author: RANDOLPH, Justice, GRAVES, Justice,

text:
    GANNETT RIVER STATES PUBLISHING COMPANY, INC. d/b/a The Clarion-Ledger v. ENTERGY MISSISSIPPI, INC.
    No. 2005-CA-00052-SCT.
    Supreme Court of Mississippi.
    Aug. 17, 2006.
    Rehearing Denied Nov. 2, 2006.
    Robert B. McDuff, Jackson, attorney for appellant.
    James Keithly Child, Jr., Henderson S. Hall, Jr., Charles Edwin Ross, Jackson, attorneys for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. Gannett River States Publishing Company, Inc., d/b/a The Clarion Ledger (“Gannett”) filed a request with the Mississippi Public Service Commission (“MPSC”) to disclose the amount Entergy Mississippi, Inc. (“Entergy”) was charging Nissan for electrical service at its automobile manufacturing plant in Madison County, Mississippi. Entergy filed suit against the MPSC and Gannett to prevent the MPSC’s disclosure of the terms of an “Agreement for Electrical Service” (“Agreement”) between Entergy and Nissan, which required and received the MPSC’s approval. The suit was filed in the Chancery Court of the First Judicial District of Hinds County. Following trial, the chancellor found that the Agreement contained confidential information protected under the Mississippi Public Records Act and was exempt from disclosure. Therefore, Entergy’s motion for declaratory and injunctive relief was granted.

FACTS

¶ 2. Entergy provides electrical service to forty-five counties in Mississippi. In 2000, Entergy entered into negotiations with Nissan to encourage Nissan to locate an automobile manufacturing plant in Madison County. An agreement to supply electrical service to the plant was eventually reached. The parties designated the Agreement and its terms as confidential. The Agreement was approved by the MPSC as required by Miss.Code Ann. Section 77-S-35(l). Specifically, the MPSC found “that the Agreement between the Company and Nissan should be approved by this Commission as being in the public interest.” The terms of the private Agreement, including the charge for electrical service, were not publicly disclosed.

¶ 3. While reporting on Nissan’s arrival in Madison County, Gannett began investigating the amounts that utilities were charging Nissan for their services. Gan-nett filed a written request to the MPSC, pursuant to the Mississippi Public Records Act of 1983, to obtain the amount Entergy would charge Nissan for electrical service. Pursuant to regulations, the MPSC notified Entergy of Gannett’s request and informed Entergy that it would release the information in thirty days unless Entergy obtained an injunction blocking such disclosure.

¶ 4. Exercising its legislatively granted right, Entergy filed suit against MPSC, its executive secretary, and Gannett seeking a protective order to enjoin MPSC from disclosing the information to Gannett. The chancellor entered an agreed order granting Entergy’s motion for a preliminary injunction to prevent disclosure of any documents related to the Agreement prior to a trial on the merits. Gannett subsequently filed a motion seeking to dissolve the preliminary injunction.

¶ 5. At trial, Entergy called witnesses who testified that the charges were part of a “special contract” for a specific consumer. Witnesses for Entergy further testified that high volume customers, who typically require that a potential contract be confidential before negotiations even begin, are often charged reduced and publicly undisclosed amounts based on their anticipated large energy consumption. Additionally, Entergy witnesses testified that obtaining such lucrative contracts allowed Entergy to maintain lower rates for smaller customers. Finally, Entergy witnesses opined that the disclosure of special contract terms would harm Entergy twofold in futuro. First, by enabling other electrical utilities to underbid Entergy in its attempts to secure high volume industrial customers for Entergy’s area of service. Second, present Entergy users furnished with confidential commercial or financial information would seek more attractive terms, even though some present users do not present the same profit potential as those receiving Entergy’s lowest charges.

¶ 6. Gannett offered two witnesses. The first witness, a retired economics professor, opined that he was not aware of any economically feasible reason why Entergy would need to keep the terms of its special contracts confidential. The second witness, a reporter, testified about the accuracy of articles concerning Nissan.

¶ 7. The chancellor found that while the Entergy-Nissan Agreement was not exempt from disclosure simply because it was labeled a “special contract,” the Agreement did contain “confidential commercial and financial information” protected under Miss.Code Ann. Sections 25-61-9(1) and 79-23-1(2), and, thus, was exempt from disclosure. Specifically, the chancellor stated, “[t]he Court has reviewed the documents in camera and is convinced that disclosure of such documents would result in a loss of competitive edge in future negotiations.” Accordingly, the chancellor denied Gannett’s motion to dissolve the preliminary injunction and enjoined any party from releasing any of the information at issue to the newspaper or its agents.

¶ 8. Aggrieved, Gannett appeals the ruling below.

STANDARD OF REVIEW

¶ 9. To reverse the ruling of the trial court requires a de novo finding that the chancellor erroneously interpreted or applied the law, see Gannett River States Publ’g Corp. v. City of Jackson, 866 So.2d 462, 465 (Miss.2004) (citing Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992)), or that the chancellor’s findings of fact were not supported by “substantial, credible, and reasonable evidence.” City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000). Finding no evidence of either in the record before us, we affirm the chancellor’s judgment.

ANALYSIS

I. Whether the Chancellor Erred in Failing to Order Disclosure of the Charge for Electrical Service that the MPSC Approved under the En-tergy-Nissan Agreement.

¶ 10. Miss.Code Ann. Section 25-61-9(1) provides:

[rjecords furnished to public bodies by third parties which contain trade secrets or confidential commercial or financial information shall not be subject to inspection, examination, copying or reproduction under this chapter until notice to said third parties has been given, but such records shall be released within a reasonable period of time unless the said third parties shall have obtained a court order protecting such records as confidential.

Miss.Code Ann. Section 25-61-9(1) (emphasis added). Concerning public utilities, Miss.Code Ann. Section 79-23-1(1) and (2) also addresses the disclosure vel non of information submitted to public bodies. It reads as follows:

(1) [cjommercial and financial information of a proprietary nature required to be submitted to a public body, as defined by paragraph (a) of Section 21-61-3, by a firm, business, partnership, association, corporation, individual or other like entity, shall be exempt from the provisions of the Mississippi Public Records Act of 1983; provided, however, that nothing herein shall be construed to deny access to such information submitted to a regulatory agency by a public utility that is related to the establishment of, or changes in, rates regulated by such agency.
(2) [njothing in this section shall be construed to deny a public utility the right to protect trade secrets or confidential commercial or financial infor-motion, as provided in subsection (1) of Section 25-61-9.

Miss.Code Ann. § 79-23-1(1) & (2) (emphasis added).

¶ 11. Gannett argues unpersua-sively that subsections (1) and (2) are harmonized by interpreting them to protect confidential information from disclosure with the exception of utility rates and that the statute requires that utility rates be disclosed regardless of whether they are of a confidential nature. To follow Gannett’s logic would require this Court to ignore the plain language of the statutes, which this Court in good conscience cannot do. See Bailey v. Al-Mefty, 807 So.2d 1203, 1206 (Miss.2001) (“The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein. Where the statute is plain and unambiguous there is no room for construction .... ”). In subsection (1), the Legislature conspicuously did not include the words trade secrets and confidential commercial or financial information or refer to Section 25-61-9, as it did in subsection (2); but rather the legislature utilized the words commercial and financial information of a proprietary nature in subsection (1). “Proprietary” means “held as the property of a private owner,” and is clearly distinguishable from “trade secrets or confidential ... information.” In short, subsections (1) and (2) are, in fact, distinctively different.

¶ 12. Unquestionably Miss.Code Ann. Section 79-23-1(1) permits the disclosure of “commercial and financial information of a proprietary nature” as it relates to the “establishment of, or changes in rates, regulated by” the MPSC. However, equally clear subsection (2) declares that nothing in this section shall be construed to deny a public utility the right to protect “trade secrets or confidential commercial or financial information.... ” The obvious dissimilarity in terms used by the Legislature in subsection (1) vis-a-vis subsection (2), was not addressed by Gannett in its briefs, nor is it mentioned in the dissent. Indeed, it is a distinction with a difference.

¶ 13. The chancellor correctly found that Miss.Code Ann. Section 79-23-1(2) exempts “trade secrets or confidential commercial or financial information” from disclosure. The Entergy-Nissan Agreement was agreed upon, and expressly identified as, a confidential document pursuant to Rules 4D and 41 of the MPSC’s Public Utilities Rules of Practice and Procedure. The Agreement was then furnished to the MPSC, which approved it. Thereafter Gannett requested the information. Following the procedures of Miss.Code Ann. Section 25-61-9(1), Entergy obtained a court order protecting the requested terms of the Agreement as confidential. Miss. Code Ann. Section 25-61-9(1) and Miss. Code Ann. Section 79-23-1(1) and (2) were adopted by the Legislature to protect the public interest and the interests of parties to agreements.

¶ 14. The chancellor found that Enter-gy provided evidence, testimonial and otherwise, that the terms of the Agreement with Nissan were confidential. Generally, the words “confidential commercial or financial information” are to be interpreted using “the common and ordinarily accepted meaning of the terms.” Caldwell & Gregory, 716 So.2d at 1123. Entergy produced substantial, credible, and reasonable evidence that disclosing the information contained in the Agreement would compromise Entergy’s ability to offer competitive prices to other large users, cripple its ability to negotiate with existing and new customers, and jeopardize Entergy’s ability to use lucrative high-volume user contracts to keep the rates of smaller users lower.

¶ 15. Moreover, the charges for service at issue are not “rates.” Entergy contends that the charges for service it bills Nissan is not a “rate” as statutorily defined by Miss.Code Ann. Section 77-3-3(e). Entergy asserts that because the charge for service is not offered to the public, as required by the definition of a “rate” in Miss.Code Ann. Section 77-3-3(e), then the charge for service in the Agreement is not a “rate.” This Court agrees.

¶ 16. The word “public” has a plain and unambiguous meaning. “Public” as a noun is defined as “[t]he people as a whole.” “Public” defined as an adjective is “accessible to or shared by all members of the community.” The charge for service was neither offered to the people as a whole nor accessible to or shared by all members of the community. Instead, the amount charged for the electrical service was privately negotiated between Entergy and Nissan, and the agreed-upon charge was available only to Nissan, not to the general public or any other customers. The dissent uses a separate, non-inclusive clause to buttress its position while ignoring the succinctly clear modifier contained in the same clause of the sentence, “offered by it to the public.” No evidentiary dispute exists that this charge is not offered by Entergy to the public. Accordingly, the amount Entergy charges Nissan for electrical services does not meet the statutory definition of a “rate” under Miss. Code Ann. Section 77-3-3(e). Thus, it is inappropriate to treat the charge as a “rate” within the context of Miss.Code Ann. Section 79-23-1.

¶ 17. The plain and unambiguous language of Miss.Code Ann. Section 79-23-1, the application of strict construction to the language concerning exceptions to disclosure, and the finding that the charges En-tergy bills Nissan are not rates collectively support the conclusion that Entergy should not be required to disclose the terms of the Agreement, as those terms were determined to be “trade secrets or confidential commercial or financial information” by the parties involved, the MPSC, and the chancery court. The dissent fails to declare otherwise, because the record is without evidentiary support to do so.

¶ 18. Based on the record before us, this Court finds that the chancellor did not err. The dissent undermines its position by its excursion into legislative intent by commingling “commercial and financial information of a proprietary nature” with “trade secrets or confidential commercial or financial information” when the language is clearly distinguishable; suggesting a public policy of “the public’s right to know” when the wisdom or folly of the pertinent legislation is strictly within the constitutional power of the Legislature; failing to acknowledge the absence of substantive underlying facts; and ignoring “offered by it to the public” in defining “rate.”

CONCLUSION

¶ 19. This Court concludes that the learned chancellor did not err in finding that Miss.Code Ann. Section 79-23-1(2) exempts trade secrets and confidential commercial or financial information from disclosure under the Mississippi Public Records Act. Accordingly, this Court affirms the chancellor’s judgment.

¶ 20. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., AND DICKINSON, J., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, J. DIAZ, J., NOT PARTICIPATING.

GRAVES, Justice,

Dissenting:

¶ 21. Because I find that the price which Nissan pays Entergy for its electrical service is a “rate” and thus subject to public disclosure under Miss.Code Ann. Section 79-23-1(1), I respectfully dissent. While the majority fails to address the issue of whether the price Entergy charges Nissan for electricity under the special contract is a rate, I am convinced that resolution of that issue is central to the correct disposition of this case.

Whether the Price Entergy Charges Nissan for Electricity Constitutes a “Rate.”

¶ 22. Entergy contends that the chancellor’s ruling should be upheld, arguing in part that the fee it charges Nissan under a special contract is not a “rate” under Miss. Code Ann. § 77~3-3(e), which is generally subject to public disclosure. Entergy essentially argues that since the price of electricity it negotiated with Nissan is not “offered by it to the public,” that price is not a “rate” contemplated by statute and would therefore not be subject to any disclosure requirement under Miss.Code Ann. § 79-23-1(1). I am unpersuaded by this argument because it strains the clear language of the statute. Entergy’s proposed reading of Section 77-3-3(e) ignores the final clause of that subsection, which states that “the term ‘rate’ shall not include charges for electrical current furnished, delivered or sold by one public utility to another for resale.” Where, as here, the statute is not ambiguous, we will “apply the statute according to its plain meaning” rather than engage in statutory construction. City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). Giving Miss. Code Ann. § 77-3-3(e) its plain meaning, the statute provides that the price one public utility charges another public utility for the resale of electricity (however termed) is not to be considered a “rate” but that any other “compensation, charge, fare, toll, rental and classification” is to be considered a “rate.” Our Legislature had the opportunity to specifically exclude the fee that a public utility charges a large manufacturer (such as Nissan) under a special contract from being considered a “rate,” yet it declined to do so by limiting that exclusion to charges by “one public utility to another for resale.” Thus, I find no merit to Entergy’s argument that the price it charges Nissan for electricity is not a “rate.”

Whether Miss.Code Ann. Section 79-23-1(1) Mandates Disclosure of the Rate En-tergy Charges Nissan for Electricity.

¶23. In deciding whether Entergy is required to disclose the “rate” it charges Entergy for electricity, this Court must look at The Mississippi Public Records Act of 1983, Miss.Code Ann. §§ 25-61-1 to -17 (Rev.2003), which provides the basic framework for the inspection of public records. While public records are generally open to the public for inspection, the Public Records Act does protect certain types of documents from public access. Miss. Code Ann. Section 25-61-9(1) (Rev.2003) specifically states that public records furnished by third parties containing trade secrets or confidential commercial or financial information are not subject to inspection, examination, copying or reproduction unless the third parties have been given notice. The release of such documents to the public is allowed after a reasonable time unless the third parties obtain a court order that protects the documents from disclosure due to their confidential nature. Subsection (2) of this statute allows for the redaction of exempt material from a document which is determined to contain both exempt and nonexempt information.

¶ 24. Concerning public utilities, Miss. Code Ann. § 79-23-1(1) and (2) address the disclosure of public records and confidential information which are exempt from disclosure:

(1) Commercial and financial information of a proprietary nature required to be submitted to a public body, as defined by paragraph (a) of Section 25-61-3, by a firm, business, partnership, association, corporation, individual or other like entity, shall be exempt from the provisions of the Mississippi Public Records Act of 1983; provided, however, that nothing herein shall be construed to deny access to such information submitted to a regulatory agency by a public utility that is related to the establishment of, or changes in, rates regulated by such agency.
(2) Nothing in this section shall be construed to deny a public utility the right to protect trade secrets or confidential commercial or financial information, as provided in subsection (1) of Section 25-61-9.

Miss.Code Ann. §§ 79-23-1(1) and (2) (Rev.2001). Gannett argues that subsections (1) and (2) are harmonized by interpreting them to protect confidential information from disclosure with the exception of utility rates and that the statute mandates the disclosure of utility rates, regardless of whether a public utility (such as Entergy) holds such information out as being confidential in nature. Entergy rebuts this argument from Gannett and claims that the chancellor was correct in preventing any terms of its special contract with Nissan from being disclosed, on the basis that Section 79-23-1(2) protects any information deemed to be “trade secrets or confidential commercial or financial information” from public disclosure requirements.

¶ 25. When interpreting statutes, “[c]ourts have a duty to give statutes a practical application consistent with their wording, unless such application is inconsistent with the obvious intent of the legislature.” Marx v. Broom, 632 So.2d 1315, 1318 (Miss.1994) (citation omitted). If a statute is unambiguous, then courts should simply apply the statute according to its plain meaning. See Sullivan, 612 So.2d at 1089. Section 79-28-1(1) makes clear that nothing contained in the statutory language should he interpreted to prevent the disclosure of information concerning regulated utility rates.

¶ 26. This Court’s holding in Mississippi Dep’t of Wildlife, Fisheries, and Parks v. Mississippi Wildlife Enforcement Officers’ Ass’n, Inc., 740 So.2d 925 (Miss.1999), offers further guidance on issues of disclosure. There, an employee association requested a list of names and compensation time of the Department’s employees pursuant to the Public Records Act. Id. at 928-29. In upholding the chancellor’s ruling that the Department was required to disclose the requested information, this Court specifically stated that “there is to be a liberal construction of the general disclosure provisions of a public records act, whereas a standard of strict construction is to be applied to the exceptions to disclosure” with the recognition that “any doubt concerning disclosure should be resolved in favor of disclosure.” Id. at 986. We further stated that an exception to a statute “must appear in the language the legislature employed” and “cannot be created by construction.” Id. at 932.

¶27. In applying these rules of construction to Miss.Code Ann. § 79-23-1 in the instant case, I find that the general language of subsection (2), which prevents disclosure of trade secrets or confidential commercial or financial information, does not negate the specific command of subsection (1), which mandates the disclosure of rate information submitted to the MPSC. The majority’s attempt to define the terms of Section 79-23-1(2) and/or interpret that section, in order to protect Entergy from the mandatory “rate” disclosure of Section 79-23-1(1), is not persuasive that the Legislature intended otherwise. See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.1945) (Judge Learned Hand stating that “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary....”).

¶ 28. Just because the “rate” that En-tergy charges Nissan is contained in a special contract (which may in fact contain other material which is exempt from disclosure) does not change the fact that disclosure of rate information is mandatory under Miss.Code Ann. § 79-23-1(1). Requiring Entergy to disclose rate information does not preclude it from having other confidential information in the special contract redacted pursuant to Miss.Code Ann. § 25-61-9(2). This balances the competing interests of the public’s right to know about the decisions of the Public Service Commission and Entergy’s right to protect confidential proprietary information.

¶29. Today’s majority opinion strays from this Court’s presumption in favor of requiring disclosure of public records, see Mississippi Wildlife, 740 So.2d at 936 (noting that doubts regarding disclosure should be resolved in favor of disclosure); Roberts v. Miss. Republican Party State Executive Comm., 465 So.2d 1050, 1053 (Miss.1985) (recognizing that intent of Public Records Act is to provide all citizens with access to the records of all public governmental bodies); Harrison County Dev. Comm’n v. Kinney, 920 So.2d 497, 502 (Miss.Ct.App.2006) (noting that questions of disclosure are liberally construed while applying strict construction standard to exceptions to disclosure), and ignores a statute which mandates disclosure of the “rate” information at issue here. Because I cannot take that course of action in good conscience, I respectfully dissent.

CARLSON, J„ JOINS THIS OPINION.

      . Miss.Code Ann. Section 77-3-35(1) requires MPSC approval of special contracts between utilities and high, volume users, but allows those contracts to be entered into without reference to rates or other provisions. By contrast, Entergy uses rates established by the MPSC for most of its customers, as determined in rate proceedings before the MPSC. Miss.Code Ann. §§ 77-3-37 & -39.

      . Rule 4D of the MPSC’s Public Utilities Rules of Practice and Procedure states, in part:
      [a]ny document filed with the Commission and alleged to contain trade secrets or confidential commercial or financial information subject to the protection of any applicable law or court decision shall be clearly designated as such on its face or accompanying cover letter at the time of filing. Upon request for copies of any documents so designated, the Commission shall notify the person or utility that filed the document. Thirty (30) days after such notice the document will be made available for public inspection pursuant to the terms of this rule unless the filing party shall have obtained a court order protecting such records as confidential pursuant to Miss.Code Ann. Section 25-61-9.

      . Webster's New International Dictionary 1819 (3rd ed.1986).

      . Under the Mississippi Uniform Trade Secrets Act, a "trade secret” means:
      information, including a formula, pattern, compilation, program, device, method, technique or process, that:
      (I) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
      (II) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
      Miss.Code Ann. Section 75-26-3. See also Marshall v. Gipson Steel, Inc., 806 So.2d 266, 270 (Miss.2002); Fred’s Stores, Inc. v. M & H Drugs, Inc., 725 So.2d 902, 908 (Miss.1998). Moreover, whether information is of a confidential commercial or financial nature is a "broader field of inquiry than whether [information] meets the statutory definition of a trade secret,” and, therefore, a wider array of information may be classified as confidential under that standard. Caldwell & Gregory,

        Inc. v. Univ. of Southern Miss., 716 So.2d 1120, 1123 (Miss.Ct.App.1998).

      . See footnote 2.

      . For approval only, not modification, under the terms of the Agreement.

      . See Miss.Code Ann. Section 77-3-35(1) and Rule 6.W. of the MPSC's Public Utilities Rules of Practice and Procedure.

      . As one of Gannett’s witnesses stated, "[i]n-formation is market power.”

      . The dissent fails to accept the mootness of a "rate” discussion unless it is first established that Miss.Code Ann. Section 79-23-1(2) is not distinctively different from Miss.Code Ann. Section 79-23-1(1). Therefore, we address "rates” only in response to the dissent, not because the issue is case dispositive.

      .Miss.Code Ann. Section 77-3-3(e) provides that the term "rate” includes:
      every compensation, charge, fare, toll, rental and classification, or the formula or method by which such may be determined, or any of them, demanded, observed, charged or collected by any public utility for any service, product or commodity described in this section, offered by it to the public, and any rules, regulations, practices or contracts relating to any such compensation, charge, fare, toll, rental or classification; however, the term "rate” shall not include charges for electrical current furnished, delivered or sold by one public utility to another for resale.
      (Emphasis added).

      . Webster's New International Dictionary 1836 (3rd ed.1986).

      . Id.

      . A “rate” is defined by statute as follows:
      The term “rate” means and includes every compensation, charge, fare, toll, rental and classification, or the formula or method by which such may be determined, or any of them, demanded, observed, charged or collected by any public utility for any service, product or commodity described in this section, offered by it to the public, and any rules, regulations, practices or contracts relating to any such compensation, charge, fare, toll, rental or classification; however, the term "rate” shall not include charges for electrical current furnished, delivered or sold by one public utility to another for resale.
      Miss.Code Ann. § 77-3-3(e).

      . Miss.Code Ann. § 25-61-9 provides in part:
      (1) Records furnished to public bodies by third parties which contain trade secrets or confidential commercial or financial information shall not be subject to inspection, examination, copying or reproduction under this chapter until notice to said third parties has been given, but such records shall be released within a reasonable period of time unless the said third parties shall have obtained a court order protecting such records as confidential.
      (2) If any public record which is held to be exempt from disclosure pursuant to this chapter contains material which is not exempt pursuant to this chapter, the public body shall separate the exempt material and make the nonexempt material available for examination and/or copying as provided for in this chapter.


source: Caselaw Access Project

author: SMITH, Chief Justice,

license: Public Domain

text:
    TYSON BREEDERS, INC., Stan Varner and Mack Walker v. James Eric HARRISON.
    No. 2005-IA-02317-SCT.
    Supreme Court of Mississippi.
    Oct. 19, 2006.
    Lewis W. Bell, Jackson, G. David Garner, Raleigh, attorneys for appellants.

      Audry Regnal Blackledge, Hattiesburg, David Shoemake, John Dudley Butler, Benton, attorneys for appellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. This case is before the Court on appeal from the Chancery Court of Cov-ington County, by the defendant Tyson Breeders, Inc. (“Tyson”). Plaintiff James Eric Harrison seeks relief, including specific performance, injunctive relief, and actual and punitive damages, from Tyson, alleging that Tyson is responsible for damages he sustained when Tyson allegedly failed to abide by their Hatch Egg Production (HEP) Contract.

¶ 2. Tyson seeks review of the chancellor’s order, which (1) granted partial summary judgment to Harrison on Harrison’s breach of contract claim, and (2) transferred the remaining issue of damages to the Circuit Court of Covington County for a trial to determine damages. Tyson argues that the chancellor erred as a matter of law by failing to transfer Harrison’s action, in its entirety, to the circuit court. As such, Tyson asserts the chancellor’s order should be vacated and the entire matter transferred to the circuit court. In the alternative, Tyson claims that there are genuine issues of material fact as to Tyson’s alleged liability, and therefore the order of partial summary judgment against Tyson should be vacated. Finding no jurisdiction in the chancery court, we hold that chancellor erred. Harrison’s case is best heard in circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 2000, Tyson and Harrison entered into an agreement whereby Harrison would grow and care for flocks of breeder hens in return for Tyson furnishing the flocks and providing feed, litter, poultry medication and technical instruction for the commercial production of eggs. Tyson informed Harrison in December of 2001, that he needed to enter into a subsequent HEP contract. On February 4, 2002, Tyson completed and executed the subsequent contract for a term of one year, beginning December 31, 2001 and ending on December 31, 2002. Meanwhile, Harrison continued to repair and upgrade his equipment and facilities as required by Tyson. He also continued to grow and care for the flocks of breeder hens for Tyson until late February or early March, when Tyson personnel removed all chickens from his property without any written notice of termination as required under the contract. In addition to his lack of notice, Harrison was not allowed to participate in performance improvement procedures, which were also required by the terms of the contract before termination. Throughout the remainder of the contract term, Tyson refused to provide other chickens to Harrison.

¶4. On December 17, 2002, Harrison filed a Complaint, alleging that Tyson breached the HEP contract by removing the chickens from his premises and by refusing to furnish him with another flock. Tyson unsuccessfully removed the case to federal court. Upon remand, Tyson moved to transfer the case to the Circuit Court of Covington County based on the following grounds: (1) the chancery court lacked subject matter jurisdiction; (2) the remedies sought were legal, not equitable, in nature; and (3) transfer was required to protect defendant’s constitutional right to a jury trial. At the hearing on the Motion to Transfer on June 29, 2005, the chancellor took the issue of transfer under advisement, but ultimately found the chancery court had jurisdiction over the matter. Harrison subsequently filed a motion for partial summary judgment. On November 28, 2005, the chancery court entered an order which granted partial summary judgment in favor of Harrison for breach of contract and transferred the matter to the Circuit Court of Covington County for the purpose of determining damages. Tyson subsequently petitioned the court for interlocutory appeal, which was granted. See M.R.A.P. 5. On appeal, Tyson presents the following issues for review:

I. Whether the Chancery Court Erred as a Matter of Law in Failing to Transfer this Action for Damages, in its Entirety, to the Circuit Court.
II. Alternatively, Whether the Chancery Court’s Entry of Partial Summary Judgment on Liability (Breach of Contract) Fails as a Matter of Law.

STANDARD OF REVIEW

¶ 5. Jurisdiction is a question of law that is reviewed by this Court de novo. Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948, 950 (Miss.2000). The standard of review for a ruling on a motion to transfer from chancery court to circuit court is also de novo. Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1178 (Miss.2004). Further, de novo review of grants of summary judgment by a trial court applies equally to grants of partial summary judgment. Webb v. Braswell, 930 So.2d 387, 398 (Miss.2006).

ANALYSIS

¶ 6. Tyson, citing Crosby, alleges that despite inclusion of purported “equitable” claims, a complaint seeking actual and punitive damages and asserting claims for fraud, fraudulent inducement, breach of contract and negligence is clearly legal in nature and should be heard in circuit court to preserve the right of trial by jury. 870 So.2d at 1179-82. Tyson also claims that jurisdiction over a breach of contract action rests in circuit and not chancery court, and the remedy on interlocutory appeal is to order the transfer of the case from chancery to circuit court. Tyson further claims that since the HEP contract sought to be specifically enforced expired on December 31, 2002, there is no longer a contract upon which specific performance can be granted. Poole v. McCarty, 229 Miss. 170, 90 So.2d 190, 192-93 (1956).

¶ 7. Conversely, Harrison cites to Shaw v. Owen, 229 Miss. 126, 90 So.2d 179, 181 (1956), which states “where a suit is brought in the chancery court and the court takes jurisdiction on any one ground of equity, it will proceed in the one suit to a complete adjudication and settlement of every one of all the several disputed questions materially involved in the entire transaction.... ” Shaw has been cited by the Court in numerous opinions, emphasizing that once a chancery court exercises equity jurisdiction, it may proceed to completely adjudicate the suit and award all appropriate remedies, both legal and equitable, even where the other questions involved in the suit are purely legal. Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 193 (Miss.1995). See also Tillotson v. Anders, 551 So.2d 212, 213 (Miss.1989) (where it appears from the face of a well-pleaded complaint there is an independent basis for equity jurisdiction, chancery courts may hear and adjudge law claims).

¶ 8. Article 6 of the Mississippi Constitution of 1890 designates the circuit court as a court of general jurisdiction, and the chancery court as one of limited jurisdiction. Section 159 limits the jurisdiction of chancery courts to the following areas: (a) all matters in equity; (b) divorce and alimony; (c) matters testamentary and of administration; (d) minor’s business; (e) cases of idiocy, lunacy, and persons of unsound mind; and (f) all cases of which the said court had jurisdiction under the laws in force when the Constitution was put in operation. Miss. Const, art. 6, § 159. Section 162 states, “all causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court.” Miss. Const, art. 6, § 162.

¶ 9. This Court has held that breach of contract issues are best heard in circuit court. Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1089-90 (Miss.1999). In cases in which some doubt exists as to whether a complaint is legal or equitable in nature, the better practice is to try the case in circuit court. Id. Although the Court has previously allowed a chancery court to retain jurisdiction over cases involving questions of both law and equity, more recent cases hold that equitable claims are more appropriately brought before a circuit court when they are connected to a contractual relationship or other claims tied to questions of law. ERA Franchise Sys. v. Mathis, 981 So.2d 1278, 1282-83 (Miss.2006).

¶ 10. In Mathis, a former member of a real estate corporation alleged that member defendants wilfully diverted corporate assets to new entities in an attempt to convert the corporation’s assets, intentionally excluded plaintiff from the business and induced real estate agents to terminate their agent contracts with the corporation by becoming agents of the new entities, resulting in the loss of his equity investment in the corporation. Id. at 1279-80. Plaintiffs complaint contained numerous breach of contract allegations and requested relief in the form of a constructive trust, estoppel, specific performance, and actual and punitive damages. Id. at 1280. Similarly to the present case, the defendants in Mathis filed a motion to transfer the case to circuit court, which the chancellor denied, and instead bifurcated the action. Id. The chancellor stated that after ruling on “all derivative claim issues as raised by the pleadings and any other strictly chancery matters,” “all specific performance claims, if any,” and “all claims for rescission asserted by Mathis”, he would consider any remaining issues and transfer any issues he deemed to be legal to circuit court. Id. The Court held that because the claims involved questions of law and equity, requested punitive damages, and because having the claims adjudicated in chancery court would deprive defendants of the right to a jury trial, the case was better tried in circuit court. Id. at 1283-84. Finding that the chancellor erred in denying the defendants’ motion to transfer the case to circuit court, the Court reversed and remanded the case with instructions to transfer the case to circuit court. Id.

¶ 11. Additionally, the Court has held that “it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction”. Crosby, 870 So.2d at 1182. See also Copiah Med. Assocs. v. Miss. Baptist Health Sys., 898 So.2d 656, 661 (Miss.2005) (the circuit court is more adept to handle equity cases, rather than the chancery court to handle legal claims). In Copiah, Crosby and Mathis, we have confirmed the lack of jurisdiction in chancery court and the exclusive jurisdiction in circuit court in each of these breach of contract cases, and accordingly ordered the transfer of each case to circuit court.

¶ 12. We also stated, in Roberts v. Spence, that “ordinarily a court of equity will not attempt to enforce a contract by specific performance where the parties have an adequate remedy at law to recover damages growing out of a party’s failure to carry out a contract’s terms.” 209 So.2d 623, 626 (Miss.1968). This case does not involve an unique matter such as real estate where specific performance is a particularly appropriate remedy. Rather, the equitable remedy sought by Harrison in his complaint filed on December 17, 2002, involved the specific performance of a contract for services, which expired on December 31, 2002. The chancellor’s order which granted partial summary judgment on liability for breach of contract entitled Harrison to “relief either in equity by the enforcement by the Chancery Court of the contract or through damages ” (emphasis added). Thus, even the chancellor’s order demonstrates that specific performance is not the more appropriate remedy in this matter, as the order also acknowledges an adequate remedy at law to recover damages. Therefore, consistent with the rationale in Roberts, the proper remedy for Harrison’s action for breach of contract is at law to recover damages, which is best heard by the circuit court. Hardin, 742 So.2d at 1089-90.

¶ 13. Alternatively, Tyson argues that genuine issues of material fact exist concerning Harrison’s failure to perform under the agreement. As such, Tyson asserts that the chancery court erred in granting partial summary of judgment on liability in favor of Harrison. Having found that the chancery court lacked proper jurisdiction to hear Harrison’s breach of contract claims, Harrison was thus not entitled to judgment as a matter of law concerning those claims. Therefore, this issue concerning the underlying merits of the chancellor’s judgment is irrelevant.

CONCLUSION

¶ 14. Finding that Harrison’s claims include contractual questions of law and equity, request punitive damages and because having the claims adjudicated in chancery court would deprive Tyson of the right to a jury trial, we find the chancellor erred in failing to transfer the matter to circuit court. Because the chancery court did not have jurisdiction over Harrison’s claims, we also find that the order of partial summary judgment against Tyson on liability fails. We vacate the order of partial summary judgment against Tyson and remand with instructions to transfer the case to the Covington County Circuit Court.

¶ 15 VACATED AND REMANDED.

WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR. COBB, P.J., CONCURS IN RESULT ONLY. RANDOLPH, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Tyson enters HEP contracts in order to supply fertilized eggs that can be hatched and grown into marketable poultry. Tyson delivers hens and cockerels to producers who are then expected to provide care and maintenance for the chickens for a period of approximately forty weeks. During the forty-week period, the chickens are allowed to breed, and the eggs produced are collected by the producer, retrieved by Tyson, and transported to hatcheries. After the forty-week period, all of the flock remaining is caught and transported to Tyson facilities for further processing.


text:
    Lorenzo ROBINSON a/k/a Tymoochie v. STATE of Mississippi.
    No. 2005-KA-01676-SCT.
    Supreme Court of Mississippi.
    Oct. 19, 2006.

      Allan D. Shackelford, Clarksdale, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. This case comes to this Court on appeal from the Circuit Court of Coahoma County, by Lorenzo Robinson. Robinson seeks review of the trial court’s decision allowing testimony by witness Norman Starks concerning Robinson’s alleged gang connection and the admission of a prior inconsistent statement by witness Tiffany Marion, also concerning Robinson’s alleged connection to gang activity. Further, Robinson seeks review of the trial court’s denial of his motion for judgment not withstanding the verdict or in the alternative a new trial, asserting the verdict was against the overwhelming weight of the evidence. We hold that the circuit court did not abuse its discretion in denying Robinson’s motion for J.N.O.V. or a new trial.

FACTS AND PROCEDURAL HISTORY

112. This appeal arises from two separate shootings of the victim Andrew Hampton. Robinson was indicted for aggravated assault of Hampton on June 3, 2003 following the initial shooting of Hampton which occurred on October 2, 2002. This case was set to go to trial on July 28, 2003. However, on July 19, 2003, Hampton was shot and killed on Garfield Street in Clarksdale. On November 30, 2004, Robinson was indicted by a grand jury for aggravated assault and two counts of conspiracy to commit murder. Robinson was subsequently tried for aggravated assault and conspiracy to commit the murder of Hampton and witness Peppie Deon Wright.

¶ 3. At trial, Wright testified that he saw defendant Robinson shoot Hampton in the buttocks in the first shooting incident. It was stipulated for the record that a bullet was removed from Hampton’s buttocks during the autopsy. Witness Michael Ingram testified that he was a member of the “Mafia Insane Vice Lord Gang” (hereinafter referred to as “the Mafia gang”) along with Robinson, Kenyon Evans and George Johnson. Ingram testified that he witnessed a conversation in which Robinson told Evans he was going to pay Hampton $5,000 to avoid being tried for aggravated assault on July 18, 2003. Ingram testified that Evans said “I’ll take care of that,” to which Robinson responded “all right.” Ingram further testified that he agreed to ride with Evans and Johnson, after some protest, to the crime scene where Hampton was murdered in the second shooting. Ingram testified that he was behind a building at the crime scene when he heard about thirteen shots. When he saw Hampton lying on the street, he ran home without returning to the car with the other members. He further testified that Robinson called him shortly after the shooting and told him “don’t run your mouth.” Evans also admitted that he was a member of the Mafia gang along with Robinson and Ingram. Although he testified that Robinson had not been in the Mafia gang for approximately the past four years. Evans also testified that he shot and killed Hampton and plead guilty to Hampton’s murder and conspiracy to commit murder.

¶ 4. Sergeant Norman Starks, an investigator with the Clarksdale Police Department, testified about his investigation of the initial shooting (aggravated assault) of Hampton. He testified to interviewing Robinson, Evans and Johnson, as well as others associated with the incident. Based on these interviews and other evidence, he believed all men were members of the Mafia gang, which had been in existence in Clarksdale for approximately eight years. Starks testified that in addition to the information gained through interviewing these men and others in the local community who knew them, he had observed the similar dress and manner in which these men hung out together. He testified that the Mafia gang had specific tattoos, distinctive dress and hung out together in a certain area of town referred to as “Forty-Seven Beat”.

¶ 5. Witness Tiffany Marion, who was at the crime scene when Hampton was murdered, testified that Robinson contacted her after the murder and told her to tell investigators that he did not have anything to do with the shooting. At trial, Marion testified that she had no knowledge of whether Johnson, Evans and Robinson were in a gang. However, the State questioned her about a previous statement in which she said “the word on the street” was that these men were all members of the Mafia gang. She then testified, over defense’s objection, that she previously stated that these men were involved in gang activity. Defense counsel objected and requested a limiting instruction that the statement be considered for impeachment purposes only, which was denied.

¶ 6. The jury convicted Robinson of aggravated assault and conspiracy to murder Hampton. Finding Robinson had previously been convicted and sentenced to terms of one year or more in the custody of the Mississippi Department of Corrections (MDOC), the court sentenced him to two life sentences as a habitual offender pursuant to Miss.Code Ann. Section 99-19-83. Robinson’s motion for judgment not withstanding the verdict or a new trial was denied, from which he appeals, presenting the following issues for review:

I. Whether the Trial Court Committed Error in Allowing Improper Testimony Concerning Defendant’s Alleged Connection to Gang Activity by State’s Witness Norman Starks.
II. Whether the Trial Court Committed Error in Allowing a Prior Inconsistent Statement to Be Admitted Without a Limiting Instruction When Said Statement Was Also Improper Hearsay Testimony by State’s Witness Tiffany Marion.
III. Whether the Trial Court Erred by Failing to Sustain the Defendant’s Motion for a New Trial as the Jury’s Verdict Was Against the Overwhelming Weight of the Evidence.

ANALYSIS

¶ 7. The Court has held “a trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Turner v. State, 732 So.2d 937, 946 (Miss.1999). The standard of review in motions for a new trial is whether the circuit court abused its discretion in failing to grant the motion. Dudley v. State, 719 So.2d 180 (Miss.1998).

I.

¶8. The first issue Robinson asserts on appeal is that certain testimony regarding Robinson’s connection to gang activity was inadmissible. Robinson argues this testimony given by the State’s witness, Sergeant Sparks, constituted hearsay and did not meet Mississippi Rule of Evidence 602’s requirement that Sparks have “personal knowledge” of the matter. The State counters that Sergeant Sparks does indeed have personal knowledge of his testimony, in that he interviewed alleged members of the Mafia gang, as well as observed their distinctive dress, tattoos and behavior.

¶ 9. Under M.R.E. 602, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Miss. R. Evid. 602. Evidence to prove personal knowledge need not consist of the testimony of the witness himself. Hoops v. State, 681 So.2d 521, 531 (Miss.1996). As long as any evidence is introduced to sufficiently prove the witness’s personal knowledge, the witness may testify to that matter. Id. In Hoops, the Court found that “personal knowledge” could include evidence used as a basis for inferring gang affiliation. Id. at 532. There, a witness testified that at the time of the shooting he had known defendant Hoops for a over a month and knew that Hoops was a Blood. Id. at 531. The witness testified that he was familiar with some of the people who hung with the Bloods and the G’s and knew that the “colors” of the Bloods was red and that the “colors” of the G’s was black. Id. He testified that while at Hoops’s house, he saw Hoops with a red bandana and scarf, which were worn to show affiliation with a particular gang. Id. The Court found that his testimony was manifestly sufficient to indicate that the witness had some personal knowledge of Hoops’s involvement with the Bloods. Id. Sergeant Starks’s testimony, like the witness’s testimony in Hoops, sufficiently met the “personal knowledge” requirement of M.R.E. 602 as he testified to knowledge he received through personal interviews with the parties involved in the shooting incident and others in the local community, as well as knowledge gained through his personal observations during his many years in law enforcement. Therefore, the trial court did not abuse its discretion in allowing this testimony.

II.

¶ 10. Similarly, the second issue Robinson asserts on appeal is that he was entitled to a limiting instruction with regard to the testimony of the State’s witness Marion. After Marion testified she knew nothing of Robinson’s involvement with a local gang, the State asked Marion whether she had previously stated that she was familiar with Robinson’s gang connections. Robinson argues Marion’s answer constituted a prior inconsistent statement and could be used only for impeachment purposes; however, the trial judge denied a limiting instruction for this purpose. Robinson asserts that Marion’s testimony as to Robinson’s gang relations constituted hearsay and that the State improperly used this testimony as substantive evidence in its closing argument when counsel for the State asked the jury, “Are you going to allow somebody, Tymoochie [Robinson] and his, and his gang members to tell Clarksdale what to do?” Relying on Martindale v. Wilbanks, 744 So.2d 252, 255 (Miss.1999), Robinson asserts that the use of Marion’s prior inconsistent statement as substantive evidence in the State’s closing argument was reversible error. However, the State argues that Marion’s statements were not hearsay because she had knowledge of the gang activity as she was an eyewitness to the murder of which Robinson is charged with conspiring to commit. Further, the State asserts it did not use impeachment evidence as substantive evidence in its closing argument. Notwithstanding, the State argues its witnesses, who were purportedly gang members, did not deny membership in the gang, therefore any errors under this issue constitute harmless error.

¶ 11. In Whitehurst v. State, 540 So.2d 1319, 1324 (Miss.1989), the Court found that it was harmless error for the trial court to admit the results of blood tests on the deceased. The Court stated “assuming, without deciding, that this evidence was irrelevant, and therefore, inadmissible pursuant to Mississippi Rules of Evidence 402, it is clear that error, if any, by the trial judge in admitting this evidence did not affect a substantial right of Whitehurst. M.R.E. 103(a).” Id. Similarly, the admission of Marion’s previous statement did not affect a substantial right of Robinson to a fair trial as the record shows this statement was not the only evidence of his gang involvement. Evans and Ingram, who both admitted to being active members on the Mafia gang, testified to Robinson’s affiliation with the gang. Further, the prosecution did not mention Marion’s testimony in its closing argument, therefore there was no attempt by the prosecution to use impeachment evidence as substantive evidence during its closing as argued by Robinson. Therefore, even assuming this statement should have been admitted for impeachment purposes only, the trial court’s error in denying the limiting instruction was harmless.

III.

¶ 12. Finally, Robinson asserts on appeal that the trial court erred by failing to grant his motion for a new trial because the jury’s verdict was not supported by the weight of the evidence. The State argues the record presents credible and substantial eye witness testimony to support the jury’s verdict. Specifically, the State argues based on testimony from Wright, who testified he saw Robinson shoot the victim (aggravated assault), as well as Ingram, who testified he was present to hear Evans tell Robinson that he will “take care of that” (conspiracy to commit murder), constitutes sufficient evidence in support of the trial court’s denial of Robinson’s motion for a new trial.

¶ 13. In an appeal of a denied motion for judgment notwithstanding the verdict, the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The Court must accept as true all evidence consistent with Robinson’s guilt, together with all favorable inferences that may be reasonably drawn from the evidence, and disregard the evidence favorable to the defendant. Id., Whitehurst, 540 So.2d at 1327. If this evidence would support a verdict of guilty beyond reasonable doubt, the trial court’s denial of the motion must be affirmed. Id. Further, a motion for a new trial should not be granted except to prevent “an unconscionable injustice.” Jones v. State, 635 So.2d 884, 887 (Miss.1994).

¶ 14. The record shows that Wright testified to seeing Robinson shoot Hampton in the buttocks on October 2, 2002, in Clarksdale and identified him in court as the shooter. A bullet was removed from Hampton’s buttocks during the autopsy, which supports Wright’s eyewitness account. This account suffices as credible eyewitness evidence in support of Robinson’s aggravated assault conviction. Ingram testified that Robinson was a member of the Mafia gang with no objection from defense counsel. Ingram’s testimony described the details of a conversation on July 18, 2003, in which Robinson told Evans he was going to pay Hampton $5,000 to avoid being tried for the aggravated assault of Hampton, to which Evans responded “I’ll take care of that.” Ingram further testified that Robinson said “all right”, which according to him indicated approval of Evans’s suggested actions. Ingram also testified that he rode to the crime scene with Evans and Johnson, where he heard approximately thirteen shots fired. Ingram further testified that after Hampton’s murder, Robinson threatened him, “don’t run your mouth.” Marion testified as to seeing Evans shoot his weapon toward Hampton on July 19, 2003, which serves as credible eyewitness testimony to Hampton’s murder and corroborates Ingram’s testimony regarding the agreement between Evans and Robinson to “take care” of Robinson’s upcoming trial for the assault of Hampton. Together, this testimony supports Robinson’s conviction for conspiracy to murder Hampton.

¶ 15. As the Court stated in McClain, the evidence challenged by Robinson in this appeal must be accepted as trae with all reasonable inferences arising therefrom. Therefore, accepting as true the evidence favorable to the verdict, we are not convinced that the verdict is outweighed by the evidence or that the denial of Robinson’s motion for a new trial constitutes “an unconscionable injustice.” We find the trial court did not abuse its discretion in denying Robinson’s motion for judgment notwithstanding the verdict or a new trial.

CONCLUSION

¶ 16. Based on the foregoing reasons, the circuit court’s judgment is affirmed.

¶ 17. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE OF LIFE IMPRISONMENT SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION DURING THE TERM OF SAID SENTENCE. COUNT II: CONVICTION OF CONSPIRACY TO COMMIT MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE OF LIFE IMPRISONMENT SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION DURING THE TERM OF SAID SENTENCE. THE SENTENCE IMPOSED IN COUNT II SHALL RUN CONSECUTIVE TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED BY THE FEDERAL OR STATE GOVERNMENT.

WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J., NOT PARTICIPATING.


author: BARNES, J.,

text:
    BILLY E. BURNETT, INC., Appellant v. PONTOTOC COUNTY BOARD OF SUPERVISORS, Appellee.
    No. 2004-CA-02446-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2006.
    Rehearing Denied June 27, 2006.

      E. Stephen Williams, Robert L. Holla-day, Jackson, attorneys for appellant.
    Phillip L. Tutor, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. Billy E. Burnett, Inc. challenges the ruling of the Circuit Court of Pontotoc County affirming the Pontotoc County Board of Supervisors’ award of a construction contract to Hooker Construction, Inc. Finding no error, we affirm the ruling of the circuit court.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In early 2003, the Pontotoc County Board of Supervisors solicited and received four bids for a contract for the exterior repair and renovation of the Pon-totoc County courthouse. The low bidder for the contract, with a bid of $914,000, was Billy E. Burnett, Inc., a nonresident contractor domiciled in Tuscaloosa, Alabama. The second-lowest bid, at $936,000, was submitted by Hooker Construction, Inc., a resident contractor based in Thax-ton, Mississippi. In an order adopted by the board of supervisors at its February 28, 2003 meeting, the board awarded the contract to Hooker on the basis that it submitted the best, though not the lowest, bid.

¶ 3. The order recited a number of findings supporting the board’s decision. First, the board stated its belief that the two bids were “substantially equal,” and that under section 31-7-47 of the Mississippi Code (Rev.2000), Hooker should be given preference over Burnett, as Hooker was a resident contractor and Burnett a nonresident. The order also stated that the board had directed the project architect to contact references for both contractors, that responses from Burnett’s references were “mixed,” and that “the mixture of the responses evaluating Burnett’s work was mediocre.” Furthermore, the order stated that Hooker had previously been awarded public construction contracts in Pontotoc County, and that its reputation for construction work was excellent. The board further found that Hooker was likely to take “great pride” in its work because its owners and many of its workers live in Pontotoc County.

¶ 4. Aggrieved by the award to Hooker, Burnett appealed to the Circuit Court of Pontotoc County via the filing of a bill of exceptions pursuant to section § 11-51-75 of the Mississippi Code (Rev.2002). On October 8, 2004, the circuit court affirmed the board of supervisors’ decision. From this adverse decision, Burnett timely appealed to this Court. Finding no error below, we affirm.

I. WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE PONTOTOC COUNTY BOARD OF SUPERVISORS’ AWARD TO HOOKER CONSTRUCTION.

STANDARD OF REVIEW

¶ 5. When examining the actions of a county board of supervisors, this Court’s scope of review is limited. We are not at liberty to set aside the decision of a board of supervisors unless that decision is “clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without substantial evidentiary basis.” Stockstill v. Hales, 730 So.2d 539, 544-45(¶27) (Miss.1998); see also Canton Farm Equipment, Inc. v. Richardson, 501 So.2d 1098, 1104 n. 5 (Miss.1987) (“[JJudicial intervention is wholly inappropriate merely because the court, if it were considering the matter ab initio, would have accepted a different bid”). In other words, such a decision is not to be overturned if its validity is “fairly debatable.” Id.

ANALYSIS

¶ 6. Section 31 — 7—13(d)(i) of the Mississippi Code (Rev.2000) provides that a governing authority may award construction services to the “lowest and best bidder” (emphasis added). It is implicit in this language that a governing body cannot be compelled to accept a bid simply because it is the lowest, and that other factors must enter the analysis. Beyond the simple text of the statute, however, it is well-settled in this State that where the law allows a governing authority to determine the lowest and best bidder, it is permissible for factors other than price to be considered. Hemphill Const. Co. v. City of Laurel, 760 So.2d 720, 723(¶ 13) (Miss.2000); Parker Bros. v. Crawford, 219 Miss. 199, 209, 68 So.2d 281, 285 (Miss.1953). The Mississippi Supreme Court has recognized that public authorities may, in making a determination of whether a bid is the lowest and best, take into consideration factors such as the bidder’s honesty and integrity, the bidder’s skill and business judgment, the bidder’s experience and facilities for carrying out the contract, the bidder’s conduct under previous contracts, and the quality of work previously done by the bidder. Parker Bros., 219 Miss. at 209, 68 So.2d at 285.

¶ 7. In the present case, Burnett alleges that the Pontotoc County Board of Supervisors’ decision to accept the bid of Hooker Construction over the lower bid of Burnett, Inc., was arbitrary and capricious, and that therefore the circuit court erred in affirming that decision. Although it admits that the board of supervisors had some discretion in making a determination as to who was the lowest and best bidder, Burnett paradoxically asserts that because its bid was $22,000 below the next-lowest bid, its bid was by definition the lowest and best. We do not find this to be the case. As the circuit court noted, the board of supervisors made a reasoned decision to award the construction contract to Hooker rather than Burnett. The record shows that the board contacted Burnett’s references, that some references were “very negative,” and that overall, the responses indicated that Burnett’s work was mediocre. On the other hand, the board found that Hooker had been awarded construction contracts in Pontotoc County, and that Hooker’s work and reputation were known to be excellent. The circuit court recognized that the board was entitled to take these factors into consideration in making its decision as to which company had submitted the lowest and best bid. See id. Especially in light of the fact that there was a mere 2.35% difference between the bids, we cannot find that the board of supervisors acted arbitrarily and capriciously in awarding the contract to Hooker. Thus, we cannot find that the circuit court erred in affirming the board’s decision.

¶ 8. The primary thrust of Burnett’s argument, however, is that the board of supervisors awarded the contract to Hooker for the sole reason that Hooker was a resident contractor. In support of its argument, Burnett points to the following findings which appeared in the board’s order:

10) That the Board has reviewed Sections 3[l]-3-21 and 31-7-47, Mississippi Code of 1972, Annotated and Amended, as well as other statutory authority including Alabama’s Public Works bid law;
11) That Section 31-7-47 states “In the letting of public contracts, preference shall be given to resident contractors ....”;
12) That this construction project for renovating the Pontotoc County Courthouse is a public works project contemplated under the provisions of Section 31-7-47 and accordingly this Board should give preference to Hooker over Burnett because Hooker is a resident and Burnett is a non-resident.

(Emphasis added). Burnett claims that the board of supervisors misconstrued the quoted code sections as granting resident contractors a preference over nonresident contractors. Burnett also asserts that the circuit court erred in relying upon opinions from the Mississippi Attorney General’s Office that interpreted the preference statutes.

¶ 9. Section 31-7-47 of the Mississippi Code Annotated reads:

In the letting of public contracts, preference shall be given to resident contractors, and a nonresident bidder domiciled in a state, city, county, parish, province, nation or political subdivision having laws granting preference to local contractors shall be awarded Mississippi public contracts only on the same basis as the nonresident bidder’s state, city, county, parish, province, nation or political subdivision awards contracts to Mississippi contractors bidding under similar circumstances. Resident contractors actually domiciled in Mississippi, be they corporate, individuals or partnerships, are to be granted preference over nonresidents in awarding of contracts in the same manner and to the same extent as provided by the laws of the state, city, county, parish, province, nation or political subdivision of domicile of the nonresident.

¶ 10. Similarly, section 31-3-21(3) (Rev. 2000) reads, in pertinent part:

In the letting of public contracts preference shall be given to resident contractors, and a nonresident bidder domiciled in a state having laws granting preference to local contractors shall be awarded Mississippi public contracts only on the same basis as the nonresident bidder’s state awards contracts to Mississippi contractors bidding under similar circumstances; and resident contractors actually domiciled in Mississippi, be they corporate, individuals, or partnerships, are to be granted preference over nonresidents in awarding of contracts in the same manner and to the same extent as provided by the laws of the state of domicile of the nonresident.

¶ 11. There has been surprisingly little discussion of these statutes at the appellate level in this State. The Mississippi Supreme Court recognized in Refrige ration Sales Co. v. State ex rel. Segrest, 645 So.2d 1351, 1354 (Miss.1994), that, “It is not disputed that the legislative purpose of Section 31-7-47 is to give preference to contractors who are residents of the State of Mississippi.” However, the extent of the preference is not clear from the text of the statute, and has not been clarified via case law. In response, the Mississippi Attorney General’s office has issued a number of opinions interpreting the preference statutes. The most recent such opinion on this topic instructed that

In a competitive bid scenario, if the preference laws of the state of the nonresident contractor are the same as Mississippi’s and if the bids are in all other respects equal or substantially equal, then Mississippi law would grant preference to the Mississippi bidder. If the bids are not equal or substantially equal, the preference provisions in favor of Mississippi bidders are no longer applicable and the bid may be awarded to the nonresident bidder if it is determined to be the lowest and best bid. Preferences apply only when the public body is considering bids that are equal or substantially equal under the statutory standards which the public body must use to make its determination as to the best bid.

Ms. Ag. Op. Winfield (Jan. 29, 2004). In the present case, it is undisputed that the Alabama preference laws are the same as those in this State. Thus, the key question in the Attorney General’s analysis is whether the bids in question were “substantially equal.” If so, the resident bidder would be given a preference; if not, the preference is no longer applicable and the governmental body would be free to award the contract to the nonresident contractor if it found its bid to be the lowest and best. Employing this analysis, the Pontotoc County Board of Supervisors awarded the contract to Hooker on the basis that since the two bids were “substantially equal,” the Mississippi preference statutes dictated that Hooker be awarded the contract.

¶ 12. In its opinion affirming the award to Hooker, the circuit court adopted the Attorney General’s approach to this issue. The circuit court stated that, “Clearly, for the Board to grant a preference to Hooker, a Mississippi contractor, the Board would have to determine that the bids of Burnett and Hooker were ‘equal or substantially equal.’ ” The court went on to find that it was “fairly debatable” as to whether the two bids were substantially equal, and deferred to the board’s determination that the bids were in fact substantially equal. The implication of the circuit court’s findings is that Hooker was rightly favored under the Mississippi preference statutes.

¶ 13. Burnett claims that the circuit court erred in adopting the Attorney General’s analysis of the preference statutes, and rightly asserts that Attorney General opinions are not binding upon our courts. See Shelter Mut. Ins. Co. v. Dale, 914 So.2d 698, 703(¶20) (Miss.2005). However, we note that the circuit court’s ruling was not based solely upon its determination that Hooker was entitled to a preference pursuant to sections 31-7-47 and 31-3-21. As discussed earlier, the circuit court found an independent basis for the award to Hooker, namely, that the board rightly considered the relative experience and reputation of the two firms, and made the award to Hooker after taking these factors into consideration. We find that the Pontotoc County Board of Supervisors did not act arbitrarily and capriciously in awarding the construction contract to Hooker, as the board was free to consider the experience, skill, and reputation of the competing firms in determining which bid was the “lowest and best.” Therefore, whether the circuit court erred in its analysis of the preferences statutes is a question for another day.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF PONTOTOC COUNTY IS .AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . However, if a board accepts a bid that is not dollar-wise the lowest, section 31-7-13(d) requires the board to place in its minutes "detailed calculations” and a "narrative summary” showing that the accepted bid was determined to be the lowest and best bid.