author: RANDOLPH, Justice, WALLER, Chief Justice, DICKINSON, Presiding Justice,

text:
    CITY OF JACKSON, Mississippi v. Myrt Naylor RHALY, and Sons, Henry Crawford Rhaly, Jr., John Thomas Rhaly, William Dewitt Rhaly, Bill Alan Wilson, and Wife, Linda Gay Wilson, Mary Sue Creel, Hilda Louise Ferron and Amy Jo Baxter.
    No. 2009-CT-00350-SCT.
    Supreme Court of Mississippi.
    April 26, 2012.
    As Modified on Denial of Rehearing Sept. 6, 2012.

      Claire Barker Hawkins, Pieter John Teeuwissen, attorneys for appellant.
    William Joseph Kerley, attorney for ap-pellees.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court:

¶ 1. Property owners (collectively, “the Rhalys”) brought suit against the City of Jackson for flooding to their properties, allegedly caused by the City’s failure to maintain a ditch. The Circuit Court of Hinds County struck the City’s answer due to “gross indifference to its discovery obligations,” based upon its failure to produce the “Streets, Bridges, and Drainage Division of the Public Works Department Operations and Maintenance Policy Manual” (“Manual”), and entered a default judgment in favor of the Rhalys. The Mississippi Court of Appeals affirmed. See City of Jackson v. Rhaly, 95 So.3d 657, 2011 WL 1486624 (Miss.Ct.App. April 19, 2011). As the circuit court’s finding that the City exhibited “gross indifference to its discovery obligations” is reviewed for abuse of discretion, and the City’s failure to produce the Manual reflects a prime example of “gross indifference,” this Court affirms the circuit court and the Court of Appeals. See Amiker v. Drugs for Less, Inc., 796 So.2d 942, 948 (Miss.2000) (citing White v. White, 509 So.2d 205, 207 (Miss.1987)).

FACTS

¶ 2. The Rhalys owned property in Jackson, Mississippi, near Eubank’s Creek — an improved drainage ditch. The flooding incidents underlying the subject cases took place on July 30, 2002, and April 6, 2003. Complaints in the subsequently consolidated cases, predicated upon claims of negligence and gross and reckless negligence, were filed on December 27, 2002, and November 1, 2004, respectively. On January 23, 2002, a complaint had been filed against the City in the circuit court, before the same circuit judge, in the case styled City of Jackson v. Internal Engine Paris Group. See Internal Engine Paris, 903 So.2d at 62. On November 24, 2003, the circuit court entered its verdict and judgment in Internal Engine Parts, “awarding $369,480.32 in favor of Engine Parts.” Id. at 62. Approximately seven months later, on July 12, 2004, the City filed its “Responses to Plaintiffs’ First Request for Production of Documents and Things” and “Responses to Plaintiffs’ First Set of Interrogatories” in the present case, which included:

Request No. 2: Any standard operating procedure (SOPs) which govern the site of the subject incident.
Response No. 2: [NJone. Will supplement upon receipt of any information.
Interrogatory No. 20: Please describe any claims or lawsuits that have heretofore been brought against this Defendant by reason of an incident or injury at the same or similar location, or a similar type of incident at some other location for five years prior to the subject incident and at any time subsequent thereto.
Response No. 20: The City of Jackson is not aware of any lawsuits filed five years prior to the subject incident.

(Emphasis added.) On February 7, 2005, the City filed its “Supplementation of Responses to Plaintiffs’ First Request for Production of Documents and Things” and “Supplementation of Responses to Plaintiffs’ First Set of Interrogatories,” which included:

Request No. 2: Any standard operating procedure (SOPs) which govern the site of the subject incident.
Response No. 2: [NJone. Will supplement upon receipt of any information.
Supplementation to Response No. 2: There was no standard operating procedure which governed water quantity control in the City of Jackson at the time of the incident. Matters were handled by exterior or interior complaint with routine inspections made before and after rain events on problem areas. Beginning November 26, 2004, the City adapted from the Operations and Maintenance Manual prepared for water quality requirements of the EPA a Storm Water Drainage Maintenance Plan for water quantity purposes. A copy is produced.
Interrogatory No. 20: Please describe any claims or lawsuits that have heretofore been brought against this Defendant by reason of an incident or injury at the same or similar location, or a similar type of incident at some other location for five years prior to the subject incident and at any time subsequent thereto.
Response No. 20: The City of Jackson is not aware of any lawsuits filed five years prior to the subject incident.
Supplementation to Response No. 20: The City of Jackson is not aware of any suits before or after this incident that involves the damming of the waterway by dumpsters swept into the channel by floodwaters. The Plaintiffs have served a Notice of Claim upon these Defendants relating to the flash flood of April 6, 2003.

(Emphasis added.)

¶ 3. Despite the aforementioned requests, and the facts developed at trial in Internal Engine Parts, the City never produced or referenced the Manual and never supplemented its interrogatory responses to refer to Internal Engine Parts. The Rhalys only fortuitously discovered the Manual six days before trial, on March 31, 2008, when the paralegal for the Rhalys’ counsel found it as a pleading attachment while reviewing the record in Internal Engine Parts.

¶4. The stated purpose of the Manual was to:

provide the Streets, Bridges and Drainage Division of the Public Works Department of the City of Jackson with operation and maintenance policies for the management of the City’s storm water drainage system. This manual provides technical guidance for the structural control of storm water runoff.... The Manual will specify responsibilities and procedures for the inspection and maintenance of storm water systems that are within the City of Jackson’s jurisdiction. ... The Manual will designate which agency is responsible for the maintenance and inspection for the entire drainage system, and is intended to be used to assist in educating the Public Works staff members who are specifically responsible for prevention, treatment, and control of storm water runoff.

(Emphasis added.) The trial transcript from Internal Engine Parts, introduced as an exhibit by the Rhalys, reflects that the City’s Rule 30(b)(6) representative testified that the Manual “is what we abide by through our maintenance division[,]” and that it was in effect on August 9, 2001, nearly one year before the first incident in the present case (July 30, 2002). See Miss. R. Civ. P. 30(b)(6). Thus, the Rhalys procured this critical document, solely by their own effort, more than five years after the initial complaint was filed and only six days before trial.

¶ 5. On April 2, 2008, the Rhalys filed a “Combined Motion for Sanctions Against the Defendant City of Jackson.” The Rha-lys claimed in their motion that the City’s “false representations were made by outright misrepresentations of fact in sworn interrogatories; and/or deliberate concealment of material evidence.” The Rhalys sought “an Order striking the Answer of each Defendant, and entering Default Judgment in favor of the [Rhalys] on all their claims.”

¶ 6. On May 15, 2008, after receiving “extensiv[e]” argument “on the issue of sanctions[,]” the circuit court entered its seven-page “Findings of Fact and Conclusions of Law.” The circuit court stated that “[i]t is undisputed that this same Manual was used in and directly involved in another case involving the City of Jackson styled, [Internal Engine Parts], during much of the same time as the subject litigation.” According to the circuit court, this “significant document” was requested by the Rhalys; “was within the knowledge of the City, its legal department, and its Drainage Division” by virtue of the “analogous flooding incident” in Internal Engine Parts; and “should have been produced.” Regarding the interrogatories, the circuit court found that the Rhalys “asked the proper questions and the City did not give the proper responses.” As the result of the City’s breach of its discovery duties, the circuit court determined that the Rhalys were impaired in “develop[ing] and pursuing] claims of negligence by the City and wrongful acts by the City in the maintenance of the particular drainage creek involved in this litigation.” Because of the “large amount of time and expense” incurred by the Rha-lys, and the fact that the case was “on the eve of trial[,]” the circuit court found that the City’s “gross indifference to its discovery obligations” required a greater sanction than merely “giv[ing] the [Rhalys] an opportunity to reopen discovery and delay the trial.” (Emphasis added.) Based upon the “enormous and substantial prejudice” suffered by the Rhalys through “no fault” of their own, the circuit court concluded that the “proper sanction” for the City’s conduct was to strike its answer and enter judgment in favor of the Rhalys, pursuant to Mississippi Rule of Civil Procedure 37(e). See Miss. R. Civ. P. 37(e).

¶ 7. On January 6, 2009, the circuit court entered its “Order Denying Defendant City of Jackson’s Motion for Post Judgment Relief, or, in the Alternative, for Amended Findings of Fact and Conclusions of Law.” That order emphasized that the circuit court “has spent a considerable amount of time in considering the evidence presented at the hearing on [the Rhalys’] Motion for Sanctions[,]” and that, following such consideration, “the prior decision of this [c]ourt was and is warranted and within the sound discretion of this [cjourt .... ” (Emphasis added.)

¶ 8. On appeal, the Court of Appeals affirmed. See Rhaly, 95 So.3d at 664. Thereafter, this Court granted the City’s petition for writ of certiorari. See City of Jackson v. Rhaly, 73 So.3d 1168 (Miss. 2011).

ISSUE

¶ 9. This Court will consider:

Whether the sanction imposed by the circuit court constituted an abuse of discretion.

ANALYSIS

Rule 37(e) and Standard of Review

¶ 10. Mississippi Rule of Civil Procedure 37(e) provides that “the court may impose upon any party or counsel such sanctions as may be just, including the payment of reasonable expenses and attorneys’ fees, if any party or counsel ... (ii) ... abuses the discovery process in seeking, making or resisting discovery.” Miss. R. Civ. P. 37(e). This rule “generally authorizes the trial judge to issue sanctions appropriate to the transgression.” Amiker, 796 So.2d at 949 (citing Miss. R. Civ. P. 87(e)). Regarding such determinations:

[t]he decision to impose sanctions for discovery abuse is vested in the trial court’s discretion. The provisions for imposing sanctions are designed to give the court great latitude. The power to dismiss is inherent in any court of law or equity, being a means necessary to the orderly expedition of justice and the court’s control of its own docket. When this Court reviews a decision that is within the trial court’s discretion, it first asks if the court below applied the correct legal standard. If the trial court applied the right standard, then this Court considers whether the decision was one of several reasonable ones which could have been made. This Court will affirm a trial court’s decision unless there is a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.”

Amiker, 796 So.2d at 948 (internal citations omitted) (emphasis added). See also Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 689, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (“The question, of course, is not whether this Court, or whether the Court of Appeals, would as an original matter have dismissed the action; it is whether the District Court abused its discretion in so doing.”); J.C. Hunter v. Int’l Sys. & Controls Corp., 56 F.R.D. 617, 631 (W.D.Mo.1972) (“The selection of the proper sanction is in the sound discretion of the trial court.”).

Application

¶ 11. The City’s supplemental response expressly misstated that “[t]here was no standard operating procedure which governed water quantity control in the City of Jackson at the time of the incident.” The City acknowledged that its responses were misleading and/or nonre-sponsive, insofar as the Manual should have been, yet was not, produced. Furthermore, the City made misleading or deceptive responses regarding “claims or lawsuits” as to “similar ... incidents]” in the “five years prior to the subject incident .... ” In short, several of the City’s responses did “not comport with the duty of cooperation and disclosure imposed by the discovery provisions of’ our Rules. Airtex Corp., 536 F.2d at 155. See also Miss. R. Civ. P. 33(b)(1) (“Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to....”); Miss. R. Civ. P. 34(b) (a response to a request for production of documents and things “shall state, with respect to each item or category that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated.”). “Discovery is not to be treated as a game of hide and seek. It should be a forthright effort to expedite litigation....” Bell, 80 F.R.D. at 231. The City’s responses were both “evasive and incomplete[,]” acting to “impede discovery rather than to facilitate it.” Airtex Corp., 536 F.2d at 155. “Parties like witnesses are required to state the truth, the whole truth and nothing but the truth in answering written interrogatories.” Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1389 (Miss.1997) (quoting J.C. Hunter, 56 F.R.D. at 631). Furthermore, a “false answer” to an interrogatory or a false response to a request “is in some ways worse than no answer; it misleads and confuses the party.” Pierce, 688 So.2d at 1389 (quoting Smith v. Cessna Aircraft Co., 124 F.R.D. 103, 108 (D.Md.1989)). Here, the City’s denial of standard operating procedures governing “water quantity control ... at the time of the incident” directly contradicted the policies and procedures set forth in the Manual. Likewise, the City provided misleading or deceptive responses regarding “claims or lawsuits” as to “similar ... incident[s]” in the “five years prior to the subject incident....” Under such circumstances, this Court cannot conclude that the circuit court abused its discretion in finding a discovery violation based upon the City’s deceptive responses and failure to produce documents.

¶ 12. Having found a discovery violation, the circuit court then undertook an analysis regarding the appropriate sanction. The “Findings of Fact and Conclusions of Law” of the circuit court undeniably set forth the proper legal standard. See AmiJcer, 796 So.2d at 948 (“When this Court reviews a decision that is within the trial court’s discretion, it first asks if the court below applied the correct legal standard.”). According to the circuit court, that legal standard, established in Pierce, 688 So.2d at 1389, and reaffirmed in Scog-gins v. Ellzey Beverages, Inc., 743 So.2d 990 (Miss.1999), provides the “considerations a trial court should examine in evaluating the appropriateness of’ the sanction of dismissal. The circuit court stated the following factors:

(1) Whether the discovery violations were the result of willfulness or bad faith;
(2) Whether the deterrent value of Rule 37 may be achieved by lesser sanctions;
(3) Whether the wronged party has suffered prejudice as a result of the discovery violation; and
(4) Whether the discovery abuse is attributable solely to trial counsel instead of a blameless client.

Moreover, a review of the factors to be considered by the circuit court in striking the City’s answer and entering judgment in favor of the Rhalys, as discussed in ¶¶ 13-17 infra, provides no “definite and firm conviction that the court below committed a clear error of judgment....” Am-iker, 796 So.2d at 948 (emphasis added).

¶ 13. “A finding of willfulness may be based upon either a willful, intentional, and bad faith attempt to conceal evidence or a gross indifference to discovery obligations.” Pierce, 688 So.2d at 1390 (citing Medina v. Found. Reserve Ins. Co., 117 N.M. 163, 870 P.2d 125, 126 (1994)) (emphasis added). In this case, there was “substantial evidence in the record” to support the circuit court’s conclusion that the City exhibited “gross indifference to its discovery obligations.” Scoggins, 743 So.2d at 996. The Rhalys’ complaints were based upon claims of negligence and gross and reckless negligence. The existence, vel non, of “water quantity control” policies and procedures, as well as similar incidents in the past five years, was clearly relevant to the issues raised in the complaints. The circuit court considered the evidence presented and found that, despite knowledge of the policies and procedures by “the City ... and its Drainage Division[,]” separate and apart from its legal department, the City did not disclose the Manual’s existence to the Rhalys. Moreover, the City expressly denied the existence of any such document. Those responses were “in some ways worse than no answer[,]” because they mislead and confuse. Pierce, 688 So.2d at 1389 (quoting Smith, 124 F.R.D. at 108). Furthermore, despite Internal Engine Parts, the City denied the existence of “similar ... incident[s]” in the previous five years.

¶ 14. More than five years after the initial complaint was filed, and only six days before trial, the Rhalys fortuitously discovered the Manual on their own. The circuit court found that the City’s failure to disclose this “significant document” was at least “gross indifference to its discovery obligations.” Regarding interrogatories, the circuit court determined that the Rha-lys “asked the proper questions and the City did not give the proper responses.” Given the significance of the truth in relation to the Rhalys’ claims, and disclosure of the Manual in Internal Engine Parts, this Court cannot conclude that the learned circuit judge’s findings regarding this factor constituted an abuse of discretion.

¶ 15. As to the potential deterrent value of lesser sanctions, the United States Supreme Court has stated that:

here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the [trial] court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.

Nat’l Hockey League, 427 U.S. at 643, 96 S.Ct. 2778. The circuit court found that the nature of the offenses, the considerable time and expense already incurred by the Rhalys over the previous five years of litigation, the impositions on the court, and the discovery of the Manual “on the eve of trial[,]” collectively justified the sanction of striking the City’s answer. Under the facts presented, this Court cannot conclude that the circuit court’s findings regarding this factor constituted an abuse of discretion.

¶ 16. The circuit court also found “enormous and substantial prejudice” to the Rhalys. This finding was predicated upon the litany of pretrial activity conducted by the Rhalys, see supra note 5, without benefit of truthful responses to develop their claims. Because the Rhalys unearthed the discovery violations only six days before trial, the circuit judge found that reopening discovery would require them to incur “more expenses, time, effort, delaying the trial[,]” through no fault of their own. Under the facts presented, this Court cannot conclude that the circuit court’s findings regarding this factor constituted an abuse of discretion.

¶ 17. Finally, regarding fault, the circuit court found that the Manual “was within the knowledge of the City, its legal department, and its Drainage Division” based upon the “analogous flooding incident” in Internal Engine Parts, and “should have been produced.” As to the interrogatories, the circuit court determined that the Rhalys “asked the proper questions and the City did not give the proper responses.” Under the facts presented, this Court cannot conclude that the circuit court’s findings regarding this factor constituted an abuse of discretion.

CONCLUSION

¶ 18. “The question ... is not whether this Court ... would as an original matter have” imposed the same sanction. Nat’l Hockey League, 427 U.S. at 642, 96 S.Ct. 2778. It is only whether the sanction imposed constituted an abuse of discretion. See Amiker, 796 So.2d at 948. While “the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme cireumstances[,]” based upon the “gross indifference to discovery obligations” exhibited by the City in this case, this Court observes no error in the findings of the circuit court or in its application of the proper legal standard. Pierce, 688 So.2d at 1388. Thus, there is no abuse of discretion. Accordingly, we affirm both the Circuit Court of Hinds County and the Mississippi Court of Appeals.

¶ 19. AFFIRMED.

CARLSON, P.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. WALLER, C.J, DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J. KING, J, NOT PARTICIPATING.

WALLER, Chief Justice,

Dissenting:

¶ 20. I agree with Presiding Justice Dickinson that the conduct at issue in this case does not warrant striking the defendant’s pleading — the “death penalty” of discovery sanctions. Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1391 (Miss.1997). I write separately to note that, other than cases where a party violates a court order, this Court has previously upheld the use of striking pleadings as a discovery sanction only where the conduct at issue was knowingly false or misleading. Id. (plaintiff knowingly lied on several occasions during discovery); Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 997 (Miss.1999) (plaintiff knowingly provided false answers to interrogatories and during deposition); Allen v. Nat’l R.R. Passenger Corp., 934 So.2d 1006, 1012 (Miss.2006) (same). It is undisputed that the City’s failure to produce the manual was not knowing or intentional. As such, I would hold that the trial court abused its discretion by striking the City’s answer. Accordingly, I respectfully dissent.

DICKINSON, P.J., joins this Opinion.

DICKINSON, Presiding Justice,

dissenting:

¶ 21. It is possible for a litigant to commit conduct egregious enough to justify a trial court’s decision to strike their pleadings and deny them the opportunity to present a case — no matter how meritorious. But the alleged conduct in this case, in my judgment, does not come close to qualifying for such severe punishment.

¶ 22. Furthermore, denying the client the right to prosecute or defend a lawsuit — while doing nothing at all to the lawyer who allegedly committed the offense— must seem to some to be unwarranted protection of the legal profession, and I fail to see how that advances our goal of upholding the integrity of the judiciary.

¶ 28. In my view, courts should use great caution before sanctioning a party (in this case, the innocent taxpayers of the City of Jackson) who had no part in the alleged sanctionable conduct of the lawyers. Because the trial court — with this Court’s approval — did exactly that, I respectfully dissent.

WALLER, C.J., joins this Opinion.

      . That suit similarly "alleged acts of negligence and breach of contract ... for property damage sustained during a period of heavy rainfall and flooding!,]” on August 12, 2001. City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 62 (Miss.2005).

      . On March 31, 2005, this Court affirmed the verdict and judgment. See Internal Engine Parts, 903 So.2d at 67.

      . The City represented to this Court that neither attorney who represented the City on appeal was employed by the City at the time the discovery violations occurred.

      . In Internal Engine Parts, the City produced the Manual only one week prior to trial, which began on November 6, 2003.

      . At the hearing, the circuit judge referred to Internal Engine Parts as "the previous case to this case ... argued on appeal during the pendency of this case by the City.”

      . The circuit court docket reflects substantial pretrial activity including, inter alia, discovery motions, motions for summary judgment, multiple trial settings, and the issuance of subpoenas.

      .The focus of this Court’s analysis is Rule 37(e), because the circuit court’s ruling was based thereon. However, Rule 37(d) also is applicable. See Miss. R. Civ. P. 37(d). Under Rule 37(d), if a party fails "(2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of interrogatories, or (3) to serve a written response to a request for inspection.submitted under Rule 34, after proper service of the request,” the court is authorized to "make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (A), (B) and (C) of subsection (b)(2).... ” Id. (emphasis added). While the City did answer the interrogatories and respond to the requests, federal courts have held that the equivalent provision in Federal Rule of Civil Procedure 37(d) may still apply in such circumstances because "evasive or incomplete answers are tantamount to no answer at all....” Airtex Corp. v. Shelley Radiant Ceiling Co., 536 F.2d 145, 155 (7th Cir.1976). See also Bell v. Auto. Club of Michigan, 80 F.R.D. 228, 232 (E.D.Mich. 1978) (applying Rule 37(d) where "[t]he answers provided in defendants’ responses to plaintiffs’ first interrogatories ... were so misleading and deceptive as to constitute a failure to answer these interrogatories”). The City’s responses were clearly misleading.

      . These "two types of misconduct differ only in degree as to culpability, and they differ not at all in terms of the adverse effects ... on the due process rights of [the other party] and the integrity of the truth-seeking function of the trial court.” United Nuclear Corp. v. Gen. Atomic Co., 96 N.M. 155, 629 P.2d 231, 314 (1980) (citations omitted).

      . These are policies and procedures which the City’s Rule 30(b)(6) representative in Internal Engine Parts testified were "abidefd] by” in the maintenance division since at least August 2001.

      . This finding of the circuit court is supported by the City's "Supplementation of Responses” to requests for production of documents and interrogatories. While the "Supplementation of Responses” was signed by the Senior Deputy City Attorney, it provided that the following individuals "assisted] in answering”: Thelman Boyd, Deputy Director for the City’s Department of Public Works; Mary F. Robinson, Acting City Clerk; and Carl Frelix, Infrastructure Management Division. The "Supplementation of Responses” further referenced information requested from the Department of Public Works, the Department of Risk Management and Public Works, the City Clerk’s Office, and the Mayor’s Office, as well as the "review of the discovery and all internal records....” This collectively refutes the suggestion in Presiding Justice Dickinson’s dissenting opinion that the responsibility for nonproduction rests solely with counsel for the "innocent” City. (Dickinson Diss. Op. at ¶ 23).

        .See Miss. R. Civ. P. 1 ("These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.”). That rule is consistent with Mississippi Rule of Evidence 102, which provides that the rules are directed toward "the end that the truth may be ascertained and proceedings justly determined.” M.R.E. 102.

      . See Miss.Code Judicial Conduct, Canon 1.

      . The majority's reference to testimony from a city official in the Internal Engine Parts case is puzzling. There is no evidence in this case — testimony or otherwise — that anyone from the City knew anything about the actions or alleged omissions by the City’s attorneys during the discovery process.


source: Caselaw Access Project

author: DICKINSON, Presiding Justice, PIERCE, Justice, KING, Justice,

license: Public Domain

text:
    Stacey PICKERING, in his Capacity as Auditor for the State of Mississippi v. Jim HOOD, Attorney General, ex rel. State of Mississippi.
    No. 2010-CA-00881-SCT.
    Supreme Court of Mississippi.
    Aug. 2, 2012.

      Samuel E.L. Anderson, Arthur F. Jerni-gan, Jr., attorneys for appellant.
    Office of the Attorney General by Harold Edward Pizzetta, III, Geoffrey C. Morgan, Justin L. Matheny, Brent Haz-zard, James T. Southwick, Harry P. Sus-man, David A. Barrett, attorneys for ap-pellee.
   ON MOTION TO AMEND MANDATE TO REFLECT OPINION OF THE COURT

DICKINSON, Presiding Justice,

for the Court:

¶ 1. The Auditor’s unopposed Motion to Amend Mandate to Reflect Opinion of the Court is granted. The prior opinions are withdrawn and these opinions are substituted therefor.

¶ 2. A corporation settled a lawsuit by agreeing to pay the State of Mississippi $50 million, $10 million of which it disbursed directly to outside counsel retained by Attorney General Jim Hood to pursue the litigation. The chancery court held that the payment was proper. But because the law requires that outside counsel retained by the Attorney General to pursue litigation in “the state or federal courts” be paid from his contingent fund or from other funds the Legislature appropriates to his office, and because the Mississippi Constitution requires obligations and liabilities to the State to be paid “into the proper treasury,” we reverse.

BACKGROUND FACTS AND PROCEEDINGS

¶ 3. To pursue claims against Microsoft for alleged violations of the Mississippi antitrust and consumer-protection laws, Mississippi Attorney General Jim Hood signed a contingency-fee contract (“Retention Agreement”) with Hazzard Law, LLC, which, in turn, associated other law firms to assist with the litigation. Hazzard Law, LLC, and its associated counsel are referred to collectively herein as “Retained Counsel.” The chancery court dismissed the antitrust claims, but allowed the consumer-protection claims to proceed.

¶ 4. Microsoft and the Attorney General, acting on behalf of the State of Mississippi, signed a settlement agreement that required Microsoft to provide up to $60 million in vouchers for Mississippi residents, and to pay the State of Mississippi $50 million in cash. However, the settlement agreement provided that $10 million of the cash money was to be distributed to the trust account of one of the outside lawyers in Houston, Texas.

¶ 5. State Auditor Stacey Pickering wrote Hazzard, stating that payment of settlement funds directly to outside counsel violated Mississippi law. And because the same issue was pending in the Circuit Court of Hinds County in another case, Auditor Pickering reserved all objections to the settlement until after the circuit court — and, if appealed, the Mississippi Supreme Court — resolved the issue.

¶ 6. Hazzard responded to the Auditor’s letter by filing a petition in chancery court, seeking approval of the attorney-fee payment. Pickering filed — and the chancellor granted — a Motion to Intervene, based on Mississippi Code Section 7-7-211(g), which requires the State Auditor to investigate and recover any public funds improperly withheld, misappropriated, or illegally spent. The Auditor also filed a motion to have the $10 million held in trust disbursed to the State.

¶ 7. The chancellor ruled in favor of Hazzard and ordered the settlement funds distributed directly to Hazzard and other retained counsel. Pickering appealed to this Court, and the Attorney General cross-appealed, claiming the Auditor’s intervention was untimely.

ANALYSIS

¶ 8. Because the issues in this case so closely mirror those in Pickering v. Lang-ston, a case we also hand down today, much of our analysis will be the same. And as we did in that case, we wish to make clear in this case that our opinion should not be read as calling into question either Retained Counsel’s right to be paid or the validity of the Retention Agreement. Indeed, the Auditor has made no such challenge, nor has he argued that the Attorney General was prohibited, either from depositing the funds into his contingent fund and paying Retained Counsel, or from paying the attorney fees from funds appropriated to his office by the Legislature. We address today only the narrow question of whether Mississippi law allows public-settlement funds due to the State of Mississippi to be paid directly to outside counsel.

Section 7-5-7 requires the Attorney General to pay private attorneys he retains from his contingent fund or from other funds appropriated to his office by the Legislature.

¶ 9. By enacting Section 7-5-7, the Legislature limited to two, the sources from which the Attorney General may pay private attorneys he engages to pursue litigation on behalf of the State of Mississippi, in Mississippi courts:

The compensation of appointees and employees made hereunder shall be paid out of the attorney general’s contingent fund, or out of any other funds appropriated to the attorney general’s office.

¶ 10. The statute’s mandatory term “shall” is not a suggestion-it is a mandate. No one asserts that the $10 million came from “other funds appropriated to the attorney general’s office.” And we hold that the Attorney General’s contingent fund does not include Microsoft’s checking account (the source of the $10 million), nor does it include the private attorney’s trust account to which Microsoft transferred the funds.

¶ 11. Section 7-5-7’s restrictions were in place when the Attorney General and outside counsel signed the contract. They cannot now claim they are not subject to it.

¶ 12. The Attorney General advances several arguments in support of Microsoft’s direct payment of the $10 million to the private attorney’s bank account. We will address each of them.

A. The Mississippi Consumer Protection Act

¶ 13. The Attorney General argues that Microsoft’s direct payment of contingency fees and expenses was authorized by Section 75 — 24—19(l)(b) of the Mississippi Consumer Protection Act (“MCPA”), which allows the Attorney General to recover “investigative costs and a reasonable attorney’s fee.” But the statute says nothing about the method of payment, and the provisions of that statute come into play only “if the court finds from clear and convincing evidence, that a person knowingly and willfully used any unfair or deceptive trade practice, method or act prohibited by Section 75-24-5.”

¶ 14. This case was settled with no trial and no such finding. In fact, in her order approving the settlement and final judgment, the chancellor dismissed the case “on the merits, with prejudice in favor of Microsoft.” (Emphasis added.) And the settlement agreement, itself, provided:

No Admission. By entering into this Settlement Agreement, Microsoft does not admit any liability or wrongdoing or the truth of any of the claims or allegations in the Mississippi Action....
Plaintiff agrees not to represent, publicly or otherwise, that the settlement in any way embodies, reflects, implies or can be used to infer any culpability by Microsoft ....

(Emphasis added.)

¶ 15. And even if the MCPA did allow an award of attorney fees in this case, none was awarded. The settlement agreement specifically provided for Microsoft to pay $50 million to the State of Mississippi (although $10 million of that amount was to be distributed to a Texas law firm); and it further provided that “Microsoft played no part in negotiating the fees and expenses to be paid to plaintiffs counsel....”

¶ 16. While Section 75-24-19(l)(b) of the MCPA does allow the Attorney General to recover “investigative costs and a reasonable attorney’s fee,” the costs and fees awarded by the court are separate and apart from the primary claim. Based on the clear language of the statute, the chancellor’s order, and the settlement agreement, we find this argument has no merit.

B. The Attorney General’s Authority

¶ 17. The Attorney General next states that he has “authority to retain contingent fee lawyers, and honor his contracts with them.” In support, he provides two arguments, and we address them both.

1. The Attorney General’s common-law authority to enter into and hon- or contingency-fee agreements is subject to statutory law.

¶ 18. We agree with the Attorney General that he has common-law “authority to negotiate, and enter into contingency fee agreements with retained counsel for civil litigation on behalf of the State.” We said as much in Pursue Energy Corp. v. Mississippi Tax Commission, in which a former attorney general faced the question of how to pay outside counsel.

¶ 19. In Pursue Energy, then-Attorney General Mike Moore hired outside counsel to help the State Tax Commission assess and collect taxes from various entities, including Pursue Energy Corporation, which challenged the retention agreement, arguing that it created a conflict of interest because it provided for the outside counsel to collect tax revenue on a contingent basis.

¶ 20. Attorney General Moore — speaking on behalf of all parties to the contingent-fee contract — clarified by affidavit the terms of the retention agreement, stating that

it was understood by all that [the attorney] would not be paid out of any tax moneys recovered. Instead, it was contemplated that if recovery was had, the Attorney General would apply to the Legislature for an appropriation to pay the firm an amount to be measured by the terms of the retention agreement.”

¶ 21. In other words, the full amount recovered would be paid over to the State, and thé attorneys would be paid by separate funds appropriated by the Legislature. Nevertheless, Pursue Energy argued the retention agreement was invalid.

¶ 22. For several reasons, we rejected Pursue Energy’s argument, first stating that Section 7-5-7 “places no restrictions upon the type of fee the Attorney General can negotiate....” Next, we stated that the agreement did not create a conflict of interest, because there was “[n]o ... divergence of interest.” Finally — and more on point to the issue in this case — we stated:

Even more compelling is the freedom provided the Legislature in the instant case who could independently determine the fee payable to [the attorney] for the service, even to the extent that it could refuse to pay.

And in holding that the contingent-fee agreement was not illegal, we said:

Sections 7-5-5 and 7-5-7 ... governing the compensation of special counsel and investigators to the attorney general, permit payment on a fee, contract, or salary basis so lony as payment is from the Attorney General’s continyent fund or from other funds appropriated to the Attorney General’s office.

¶ 23. So, while we agree that the Attorney General does have authority to enter into contingency-fee agreements with outside counsel, those agreements — when made — are subject to Mississippi law and, in particular, Section 7-5-7.

¶ 24. Contracts with lawyers hold no special privilege. They are — as are all other contracts — subject to, and restricted by, applicable law. For instance, attorneys who enter into contingent-fee contracts in workers’ compensation cases are restricted by statute to an attorney fee of twenty-five percent, regardless of any contract provision to the contrary. And the statutory limitation does not render the contract void; it simply limits the amount the attorney legally may be paid.

2. Both Sections 7-5-5 and 7-5-7 restrict the sources from which the Attorney General may pay outside counsel.

¶ 25. The Attorney General next turns to Mississippi statutory law and makes four arguments. His first three arguments address the plain meaning and application of Sections 7-5-5 and 7-5-7, and his final argument addresses his contingent fund.

a. The Plain Meaning of Sections 7-5-5 and 7-5-7

¶ 26. Section 7-5-5. The Attorney General argues that Section 7-5-5 empowers him to retain special assistant attorneys general on a fee or contract basis, and that he is the sole judge of compensation for such assistants. And so long as his determination of compensation complies with Mississippi law, we agree.

¶ 27. Section 7-5-5 empowers the Attorney General to employ three assistants to “devote their time and attention primarily to defending and aiding in the defense in all courts of any suit, filed or threatened, against the State,” and “[w]hen circumstances permit, such assistants (the ones hired primarily to defend) may perform any of the attorney general’s powers and duties,” and

[t]o further prosecute and insure such purposes, the attorney general is ... authorized ... to employ such additional counsel as special assistant attorneys general ... on a fee or contract basis; and the attorney general shall be the sole judge of the compensation in such cases.

¶ 28. So Section 7-5-5 establishes the Attorney General’s authority to employ assistants who “devote their time and attention primarily to defending and aiding in the defense” of the State of Mississippi. But the employment of outside counsel for a single case — which occurred in this case — is covered by the next section, Section 7-5-7. And if we assigned to Section 7-5-5 the interpretation suggested by the Attorney General, Section 7-5-7 would be meaningless.

¶29. Section 7-5-7. This section addresses the Attorney General’s authority to employ attorneys “to assist the attorney general in the preparation for, prosecution, or defense of any litigation....” It provides:

The attorney general is hereby authorized and empowered to appoint and employ special counsel, on a fee or salary basis, to assist the attorney general in the preparation for, prosecution, or defense of any litigation in the state or federal courts or before any federal commission or agency in which the state is a party or has an interest. The attorney general may designate such special counsel as special assistant attorney general, and may pay such special counsel reasonable compensation to be agreed upon by the attorney general and such special counsel, in no event to exceed recognized bar rates for similar services....
The compensation of appointees and employees made hereunder shall be paid out of the attorney general’s contingent fund, or out of any other funds appropriated to the attorney general’s office.

(Emphasis added.) In Pursue Energy, this Court addressed this very issue by stating:

Sections 7-5-5 and 7-5-7 ... governing the compensation of special counsel and investigators to the attorney general, permit payment on a fee, contract, or salary basis so long as payment is from the Attorney General’s contingent fund or from other funds appropriated to the Attorney General’s office.

¶ 30. The Pursue Court’s statement could not have been more clear: the restriction on sources from which the Attorney General is authorized to pay special counsel—-whether employed under Section 7-5-5 or Section 7-5-7-applies, regardless of the fee arrangement.

b. The “Contingent Fund” contemplated by Mississippi Code Section 7-5-7 does not include Microsoft’s bank account or a private attorney’s trust account.

¶ 31. Next, the Attorney General argues that his “contingent fund” is not limited to funds appropriated by the Legislature. Without addressing what the Attorney General’s contingent fund does include, we are persuaded it includes neither Microsoft’s cheeking account nor a private lawyer’s trust account.

C. Deference to the Attorney General’s Interpretation

¶ 32. The Attorney General next argues that, even if Sections 7-5-5 and 7-5-7 “allow room for a different interpretation” than his, this Court should defer to him. As stated earlier, we do not find these sections to be ambiguous, so this argument has no merit.

D. The Auditor’s Right to Seize Microsoft’s Payment to Retained Counsel

¶ 33. The Attorney General next advances several arguments in support of his assertion that the Mississippi Auditor should not be allowed to seize the Microsoft payment of attorney fees.

Public Funds

¶ 34. First, he argues that the $10 million was not public funds. But the settlement agreement clearly sets forth that, by sending the $10 million to the attorneys, Microsoft was making a payment to the State of Mississippi. The only distinction between the $10 million and the remaining $40 million was where the money was sent. Money paid to the State of Mississippi in settlement of a lawsuit is public money. This argument has no merit.

Attorney’s Lien

¶35. The next argument is that the attorney fee is subject to an attorney’s lien. Citing several cases, the Attorney General argues that attorneys have a paramount lien on funds they hold for the payment of attorney fees. In Collins v. Schneider, this Court stated that “an attorney has a lien on the funds of his client for the services rendered in the proceeding by which the money was collected.” But a lien is of no value, except to secure payment to which the attorney is lawfully entitled. As stated earlier, for example, an attorney prosecuting a workers’ compensation case certainly would have no lien on funds that exceeded the twenty-five percent allowed by Mississippi statute for attorney fees. In this case, no payment is due outside counsel until the parties comply with Mississippi law-and, specifically, Section 7-5-7.

¶ 36. The common-law concept of attorney’s liens is subject to modification by the Legislature. And our Legislature has carved out a special payment requirement for private lawyers who work for the Attorney General; they may be paid only from the Attorney General’s contingent fund, or from funds appropriated by the Legislature. The statute’s mandatory language includes no other options for payment by way of an attorney’s lien. This argument has no merit.

Waiver

¶37. The Attorney General argues that the Auditor waived the State’s claim by his seven-month delay in intervening in the trial-court proceedings. In addressing a similar issue in a case in which the Secretary of Health and Human Services sought recovery of federal funds improperly paid to a health-care provider who had been informed that its payments were proper, the United States Supreme Court stated:

When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant.

The Court went on to state that “[t]he question is whether the Government has entirely forfeited its right to the money,” and that

Men must turn square corners when they deal with the Government.... This observation has its greatest force when a private party seeks to spend the Government’s money. Protection of the public first requires that those who seek public funds act with scrupulous regard for the requirements of the law.

¶ 38. The Attorney General cites cases not applicable to the state government. In this case, the Auditor protested the attorney-fee arrangement by sending a letter to one of the attorneys employed by the Attorney General. In that letter, the Auditor stated:

It is the formal position of the Office of the State Auditor that the diversion of $10 million from the State’s settlement proceeds to outside counsel without pri- or legislative approval is a violation of Miss.Code. Ann. § 7-5-7 and Mississippi Supreme Court precedent.

This auditor sent this letter seven days following the chancery court order approving the settlement. This eliminates any argument that the Auditor “entirely forfeited” the State’s claim. This issue has no merit.

The Auditor’s Remedy

¶ 39. The Attorney General next argues that the Auditor has no remedy because “the relief sought is unsupported by general Mississippi contract law and would violate the constitutional prohibition on impairment of contracts.”

1. No void contract provisions

¶ 40. The Attorney General argues that — because no contract provision is illegal or void — the contract must be upheld. The contract, itself, establishes that Microsoft paid $50 million to the State of Mississippi. The fact that $10 million of the State’s money was (according to the settlement agreement) “distributed” to the attorneys rather than the State does not change the material provisions of the agreement. In fact, the Attorney General and Microsoft specifically agreed in the settlement agreement that “Microsoft played no part in negotiating the fees and expenses to be paid to plaintiffs counsel and takes no position as to whether those fees and expenses are reasonable or appropriate.” This argument has no merit.

2. Constitutional and contract law

¶ 41. The Attorney General’s final argument is that

neither the Auditor nor the Legislature are authorized to breach the contingency fee contract. To the extent the Auditor intends that retained counsel be paid less than what was contracted after “running it by” the Legislature and a Governor’s veto, that would trample on retained counsel’s constitutional property rights.

¶ 42. We fail to see how “retained counsel’s constitutional property rights” are at issue. The settlement agreement does not establish that retained counsel are entitled to anything. As stated above, the settlement agreement specifically provides that “Microsoft played no part in negotiating the fees and expenses to be paid to plaintiffs counsel and takes no position as to whether those fees and expenses are reasonable or appropriate.”

¶ 43. The settlement agreement says nothing about the purpose of the $10 million — only where it was to be sent. The Attorney General agreed in the settlement agreement that the $10 million was being paid to “the State of Mississippi.” The fact that $10 million of the State’s money was “distributed” to a particular bank account in Houston, Texas, does not create or vest “constitutional property rights” in anyone. This argument is without merit.

¶ 44. The remainder of the Attorney General’s brief is dedicated to his cross-claim, arguing that the Auditor waived the State’s claim. As stated above, this argument has no merit.

Section 100 of the Mississippi Constitution

¶ 45. Even if the Legislature had not carved out the statutory exception to the common-law attorney’s lien, Section 100 of the Mississippi Constitution does not permit the Legislature to forgive, or even diminish, liquidated obligations to the State; nor does it permit Microsoft — or any other defendant — to satisfy obligations owed to the State by remitting settlement payments to private lawyers. Section 100 states:

No obligation or liability of any ... corporation held or owned by this state ... shall ever be remitted, released or postponed, or in any way diminished by the Legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; but this shall not be construed to prevent the Legislature from providing by general law for the compromise of doubtful claims.

¶ 46. The Legislature constitutionally may permit the Attorney General to compromise doubtful claims. But once the claim is settled, and the amount due is determined and agreed through compromise, the claim and debt become liquidated, and full payment of the amount due must be made into the proper State treasury. Section 100 clearly provides that, in order to extinguish the debt, payment of the amount due must be made into the proper treasury. The issue here is not whether the debt was diminished, but rather whether the amount due was paid into the proper state treasury.

E. The Attorney General’s Cross-Appeal

¶ 47. Our original opinion erroneously reflected that we reversed and remanded the chancellor’s decision to allow the Auditor to intervene. The Auditor filed a motion asking us to correct the error, and the Attorney General did not respond. We affirm the chancellor’s order allowing the Auditor to intervene.

CONCLUSION

¶ 48. The settlement agreement provided that the $10 million at issue in this case was to be paid “to the State of Mississippi.” That is where it must be paid — and distributed. The plain language of Section 7-5-7 mandates that outside counsel retained by the Attorney General be paid only from the Attorney General’s “contingent fund,” or from funds appropriated to the Attorney General by the Legislature. This Court so held in Pursue Energy. And our Constitution required the $10 million in State funds to be paid into a proper treasury. Because that was not done here, and because the parties did not comply with Section 7-5-7, we reverse the chancellor and remand this matter for further action consistent with this opinion. Since the cross-appeal is without merit, we affirm the trial court’s order which granted the Auditor’s Motion to Intervene.

¶ 49. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. PIERCE, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., RANDOLPH AND LAMAR, JJ. KING, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.

PIERCE, Justice,

specially concurring:

¶ 50. For the reasons stated in my separate opinion in Pickering v. Langston, 2010-CA-00362-SCT, I specially concur in this companion case.

DICKINSON, P.J., RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION.

KING, Justice,

concurring in part and dissenting in part:

¶ 51. I join the majority in holding that the funds in question are state funds. However, for the reasons stated in my separate opinion in Pickering v. Langston, 2010-CA-00362-SCT, a companion case, which is also being released today, I dissent from that portion of the majority opinion holding that the law relating to an attorney’s fee lien was altered by Mississippi Code Section 7-5-7 (Rev.2002).

¶ 52. Additionally, I would make clear that the Legislature is not unilaterally empowered to alter the compensation established by a valid contract. Beyond dispute, if there exists a valid contract, the Legislature may not refuse payment on the contract without possibly subjecting the State to legal action.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . Miss.Code Ann. § 7-5-7 (Rev.2002).

      . Miss. Const. art. 4, § 100 (1890).

        .Pickering v. The Langston Law Firm, No. 251-07-1258CIV.

      . Miss.Code Ann. § 7-5-7 (Rev.2002) (emphasis added).

      . Franklin v. Franklin, 858 So.2d 110, 115 (Miss.2003).

      . Miss.Code Ann. § 75 — 24—19(l)(b) (Rev. 2009).

      . Id.

      . We note here the obvious, that is, that any such contingency-fee contract would be — as are all contracts governed by Mississippi law — subject to Mississippi constitutional and statutory provisions and limitations.

      . Pursue Energy Corp. v. Miss. State Tax Comm’n, 816 So.2d 385 (Miss.2002).

      . Id. at 386-87.

      . Id. at 387.

      . Id. (emphasis added).

      . Id. at 391.

      . Id. at 392.

      . Id. at 390 (emphasis added).

      . Miss.Code Ann. § 7-5-5 (emphasis added).

      . Miss.Code Ann. § 7-5-7.

        .Pursue Energy, 816 So.2d at 390 (emphasis added).

      . Collins v. Schneider, 187 Miss. 1, 192 So. 20,22 (1939).

      . See Miss.Code Ann. § 71-3-63(3) (Rev. 2011).

      .Miss.Code Ann. § 7-5-7.

      . Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984).

      . Id., 104 S.Ct. at 2225-26; see also Pace v. State ex. rel. Rice, 191 Miss. 780, 4 So.2d 270, 277 (1940) ("[T]he state cannot abdicate its duty as trustee of property in which the whole people are interested, any more than it can surrender its police powers in the administration of government and in the preservation of peace and order.”).

        . Setinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 964 (Miss.1999); Eastline Corp. v. Marion Apartments, Ltd., 524 So.2d 582, 584 (Miss.1988).

      . Miss. Const. art. 4, § 100.

      . Pursue Energy, 816 So.2d at 390.


author: KITCHENS, Justice,

text:
    Allen ROGERS, Jr. a/k/a Allen Rogers a/k/a Allen Lynn Rogers, Jr. v. STATE of Mississippi.
    No. 2010-KA-Q1191-SCT.
    Supreme Court of Mississippi.
    Aug. 16, 2012.

      Edmund J. Phillips, Jr., Newton, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Scott Stuart, attorneys for appellee.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Alen Rogers, Jr., was convicted by a jury of two counts of child sex abuse and was sentenced to a total of thirty-three years’ imprisonment. In Count One, Rogers was convicted of sexual battery against eight-year-old Benjamin Hicks. In Count Two, Rogers was convicted of fondling William Hicks, Benjamin’s eleven-year-old brother. Rogers has appealed, arguing that the trial court erred by overruling his hearsay objection to statements made by Benjamin to a forensic psychologist. He also argues that the State failed to prove that Count Two occurred in Scott County, as alleged in the indictment. Finding error on both counts, we reverse Rogers’s convictions and sentences and remand the case for a new trial.

Facts

¶ 2. On August 15, 2009, Benjamin and William were eating dinner with their mother, Christy Pope, and their stepfather, Michael Pope, when, according to Christy, William “made a comment about Benjamin.” Christy did not testify about the details of the conversation, other than “it didn’t sound good,” and that the comment was “sexual in nature.” Christy testified that, after she and Michael had questioned the boys further, they took them to the Scott County Sheriffs Department, where the family was interviewed by Sergeant Scott Lingle.

¶ 3. Ater interviewing the family, Lingle referred the ease to Investigator Willie Anderson, who conducted his own interview with the family on Monday, August 17, 2009. On Wednesday, August 19, 2009, the investigating officers referred the lam-ily to the Wesley House, a Child Advocacy Center (CAC) in Meridian, Mississippi, where the children were interviewed, separately, by psychologist Olga Kahle.

¶ 4. Kahle testified at trial about the substance of the boys’ interviews. During Benjamin’s interview, Benjamin told Kahle that Rogers had both anal and oral sex with him at an apartment in Sebastopol, Mississippi. According to Kahle, Benjamin said that Rogers “put his mouth on Benjamin’s penis,” and that Rogers “put his wiener inside Benjamin’s butt.” Benjamin told Kahle that this abuse occurred in the bathroom.

¶ 5. Benjamin also told Kahle about an incident in Rogers’s bedroom involving Rogers and a man named James. Before Kahle could relate the details of this incident, Rogers’s trial attorney made an objection, and the prosecutor told Kahle that she could “dispense with” the remainder of Benjamin’s interview. Through Christy’s trial testimony, the jury had learned that James was Rogers’s brother, and that James also was charged with some unspecified sex crime involving the boys.

¶ 6. During William’s interview, William told Kahle that he had witnessed oral sex between Rogers and Benjamin through a hole in the apartment’s bathroom door. William also told Kahle that he had witnessed this abuse once, and that it had happened two years before the interview. William did not tell Kahle that he, William, had been sexually abused.

¶ 7. On August 25, 2009, six days after Kahle’s interview with the boys, Rogers gave two statements to Lingle and Anderson at the Scott County Sheriffs Department. The first statement was written by Rogers in very rudimentary handwriting and contained numerous spelling and grammatical errors. Anderson’s reading of the statement at trial was transcribed as follows:

I, Allen Rogers, Jr., sexually abused Benjamin and William Hicks once. I was drinking. Had a lot too much to start playing with the boys and slipped their pants down and put my penis around their hole. I never went and got Benjamin to put my penis in his mouth. Not William.

A copy of the statement, as handwritten by Rogers, with the alleged victims’ names redacted, is attached to this opinion as Appendix A. Because this first statement was “hard to understand,” Lingle typed a second statement for Rogers’s signature about an hour after Rogers had completed and signed the first. This second statement contained significantly more detail, including an admission that Rogers had engaged in oral sex with Benjamin:

I have asked Sgt. Lingle to write this statement for me. I have not been forced, promised, coerced anything. I am giving this statement on my own free will.
We were living in the apartment above the Napa store in Sebastopol. The people living in the apartment at the time were, Me, Allen Rogers, Jr., Amanda Rogers, Adam Rogers, Christy Hicks, Michael Pope, Benjamin Hicks, and William Hicks. Michael was gone but everyone else was there. This happened in the room that Benjamin and William played in. It was at night and I had been drinking beer and was drunk. I was playing around with Benjamin. I was picking him up by his legs and his pants came down. I was playing around and put my penis toward his hole, it didn’t go in. I put my penis in Benjamin’s mouth. William was asleep in the same room but he woke up. Benjamin went and layed down with his mother and I started playing around with William. He was wearing underwear. I told him what I was doing and he said he wanted to try it. I put my penis near his hole but did not go in. I rubbed my penis on his crack. William said stop and I did. William went to his mother’s room. I realized what I was doing. I sat in the room and cried. I went to sleep in that room and my wife woke me up later to go to bed. That night was the only time I ever done anything like this. After that I would not let myself be left alone with any kids.

Both statements were received in evidence through Anderson, over defense counsel’s objection.

¶ 8. On April 1, 2010, Rogers was indicted for two counts of child sex abuse. Count One charged Rogers with sexual battery against Benjamin, specifically, “causing [Benjamin] to engage in fellatio on [the defendant].” Miss.Code Ann. § 97-3-95(l)(d) (Rev.2006). Count Two charged Rogers with fondling William. Miss.Code Ann. § 97-5-23(1) (Rev.2006). The indictment alleged that both crimes occurred in July 2009, in Scott County, Mississippi.

¶ 9. Rogers was tried by jury on June 9, 2010. In addition to Rogers’s two statements and Kahle’s testimony, the State’s main evidence included testimony from William, who was twelve years old at the time of trial. William testified that he had seen Rogers “sticking his private part in Benjamin’s butt,” but he repeatedly denied witnessing any oral sex. According to William, the abuse occurred in the bathroom of an apartment in Sebastopol, Mississippi. William testified that he could see Rogers and Benjamin in the bathroom because the bathroom door was slightly ajar. William also said that the incident occurred during daylight hours, but he could not recall on what date.

¶ 10. When asked whether he had ever been abused by the defendant, William testified that Rogers “stuck his private part in my butt” while the two were in a chicken house. According to William, the chicken house was in Lena, a town William believed to be in Scott County. William could not recall when this abuse had occurred. When asked why he did not tell Kahle about his abuse during the CAC interview, William responded that he was “nervous,” because Kahle’s interview “was the first time that I got asked questions like that.”

¶ 11. Rogers’s wife and his mother testified in his defense. Both women testified that the boys were not living in the Sebas-topol apartment during July 2009. This was consistent with Christy’s testimony that they had lived in the apartment from November 2008 until February 2009. Rogers’s mother and wife also testified that Rogers had received special education when he was in school and that he was semiliterate. According to his mother, Rogers was sexually abused when he was in preschool. She also testified that he was “easily open for suggestion,” and that “you tell him something or ask him something over and over, he will eventually just say whatever you want to hear so you will leave him alone.” Rogers elected not to testify in his defense.

¶ 12. The trial was completed in less than a day, and the jury found Rogers guilty on both counts: Count One for sexual battery of Benjamin and Count Two for fondling William. The trial judge sentenced Rogers to thirty years’ imprisonment on Count One and three years’ imprisonment on Count Two, with the sentences to run consecutively. Rogers appealed both convictions and challenges each on separate grounds.

Count One: Sexual Battery

¶ 13. Rogers argues that his conviction of Count One (sexual battery against Benjamin) must be reversed because the trial judge allowed Kahle, the psychologist, to testify about the substance of Benjamin’s interview without first determining whether Benjamin’s statements to Kahle were reliable. As an evidentiary matter, we review the trial judge’s ruling for an abuse of discretion and will reverse if the admission of evidence resulted in prejudice to the accused. Price v. State, 898 So.2d 641, 653 (Miss.2005) (citing White v. State, 742 So.2d 1126, 1134 (Miss. 1999)). Of course, “the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence.” Id. (quoting White, 742 So.2d at 1134).

¶ 14. Rogers relies on Rule 803(25) of the Mississippi Rules of Evidence. Also known as the “tender years exception” to hearsay, Rule 803(25) provides:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

The comment to Rule 803(25) gives a non-exhaustive list of twelve factors that the trial judge should consider when determining whether there are sufficient indicia of reliability. M.R.E. 803(25) cmt. (citing Smith v. State, 925 So.2d 825, 837 (Miss.2006); Hennington v. State, 702 So.2d 403, 415 (Miss.1997)). “The unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Williams v. State, 35 So.3d 480, 489 (Miss.2010) (quoting Bell v. State, 797 So.2d 945, 948 (Miss.2001)). This Court has held, “[a] finding that there is a substantial indicia of reliability should be made on the record.” Young v. State, 679 So.2d 198, 203 (Miss.1996) (emphasis added) (quoting M.R.E. 803(25) cmt.).

¶ 15. Just after trial had begun, the trial judge halted testimony and held a competency hearing for William and Benjamin in chambers. The trial judge found that William was competent to testify, but that Benjamin was “shy,” “intimidated,” and did not seem to understand the proceedings. The judge ruled that Benjamin could not testify, reasoning:

[Benjamin’s] testimony is governed by the Rule 802, the hearsay rule, and the exception to the hearsay rule is the tender years doctrine exception, that would be Rule 25.... I am not convinced he understands this proceeding and can comply with the tender years exception so I am going to deny his testimony.... What that means is he is the only one who can testify to the charge.

The prosecutor then asked whether Benjamin’s mother could testify about “the fact that a report had been made.” The judge responded, “[w]ell, reading this exception, it provides the statement of a child may be admitted if it is corroborated by evidence of the act itself, but to answer your question, it depends on ... what develops.”

¶ 16. The trial resumed with the State’s direct examination of William, during which William repeatedly denied witnessing any oral sex between Rogers and Benjamin. The State then halted its examination of William, and, outside the jury’s presence, asked that the trial judge reconsider his previous ruling that Benjamin was incompetent to testify. According to the prosecutor, William’s trial testimony was inconsistent with his and his brother’s CAC interviews and with Rogers’s confession regarding Count One. Therefore, the prosecutor argued, Rogers’s confession as to Count One would be inadmissible without Benjamin’s testimony, and that the State would be unable to sustain its burden of proof.

¶ 17. Although the trial judge had determined that Benjamin was incompetent to testify, he allowed the State to call Benjamin as a witness before the jury. The State attempted to establish Benjamin’s competency; but when he became unresponsive, the prosecutor ceased his questioning and “yielded to the Court’s previous determination.” Benjamin never testified about the abuse or his interview at the CAC, but he did testify that he did not like Rogers “because of what happened.”

¶ 18. After failing to elicit any testimony from the children that Rogers had caused Benjamin to engage in fellatio, as alleged in Count One, the State called Kahle to the witness stand. Until that point, there had been no indication on the record about the substance of Kahle’s testimony. Kahle gave a brief summary of her qualifications and testified that Benjamin was referred to the Wesley House by the Scott County Sheriffs Department. After a brief summary of the procedure she had used to interview children, the following exchange occurred:

Prosecutor: Now, what specifically, what specific acts of abuse did Benjamin relate to you during the course of your interview?
Kahle: He disclosed that [Rogers], a grownup cousin, had — well, I can say it in general, in my words, that cousin had anal and oral sex with him, but, of course, he didn’t use those words. I can describe what he said in his own words.
Prosecutor: All right. In his words, what was said?
Defense Counsel: Your Honor. I object. Hearsay.
Court: Overruled.
Prosecutor: You can answer.

Kahle then testified about Benjamin’s statements to her, which included a statement that Rogers had “put his mouth on Benjamin’s penis.” The State then concluded its case by introducing Rogers’s confessions, which were received into evidence.

¶ 19. There is no question that Kahle’s testimony purported to recount a “statement made by a child of tender years describing any act of sexual contact performed with or on the child by another,” which should have been excluded absent a judicial finding that “the time, content, and circumstances [of the interview] provide[d] substantial indicia of reliability.” M.R.E. 803(25). On appeal, the State concedes that there was no finding of reliability and that there was no “hearing conducted outside the presence of the jury” as required under Rule 803(25). The State’s only argument is that the admission of Kahle’s testimony is “harmless at worst,” citing Rogers’s confession as overwhelming evidence of his guilt. See Brown v. State, 995 So.2d 698, 704 (Miss.2008) (noting that error may be harmless if there is “overwhelming evidence of guilt”) (quoting Thomas v. State, 711 So.2d 867, 872 (Miss. 1998)).

¶ 20. In this case, we cannot say “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Brown, 995 So.2d at 704 (quoting Thomas v. State, 711 So.2d at 872). As the prosecutor seemed to recognize at trial, an accused’s confession is not sufficient to support a felony conviction absent corroboration by independent proof of the corpus delicti Hodge v. State, 823 So.2d 1162, 1166 (Miss.2002) (citing Cotton v. State, 675 So.2d 308, 314 (Miss.1996); Bullock v. State, 447 So.2d 1284, 1286 (Miss.1984); Steward v. State, 32 So.2d 791, 791 (Miss.1947); Pope v. State, 158 Miss. 794, 131 So. 264, 265 (1930)). “The reason for the rule requiring evidence independent of the confession is to avoid convicting a person solely out of his own mouth of a crime that was never committed or was committed by someone else.” Rhone v. State, 254 So.2d 750, 753 (Miss. 1971).

¶ 21. Regarding Count One, the State was required to prove the indictment’s allegation that Rogers committed sexual battery by “causing [Benjamin] to engage in fellatio on [the defendant].” But, the only proof to corroborate Rogers’s confession that he had engaged in oral sex with Benjamin was Kahle’s hearsay testimony. In fact, there were five different versions of events: William’s trial testimony, Benjamin’s interview with Kahle, William’s interview with Kahle, and Rogers’s two confessions. In each account, Rogers was said to have committed some type of sexual abuse on Benjamin, but the attendant details are highly inconsistent. We do not agree with the State’s argument that the confession provided overwhelming evidence of guilt when there was no finding by the trial court, under Rule 803(25), that the corroborating hearsay evidence was reliable.

¶ 22. Hearsay generally is not admissible because it is considered unreliable and untrustworthy. Burchfield v. State, 892 So.2d 191, 198 (Miss.2004) (citing Hercules, Inc. v. Walters, 434 So.2d 723, 726-27 (Miss.1983); M.R.E. 802). When the declarant is a child of tender years, reliability concerns are magnified because “common sense suggests that their testimony be viewed with caution.” House v. State, 445 So.2d 815, 827 (Miss.1984), superseded on other grounds by M.R.E 702. Notably, the “tender years exception” to the general hearsay rule is the only exception that expressly requires a separate hearing to determine reliability. M.R.E. 803(25). In this case, no separate hearing was held, and there was no finding by the court that Benjamin’s statements to Kahle were reliable. Because Benjamin was unable to testify, the only witness who could testify about “the time, content, and circumstances of the statement,” was Kahle herself. The only testimony to corroborate Rogers’s second confession was hearsay from the eight-year-old boy, the reliability of which was never determined. Under such circumstances, we cannot conclude that the error was harmless.

Count Two: Fondling

¶ 23. Rogers challenges his conviction of Count Two (fondling William) by arguing that the State failed to prove venue beyond a reasonable doubt. Article 3, Section 26, of the Mississippi Constitution provides that an accused has the right to trial “by an impartial jury of the county where the offense was committed.” This Court has held consistently that “proof of venue is an essential part of criminal prosecution, and the State bears the burden of proving venue beyond a reasonable doubt.” Hill v. State, 797 So.2d 914, 916 (Miss. 2001) (citing Crum v. State, 216 Miss. 780, 787, 63 So.2d 242, 244 (1953); Hester v. State, 753 So.2d 463, 467 (Miss.Ct.App. 1999)). In addition, because “venue is jurisdictional” in criminal cases, the issue may be raised for the first time on appeal. Gillett v. State, 56 So.3d 469, 502 (Miss. 2010) (quoting Crum, 63 So.2d at 244-45). “While the ultimate burden of proving venue that rests upon the State is beyond a reasonable doubt, this is the standard of proof before the jury, not the trial judge.” Hill, 797 So.2d at 916 (citing State v. Fabian, 263 So.2d 773, 775 (Miss.1972)).

¶ 24. The indictment alleged that both crimes occurred in Scott County, Mississippi, and there was testimony at trial that the apartment was located in Scott County. However, according to William’s trial testimony, William was sexually abused in a chicken house, not in the Se-bastopol apartment. When asked where this chicken house was located, William responded that he did not know the address, but that he believed it was in Scott County “because we didn’t go out of Scott County.” On cross-examination, William testified that the chicken house was in Lena. He was also asked whether Lena was in Scott or Leake County, to which he responded, “I think it’s in Scott County ... I’m not sure.” After cross-examination, the trial judge examined William, and William reaffirmed that he was abused by Rogers at a chicken house in Lena, not at the apartment in Sebastopol. Based on the record before us, it appears that William’s testimony was a surprise to both the prosecutor and the defense attorney.

¶ 25. At the close of the State’s presentation of the evidence, Rogers moved for a directed verdict on both counts. On Count Two, Rogers’s attorney argued that the State had failed to meet its burden of proof, because William’s trial testimony was not consistent with the indictment. According to his attorney, “William did describe some incident, but it happened after Katrina [ ] at a chicken house, and it certainly did not happen in July of 2009.” The State countered that “where it happened and exactly when it happened is important for the purpose of a defense, but it’s not fatal from the State’s perspective if it sufficiently gives the Defendant notice of the fact of it happening.” The trial judge overruled the motion for a directed verdict, noting only that the testimony of children “could be suspect.”

¶ 26. Despite William’s stated belief that Lena was in Scott County, we notice that the municipality of Lena is, in fact, situated in Leake County. On appeal, the State does not dispute that Lena is located in Leake County, Mississippi. Instead, the State argues that William’s testimony was sufficient to present the question of venue to the jury, as explained in Hill v. State, 797 So.2d at 916.

¶27. The State also cites Mississippi Code Section 99-11-3(1), which provides that:

The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed. But, if on the trial the evidence makes it doubtful in which of several counties, including that in which the indictment or affidavit alleges the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.

In response, Rogers asserts that Section 99-11-3(1) cannot relieve the State of its burden to prove venue, emphasizing the defendant’s constitutional right to be tried in the county where the crime occurred. Miss. Const. art. 3, § 26. Rogers argues that we should invalidate the statute as unconstitutional rather than applying it to affirm his conviction.

¶ 28. However, it is not necessary to invalidate Section 99-11-3(1) to reach a decision in the case, for the jury was never instructed that, to convict, it was required to find from the evidence, beyond a reasonable doubt, that the crime had occurred in Scott County, Mississippi. The relevant instruction read:

The Court instructs the Jury that ... if you believe from the evidence in this case beyond a reasonable doubt that at the time and place charged in Count Two of the indictment and testified about, the Defendant, Allen Lynn Rogers, Jr., did willfully, unlawfully and fe-loniously touch the person of William Hicks, a male child under the age of sixteen (16) years for the purpose of gratifying his lust and indulging his depraved licentious sexual desires, at a time when he, the said Allen Lynn Rogers, Jr., was a male person above the age of eighteen (18) years, then it is your duty to find the Defendant guilty as charged in Count Two.

(Emphasis added.) The phrase “at the time and place charged in Count Two of the indictment and testified about,” did not apprise the jury that the crime must have occurred in Scott County, Mississippi. The indictment was not before the jury, and the “time and place testified about” was far from definite.

¶ 29. We note that the Mississippi Judicial College’s “general pattern instruction” for criminal offenses reads in relevant part, “[i]f you find from the evidence in this case beyond a reasonable doubt that: 1. [Defendant’s Name] on or about [date of offense] in [county of offense ]; ... then you shall find the defendant guilty as charged.” Miss. Model Jury Instructions: Criminal § 1:6 (2010) (emphasis added). This publication also contains a “checklist for drafting criminal instructions” which includes “date and venue” under the category “evidentiary and other matters.” Id. at § 1:5.

¶ 30. Although neither party raised an issue with the jury instructions, the omission is glaringly obvious in light of the State’s argument that venue was a question for the jury. In fact, that question was not presented to the jury. Failure to instruct the jury on the essential elements of the crime is plain error. Berry v. State, 728 So.2d 568, 571 (Miss.1999) (citing Hunter v. State, 684 So.2d 625, 636 (Miss.1996)). “Where the jury had incorrect or incomplete instructions regarding the law, our review task is nigh unto impossible and reversal is generally required.” Henderson v. State, 660 So.2d 220, 222 (Miss.1995) (quoting Neal v. State, 451 So.2d 743, 757 n. 9 (Miss.1984)). In this case, the jury was never told that it had to find from the evidence and beyond a reasonable doubt that the crime had occurred in Scott County, Mississippi. Given that venue is “essential” to a criminal prosecution, and that venue may be raised for the first time on appeal, Gillett, 56 So.3d at 502, we find that such an obvious omission is fatal and requires reversal.

Conclusion

¶ 31. The errors in this case require reversal of both convictions. In Count One, Kahle’s testimony about Benjamin’s statements to her were hearsay. Under Rule 803(25) of the Mississippi Rules of Evidence, this testimony was inadmissible in the absence of a separate hearing and a judicial finding that the hearsay statements were reliable. Because Kahle’s testimony was the only evidence corroborating Rogers’s second confession, we cannot say that this error was harmless. In Count Two, there was conflicting evidence as to whether the crime occurred in Scott or Leake County. Because the question of venue was not submitted to the jury, the conviction in Count Two must also be reversed. We reverse Rogers’s convictions and sentences, and we remand this case to the Circuit Court of Scott County for a new trial, consistent with this opinion.

¶ 32. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . Throughout this opinion, pseudonyms are used for the children and the children's parents.

      . It is unclear whether Lingle or Anderson accompanied the family, but at least one of these officers witnessed the interviews from a separate monitoring room. The interviews were captured on video and audio recordings. These recordings were not presented to the jury, and they are not included in the record on appeal.

      . Sebastopol is a municipality in Scott County, Mississippi. The Mississippi Official and Statistical Register 370 (2008-2012).

      . At the trial judge's behest, a mid-trial suppression hearing was held outside the presence of the jury. During this hearing, both Anderson and Lingle testified that Rogers had been given a Miranda warning, and that he fully understood and waived those rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is unclear from the officers’ testimony how long Rogers had been in custody before he gave the two statements. Anderson testified that “when we picked him up, he was not in custody,” but there was no testimony about when Rogers was “picked up.” According to Anderson, Rogers was not "arrested” until after he had given his written confessions. However, when asked whether Rogers was free to leave during the interrogation, Lingle responded, "I can’t say. Captain Anderson was in charge of that.”
      Rogers’s defense attorney did not call any witnesses during this hearing. At the conclusion of the hearing, he objected to admission of the first statement, arguing that Rogers "was not aware of his rights.” As for the second statement, which was given about an hour later during the same interrogation, Rogers's attorney argued that he should have been "re-Mirandized.”

      . The jury instructions did not define the term fellatio.

      . Rogers’s briefs do not cite the Confrontation Clauses of our state and federal constitutions. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. However, his reply brief contains a quotation from this Court’s opinion in Griffith v. State, 584 So.2d 383, 388 (Miss.1991): “To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Griffith was quoting Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), a case decided before the United States Supreme Court changed its approach to the Sixth Amendment's Confrontation Clause in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . At one point during Benjamin’s testimony, the trial judge threatened to remove someone in the audience for "prompting” the witness.

      . Moreover, Benjamin told Kahle that two different adults had sexually abused him, and it is far from clear which of them is alleged to have done what.

      . This reference was to Hurricane Katrina, which ravaged Mississippi in August of 2005.

      . On appeal, we may take judicial notice that a certain city is located in a particular county. Bearden v. State, 662 So.2d 620, 625 (Miss.1995) (citing Clark v. State, 230 Miss. 143, 146, 92 So.2d 452, 453 (1957); Tillman v. State, 213 Miss. 136, 139, 56 So.2d 91, 92 (1952)). The Mississippi Official and Statistical Register at 358 (2008-2012), places Lena in Leake County, Mississippi.