author: DICKINSON, Presiding Justice,

text:
    Kenneth W. KEYS v. STATE of Mississippi.
    No. 2009-CT-01050-SCT.
    Supreme Court of Mississippi.
    Aug. 11, 2011.
    Herbert H. Klein, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. Kenneth W. Keys was eligible for parole on a life sentence but ineligible for parole on a five-year sentence for a later, simple-assault conviction. The Forrest County Circuit Court held he is not now eligible for parole on either conviction because he cannot begin serving the five-year sentence until he completes the life sentence. The Court of Appeals reversed the trial court’s ruling, holding that the trial court lacked jurisdiction to consider the issue. Because the trial court did have jurisdiction, and because Keys remains parole-eligible on his life sentence, we reverse and render.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On February 6, 1987, Keys pleaded guilty to murder, and the Forrest County Circuit Court ordered him to serve a life sentence in the custody of the Mississippi Department of Corrections (MDOC). Under the statute then in effect, Keys was eligible for parole after serving ten years of his life sentence. The MDOC paroled Keys in November 1998, but, for reasons not stated in the record, revoked his parole in April 2002.

¶ 3. The MDOC again paroled Keys in August 2002, and his parole was again revoked when he was charged with simple assault of a police officer. He was convicted and received a five-year sentence to run consecutively to his previously imposed life sentence. Because Keys was a subsequent offender, he was ineligible for parole on his five-year sentence.

¶ 4. When Keys’s inmate time sheet reflected he was ineligible for parole or any other early release, he filed a motion to mandate parole eligibility, arguing that— even though he was ineligible for parole on the five-year sentence — he retained parole eligibility on his 1987 life sentence. Treating Keys’s motion as one for post-conviction relief (PCR), the trial court denied the motion and relied on Section 99-19-21 to determine that Keys could not begin serving his five-year sentence until the end of his life sentence.

¶ 5. The Court of Appeals reversed, finding the trial court lacked jurisdiction to consider Keys’s motion. After the Court of Appeals denied his motion for rehearing, he petitioned this Court for a writ of certiorari. We granted his petition and now hold that the trial court had jurisdiction to hear his motion, and that he remains eligible for parole on his life sentence.

ANALYSIS

The trial court had jurisdiction to address Keys’s petition.

¶6. The Court of Appeals opined that the PCR motion was procedurally improper because Keys did not follow the MDOC’s administrative procedures to review inmates’ complaints, which required him to seek relief through the MDOC’s administrative-review process. Because Keys did not file a grievance- through that procedure or exhaust his administrative remedies, the Court of Appeals held that both the trial court and appellate court lacked jurisdiction to hear the substance of Keys’s appeal.

¶ 7. Keys argues that his motion was not administrative in nature but actually a petition for habeas corpus, and that it was properly adjudicated under the PCR framework. The Mississippi Constitution guarantees the right of habeas corpus, and the circuit court has original jurisdiction over such matters. Also, although Keys’s motion was not termed a habeas corpus petition, Section 99-39-5 of the PCR statutes provides that the PCR procedure applies to claims in which an inmate alleges that “his sentence has expired; his probation, parole or conditional release [was] unlawfully revoked; or [that] he is otherwise unlawfully held in custody.” Furthermore, as a habeas corpus petition, the trial court had jurisdiction under Section 99-39-3, which provides that the PCR article replaces all post-conviction habeas corpus writs. Keys correctly filed his motion in the trial court, as allowed by the Mississippi Constitution, and as allowed by Section 99-39-7, which provides that PCR motions “shall be filed as an original civil action in the trial court.”

¶ 8. We agree with Keys that exhaustion of administrative remedies was not necessary. On two prior occasions, this Court considered a prisoner’s post-conviction claim regarding sentence computation and parole eligibility but did not require exhaustion of administrative remedies. In Williams v. Puckett and Wilson v. Puckett, the inmates filed petitions for post-conviction relief, challenging the MDOC’s calculation of parole and “earned time” release dates. In each case, this Court addressed the merits of them claims without discussing whether either inmate should have exhausted their remedies through the MDOC’s administrative-review procedure.

¶ 9. We find it surprising that the Court of Appeals declined to follow those cases and the precedent of the Court of Appeals, itself, set in Lattimore v. Sparkman, in which an inmate filed a petition in circuit court, seeking a correction in his parole eligibility date. Addressing the jurisdictional issue, the Court of Appeals relied on Wilson and Williams and held that “an inmate may contest matter[s] such as [the correct computation of a parole eligibility date] as an original action in circuit court.”

Keys remains eligible for parole on his life sentence.

¶ 10. Section 99-19-21 provides that:

(1) When a person is sentenced to imprisonment on two (2) or more convictions, the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.
(2) When a person is sentenced to imprisonment for a felony committed while the person was on parole, probation, earned-release supervision, post-release supervision or suspended sentence, the imprisonment shall commence at the termination of the imprisonment for the preceding conviction. The term of imprisonment for a felony committed during parole, probation, earned-release supervision, post-release supervision or suspended sentence shall not run concurrently with any preceding term of imprisonment. If the person is not imprisoned in a penitentiary for the preceding conviction, he shall be placed immediately in the custody of the Department of Corrections to serve the term of imprisonment for the felony committed while on parole, probation, earned-release supervision, post-release supervision or suspended sentence.

¶ 11. Keys acknowledges that he is not parole-eligible on his second sentence, but he argues that he remains parole-eligible on the original life sentence. The State insists that Section 99-19-21 is an impediment to parole on the original life sentence and that Keys cannot begin serving his non-parole-eligible sentence until the expiration of his previous term of life imprisonment. The trial court agreed with the State and interpreted Section 99-19-21 to mean that Keys could not begin serving his second, five-year sentence until the end of his original life sentence, which is the rest of his life.

¶ 12. We disagree with the trial court’s interpretation of Section 99-19-21, and we hold that it is not an impediment to Keys’s parole eligibility. The statute does not say that imprisonment for the second sentence shall commence at the termination of the preceding conviction’s sentence; rather, it reads that the imprisonment shall begin at the termination of the preceding conviction’s imprisonment. In the event Keys is granted parole on his life sentence, his imprisonment for that crime will end, and he then must begin serving his mandatory five-year sentence.

CONCLUSION

¶ 13. We find that the Forrest County Circuit Court had jurisdiction to hear Keys’s motion and that Section 99-19-21 is not an impediment to Keys’s eligibility for parole on his life sentence, so we reverse the judgments of the trial court and the Court of Appeals and render judgment.

¶ 14. REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Miss.Code Ann. § 47-7-3(1) (Rev.2004).

      . Section 47-7-3, provides, in part, that "[n]o person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995, except that a first offender convicted of a nonviolent crime after January 1, 2000, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph.” Miss.Code Ann. § 47-7-3(l)(h) (Supp.2010).

      ."Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative-review procedure under sections 47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” Miss.Code Ann. § 47-5-807 (Rev.2004).

      . Miss. Const, art. 3 § 26.

      . Miss. Const, art. 6 § 156.

      . Miss.Code Ann. § 99 — 39—5(g) (Rev.2007).

      . Section 99-39-3 provides, in part, that “this article ... abolishes the common law writs relating to post-conviction collateral relief, including by way of illustration but not limitation, error coram nobis, error coram vobis, and post-conviction habeas corpus." Miss. Code Ann. § 99-39-3 (Rev.2007) (emphasis added).

      . Williams v. Puckett, 624 So.2d 496 (Miss.1993); Wilson v. Puckett, 721 So.2d 1110 (Miss.1998).

      . Williams, 624 So.2d at 497; Wilson, 721 So.2d at 1111.

      . Williams, 624 So.2d at 497; Wilson, 721 So.2d at 1111-12.

      . Lattimore v. Sparkman, 858 So.2d 936 (Miss.Ct.App.2003).

      . Id. at 937.

      . Miss.Code Ann. § 99-19-21 (Rev.2007)
      (emphasis added).


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    JACKSON PUBLIC SCHOOL DISTRICT, Marilyn Minter, Michelle King, and The City of Jackson v. Latisha HEAD, a Minor, by and Through Shirley RUSSELL, her Mother and Next Friend; Ashley McCoy, a Minor, by and Through Shirley McCoy, her Mother and Next Friend; and Shirley Russell, Individually.
    No. 2009-IA-02022-SCT.
    Supreme Court of Mississippi.
    Aug. 11, 2011.

      Betty A. Mallett, Joanne Nelson Shepherd, Jackson, Pieter John Teeuwissen, Claire Barker Hawkins, attorneys for appellants.
    Lydia Roberta Blackmon, Deborah McDonald, Fayette, attorneys for appellees.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. Latisha Head and Ashley McCoy, through each of their mothers, Shirley Russell and Shirley McCoy (collectively, “Head”), filed a complaint on December 13, 2004, against the Jackson Public School District (JPS), the City of Jackson (the City), the Jackson Police Department (JPD), Clayton Johnson, Marilyn Minter, and Michelle King (collectively, “JPS”). The complaint alleged assault and battery against Johnson and several negligence claims against each of the defendants, stemming from an incident at Watkins Elementary School on May 16, 2003, between Head and Johnson. The complaint was then amended twice. The last action of record by Head was Head’s response to requests for admission filed on August 15, 2005. JPS filed a motion to dismiss for failure to prosecute on December 10, 2008. The circuit court denied the motion to dismiss. From this denial, JPS appealed to this Court, and we granted interlocutory appeal.

FACTS

¶ 2. The facts of this case were never fully developed and are disputed. On May 16, 2003, LaTisha Head, a twelve-year-old fourth-grade student, was watching a video in her classroom at Watkins Elementary School. Clayton Johnson, an off-duty Jackson police officer, entered Head’s classroom, and according to Head and her friend Ashley McCoy, Johnson instructed the two girls to get out of their seats and follow him into the hallway. Marilyn Minter, the teacher of the two girls, was in the classroom when this occurred.

¶ 3. According to Head and McCoy, Johnson threatened to take the two girls to a detention center for laughing and being disruptive. When the girls did not stop laughing, Johnson ordered the two girls into the hallway. Head and McCoy contend that Johnson then threw Head against the wall, pinned her to the floor, and grabbed her by her jacket to pull her off the floor. Johnson alleges that Head first “jumped on him,” and he took the two girls into the hallway only to correct their disruptive behavior. McCoy was a bystander to this hallway encounter.

¶ 4. Johnson then allegedly escorted Head and McCoy to the office of the principal, Michelle King. The secretary questioned why Head was crying, but Head did not respond. After briefly leaving Head and McCoy in King’s office, Johnson then allegedly escorted Head and McCoy to the school auditorium. In the auditorium, Head and McCoy contend that another Jackson police officer threatened to take them to a detention center. When this officer left, Head and McCoy contend Johnson made both girls write their names, addresses, and telephone numbers on a sheet of paper. Head and McCoy contend that Johnson then said, “This never happened. Now give me a hug.” Johnson then escorted Head and McCoy back to their classroom.

¶ 5. Head filed a complaint on December 13, 2004. Head later amended the complaint, and on August 15, 2005, filed a response to requests for admission. On December 10, 2008, three years and almost eight months later, JPS, joined by Minter and King, filed a motion to dismiss for failure to prosecute. Barring the response to requests for admission, Head has no recorded activity since amending the complaint. On June 2, 2006, JPS filed its first set of interrogatories and requests for production of documents. Notice of service was filed June 5, 2006, and after this date, JPS has no recorded action of record.

¶ 6. On February 25, 2009, in response to JPS’s motion to dismiss for failure to prosecute, Head filed a response claiming personal difficulties and a heavy workload. On June 10, 2009, Head’s counsel wrote a letter to JPS claiming she was unavailable “the first three weeks of June, the last three weeks of July, and the first two weeks of August,” for a hearing on JPS’s motion to dismiss. In a letter dated July 21, 2009, JPS notified Head that the hearing on the motion to dismiss for failure to prosecute was set for October 20, 2009, and asked for a prompt response from Head. Head responded on October 8, 2009, with a letter stating a continuance would be filed, under the mistaken impression the hearing was scheduled for October 2, 2009. On October 9, 2009, Head filed a motion to continue or reschedule the hearing on the motion to dismiss. This motion was granted.

¶ 7. On November 24, 2009, Head filed a motion to compel discovery. In Head’s supplemental response objecting to JPS’s motion to dismiss, Head asserts the discovery requests sent by JPS in 2006 were lost, and JPS would not deliver documents unless ordered by the court.

¶ 8. On December 9, 2009, the circuit court denied JPS’s motion to dismiss for failure to prosecute and ordered Head to pay for the reproduction of the lost discovery documents. On February 10, 2010, JPS’s interlocutory appeal to the Supreme Court was granted. Depositions of the parties were scheduled to take place on February 23, 2010, but, due to the interlocutory appeal, Head filed a motion to stay the proceedings the day before the depositions were to occur. The motion to stay the proceedings was granted on February 23, 2010, and proceedings will be stayed until this Court rules on the interlocutory appeal.

¶ 9. As of February 2010, Ashley and Shirley McCoy were living in St. Louis, Missouri. Dr. Wood Hiatt, the psychiatrist who met with Ashley McCoy and Latisha Head shortly after the incident, died on March 25, 2010.

STANDARD OF REVIEW

¶ 10. “When examining a trial court’s dismissal of a case for want of prosecution, this Court will affirm the trial court’s findings of fact, unless the findings are manifestly wrong.” Barry v. Reeves, 47 So.3d 689, 693 (Miss.2010) (citing Watson v. Lillard, 493 So.2d 1277, 1279 (Miss.1986)). A trial court’s ruling on a dismissal for failure to prosecute will be reviewed for abuse of discretion. Hill v. Ramsey, 3 So.3d 120, 122 (Miss.2009).

¶ 11. A trial court may dismiss for want of prosecution to control its docket and expedite justice. Id. Dismissal for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(b) is “reserved for the most egregious cases,” due to the “extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim.” Hillman v. Weatherly, 14 So.3d 721, 726 (Miss.2009) (quoting Wallace v. Jones, 572 So.2d 371, 376 (Miss.1990)). Dismissals for want of prosecution typically are affirmed only when there is a clear record of delay or contumacious conduct enhanced by at least one aggravating factor, and lesser sanctions would be ineffective. Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 181 (Miss.1998) (citing Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982)).

DISCUSSION

Whether the Trial Court Abused its Discretion in Denying Jackson Public School District’s Motion to Dismiss Pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure.

A. Whether the Trial Court Properly Weighed Relevant Factors in Determining if the Rule 4-1 (b) Motion Should be Denied.

¶ 12. This Court has set forth factors to be weighed in determining whether a Rule 41(b) ruling should be affirmed: (1) whether there was a clear record of delay or contumacious conduct by the plaintiff; (2) whether lesser sanctions may have better served the interests of justice; and (3) the existence of other aggravating factors. Cox v. Cox, 976 So.2d 869, 874 (Miss.2008) (citing Am. Tel. & Tel. Co., 720 So.2d at 181) (citing Rogers, 669 F.2d at 320).

¶ 13. This Court will consider the facts of each particular case when determining whether a dismissal for failure to prosecute is warranted. Am. Tel. & Tel. Co., 720 So.2d at 181. Judge Green considered the record of delay and level of actual prejudice to JPS. Ultimately, she ordered Head to pay the cost of discovery reproduction. “The law favors trial of issues on the merits, and dismissals for want of prosecution are therefore employed reluctantly.” Am. Tel. & Tel. Co., 720 So.2d at 180 (citing Watson, 493 So.2d at 1278). Judge Green did not abuse her discretion in denying the defendant’s motion to dismiss.

B. Whether There is a Clear Record of Delay.

¶ 14. There has been a clear record of delay; however, as Judge Green notes, the delay is excusable. Head filed a complaint on December 13, 2004, and amended this complaint on March 31, 2005, and April 12, 2005. On August 15, 2005, Head filed responses to JPS’s requests for admission. After this date, the record is largely silent as to any action in pursuit of this claim.

¶ 15. However, in its response to the motion to dismiss filed by JPS, Head explains the delay, stating illness and personal problems of counsel. In Watson, this Court stated it was “loath to presume that any Mississippi trial judge would allow a serious action to be lost because of delays attributable solely to plaintiffs illness or infirmity.” Watson, 493 So.2d at 1279-80. Also, as stated by this Court in Barry, “the mere fact that delay occurs in the prosecution of a case is not sufficient to warrant dismissal for want of prosecution. It must be clear from the record that the delay was the result of the plaintiffs failure to prosecute the claim, rather than extrinsic factors beyond the control of the plaintiff.” Barry, 47 So.3d at 694; see M.R.C.P. 41(b).

¶ 16. JPS argues that Head was dilatory in being unavailable for several months when JPS was seeking to hold a hearing on its motion to dismiss. In actuality, JPS and counsel for Head could not agree on a hearing date, and JPS ultimately set the hearing date. Head’s counsel did not purposely schedule a conflict on the date of a hearing; a conflict already existed when counsel was informed of the hearing date.

C. Whether Lesser Sanctions Than Dismissal Will Serve the Interests of Justice.

¶ 17. This Court will impose lesser sanctions if they will better serve the interests of justice. Am. Tel. & Tel. Co., 720 So.2d at 181. “Lesser sanctions include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Cox, 976 So.2d at 876 (citing Am. Tel. & Tel. Co., 720 So.2d at 181-82) (quoting Wallace, 572 So.2d at 377).

¶ 18. Judge Green considered lesser sanctions and ultimately determined Head should pay the cost incurred by JPS in reproducing its discovery documents. But, Judge Green found no other appropriate sanction. JPS was well aware that Head had lost the original discovery documents, but when Head asked for JPS to reproduce the documents, JPS refused. JPS states that this Court has dismissed a case for a span of inactivity from August 2005 to March 2007. Hill, 3 So.3d 120. However, in Hill, the case was dismissed without prejudice. Hill, 3 So.3d at 123. Here, JPS is seeking a Rule 41(b) dismissal with prejudice. This Court, in Hill, indicated it might not have affirmed a dismissal with prejudice. Id.; see M.R.C.P. 41(b).

¶ 19. JPS also cites Hillman v. Weatherly for the proposition that delay alone is sufficient to warrant dismissal. Hillman, 14 So.3d at 721. However, in Hillman, the trial court considered lesser sanctions and found the sanctions would not be sufficient to cure prejudice to the defendant. Hillman, 14 So.3d at 728. And, in Hill-man, the plaintiffs conduct was found to be intentional and egregious. Id. The plaintiff failed to respond to two motions to dismiss, and this Court held that the plaintiff had obstructed discovery. Id. Here, no actual prejudice has been shown; there is only speculation of memory loss and inconvenience in locating witnesses. The conduct of the plaintiffs has not been shown to be intentional.

¶ 20. JPS cites Illinois Central Railroad Company v. Moore for the proposition that this Court will, on rare occasion, reverse the decision of the trial judge for abusing its discretion in denying a motion to dismiss. Ill. Cent. R.R. Co. v. Moore, 994 So.2d 723 (Miss.2008). In Moore, Illinois Central filed a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 41(d), seeking a dismissal without prejudice, because the plaintiff had failed to take any action of record for more than seven years. Id. at 729. And, in Moore, the clerk had sent out four separate motions to dismiss for want of prosecution before the motion to dismiss was filed. Moore, 994 So.2d at 725. Here, the clerk has made no such motion, and the record of inactivity is only half of the span referenced in Moore. Judge Green considered lesser sanctions and determined the imposition of costs for reproduction of discovery were fair, but no lesser sanctions would be appropriate. This Court agrees.

D. Whether Aggravating Factors are Present, Resulting in Prejudice to JPS, Minter, and King.

¶ 21. The aggravating factors to be considered include: (1) “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay,” (2) “the degree of actual prejudice to the defendant,” and (3) “whether the delay was the result of intentional conduct.” Hillman, 14 So.3d at 728 (citing Am. Tel. & Tel. Co., 720 So.2d at 181) (quoting Rogers, 669 F.2d at 320).

1) Plaintiff’s personal responsibility for the delay

¶ 22. Although JPS suggests Head personally was responsible for the delay, there is nothing in the record to show this. Counsel for Head admitted the delay was attributable to medical problems and personal problems within counsel’s office. Judge Green considered the delay, and because it could be attributed to counsel, and not Head, she found excusable delay.

2) The degree of actual prejudice to the defendant

¶ 23. JPS argues the case should be dismissed, because memories have faded and witnesses may not be available. However, there is no specific proof that memories have faded. JPS also contends that a few faculty members of the elementary school have retired or left the school district, but fails to show how these facts prejudice JPS. Next, JPS contends that Dr. Hiatt Wood, a potential expert for Head, has died. However, Hiatt only recently passed away, and JPS had ample time to depose him, but never attempted to do so. Although JPS relies on the possibility of faded memories to show actual prejudice, the record is devoid of any finding that JPS has contacted a witness and actually found a faded memory. Although prejudice can be presumed for unreasonable delay, the preference for a decision on the merits “must be weighed against any presumed prejudice to the defendant and the court may decide to excuse plaintiffs lack of diligence in the absence of any actual prejudice to the defendant.” Cox, 976 So.2d at 879 (citing Rogers, 669 F.2d at 322 n. 7) (quoting 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2370, at 216-17 (1971)).

3)Whether the delay was the result of intentional conduct.

¶24. The record lacks any proof the delay was intentional. On the contrary, Head’s counsel submits illness and personal problems as reasons for the delay.

CONCLUSION

¶25. Because there is no record of inexcusable delay, and JPS has suffered no actual prejudice, and because costs will be paid for reproduction of discovery documents, the case need not be dismissed to better serve the interests of justice. For these reasons, the ruling of the Hind’s County Circuit Court is affirmed, and the ease is remanded to the trial court for further proceedings consistent with this opinion.

¶ 26. AFFIRMED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, PIERCE AND KING, JJ., CONCUR. LAMAR, J„ NOT PARTICIPATING.


author: CARLSON, Presiding Justice,

text:
    James Craig IRVING v. Johnnie Evans IRVING. James Craig Irving v. Johnnie Evans Irving.
    Nos. 2010-IA-00310-SCT, 2010-CA-00355-SCT.
    Supreme Court of Mississippi.
    Aug. 18, 2011.
    John Thomas Lamar, Jr., Senatobia, attorney for appellant.

      Joy W. Graves, Malenda Harris Meac-ham, Hernando, Charles E. Winfield, attorneys for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. The Chancery Court of DeSoto County granted James Craig Irving and Johnnie Evans Irving a divorce. James filed a Petition for Modification of his child-support payments, based on the change of circumstances brought about by the loss of his job, which had occurred three weeks prior to the chancellor’s entry of the Order upwardly modifying James’s support obligations. The chancellor declared that res judicata prevented James, in a subsequent petition for modification, from presenting evidence of his job loss occurring before the entry of this Order.

¶ 2. Aggrieved, James has appealed, alleging that the chancellor erred by ruling that res judicata prohibits James from providing evidence of his job loss in his petition for modification of child support. Finding that res judicata should not bar James from presenting evidence of his job loss, we are constrained to reverse the chancellor’s findings and to remand this case to the Chancery Court of DeSoto County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. On January 29, 2002, the Chancery Court of DeSoto County granted James and Johnnie a divorce. On November 5, 2008, Chancellor Vicki B. Cobb heard an action between James and Johnnie dealing with an alleged arrearage of child support. On November 14, 2008, James lost his employment but failed to inform Chancellor Cobb about this change in his circumstances. Chancellor Cobb signed her Order upwardly modifying James’s child support payments on December 3, 2008, nunc pro tunc to November 5, 2008. This Order instructed James to begin making payments on December 1, 2008.

¶ 4. On January 14, 2009, Johnnie filed a Petition for Contempt seeking to enforce the December 3, 2008, Order, entered nunc pro tunc to November 5, 2008, as well as a portion of the divorce decree, requiring the parties to share uncovered medical or dental expenses for their children. On April 1, 2009, James filed a Motion to Dismiss, Affirmative Defenses, Answer to the Petition for Contempt, and Counter-Petition for Modification in which he sought, inter alia, a modification of his child-support obligations because of his loss of employment on November 14, 2008.

¶ 5. After the May 26, 2009, hearing on the Petition for Contempt, Chancellor Percy L. Lynchard, Jr. entered an Order on May 27, 2009, finding James in contempt and ordering him to pay past-due child-support obligations as well as one-half of his children’s dental expenses and attorney’s fees. Before the chancellor had entered this Order, James requested the chancellor to dismiss his Counter-Petition for Modification without prejudice.

¶ 6. On May 29, 2009, James purged himself of contempt by paying the overdue amounts he was obligated to pay under the May 27, 2009, Order of Contempt, and again filed a Petition for Modification, requesting that his child support obligations be reduced because of his loss of employment.

¶ 7. On June 24, 2009, Johnnie filed a Response to Petition for Modification and raised the defense of res judicata. On July 3, 2009, Johnnie filed a Motion to Dismiss on the same res judicata grounds, arguing that the change in circumstances upon which James had based his request for modification had occurred prior to the entry of the December 2008 Order modifying his child-support obligation and, therefore, res judicata barred James from litigating that change in circumstances.

¶ 8. On July 8, 2009, the chancellor granted Johnnie’s motion to dismiss, in part, finding sua sponte that James could not litigate regarding an alleged material change in circumstances that had occurred before the December 8, 2008, Order, because James had failed to act timely under Mississippi Rule of Civil Procedure 59(a). On July 21, 2009, the chancellor entered an Order reflecting his findings from the July 8, 2009, hearing.

¶ 9. James timely filed both a Motion to Reconsider and an Amended Motion to Reconsider. On November 17, 2009, the chancellor conducted a hearing on the Amended Motion to Reconsider. On February 2, 2010, the chancellor ruled on the Amended Motion to Reconsider and subsequently clarified his previous, July 21, 2009, Order by stating, inter alia:

The previous order rendered by this Court on July 21, 2009 granting [Johnnie]’s motion to dismiss [James]’s petition for modification shall be amended to make it a declaratory judgment reflecting that the only relevant evidence pertaining to the motion would be any evidence arising after the entry of the decree of December 3, 2008. To that extent, the order entered July 21, 2009 shall be modified and the motion for reconsideration shall be granted only to that extent.

¶ 10. James now appeals the chancellor’s July 21, 2009, Order that granted, in part, Johnnie’s motion to dismiss James’s Petition for Modification; and he also appeals the February 2, 2010, Order denying his amended Motion to Reconsider and declaring that he could not offer evidence of events that occurred before December 3, 2008.

DISCUSSION

¶ 11. Generally, “[t]he chancellor’s findings will not be disturbed upon review unless the chancellor was manifestly wrong, clearly erroneous or applied an incorrect legal standard.” A.B. v. Y.Z., 60 So.3d 737, 739 (Miss.2011) (citing Miller v. Pannell, 815 So.2d 1117, 1119 (Miss.2002)). However, this appeal involves a question of law, which this Court reviews de novo. Estate of Davis v. O’Neill, 42 So.3d 520, 524 (Miss.2010) (citations omitted). We restate the critical issue before us for the sake of today’s discussion.

WHETHER, UNDER THE DOCTRINE OF RES JUDICATA, THE CHANCELLOR ABUSED HIS DISCRETION BY REFUSING TO PERMIT JAMES TO OFFER EVIDENCE OF HIS JOB LOSS TO SUPPORT HIS PETITION FOR MODIFICATION OF CHILD SUPPORT.

¶ 12. James identifies the four elements necessary to establish res judicata: identity of the subject matter of the action; identity of the cause of action; identity of the parties to the cause of action; and identity of the quality or character of a person against whom the claim is made. Quinn v. Estate of Jones, 818 So.2d 1148, 1151 (Miss.2002) (citing Dunaway v. W.H. Hopper & Assoc., Inc., 422 So.2d 749, 751 (Miss.1982) (other citations omitted)).

¶ 18. He argues that the four necessary identities for res judicata are not met in this ease. James points out that the chancellor entered the judgment modifying his child support obligations on December 3, 2008, nunc pro tunc to November 5, 2008, and that he lost his job on November 14, 2008, after the date upon which the Order had become operative between the parties. James cites Green v. Myrick, 177 Miss. 778, 171 So. 774, 774 (1937), for the proposition that courts “may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect, not entered.” He also quotes Griffith’s Mississippi Chancery Practice, 2000 edition: “When a judgment is entered nunc pro tunc, it becomes operative between the parties as of the date when it should have been entered.” James contends that the Order became effective against him on November 5, 2008. Therefore, he argues that the issue of whether James’s job loss constituted a material change in circumstances was not litigated, should not have been litigated, and thus could not be barred by the doctrine of res judicata.

¶ 14. James argues further that, while he could have filed a motion under Mississippi Rule of Civil Procedure 59, this filing was not necessary. He points out that the petition for modification originally was filed on April 1, 2009, and was filed again on May 29, 2009. He cites Cannon v. Cannon, 571 So.2d 976, 978 (Miss.1990), providing that, if a motion for relief from judgment is not designated as being brought under a particular rule, it cannot be considered under Rule 59 if it is filed more than ten days after the entry of judgment, but can be considered as having been brought under Rule 60(b).

¶ 15. Johnnie responds, quoting the adage that “[e]quity aids the vigilant and not those who slumber on their rights.” See Bridges & Shelson, Griffith’s Mississippi Chancery Practice § 41 (2000 ed.). Specifically, Johnnie argues that James made no effort to notify the court that James had lost his employment “either before the December 3, 2008 Order was entered or, pursuant to Rule 59 of the Mississippi Rules of Civil Procedure, after the entry of the Order.”

¶ 16. Accordingly, Johnnie contends that James’s failure to raise his alleged material change in circumstances — his loss of employment — that occurred before December 3, 2008, now precludes him from asserting this “same event as a material change in circumstances justifying a modification of his child support obligation.” In support of this argument, Johnnie cites Leiden v. Leiden, 902 So.2d 582, 585 (Miss.Ct.App.2004), for the well-known rule that, in Mississippi, modification of child support will occur only if there has been a material change in circumstances “since the entry of the decree [and] that such change was unforeseeable at the time of the decree.... ” Johnnie adds that, obviously, James foresaw his termination of employment because it had occurred before the entry of the Order on December 3, 2008. Johnnie also responds to James’s argument that James’s Petition for Modification was proper under Mississippi Rule of Civil Procedure 60. First, Johnnie points out that James’s pleadings failed to mention Rule 60, and, alternatively, given that James sat on his rights after entry of the December 3, 2008, Order, James did not file his pleadings within a “reasonable time” as required by Rule 60. See Miss. R. Civ. P. 60(b). Johnnie points out that James “did not attempt to bring this matter to the Chancellor’s attention until 4½ months after the loss of his job and 4 months after entry of the child support Order.” Accordingly, Johnnie posits that “[t]his is exactly the situation that is designed to be prevented by Mississippi law related to child support orders and vesting of support payments as they become due and payable each month and the related doctrine of res judicata.”

¶ 17. This Court finds that res judicata should not bar James from presenting evidence of his job loss, which occurred after the effective date of the Order. This Court has stated that “[n]unc pro tunc signifies now for then, or in other words, a thing is done now, which shall have [the] same legal force and effect as if done at [the] time when it ought to have been done.” In re D.N.T., 843 So.2d 690, 697 n. 8 (Miss.2003) (quoting Black’s Law Dictionary 964 (5th ed. 1979)) (emphasis added). This Court has further articulated that

[n]unc pro tunc means ‘now for then’ and when applied to the entry of a legal order or judgment it does not refer to a new or fresh (de novo) decision, as when a decision is made after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted. The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act.

Thrash v. Thrash, 385 So.2d 961, 963-64 (Miss.1980) (emphasis added).

¶ 18. Because the December 3, 2008, Order clearly states that Chancellor Cobb entered it nunc pro tunc to November 5, 2008, this Court looks to November 5, 2008, for purposes of res judicata. See Henderson v. Henderson, 27 So.3d 462, 464 (Miss.Ct.App.2010) (two years after divorce decree erroneously had not been filed in chancery clerk’s office, chancellor entered divorce decree nunc pro tunc, and effective, as to the date chancellor signed, not entered, the decree).

¶ 19. Notably, in recent years, the Court of Appeals has stated that “[r]es judicata precludes a party from litigating claims that were raised or could have been raised by the party’s prior child support modification petition.” Howard v. Howard, 968 So.2d 961, 973 (Miss.Ct.App.2007) (citing Miss. Dep’t of Human Servs. v. Shelby, 802 So.2d 89, 95 (Miss.2001)) (citations omitted) (emphasis added). Because the decree became legally effective as of November 5, 2008, due to the nunc pro tunc Order, James could not have brought this evidence to the chancellor’s attention before the effective date of the Order, and this subject matter has never been before the chancellor. Accordingly, James’s evidence of his job loss is not barred by res judicata. See Dunaway, 422 So.2d at 751(citations omitted).

CONCLUSION

¶ 20. The order upwardly modifying James’s child-support payments was effective as of November 5, 2008, and James’s job loss occurred after this legally effective date. Accordingly, the July 21, 2009, order granting in part Johnnie Evans Irving’s motion to dismiss James Craig Irving’s petition for modification; and the February 2, 2010, order denying James Craig Irving’s amended motion to reconsider and declaring that James Craig Irving could not offer evidence of events occurring before December 3, 2008, are reversed, and these consolidated cases are remanded to the Chancery Court of DeSoto County for further proceedings consistent with this opinion.

¶ 21. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. LAMAR, J., NOT PARTICIPATING.

      . For clarity’s sake, we note that Chancellor Cobb, not Chancellor Lynchard, entered the December 3, 2008, Order, nunc pro tunc to November 5, 2008.

      . Chancellor Lynchard granted Johnnie's motion to dismiss to the extent that James could not offer any evidence concerning events that occurred before December 3, 2008. The chancellor clarified this in his declaratory judgment.

      . Chancellor Cobb entered the December 3, 2008, Order nunc pro tunc to November 5, 2008. James alleges in his brief that on November 5, 2008, Chancellor Cobb "issued an oral opinion modifying the decree of divorce and increasing] the amount of child support the petitioner was to pay to the sum of $1,050.00 per month. The Order was not entered until December 3, 2008.” In her brief, Johnnie does not contest whether or not Chancellor Cobb issued an oral opinion from the bench on November 5, 2008. The transcript of the hearing before Chancellor Cobb is not in the record before us.


author: MYERS, P.J.,

text:
    Robert H. JACKSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00074-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2009.
    Rehearing Denied Aug. 25, 2009.
    Robert H. Jackson, (pro se).
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. The Circuit Court of Warren County dismissed Robert H. Jackson’s motion for post-conviction relief as successive-writ-barred. Jackson appeals the dismissal, citing numerous errors for our review. Finding no error in the circuit court’s judgment, we affirm.

FACTS

¶ 2. Jackson pleaded guilty to capital murder for killing Josephine Todd during the burglary of her home on June 4, 1979. Jackson v. State, 506 So.2d 994, 994 (Miss.1987). Jackson appears to have sought post-conviction relief numerous times since his guilty plea. See id.; Jackson v. State, 568 So.2d 1212 (Miss.1990); Jackson v. State, 665 So.2d 1356 (Miss.1995).

¶ 3. In 2001, Jackson sought leave of the supreme court to again seek post-conviction relief in the circuit court, under cause number 2001-M-00864. The supreme court denied Jackson permission, finding that his petition was procedurally barred as a successive writ. Jackson sought reconsideration of this judgment numerous times, but each of his variously styled motions was ultimately denied. Jackson then filed a “Petition for Extraordinary Circumstances Review,” cause number 2003-M-01858, that the supreme court treated as another petition for permission to seek post-conviction relief. The supreme court found this petition, “like others filed previously by Jackson,” to be barred as a successive writ. Undeterred, Jackson filed the instant motion for post-conviction relief in the circuit court. The circuit court dismissed Jackson’s petition as a successive writ. Jackson now appeals from that judgment, asserting numerous errors. We have condensed those into a single issue.

WHETHER THE CIRCUIT COURT ERRED IN DISMISSING JACKSON’S MOTION FOR POST-CONVICTION RELIEF.

¶ 4. The relevant code section on successive attempts to obtain post-conviction relief reads in part as follows: “The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article.” Miss.Code Ann. § 99-39-27(9) (Rev.2007). We recognize certain enumerated exceptions to the successive-writ bar, including an application filed raising the issue of the convict’s supervening insanity prior to the execution of a sentence of death, intervening cases of either the United States Supreme Court or the Mississippi Supreme Court that would have adversely affected the outcome of conviction or sentence, or newly discovered evidence which was not reasonably discoverable at the time of trial. See id. However, we will not overturn a dismissal of a motion for post-conviction relief without a showing that an exception to the successive-writ bar exists. Johnson v. State, 962 So.2d 87, 89(¶ 12) (Miss.Ct.App.2007).

¶ 5. Jackson argues that State v. Berry-hill, 703 So.2d 250 (Miss.1997), is such an intervening decision. Nonetheless, it is apparent from our review of the record that Jackson has made the same argument before the supreme court in his prior petitions. The supreme court found it to be without merit, and we are bound by its prior decision. More fundamentally, Ber-ryhill cannot now be an “intervening decision” because it was handed down well before the supreme court’s dismissal of Jackson’s most recent petitions seeking permission to file a motion for post-conviction relief.

¶ 6. Additionally, while Jackson did seek permission from the supreme court to proceed with a motion for post-conviction relief, he never received it. When, as here, the supreme court is the court which has last exercised jurisdiction, a prisoner is required to obtain its leave before proceeding in the circuit court because “the supreme court has initial jurisdiction over a post-conviction proceeding where that court is the one that last exercised jurisdiction in the case.” Perry v. State, 759 So.2d 1269, 1270(¶ 6) (Miss.Ct.App.2000). See also Miss.Code Ann. § 99-39-7 (Rev.2007).

¶ 7. Jackson’s motion is procedurally barred as an impermissible subsequent attempt to obtain post-conviction relief, as Jackson has failed to show that it falls within any of the statutory exceptions to the successive-writ bar. Furthermore, the circuit court was without jurisdiction to entertain Jackson’s motion absent leave of the supreme court, which Jackson did not obtain. Accordingly, the circuit court’s judgment dismissing Jackson’s motion for post-conviction relief is affirmed.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: ROBERTS, J., ISHEE, J.,

text:
    Kenneth W. KEYS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CA-01050-COA.
    Court of Appeals of Mississippi.
    Oct. 19, 2010.
    Rehearing Denied March 1, 2011.
    Herbert H. Klein, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Kenneth Keys appeals the judgment of the Forrest County Circuit Court, which denied his motion to mandate parole eligibility on Keys’s life sentence for a 1987 murder conviction. Finding that the trial court lacked the jurisdiction necessary to consider Keys’s motion, we reverse and render.

FACTS

¶ 2. On February 6, 1987, Keys entered a guilty plea in Forrest County Circuit Court to murder. Keys was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Because of the law in effect at the time of his conviction, Keys was eligible for parole after serving ten years of the life sentence. Keys was paroled on November 4, 1998, after serving eleven years and nine months. Three and one-half years later, on April 30, 2002, Keys’s parole was revoked for reasons not apparent from the record on appeal. Keys was paroled again four months later on August 28, 2002.

¶ 3. In December 2002, while on parole for the second time, Keys was accused of simple assault of a police officer. Subsequently, his parole was revoked again. Keys was then convicted of simple assault of a police officer and sentenced to five years in the custody of MDOC, with the sentence to run consecutively to his previously imposed life sentence. Because Keys committed the felony assault while on parole status, the trial judge correctly ordered the five-year sentence to run consecutively to Keys’s life sentence.

¶ 4. On March 21, 2008, Keys filed a motion to mandate parole eligibility, which the trial court treated as a motion for post-conviction relief. Following an evidentiary hearing on May 19, 2009, the circuit court denied Keys’s motion. Relying on section 99-19-21, the circuit court found that Keys could not commence serving his five-year sentence until the termination of his life sentence.

¶ 5. Keys finds error in the circuit court’s judgment and raises two assignments of error on appeal: (1) the circuit court erred in ruling that Keys was ineligible for parole on his life sentence, and (2) the circuit court’s application of Snow v. Johnson, 913 So.2d 334 (Miss.Ct.App.2005) constitutes an ex-post-facto law. However, because we find that Keys did not exhaust his administrative remedies, we must reverse and render the trial court’s ruling as it lacked the jurisdiction necessary to decide the issue.

DISCUSSION

WHETHER THE TRIAL COURT HAD JURISDICTION TO CONSIDER KEYS’S MOTION.

¶ 6. Before we consider the issues Keys raises on appeal, we must first determine if the trial court had the requisite jurisdiction to hear Keys’s case. Unsatisfied with the MDOC’s apparent denial of his request to classify him as eligible for parole consideration by the Mississippi Parole Board, Keys filed a motion to mandate parole eligibility pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act. Although we may well not disagree with the trial court’s legal conclusion that Keys is not eligible for classification as parole eligible on his murder conviction, the trial court erroneously treated Keys’s motion as if it were a motion for post-conviction relief and denied it. However, Keys’s request did not complain about the validity of any of his convictions, of the sentences received, or that he was unlawfully incarcerated. Instead, it simply argued that the MDOC had incorrectly classified Keys as “parole ineligible.” A motion for post-conviction relief is not the correct procedural vehicle for such an argument.

¶ 7. The purpose of the Mississippi Uniform Post-Conviction Collateral Relief Act “is to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues[,] or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.” Not included within that purpose is the filing of a direct action with a trial court concerning the administrative policies of the MDOC. Furthermore, the only grounds for relief permitted under a motion for post-conviction relief are as follows: a conviction or sentence is contrary to law; the trial court lacked jurisdiction to impose a sentence; a conviction or sentence was obtained under a statute deemed unconstitutional; the maximum sentence allowed was exceeded; new evidence not previously presented and heard demands vacation of a conviction or sentence; a guilty plea was involuntary; a sentence has expired; the petitioner’s probation, parole, or conditional release was unlawfully revoked, or the inmate is otherwise unlawfully held; an out-of-time appeal is proper; and the conviction or sentence is subject to collateral attack proper under common law. Keys’s complaint does not fall under any of these provisions. Furthermore, he is not asking to “set aside or correct the judgment or sentence [of a trial court],” or for an out-of-time appeal.

¶ 8. Pursuant to Mississippi Code Annotated section 47-5-801 (Rev.2004), the MDOC has set forth administrative procedures to review inmate’s complaints. “Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative-review procedure under sections 47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” Keys stated in his initial motion that the MDOC had determined that he was ineligible for parole consideration by the parole board. This statement was echoed by the trial court in its order denying Keys’s motion and by the State in its brief to this Court. However, as argued by the State in its response to Keys’s petition and in its brief to this Court, the record is completely bare as to any proof that Keys ever exhausted his administrative remedies or even voiced his grievance through the MDOC’s administrative-review procedure. As such, neither the trial court nor this Court has jurisdiction to hear the substance of Keys’s appeal.

II9. Nevertheless, we have previously concluded “that an inmate may contest matters such as [the correct computation of a parole-eligibility date] as an original action in circuit court.” This holding, and other similar holdings handed down by this Court, were based upon the supreme court’s resolution of Wilson v. Puckett, 721 So.2d 1110, 1111-12 (¶ 5) (Miss.1998) and Williams v. Puckett, 624 So.2d 496, 497 (Miss.1993). Both Williams and Wilson, unlike this case, involved inmates filing a petition for writ of habeas corpus with the circuit court claiming they were unlawfully held in custody and requesting a review of the MDOC’s determination of parole dates and earned-time allowance. Wilson, 721 So.2d at 1111-12 (¶ 5); Williams, 624 So.2d at 497. Further, neither Wilson nor Williams utilized any of the administrative remedies available to them, and this omission was not discussed, or even mentioned, in the resolution of either case. As such, both the supreme court and this Court have apparently concluded that an inmate may bypass the administrative remedies available to him when aggrieved by a matter such as this. Given the Legislature’s mandate, such simply cannot be the case.

¶ 10. Mississippi Code Annotated section 47-5-803(2) (Rev.2004) states that: “No state court shall entertain an offender’s grievance or complaint which falls under the purview of the administrative-review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure.” (Emphasis added). It could not be anymore clear that the Legislature did not intend to give any court, be it at the trial or appellate level, the jurisdiction to decide matters of an administrative nature unless and until an inmate had exhausted every option available under the MDOC’s administrative policies. The MDOC published its administrative policy in April 1994, and it allows an inmate to request an administrative remedy for “situations arising from policies, conditions, or events within the Department of Corrections that affect them personally....” This is the path Keys must first trod if he wishes to have his claims heard by the judiciary.

¶ 11. Therefore, we must dismiss Keys’s appeal for lack of jurisdiction. Based on the record, we have no knowledge whether Keys ever presented his grievance administratively to the MDOC, or did so but failed to timely appeal an adverse determination to the courts.

¶ 12. In addition to the fact that we do not legally have the authority to speak to Keys’s issues, if we were to nevertheless reach the merits of his appeal, it would do a disservice to the MDOC and fly in the face of its statutory right to initially address grievances with its administrative determinations. We should not simply step in the shoes of the MDOC when it has not had a chance to walk in them first.

¶ 13. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, P.J., GRIFFIS, BARNES, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., AND MYERS, P.J.

ISHEE, J.,

dissenting:

¶ 14. While I respect the majority’s opinion, I must dissent, as I believe this Court has jurisdiction over Kenneth Keys’s appeal, and the issues are clear.

¶ 15. In his first assignment of error, Keys argues that the Forrest County Circuit Court erred when it found that the Mississippi Department of Corrections (MDOC) correctly determined that he was ineligible for parole as to his life sentence for murder. Both Keys and the State contend that pursuant to Mississippi Code Annotated section 47-7-3 (Supp.2009), Keys is not eligible for parole on his five-year sentence for simple assault of a police officer. After substantial review, I am unable to find support in the record for Keys’s contention that his five-year sentence is not eligible for parole. Regardless of whether Keys is eligible for parole on his five-year sentence, Mississippi Code Annotated section 99-19-21 (Rev.2000), prevents his release on parole for the 1987 murder conviction and life sentence because his five-year sentence must run consecutively to his life sentence.

¶ 16. Section 99-19-21(1) prevents Keys from being paroled on his 1987 life sentence and serving his five-year sentence for simple assault. Section 99-19-21 states:

(1) When a person is sentenced to imprisonment on two (2) or more convictions, the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.
(2) When a person is sentenced to imprisonment for a felony committed while the person was on parole, probation, earned-release supervision, post-release supervision or suspended sentence, the imprisonment shall commence at the termination of the imprisonment for the preceding conviction. The term of imprisonment for a felony committed during parole, probation, earned-release supervision, post-release supervision or suspended sentence shall not run concurrently with any preceding term of imprisonment. If the person is not imprisoned in a penitentiary for the preceding conviction, he shall be placed immediately in the custody of the Department of Corrections to serve the term of imprisonment for the felony committed while on parole, probation, earned-release supervision, post-release supervision or suspended sentence.

(Emphasis added). Because Keys was convicted of committing simple assault on a police officer while he was on parole, Keys must complete his life sentence for the murder conviction before he can begin serving his five-year sentence for simple assault. Furthermore, Keys’s sentence for simple assault on a police officer was ordered to run consecutively to Keys’s life sentence for murder. See Miss.Code Ann. § 99-19-21(1). Thus, even if section 99-19-21(2) did not apply to Keys’s five-year sentence, section 99-19-21(1) prevents him from serving his five-year sentence until the completion of his life sentence.

¶ 17. In Snow v. Johnson, 913 So.2d 334, 337 (¶ 11) (Miss.Ct.App.2005), this Court upheld the MDOC’s interpretation of section 99-19-21, finding that the MDOC’s prior practice of allowing inmates to interrupt their parole-eligible sentences to serve their non-parole-eligible sentences was contrary to section 99-19-21. In this case, Keys must first serve his life sentence, without eligibility for parole or probation, before he can serve his five-year sentence; thus, his life sentence will equate to his entire lifetime. Accordingly, Keys will never technically be able to serve his five-year sentence for simple assault on a police officer since completion of his life sentence should occur upon his death.

¶ 18. In his second assignment of error, Keys argues that the 1995 amendment to Mississippi Code Annotated section 47-7-3 should not be applied to his life sentence for murder because he was convicted and sentenced prior to 1995. According to Keys, use of section 47-7-3 to deprive him of parole eligibility on his 1987 life sentence for murder violates the Ex-Post-Facto Clause of Article I, Section 10 of the United States Constitution.

¶ 19. As mentioned previously, I see no indication in the record that section 47-7-3 had any bearing on Keys’s parole eligibility on either of his sentences. The true impediment to Keys’s parole continues to be section 99-19-21, which requires that Keys complete his life sentence before beginning service of his five-year sentence. Because it appears the record does not support Keys’s contention that either of his sentences has been affected by the 1995 amendment to section 47-7-3, I believe that his argument that application of that section to his sentence constitutes an ex-post-facto law is without merit.

KING, C.J., AND MYERS, PJ..-JOIN THIS OPINION.

      . Miss.Code Ann. § 99-19-21 (Rev.2007).

      . Melton v. State, 930 So.2d 452, 456 (¶ 14) (Miss.Ct.App.2006) (holding that a motion for PCR is not the correct means to seek relief for an alleged miscalculation of credit for time served).

      . Miss.Code Ann. § 99-39-3(2) (Rev.2007).

      . Miss.Code Ann. § 99 — 39—5(l)(a)—(i) (Supp. 2008).

      . Miss.Code Ann. § 99 — 39—5(l)(i).

      . Miss.Code Ann. § 47-5-807 (Rev.2004).

      . Miss.Code Ann. § 47-5-803(2) (Rev.2004); Roberts v. Miss. Dept. of Pub. Safety, 852 So.2d 631, 634 (¶ 14) (Miss.Ct.App.2003).

      . Lattimore v. Sparkman, 858 So.2d 936, 938 (¶ 7) (Miss.Ct.App.2003).

      . It appears that the parties relied on section 47-7-3 (1)(a) or section 47 — 7—3 (1 )(g) in determining that Keys’s five-year sentence is not eligible for parole. However, there is no support in the record that either of those subsections would apply to Keys’s five-year sentence. Keys was not sentenced as a habitual offender. Furthermore, simple assault of a police officer is not one of the crimes enumerated in section 47 — 7—3(1 )(g) for which an offender loses parole eligibility. See Miss. Att’y Gen. Op. No. 2001-0545, 2001 WL 1229381, Johnson (Sept. 19, 2001).


author: BARNES, J., CARLTON, J.,

text:
    H.K. HERNDON, Jr. and Myrna J. Herndon, Appellants v. MISSISSIPPI FORESTRY COMMISSION and Jimmy D. Bond, Appellees.
    No. 2009-CA-00700-COA.
    Court of Appeals of Mississippi.
    Dec. 7, 2010.
    Rehearing Denied May 10, 2011.
    Certiorari Denied Aug. 11, 2011.

      Lampton 0. Williams Jr., Joseph H. Montgomery, Poplarville, Cory Morris Williams, attorneys for appellants.
    Stephen Giles Peresich, Biloxi, Johanna Malbrough McMullan, Jackson, Harry Johnson Schmidt III, Pascagoula, attorneys for appellees.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court:

¶ 1. On October 20, 2005, H.K. Herndon Jr. was driving through a dense, early-morning fog on Highway 53 in Poplarville, Mississippi. At the same time, Jimmy D. Bond, an employee of the Mississippi Forestry Commission (MFC), was operating an MFC transport truck and, not seeing Herndon’s vehicle, pulled onto Highway 53 from the driveway of the MFC’s field office. Unable to avoid the MFC truck, Herndon crashed his vehicle into the rear tires of the transport truck. Herndon, along with his wife, Myrna J. Herndon, filed a complaint alleging that the MFC and Bond were liable for his resulting injuries. The Circuit Court of Pearl River County granted a motion for summary judgment filed by the MFC, holding that the MFC and Bond, as its employee, were immune from liability under the Mississippi Tort Claims Act (MTCA) and the Mississippi Emergency Management Law (MEML). The circuit court also found that Bond’s actions did not constitute reckless disregard. The Herndons have appealed the circuit court’s order. Finding that there was no genuine issue of material fact that the MFC and Bond were immune from liability, or that Bond acted with reckless disregard, we affirm the circuit court’s judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On October 19, 2005, Bond was ordered by his MFC supervisor, Vincent Smith, to drive an MFC transport truck to pick up a bulldozer from the repair shop the following morning. The bulldozer was needed for fire-protection services as Pearl River County was under a state of emergency as a result of Hurricane Katrina, which had struck the Mississippi Gulf Coast on August 29, 2005. Hurricane Katrina caused widespread destruction, including an extremely high amount of downed timber and storm debris. This situation, coupled with severe drought conditions in October 2005, created a significant •wildfire hazard in south Mississippi. On September 12, 2005, the MFC issued a news release stating that twenty counties in south Mississippi, including Pearl River County, were under “official bans on open outdoor burning.”

¶ 3. The next morning, at approximately 7:00 a.m., Bond arrived at the MFC field office in Poplarville. Bond drove the transport truck to the field office entrance, preparing to enter onto Highway 53. There was a heavy fog present. At the same time, Herndon was traveling at approximately 40 miles per hour in a southerly direction on Highway 53.

¶ 4. Bond looked up and down the highway for oncoming traffic, and seeing none, he began turning onto the road. Herndon came upon the MFC truck, and he swerved, hitting the rear tires of the MFC truck. Bond got out of the transport truck to check on Herndon and, according to Herndon, stated: “I’m sorry, I didn’t see you and it’s my fault.” However, Bond testified that he merely asked Herndon, “Are you all right?” As a result of the accident, Herndon sustained injuries resulting in approximately $83,500 in medical expenses.

¶ 5. The Herndons filed a notice of claim pursuant to Mississippi Code Annotated section 11-46-11 (Rev.2002) and subsequently filed a complaint for negligence and loss of consortium on March 15, 2007. The MFC filed a motion for summary judgment claiming immunity from liability under Mississippi Code Annotated section ll-46-9(l)(c) (Rev.2002) of the MTCA and Mississippi Code Annotated section 33-15-21(a) (Rev.2005) of the MEML. On March 9, 2009, the circuit judge denied the Hern-dons’ motion to compel the production of Bond’s personnel file. Then, on April 6, 2009, the circuit judge issued an opinion and judgment, which stated that the MFC was entitled to immunity from liability under both the MTCA and the MEML. The circuit court also stated that Bond’s actions did not constitute “reckless disregard” or “willful misconduct.” The Hern-dons now appeal the court’s judgment. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. Under Mississippi Rule of Civil Procedure 56(c), summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” A circuit court’s grant or denial of a motion for summary judgment is reviewed under a de novo standard. Price v. Clark, 21 So.3d 509, 517 (¶ 10) (Miss.2009) (citing Arceo v. Tolliver, 949 So.2d 691, 694 (¶ 6) (Miss.2006)).

I. Whether the circuit court erred in finding that the MFC and Bond were immune from liability under the MTCA and MEML.

A. MTCA

¶ 7. Under Mississippi Code Annotated section ll-46-9(l)(c), governmental entities and their employees “engaged in the performance or execution of duties or activities relating to police or fire protection ” are immune from liability from certain torts if they are “acting within the course and scope of their employment!)]” (Emphasis added). The only exception is if the employee “acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.”

¶ 8. The Herndons argue that the MFC is not an agency contemplated under this portion of the MTCA statute; therefore, the MFC and Bond, as its employee, are not immune from liability. In Maldonado v. Kelly, 768 So.2d 906, 909 (¶ 6) (Miss.2000), the Mississippi Supreme Court stated that:

The purpose of Mississippi] Code Annotated section] 11^46-9 is to “protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim.” Police officers and fire fighters are more likely to be exposed to dangerous situations and to liability, and therefore, public policy requires that they not be liable for mere negligence. Entities engaged in police and fire protection activities will be liable for reckless acts only.

(Internal citations omitted) (emphasis added). The MFC claims that Bond’s actions on the day of the accident constituted “fire protection.” The circuit court agreed with the MFC, finding that the MFC, “by its very nature, is engaged in the act of fire protection services.” The MFC also contends that the Herndons admitted in their “Counter-Statement As to Facts that are in Dispute with Defendants” that the MFC is an agency within the scope of the MTCA.

¶ 9. Mississippi Code Annotated section 49-19-3(b) (Supp.2009) states that one of the duties bestowed upon the MFC is the following:

To take such action and provide and maintain such organized means as may seem necessary and expedient to prevent, control and extinguish forest fires, including the enforcement of any and all laws pertaining to the protection of forests and woodland.

(Emphasis added). Mississippi Code Annotated section 49-19-117(3) (Rev.2003) states that the MFC is authorized to use tax funds “in order to foster, encourage, promote and bring about ... organized forest fire control throughout the State of Mississippi ... [and] to purchase fire support equipment, including transport trucks, tractors and other related fire support equipment.” Furthermore, Bond’s job description states that he is to “participate! ] ⅛ suppression work.” Photographs contained in the record also show that the transport truck driven by Bond had the word “FIRE” clearly marked on both sides of the cab of the truck.

¶ 10. The Mississippi Supreme Court has held that “if a statute is plain and unambiguous!,]” there is no need for statutory interpretation. Miss. Methodist Hosp. and Rehabilitation Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 607 (¶ 18) (Miss.2009) (citing In re Guardianship of Duckett, 991 So.2d 1165, 1181 (¶ 37) (Miss.2008)). It went on to say that:

However, statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue. The best evidence of legislative intent is the text of the statute; the Court may also look to the statute’s historical background, purpose, and objectives. If a statute is ambiguous, it is the Court’s duty to “carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.”

Id. at 607-08 (internal citations omitted). While the Herndons are correct that our courts have not applied this statute to the MFC, on its face, the statute does not limit such immunity to police officers and fire departments. It merely states that the duties or activities must relate “to police or fire protection.” Bond was not merely a truck driver; he was a forest ranger with fire-suppression duties clearly outlined in his job description. In his affidavit, Bond stated: “As a fire crew member, I was responsible for operating trucks and bulldozers, maintaining fire lanes, assisting with back burning to prevent fires, and performing general fire-fighting duties. In particular, on October 20, 2005, I was operating the 1991 International Flatbed truck in route to pick-up the bulldozer needed for fire prevention, fire suppression and general fire-fighting duties on that day.” As the MFC participates in fire-fighting activities, it is prone to emergency situations such as those faced by the police or traditional firefighters. In fact, the record reflects that numerous wild fires were occurring all over south Mississippi during that time period, including three in Pearl River County on the day prior to the accident. Thus, we find nothing that would preclude the application of this statute to the MFC.

¶ 11. The Herndons also contend that Bond’s task was merely to pick up a bulldozer, which is a maintenance job and not contemplated under the statute; therefore, he was not immune from liability as the statute contemplates emergency services provided by policemen and firemen. However, immunity under the MTCA may still apply in cases where the employee is engaged in ordinary duties related to police and fire protection. In Maldonado, a deputy sheriff was driving to get his patrol car serviced and was involved in a vehicular accident at an intersection where his vision was partially blocked. Maldonado, 768 So.2d at 908 (¶¶ 2, 3). The Mississippi Supreme Court held that the deputy was immune from liability. Id. at 911 (¶ 13). Also, in Reynolds v. County of Wilkinson, State of Miss., 936 So.2d 395, 396-97 (¶¶ 2, 7) (Miss.Ct.App.2006), this Court held that a deputy sheriff, who was involved in an accident while going through an intersection “en route to a hardware store to have spare keys made for county gas pumps[,]” was engaged in a governmental function and subject to immunity under the MTCA. See also McGrath v. City of Gautier, 794 So.2d 983, 987 (¶ 16) (Miss.2001) (“the maintenance of a police department is a governmental function, for which municipalities are exempt.”)

¶ 12. Here, the bulldozer that was to be picked up by Bond was used to create fire lanes and clear storm debris. It was being used for a task related to the fire-protection services of the MFC. Therefore, Bond’s task of picking up the bulldozer was within the scope of the statute. Accordingly, we find no error in the circuit court’s finding that the MFC and Bond were immune from liability under the MTCA.

B. MEML

¶ 13. The circuit court also found that the MFC had immunity under the MEML. Under Mississippi Code Annotated section 33-15-21 (a), state agencies and their employees participating in emergency-management services are immune from liability unless the employee is participating in “willful misconduct.”

¶ 14. On November 16, 1990, Governor Ray Mabus entered an executive order naming the agencies under the Mississippi Emergency Management Act, specifically listing the MFC as a participating agency. Then, on August 26, 2005, Governor Haley Barbour issued a proclamation declaring a state of emergency due to Hurricane Katrina and requiring “all agencies of the State of Mississippi [to] discharge their emergency responsibilities as deemed necessary[.]” During the months of September and October 2005, there were numerous press releases issued by the MFC discussing the imminent threat of wildfires in southern Mississippi due to drought conditions and noting that burn bans were imposed in over twenty counties, including Pearl River County.

¶ 15. The Herndons claim that section 49-19-3 of the Mississippi Code Annotated, which confers the MFC’s statutory-powers, does not grant it “emergency management powers” and that Bond was not engaged in any emergency effort. Rather, they contend he was merely running an errand. However, the errand involved picking up a bulldozer needed for disaster relief; thus, we find that the errand would be considered under the MEML. The MFC cites Young v. Mississippi State Port Authority, 2007 WL 141906 (S.D.Miss.2007), for the proposition that “Mississippi agencies are specifically granted [section] 33-15-21 immunity.” Furthermore, Mississippi Code Annotated section 33 — 15—5(c) states that: “‘Emergency management’ means the preparation for, the mitigation of, the response to, and the recovery from emergencies and disasters.” (Emphasis added).

¶ 16. A press release dated September 2, 2005, stated the MFC had “activated its Incident Management Team,” which was to “coordinat[e] response and recovery missions for the agency’s needs in addition to tasks we receive from the Mississippi Emergency Management Agency.” In the five days preceding the accident, there were fifteen wildfire occurrences in Pearl River County. Bond’s immediate supervisor, Smith stated in his affidavit that:

It was crucial to have the bulldozer back into service as soon as possible because of the outbreak of fires occurring at that time in the Pearl River County Area, and because of the need to open fire lanes and remove and properly dispose of storm debris which was a fire hazard.

Although the Herndons claim that Mark Hamilton, an MFC supervisor, said that it was not an emergency situation to get the bulldozer, his affidavit states that: “Because of the prevalence of wildfires during the month of October 2005, there was an emergency need to get this bulldozer out of the shop and back into operation.” He further testified that the MFC was engaged in “emergency management activities,” which included “assisting with the reopening of roads, assisting with debris removal, and fighting and preventing wildfires that threatened people’s lives, homes[,] and property.” Moreover, Smith testified that he was not notified the bulldozer had been repaired until October 19, 2005. He stated:

At the time I received notification on October 19, 2005, it was in the afternoon and both crews were already in the field. The afternoon time is when wildfires are more prevalent. For these reasons, I instructed Jimmy Bond to pick up the bulldozer first thing in the morning of October 20, 2005.

On October 21, 2005, the MFC issued a news release alerting the public that weather conditions were “contributing to critical fire conditions” and asking them to take “extra precautions.” The press release also noted that Mississippi had experienced more than 350 wildfires in October, which had “burned more than 2,600 acres and threatened dozens of homes.”

¶ 17. Based upon the evidence in the record, we find there was no genuine issue of material fact as to whether the MFC and Bond were immune from liability under the MEML; therefore, we affirm on this issue.

II. Whether the circuit court erred in denying the Herndons’ motion to compel production of Bond’s personnel file.

¶ 18. On February 12, 2009, the Herndons filed a motion to compel production of Bond’s personnel file. This was denied by the circuit court on March 17, 2009, as the “documents contained therein do not lend themselves to show any type of reckless disregard or willful misconduct of Bond.” A circuit court’s “denial of a motion to compel is subject to an abuse of discretion standard of review on appeal.” Edmonds v. Williamson, 13 So.3d 1283, 1292 (¶ 28) (Miss.2009) (quoting Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1209 (¶ 57) (Miss.2003)). The Hern-dons claim on appeal that the personnel file “contains the only source of information related to [Bond’s] qualifications as a truck driver.” Thus, they argue that the information could show reckless disregard on the part of the MFC by allowing Bond to operate the transport truck.

¶ 19. The MFC contends that the Herndons failed to specifically state in their “Notice of Appeal” that they were appealing this particular ruling made by the circuit court on March 17, 2009. Rather, the notice of appeal concerned the court order dated April 6, 2009, which does not address the denial of the motion to compel. The MFC is correct that the Herndons’ notice of appeal filed on April 28, 2009, states that the appeal is “from the Order dated and entered in this case on April 6, 2009.” Rule 3(c) of the Mississippi Rules of Appellate Procedure states in part: “The notice of appeal shall specify the party or parties taking the appeal and the party or parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or order appealed from.” (Emphasis added). However, the Mississippi Supreme Court recently held in Fletcher v. Lyles, 999 So.2d 1271, 1277 (¶25) (Miss.2009), that if the statement of issues and the appellant’s brief clearly show the basis for the appeal, then the issue can be addressed on the merits. “Under Rule 3(c) of the Mississippi Rules of Appellate Procedure, ‘an appeal shall not be dismissed for informality of form or title of the notice of appeal.’ ” Id. (quoting M.R.A.P. 3(c)). Consequently, we will consider the merits of this issue on appeal.

¶ 20. The MFC also argues that Bond’s personnel file is exempt from the Mississippi Public Records Act. See Miss.Code Ann. § 25-1-100 (Rev.2006). However, we need not address this argument as this statute was not the basis for the circuit court’s denial of the motion to compel; rather, the circuit judge, in camera, merely reviewed Bond’s personnel file and found nothing of relevance pertaining to the issue of whether Bond acted with reckless disregard. After reviewing Bond’s personnel file, this Court must agree with the circuit court’s finding. There is nothing contained in the file that is relevant to the issue of whether Bond acted with reckless disregard. We find no abuse in discretion in the court’s denial of the motion to compel the file and affirm on this issue.

III. Whether the circuit court erred in finding that Bond did not act with reckless disregard.

¶ 21. The Herndons assert that, if it is found that the MTCA or MEML is applicable to the MFC, Bond’s actions and the actions of his supervisor, Smith, constituted “reckless disregard” or “willful misconduct.” Therefore, immunity would not apply. The circuit court, “viewing the facts in the light most favorable to the non-moving party,” found that, while it may have been negligent for Bond to enter the highway in the heavy fog, his actions did not rise to the level of “reckless disregard” or “willful misconduct.”

¶ 22. “Reckless disregard is the ‘entire abandonment of any care,’ while negligence is the failure to exercise due care.” Rayner v. Pennington, 25 So.3d 305, 311 (¶ 19) (Miss.2010) (citing Maldonado, 768 So.2d at 909-10 (¶8)). It is “willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Giles ex rel. Giles v. Brown, 31 So.3d 1232, 1237 (¶ 12) (Miss.Ct.App.2009) (quoting City of Jackson v. Lipsey, 834 So.2d 687, 692 (¶ 16) (Miss.2003)). “ ‘[It] is more than mere negligence, but less than an intentional act’ and ‘usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.’ ” Id. (quoting Miss. Dep’t of Safety v. Durn, 861 So.2d 990, 994-95 (¶ 10) (Miss.2003)). “Willful misconduct” means “misconduct committed voluntarily and intentionally.” Black’s Law Dictionary 1089 (9th ed. 2009).

¶ 23. The Herndons claim on appeal that Smith’s ordering of Bond to pick up the bulldozer was reckless as he knew that Bond did not have proper training to drive the transport vehicle; namely, that Bond did not have a commercial driver’s license. The Herndons also argue that Smith knew about the fog situation and should have radioed Bond not to proceed. As the claim against Smith was not raised in the proceedings below, the circuit court did not address this issue. Therefore, it is barred from our consideration on appeal. See Brown v. Thompson, 927 So.2d 733, 738 (¶ 16) (Miss.2006) (Under Mississippi law, an issue not raised in the proceedings below is proeedurally barred from consideration on appeal.). Moreover, we find nothing in the record to support the Hern-dons’ claim.

¶ 24. The Herndons cite Maye v. Pearl River County, 758 So.2d 391 (Miss.1999), to support their argument that Bond acted with reckless disregard. In Maye, a deputy sheriff was backing out of the county jail’s driveway at a high rate of speed when he hit another vehicle that was pulling into the driveway. Id. at 391 (¶ 2). The deputy did not even look for another car before backing up an incline, and he admitted that he could not see the road from the parking lot. Further, the deputy admitted that he did not see the other vehicle. The Herndons claim that Maye is directly analogous to the present case as they allege Bond could not see to exit safely the field office driveway. The Herndons also claim that Bond’s alleged statement immediately after the accident, “I’m sorry, I didn’t see you and it’s my faulty” was evidence that Bond acted with reckless disregard.

¶ 25. The MFC responds citing Maldonado, where the Mississippi Supreme Court held that a deputy sheriff, driving his patrol car to get serviced, did not show “reckless disregard” in crossing an intersection with a partially obstructed view. The deputy in Maldonado looked both ways before proceeding cautiously through the intersection, as he was aware that it was a dangerous intersection, and his patrol vehicle collided with Tommy Kelly’s automobile. Maldonado, 768 So.2d at 908 (¶¶ 2-3). See also Rayner, 25 So.3d at 311 (¶ 19) (the supreme court finding no reckless disregard as the deputy “appreciated the danger from oncoming traffic and proceeded cautiously by keeping a lookout and slowly creeping into the intersection”)

¶ 26. We find this case more analogous to Maldonado. In his affidavit, Bond stated that he “looked both ways and not seeing any vehicles or vehicle headlights, [he] pulled onto Highway 53.” Although it was daylight, Bond admitted that he had difficulty seeing when he entered the highway, due to the fog, and that he could not see very far. However, Bond testified that this was why he “looked several times” before entering the highway. Hamilton corroborated this, testifying that Bond told him he had “looked several times in both directions.” Further, Herndon, who apparently was able to see well enough to drive down the highway, testified that it was “not a blinding fog” and that he “could see for a distance of at least 4-6 car lengths.” Although it was disputed whether Bond had the lights on the transport truck illuminated, the record shows that the MFC’s flatbed transport truck had reflectors on the bed. Bond, like the officer in Maldonado, appreciated the impaired visibility, and he attempted to make sure the road was clear before proceeding onto the highway.

¶ 27. At oral argument before this Court, counsel for the Herndons contended that recent cases by the Mississippi Supreme Court support the proposition that “reckless disregard” is, essentially, an “absence of due care.” After reviewing the cases referred to by counsel, we must reject this interpretation. As already noted, the supreme court in Rayner found that “the failure to exercise due care” is merely negligence. Rayner, 25 So.3d at 311 (¶ 19). Further, in City of Jackson v. Presley, 40 So.3d 520, 523 (¶ 12) (Miss.2010), the supreme court reasoned that:

By requiring a finding of “reckless disregard of the safety and well-being of others,” the Legislature set an extremely high bar for plaintiffs seeking to recover against a city for a police officer’s conduct while engaged in the performance of his or her duties. The City is immune from liability for acts of negligence, and even gross negligence is not enough.

(Emphasis added). In that case, a police officer’s vehicle struck Lynda Presley’s truck while traveling through a busy intersection. Responding to an emergency call, the officer entered the intersection against the traffic light, with blue lights, siren, and buzzer activated, at approximately five miles an hour. Id. at 521 (¶ 4). A truck blocked the officer’s vision, and she did not see Presley. Id. Also relying on Maye, Presley claimed that the officer’s actions constituted “reckless disregard.” Although the supreme court acknowledged in Presley that the “dangerousness of the intersection” was relevant, it held that “this fact alone is not enough to elevate Officer [Miranda] Morton’s conduct to reckless disregard.” Id. at 524 (¶ 15). Rather, the officer’s actions — using her sirens and lights and crossing one lane at a time — were found to be immune from liability as “her actions [did] not ‘evince an abandonment of all care,’ or show a ‘conscious indifference to consequences, amount almost to a willingness that harm should follow[.]’ ” Id. at (¶ 17) (emphasis added). See also City of Jackson v. Harris, 44 So.3d 927 (¶25) (Miss.2010) (“[In] the context of the [MTCA] statute, reckless must connote ‘wanton or willful,’ because immunity lies for negligence.”) (quoting Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss.1999)). In City of Laurel v. Williams, 21 So.3d 1170, 1174-75 (¶ 17) (Miss.2009), the supreme court reiterated the definition of “reckless disregard,” stating that it is:

a higher standard than gross negligence, and it embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.... Reckless disregard occurs when the “conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.”

(Internal citations omitted). Thus, a finding of “reckless disregard” requires more than the failure to show due care.

¶ 28. Accordingly, we must agree with the circuit court’s determination that no genuine issue of material fact existed that Bond’s actions demonstrated “reckless disregard” or “willful misconduct.” We affirm on this issue.

IV. Whether the circuit court erred in requiring the MFC to produce internal work product and privileged information.

¶ 29. Without filing a cross-appeal, the MFC brings up this issue in its brief. During discovery, the MFC produced the official accident report prepared by the Mississippi Highway Patrol. However, the Herndons filed a motion requesting the MFC’s internal accident-investigative report, the accident-system computer data entry form, and the State of Mississippi’s liability claim reporting form, which the circuit court granted. The MFC argues that as the information was prepared in anticipation of litigation and was, therefore, work product, the circuit court erred. It further argues that since the Herndons were able to fully depose the key witnesses, they had no “substantial need” for the internal documents. The Herndons do not address this issue in their reply brief.

¶ 30. First, we note that it was not necessary for the MFC to file a cross-appeal as they were not aggrieved by the ‘ judgment. They were merely addressing another issue that would assist their motion for summary judgment. See Dunn v. Dunn, 853 So.2d 1150, 1152 (¶ 8) (Miss.2003). Second, as we are affirming the circuit court’s grant of summary judgment in favor of the MFC and Bond, we decline to address the merits of this issue as it is moot.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE OPINION JOINED BY LEE, P.J.

CARLTON, J.,

dissenting:

¶ 32. I respectfully dissent from the opinion of the majority affirming the trial court’s finding of immunity liability under both the Mississippi Tort Claims Act (MTCA) and the Mississippi Emergency Management Law (MEML). I respectfully submit that no immunity exists since Jimmy Bond’s actions failed to constitute fire protection services, and his duties at the time of the accident also failed to constitute police law enforcement duties.

¶ 33. At the time of the accident, Bond was operating a flat-bed truck in route to pick up a bulldozer for later use by the Forestry Commission for fire protection services. Bond was not responding in route to any existing emergency or fire protection call, but instead was performing a maintenance duty. Therefore, no immunity exists under MTCA or MEML. See City of Jackson v. Harris, 44 So.3d 927, 933 (¶ 24) (Miss.2010) (Finding city liable where officer committed “traffic offenses” including speeding in route to the hospital on errand related to insurance information, and officer was not responding to an existing emergency.); L.T. ex rel. Hollins v. City of Jackson, 145 F.Supp.2d 750, 757 (S.D.Miss.2000) (finding officer who committed sexual assault was outside of the course and scope of his employment as an officer.). See also Miss.Code Ann. §§ 11-46-5(2) (Rev.2002); 11-46-7(2) (Rev.2002) (specifically excluding traffic offenses from immunity); 63-8-201 (Rev.2004) (breach of traffic offenses constitute misdemeanors); 63-3-503 (Rev.2004) (requiring drivers to abide by speed limit).

LEE, P.J., JOINS THIS OPINION.

      . Miss.Code Ann. § 11-46-1 to -23 (Rev. 2002) (Supp.2009).

      . Miss.Code Ann. § 33-15-1 to -317 (Rev. 2005).

      . Mississippi Code Annotated section 25-1-100(1) states that: "Personnel records and applications for employment in the possession of a public body, as defined by paragraph (a) of § 25-61-3, except those which may be released to the person who made the application or with the prior written consent of the person who made the application, shall be exempt from the provisions of the Mississippi Public Records Act of 1983.”

      . The MFC also claims that the expert testimony presented by the Herndons as to whether Bond acted with "reckless disregard" was not admissible. However, there is no reference to this testimony in the circuit court’s order or findings. Further, considering the circuit court found no genuine issue that Bond's actions constituted "reckless disregard,” we find it unnecessary to address this argument.