Occupational Safety and Health Administration (QSHA) news release from the record.

¶ 36. In Nelson’s reply brief before the circuit court, he referenced and attached as an exhibit a news release from the OSHA which showed that Freeland had been fined $96,400 for safety violations which resulted in the death of one of its employees. Nelson contends that the circuit court erred by not including the news release as part of the record.

¶ 37. The bill of exceptions constitutes the record on appeal. Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1011 (Miss. 2000) (quoting Hooks v. George County, 748 So.2d 678, 680 (Miss.1999)); Miss.Code Ann. § 11-51-75 (Rev.2005). Thus, the circuit court may review only the evidence included in the bill of exceptions. E.g. id.

¶ 38. Because the press release was not included in the bill of exceptions, we find that the circuit court did not err in excluding the OSHA news release from the record.

CONCLUSION

¶ 39. Because we find that the City complied with Mississippi Code Annotated Section 31-7-13(d)(i), did not violate Nelson’s due process rights, and did not act arbitrarily and capriciously in rejecting Nelson’s lowest bid, we affirm the circuit court’s order affirming the City of Horn Lake’s decision.

¶ 40. AFFIRMED.

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

      . This is the amount used in the minutes from the City's September 20, 2005, meeting of the mayor and Board of Aldermen. Nelson had calculated his bid at $2,294,076.50, which was slightly higher than the City’s calculation.

      . Nelson dates his previous contract with the City as being six years ago. However, the record shows that the City awarded Nelson a contract for the City Hall project on December 1, 1998, and that work was performed on the contract until 2000. Thus, the contract dates back approximately five years from September 20, 2005, the date on which the City elected to deny Nelson the Goodman Project contract.