author: CARLSON, Presiding Justice, for the Court: WALLER, Chief Justice, KITCHENS, Justice,

text:
    Dr. Jerry PRATT v. GULFPORT-BILOXI REGIONAL AIRPORT AUTHORITY d/b/a Gulfport-Biloxi International Airport.
    No. 2009-CT-01202-SCT.
    Supreme Court of Mississippi.
    Sept. 6, 2012.
    Chandler, J., filed opinion dissenting in part.
    Waller, C.J., filed dissenting opinion in which Chandler, J., joined, and Kitchens, J., joined in part.
    Kitchens, J., filed dissenting opinion in which Chandler, J., joined in part.

      Kenneth M. Altman, Jason Joseph Ruiz, Gulfport, attorneys for appellant.
    Cy Faneca, Trace D. McRaney, Gulf-port, attorneys for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice, for the Court:

¶ 1. Dr. Jerry Pratt slipped and fell down a set of stairs at the Gulfport-Biloxi Regional Airport. Pratt filed suit against the Gulfport-Biloxi Regional Airport Authority (GBRAA) in the Circuit Court for the First Judicial District of Harrison County, alleging negligence and claiming he suffered injuries as a result of the fall. GBRAA moved for summary judgment, claiming immunity under the Mississippi Tort Claims Act (MTCA), and the circuit court granted the motion. Pratt appealed, and we assigned the case to the Court of Appeals. The Court of Appeals, finding that genuine issues of material fact existed, reversed the trial court’s grant of summary judgment and remanded the case. GBRAA filed a petition for writ of certio-rari, which we granted. For the reasons discussed below, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court for the First Judicial District of Harrison County.

FACTS AND PROCEDURAL HISTORY

¶ 2. While construction was underway at the airport, GBRAA borrowed a set of metal “airstairs” from Northwest Airlines to use as a temporary means of accessing the tarmac from the terminal. The air-stairs were placed at Gate 5, and certain modifications were made to attach the stairs and ensure passenger safety. Once passengers exited the terminal, there was no cover over the platform directly outside the door or over the airstairs. The air-stairs were metal and had a raised diamond pattern that was intended to provide traction and prevent slipping, according to the manufacturer. Out of an abundance of caution, GBRAA added anti-slip tape to the platform and the stairs. The anti-slip tape covered the entire width of the platform. On the stairs, GBRAA employees put a two-foot piece of anti-slip tape in the middle of each step. The stairs were four feet wide, so twelve inches of metal were exposed on each side of the anti-slip tape.

¶ 3. On October 24, 2004, Pratt was at the airport to board a flight, which was loading at Gate 5. Pratt exited the terminal and was directed to use the airstairs to access the tarmac. When he stepped outside, he noticed that it had begun to rain. He crossed the platform and approached the airstairs. Pratt took the first step by placing his left foot to the side of the anti-slip tape on the top step. He slipped and fell down the entire length of the stairs. On April 14, 2006, Pratt filed suit against GBRAA in the Circuit Court for the First Judicial District of Harrison County, claiming that GBRAA had failed to maintain the temporary metal stail-well in a reasonably safe condition and had failed to warn him of a hidden dangerous condition. GBRAA moved for summary judgment on the basis that it had immunity under the MTCA because the alleged dangerous condition was open and obvious to one exercising due care and the alleged acts or omissions of the airport were discretionary functions. See Miss.Code Ann. §§ 11-46-9(1 )(d), (g), and (v) (Rev.2002). The circuit court granted GBRAA’s motion for summary judgment. Pratt appealed, and we assigned the case to the Court of Appeals.

¶ 4. With a five-to-four vote, the Court of Appeals reversed and remanded, holding that “the presence of genuine issues of material fact preclude[d] summary judgment under both rationales.” Pratt v. Gulfport-Biloxi Reg’l Airport Auth, 97 So.3d 80 (¶ 1) (Miss.Ct.App.2011). The four dissenting judges opined that GBRAA’s placement of the anti-slip tape on the stairs was a discretionary function involving a policy decision, thus GBRAA was immune from liability under the MTCA. After the Court of Appeals denied GBRAA’s motion for rehearing, GBRAA petitioned this Court for certiorari, which we granted.

DISCUSSION

¶ 5. Summary judgment is appropriate “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 that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). This Court applies a de novo standard of review to a circuit court’s grant or denial of summary judgment. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (Miss.2009). This Court views the evidence “in the light most favorable to the party against whom the motion has been made.” Id. (quoting Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)). However, the opposing party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Miss. R. Civ. P. 56(e).

¶ 6. The MTCA provides the exclusive remedy for claims against government entities. Miss.Code Ann. § 11-46-7 (Rev.2002). “Governmental entity” is defined as “the state and political subdivisions.” Miss.Code Ann. § ll-46-l(g) (Rev.2002). “Political subdivision” is defined as “any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any ... airport authority ...” Miss.Code Ann. § ll-46-l(i) (Rev.2002). It is undisputed that GBRAA is a political subdivision subject to the MTCA.

¶ 7. In the circuit court and Court of Appeals, GBRAA claimed that it was immune from liability because the relevant activity was a discretionary function and because the alleged dangerous condition was open and obvious to one exercising due care. See Miss.Code Ann. §§ 11 — 46— 9(l)(d), (g), and (v) (Rev.2002). In its petition for writ of certiorari, GBRAA has abandoned the “open and obvious” claim, so we will not address it here.

Whether GBRAA is entitled to immunity under the Mississippi Tort Claims Act, because the activity at issue was a discretionary function.

¶ 8. According to the MTCA, governmental entities are not liable for claims arising from discretionary functions, specifically, any claim:

(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused; [or] ...
(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental ser-viees[.]

Miss.Code Ann. §§ 11 — 46—9(l)(d), (g) (Rev. 2002). A two-part “public-policy function” test is applied to determine whether conduct is considered a discretionary function subject to immunity. Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 795 (Miss.2012). “This Court first must ascertain whether the activity in question involved an element of choice or judgment. If so, this Court also must decide whether that choice or judgment involved social, economic, or political-policy considerations.” Id. (internal citations omitted).

1. Whether the activity involved an element of choice or judgment.

¶ 9. The first step of the public-policy function test requires the Court to determine “whether the activity in question involved an element of choice or judgment.” Id. To make this determination, the Court must first ascertain whether the activity was discretionary or ministerial. Dancy v. E. Miss. State Hosp., 944 So.2d 10,16-18 (Miss.2006). A duty or an activity is discretionary if “it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.” Montgomery, 80 So.3d at 795. A ministerial function is one “positively imposed by law and required to be performed at a specific time and place, removing an officer’s or entity’s choice or judgment.” Id.

¶ 10. At the summary judgment hearing, the parties agreed that the activity at issue — placing anti-slip tape on the temporary airstairs — was not a ministerial function, as there are no laws or regulations pertaining to this activity. The parties were correct that the act of placing anti-slip tape on the stairs would not be a ministerial function. However, that is not the “function” at issue. The function with which we are concerned is the operation of the airpoH. The state does not have a statutory obligation to provide and operate airports for its citizens. A decision by the state, county, municipality, or other governmental entity to operate an airport is discretionary. Therefore, barring a rule or regulation pertaining to a certain activity, decisions that are part of the airport’s day-to-day operations are also discretionary.

¶ 11. Protected discretionary functions can be made at the “operational or planning level” and include the “day-today decisions” made by governmental actors. Willing v. Estate of Benz, 958 So.2d 1240, 1252-53 (Miss.Ct.App.2007) (citing U.S. v. Gaubert, 499 U.S. 315, 322, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). “Day-to-day management ... regularly requires judgment as to which of a range of permissible courses is the wisest. Discretionary conduct is not confined to the policy or planning level.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. The United States Supreme Court has stated, “If the routine or frequent nature of a decision were sufficient to remove an otherwise discretionary act from the scope of the exception, then countless policy-based decisions by regulators exercising day-to-day supervisory authority would be actionable. This is not the rule of our cases.” Id. at 334, 111 S.Ct. 1267. Day-to-day operational decisions, such as actions taken while construction is underway, fall under the overall function of operating the airport. The fact that day-to-day decisions may be “routine or frequent” does not remove them from protection as discretionary functions attendant to the operation of the airport.

¶ 12. In Mississippi Department of Mental Health and Ellisville State School v. Shaw, 45 So.3d 656 (Miss.2010), this Court held that the operation of a fundraiser and the attendant duties was a discretionary function, and immunity was afforded to the state entity. The administration at Ellisville State School, which was operated by the Mississippi Department of Mental Health, hosted a haunted house as a fundraising event. Id. at 657. A participant fell down a set of stairs in a dark area of the haunted house and sustained injuries. Id. The participant sued the Mississippi Department of Mental Health and Ellisville State School. Id. In evaluating the claim, we did not focus on decisions such as whether to provide lighting, whether handrails should have been used, whether the premises were safe, or other specific aspects of the operation of the haunted house. The “function” at issue was the overall operation and promotion of the haunted house. Id. at 660. Because the fundraiser was not “required by law[,]” the decision to host the fundraiser and the attendant duties involved the choice and judgment of the school administration. Id.

¶ 13. In City of Jackson v. Doe ex rel. J.J., 68 So.3d 1285 (Miss.2011), the City of Jackson was sued by the mothers of two young girls who were sexually assaulted while playing at a public park. This Court held that operation of a city park was a discretionary function, and the city was entitled to immunity under the MTCA. Id. at 1288. Mississippi Code Section 55-9-29 gives a county or municipality the authority to create public parks, but creating a park is not mandatory. Id. (citing Miss. Code Ann. § 55-9-29 (Rev.2008)). The operation of a city park was not ministerial because there was no statutory obligation to provide a city park, nor were there any regulations dictating the manner in which a city park should be operated. Id. The decision to develop a city park and the operational decisions and activities attendant to the development and maintenance of the park involved choices and judgment of city officials and employees. Id.

¶ 14. This Court recognizes that there are many laws, rules, and regulations pertaining to aviation and airports, so not every day-to-day decision or activity at an airport will be discretionary. But in this ease, there are no statutes, rules, or regulations that specify how to use temporary metal airstairs or how to apply anti-slip tape. Therefore, the airport employees must use their own judgment in taking precautions to ensure safety when using metal airstairs. Because there is no statute or regulation pertaining to the specific activity in question, the decision to use the metal airstairs temporarily during construction and the decision to use anti-slip tape on those airstairs involved choices made by airport employees exercising their individual judgment. The overall function of operating an airport is discretionary, and the day-to-day operational activities at issue in this case involved choice and judgment, because there are no laws or regulations dictating how those activities are to be performed.

2. Whether social, economic, or political-policy considerations were involved.

¶ 15. If the Court finds that the activity was discretionary, the second step of the public-policy function test requires the Court to decide “whether that choice or judgment involved social, economic, or political-policy considerations.” Montgomery, 80 So.3d at 795. This Court has explained that the policy underlying the second part of the public-policy function test is that “state tort standards cannot adequately control those government decisions in which, to be effective, the decision maker must look to considerations of public policy and not merely to established professional standards or to standards of general reasonableness.” Dancy, 944 So.2d at 17 (internal citations omitted). “[T]his Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.” Id. at 17-18 (quoting Gale v. Thomas, 759 So.2d 1150, 1162 (Miss.1999)). Thus, discretionary conduct or decisions must involve considerations of public policy for discretionary-function immunity to apply.

¶ 16. In City of Jackson v. Doe ex rel. J.J., the statute that authorized creating a public park also provided that any project related to the development of a city park should “promote the public interest and welfare[.]” Miss.Code Ann. § 55-9-29 (Rev.2008). This Court found that “promoting] the public interest and welfare” satisfied the second part of the public-policy function test, and the city was entitled to immunity. Doe, 68 So.3d at 1288. Like city parks, the State is not required to provide an airport for its citizens. However, should an entity choose to operate an airport, it is subject to the Airport Authorities Law, which provides that the development, maintenance, and operation of an airport authority are “public and governmental functions, exercised for a public purpose and matters of public necessity.” Miss.Code Ann. § 61-3-83 (Rev. 2004). The powers of an airport authority are set out in Mississippi Code Sections 61-3-15 and 61-3-23, and were succinctly summarized in a recent Attorney General’s Opinion:

Section 61-3-15(e) provides that an airport authority may acquire and regulate equipment “for the comfort and accommodation of air travelers or for any other purpose deemed by the authority to be necessary to carry out its duties.” Section 61-3-15(h) goes on to say that an airport authority may “enact and enforce ordinances, rules, regulations^] and standards for public safety, aviation safety, airport operations^] and the preservation of good order....” Finally, Section 61-3-2B authorizes an airport authority to “adopt, amend, and repeal such reasonable resolutions, rules, regulations!;,] and orders ... for the management, government, and use of any airport ...” In sum, the Legislature has granted airport authorities wide discretion in regulating airport operation.

Miss. Att’y Gen. Op. No. 2010-00323, 2010 WL 2795646 (June 11, 2010). As the development of a city park to “promote the public interest and welfare” satisfied the public-policy function test in Doe, actions that are part of the airport’s operation, which are “for a public purpose and matters of public necessity,” would satisfy the second prong of the public-policy function test in this case.

¶ 17. In the Shaw case, the proceeds from the fundraiser aided the school in fulfilling its “purpose of providing care for, and treatment of, mentally retarded persons.” Shaw, 45 So.3d at 660. The decision to hold the fundraiser was made by program directors, and a steering committee was established to oversee the planning. Id. The decision to have the fundraiser involved social, economic, and policy considerations in furtherance of the school’s purpose to care for and treat mentally retarded persons, and the decisions were made by a governing body of sorts. Id. This Court determined that operating the fundraiser was “a discretionary function that qualifiefd] for immunity under the MTCA.” Id.

¶ 18. A regional airport authority, like GBRAA, is a public body “corporate and politic” that is governed by commissioners. Miss.Code Ann. § 61-3-7 (Rev.2004). Certainly, the airport authority’s decision to make improvements to the facility took economic factors into consideration. The use of the airstairs for temporary access to the tarmac, adding anti-slip tape to the stairs, and other decisions made during construction were for the convenience and safety of the airport patrons. These are daily operational decisions that fall under the overall operation of the airport. Like the operation of the city park in Doe and the haunted house in Shaw, GBRAA’s operation of the airport involves social and economic policy considerations, satisfying the second part of the public-policy function test. Thus, GBRAA is entitled to discretionary-function immunity under the MTCA.

CONCLUSION

¶ 19. The circuit court correctly granted summary judgment in favor of GBRAA. The overall function of operating an airport is discretionary. The day-to-day operational activities at issue in this case involved choice and judgment, because there are no laws or regulations dictating how those activities are to be performed. Further, GBRAA’s operation of the airport and the attendant day-to-day activities involved social and economic policy eonsider-ations. Therefore, GBRAA qualifies for immunity under the MTCA. We reverse the judgment of the Court of Appeals and reinstate and affirm the trial court’s grant of summary judgment and entry of judgment in favor of GBRAA.

¶ 20. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY IS REINSTATED AND AFFIRMED.

DICKINSON, P.J., LAMAR AND PIERCE, JJ., CONCUR. CHANDLER, J., DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.; KITCHENS, J., JOINS IN PART. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY CHANDLER, J. RANDOLPH AND KING, JJ., NOT PARTICIPATING.

WALLER, Chief Justice,

dissenting:

¶ 21. Because I would hold that the actions at issue in this case — maintaining passenger airstairs — do not enjoy discretionary-function immunity, I respectfully dissent.

¶ 22. I agree with the plurality that the decision to operate an airport is an immune discretionary function. See Plur. Op. ¶ 10 (“A decision ... to operate an airport is discretionary.”). However, the act at issue does not encompass a policy decision or act properly the subject of governmental immunity. Pratt does not claim to have been injured by the decision to operate the Gulfport-Biloxi Regional Airport. In fact, neither party argues that the decision to operate the airport is the act at issue. Rather, it is the alleged negligent placement of anti-slip tape on the airstairs on which Pratt slipped that he claims caused his injuries.

¶ 23. In applying the discretionary-function exception, “ ‘this Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.’” Dancy v. E. Miss. State Hosp., 944 So.2d 10, 17-18 (Miss. 2006) (quoting Gale v. Thomas, 759 So.2d 1150, 1162 (Miss.1999)). The exception “protects only governmental actions and decisions based on considerations of public policy.” Berkovitz v. U.S., 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). When reviewing whether a challenged action is afforded immunity, a court’s focus is “on the nature of the actions taken and whether they are susceptible to policy analysis.” U.S. v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).

¶ 24. As the Court of Appeals recognized, no “policy” was involved in the placing of the anti-slip tape:

During the deposition of Lloyd Gates, the maintenance man who actually put the anti-slip tape down on the stairwell, Gates was asked why he and another employee identified as “Richard” only put a small steip of anti-slip tape on two feet of the center portion of the stair surface, as opposed to the entire four-foot stair surface. Gates answered, “I think it was probably both of us saying that one would probably be enough.”

Pratt v. Gulfporh-Biloxi Reg’l Airport Auth, 97 So.3d 80, 84-85 (Miss.Ct.App.2011) (emphasis in original). The Court of Appeals noted that there was an adequate supply of tape to cover the entire surface. Id. I agree, then, with the Court of Appeals that the manner in which the maintenance personnel placed the anti-slip tape did not implicate social, economic, or political policy, but was simply “a completely random decision.” Id.

¶ 25. Today’s case is distinguishable from those cited by the plurality. This is not a case in which a person was injured by a third party while merely present on government-owned property. Cf. City of Jackson v. Doe ex rel. J.J., 68 So.3d 1285 (Miss.2011). And, unlike the plaintiff in Shaw, Pratt does not claim that the airport is exempt from immunity because it constitutes a “commercial enterprise.” Miss. Dep’t of Mental Health and Ellisville State School v. Shaw, 45 So.3d 656, 660 (Miss.2010). Rather, Pratt’s claim is based on the airport’s alleged failure to provide a safe means of exiting an airplane — a simple act of negligence. See Dancy, 944 So.2d at 17-18.

¶ 26. The United States Supreme Court has made it clear that maintenance decisions such as the one at issue today do not involve policy considerations. In Indian Towing Co. v. U.S., 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the Court held that the U.S. government was liable for damages resulting from the Coast Guard’s failure to inspect electrical equipment adequately. The Court recognized that the Coast Guard was not required to operate the lighthouse. Id. at 126. And it is obvious that the decision to operate a lighthouse — to guide those at sea safely to shore — involves policy considerations. However, the Court held that “once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order.” Id. at 126-27. Commenting on Indian Towing in his concurrence in Gaubert, Justice Scalia said that maintenance decisions such as this — and the one at issue in today’s case — did not involve policy considerations. Gaubert, 499 U.S. at 336, 111 S.Ct. 1267 (Scalia, J., concurring in part and in judgment); see also Berkovitz, 486 U.S. at 538 n. 3, 108 S.Ct. 1954 (noting that the failure to maintain the lighthouse in good condition “did not involve any permissible exercise of policy judgment”).

¶ 27. The action complained of by Pratt does not implicate social, economic, or political policy. As such, I would hold that it does not enjoy discretionary-function immunity.

¶ 28. For the above reasons, I respectfully dissent.

CHANDLER, J., JOINS THIS OPINION. KITCHENS, J., JOINS IN PART.

KITCHENS, Justice,

dissenting:

¶ 29. I agree with Chief Justice Waller’s dissenting opinion to the extent that the alleged negligent act does not implicate sovereign immunity. The spur-of-the-moment decision by two maintenance personnel concerning the quantum and placement of anti-skid tape on a set of airstairs cannot, by any stretch of the imagination, be classified as a policy decision. Yet, the plurality finds immunity by equating the airport’s alleged negligent conduct with the governmental decision to operate an airport in the first place. Plur. Op. ¶ 10. Even the airport itself does not frame the issue so broadly.

¶ 30. Although I agree with the chief justice’s dissenting opinion that summary judgment was improper, I write separately because I do not embrace his effort to distinguish City of Jackson v. Doe, 68 So.3d 1285 (Miss.2011), and Mississippi Department of Mental Health v. Shaw, 45 So.3d 656 (Miss.2010). Waller Op. ¶25. In those cases, this Court used the same flawed reasoning as today’s plurality opinion. In my view, both should be overruled. See Doe, 68 So.3d at 1289 (“The mere fact that the alleged dangerous condition was located in a public park did not render the City’s duties discretionary.”) (Kitchens, J., concurring in result only); Shaw, 45 So.3d at 661 (“[I]f the Legislature had intended to provide immunity in circumstances where a dangerous condition is caused by a government employee, then it would have done so.”) (Graves, P.J., dissenting) (citing Shelter Mut. Ins. Co. v. Dale, 914 So.2d 698 (Miss.2005)). For this reason, I do not fully join the chief justice’s dissent, but I agree that the Court of Appeals was correct to reverse the grant of summary judgment.

CHANDLER, J., JOINS THIS OPINION IN PART.

      . The parties agree that, in light of legislation passed post-Hurricane Katrina extending statutes of limitations in this district, Pratt’s Notice of Claim was timely served on GBRAA, as required by the MTCA. In addition, in the event that notice was not timely, the parties agree that the affirmative defenses of defective notice and statute of limitations were not raised before the trial court. This Court has held that the MTCA notice requirements are not jurisdictional and can be waived. Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 550 (Miss.2009). Even if an affirmative defense, such as statute of limitations or insufficient process, is properly and timely raised in an answer, the defendant's failure to pursue the defense "coupled with active participation in the litigation process, will ordinarily serve as a waiver” of the defense. Grimes v. Warrington, 982 So.2d 365, 370 (Miss.2008) (quoting East Miss. State Hasp. v. Adams, 947 So.2d 887, 891 (Miss.2007)).

      . The dissent was written by Presiding Judge Lee (now Chief Judge), and he was joined by Presiding Judge Myers, Judge Irving (now Presiding Judge), and Judge Barnes.

      . The parties did not assert, and this Court did not find, any statute, rule, or regulation specifically pertaining to the use of temporary metal airstairs. Other courts have reached the same conclusion. See Martin ex ml. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 812 (9th Cir.2009) ("Airstairs are not pervasively regulated.... No federal regulation prohibits airstairs that are prone to ice over, or that tend to collapse under passengers’ weight. The regulations say nothing about maintaining the stairs free of slippery substances, or fixing loose steps before passengers catch their heels and trip.”); Spinrad v. Comair, Inc., 825 F.Supp.2d 397, 406 (E.D.N.Y.2011) (quoting Martin); Summers v. Delta Airlines, Inc., 805 F.Supp.2d 874, 887 (N.D.Cal.2011) (same).

      . This Attorney General’s Opinion was written in response to a question posed by GBRAA regarding the airport’s decision to use a certain type of jet bridge. The Attorney General determined that the airport’s requirement of using "a particular type of jet bridge would likely fall within the realm of setting standards for public safety, aviation safety, and airport operations.” Miss. Att’y Gen. Op. No. 2010-00323, 2010 WL 2795646 (June 11, 2010). "While Attorney General's Opinions are not binding, this Court certainly may consider them.” Dialysis Solution, LLC v. Miss. State Dep't of Health, 31 So.3d 1204, 1215 (Miss. 2010) (citing Tupelo Redevelopment Agency v. Gray Corp., Inc., 972 So.2d 495, 509 (Miss.2007)).


source: Caselaw Access Project

author: ROBERTS, J., LEE, P.J.,

license: Public Domain

text:
    Dr. Jerry PRATT, Appellant v. GULFPORT-BILOXI REGIONAL AIRPORT AUTHORITY d/b/a Gulfport-Bi-loxi International Airport, Appellee.
    No. 2009-CA-01202-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.
    Rehearing Denied Jan. 10, 2012.

      Kenneth M. Altman, Gulfport, attorney for appellant.
    Cy Faneca, Trace D. McRaney, Gulf-port, attorneys for appellees.
   ROBERTS, J.,

for the Court:

¶ 1. Dr. Jerry Pratt, a United States Air Force physician, sued the Gulfport-Biloxi Regional Airport Authority, a governmental entity protected by the provisions of the Mississippi Tort Claims Act (MTCA), after he slipped and fell down a wet set of aluminum “airstairs.” The airstairs were intended to serve as a temporary means of access to the tarmac during a construction project. It was raining at the time Dr. Pratt fell, and the uncovered airstairs had only been partially covered with anti-slip tape. The Airport successfully moved for summary judgment based on two separate provisions of the MTCA: the “discretionary function” immunity and the “open and obvious danger” immunity. Dr. Pratt appeals. We find that the presence of genuine issues of material fact preclude summary judgment under both rationales. Accordingly, we reverse the judgment of the Harrison County Circuit Court and remand this matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. During a construction project, the Airport borrowed aluminum “airstairs” from Northwest Airlines and fixed them to a terminal as a temporary means of accessing the tarmac. The airstairs were not covered. To mitigate the risk of slipping during wet weather, Airport employees used anti-slip tape to cover the entire portion of the twelve-foot landing area at the top of the descending airstairs. However, as for the actual surface of the descending steps, the employees only applied two-foot sections of the anti-slip tape to the center of the four-foot-wide steps. Consequently, each step on the airstairs had an uncovered twelve-inch section on either side of the anti-slip tape. As a result, if one was to hold onto the handrail while descending the airstairs, one’s outside foot was likely to land on an uncovered portion of the metal airstairs, particularly if the person descending the airstairs was holding a briefcase, suitcase, or other piece of carry-on luggage. In other words, it was difficult to reach either of the handrails and keep both feet on the anti-slip tape.

¶ 3. On October 24, 2004, Dr. Pratt exited the terminal of the Airport and noticed that it was beginning to rain. As he stepped down with his left foot onto the uncovered portion of the first step, Dr. Pratt slipped and fell down the entire two-story descending airstairs.

¶ 4. On April 14, 2006, Dr. Pratt sued the Airport and Atlantic Southeast Airlines, Inc. (ASA). Dr. Pratt claimed that the Airport failed to maintain the temporary metal stairwell in a reasonably safe condition. He also claimed that the Airport failed to warn him of a hidden dangerous condition.

¶ 5. The Airport filed a motion for summary judgment. According to the Airport, it was immune from suit pursuant to the MTCA. The circuit court later granted the Airport’s motion for summary judgment because (1) the dangerous condition was open and obvious to one exercising due

care, and (2) the alleged acts or omissions of the Airport were a discretionary function. See Miss.Code Ann. §§ 11-46-1 to 11-46-23 (Rev.2002 and Supp.2010).

¶ 6. Aggrieved, Dr. Pratt appeals. Dr. Pratt claims that the circuit court erred when it held that there were no genuine issues of material fact regarding the Airport’s entitlement to immunity based on the “open and obvious” and “discretionary function” immunities of the MTCA. After careful consideration, we find that the circuit court erred when it granted the Airport’s motion for summary judgment.

STANDARD OF REVIEW

¶ 7. In reviewing a circuit court’s decision to grant a motion for summary judgment, we employ a de novo standard of review. Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547 (¶13) (Miss.1998). 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 that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court will consider all of the evidence before the trial court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). The entry of summary judgment is mandated if the non-movant “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins.t Co., 515 So.2d 678, 684 (Miss.1987). This Court also reviews the proper application of the MTCA de novo. Id.

ANALYSIS

I. DISCRETIONARY FUNCTION

¶8. Mississippi Code Annotated section ll-46-9(l)(d) (Supp.2010) states:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]

To determine whether an act or a failure to act is a discretionary function, we use the following two-part test: “(1) whether the activity involved an element of choice or judgment, and if so; (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives.” Barr v. Hancock County, 950 So.2d 254, 257 (¶ 10) (Miss.Ct.App.2007) (quoting Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (¶¶ 9-10) (Miss.1999)). “Conversely, conduct will be considered ministerial, and, therefore, immunity will not apply, if the obligation is imposed by law leaving no room for judgment.” Id.

¶ 9. The circuit court found that Dr. Pratt failed to “point out any procedures, guidelines, or regulations [that] outlined how to maintain the safety of the stairwells and would, therefore, render the Airport’s actions ministerial in nature.” The dissent cites Willing v. Estate of Benz, 958 So.2d 1240, 1252 (¶ 33) (Miss.Ct.App.2007) after noting that Dr. Pratt did not point out any matters that render the Airport’s actions ministerial in nature. However, no portion of Willing shifts the burden of proof to the non-moving party. Dr. Pratt does not bear the initial burden of proving that genuine issues of material fact exist. Instead, the moving party bears the burden of showing that no genuine issue of material fact exists. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990).

¶ 10. The circuit court found that the Airport’s “decisions and actions” involved an element of choice. However, the circuit court did not elaborate beyond that conclusion. It is true that the Airport’s Operations Supervisor, Jared Christman, decided to issue a work order requiring that anti-slip tape be applied to the surface of the airstairs. Naturally, every possibly foreseeable injury can be connected to a decision to act or a decision not to act. However, Dr. Pratt did not claim that the Airport was liable for his injuries because one of its employees chose to order anti-slip tape. Instead, Dr. Pratt claimed that the Airport was liable because it did not place that anti-slip tape on a sufficient portion of the surface of the airstairs. In other words, Dr. Pratt’s lawsuit was not based on the decision whether to apply anti-slip tape — it was based on the manner in which the anti-slip tape was applied. During the hearing on the Airport’s motion for summary judgment, counsel for Dr. Pratt noted:

As a person exits the building, there’s a series of steps of approximately six to eight feet where tape was applied directly all the way across the stairwell at two-foot segments, two of them side by side. And then as you get to the first step going down, the tape all of [the] sudden covers the middle of the stairwell.... The tape did not cover the full width of the stairwell at its most dangerous point all the way down. The danger presented is not the danger of wet stairs. The danger presented is the danger of the difference that is the differential between the slickness of the surface of the bare metal versus the anti-traction tape.... The anti-traction properties of the tape [are] more than two times that of the bare metal, and that was when it was taken when it was dry. The anti-traction property becomes even worse, unfortunately, when the stairs are wet.

¶ 11. Assuming, for the sake of discussion, that all that is required to surpass the first prong of the two-prong analysis is to show some remote connection to a decision or choice, that is not enough to demonstrate that immunity is appropriate. Citing Willing, 958 So.2d at 1252 (¶ 33), the dissent notes that “only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” The dissent also notes that Willing cited United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) for that language.

¶ 12. In Gaubert, the United States Supreme Court applied the Federal Tort Claims Act’s discretionary immunity provision to a claim that was centered on federal regulators’ supervision of a savings and loan association’s day-to-day operations. Id. at 319, 111 S.Ct. 1267. The Gaubert Court held that “each of the challenged actions involved the exercise of choice and judgment.” Id. at 331, 111 S.Ct. 1267. However, the “challenged actions” included the hiring of consultants on operational and financial matters and asset management; converting from a state-chartered savings and loan to a federally-chartered savings and loan; recommending whether to place subsidiaries into bankruptcy; mediating salary disputes; providing advice regarding litigation policy; and intervening when the Texas state government attempted to install a supervisory agent. Id. at 328, 111 S.Ct. 1267. In this case, the “challenged action” is maintenance personnel’s arbitrary decision that partially covering the airstair surface would suffice.

¶ 13. Justice Scalia, concurring with the majority in Gaubert, noted that the FTCA “does not protect all governmental activities involving an element of choice ...; [t]he choice must be ‘grounded in social, economic, or political policy.’ ” Id. at 335, 111 S.Ct. 1267 (citations omitted). Justice Scalia further stated that “an employee working at the operational level is not responsible for policy decisions, even though policy considerations may be highly relevant to his actions.” Id. To support his statement, Justice Scalia recognized the following:

the United States was held liable for; among other things, the failure of Coast Guard maintenance personnel adequately to inspect electrical equipment in a lighthouse; though there could conceivably be policy reasons for conducting only superficial inspections, the decisions had been made by the maintenance personnel, and it was assuredly not their responsibility to ponder such things.

Id. at 336, 111 S.Ct. 1267 (citing Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122,100 L.Ed. 48 (1955)).

¶ 14. In this case, there was no evidence that the Airport’s decision to forego placing anti-slip tape of the airstairs involved a social, economic, or political policy. The decision by two maintenance personnel to place anti-slip tape on two feet of the center of the four-foot stair surface was not based on any social, economic, or political policy alternatives. During the deposition of Lloyd Gates, the maintenance man who actually put the anti-slip tape down on the stairwell, Gates was asked why he and another employee identified as “Richard” only put a small strip of anti-slip tape on two feet of the center portion of the stair surface, as opposed to the entire four-foot stair surface. Gates answered, “I think it was probably both of us saying that one would probably be enough.” The employees had an adequate supply of anti-slip tape to cover the entire surface of the steps. Consequently, the decision to place anti-slip tape only on the center portion of the airstairs did not involve any “policy” at all. Rather, it was a completely random decision by two employees who were not authorized to make any “policy” decisions. As Dr. Pratt’s attorney noted, “if someone [was] holding the handrail ... [he or she could not] have both feet on the traction surface.” It is very rational to conclude that any prospective airline passenger with carry-on luggage would utilize only one handrail for balance as he or she ascended or descended the wet airstairs, necessitating that that person step on the wet, un-taped surface.

¶ 15. The Airport did not present any evidence that it made a policy decision to leave the outer two feet — which were adjacent to the handrails — uncovered by anti-slip tape. Likewise, the Airport did not present any evidence that the maintenance employees neglected to place anti-slip tape over the entire stair surface because it had a limited supply of anti-slip tape. As Dr. Pratt’s attorney argued at the hearing on the Airport’s motion for summary judgment: “this wasn’t a high-browed [policy] decision ... [t]his was two maintenance guys saying, ‘one [strip] will be enough.’ ”

¶ 16. The Airport failed to demonstrate that there was no genuine issue of material fact regarding whether its decision to place anti-slip tape on only a portion of the stair surface involved a policy decision. Consequently, the circuit court erred when it granted the Airport’s motion for summary judgment on the basis that the discretionary function provision of the MTCA renders the Airport immune from Dr. Pratt’s suit.

II. OPEN AND OBVIOUS

¶ 17. Mississippi Code Annotated section 11 — 46—9(l)(v) (Supp.2010) states that a governmental entity shall not be liable for failing to warn of a dangerous condition that was open and obvious. According to the circuit court, the Airport was entitled to summary judgment pursuant to section ll-46-9(l)(v) because: (1) Dr. Pratt knew it was raining when he approached the stairs; (2) he knew the steps were uncovered and exposed to the rain; (3) he admitted that it was reasonable to assume that the stair surface was wet; and (4) “he knew when he took his first step that he was not stepping on the anti-skid material that had been placed on the stairs.” Those facts tend to suggest that the danger was open and obvious, but the appropriate question is whether there is a genuine issue of material fact that the danger was open and obvious. It is not appropriate to weigh the facts while determining whether to grant or deny a motion for summary judgment.

¶ 18. During his deposition, Dr. Pratt claimed that the danger was not obvious to him and he stated that he had to step onto the exposed area of the aluminum stair surface because he could not hold the handrail if he walked down the center portion of the stairwell that was covered by anti-slip tape. Dr. Pratt’s expert submitted an affidavit that supported Dr. Pratt’s argument that the danger of slipping was neither open nor obvious. Dr. Richard Forbes, a professor of mechanical engineering at Mississippi State University, examined the stairwell and stated that the “friction coefficient” for the anti-slip tape was approximately two times that of the uncovered aluminum stair surface. Dr. Forbes further stated that rain would aggravate the differential between the friction coefficients for the two surfaces. Specifically, Dr. Forbes said, “there would be no significant change in the friction coefficient of the anti-slip surface[,] while the coefficient of the wet metal would be reduced.” Dr. Forbes went on to say that Dr. Pratt was not warned of that danger, and a reasonable person would not know that the differences in the friction coefficients would be a slipping hazard. According to Dr. Forbes, that was “especially” so because the area leading to the first descending step was completely covered by anti-slip tape.

¶ 19. Dr. Forbes’s expert opinion suggests that the danger of slipping was not open and obvious. When opposing witnesses swear to contradictory, material facts, summary judgment is not appropriate. Robinson v. Cobb, 763 So.2d 888, 886 (¶ 13) (Miss.2000). Consequently, there is a genuine issue of material fact regarding whether the dangerous condition of the wet, slippery steps was open and obvious.

¶ 20. It is very well possible that at trial the circuit court would consider the exact same conflicting evidence and conclude that the weight of the evidence falls in the Airport’s favor. Nevertheless, while considering a motion for summary judgment, we are to withhold from weighing the evidence. Instead, we are required to view the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997). Furthermore, we are to consider a motion for summary judgment with a skeptical eye. Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986). It is better to err on the side of denying the motion. Id. Viewed in that light, the evidence — particularly Dr. Forbes’s affidavit — indicates that the danger of slipping was not open and obvious to Dr. Pratt. Therefore, the circuit court erred when it concluded that the Airport was entitled to summary judgment based on section ll-46-9(l)(v).

CONCLUSION

¶ 21. Based on the presence of genuine issues of material fact regarding the application of the “discretionary function” immunity and the “open and obvious danger” immunity provisions of the MTCA, we reverse the circuit court’s decisions to grant summary judgment in both regards. Accordingly, we reverse, and this matter is remanded to the circuit court for further proceedings consistent with this opinion.

¶ 22. THE JUDGMENT OF THE HARRISON 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.

KING, C.J., GRIFFIS, CARLTON AND MAXWELL, JJ., CONCUR. LEE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J., IRVING AND BARNES, JJ. ISHEE, J., NOT PARTICIPATING.

LEE, P.J.,

dissenting:

¶ 23. Because I find that the placement of the anti-slip tape on the stairs was a discretionary function, I respectfully dissent. The purported discretionary function at issue is the placement of the anti-slip tape on the temporary stairwell. Dr. Jerry Pratt contends that by modifying the stairwell in this manner, the Airport enhanced the slipping risk to passengers. Although the stairs were covered in nonskid diamond-plated aluminum, the Airport added the anti-slip tape to further decrease any slipping danger. The descending portion of the stairs in question were four-feet wide, and the tape covered the middle two feet of each step. The work order created by Jared Christman, the Operations Supervisor, to address the potential danger, stated: “Add non-slip traction strips to airstairs to be used at Gate 5.” Part of Christman’s job was to evaluate the property and make recommendations regarding its condition.

¶ 24. Pursuant to Mississippi Code Annotated section 11-46-9 (Supp.2010), governmental entities and their employees acting within the scope of their duties enjoy certain exemptions and protections. The Airport contends that it is immune from suit because Dr. Pratt’s claims involve a discretionary function as set out in section 11 — 46—9(l)(d) and (g):

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services....

¶ 25. In Jones v. Mississippi Department of Transportation, 744 So.2d 256, 260 (¶ 10) (Miss.1999), the Mississippi Supreme Court adopted a two-part public-policy-function test for determining whether governmental conduct is protected by discretionary-function immunity. Id. The test provides that, in determining whether governmental conduct is afforded discretionary-function immunity, the court must first determine whether the activity involved an element of choice or judgment, and, if so, whether the choice involved social, economic, or political policy. Id.

¶ 26. Dr. Pratt has not pointed out any procedures, guidelines, or regulations that outlined how to maintain the safety of the stairwells and would, therefore, render the Airport’s actions ministerial in nature. See Willing v. Estate of Benz, 958 So.2d 1240, 1252 (¶ 33) (Miss.Ct.App.2007). The decision by Christman to order the anti-slip tape involved an element of choice or judgment; therefore, this action was discretionary. Now, we look to whether the judgment involved social, economic, or political policy. Under the discretionary-function exemption, “only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” Id. (citing U.S. v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). “Accordingly, this limitation is applicable to the day-to-day decisions made by police officers and other governmental actors.” Id. at 1253 (¶ 34). The Airport’s decision to add anti-slip tape to the metal stairwell involved a day-to-day decision at the operational level. Providing passengers safe and secure premises necessarily involves a policy decision, both at the planning and operational level. Therefore, I find that the Airport is immune from suit pursuant to the discretionary-function exemption.

¶ 27. In regard to whether the Airport failed to warn of a dangerous condition that was open and obvious, this Court has held that governmental immunity exists if any subpart of section 11-46-9(1) applies. See Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (¶ 4) (Miss.Ct.App.2006). Since I find that summary judgment was appropriate under section ll-46-9(l)(d) and (g), it is unnecessary to determine whether it was also appropriate under section ll-46-9(l)(v). See also Knight v. Miss. Transp. Comm’n, 10 So.3d 962, 971 (¶ 33) (Miss.Ct.App.2009) (discussion of the concept behind “Frasier’s Octopus”).

MYERS, P.J., IRVING AND BARNES, JJ., JOIN THIS OPINION.

      . Dr. Pratt later filed an amended complaint which added Northwest Airlines as a defendant. Northwest Airlines owned the set of stairs in question.

      . The circuit court did not specifically dismiss the claims against ASA. However, the circuit court granted summary judgment in favor of Northwest, finding that Northwest did not have control of the stairway at the time of Dr. Pratt’s fall. Dr. Pratt's appeal only concerns the Airport.


author:
IRVING, P.J.,
      GRIFFIS, P.J.,

text:
    In the Matter of the Petition of William SMITH and Wife Sarah Smith for The Adoption of Jason Wells, A Minor Child: Tara Wells, Appellant v. William SMITH and Sarah Smith, Appellees.
    No. 2009-CA-01955-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.
    Rehearing Denied Sept. 27, 2011.
    John D. Weddle, attorney for appellant.
    Joe M. Davis, attorney for appellees.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This case involves a custody dispute between William and Sarah Smith, the grandparents of Jason Wells, and Tara Wells, Jason’s natural mother. On June 2, 2008, the Smiths filed a petition in the Tippah County Chancery Court for temporary and permanent custody of Jason. On October 1, 2008, they filed a petition for adoption and termination of the parental rights of Tara and Robert Johnson, Jason’s natural father. The chancery court declined to terminate Tara and Robert’s parental rights. However, the court found that Jason’s best interest would be served by granting the Smiths primary custody of Jason. Tara was granted visitation rights. The chancery court relied on the doctrine of in loco parentis in rendering its judgment. Tara’s sole issue on appeal is that the chancery court erred in relying on the doctrine of in loco parentis to grant custody to the Smiths.

¶ 2. Based on the recent Mississippi Supreme Court case of Vaughn v. Davis, 36 So.3d 1261 (Miss.2010), we find that the chancery court’s judgment must be reversed and this case remanded for further proceedings.

FACTS

¶ 3. Jason was born on June 14, 2003. Sarah is Jason’s maternal grandmother; William is related to Jason only by marriage. After Jason was born, he and Tara lived with the Smiths while Tara attended college. Tara sometimes visited Jason during the weekends while she attended college. Tara attended school for approximately the first three years after Jason was born. According to the Smiths, Tara’s visits with Jason became less frequent the longer she was in school. In April 2006, Robert and Tara were married. Robert was in the military and was stationed near Washington D.C.; Tara moved to Washington D.C. shortly after the marriage, and Jason went to live with Tara in Washington D.C. approximately a month later. In June 2006, after being married for less than three months, Tara and Robert separated. Not long after his arrival in Washington D.C., Jason returned to Mississippi. Jason spent time in both Washington D.C. and Mississippi until November 2006, when he permanently returned to Mississippi. Jason lived with Robert’s parents for some of his time in Mississippi in 2006, although he eventually moved in permanently with the Smiths. Around the same time, Tara lost her job in Washington D.C.

¶ 4. Tara worked a number of different jobs beginning in 2007. Jason remained in Mississippi, and Tara visited him here sporadically. According to William, he offered to pay for Tara to move back to Mississippi, but she refused. In April or May 2007, Tara gave the Smiths medical guardianship over Jason. According to Cindy. Howell, Tara’s sister, Cindy once planned a birthday party for Jason that Tara was supposed to attend, but Tara spent her time in Jackson, Mississippi, with a boyfriend instead of visiting Jason.

¶ 5. From January 2008 to June 2008, Tara’s visits with Jason became more infrequent. From February 2008 to March 2009, Tara worked for a company called Soft Edge. She indicated that she made enough money at this job to support herself; regardless, she made no attempt to live with Jason during her employment. In December 2008, Tara moved in with another man, Neil Baker. In March 2009, Tara and Baker moved to Arizona. Tara and Baker became engaged, despite Tara’s inability to locate Robert, to whom she was still married. In April 2009, the chancery court appointed a guardian ad litem (GAL) to represent Jason’s interest; at the time of the GAL’s report, Tara was dependent on Baker for financial support. At that time, Baker had never met Jason.

¶ 6. Jason’s school teachers testified that the only mother or father that Jason had ever mentioned were the Smiths. In December 2008, Robert joined in the Smiths’ petition for custody of Jason and consented to the Smiths’ continued custody of Jason. Robert also consented to and joined in the Smiths’ petition to adopt Jason.

¶ 7. The GAL recommended to the court that Jason’s best interest would be served by remaining in the custody of the Smiths. In his report, the GAL noted: “While it is undisputed that [Tara] loves her son, the facts clearly establish that she has done little to insure his welfare, other than leaving him with [William] and [Sarah].” The chancery court relied on the doctrine of in loco parentis, largely on the GAL’s recommendation, to overcome the natural-parent presumption and find, under the Albright factors, that Jason’s best interest would be served by letting the Smiths retain custody of Jason. In so finding, the chancery court noted that the Smiths’ home is essentially the only home that Jason has ever known.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. Tara contends that the chancery court erred in relying on the doctrine of in loco parentis to overcome the natural-parent presumption. We have been unable to find any case law to support the notion that the doctrine may be used to overcome the natural-parent presumption. Therefore, the chancellor should not have relied on this doctrine to overcome the presumption.

¶ 10. However, there is a recent Mississippi Supreme Court case that is analogous to the situation before this Court. In Vaughn, the minor child, Danielle, was born out of wedlock in October 2000. Vaughn, 36 So.3d at 1262 (¶ 2). Danielle and her mother, Theresa, lived with Connie Davis, Theresa’s mother, after Danielle’s birth. Id. Theresa was killed in a 2002 car accident. Id. After Theresa’s death, Connie and William Vaughn, Danielle’s natural father, agreed that Connie should keep Danielle for the immediate future. Id. Vaughn rarely visited Danielle and failed to pay child support. Id. Vaughn did not seek custody of Danielle. Id. In 2004, Vaughn agreed to grant Connie temporary custody of Danielle. Id. at (¶ 3). Even after legal proceedings were started regarding Danielle’s custody, Vaughn continued to visit Danielle only sporadically. Id. at 1263 (¶ 5). When Vaughn obtained a life-insurance policy, he named only his new wife as the beneficiary. Id. The chancery court relied on Vaughn’s agreement to the temporary custody order to find that he had relinquished his right to the natural-parent presumption. Id. at 1264 (¶ 8). The chancery court then found, under Albright, that Connie should have custody of Danielle. Id.

¶ 11. The supreme court found that the chancery court should not have used Vaughn’s agreement to the temporary custody order to find that he had relinquished his parental rights. Id. The supreme court noted that the primary determination in every custody case should be what is in the best interest of the child at the heart of the case. Id. at (¶ 10). The supreme court noted that:

The chancellor believed he had only two options. He would have to find Vaughn immoral or unfit as a parent, or that he had abandoned the child, and then do an Albright analysis to determine Danielle’s best interest.... Or, if he failed to find immorality, unfitness, or abandonment, he would have to grant custody to Vaughn without regard to Danielle’s best interest.... The chancellor found abandonment through Vaughn’s temporary agreement to temporary custody. Following this finding, the chancellor determined that Danielle’s best interest ... [was] served by continuing to live in Connie’s home, the only home Danielle had ever known.

We find that the chancellor was not required to make such a stark choice under these facts. Our custody statute ... offers another option, a finding of desertion.... Thus, the chancellor could have treated Vaughn’s inaction prior to the agreed order as desertion of Danielle. If so, Vaughn would have forfeited the presumption he had as her natural father, even though his actions/inactions do not compare to the behavior our courts have found to constitute abandonment or constructive abandonment.

In [In re Dissolution of Marriage of] Leverock [and Hamby, 23 So.3d 424 (Miss.2009) ], this Court found that a father had deserted his son by “completely avoiding both his moral and legal duties and obligations as a father for more than two years. During this period of time, he showed a complete disregard for the welfare of his young son.” The Leverock Court continued that the father had chosen “to take an extended holiday from the responsibilities of par-enthoodf,]” and we find that he should not now be able to claim the benefit of his status as a natural parent.

Id. at 1264-65 (¶¶ 11-14) (citations omitted). The Vaughn court then reversed and remanded the case to the chancery court for a determination of whether “Vaughn had relinquished the natural-parent presumption for reasons other than forfeiture by agreeing to a temporary custody order.” Id. at 1267 (¶ 18). The court also noted that years had passed since the initial order and that the “chancellor should consider Danielle’s circumstances at the time of the remand hearing, if he determines that desertion has been proven. As always in custody matters, the best interest ... of the child should guide the analysis as a polestar.” Id.

¶ 12. Although Vaughn was a case where the chancery court improperly found relinquishment of the natural-parent presumption due to the signing of a temporary custody order, it is analogous to this case. Here, the chancellor improperly relied on the doctrine of in loco parentis to find that the natural-parent presumption had been relinquished. We have been able to find no precedent for using that doctrine to overcome the natural-parent presumption. However, given the similarity of the facts in this case to Leverock and Vaughn, this case should be remanded to the chancery court to determine whether Tara deserted Jason, thus relinquishing her right to the natural-parent presumption. On remand, the chancery court should consider Jason’s circumstances at the time of remand.

¶ 13. THE JUDGMENT OF THE TIPPAH COUNTY CHANCERY 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-PELLEES.

LEE, C.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. RUSSELL, J., NOT PARTICIPATING.

GRIFFIS, P.J.,

dissenting:

¶ 14. I respectfully dissent.

¶ 15. I agree that this case is controlled by the Mississippi Supreme Court’s decision in Vaughn v. Davis, 36 So.3d 1261, 1264 (Miss.2010). The supreme court held “we reaffirm that the paramount and ultimate goal in every child custody case must be the best interests of the child.” Id. (quoting In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 429 (Miss.2009)). Indeed, “the polestar consideration in child custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 16. However, I find that the chancellor’s decision was based on the best interest of the child, and I find no reversible error.

      . All of the parties have been given fictitious names in order to protect the privacy of the minor child.

      . Robert was allegedly incarcerated in Virginia at the time of the petition.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).


author: ROBERTS, J.,

text:
    Ramon Korbel QUINN a/k/a Ramon K. Quinn, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01677-COA.
    Court of Appeals of Mississippi.
    July 24, 2012.

      Edmund J. Phillips Jr., Newton, James Edwin Smith III, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS, MAXWELL and RUSSELL, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the September 9, 2010 conviction of Ramon Korbel Quinn on three counts of selling crack cocaine to a Mississippi Bureau of Narcotics (MBN) confidential informant on three separate occasions. On the following day in the Leake County Circuit Court, Quinn was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC) on Count I; twenty years in the custody of the MDOC on Count II; and ten years in the custody of the MDOC on Count III, with five years suspended and five years of post-release supervision (PRS). All sentences were ordered to run consecutively to the other resulting in a total of forty-five years in the custody of the MDOC. Feeling aggrieved, Quinn filed a pro se motion for new trial, or in the alternative, a motion for a judgment notwithstanding the verdict (JNOV). Quinn’s counsel also filed a motion for a new trial on Quinn’s behalf. The circuit judge denied the motions, and Quinn perfected his appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. A Leake County grand jury indicted Quinn on June 28, 2010, on three counts of violating Mississippi Code Annotated section 41 — 29—139(a)(1) (Supp.2011). Each of the three counts stated that Quinn “did willfully, unlawfully, feloniously and knowingly sell and deliver to Mississippi Bureau of Narcotics Confidential Informant # 95-110, a Schedule II controlled substance .... ” Quinn’s trial began on September 9, 2010, and the State produced seven witnesses. Larry Gardner testified that while acting as a confidential informant for the MBN, he purchased crack cocaine from Quinn in three separate transactions on the following dates: August 28, 2009; September 25, 2009; and October 1, 2009. Gardner, a past drug user, had been clean for approximately two years and had often worked as a confidential informant for the MBN since he was familiar with the drug sellers in the community. He was paid one-hundred dollars for each successful buy. Prior to each transaction, Gardner met with MBN agents and investigators for a search of his person and vehicle to ensure no outside drugs, weapons, or money were available to Gardner. He was also provided with the audio and video recording devices to relay his transactions with Quinn to the law-enforcement officials. Gardner purchased between twenty dollars and forty dollars worth of crack cocaine from Quinn. After purchasing the crack cocaine from Quinn, Gardner again met with law-enforcement officials to turn over the purchased crack cocaine, as well as submit to a second search of his person and vehicle to ensure no money or crack cocaine was kept. In addition, the law-enforcement officials retrieved the video and audio recordings for their review.

¶ 3. In addition to Gardner’s testimony, Leake County Sheriffs Office Narcotics Investigator Clay McCombs, MBN Agent Matthew Simmons, Carthage Police Department Narcotics Officer Chance Henderson, and Leake County Sheriffs Office Canine Officer Justin Sims testified regarding their involvement in the case. Also, Jamie Johnson and Keith McMahan, both forensic scientists in drug identification and analysis with the Mississippi Crime Lab testified and confirmed that the substance recovered from each transaction was, in fact, crack cocaine. Investigator McCombs explained the process of using a confidential informant to aid in apprehending drug sellers, and he stated that he met with Gardner after Gardner relayed his interest in working as a confidential informant.

¶ 4. Investigator McCombs testified that on August 28, 2009, Gardner informed Investigator McCombs that Gardner could purchase crack cocaine from Quinn. Gardner testified that he had known Quinn for approximately ten years and “was a friend” of Teresa Boone, Quinn’s mother. Following procedure, Investigator McCombs and Officer Henderson conducted a search of Gardner and his vehicle, and Gardner was provided money to purchase crack cocaine from Quinn. Gardner was outfitted with audio and video equipment to record the transaction. After Quinn sold Gardner crack cocaine that same day, Gardner met with Investigator McCombs and Officer Henderson to deliver the crack cocaine he bought and return the video and audio equipment. Gardner and his vehicle were again searched according to proper procedure.

¶ 5. On all three dates, both the pre-buy and post-buy searches of Gardner resulted in no other illegal substances or paraphernalia. The same pre-buy and post-buy process described above was repeated in both the September 25, 2009 and October 1, 2009 transactions involving Gardner and Quinn. Again, on all three dates, Gardner met Quinn and exchanged State-issued money for crack cocaine provided by Quinn. Both the August 28, 2009 and October 1, 2009 transactions produced a forty-dollar rock of crack cocaine; the September 25, 2009 transaction produced a twenty-dollar rock of crack cocaine. Agent Simmons and Officer Henderson handled the pre-buy and post-buy searches of Gardner and his vehicle for the September 25, 2009 transaction, and Investigator McCombs, Agent Simmons, and Officer Sims handled the pre-buy and post-buy searches for the October 1, 2009 transaction.

■ ¶ 6. At the close of the State’s testimony, Quinn moved for a directed verdict alleging that the State had failed to prove “that he, indeed, sold crack cocaine to a confidential informant on three occasions.” The circuit judge overruled Quinn’s motion. Quinn rested his case without testifying and without presenting any witnesses or evidence. The jury received instructions and was sent to deliberate. Approximately twenty minutes later, the jury returned its verdict finding Quinn guilty as to all three counts. Quinn’s sentencing hearing held on September 19, 2010, resulted in a sentence of twenty years in the custody of the MDOC on Count I; twenty years in the custody of the MDOC on Count II; and ten years in the custody of the MDOC on Count III, with five years suspended and five years of PRS. The sentences were ordered to run consecutively for a total of forty-five years in the custody of the MDOC followed by five years of PRS. On September 20, 2010, Quinn filed a pro se motion for a new trial, or, in the alternative, a motion for a JNOV. On a later date, Quinn’s attorney also filed a motion for a new trial. Ultimately, the circuit judge denied these motions. Quinn now appeals and raises the following issues:

I. Whether the circuit court erred in denying the motion for a directed verdict, the request for a peremptory instruction, and [the motions] for a new trial?
II. Whether the circuit court erred in sustaining the State’s objection to Quinn’s cross-examination of Gardner?

ANALYSIS

I. Indictment

¶ 7. Although Quinn initially phrases this issue as a challenge to the weight and sufficiency of the evidence, a review of his argument indicates that his challenge is actually whether the evidence presented at trial conformed to charges in his indictment. Quinn was charged with three counts of violating Mississippi Code Annotated section 41 — 29—139(a)(1), which makes it “... unlawful for any person knowingly or intentionally: [t]o sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance[.]” In each count of his indictment, Quinn was charged with “willfully, unlawfully, feloniously and knowingly selling] and delivering] to [MBN] Confidential Informant # 95-110, a Schedule II controlled substance, namely cocaine, in Leake County, Mississippi, contrary to and in violation of [Mississippi Code Annotated] Section 41 — 29—139(a)(1).... ” Quinn argues that his indictment charged him with selling cocaine to “[MBN] Confidential Informant # 95-110,” but the proof produced at trial only showed Quinn made three sales of cocaine to Gardner. Ultimately, his claim is that the State did not prove all the essential elements of the crime and every allegation of the indictment because the State failed to prove that Gardner was MBN Confidential Informant # 95-110. There is no proof in the record that MBN Confidential Informant # 95-110 was anyone other than Gardner.

¶ 8. As the State correctly points out in its brief, the record is void of any objection made by Quinn to the substance or form of his indictment at trial or in his post-trial motions. If there is a substantive defect in an indictment, the issue cannot be waived; however, the issue of a defect in the form, and not substance, of an indictment curable by an amendment at trial may be waived if it is not timely raised. Buford v. State, 756 So.2d 815, 816 (¶ 4) (Miss.Ct.App.2000) (citations omitted). When deciding if a defect is of substance or of form, the following test is applied:

Whether or not a defense under the indictment or information as it originally-stood would be equally available after the amendment is made and whether or not any evidence [the] accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance.

McCullen v. State, 786 So.2d 1069, 1078 (¶ 23) (Miss.Ct.App.2001) (quoting Stradford v. State, 771 So.2d 390, 396 (¶ 16) (Miss.Ct.App.2000)). Uniform Rule of Circuit and County Court 7.09 provides that “[a]ll indictments may be amended as to form but not as to the substance of the offense charged.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” In this case, we find that this defect is one of form and not substance, and Quinn is procedurally barred from raising this issue on appeal since he failed to present the issue to the circuit court for review first. Quinn’s concern is that his indictment did not reflect that he sold cocaine to Gardner, which was the evidence produced at trial, and that the State failed to prove Gardner and MBN Confidential Informant # 95-110 were one and the same. The specific, correct name of the individual to whom the drugs were sold is not an essential element of the crime Quinn was charged with committing and did not affect any possible defense he may have had to the charges of selling cocaine. Under Rule 7.09, it is likely that if Quinn had objected to the indictment at trial, the State would have been permitted to amend the indictment to reflect Gardner to be the MBN Confidential Informant # 95-110.

¶ 9. Because the circuit court did not have the opportunity to address this issue and because the indictment’s defect is one of form and not substance, we find this issue is procedurally barred.

II. Cross-Examination

¶ 10. In Quinn’s next issue, he argues the circuit court erred in sustaining the State’s objection to his cross-examination of Gardner about the relationship between Gardner and Teresa Boone, Quinn’s mother. The standard of review applied to a circuit judge’s admission or exclusion of evidence and testimony is abuse of discretion. Wade v. State, 583 So.2d 965, 967 (Miss.1991). Quinn submits that Gardner only approached law-enforcement officials to act as a confidential informant after his relationship with Boone had ended. Because this evidence was excluded, Quinn argues that he was not able to pursue a defense of selective prosecution.

¶ 11. According to Mississippi Rule of Evidence 611(b), the scope of cross-examination “shall not be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” The official comments to Rule 611(b) states that “[u]nder this wide-open cross-examination[,] any matter may be probed that is relevant.” At trial, the following exchange took place:

DEFENSE ATTORNEY: You know other people that you would claim that sell drugs in Carthage. Is that right?
GARDNER: Yes, sir.
STATE: Objection, Your Honor.
THE COURT: Sustained.
DEFENSE ATTORNEY: Your Honor, I believe that’s all the questions I have.

There was no ground given as a basis for the objection, nor was there a explanation given for sustaining the objection. Further, the record is void of what testimony Quinn sought to discover from this potential line of questioning. Although Quinn argues that this case may be one of selective prosecution, the evidence presented shows that Quinn was just one of several individuals that Gardner bought drugs from as a confidential informant. Gardner testified that he had been working as a confidential informant for law enforcement for approximately ten to fifteen years and had participated in that capacity approximately twenty-five times prior to the current case. The fact that Gardner knew other people in the community that sold drugs was not relevant to the current case because Gardner had acted as a confidential informant on numerous occasions involving several other individuals as sellers.

¶ 12. In regard to the admission or exclusion of evidence, Mississippi Rule of Evidence 103(a) states that “[ejrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]” Based on our review of the record, we do not find that a substantial right of Quinn was affected by the exclusion of Gardner’s testimony. Therefore, we find that the circuit judge did not abuse his discretion in excluding the testimony.

¶ 13. Finding no error, this issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF THREE COUNTS OF THE SALE OF COCAINE AND SENTENCES OF TWENTY YEARS IN COUNT I, TWENTY YEARS IN COUNT II, AND TEN YEARS IN COUNT III, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCES IN ALL COUNTS TO RUN CONSECUTIVELY TO ONE ANOTHER, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

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


author: IRVING, P. J„

text:
    George C. McKEE, Appellant v. CITY OF STARKVILLE, Mississippi, Appellee.
    No. 2009-CP-01833-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.

      George C. McKee, appellant, pro se.
    Christopher J. Latimer, Columbus, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

IRVING, P. J„

for the Court:

¶ 1, The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor.

¶ 2. In 2008, George C. McKee filed an application with the City of Starkville, Mississippi (City), seeking to rezone .75 acres from R-2 (“single family/duplex”) to R-5 (“multi-family/ high-density”). The City’s Board of Aldermen (Board) denied the rezoning request, despite the Planning and Zoning Commission’s (Planning Commission) recommendation that the request be approved. McKee appealed the Board’s decision to the Oktibbeha County Circuit Court, which affirmed the Board’s decision. Feeling aggrieved, McKee appeals and argues that: (1) his due process rights were violated because he did not have notice of the Board’s meeting where his application was denied, and (2) the circuit court erred in finding that the Board’s decision was supported by substantial evidence and was not arbitrary and capricious.

¶ 3. Because McKee’s due process rights were violated when the Board failed to notify him of the board meeting where it considered, and ultimately denied, his rezoning request, we reverse the circuit court’s judgment and remand this case to the Board for a properly noticed hearing. As the first issue is dispositive, we need not address McKee’s second issue.

FACTS

¶ 4. McKee sought to rezone .75 acres of his property from R-2 to R-5 to expand an existing apartment complex, which he also owned. The Planning Commission prepared a staff report and noted that the adjacent properties to the north, south, and west of the subject property were zoned R-5. Consequently, the Planning Commission found that the character of the neighborhood had changed from single-family residential to high-density residential and from owner-occupied dwellings to rental properties. Additionally, it found that a public need existed for the rezoning, given the constant need for rental units to house the growing student population at Mississippi State University. Based on its findings, and following a public hearing on the matter, the Planning Commission unanimously recommended approval of McKee’s rezoning request to the Board. Despite the Planning Commission’s unanimous recommendation, the Board denied McKee’s request based on its belief that McKee had not sufficiently proven a change in the neighborhood’s character.

¶ 5. Following the Board’s denial, McKee filed a bill of exceptions. However, contrary to the requirements of Mississippi Code Annotated section 11-51-75 (Rev. 2002), McKee’s bill of exceptions was not signed by the City’s mayor. The City responded by filing its own bill of exceptions, which the mayor signed. Additionally, the City filed a “Motion to Strike and/or Dismiss,” claiming that only its bill of exceptions complied with the requirements of section 11-51-75 and could be considered by the circuit court in reviewing the Board’s decision.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. A zoning decision made by a city’s board of aldermen will “not be set aside unless it is clearly shown to be arbitrary, capricious, discriminatory, or is illegal, or without a substantial evidentiary basis.” Thomas v. Bd. of Supervisors, 45 So.3d 1173, 1180 (¶ 22) (Miss.2010) (quoting Faircloth v. Lyles, 592 So.2d 941, 943 (Miss.1991)). Furthermore, “[t]he action of the zoning authority must not be disturbed where the issue is ‘fairly debatable.’ ” Id. at 1181 (¶ 23) (quoting Childs v. Hancock County Bd. of Supervisors, 1 So.3d 855, 859 (¶ 12) (Miss.2009)).

1. Subject Matter Jurisdiction

¶ 8. Section 11-51-75 provides for an appeal from a decision of a board of supervisors or a municipal authority through a bill of exceptions. “The bill of exceptions serves as the record on appeal, and ... the circuit court [may] only consider the case as made by the bill of exceptions.” Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1011 (¶ 11) (Miss.2000) (quoting Hooks v. George County, 748 So.2d 678, 680 (¶ 11) (Miss.1999)). The Mississippi Supreme Court has explained the proper procedure for filing a bill of exceptions as follows:

The general rule with respect to bills of exceptions when presented to the proper official for signature appears to be that such officer or official cannot arbitrarily refuse to sign and return the bill of exceptions merely because he deems the same to be incorrect, but that it is his duty to point out wherein he deems the same to be incorrect, and to note his corrections thereon, and to sign the same as correct.
If he deemed incorrect the.bill of exceptions presented to him, he was under an implied duty to point out wherein he deemed the same incorrect so that the aggrieved parties might have an opportunity to amend the same, and then to sign the same as corrected.

Id. at 1012 (¶ 14) (quoting Reed v. Adams, 236 Miss. 333, 340-41, 111 So.2d 222, 224-25 (1959)).

¶ 9. Furthermore, “[i]f the bill of exceptions is not complete and is fatally defective in that pertinent and important facts and documents are omitted therefrom, then the court does not have a record upon which it can intelligently act.” Id. (quoting Stewart v. City of Pascagoula, 206 So.2d 325, 328 (1968)). Finally, our supreme court has held that “a proper bill of exceptions on appeal is necessary to confer jurisdiction on the appellate court.” Id.

¶ 10. In this case, McKee’s bill of exceptions did not comply with the procedural requirements set forth in section 11-51-75 and explained by the supreme court in Wilkinson because it did not contain the mayor’s signature. The City also failed to comply with the requirements because, rather than noting the portions of McKee’s bill of exceptions that it deemed incorrect and allowing him to amend it, it filed its own bill of exceptions. Neither party has raised the issue of jurisdiction based on the lack of a properly filed bill of exceptions. “Nevertheless, all courts must be constantly aware of questions of their jurisdiction to proceed and must be prepared to decide a question pertaining to jurisdiction at any time, even if the court must raise the issue on its own motion.” Dunaway v. Dunaway, 749 So.2d 1112, 1120 (¶ 25) (Miss.Ct.App.1999) (citing Waits v. Black Bayou Drainage Disk, 186 Miss. 270, 283, 185 So. 577, 578 (1939)).

¶ 11. While neither McKee nor the City complied with the procedural requirements set forth in Wilkinson, the bills of exceptions filed with the circuit court contained the “pertinent and important facts and documents” and constituted “a record upon which [the court could] intelligently act.” Wilkinson, 767 So.2d at 1012 (¶ 14). Furthermore, the supreme court has previously addressed the merits of an appeal where there were two bills of exceptions before the circuit court-one filed by local residents without the mayor’s signature and another filed by the Board of Aldermen with the mayor’s signature. See Hall v. City of Ridgeland, 37 So.3d 25, 32 (¶ 17) (Miss.2010). Therefore, under these facts, we decline to dismiss for lack of subject matter jurisdiction.

¶ 12. Our decision in this case should not be interpreted as an abandonment of the procedure outlined in Wilkinson. Had we determined that the circuit court did not have a record before it upon which it could intelligently act, this Court would have dismissed the appeal based on lack of subject matter jurisdiction. See Wilkinson, 767 So.2d at 1012 (¶ 14) (dismissing for lack of subject matter jurisdiction where the City did not follow the procedure for submitting a corrected bill of exceptions, and the circuit court considered evidence outside of the bill of exceptions); Stewart, 206 So.2d at 328 (dismissing for lack of subject matter jurisdiction where the bill of exceptions omitted pertinent documents).

2. Due Process

¶ 13. McKee also argues that the Board violated his right to due process when it failed to notify him of the meeting where it denied his rezoning application. However, the City contends that based on the plain language of Mississippi Code Annotated 17-1-17 (Supp.2011), McKee was not entitled to notice of the Board’s meeting. Section 17-1-17 provides, in pertinent part:

Zoning regulations, restrictions and boundaries may, from time to time, be amended, supplemented, changed, modified or repealed upon at least fifteen (15) days’ notice of a hearing on such amendment, supplement, change, modification or repeal, said notice to be given in an official paper or a paper of general circulation in such municipality or county specifying a time and place for said hearing. The governing authorities or any municipal agency or commission, which by ordinance has been theretofore so empowered, may provide in such notice that the same shall be held before the city engineer or before an advisory committee of citizens as hereinafter provided and if the hearing is held before the said engineer or advisory committee it shall not be necessary for the governing body to hold such hearing but may act upon the recommendation of the city engineer or advisory committee. Provided, however, that any party aggrieved with the recommendation of the city engineer or advisory committee shall be entitled to a public hearing before the governing body of the city, with due notice thereof after publication for the time and as provided in this section.

(Emphasis added). The City contends that because the Planning Commission recommended approval of McKee’s rezoning application, he was not an aggrieved party and was not entitled to a public hearing before the Board under section 17-1-17. While the plain language of the statute supports the City’s position, it produces a result that is inconsistent with our existing case law. Our supreme court has stated that in proceedings before city zoning authorities, due process requires notice and “the opportunity to be heard at all critical stages of the process.” Carpenter v. City of Petal, 699 So.2d 928, 931 (¶ 9) (Miss.1997) (quoting Thrash v. Mayor & Comm’rs of Jackson, 498 So.2d 801, 808 (Miss.1986)).

¶ 14. The City’s interpretation of section 17-1-17 would only be consistent with the due process requirements announced in Carpenter and Thrash if the Board was bound by the Planning Commission’s recommendation regarding rezoning applications. However, the Board is not bound by the Planning Commission’s recommendations, and it may deny a request even where, as in this case, the Planning Commission unanimously recommends approval (provided, of course, that its decision is supported by substantial evidence). Therefore, even where a party has not been aggrieved by the recommendation of the city engineer or advisory committee, he is still entitled to notice of the hearing before the governing body of the city where the rezoning request is considered.

Because McKee was not given notice of the Board’s meeting where his rezoning request was denied, he was denied due process. Consequently, we reverse the circuit court’s judgment and remand this case to the Board for a properly noticed hearing on McKee’s rezoning request.

¶ 15. THE JUDGMENT OF THE OK-TIBBEHA 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., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. BARNES, RUSSELL AND FAIR, JJ., NOT PARTICIPATING.

      . Section 11-51-75 provides, in pertinent part:
      Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment.

      . McKee takes exception to certain statements in the City’s bill of exceptions. Specifically, McKee complains that the City’s bill of exceptions erroneously states that the Board "unanimously” denied his application where five aldermen voted to deny and two aldermen voted to approve. McKee also complains that the City’s bill of exceptions incorrectly claims that he "appealed" to the Board following the Planning Commission's recommendation that his rezoning application be approved when no such appeal was filed. However, neither of these claims is material to the resolution of this appeal.