author: RUSSELL, J.,

text:
    Roland HARRIS a/k/a Roland T. Harris, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00321-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.

      George T. Holmes, Leslie S. Lee, Jackson, Marvell Maurice Gordon, attorneys for appellant.
    Office Of The Attorney General by Deirdre McCrory, attorney for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Roland Harris was convicted of manslaughter and an enhancement for using a firearm. He appeals, asserting three issues: (1) whether the jury should have been given a jury instruction on excusable homicide; (2) whether the circuit court erred in failing to grant a directed verdict based on the rule announced in Weathers-by; and (8) whether the jury’s verdicts were contrary to the overwhelming weight of the evidence. Upon review, we find no error. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. At around 8:80 a.m. on April 24, 2010, Edward Jones (aka “Tweety Bird”) was on his way home from a nightclub on foot when he saw his friend, Roy Jackson (aka “Quick”), lying in the street in a pool of blood. Jones immediately called the Greenville Police Department, and several officers and investigators arrived on the scene shortly thereafter.

¶ 3. Officers discovered a shell casing about ten feet from Jackson’s body, and the casing was taken into evidence. According to firearm expert Starks Hath-cock, the projectile was consistent with a .40 caliber. An ambulance arrived at some point, and the EMT pronounced Jackson dead on the scene. Subsequently, the coroner took custody of Jackson’s body. An autopsy later revealed that a gunshot wound to the neck was the cause of death, and the manner of death was ruled a homicide.

¶ 4. Jones told police that he went out that evening to Southern Whispers and Spotlite, both nightclubs, and that he had just seen Jackson hours prior at Spotlite with Jeannette Thurman and Harris. Jones stated he saw Jackson in the front seat and Thurman in the back seat of a tan Tahoe outside Spotlite earlier that night. According to Jones, Jackson appeared happy when the two spoke earlier that evening, and Jones did not observe any altercation or confrontation between Jackson and any other person.

¶ 5. Lillie Jordan lived in the house next to the street where Jackson’s body was discovered. She testified that she was sleeping when she awoke to the sound of some men talking outside. Jordan also heard a gunshot and a car speed away. About five to ten minutes later, she heard several cars outside of her home and saw policemen in the street. Therefore, she went outside, where she saw a man lying in the street.

¶ 6. Thurman testified that she was at the home of James Jackson (aka “Jack”) on April 23, 2010 at around 10:00 p.m. with several friends, including Jackson, playing cards, dancing, singing, and drinking beer and gin that night. At some point, Jackson left the house and returned with Harris in a tan Tahoe. Upon their arrival, Thurman got into the Tahoe with Jackson and Harris and “went riding.” Jackson already had some alcohol (Ciroc) in the vehicle, so they stopped for cups and ice. According to Thurman, everyone filled his or her cup with alcohol and they rode around together. Next, they made a restroom stop on the side of the road, and then Harris drove to Spotlite so Thurman could use the lady’s room. They drove around some more, and eventually made another stop at Spotlite to purchase a half-pint of gin, and all three drank the half-pint while riding around town. During this second stop at the Spotlite, Thurman testified that Harris and Jackson may have gone somewhere because she had to wait for them to come pick her back up. Thurman stated she saw Jones outside the Spotlite both times they stopped there that evening. Once Harris and Jackson picked Thurman up from the Spotlite, they drove around again.

¶ 7. The next stop they made was when Thurman heard the gunshot. Right before the shooting, Thurman testified that she heard Harris and Jackson whispering to each other, but she could not hear what they were saying because the music was loud. Thurman was texting on her cell phone when she heard the gunshot. Therefore, she did not see what Jackson was doing, and she did not see Jackson open the door to the Tahoe. After the gun went off, she looked up and Harris was looking at her. She testified that she was thinking she was “about to die” because she was in a “bad situation.” Neither Thurman nor Harris got out of the vehicle. Instead, Harris drove off with the passenger door open, and the door closed when he turned a corner. Thurman and Harris proceeded to a hotel called the Raceway Inn, where they stayed the night. Neither slept. Thurman stated that Harris was pacing back and forth, saying he was sorry.

¶ 8. At daylight, Harris took Thurman back to Jack’s house. Thurman met her friend Vickie, and they drove around drinking beer. Vickie finally took Thurman home, where she was met by several detectives and police officers. Thurman voluntarily went to the police station and gave a statement at about 2:00 p.m.

¶ 9. Sergeant Delando Wilson and Sergeant Michael Merchant questioned Harris on April 25, 2010 at approximately 1:40 p.m. after reading Harris his Miranda rights and obtaining a waiver of the same. Relevant portions of the interview are as follows:

Q: Ok. Mr. Harris, you know we are here talking to you about an incident that occurred on the morning of April 24, 2010, where you and Roy Jackson were together. Now, can you tell me what happened prior to the incident, and up to the incident?
A: Uh we were riding and drinking. We was all having a good time actually and uh went down Nelson [and] got a few bottles, a few drinks I mean, or whatever and we riding and drinking and all [and] something came up missing in the truck so we were looking for it and uh kind of ended the night so I was, we were planning on going back to the neighborhood and you know, go different ways or whatever, but on the way down, on the way back home, pulled over for Roy to use the restroom (inaudible) [and] we was about to find what we were looking for, happened to have a weapon in my hand when he was getting out the car and that was it, went off.
Q: The gun went off?
A: Yeah.
Q: What kind of gun was it?
A: A 40 uh 45 (inaudible)
Q: Ok, what happened to Roy when the gun went off?
A: He had just opened the door getting out to use the bathroom and just fell to the ground.
Q: What did you do after that?
A: Put the car in drive and drove off....
Q: Where, where was everyone sitting at the time of the incident?
A: Huh I was driving, Roy was in the passenger seat, and Jeanette was in the back.
Q: After the incident when you shot Roy and you drove off, where did you (inaudible)?
A: Try to make plans to distance myself from the situation. Went [and] threw the weapon away. We went, got a hotel.
Q: Where did you throw the weapon at?
A: On the way, in the river.
Q: Across the levee?
A: Yeah.
Q: Ok.
A: I think so. I threw it in the lake. One of the lakes. One of the bodies of water.
Q: You know where it’s close to?
A: I promise you, I can’t even remember exactly where.
Q: Were you upset when you shot him?
A: Yeah.
Q: Had you and Roy had incidents before ...
A: Nothing that would require that ... would require me to want to see him go like that.
Q: When you went to the hotel room, did you make any — did you say anything to Jeanette? Did you talk about anything?
A: Yeah. Just talked about what happened, how — know—what—(inaudible) because the gun just went off.
Q: Can you describe the gun?
A: It’s chrome 40. I think it’s a Taurus, automatic.
Q: You remember anything that Jeanette was saying?
A: I can’t remember, I remember — I remember being, I was intoxicated ...
Q: How much had you been drinking?
A: Quite a few. Before we even got the two pints of gin, we had already been drinking a pint. Had been drinking all day long (inaudible). Had been drinking earlier (inaudible). We had been drinking all day long.
Q: So would you say that kind of influenced what happened?
A: I may have had assistance, assisted in it (inaudible).
Q: (inaudible)
A: But uh look, I didn’t, it wasn’t, I wasn’t, I didn’t mean to shoot him. We were actually pulling over for him to use the restroom, not to shoot him (inaudible). I was turning around and the gun went off and just, you know, it was going too fast for me. I couldn’t do nothing. Couldn’t do nothing about it. Couldn’t do nothing.

¶ 10. Following a jury trial, Harris was convicted of manslaughter and an enhancement for using a firearm. He was sentenced by the circuit court judge to a term of twenty years and five years, respectively, to be served concurrently in the Mississippi Department of Corrections. Harris filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. The motion was denied by the circuit court. Harris timely appealed.

DISCUSSION

I. Whether the jury should have been given a jury instruction on excusable homicide.

¶ 11. Harris argues that the circuit court erred in refusing to give the jury an instruction on excusable homicide. “It is well settled that jury instructions generally are within the discretion of the trial court, so the standard of review for the denial of jury instructions is abuse of discretion.” Thomas v. State, 75 So.3d 1112, 1114 (¶ 9) (Miss.Ct.App.2011) (quoting Newell v. State, 49 So.3d 66, 73 (¶20) (Miss.2010)). Our excusable homicide statute states:

The killing of any human being by the act, procurement, or omission of another shall be excusable:
(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;
(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;
(c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.

Miss.Code Ann. § 97-3-17 (Rev.2006). Harris relies upon subsection (a), which our supreme court has refused to the extent that the homicides were “committed in the course of an unlawful act.” Towner v. State, 726 So.2d 251, 256 (¶ 14) (Miss.Ct. App.1998) (quoting Hailes v. State, 315 So.2d 917, 918 (Miss.1975)). See also Nicholson ex rel. Gollott v. State, 672 So.2d 744, 753 (Miss.1996); Thibodeaux v. State, 652 So.2d 153, 167 (Miss.1995).

¶ 12. In the instant case, Harris admitted he was engaged in the unlawful activity of drinking and driving and was intoxicated at the time of the shooting. In his statement to police, he stated he was “riding and drinking,” he “had been drinking all day long,” and he “was intoxicated.” Thurman also testified that she, Harris, and Jackson had been drinking at the time of the shooting. It is undisputed that an intoxicated Harris pointed a loaded gun at Jackson. The loaded gun discharged, resulting in Jackson’s death. Such behavior by Harris clearly did not exhibit the “usual and ordinary caution” to warrant an excusable homicide instruction. Therefore, Harris was not entitled to an excusable homicide instruction. This issue is without merit.

II. Whether the circuit court erred in failing to grant a directed verdict based on the rule announced in Weathersby.

¶ 13. Harris argues he should be acquitted under the Weathersby rule. The Weathersby rule states:

[WJhere the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933). However, when “conflicting eyewitness testimony is presented or physical evidence is presented in opposition to the defendant’s claim, ‘the case then becomes an issue for the jury. The jury is to determine if the defendant’s testimony is the more credible version of events and to decide either to convict or to acquit.’ ” Page v. State, 64 So.3d 482, 488-89 (¶ 28) (Miss.2011) (quoting Jones v. State, 39 So.3d 860, 864 (¶ 22) (Miss.2010)).

¶ 14. Our supreme court has held that “if an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for new trial.” Page, 64 So.3d at 489 (¶ 29) (quoting Collins v. State, 594 So.2d 29, 36 (Miss.1992)). “The rationale behind this rule is to allow the trial judge the opportunity to consider the alleged error before the issue is on appellate review.” Id.

¶ 15. In the instant case, the record reflects that Harris did not raise the Weathersby-rule defense at trial or in his motion for JNOV. Therefore, Harris is procedurally barred from raising this issue for the first time on appeal.

III. Whether the jury’s verdicts were contrary to the overwhelming weight of the evidence.

¶ 16. Finally, Harris argues that the verdicts were against the overwhelming weight of the evidence. This Court “must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Cooper v. State, 68 So.3d 741, 746 (¶ 11) (Miss.Ct.App.2011) (quoting Welch v. State, 45 So.3d 1231, 1235 (¶ 13) (Miss.Ct.App.2010)). “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005). A motion for new trial “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). In reviewing the weight of the evidence, we weigh the evidence “in the light most favorable to the verdict.” Id. “A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, ‘unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.’ ” Id. (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)). Instead, “the court simply disagrees with the jury’s resolution of the conflicting testimony.” Id. “This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves.” Id. Rather, “the proper remedy is to grant a new trial.” Id.

¶ 17. In the instant case, Harris told police that he had “a weapon in [his] hand when [Jackson] was getting out [of] the car and ... it went off.” Harris further described the type of gun as a .40 automatic, and he admitted throwing the gun away in the levy. Further, officers recovered a shell casing about ten feet from Jackson’s body, which was consistent with a .40 caliber according to Starks Hathcock, an expert in firearm identification and tool mark identification. Accepting as true Harris’s own statement that he shot Jackson with a .40 caliber automatic, along with the other evidence introduced at trial, we find that the guilty verdicts are not against the overwhelming weight of the evidence. This issue is without merit.

CONCLUSION

¶ 18. Harris was not entitled to an excusable homicide instruction due to his illegal actions at the time of the shooting. Further, Harris waived any argument under the Weathersby rule by failing to raise and preserve that issue for appeal. Finally, the overwhelming weight of the evidence supports the guilty verdicts. Therefore, we affirm the judgment and sentence of the Circuit Court of Forrest County.

¶ 19. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS AND A FIREARM ENHANCEMENT AND SENTENCE OF FIVE YEARS WITH THE SENTENCES TO RUN CONCURRENTLY ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE AND CARLTON, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, MAXWELL AND FAIR, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933).


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Zachary JOHNSON a/k/a Zack Johnson, Appellant v. Ronald KING, Superintendent of South Mississippi Correctional Institution, Appellee.
    No. 2011-CP-00199-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.

      Zachary Johnson, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., James M. Norris, attorneys for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Today’s case stems from the South Mississippi Correctional Institution’s (SMCI) decision to confiscate all inmates’ 16-ounce opaque drinking mugs, including one belonging to inmate Zachary Johnson. The decision was based on prison officials finding multiple inmates, other than Johnson, had altered the drinking mugs to conceal cell phones, cell phone parts, or drugs. The drinking mugs were deemed a security risk, classified as contraband, and confiscated from all SMCI inmates. On or about May 21, 2010, Johnson submitted a request for administrative remedy through the Mississippi Department of Corrections’s (MDOC) Administrative Remedy Program (ARP). The ARP exists by virtue of the legislative enactment Mississippi Code Annotated sections 47-5-801 thru 47-5-807 (Rev. 2011) and the requirements of the Civil Rights of Institutional Persons Act codified in 42 U.S.C. §§ 1997-1997j (2006), and Department of Justice Minimum Standards for Inmate Grievance Procedures 28 C.F.R. § 40 (2011). Johnson requested he be reimbursed for the cost of his confiscated drinking mug or be provided a comparable clear drinking mug. His request was twice denied. After exhausting his administrative remedies and receiving notification that he was eligible for judicial review, Johnson filed a complaint in the Greene County Circuit Court alleging a constitutional violation. The State, on behalf of SMCI Superintendent Ronald King, responded to Johnson’s complaint with a motion to dismiss requesting dismissal because the complaint was legally and factually frivolous, or in the alternative, affirmance of the ARP’s decision. The circuit court affirmed the ARP’s decision denying Johnson’s request for a replacement drinking mug or reimbursement for the cost of the drinking mug. Johnson now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. The essential facts are not disputed. After SMCI prison officials discovered several inmates using their 16-ounce, opaque, drinking mugs to conceal cell phone parts and drugs, these drinking mugs were determined to be a security threat and were confiscated from all SMCI inmates, including Johnson. No evidence exists that Johnson had altered his drinking mug. The drinking mugs were originally authorized items sold in the SMCI canteen, and inmates used their own funds from their inmate account to purchase the drinking mugs. Johnson, feeling aggrieved by the confiscation of his drinking mug, filed a request on May 25, 2010, for administrative remedy through the MDOC’s ARP seeking a replacement, transparent 16-ounce drinking mug or reimbursement for the cost of the 16-ounce, opaque drinking mug that was confiscated. His first request was denied on July 19, 2010, stating the reason behind confiscating the drinking mugs was they were now considered a security issue. Johnson filed a second request through the ARP on July 22, 2010, reiterating his desire to have a replacement drinking mug or be reimbursed for the confiscated drinking mug. This request was reviewed by SMCI Superintendent King and again denied on the ground that the opaque, drinking mugs were confiscated for security reasons, but that the drinking mugs could be shipped home at the inmate’s expense. Johnson filed his third request on August 10, 2010. Shortly thereafter, on September 16, 2010, Johnson received a certificate informing him that he had exhausted the ARP and was eligible to proceed with his case in a court of competent jurisdiction. Johnson did just that and filed a complaint in the circuit court on October 15, 2010. On January 24, 2011, the circuit judge entered an order affirming the ARP’s decision to deny Johnson’s requests finding that the ARP’s decision “was not arbitrary or capricious, was supported by substantial evidence, was not beyond [the] powers of the ARP, and was not in violation of the rights of [Johnson].”

¶ 3. On appeal, Johnson raises the issue of “whether [the] prison officials taking of prisoner[s’] property that was once sold [i]n the prison commissary without replacement or reimbursement violates the [United States Constitution] Due Process Clause and the [Mississippi Constitution Article] 3 [Section] 17[,] regardless if the value of [the] property may be or is considered de minimus[,] and does the replacement or reimbursement of same property to one prisoner and not to another or other [prisoners] violate the Federal and State constitutions^] equal protection clauses and/or statutes?”

STANDARD OF REVIEW

¶ 4. When reviewing the decision of an administrative agency, “[w]e will not disturb the decision of an administrative agency, such as the MDOC, unless the decision is ‘unsupported by substantial evidence[,] arbitrary or capricious[,] beyond the agency’s scope or powers[,] or violative of the constitutional or statutory rights of the aggrieved party.’ ” Taylor v. Petrie, 41 So.3d 724, 727 (¶ 8) (Miss.Ct.App.2010) (quoting Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss.2001)). Johnson’s case centers on his claim that his constitutional right to be free from a governmental taking of his private property without just compensation was violated.

ANALYSIS

¶ 5. In his brief, Johnson makes a variety of arguments to support his contention that SMCI officials should either replace his confiscated, opaque, drinking mug with an acceptable, translucent, drinking mug or reimburse him for the cost of the confiscated, drinking mug. We find his argument persuasive. This case requires this Court to analyze to what extent an inmate in custody of the MDOC still enjoys the protections afforded all citizens; specifically, the protection which prohibits the government from taking personal property without just compensation found in Article 3, Section 17 of the Mississippi Constitution of 1890. For the reasons expressed in this opinion, we reverse and render this case.

¶ 6. The United States Constitution and the Mississippi Constitution provide certain rights and privileges to the citizens of Mississippi and limit the right of the government to encroach on these rights. It is elemental that these rights and privileges are afforded to every citizen; however, circumstances exists where these rights may be restricted. Inmates lawfully confined in a prison facility have many of their constitutional rights restricted or removed altogether; however, some of their constitutional rights remain fully intact while imprisoned. The issue of how an inmate’s status affects his constitutional rights have been addressed frequently by the judiciary. It has been well-documented that “prisons are not beyond the reach of the Constitution^]” and inmates must be accorded the constitutional rights that are not “fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.” Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The primary issue often raised involves the Fourth Amendment’s prohibition against unreasonable searches and seizures in the context of prison administrators search of inmates’ cells and seizure of property within inmates’ cells. The Mississippi Supreme Court found that an inmate’s “cell is not a place where the occupant can expect privacy or a place where he can expect to be free from search and seizure unless accompanied by a warrant.” Robinson v. State, 312 So.2d 15, 18 (Miss.1975).

¶ 7. At issue in the current case is whether the MDOC and SMCI can permanently deprive Johnson of his opaque, drinking mug without just compensation. In essence, Johnson is arguing that the MDOC’s and SMCI’s actions violated Article 3, Section 17 of the Mississippi Constitution of 1890 which states the following:

Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use by the public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public.

In Justice Sandra Day O’Connor’s concurring opinion in Hudson, she stated the following:

That the Fourth Amendment does not protect a prisoner against indefinite dispossession does not mean that he is without constitutional redress for the deprivations that result. The Due Process and Takings Clauses of the Fifth and Fourteenth Amendments stand directly in opposition to state action intended to deprive people of their legally protected property interests. These constitutional protections against the deprivation of private property do not abate at the time of imprisonment.

468 U.S. at 539, 104 S.Ct. 3194 (emphasis added). It is apparent from Justice O’Connor’s concurring opinion that an inmate’s rights under the Takings Clause are not abated upon imprisonment. In Cohea v. California Department of Corrections and Rehabilitation, No. CV 1-07-00469-SRB, slip op., 2009 WL 498289 at *5 (E.D.Cal. Feb.26, 2009) (citing Allen v. Wood, 970 F.Supp. 824, 831 (E.D.Wash.1997)), the United States District Court for the Eastern District of California stated that “a prisoner property claim implicates the Fifth Amendment Takings Clause only where the prisoner alleges that prison officials took his personal property and converted it for public use. It is only then that a person is entitled to just compensation.” The Mississippi Supreme Court has held that a question of public use is a judicial question. Pearl River Valley Water Supply Dist. v. Wood, 248 Miss. 748, 759, 160 So.2d 917, 920 (Miss.1964).

¶ 8. The facts of the case before us are quite unusual. Johnson is serving a life sentence for committing murder and a consecutive fifteen-year sentence for aggravated assault all in Jones County. Johnson v. State, 910 So.2d 1174, 1176 (¶ 1) (Miss.Ct.App.2005). It appears that Johnson is not eligible for parole pursuant to Mississippi Code Annotated section 47-7-3(1)(h) (Rev. 2011), which states “[n]o person shall be eligible for parole who is convicted ... after June 30,1995[.]” The SMCI canteen sold Johnson his drinking mug. Johnson bought his drinking mug, using his own money from his inmate account, and at the time of purchase, the drinking mug was an authorized piece of personal property for an inmate to possess. Further, and important to note, the record does not contain any allegation that Johnson was using his drinking mug for any prohibited purpose. If proof exists that Johnson was responsible for altering an acceptable item to conceal contraband, then the MDOC and SMCI would be justified in confiscating the item without just compensation. The MDOC and SMCI did offer Johnson the opportunity to mail his drinking mug to his home at his own expense as an alternative; however, due to the life sentence he is serving, the confiscation of his drinking mug, even if shipped home, results in a permanent deprivation of his possessory rights. In Johnson’s case, an offer to ship the confiscated, drinking mug home rings hollow since he would still be deprived permanently of the use of his personal property. In City of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434, 435 (1894), the supreme court held that an individual is “entitled to due compensation for, not the taking only of his property for public use, but for all damages to his property that may result from works for public use. He is now secured in his property, and his use and enjoyment of his property.” Johnson is entitled to just compensation based on the MDOC and SMCI’s deprivation of his possessory right to his drinking mug. Further, we find the public use in this case lies in the MDOC’s and SMCI’s destruction or deprivation of the use of the drinking mug.

¶ 9. It is undisputed that MDOC and SMCI have the authority to declare items as contraband when the inmates’ possession of the items becomes a security issue or when an inmate alters a previously acceptable item into a contraband item. We do not seek to interfere with the MDOC’s management and control of its prison facilities. “The courts will not interfere with prison rules and regulations unless the rules clearly deprive the prisoner of some fundamental constitutional right. The operation of a prison and the enforcement of its rules and regulations are ordinarily within the sound discretion of the prison administrator.” Morgan v. Cook, 236 So.2d 749, 750 (Miss.1970) (citations omitted). We are compelled to conclude that the MDOC’s action in this case did violate Johnson’s constitutional right under the Mississippi Constitution.

¶ 10. We find the MDOC’s decision to deny Johnson relief was violative of Johnson’s constitutional rights. Under these unusual facts presented, there has been an unlawful taking for public use without just compensation. Therefore, we reverse and render this case. The MDOC or SMCI shall either provide Johnson a translucent, 16-ounce, drinking mug comparable to the one seized or restore the funds to Johnson’s inmate account for the amount of the confiscated, drinking mug Johnson had originally purchased.

¶11. THE JUDGMENT OF THE GREENE COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . Details concerning the operation and administration of the ARP may be found in the MDOC Inmate Handbook published on the MDOC Web site.

      . The record does not contain a response from SMCI or MDOC regarding Johnson’s third request to the ARP. The record does provide a document informing Johnson of changes to the ARP process in which the United States District Court of the Northern District of Mississippi entered an order dated September 16, 2010, reducing the ARP process from three steps to two steps.

      . In Cohea, the district court found that Danny Cohea failed to provide facts to support that his property was taken for public use; therefore, he failed to state a claim under the Takings Clause. 2009 WL 498289 at *5.

      . Mississippi Code Annotated section 47-7-3 provides exceptions to when a person may be eligible for parole; however, none of these exceptions are applicable in the current case.


author: IRVING, P.J.,

text:
    Daniel A. GAW, Appellant v. Davie SELDON, Appellee.
    No. 2011-CA-00197-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.

      Jennifer Lee Shackelford, attorney for appellant.
    No Brief Filed, for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Daniel A. Gaw owns a forty-foot easement over Davie Seldon’s property. Davie purchased the property in 2006, but he does not live on the property. Davie’s son, John Seldon, lives on the property. In 2009, John erected brick columns at the entrance to the property, which encroached upon Gaw’s easement. The same year, Gaw contacted the Marshall County Health Department to report the existence of waste water on his property. Following an inspection, the Health Department determined that the water was originating from the septic tank on Davie’s property. On December 22, 2009, Gaw filed a complaint in the Marshall County Chancery Court, seeking the removal of the brick columns because they encroached upon his easement. Additionally, Gaw alleged that the waste water leaking from Davie’s septic tank onto his property constituted a trespass and a private nuisance. Davie filed a cross-complaint alleging that Gaw had interfered with his property while repairing the easement.

¶ 2. The chancery court denied all of Gaw’s claims and Davie’s cross-claim. The court ordered that the brick columns could remain until such time that Gaw demonstrated that they impeded the use of his easement. Additionally, the court found that the septic tank had been repaired and did not constitute a private nuisance or a trespass.

¶ 3. Feeling aggrieved, Gaw appeals and argues that the chancery court erred in: (1) finding that the brick columns could remain even though they encroached upon his easement, (2) finding that the waste water from Davie’s septic tank did not constitute a nuisance or a trespass, and (3) admitting evidence and testimony that was not produced in discovery. Davie did not file a cross-appeal or an appellate brief.

¶ 4. Because the chancery court failed to find that the waste water that leaked on to Gaw’s property from Davie’s septic tank constituted a nuisance, we reverse the judgment of the chancery court as to that issue and render an award of $10 in nominal damages in favor of Gaw.

FACTS

¶ 5. In 2001, Gaw purchased sixty acres of real property located in Red Banks, Mississippi, from Lois Anderson, which included a forty-foot easement. The easement is reflected on the deed to the property, which was recorded. Gaw also purchased property adjoining the sixty-acres from Doug Anderson, upon which Gaw and his wife have lived since 2004. In 2006, Davie purchased property from Lois, including the property upon which Gaw’s easement is located. Davie’s son, John, lives on the property. Davie testified that his deed did not reflect Gaw’s easement, nor was it discovered through the title search.

¶ 6. John testified that, sometime in 2007, Gaw approached him regarding the easement. Additionally, John stated that Gaw had mailed a copy of the deed reflecting his easement to Davie. However, John maintained that the deed held by his father did not mention the easement. In an effort to resolve the dispute over the existence of Gaw’s easement, John had the property surveyed. The survey confirmed the existence of Gaw’s easement over Da-vie’s property.

¶ 7. In 2008, Gaw hired Mike Atkins to survey the property. Atkins marked the easement using flags and iron rods; however, as he performed his work, John confronted him and ordered him off of the property. The police were called, but Atkins was allowed to complete the survey.

¶ 8. On June 26, 2009, Gaw filed a complaint with the Health Department due to the existence of waste water on his property. Following an investigation, the Health Department determined that the water was coming from septic tanks located on Davie’s property and a neighboring property owned by Patricia Marley. The Health Department mailed enforcement notices to Davie and Marley, informing them that they had thirty days to repair or replace their septic systems. The Health Department approved Marley’s repairs to her system on September 9, 2009. Davie’s septic tank had to be replaced rather than repaired. John, who was a licensed septic-tank installer, testified that rain inhibited his ability to install the new septic tank, and he did not finalize the installation until December 29, 2009. Derrick Sullivan, a representative from the Health Department, confirmed that rain had delayed the installation, but he also testified that the Health Department had initiated legal proceedings against Davie in the Marshall County Justice Court on October 5, 2009, based on his failure to timely comply with the department’s enforcement notice. However, once the new septic tank was installed and approved, the Health Department asked the justice court to dismiss the case.

¶ 9. In November 2009, John erected two brick columns marking the entrance to the Seldons’ property. In response, Gaw hired Atkins to perform a second survey, which revealed that the brick entrance encroached upon his easement by nine and one-half feet. Gaw’s attorney sent Davie a letter advising him that the brick entrance encroached upon Gaw’s easement, and demanding that he remove it within seven days. When Davie failed to remove the entrance, Gaw filed his complaint, seeking removal of the columns.

¶ 10. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 11. At the outset, we note that Davie did not file an appellate brief. Generally, “[f]ailure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of appealing party, that there was no error.” Sanders v. Chamblee, 819 So.2d 1275, 1277 (¶ 5) (Miss.2002) (quoting Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984)). However, “[w]here the appellant’s brief makes out an apparent case of error, we do not regard it as our obligation to look to the record to find a way to avoid the force of the appellant[’s] argument.” Id. (quoting Dethlefs, 458 So.2d at 717). Based on our review of the record, and as discussed more fully below, we cannot say with confidence that the chancery court did not err.

¶ 12. An appellate court employs a limited standard of review in chancery matters. Miller v. Parker McCurley Prop., LLC, 36 So.3d 1234, 1239 (¶ 9) (Miss.2010). Accordingly, a chancery court’s findings will not be disturbed on appeal “unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Id. (quoting Powell v. Campbell, 912 So.2d 978, 981 (¶ 8) (Miss.2005)). However, questions of law are reviewed de novo. Id.

1. Encroachment Upon Gaw’s Easement

¶ 13. Gaw argues that the chancery court erred in finding that John’s brick columns could remain standing even though they encroached upon his easement. Gaw contends that he is entitled to damages based on the encroachment. Da-vie’s property was subject to Gaw’s perpetual, forty-foot easement for the purpose of ingress and egress. As the easement owner, Gaw holds the dominant tenement. Davie, as the property owner, holds the servient tenement.

¶ 14. “Where a private right of way exists, the owners of the dominant and servient tenements must each use the way in such a manner as not to interfere with one another’s utilization thereof.” Kennedy v. Anderson, 881 So.2d 340, 346 (¶ 25) (Miss.Ct.App.2004) (quoting Feld v. Young Men’s Hebrew Ass’n, 208 Miss. 451, 458, 44 So.2d 538, 540 (1950)). Furthermore, “[t]he grant of a right of way over land does not pass any other right or incident. The owner of the soil retains full dominion over his land subject merely to the right of way. He may make any use of his land which does not interfere with a reasonable use of the way.” Feld, 208 Miss. at 458-59, 44 So.2d at 540 (citation omitted).

¶ 15. The chancery court found that while the brick columns encroached upon Gaw’s easement, they did not interfere with his reasonable use of it. As stated above, the columns encroached upon Gaw’s forty-foot easement by nine and one-half feet. However, Gaw testified that the columns did not presently impede his ability to use the easement for ingress and egress to his property, which is the express purpose of the easement. While Gaw testified that he plans to build a barn and a house on the property in the future, and the columns might prevent large pieces of construction equipment from traveling along his easement, he admitted that he had not begun construction on either project. Consequently, the chancery court did not err in allowing the columns to remain until such time that Gaw could show that they interfered with his use of the easement. This issue is without merit.

2. Nuisance & Trespass

¶ 16. Gaw argues that the chancery court erred in finding that the waste water that leaked from Davie’s septic tank onto Gaw’s property did not constitute a nuisance or a trespass. In refusing to find that the waste water constituted a nuisance or a trespass, the chancery court reasoned that John had replaced the tank as soon as practicable given the rainy weather and that following the septic tank’s replacement, waste water was no longer leaking on to Gaw’s property.

a. Nuisance

¶ 17. “A private nuisance is a nontrespassory invasion of another’s interest in the use and enjoyment of his property.” Biglane v. Under the Hill Corp., 949 So.2d 9, 14 (¶ 18) (Miss.2007) (quoting Leaf River Forest Prod., Inc. v. Ferguson, 662 So.2d 648, 662 (Miss.1995)). A private nuisance arises where a landowner uses his property in a manner that “unreasonably annoyfs], inconvenience[s], or harm[s] others.” Id. (quoting Ferguson, 662 So.2d at 662). Liability for a private nuisance requires “an invasion of another’s interest in the private use and enjoyment of land [where] that invasion is either (a) intentional and unreasonable, or (b) unintentional but otherwise provides the basis for a cause of action for negligent or reckless conduct or for abnormally dangerous conditions or activities.” Id. at (¶ 19) (quoting Ferguson, 662 So.2d at 662).

¶ 18. A determination of liability for a private nuisance requires consideration of the interest invaded (use and enjoyment of property) and the type of conduct that caused the invasion (intentional or unintentional). See Restatement (Second) Torts § 822 cmt. c. (1977). “A person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case, and he is subject to liability for an unintentional invasion when his conduct is negligent, reekless[,] or abnormally dangerous.” Id.

¶ 19. John testified that the septic tank was on the property when his father purchased it in 2006. During the time John lived on the property, he testified that he had no problems with the system. John testified that he did not know the septic tank was malfunctioning until the Health Department notified him. However, Gaw testified that the leaking waste water was “like having a river flow through [his] property.” Additionally, the leak was significant enough to prompt an investigation by the Health Department. Finally, John admitted that he was a licensed septic-tank installer.

¶20. Based on the extent of the leak and on John’s septic-tank expertise, we cannot say that the Seldons were not negligent for allowing waste water to flow on to Caw’s property. Therefore, the chancery court erred in failing to find that the waste water constituted a nuisance.

¶ 21. While Gaw testified that the leaking waste water was “like having a river flow through [his] property” and that he “just about sunk a tractor” trying to navigate through the wet ground, he provided no proof of actual damages suffered as a result of the waste water. Nonetheless, he is entitled to nominal damages. See Love Petroleum Co. v. Jones, 205 So.2d 274, 276 (Miss.1967) (stating that a landowner who fails to prove actual damages stemming from a nuisance is entitled to at least nominal damages).

¶ 22. The Mississippi Supreme Court has previously held that where the only issue to be resolved is an award of nominal damages, an appellate court may “revers[e] and renderf ] an award of nominal damages without the necessity of remand or retrial.” Whitten v. Cox, 799 So.2d 1, 18 (¶ 47) (Miss.2000) (citing Daniel v. McNeel, 221 Miss. 666, 668, 74 So.2d 753, 754 (1954)) (rendering an award of $10 where the only remaining issue was a determination of nominal damages). Accordingly, we reverse and render as to the nuisance issue and award Gaw nominal damages of $10.

b. Trespass

¶ 23. Liability for trespass requires proof of: (1) interference with the right of exclusive possession of one’s land and (2) an invasion that is the “direct result of some act committed by the defendant.” Thomas v. Harrah’s Vicksburg Corp., 734 So.2d 312, 315 (¶ 7) (Miss.Ct.App.1999) (quoting W. Page Keeton et al., ProsseR and Keeton on Torts, § 13 at 67 (5th ed.1984)). Additionally, because trespass is an intentional tort, there must be proof that the trespasser “inten[ded] to enter upon the particular piece of land in question.” Id. at 316 (¶ 8) (quoting Restatement (Second) Torts § 163 cmt. b (1977)).

¶ 24. As discussed above, Gaw failed to prove actual damages stemming from the waste water. Therefore, even if we were to find that the waste water constituted a trespass, Gaw would only be entitled to an award of nominal damages. See Whitten, 799 So.2d at 18 (¶ 46) (noting that every trespass gives the owner the right to at least nominal damages). However, we need not reach the trespass issue given that “double recovery for the same harm is not permissible.” City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 711 (¶ 41) (Miss.2005) (citation omitted) (refusing to allow double recovery where the damages for two separate causes of action were the same).

3. Admission of Evidence Not Provided in Discovery

¶ 25. As his final issue, Gaw argues that the chancellor erred in admitting evidence at the hearing that was not produced in discovery. According to Gaw, Davie did not respond to any discovery requests. As such, Gaw contends that Da-vie should not have been permitted to present evidence at the hearing. “A trial court has considerable discretion regarding discovery matters.” Estate of Bolden ex rel. Bolden v. Williams, 17 So.3d 1069, 1072 (¶ 14) (Miss.2009) (citing Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992)). However, “[exclusion of evidence for a discovery violation is an extreme measure, and lower courts should exercise caution before doing so, because our courts are ‘courts of justice and not of form.’ ” Id. (quoting Caracci v. Int’l Paper Co., 699 So.2d 546, 556 (¶ 17) (Miss.1997)).

¶ 26. Under the Mississippi Rules of Civil Procedure, “failure to make or cooperate in discovery should first be resolved by making a motion in the proper court requesting an order compelling such discovery.” Caracci, 699 So.2d at 557 (¶ 19) (citing M.R.C.P. 37(a)(2)). “After such an order to compel has been granted under [Rule] 37(a)(2), and the party ordered to answer fails to respond, then the remedy may be sanctions in accordance with [Rule] 37(b) [of the Mississippi Rules of Civil Procedure],” which include the exclusion of evidence not disclosed in discovery. Id. (citation omitted); M.R.C.P. 37(b)(2)(B).

¶ 27. Based on our review of the record, Gaw propounded discovery on Davie in the form of interrogatories and requests for production of documents on February 23, 2010. However, there is no evidence that he filed a motion to compel with the court when Davie failed to respond. At the hearing on August 16, 2010, Gaw’s attorney brought up Davie’s failure to respond to discovery, and the chancellor offered to entertain a motion for a continuance so that Gaw could obtain the necessary discovery. However, Gaw’s attorney stated that she did not want to continue the case.

¶ 28. In Caracci, our supreme court held that where a party is aware of the opposing party’s failure to fully answer discovery, they may not wait until trial to object to the discovery violations and then ask the court to exclude evidence not disclosed in discovery. Caracci, 699 So.2d at 557 (¶ 22). Instead, that party is required to ask the court to compel the opposing party to comply with discovery requests. Id.

¶ 29. Because Gaw failed to file a motion to compel and refused the chancery court’s offer to continue the case, we cannot say that the court abused its discretion in admitting certain evidence not produced in discovery. This issue is without merit.

¶ 30. THE JUDGMENT OF THE MARSHALL COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. ROBERTS, J„ NOT PARTICIPATING.

      . As mentioned previously, Gaw's complaint also alleged trespass and private nuisance based on the waste water flowing onto his property from Davie’s septic system. At the time Gaw filed his complaint, the Seldons had yet to complete the installation of the new septic tank.

        . Mississippi has adopted the elements found in the Restatement (Second) of Torts § 822 (1977).

      . Based on Gaw's attorney's statements at the hearing, she had previously brought up Da-vie's failure to respond to discovery at the hearing on Davie's motion to continue. However, neither Davie’s motion for a continuance, Gaw’s response to the motion, nor the transcript from the hearing on the motion is included in the record. The chancery court’s order granting the continuance is included in the record before us, but it does not address discovery or order Davie to respond to outstanding discovery.


author: CARLTON, J.,

text:
    WILTON ACQUISITIONS CORP., Appellant v. FIRST METHODIST CHURCH OF BILOXI, MISSISSIPPI, Appellee.
    No. 2010-CA-01457-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.

      Ronald G. Peresich, Biloxi, Johanna Malbrough McMullan, Jackson, Ronald Giles Peresich Jr., Biloxi, attorneys for appellant.
    William Corban Gunn, attorney for ap-pellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Wilton Acquisitions Corporation (Wilton Corp.) appeals from the judgment of the Harrison County Chancery Court which dismissed, with prejudice, Wilton Corp.’s lawsuit against First Methodist Church of Biloxi, Mississippi (First Methodist). The chancellor dismissed the suit pursuant to Mississippi Rule of Civil Procedure 37, due to discovery misconduct on behalf of Wilton Corp. However, we find that the chancellor improperly certified his order dismissing Wilton Corp.’s lawsuit with prejudice as a Rule 54(b) judgment. Accordingly, we dismiss the appeal and remand the case to the chancellor for the determination of the issue of attorney’s fees.

FACTS

¶ 2. On November 13, 2006, Wilton Corp., a California-based real-estate developer, signed a real-estate purchase agreement (Agreement) to buy real property in Biloxi, Mississippi, owned by First Methodist. Wilton Corp. paid $300,000 in earnest money for the purchase of First Methodist’s property and buildings. The Agreement was contingent on certain warranties, and it included a due-diligence period until April 26, 2007, for Wilton Corp. to conduct any inspections of the property it felt were necessary. The Agreement stated that “if, during its Due Diligence Period, Wilton [Corp.] was not satisfied with its investigation, Wilton [Corp.] could terminate the Contract.”

¶ 3. When a May 25, 2007 inspection revealed the presence of asbestos-containing materials on the property, Wilton Corp. alerted First Methodist on June 14, 2007, that it intended to exercise its right to terminate the Agreement. However, First Methodist refused to refund the $300,000 in earnest money due to the expiration of the due-diligence period. Wilton Corp. filed suit in Harrison County Chancery Court for specific performance of the Agreement, breach of contract, breach of the duty of good faith and fair dealing, promissory estoppel, misrepresentation, and equitable estoppel.

¶ 4. The chancery court entered an agreed scheduling order, which set trial for September 9, 2009, and the order also included a deadline for the completion of discovery on or before July 24, 2009. First Methodist requested dates from Wilton Corp. to depose the owner, agent, employees, and Rule 30(b)(6) corporate representatives of Wilton Corp. Prior to the start of the depositions scheduled for July 13, 2009, counsel for Wilton Corp. informed First Methodist that none of the requested Wilton Corp. deponents would be able to attend the depositions. Wilton Corp. explained that Jay Wilton, the president and principal owner of Wilton Corp., had traveled from California to Mississippi to attend the depositions, but en route, he became acutely ill. Jay had to return to California for medical treatment. First Methodist then filed a motion to amend the scheduling order and extend the deadlines for discovery and depositions until September 2, 2009, one week before the scheduled trial date. Wilton Corp. filed a motion to continue the trial and a motion to determine the deposition location, requesting the chancellor to require counsel for First Methodist to travel to California to conduct the depositions.

¶ 5. The chancellor held a status conference on the motions, and he ultimately ordered the trial continued until October 21, 2009. The chancellor denied Wilton Corp.’s request that counsel for First Methodist travel to California to conduct the depositions, and he ordered that Wilton Corp.:

shall present its witnesses[,] both corporate and individuals^] notice for deposition[s] in Biloxi, Mississippi^] on Monday and Tuesday, October 19th and 20th, 2009.... In the event [Wilton Corp.] fails to provide these witnesses [notice] for their pretrial testimony, the court will consider any and all appropriate sanctions including but not limited to sanctions set forth in Rule 37 of the Mississippi Rules of Civil Procedure[,] which may include the dismissal of [Wilton Corp.’s] complaint with prejudice and the striking of [Wilton Corp.’s] answer and defenses to counterclaims of [First Methodist].

¶ 6. On the morning of October 19, 2009, counsel for Wilton Corp. contacted counsel for First Methodist, stating that his daughter was ill and that Wilton Corp.’s plane would not arrive in Gulfport, Mississippi, until 2:30 p.m. due to the deponents’ belief that the depositions were scheduled for October 20, 2009. First Methodist then filed a motion to dismiss and a motion for sanctions pursuant to Rule 37(b)(2)(c) and 37(c) based on Wilton Corp.’s discovery misconduct.

¶ 7. On October 20, 2009, the chancellor held an emergency hearing on First Methodist’s motions for sanctions for discovery misconduct pursuant to Rule 37. The chancellor heard arguments from both parties and the testimonies of Jay and Wilton Corp.’s former counsel, Scott Smith. After the hearing, the chancellor granted both First Methodist’s motion to dismiss and its motion for sanctions, and he dismissed Wilton Corp’s claims with prejudice. The chancellor held Wilton Corp. had willfully failed to appear for certain depositions; thus, its claims should be dismissed with prejudice. The chancellor certified his judgment as final under Mississippi Rule of Civil Procedure 54(b). Regarding the issue of attorney’s fees, the chancellor ordered:

IT IS FURTHER,
Ordered and Adjudged that the issue of attorney’s fees requested by First Methodist Church and other costs is taken under advisement until the Defendant submits sufficient information on which the Court can base its decision, IT IS FURTHER,
Ordered and Adjudged that this is a final judgment under Rule 54(b) as to all matters addressed herein.

The chancellor later denied Wilton Corp’s motion for reconsideration of his order of dismissal. In his order denying the motion for reconsideration, the chancellor again discussed the issue of attorney’s fees, stating:

The case, sub judice, was dismissed pri- or to trial and, as a result, most of the work performed by the attorneys was outside the presence of this court. Therefore, the Court needs information which specifically addresses each of the factors set forth in [Tupelo Redevelopment Agency v. Gray Corp., 972 So.2d 495, 520-21 (Miss.2007) ] to determine what [amount of attorney’s fees] is reasonable. The Court finds that the parties shall confer and schedule a hearing on a mutually agreeable date to specifically address each and every one of those factors.
For the reasons stated above, it is hereby Ordered and Adjudged as follows:
Ordered and Adjudged that there is no just reason for delay and that judgment shall be final pursuant to [Rule] 54(b) as to all claims in the matter with the exception of the amount of expenses and attorney’s fees to be awarded, if any. It is further,
Ordered and Adjudged that the parties shall confer and schedule a hearing on mutually agreeable date to specifically address all of the factors set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct and discussed in [Tupelo Redevelopment Agency, 972 So.2d at 520-21].

(Emphasis added). Wilton Corp. now appeals.

STANDARD OF REVIEW

¶ 8. We review a Rule 54(b) judgment under an abuse-of-discretion standard” Laird v. ERA Bayshore Realty, 841 So.2d 178, 180 (¶ 7) (Miss.Ct.App.2003) (citation omitted). Rule 54(b) “attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties.” Myatt v. Peco Foods of Mississippi, Inc., 22 So.3d 334, 340 (¶ 12) (Miss.Ct.App.2009) (citation omitted).

DISCUSSION

¶ 9. The chancellor dismissed Wilton’s Corp.’s claims with prejudice and reserved ruling on attorney’s fees after finding that Wilton Corp. had willfully failed to appear for certain depositions. The chancellor certified both his order of dismissal and the subsequent denial of Wilton Corp.’s motion for reconsideration as Rule 54(b) judgments. However, our review of the record reveals that although the chancellor dismissed this action with prejudice as a sanction for Wilton Corp.’s discovery misconduct and certified his judgment under Rule 54(b), the chancellor reserved ruling on awarding attorney’s fees.

¶ 10. Rule 54(b) provides:

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

¶ 11. Turning to the record, we find that the chancellor concluded his order dismissing Wilton Corp.’s case with prejudice with the following language:

IT IS FURTHER,
Ordered and Adjudged that the issue of attorney’s fees requested by First Methodist Church and other costs is taken under advisement until the Defendant submits sufficient information on which the Court can base its decision, IT IS FURTHER,
Ordered and Adjudged that this is a final judgment under Rule 54(b) as to all matters addressed herein.

Additionally, in his order denying Wilton’s motion for reconsideration, the chancellor again discussed the issue of attorney’s fees, stating:

The case, sub judice, was dismissed pri- or to trial and, as a result, most of the work performed by the attorneys was outside the presence of this court. Therefore, the Court needs information which specifically addresses each of the factors set forth in [Tupelo Redevelopment Agency, 972 So.2d at 520-21] to determine what [amount of attorney’s fees] is reasonable. The Court finds that the parties shall confer and schedule a hearing on a mutually agreeable date to specifically address each and every one of those factors.
For the reasons stated above, it is hereby Ordered and Adjudged as follows:
Ordered and Adjudged that there is no just reason for delay and that judgment shall be final pursuant to [Rule] 5k(b) as to all claims in the matter with the exception of the amount of expenses and attorney’s fees to be awarded, if any. It is further,
Ordered and Adjudged that the parties shall confer and schedule a hearing on mutually agreeable date to specifically address all of the factors set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct and discussed in [Tupelo Redevelopment Agency, 972 So.2d at 520-21].

(Emphasis added).

¶ 12. Despite the chancellor’s designation of his order as a Rule 54(b) judgment and despite the inclusion of the necessary wording required by Rule 54(b), we hold that the chancellor’s order was not a final, appealable order because it left First Methodist’s claim for attorney’s fees pending. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-44, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976) (The United States Supreme Court found that a judgment was not appealable merely because it contained the recital required by Rule 54(b).); Chevis v. Mississippi Farm Bureau Mut. Ins. Co., 76 So.3d 187, 190-91 (¶ 11) (Miss.Ct.App.2011); Myatt, 22 So.3d at 339 (¶¶ 10-11). Since the issue of attorney’s fees is still pending in the chancery court, we find that the chancellor abused his discretion by improperly certifying his order of dismissal as a Rule 54(b) judgment. Therefore, this case cannot properly be brought before the Court for appellate review under Mississippi Rule of Appellate Procedure 4. Colom Law Firm, LLC v. Bd. of Trustees, 16 So.3d 692, 695-96 (¶¶ 14-15) (Miss.2009); Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 900 (Miss.1987) (applying an abuse-of-discretion standard to appellate review of Rule 54(b) judgments); Byrd v. Miss. Power Co., 943 So.2d 108, 112 (¶ 14) (Miss.Ct.App.2006).

¶ 13. We find the record unclear as to why the chancellor certified this judgment as final under Rule 54(b) when an item of requested relief, First Methodist’s request for attorney’s fees, was still pending. We find no apparent reason from the record to review a partial judgment; therefore, we must dismiss this appeal. See Walters v. Walters, 956 So.2d 1050, 1054 (¶ 8) (Miss.Ct.App.2007) (A final, appealable judgment adjudicates the merits of the case and settles all issues as to all the parties, requiring no further action by the lower court.); Laird, 841 So.2d at 180 (¶ 7). This Court has recognized the supreme court’s admonition that the trial court’s authority to enter a Rule 54(b) judgment should be exercised with caution in the interest of sound judicial administration to preserve the judicial policy against piecemeal appeals. Walters, 956 So.2d at 1054 (¶ 13) (citing Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 900 (Miss.1987)).

¶ 14. In the determination of whether the chancellor’s judgment constitutes a final judgment, we must evaluate whether factual matters remain pending below. Regarding the finality of judgments, the Mississippi Supreme Court has held that where an item of requested relief is not addressed by the purported final judgment and the omission is not obvious from a review of the record, remand of an omitted issue alone is the appropriate remedy. Parker v. Livingston, 817 So.2d 554, 566 (¶ 47) (Miss.2002) (citing Precision Interlock Log Homes, Inc. v. O’Neal, 689 So.2d 778, 780 (Miss.1997)). The record before us reflects that the chancellor failed to fully adjudicate the issue of attorney’s fees. We therefore find that the chancellor’s judgment does not constitute a final judgment from which an appeal can be taken, and the chancellor improperly certified his order as final under Rule 54(b).

¶ 15. Accordingly, this appeal is improperly before this Court. The present appeal is dismissed, and the improperly certified Rule 54(b) judgment dismissing Wilton Corp.’s claims shall be vacated until the entire case is resolved and the chancellor enters a final judgment on all claims.

¶ 16. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ, BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.

      . The record reflects that Covington and Associates Corp. performed the inspection and issued a report to Wilton Corp. on June 6, 2007.

      . M.R.C.P. 30(b)(6).

      . In the record before this Court, the trial court’s docket as of December 6, "2010, reveals no action on an award of attorney’s fees. While Wilton Corp.'s complaint asserted multiple claims, we note that the Rule 37 judgment of dismissal and the order denying Wilton Corp.’s motion for reconsideration both show thát the chancellor dismissed with prejudice "all claims” brought' by Wilton Corp.


author: BARNES, J.,

text:
    Robert S. SCRUGGS, Appellant v. BOARD OF SUPERVISORS ALCORN COUNTY COMMISSIONERS, et al., Appellees.
    No. 2010-CP-01775-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.

      Robert S. Scruggs, pro se.
    Robert Glenn Krohn, attorney for appel-lees.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Robert Scruggs, appearing pro se, appeals the dismissal of his complaint regarding his request for public records in the Alcorn County Chancery Court. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On July 19, 2010, Scruggs, an inmate of the Mississippi Department of Corrections, filed a cause of action styled “Civil Action Under Mississippi Public Records Act of 1983, Miss.Code Ann. Section 26-61-1-9-11” in the Chancery Court of Alcorn County against the “Board of Supervisors Alcorn County Commissioners et al.” (Respondents). Scruggs sought facts about Jeff Palmer’s termination from the joint drug task force of Corinth, Mississippi. Scruggs alleged that Palmer was dismissed for tampering and planting evidence of the use of drugs. Scruggs claimed he had requested public information about Palmer, and the information had not been provided.

¶ 3. In response, the Respondents filed motions to dismiss on various grounds, including that Scruggs has not exhausted his administrative remedies by making a written demand for public records in Al-corn County. Respondents argued that, assuming the document was a properly filed complaint, it should be dismissed under Mississippi Rule of Civil Procedure 12(b)(6) for failure to state a claim, as the pleading did not identify any records or documents being sought by Scruggs. Additionally, the Respondents requested a more definite statement because the pleading was too vague to understand and answer. Alternatively, Respondents moved to strike the pleading because it did not identify the public information requested and the date of the request. Finally, the Respondents claimed Scruggs failed to comply with Rule 2.07 of the Uniform Chancery Court Rules in that his pleadings were not paragraphed. The Respondents attached to its motion an affidavit by Bobby Marolt, Chancery Clerk of Alcorn County. Marolt swore under oath that Scruggs had not made any oral or written requests to the Respondents for public information of any kind. Scruggs filed a motion to amend his pleadings, requesting the personnel files of Marcus Mills, a drug task force officer. The chancery court denied the motion. Scruggs then requested issuance of a subpoena duces tecum for the same records that are the subject of this lawsuit. The Respondents filed a motion to quash the request, which had been mailed to them as well as to the chancery court.

¶ 4. In August 2010, the chancery court ordered the Respondents to produce to the court for an in-camera inspection the redacted personnel files of former county employees Palmer and Mills. After thoroughly reviewing the redacted records, the chancellor entered an order on September 28, 2010, dismissing Scruggs’s case. The chancellor found that the only notice received by the Alcorn County Board of Supervisors (Board) of a request for public records was the “civil action” filed by Scruggs. The chancellor noted:

This “Civil Action” does not contain numbered paragraphs, does not contain one subject matter per paragraph, is almost entirely abstract statements of law, alleges almost no facts, does not identify any requested documentation, does not indicate a request had been previously made for such information to any department of Alcorn County, Mississippi, is vague, is ambiguous, and it is impossible to fashion an answer to this document and is in violation of Rule 12(b)(6) ... because a careful reading of the document does not identify any records being sought by Petitioner and this matter should be dismissed for failure to state a claim upon which relief can be granted.

The chancellor also noted that Alcorn County has not formally adopted a policy for handling requests for public information.

¶ 5. In his conclusions of law, the chancellor noted that Mississippi requires a person make a request to a public agency to obtain public records. Additionally, a party must exhaust all administrative remedies before bringing such matters to a court’s attention. After the in-camera review of the redacted personnel files of Palmer and Mills, the chancellor found there were “no instances of reprimand nor any reference to any untoward action or activity found in the personnel file” of either individual, and that they both “left their county employment on good terms.” The chancellor deemed the motion for a subpoena duces tecum moot.

¶ 6. Scruggs timely appealed the chancellor’s dismissal. After appealing, Scruggs filed with the Mississippi Supreme Court motions for depositions, discovery, and interrogatories, which were denied.

STANDARD OF REVIEW

¶ 7. A limited standard of review is employed on appeals from the chancery court. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). The reviewing court will not disturb the factual findings of the chancellor “when supported by substantial evidence unless the court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Gannett River States Publ’g Corp. v. City of Jackson, 866 So.2d 462, 465 (¶11) (Miss.2004) (citing Morgan v. West, 812 So.2d 987, 990 (¶ 7) (Miss.2002)). Questions of law are reviewed de novo. The Court “will only reverse for an erroneous interpretation or application of the law.” Id.

ANALYSIS

¶ 8. On appeal, Scruggs insists that he was denied access to public records he had requested. In his reply brief, Scruggs claims he made a request, and at the time he filed his complaint, it was pending before the Alcorn County Sheriffs Department and the Board. Scruggs also maintains that his pleadings should not be held to the standard of a trained lawyer, as he appears pro se.

¶ 9. Mississippi Code Annotated section 25-61-5(l)(a) (Rev.2010) of the Mississippi Public Records Act requires that a person make a request to a public agency in order to obtain public records. “[I]f a public body has not adopted written procedures [concerning requests for public records], the right to inspect, copy or mechanically reproduce or obtain a reproduction of a public record of the public body shall be provided within one (1) working day after a urritten request for a public record is made.” (Emphasis added.) As the chancellor noted, the request must be in writing and identify the records requested. Furthermore, administrative relief requires a request and a denial of that request prior to institution of a suit. Mississippi Code Annotated section 25-61-13(1) (Rev.2010) states: “Any person denied the right granted by Section 25-61-5 to inspect or copy public records may institute a suit in the chancery court....” (Emphasis added.) Mississippi law on exhaustion of administrative remedies before bringing a matter to a court’s attention is well established:

One of the new rules growing out of administrative law is that known as exhaustion of administrative remedies.... ‘The doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the courts will act. This doctrine is well established, is a cardinal principle of practically universal application, and must be borne in mind by the courts in construing a statute providing for review of administrative action.’

Everitt v. Lovitt, 192 So.2d 422, 427 (Miss.1966) (quoting Davis v. Barr, 250 Miss. 54, 61-62, 157 So.2d 505, 506-07 (Miss.1963)).

¶ 10. Disregarding any inadequacy of Scruggs’s pleadings as a pro se litigant, there is no evidence in the record whatsoever that Scruggs ever filed a request for public information with the Respondents until the filing of his complaint. Moreover, the affidavit of the Alcorn County Chancery Clerk, attached to the Respondents’ motions to dismiss, states Scruggs never made an oral or written request to the Board for any public information. Mississippi law is clear that before seeking public records there must be a request made to the administrative agency identifying the public documents requested. Then, such a request must be denied by the administrative agency before institution of suit. We find no evidence in the record that there was a request pending in Alcorn County at the time of the suit’s filing, as Scruggs claims in his brief. Even in his complaint, Scruggs does not identify what records he had requested, merely stating: “Facts of Jeff Palmer’s termination from the Joint Drug Task Force of Corinth, Alcorn County, Iuka, and Tishomingo County.”

¶ 11. Scruggs’s request to amend his pleadings, claiming he was entitled to the personnel records of Palmer and Mills, was denied. We note personnel records in possession of a public body are generally exempt from the provisions of the Mississippi Public Records Act under Mississippi Code Annotated Section 25-1-100(1) (Rev.2010). Items such as gross salary and leave time are not exempt. Harrison Co. Dev. Comm’n v. Kinney, 920 So.2d 497, 502 (¶11) (Miss.Ct.App.2006). “When a public record is held to be exempt, but also contains material which is not exempt, the public body has a duty to separate the exempt material and make the nonexempt material available for examination and/or copying.” Id. at 502-03 (citing Miss.Code Ann. § 25-61-9(2) (Rev. 2003)). However, Scruggs did not request information about compensation or leave time. Even so, in August 2010, the chancellor ordered the Respondents to produce sua sponte for in-camera inspection the redacted personnel files of the former county employees Palmer and Mills. After inspecting the files, the chancellor found no “reprimands” or “untoward action” by the two individuals, which was apparently Scruggs’s concern. There is substantial evidence in the record to support the chancellor’s findings. Accordingly, we find no error in the chancellor’s dismissal of Scruggs’s complaint.

¶ 12. THE JUDGMENT OF THE AL-CORN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO AL-CORN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P JJ., ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR.

MAXWELL, J., NOT PARTICIPATING.

      . An Alcorn County jury convicted Scruggs of possession of cocaine with intent to sell and assault on a police officer. In August 1998, Scruggs received a thirty-year prison sentence as an habitual offender. See Scruggs v. Caldwell, 970 So.2d 1298, 1298-99 (¶ 2) (Miss.Ct.App.2007) (This Court affirmed the dismissal of a complaint, which alleged the Alcorn County Chancery Court had not provided him certain grand jury documents he had requested.).


author: GRIFFIS, P.J.,

text:
    The CIRLOT AGENCY, INC., Appellant v. SUNNY DELIGHT BEVERAGE COMPANY, Appellee.
    No. 2010-CA-01720-COA.
    Court of Appeals of Mississippi.
    April 3, 2012.

      Frank Malvin Holbrook, Paul Michael Ellis, Ridgeland, attorneys for appellant.
    Fred L. Banks Jr., Luther T. Munford, Benjamin Lyle Robinson, Jackson, James W. Craig, Jill P. Meyer, Monica L. Dias, attorneys for appellee.
    Before GRIFFIS, P.J., ISHEE, JJ. and MAXWELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. This appeal by The Cirlot Agency, Inc. (“Cirlot”) arises from the Rankin County Circuit Court’s grant of Sunny Delight Beverage Company’s (“Sunny Delight”) motion to dismiss for lack of personal jurisdiction. On appeal, Cirlot argues: (1) under the Mississippi long-arm statute, the circuit court had personal jurisdiction over Sunny Delight because Cir-lot entered into a contract with Sunny Delight to be performed in whole or in part in Mississippi; and (2) the exercise of personal jurisdiction over Sunny Delight does not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We reverse the circuit court’s dismissal of Sunny Delight for lack of personal jurisdiction, and remand for a trial on the merits.

FACTS

¶2. Sunny Delight is an Ohio corporation with its principal place of business in Cincinnati. Cirlot is a Mississippi corporation with its principal place of business in Flowood. In February 2007, David Silver, the Brand Manager for Sunny Delight’s soon-to-be launched Elations product line, contacted Cirlot in Mississippi about submitting a marketing campaign for Ela-tions.

¶ 3. On February 5, 2007, Silver emailed an executed “Mutual Non-Disclosure Agreement” (“Agreement”) to Lisa Comer at Cirlot. Richard Looser, President and Chief Operating Officer for Cirlot, executed the Agreement on behalf of Cirlot on February 6, 2007, and sent the executed Agreement back to Silver on the same day.

¶ 4. On February 6, 2007, Silver sent an email to Comer directing her to Sunny Delight’s Elations website. On February 9, 2007, Silver sent another email to Comer, which advised Cirlot about the timing of the Elations marketing campaign. On February 13, 2007, Silver sent Comer an email discussing Elations’ “brand personality.” Again on September 14, 2007, Silver sent an email to Comer discussing demographics and the timing of shipment of the Elations product. On February 15, 2007, Silver sent Comer an email requesting dates for Cirlot to make a proposal to Sunny Delight. Subsequent emails between Silver and Comer confirmed that Cirlot would make its proposal to Sunny Delight on February 28, 2007.

¶ 5. On the same day, Silver sent an email to Comer to congratulate Cirlot on the proposal and advised that Sunny Delight would be in touch in a few weeks. Silver subsequently advised Cirlot that Sunny Delight had chosen another public-relations firm.

¶ 6. On April 22, 2008, Cirlot filed a complaint in the Circuit Court of Rankin County, Mississippi. Cirlot alleged that, despite Sunny Delight’s selection of another marketing firm, Sunny Delight had implemented major components of the marketing strategy that Cirlot had presented to it.

¶ 7. On October 4, 2010, the circuit judge, after a hearing, granted Sunny Delight’s motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Mississippi Rules of Civil Procedure. On October 18, 2010, Cirlot timely filed its notice of appeal to this Court.

STANDARD OF REVIEW

¶ 8. This Court employs a de novo standard of review for analyzing a trial court’s grant or denial of a motion to dismiss. Smith v. City of Saltillo, 44 So.3d 438, 440 (¶ 5) (Miss.Ct.App.2010).

ANALYSIS

¶ 9. In approaching the question of whether a non-resident defendant is amenable to personal jurisdiction in this state, the Mississippi Supreme Court has stated:

Whether a Mississippi court may exercise personal jurisdiction over a nonresident defendant is determined through the application of a two-tiered analytical framework. Two distinct questions must be addressed. The first question is whether the defendant is amenable to suit here by virtue of the Mississippi long-arm statute, Miss.Code Ann. § 13-3-57 (Rev. 2002) (citation omitted). This inquiry is governed by Mississippi law. Assuming an affirmative answer, the second question is whether the defendant is amenable to suit in Mississippi consistent with the due process clauses of the federal constitution, and, as well, this state’s constitution. (Citation omitted). This inquiry is controlled by federal law.

Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972, 976 (¶ 12) (Miss.2004).

1. Whether the circuit court had personal jurisdiction over Sunny Delight under the contract prong of the Mississippi long-arm statute.

¶ 10. Under Mississippi’s long-arm statute, a non-resident defendant can be subject to personal jurisdiction under the contract prong of the statute, which states:

Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state ... shall thereby be subjected to the jurisdiction of the courts of this state.

Miss.Code. Ann. § 13-3-57.

¶ 11. Cirlot contends that its Agreement with Sunny Delight required contractual performance by Cirlot, in whole or in part, in Mississippi and that Sunny Delight breached the Agreement. The Agreement reads in part:

1. Purpose, the parties are interested in holding discussions regarding the development of new product(s) (the “Projects”). In connection with the Projects each party may disclose or has disclosed to the other party certain confidential technology and business information that the disclosing party desires the receiving party to treat as confidential.
2. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects including, without limitation, documents, operating plans, financial data, business plans, forecasts, designs, prototypes, concepts, technology, trade secrets, software, know-how, business information, product specifications, and formulae, as well as all data compilations, analyses, conversations, discussions, expressions of opinions, and descriptions of events that are relevant to the Projects.
3.Non-use and Non-disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to evaluate and engage in discussions concerning the Projects. Each party agrees not to disclose any Confidential Information of the other party to third parties or to the receiving party’s employees, except to those employees who are required to have the information in order to evaluate and engage in discussions concerning the Projects.
11. Miscellaneous. ... This agreement shall be interpreted and enforced in accordance with the law of the State of Ohio (regardless of the choice of law principles of Ohio or any other jurisdiction).

¶ 12. Sunny Delight argues that it is not subject to personal jurisdiction in Mississippi because the Agreement “was not a contract for services ... and did not require or demand that Cirlot prepare a marketing campaign.” Sunny Delight contends that the Agreement merely allowed the parties to engage in discussions and required the parties to “take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party.”

¶ 13. However, Sunny Delight’s contention fails to recognize the nature of Cirlot’s business — intellectual property. Thus, where a non-resident defendant, such as Sunny Delight, reaches out to Cirlot, whose stock and trade is the creation of intellectual property, and further requires Cirlot to sign a mutual non-disclosure agreement so that Cirlot can generate concepts and ideas for Sunny Delight, it cannot be said with any reason that the Agreement did not require performance by Cirlot in whole or in part in Mississippi.

¶ 14. We have held that:

Mississippi’s long-arm statute allows exercise of personal jurisdiction over a nonresident corporation if, among other situations, the nonresident made a contract with a Mississippi resident to be performed in whole or in part in this state. If such a contract was entered, then the non-resident will be subject to jurisdiction of Mississippi courts, provided that the exercise of jurisdiction is consistent with due process.

Am. Cable Corp. v. Trilogy Commc’ns, Inc., 754 So.2d 545, 549 (¶ 8) (Miss.Ct.App.2000) (internal citations omitted).

¶ 15. Sunny Delight argues that the Agreement was not a “contract for services” but merely an invitation to Cirlot to bid for Sunny Delight’s business. Thus, according to Sunny Delight, personal jurisdiction did not attach to it in Mississippi.

¶ 16. The label the parties choose to place upon an agreement is not dispositive in resolving its substantive meaning. Furthermore, Sunny Delight’s assertion that the Agreement was not a “contract for services” fails to take into consideration the realty of intellectual property in today’s marketplace. Sunny Delight obviously had an interest in protecting what it deemed confidential information that would be shared with Cirlot. If, in fact, Sunny Delight did not have such an interest, there would have been no need for the Agreement.

¶ 17. By entering into the Agreement, Cirlot was contractually obligated to protect Sunny Delight’s confidential information, and Sunny Delight was likewise contractually bound to protect Cirlot’s confidential information. As Cirlot and its employees are located in Mississippi, Cirlot’s performance under this Agreement occurred, at least in part, in Mississippi.

¶ 18. Furthermore, while the Agreement does require that it be interpreted under Ohio law, the Agreement does not contain a forum-selection clause. Should Sunny Delight have desired further protection with respect to the forum in which it was potentially subject to litigation, it could have dealt with this issue contractually. It did not.

¶ 19. Accordingly, we find that Sunny Delight is subject to personal jurisdiction under Mississippi’s long-arm statute.

2. Whether personal jurisdiction under the long-arm statute violates the Constitution.

¶ 20. The next inquiry requires this Court to determine whether Sunny Delight had sufficient minimum contacts with Mississippi for personal jurisdiction to be permissible under the Due Process Clause of the United States Constitution. A defendant must “have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Cappaert v. Walker, Bordelon, Hamlin, Theriot, and Hardy, 680 So.2d 881, 834 (Miss.1996) (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

¶21. Sunny Delight made the initial contact with Cirlot in Mississippi. In Aultman, Tyner & Ruffin, Ltd. v. Capital Rubber & Specialty Co., No. 2:10cv223KS-MTP, 2011 WL 213471, at *8 (S.D.Miss. Jan.21, 2011), the court stated:

When a nonresident defendant takes purposeful and affirmative action, the effect of which is to cause business activity, foreseeable by the defendant in the forum state, such action by the defendant is considered a minimum contact for jurisdictional purposes. Courts have continued to find that the initiation of contact by the defendant to be of considerable importance.

Id. (internal citation omitted).

¶ 22. “It is the purposefulness of the decision that is important and not the physical presence of the defendant in the state.” Am. Cable, 754 So.2d at 550-551 (¶ 19). Here, Sunny Delight reached out to Cirlot for the purpose of initiating business activity on the part of Cirlot. Sunny Delight seeks to downplay its contact in Mississippi by arguing that Cirlot was under no obligation to take any action with respect to the Elations advertising campaign. Sunny Delight cannot have it both ways. On the one hand, it cannot reach out to Cirlot to solicit a business opportunity, and then on the other, for purposes of escaping personal jurisdiction in Mississippi, maintain that it never required anything from Cirlot.

¶ 28. Once Sunny Delight formalized its relationship with Cirlot through the Agreement and began exchanging confidential information with Cirlot for the express purpose of enabling Cirlot to prepare a public-relations proposal, Sunny Delight’s activities were such that it could reasonably anticipate being haled into court in Mississippi.

¶ 24. In Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 419 (5th Cir.1993), the court stated minimum contacts are satisfied “by actions, or even just a single act, by which the nonresident defendant ‘purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its benefits and protections of its laws.’ ”

¶ 25. In Vig v. Indianapolis Life Insurance Company, 384 F.Supp.2d 975, 980 (S.D.Miss.2005), the court held: “It is well-established that ‘even a single purposeful contact is sufficient to satisfy the due process requirement of minimum contacts when the cause of action arises from that contact.’ ”

¶ 26. In Medical Assurance Company of Mississippi v. Jackson, 864 F.Supp. 576, 577 (S.D.Miss.1994), a Mississippi insurance company sued an Alabama attorney and client alleging a breach of a settlement agreement. Id. During settlement negotiations, the attorney, on behalf of his client, made two telephone calls and wrote two letters to the Mississippi insurance company. Id. In denying the defendants’ motion to dismiss for lack of personal jurisdiction, the court stated that: “A single act by the defendant directed at the forum state ... can be enough to confer personal jurisdiction if that act gives rise to the claim being asserted.” Id. at 579.

¶ 27. Sunny Delight’s activities in Mississippi were far more extensive than those supporting personal jurisdiction in Jackson. Sunny Delight initiated contact with Cirlot in Mississippi, entered into an Agreement with Cirlot to be performed, in whole or in part, in Mississippi and followed that with multiple written and telephone communications with respect to the proposed advertising campaign.

¶ 28. On this record, we find that Cir-lot’s cause of action arose from Sunny Delight’s contacts with Mississippi, which we find were sufficient to satisfy the due-process requirement of minimum contacts.

¶ 29. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.