source: Caselaw Access Project

author: WALLER, Chief Justice, COLEMAN, Justice,

license: Public Domain

text:
    Robert G. GERMANY v. Ginger GERMANY.
    No. 2011-IA-01287-SCT.
    Supreme Court of Mississippi.
    Oct. 17, 2013.

      Myles A. Parker, James L. Carroll, Stacey P. Stracener, Clifton M. Decker, Jackson, attorneys for appellant.
    Seth C. Little, Barry W. Gilmer, Jackson, Thomas A. Waller, attorneys for ap-pellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. This interlocutory appeal arises from the Madison County Circuit Court’s denial of Robert Germany’s motion to sever and transfer claims filed against him by his wife, Ginger Germany, to the Germa-nys’ pending divorce proceeding in the Hinds County Chancery Court. Finding that many of Ginger’s claims against Robert are either equitable in nature or are related to divorce and alimony, we reverse the circuit court and remand with instructions to sever and transfer those claims to the pending divorce action in the Chancery Court of the First Judicial District of Hinds County, Mississippi.

STATEMENT OF THE CASE

¶2. Ginger filed a complaint against Robert and Holly Morgan for money damages, an accounting, and injunctive relief in the Circuit Court of Madison County, Mississippi, on February 24, 2011. On February 28, 2011, Robert filed a complaint for divorce against Ginger in the Chancery Court of the First Judicial District of Hinds County, Mississippi.

¶ 3. In her complaint against Robert, Ginger asserted claims for breach of contract; fraud, deceit and deception; constructive trust and unjust enrichment; conversion; accounting; intentional infliction of mental distress; negligent infliction of mental distress; and a request for in-junctive relief. She requested judgment in the form of a constructive trust in her favor as well as a money judgment against Robert for both actual and punitive damages. Ginger also requested a judgment against Defendant Morgan for actual and punitive damages for her claims of alienation of affection, intentional infliction of mental distress, and negligent infliction of emotional distress.

¶ 4. On April 7, 2011, Robert filed in the circuit court a motion to dismiss, an alternative motion to transfer, and an alternative motion to stay proceedings, arguing that Ginger’s claims against him are matters of equity or are related to divorce and alimony and would be better addressed in chancery court. A hearing on the motion was held on June 17, 2011, and on August 12, 2011, the circuit court judge filed his order denying Robert’s motion. On August 22, 2011, Robert filed a motion to reconsider and requested that the circuit court judge stay the proceedings until this Court renders its decision on the interlocutory appeal.

¶ 5. On September 2, 2011, Robert filed a petition for interlocutory appeal with this Court, raising the following issues:

I. Whether the Madison County Circuit Court erred in denying Robert’s Motion to Sever and Transfer Ginger’s claims to the pending divorce action in the Chancery Court for the First Judicial District of Hinds County.
II. Whether the Madison County Circuit Court erred in denying Mr. Germany’s Motion to Stay in light of the pending divorce action in the Chancery Court for the First Judicial District of Hinds County.

¶ 6. The circuit court judge issued an order on November 2, 2011, to hold in abeyance Robert’s motion to reconsider pending the disposition of the petition for interlocutory appeal. The court noted that there was “potential for conflicts in a situation where the Plaintiff and the Defendant Robert Germany may be involved in litigation in two different courts, involving similar evidentiary matters, at the same time.”

¶ 7. Having granted Robert’s petition for interlocutory appeal, we limit our discussion to the first issue, finding it to be dispositive.

STANDARD OF REVIEW

118. Robert argues that Ginger’s claims, “if viable at all, are within the exclusive subject matter jurisdiction of the Chancery Court, and should properly be determined with all other issues in the pending Divorce Action.” Jurisdiction is a question of law which this Court reviews de novo. Trustmark Nat’l Bank v. Johnson, 865 So.2d 1148, 1150 (Miss.2004) (citations omitted). The standard of review for a ruling on a motion to transfer from chancery court to circuit court, or vice-versa, for lack of subject-matter jurisdiction is also de novo. Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1178 (Miss.2004).

DISCUSSION

Whether the Madison County Circuit Court erred in denying Robert’s Motion to Sever and Transfer Ginger’s equitable claims to the pending divorce action in the Chancery Court for the First Judicial District of Hinds County.

¶ 9. Robert asserts that the circuit court erred in failing to sever and transfer Ginger’s claims against him in the underlying circuit court action to the Germanys’ pending divorce action in the Chancery Court of the First Judicial District of Hinds County, Mississippi. Robert argues that, although Ginger’s claims were brought “under the guise of being ‘legal’ claims,” they are substantively “matters in equity” or “divorce and alimony.” In support of his argument, Robert relies on Article 6, Section 159 of the Mississippi Constitution, which states:

The chancery court shall have full jurisdiction in the following matters and cases, viz.:
(a) AU matters in equity;
(b) Divorce and alimony;
(f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.

(Emphasis added.) Additionally, Article 6, Section 157, of the Mississippi Constitution requires that “[a]ll causes that may be brought in the circuit court whereof the chancery court has exclusive jurisdiction shall be transferred to the chancery court.” (Emphasis added.) This Court has rejected the assertion that Article 6, Section 159 of the Mississippi Constitution conferred exclusive jurisdiction in all matters of equity when it conferred full jurisdiction over such matters. W. Horace Williams Co. v. Fed. Credit Co., 198 Miss. 111, 21 So.2d 582, 583 (1945) (emphasis added). However, the Legislature has instructed that “proceedings to obtain a divorce shall be by complaint in chancery .... ” Miss.Code Ann. § 93-5-7 (Rev. 2004) (emphasis added).

¶ 10. The real question before this Court is whether Ginger’s complaint presents legal claims that should be decided by a jury in circuit- court, or whether her claims are really matters of equity or related to her marriage and/or divorce that should be heard in chancery court. This Court has held that, in determining whether a court has subject-matter jurisdiction, “one must look at the substance, and not the form, of the claim in order to determine whether the claim is legal or equitable” and “we look to the face of the complaint, examining the nature of the controversy and the relief sought.” Trustmark Nat’l Bank v. Johnson, 865 So.2d 1148, 1151 (Miss.2004) (citations omitted); Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 716 (Miss.2009) (emphasis added) (citing RAS Family Partners, LP v. Onnam Biloxi, LLC, 968 So.2d 926, 928 (Miss.2007)). Thus, we must look to the substance of each of Ginger’s claims, examining the nature of the controversy and the relief sought, to determine whether they are truly legal or equitable in nature.

A. Breach of Contract

¶ 11. Ginger alleges that she and Robert formed an oral contract prior to their marriage and continuing to the present wherein she agreed to set over her money and assets to Robert for his use, management, and financial investment purposes. Ginger also allowed Robert to use her money for the payment of income taxes. Ginger claims that, in exchange, Robert promised that they would equally share $12,000,000 from his tobacco settlement (the settlement was earned by Robert in 1999 but he chose to defer receipt of the money until 2011). Although not expressly stated, it appears that Ginger is seeking specific performance of the contract — she claims that they agreed that she would receive repayment of her cash contributions as well as an equal part of the tobacco money. She also alleges that Robert’s breach of contract was willful, capricious, and malicious and that the breach amounts to a separate tort and she should be entitled to actual and punitive damages together with attorneys’ fees and other costs associated with the litigation.

¶ 12. Although labeled as a breach-of-contract claim, the “contract” that Ginger refers to is an agreement she and Robert made, when they lived together and continuing during their marriage, for the management of their money and assets. It was held long ago that “marriage itself, as a personal relation between the parties, is not a matter of contract within the meaning of the constitutional provision in reference to the inviolability of contracts.” Carson v. Carson, 40 Miss. 349, 351 (1856).

¶ 13. While Ginger’s claim to the “tobacco money” is artfully pleaded, this allegation cannot be considered in isolation. The parties operated under the terms of this “contract” throughout their ten-year marriage, accumulating and commingling property, until their separation in 2010. For example, the funds Ginger allegedly entrusted to Robert’s management were used to purchase marital property, such as the parties’ homes in Jackson, Mississippi, and Scottsdale, Arizona. As discussed below, the chancellor has found that Ginger received proceeds from the sale of the Jackson home, contrary to the allegations in her complaint. The parties also accumulated a substantial wine collection, which Ginger argues should be sold, with the proceeds being handed over to her. Ginger also claims that her funds were used for the payment of the income tax debt resulting from Robert’s tobacco litigation fee, and that a substantial part of Ginger’s estate was committed during the marriage. Finally, as explained more fully below, Ginger has sought and been awarded separate maintenance in the chancery court proceeding, based in large part on Robert’s substantial income from the tobacco litigation. Looking at this case as a whole, it would be impossible for a circuit court to separate Ginger’s breach-of-contract claim from her other claims that are substantively equitable in nature and concern the distribution of the couple’s property. The substance of Ginger’s breach-of-contract claim is whether the parties commingled their assets during the marriage and whether she is entitled to receive a portion of Robert’s tobacco litigation fee. The chancery court could better address whether Ginger is entitled to any of this money when it determines how the parties’ assets should be separated upon dissolution of the marriage, based on the factors set out in Ferguson. See Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

¶ 14. Ginger has been awarded separate maintenance in the divorce action. Separate maintenance is an equitable remedy based upon the marriage relationship, and a decree for separate maintenance is a command to the husband to resume cohabitation with his wife or to provide suitable maintenance “until such time as they may be reconciled to each other.” Daigle v. Daigle, 626 So.2d 140, 145 (Miss.1993) (citing Lynch v. Lynch, 616 So.2d 294, 296 (Miss.1993)). The purpose of separate maintenance is “to provide, as nearly as may be possible, the same sort of normal support and maintenance for the wife, all things considered, as she would have received in the home, if the parties had continued normal cohabitation....” Robinson v. Robinson, 554 So.2d 300, 305 (Miss.1989). When making an award of separate maintenance, the chancery court is to consider:

(1)The health of both husband and wife;
(2) Their combined earning capacity;
(3) The reasonable needs of the wife and children;
(4) The necessary living expenses of the husband;
(5) The fact that the wife has free use of the home and furnishings; and
(6) Other such facts and circumstances bearing on the subject that might be shown by the evidence.

Daigle, 626 So.2d at 145.

¶ 15. In a divorce proceeding, the chancery court will determine the division of marital assets through equitable distribution and will consider:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928 (emphasis added).

¶ 16. Ginger claims that she learned that Robert had breached their “contract” when he announced on November 29, 2010, that he was having an affair and wanted a divorce. It is significant to note that Ginger considers the date that Robert announced his intent to file for divorce as the date that the “contract” was breached. The tobacco money, to which Ginger alleges she is entitled an equitable share, may or may not be deemed marital property in the divorce action, but it would be considered during the equitable distribution of the couple’s property and in determining the amount of separate maintenance or alimony, if any, to which she would be entitled. See Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994) (“If the situation is such that an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party, then alimony based on the value of nonmarital assets should be considered.”) Therefore, we find that the substance of the breach-of-contract claim is related to divorce and alimony and, thus, should be transferred to the chancery court proceeding.

B. Fraud, Deceit, and Deception

¶ 17. In her claim for fraud, Ginger reiterates that she set over a substantial amount of her inheritance, which otherwise would have been nonmarital property. See Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994) (“Assets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.”); but see Johnson, 650 So.2d at 1286 (nonmari-tal assets may lose such status if the asset is commingled with marital property or used for familial benefit). She claims that “all of this commingling of assets and furnishing of money to Defendant Germany was based on his false material misrepresentations that Plaintiffs money and other assets would be invested, safely kept and otherwise returned to Plaintiff upon the receipt and distribution of the ‘tobacco money1.... ”

¶ 18. Ginger seeks punitive damages “in a sum sufficient to deter such conduct [fraud, deceit, and deception] in the future.” In support of her contention that her claim for fraud is legal and not equitable, she cites this Court’s holding in Southern Leisure Homes v. Hardin, 742 So.2d 1088 (Miss.1999). In Hardin, the Hardins filed suit against Southern Leisure Homes, Inc., in the Chancery Court of Washington County. Id. at 1089. The Hardins alleged that Southern had breached a contract to sell a mobile home to the Hardins, that Southern had entered the contract with full knowledge that the property already had been contracted to be sold to another party, and that such actions were both negligent and fraudulent. Id. The Hardins sought to recover both actual and punitive damages and attorneys’ fees. Id. This Court found that, although acts of fraud may give rise to actions in equity, the Hardins clearly were seeking a legal, rather than equitable remedy — $10,000 in actual damages and $100,000 in punitive damages. Id. at 1090.

¶ 19. The facts of the case sub judice are distinguishable from those in Hardin. In Hardin, we concluded that the plaintiffs claims amounted to “essentially a breach of contract claim which is best heard in circuit court.” Id. But Hardin involved a commercial “arm’s length” transaction, rather than an agreement between spouses concerning how the couple’s finances would be managed. The remedy Ginger seeks for Robert’s alleged fraud— “the promised equal share of the ‘tobacco money’ ” — further illustrates the equitable substance of her claim. The fact that she is seeking punitive damages should not be the determining factor of whether her claim is legal rather than equitable. See Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 464 (Miss.1988) (Claims for punitive damages are legal and not equitable, but chancery courts have actual subject-matter jurisdiction over punitive-damages claims). Ginger has alleged essentially the same set of facts for her fraud claim as she did in her breach-of-contract claim, which we find to be equitable in nature and related to the parties’ pending divorce. Accordingly, we find that Ginger’s fraud claim is related to divorce and alimony and should be transferred to the chancery court proceeding.

C. Constructive Trust and Unjust Enrichment

¶ 20. Ginger’s claim that Robert has been unjustly enriched and that the court should impose a constructive trust upon certain assets is based on the same set of facts that give rise to her other claims that she contends are “purely legal.” However, Ginger’s attorney conceded at the hearing on the motion to transfer that her claims for constructive trust and unjust enrichment are equitable claims. She, in fact, asserts that “equity should restore her to her former financial position together with an equitable share of the tobacco money....” This Court has made it clear that the remedies of constructive trust and unjust enrichment are equitable. See McNeil v. Hester, 753 So.2d 1057, 1064 (Miss.2000) (“A constructive trust is a fiction of equity created for the purpose of preventing unjust enrichment ....”) (emphasis added); Koval v. Koval, 576 So.2d 134, 136 (Miss.1991) (Unjust enrichment is an equitable remedy based on contract law) (emphasis added).

¶ 21. Ginger specifically requests an equitable portion of Robert’s assets. Ginger argues that she is not seeking a divorce or alimony, and the fact that her claims are based on the parties’ marriage and Robert leaving such marriage should not convert her claims to those of “divorce and alimony.” However, Ginger has asserted that she is entitled to separate maintenance and alleges the same set of facts for consideration in the chancery court matter. Equitable distribution, alimony, and separate maintenance would be considered in the divorce action. Our holding in Ferguson, 639 So.2d 921, established the guidelines that chancellors are to consider when dividing marital property. And alimony is considered only after the marital property has been equitably divided and the chancellor determines that one spouse is at a deficit. Johnson, 650 So.2d at 1287. Although Ginger has not requested alimony per se, her claims filed in the circuit court would have the same effect and serve the same purpose that equitable distribution or an award of alimony would serve in the divorce matter; therefore, to allow her to pursue a claim for unjust enrichment in circuit court based on the same facts alleged in the chancery court matter potentially would lead to double recovery.

D. Conversion

¶ 22. Ginger claims that Robert converted her money to his use and that she has been injured in excess of $1,000,000 because of this conversion. Ginger argues that this is a legal claim and relies on this Court’s holding in Crosby, in which this Court found that “conversion, which requires an intent to exercise dominion or control over goods which is inconsistent with the true owner’s rights, is an intentional tort.... Tort claims are heard in circuit court.” Crosby, 870 So.2d at 1182 (citations omitted).

¶ 28. Ginger alleges in her complaint that the couple’s Jackson, Mississippi, home sold for $2,225,000 and that Robert converted $1,163,515.58 from the sale of the home to his own use, dominion, and control by endorsing the check with his signature and forging Ginger’s signature. In a temporary hearing that occurred subsequent to the filing of Ginger’s civil complaint, the chancellor addressed some of the allegations in Ginger’s civil complaint related to the sale of the parties’ Jackson home. The chancellor found, contrary to the allegations in Ginger’s complaint, that the sale of the home netted approximately $750,000 after fees, expenses, mortgage payoff and the payment of back taxes and that Ginger received $126,000 from the proceeds of the home. With the remaining money, Robert paid American Express $262,619, paid the Internal Revenue Service (IRS) $32,398, paid BankPlus $32,398, paid his lawyer $15,000 in an unrelated domestic matter, and paid twelve mortgage payments (including taxes and insurance) on the Arizona home totaling approximately $140,000.

¶ 24. Part of Ginger’s “conversion claim” includes a judicial sale of Robert’s wine collection with an order setting over the proceeds of the sale to her. Ownership and disposition of the wine collection, part of which was acquired during the marriage, necessarily should be determined by the chancery court as part of the divorce action. Ginger has not asserted how the substance of her claim for conversion is a legal, rather than equitable, claim.

¶25. We find that Ginger’s claim for conversion is really a request for the circuit court judge to award her marital assets that ordinarily would be distributed in the divorce action.

E. Accounting

¶ 26. Ginger explains that Robert maintains dominion and control over most of the records and documents reflecting disposition of the money throughout their marriage. She requests access to the couple’s financial records and asserts that “[j]ustice and equity cannot be done without access to such records and the formulation of a strict accounting reflecting the disposition of said money together with the full disclosure of Defendant Germany’s transactions, income, debts, expenditures, assets and liabilities from 1993 to present.”

¶ 27. The chancery court and circuit court have concurrent jurisdiction over “suits involving inquiry into matters of mutual accounts.” Miss. Const, art. 6, § 161. However, if a plaintiff brings suit in circuit court, that court may “transfer the cause to the chancery court, if it appears that the accounts to be investigated are mutual and complicated.” Id. We find that the facts of this case present such an instance where the circuit court’s transfer to chancery court would be proper, as the accounts at issue are complicated. This conclusion is supported by evidence already considered in the divorce proceeding. Robert and Ginger already have filed financial disclosure statements (“8.05 forms”) in the pending divorce proceeding in chancery court. See URCCC 8.05. The chancery court already has begun to analyze the parties’ financial information, such as the sale of the Jackson home. The chancellor also has considered the financial situations of the parties for the purpose of determining separate maintenance. The chancery court therefore is in the best position to address Ginger’s claim for accounting.

F. Intentional and Negligent Infliction of Emotional Distress

¶ 28. Ginger has asserted claims of intentional and negligent infliction of mental distress against Robert. Ginger claims that Robert openly engaged in an extramarital affair with Holly and that he flaunted the affair by taking trips using Ginger Germany’s American Express credit card. She claims that Robert intended to punish her for complaining of mounting debt by incurring additional debt with Defendant Morgan. Ginger also claims that she suffered emotional distress due to Robert’s failure to warn that he was having an affair or that he desired to divorce her. She seeks both compensatory and punitive damages for the mental distress which she claims she has suffered as a result of his actions.

¶ 29. Robert argues that Ginger’s claim against him for intentional and negligent infliction of mental distress are directly related to the chancery court’s determination of “fault or misconduct” and are “matters in equity” or “divorce and alimony” and should be determined by the chancery court.

¶30. It appears that Ginger’s claims for negligent and intentional infliction of mental distress are substantially an attempt to recover punitive damages against Robert through a claim akin to the tort of alienation of affection. “Where a husband [wife] is wrongfully deprived of his [her] rights to the ‘services and companionship and consortium of his [her] wife [husband],’ he [she] has a cause of action ‘against one who has interfered with his [her] domestic relations.’ ” Camp v. Roberts, 462 So.2d 726, 727 (Miss.1985) (quoting Walter v. Wilson, 228 So.2d 597, 598 (Miss.1969), overruled in part on other grounds by Saunders v. Alford, 607 So.2d 1214 (Miss.1992)). Ginger certainly is entitled to bring the claims of alienation of affection and negligent and intentional infliction of emotional distress against Robert’s alleged paramour in circuit court; however, we have never recognized a cause of action against one’s own spouse for failure to warn either of an affair with a paramour or of the desire to obtain a divorce. Nevertheless, this claim clearly seeks a purely legal remedy — monetary and punitive damages for the distress Ginger claims she suffered because of Robert’s actions. Because the merits of this claim could not be addressed sufficiently in a divorce action, we find that Ginger’s claim against Robert for intentional and negligent infliction of emotional distress should be retained by the circuit court.

G. Alienation of Affection

¶ 31. Ginger requests a judgment against Holly Morgan for the sum of $2,000,000 as actual and punitive damages for her claim of alienation of affection. This claim is properly before the circuit court.

H. Injunctive Relief

¶ 32. Ginger asserts that she is entitled to injunctive relief in the form of temporary restraining orders and/or preliminary injunctions. Specifically, she requests that Robert employ all means necessary to satisfy IRS claims from his resources other than the wine collection ... or the sale of the marital home in Scottsdale, Arizona; that he be ordered to satisfy the requirements of Lydian Bank and Trust and BankPlus regarding full payment or service of the existing mortgages and homeowners’ association fees, taxes and insurance; that he be ordered to pay all sums owed on the American Express account, which is in Ginger’s name, and cease use of such; that he be enjoined from entering the Scottsdale home; and such other injunc-tive relief as the court deems proper.

¶ 33. A determination of who is responsible for the parties’ accounts should be made in the divorce action in chancery court. Ginger’s claim for injunctive relief is directly related to the winding down of the marital relationship. This Court has held that injunctive relief is an equitable remedy within the chancery court’s jurisdiction. Derr Plantation, Inc., 14 So.3d at 718 (citing Issaquena Warren Counties Land Co. v. Warren County, 996 So.2d 747, 751 (Miss.2008)). Accordingly, we find that the substance and the form of Ginger’s claim for injunctive relief is equitable and is directly related to the distribution of marital property. Therefore, the issue presented should be decided in the divorce action.

CONCLUSION

¶ 34. Ginger’s claims against Robert that are more closely related to the marital relationship and financial affairs of the parties should be decided in chancery court. On the other hand, Ginger’s claims against Robert for intentional and negligent infliction of emotional distress, along with Ginger’s claims against Holly Morgan, are purely legal and are properly before the circuit court. Therefore, we find that the trial court erred in denying the motion to sever and transfer Ginger’s claims against Robert that are either equitable or relate to the pending divorce to chancery court. Accordingly, we reverse the judgment of the trial court and remand with instructions to transfer the equitable claims to the ongoing chancery court action.

¶ 35. REVERSED AND REMANDED.

RANDOLPH, P.J., LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. KITCHENS, J., NOT PARTICIPATING.

COLEMAN, Justice,

dissenting:

¶ 36. On February 24, 2011, Ginger Germany filed a complaint in the Circuit Court of Madison County, Mississippi, against her husband, Robert Germany, and her husband’s alleged paramour. She asserted the following counts for relief against her husband: (1) breach of contract; (2) fraud, deceit, and deception; (3) constructive trust and unjust enrichment; (4) conversion; (5) a request for an accounting; (6) intentional infliction of mental distress; (7) negligent infliction of emotional distress; and (8) a request for injunctive relief. Because I disagree with the majority’s universal relegation of Mrs. Germany’s claims to chancery court— where she will be deprived of her constitutional right to a jury trial simply because her estranged husband filed a later complaint for divorce — I respectfully dissent.

¶ 37. Pursuant to Article 3, Section 31 of the Mississippi Constitution, “The right of trial by jury shall remain inviolate....” Miss. Const, art. 3, § 31. Mrs. Germany’s complaint contains claims for relief that belong in circuit court, including those for breach of contract and the tort claims of intentional and negligent infliction of emotional distress. Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (¶ 6) (Miss.1999) (breach of contract claim is “best heard in circuit court”); McLean v. Green, 352 So.2d 1312, 1314 (Miss.1977) (“courts of equity should not assume jurisdiction over claims for personal injury”). Because of the constitutional right to a jury trial, chancery courts should not be given jurisdiction over tort claims. McLean, 352 So.2d at 1314.

¶ 38. The instant case is not one such as Issaquena Warren Counties Land Co., LLC v. Warren County, 996 So.2d 747 (Miss.2008), where we justified chancery court jurisdiction — and the coinciding denial of a jury trial to a party that wanted one — because damages would be based on an ordinance, thereby obviating the need for a jury. Id. at 751 (¶ 11). If tried, Mrs. Germany’s claims for breach of contract and infliction of emotional distress will require a trier of fact to weigh evidence, make credibility determinations, and assess damages, if any. The Constitution is clear that Mrs. Germany has the right to have a jury make those determinations, and the right to a jury trial is infringed, i.e., violated, when cases that otherwise would be decided by a jury are heard in chancery court. Southern Leisure, 742 So.2d at 1090 (¶ 7). Even if there is some doubt as to the nature of Mrs. Germany’s claims, they belong in circuit court. As we often have written, “[I]t is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.” Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1182 (¶ 24) (Miss.2004); Southern Leisure, 742 So.2d at 1090 (¶ 6); McDonald’s Corp. v. Robinson Indus., Inc., 592 So.2d 927, 934 (Miss.1991).

¶ 39. I remain unpersuaded by the majority’s reliance upon Article 6, Section 159 of the Mississippi Constitution, which places “full jurisdiction” of divorce proceedings and equitable matters in chancery court. After all — as the majority acknowledges — full jurisdiction does not equal exclusive jurisdiction. As noted above, circuit courts certainly may hear equitable claims. Also, neither Section 159 nor the statute upon which the majority relies, Mississippi Code Section 93-5-7, applies to Mrs. Germany’s complaint as her complaint was not one for divorce. Judicial economy is indeed served by having Mrs. Germany’s claims adjudicated in the same forum as Mr. Germany’s, and it is a noble goal. However, if the bill comes due and shows the price to be Mrs. Germany’s constitutional right to a jury trial, I believe we must decline the bargain.

¶ 40. When considering a facial attack alleging lack of jurisdiction, we must consider all allegations in the plaintiffs case to be true. Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 822 (¶ 15) (Miss.2009). Unfortunately, the majority appears to go through great pains to explain why Mrs. Germany’s allegations are untrue. To use her breach of contract claim as an example, Mrs. Germany alleges that she married Mr. Germany after the couple already had enjoyed a close, confidential relationship for eight years. Although the majority writes that the Germanys entered into the alleged contract during marriage (Maj. at ¶ 12), the complaint reads as follows:

Defendant Germany became precisely familiar with the nature and extent of [Mrs. Germany’s father’s] estate and Ginger’s entitlements as an heir at law. Robert G. Germany acted as Ginger’s attorney during the conservatorship proceedings. Dr. Murphree’s estate was liquidated and dispersed to Ginger and her two sisters. Ginger Murphree Germany received substantial wealth upon the disbursement of the estate and entrusted the management of said money to Defendant Germany with the agreement and trust that Defendant Germany would assist the Plaintiff in financial investment matters and particularly the purchase of real estate. This course of conduct was carried out for several years prior to the marriage of Plaintiff and Defendant Germany and continued subsequent to the marriage....

(Emphasis added.) If Mrs. Germany’s claim for breach of contract is not a viable claim for breach of contract, our rules of procedure contain vehicles, e.g., Rules of Civil Procedure 12(b)(6) and 56, for their dismissal. However, as shown above, if it is a claim for breach of contract she has a constitutional right to a jury trial. Based on the allegations of her complaint, which we are bound to accept as true, I believe she has stated viable claims as to which she has a constitutional right to a jury trial.

¶ 41. Just as the public policy favoring a plaintiffs right to choose the forum does not outweigh the constitutional right to a jury trial, Crosby, 870 So.2d at 1182 (¶ 22), I do not believe the policy consideration of judicial economy outweighs Mrs. Germany’s right to a jury trial. In my opinion, the circuit court has sole jurisdiction over Mrs. Germany’s breach of contract and tort claims and shares concurrent jurisdiction over her claims for equitable relief. Because the circuit court first obtained jurisdiction, it “retains jurisdiction over the whole controversy to the exclusion or abatement” of Mr. Germany’s lawsuit. Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 804 So.2d 1000, 1006 (¶ 15) (Miss.2001). Accordingly, I dissent.

DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.

      . It was revealed at oral argument before this Court that Ginger has sought and was awarded separate maintenance in the pending divorce proceeding. The chancellor issued a temporary order granting Ginger separate maintenance on March 20, 2013. Robert’s petition for interlocutory appeal challenging the award of separate maintenance was denied. See Robert G. Germany v. Ginger M. Germany, No.2013-M-01180-SCT (Aug. 28, 2013).

      . See Robert G. Germany v. Ginger M. Germany, No. G-2011-309, Judgment with Findings of Fact and Conclusions of Law (Hinds County Chancery Court, First Judicial District, Aug. 19, 2011).

      . See supra n. 1.

      . Although not an issue in this case, Ginger’s claim for alienation of affection against Holly Morgan may have to be severed from her claims for intentional and negligent infliction of emotional distress against Robert.


author: RANDOLPH, Presiding Justice, DICKINSON, Presiding Justice,

text:
    Gloria Richmond JACKSON v. Kymberley Haven BELL.
    No. 2011-EC-01710-SCT.
    Supreme Court of Mississippi.
    Oct. 17, 2013.

      Ellis Turnage, Cleveland, attorney for appellant.
    Thomas Henry Freeland, IV, Joyce Marie Freeland, Oxford, attorneys for appel-lee.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Gloria Richmond Jackson appeals the Quitman County Circuit Court Special Judge’s dismissal with prejudice of her petition for judicial review of an election contest, which contested the result of a Democratic primary runoff election. Jackson’s petition was dismissed for lack of jurisdiction, because she failed to attach two attorney certificates to her petition, as required by Mississippi Code Section 23-15-927. We hold that the special judge erred by dismissing Jackson’s petition with prejudice for the nonmerits issue of lack of jurisdiction. Accordingly, we vacate the order of dismissal with prejudice and remand this action to the Quitman County Circuit Court Special Judge with instruction to enter an order dismissing this action without prejudice.

FACTS AND PROCEDURAL HISTORY

¶ 2. A runoff election was held for the Democratic primary for Quitman County Tax Assessor. The Quitman County Democratic Executive Committee issued its final certificate of results, finding that Jackson had received fewer votes than her opponent, Kymberley Haven Bell.

¶ 3. Jackson filed a petition contesting the election results with the executive committee, to no avail. Jackson then filed a petition in the Quitman County Circuit Court challenging the election results. Chief Justice Waller, pursuant to Mississippi Code Section 23-15-929, ordered the Honorable Breland Hilburn to serve as special judge. The special judge dismissed the action for lack of jurisdiction, because Jackson had failed to attach the petition previously filed with the executive committee.

¶ 4. Jackson filed a second petition challenging the election results, with the executive-committee petition attached. Bell filed a response to the petition, raising as an affirmative defense that the special tribunal lacked jurisdiction over the petition, because Jackson had failed to attach two attorney certificates, as required by Mississippi Code Section 23-15-927, and filed a motion to dismiss for Jackson’s failure to attach attorney certificates to the circuit-court petition. Subsequently, Jackson filed two attorney certificates with the circuit court. On the same date, the special judge held a hearing on the jurisdictional issue. At the hearing, the special judge emphasized that “the language of the statute says that the petition for a judicial review shall — which is the strongest word in law — shall not be filed unless it bear a certificate of two practicing attorneys[,]” and concluded that “[t]he Court has no alternative but to enter order of dismissal with prejudice.” The same day, the special judge entered an order dismissing the petition with prejudice for lack of jurisdiction. Jaekson appeals, challenging the circuit court’s order dismissing her petition for lack of jurisdiction with prejudice.

DISCUSSION

¶ 5. The sole issue presented by the parties is whether a dismissal of an election contest for lack of jurisdiction may be with prejudice. Neither party raised a constitutional issue before the special tribunal or this Court. Whether the petition may be dismissed with prejudice is a question of law. We apply a de novo standard of review to questions of law. Moore v. Parker, 962 So.2d 558, 562 (Miss.2007); see also McCain Builders, Inc. v. Rescue Rooter, LLC, 797 So.2d 952 (Miss.2001) (“Jurisdictional questions are subject to de novo review.”).

¶ 6. Neither party contests that an election contest filed without attorney certificates may be dismissed for lack of jurisdiction. Mississippi Code Section 23-15-927 provides as follows, in relevant part:

When and after any contest has been filed with the county executive committee ... and the said executive committee having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and the law, the contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred ... a sworn copy of his said protest or complaint, together with a sworn petition.... But such petition for a judicial review shall not he filed unless it bear the certificate of two (2) practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such investigation they verily believe that the said protest and petition should be sustained and that the relief therein prayed should be granted. ...

Miss.Code Ann. § 23-15-927 (Rev.2007) (emphasis added). This Court has repeatedly held that the attorney-certificate requirement is a condition precedent to jurisdiction attaching. See Waters v. Gnemi, 907 So.2d 307, 322 (Miss.2005) (“This two-practicing attorney requirement has been strictly construed and held to be jurisdictional.”); Esco v. Scott, 735 So.2d 1002, 1006 (Miss.1999) (“the certificate is a jurisdictional prerequisite to filing the petition”); Pearson v. Jordan, 186 Miss. 789, 192 So. 39, 40 (1939) (“The certificate of the two disinterested attorneys is just as important as the petition itself, and is jurisdictional.”). Accordingly, a petition for judicial review of an election contest filed without such certificates attached clearly may be dismissed for want of jurisdiction.

¶ 7. We repeatedly have held that an action cannot be dismissed with prejudice for the nonmerits reason of lack of jurisdiction. A dismissal with prejudice indicates a dismissal on the merits. B.A.D. v. Finnegan, 82 So.3d 608, 614 (Miss.2012) (“a dismissal with prejudice indicates a ruling on the merits, which is not appropriate for a dismissal for want of jurisdiction”); Rayner v. Raytheon Co., 858 So.2d 132, 134 (Miss.2003) (“a dismissal with prejudice connotes an adjudication on the merits”). “If a court does not have subject matter jurisdiction to hear a case, then it cannot have jurisdiction to decide issues of fact and law ... in order to ... adjudicate] on the merits.” Cook v. Children’s Med. Group, P.A., 756 So.2d 734, 743 (Miss.1999); see also Esco, 735 So.2d at 1006 (“Subject matter jurisdiction deals with the power and authority of a court to consider a case.”). In other words, without jurisdiction, a court is without authority to consider the merits of an action. Jurisdiction to review election contests was conferred by legislative act, currently Section 23-15-927. Accordingly, a dismissal for lack of jurisdiction is not a dismissal on the merits, and thus may not be with prejudice.

¶ 8. Bell relies on Esco for her argument that election contests may be dismissed with prejudice for failure to satisfy the jurisdictional requirement of attaching attorney certificates to the petition. In Esco, the trial court had dismissed an election-contest petition for failure to comply with the attorney-certificate requirement, and this Court held that:

The order of dismissal stated that the cause was dismissed, without incorporating the language “without prejudice.” Thus, it is considered as having been dismissed with prejudice, precluding Esco from refiling.

Esco, 735 So.2d at 1006-07 (citing Ross v. Milner, 194 Miss. 497, 505-06, 12 So.2d 917, 918 (1943)). However, Ross, on which Esco relied, did not involve an election contest or a dismissal for lack of jurisdiction, and Esco did not discuss its decision to apply Ross’s assumption that a dismissal was with prejudice in such context. We are unaware of any case other than Esco in which this Court has treated a dismissal for lack of jurisdiction as having been with prejudice. We hold that Esco mistakenly applied Ross in the context of a dismissal of an election-contest petition, and we overrule Esco to the extent that it provides that the dismissal of election-contest actions for failure to satisfy jurisdictional (i.e., nonmerits) prerequisites can be with prejudice.

¶ 9. The dissent sua sponte raises an issue not before the special tribunal or this Court, and then cites a nonelection case. The dissent opines without request that Section 23-15-927 improperly places procedural requirements for the filing of a complaint. Such is not the case. Neither party raised the constitutionality of Mississippi Code Section 23-15-927. We do not address issues not raised by the parties. Mabus v. Mabus, 890 So.2d 806, 811 (Miss.2008). Nor did we request the parties to brief this issue as we did in Wimley.

¶ 10. Moreover, the dissent’s view that the Legislature may not control matters of procedure in election cases is misplaced. Unlike the medical-malpractice claims in Wimley, “Miss. R. Civ. P. 81(a)(4) expressly states that proceedings pertaining to election contests would continue to be governed by statutory procedures with the rules of civil procedure having limited applicability.” Waters v. Gnemi, 907 So.2d 307, 315 (Miss.2005); Miss. R. Civ. P. 81(a)(4). The review of an election contest is an entirely separate undertaking from an original filing of a civil complaint. The review process is entirely distinct and established by statute, until it reaches this Court, where procedure is controlled by the Mississippi Rules of Appellate Procedure. Recognizing that judicial review may be necessary to some extent in election contests, the Legislature prescribed limited jurisdiction to afford contestants the opportunity to seek judicial review. See Harpole v. Kemper County Democratic Executive Comm., 908 So.2d 129, 143 (Miss.2005) (Section 23-15-927 enables the circuit court to have the jurisdictional capacity to decide certain election issues.). In other words, Section 23-15-927 (unlike the statute in Wimley) gives the courts limited jurisdiction where jurisdiction otherwise would be improper. See In re Bell, 962 So.2d 537, 541-42 (Miss.2007).

¶ 11. Section 146 of Article 6 of the Mississippi Constitution states that the Supreme Court “shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law.” Miss. Const, art. 6, § 146.

¶ 12. Section 23-15-927 is a general law within the election code. It states that the “executive committee” maintains jurisdiction over election contests. Miss.Code. Ann. § 23-15-927 (Rev.2007). Only after the “executive committee has wrongfully failed to act,” may the complainant seek judicial review, which is unlike a complaint in a civil matter. Id. The judicial relief sought under the election code is unique unto itself. The circuit clerk of the court where the complaint is filed must “immediately ... notify the Chief Justice of the Supreme Court ... who shall forthwith designate and notify a circuit judge or chancellor of a district other than that which embraces the county ... involved ... to proceed to said county wherein the contest or complaint has been filed there to hear and determine said contest.” Miss.Code. Ann. § 23-15-929 (Rev.2007). The hearing is actually a “special tribunal,” which consists of the judge and five election commissioners who sit with the judge “as advisors or assistants in the trial and determination of the facts.” Miss.Code. Ann. § 23-15-931 (Rev.2007). After the special judge (with the assistance of the commissioners) makes his judgment, “the judgment shall be certified and promptly forwarded to the Secretary of the State Executive Committee,” where it becomes the State Executive Committee’s duty to revise the decision. Id. Only then may the contestant “file an appeal in the Supreme Court within the time and under such conditions and procedures (M.R.A.P.) as are established by the Supreme Court for other appeals.” Miss.Code. Ann. § 23-15-933 (Rev.2007); see M.R.A.P. 16(a), (b). It is worth noting that the United States Attorney General made no objections to this amendment. Miss.Code Ann. § 23-15-933 (Rev.2007) (ed. note).

¶ 13. Nothing about the judicial-review process of the election code mandated by the Legislature conflicts with our separate-mandated, constitutional powers. Nor does this mechanism encroach upon the judicial branch. Thus, no violation of the separation of powers is at issue.

CONCLUSION

¶ 14. The trial court did not err by dismissing this election-contest action for failure to satisfy the jurisdictional prerequisite of attaching two attorney certificates to the petition for judicial review. However, the special judge erred by dismissing this action with prejudice for the nonmer-its issue of lack of jurisdiction. Accordingly, we vacate the order dismissing this action with prejudice and remand this matter to the Quitman County Circuit Court special judge with instruction to enter an order dismissing this action without prejudice.

¶ 15. VACATED AND REMANDED.

WALLER, C.J., LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, KING AND COLEMAN, JJ.

DICKINSON, Presiding Justice,

dissenting:

[T]he Legislature [should] refrain from promulgating procedural statutes which require dismissal of a complaint, and particularly a complaint filed in full compliance with the Mississippi Rules of Civil Procedure.

¶ 16. Gloria Jackson contested the election results in her race for Quitman County Tax Assessor by filing a complaint in the Quitman County Circuit Court. The majority says her complaint must be rejected because she failed to comply with a procedural requirement that was never adopted by this Court, and is nowhere to be found in the Mississippi Rules of Civil Procedure. I respectfully but forcefully dissent.

ANALYSIS

¶ 17. Less than four years ago, we handed down the above-quoted language in Wimley v. Reid, a decision described by the author of today’s majority as “well-reasoned.” In Wimley, we addressed and struck down as unconstitutional a statute that required medical-negligence plaintiffs to attach attorney certificates of consultation with experts — or expert disclosures in lieu of the certificates — to medical-negligence complaints. The plaintiffs attorney had failed to attach the statutorily required certificate, so the defendant moved for dismissal of the suit.

¶ 18. Finding the statute to be unconstitutional meddling with this Court’s authority to control matters of procedure, we stated that enforcing it would “require us to abrogate the Mississippi Rules of Civil Procedure and apply instead a procedural rule set forth in a statute.”

¶ 19. Also, in addressing the Separation of Powers Doctrine, we found that the statutory requirement that an attorney’s certificate be attached to the plaintiffs complaint is a procedural rule the Legislature was without authority to make. We unequivocally held “that a complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate or waiver.”

¶ 20. I realize I have reached conclusions and am expressing opinions that cut against the grain of the traditional judicial approach in this Court. I do not do so lightly. Below, I will set forth my reasons and the authorities that have compelled this dissent.

1. Section 23-15-927’s procedural requirement is unconstitutional.

¶ 21. The Mississippi Constitution, while establishing a form of government similar to the federal model, includes an important provision not found in its federal counterpart-a provision that forbids each branch of government from sharing any of its powers with either of the other two branches.

Mississippi Constitution, Article 1, Section 1

¶ 22. Our Constitution’s first section establishes and grants powers to three distinct branches of government — legislative, judicial, and executive — and it grants the “judicial power” of the state to the judicial branch. Section 144 of our Constitution vests in the Supreme Court the control of that judicial power.

Mississippi Constitution, Article 1, Section 2

¶ 23. Our Constitution’s second section prohibits the Supreme Court from sharing its judicial powers with the legislative or executive branches:

No person or collection of persons being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others.

This constitutional provision, restated as it pertains to this case and Rule 81, says the following:

[Neither the Supreme Court nor any justice on the Supreme Court] shall exercise any power properly belonging to [the Legislature].
[The Legislature] shall not exercise any power properly belonging to [the Supreme Court].

¶ 24. This constitutional provision could not be more clear. We may fairly debate which branch of our government is authorized to exercise a particular power (such as the power to promulgate procedural rules for our courts), but it is beyond reasonable debate that the branch that is granted the power may not constitutionally share it.

Newell v. State—The Power to Promulgate Rules of Procedure

¶ 25. For many years, the Mississippi Legislature assumed for itself the power to control many aspects of the judiciary, including its rules of practice and procedure. All the rules that addressed such matters as pleading, discovery, and the admission of evidence once were controlled by statutes.

¶ 26. In 1975, this Court took an important step toward judicial independence when it decided Newell v. State, which clearly stated:

The inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of powers and the vesting of judicial powers in the courts.

The Newell Court went on to say:

the phrase “judicial power” in section 144 of the Constitution includes the power to make rules of practice and procedure, not inconsistent with the Constitution, for the efficient disposition of judicial business.

¶27. Six years following Newell, this Court took another important step. On May 26, 1981 — citing the Mississippi Constitution and Newell as its authority — this Court entered an order establishing and adopting the Mississippi Rules of Civil Procedure, declaring those rules to be controlling over conflicting statutes. And on September 24, 1985, this Court entered an order establishing and adopting the Mississippi Rules of Evidence, declaring them to be controlling over conflicting statutes.

¶ 28. These steps, while important, were incomplete. By leaving in place procedural statutes that did not conflict with the rules, this Court effectively shared its constitutional powers with the Legislature. Neither the Court then nor any Court since — including today’s majority — has explained why such power-sharing does not violate Article 1, Section 2 of the Mississippi Constitution.

2. The majority’s arguments are without merit.

¶29. It its attempt to distinguish today’s case from Wimley, the majority makes several arguments that are easily exposed as either inapposite or without merit. I shall address each of them.

It was unnecessary for the parties to raise the constitutionality of Section 23-15-927.

¶ 30. The majority seeks refuge in the facially attractive argument that, ordinarily, we do not address constitutional issues not raised by the parties. It is true that neither of the parties raised the constitutionality of Section 23-15-927. But that is also true of the parties in Wimley, neither of which raised the constitutionality of the statute before the trial court or in this Court (although we requested the parties to brief the issue).

¶ 31. Despite the failure of the parties to raise the issue in Wimley, we nevertheless addressed it, because — unlike other constitutional violations that implicate the rights and responsibilities of litigants — the statute in question challenged the powers and duties of this very Court. A statute that may or may not violate the constitutional rights of a litigant — a litigant who may or may not wish to raise the issue — is a far cry, and a very different animal, from a statute through which Legislature assumes unto itself powers the Constitution grants to this Court.

Election contests are not different from civil complaints because of jurisdiction.

¶ 32. The majority says that the

[election] review process is entirely distinct and established by statute, until it reaches this Court, where procedure is controlled by the Mississippi Rules of Appellate Procedure. Recognizing that judicial review may be necessary to some extent in election contests, the Legislature prescribed limited jurisdiction to afford contestants the opportunity to seek judicial review.... In other words, Section 23-15-927 (unlike the statute in Wimley) gives the courts limited jurisdiction where jurisdiction otherwise would be improper.

¶ 33. The point the majority attempts to make here is not entirely clear. The issue is not about jurisdiction, but rather, about procedural rules. With only a few very limited exceptions, the only reason the circuit court may hear appeals from inferior courts — and the only reason this Court may hear civil-damages appeals and criminal appeals — is because the Legislature confers the jurisdiction to do so. But once jurisdiction is conferred on the circuit court, chancery court, or this Court, the procedure for appeals is controlled by the Mississippi Rules of Civil Procedure and the Mississippi Rules of Appellate Procedure.

¶ 34. The majority points out that “Section 23-15-927 is a general law within the election code. It states that the ‘executive committee’ maintains jurisdiction over election contests. Miss.Code Ann. § 23-15-927 (Rev.2007). Only after the ‘executive committee has wrongfully failed to act,’ may the complainant seek judicial review, which is unlike a complaint in a civil matter.” Section 23-15-927 — a statute nearly identical to the one addressed in Wimley — requires a plaintiff wishing to contest an election to attach two attorney certificates to the petition. This procedural requirement has nothing to do with jurisdiction.

¶ 35. The Legislature certainly has full authority to require a contestant — as a prerequisite to filing an election contest— to obtain certificates from two attorneys who believe the contestant’s claim has merit. But just exactly like the statute we struck down in Wimley, Section 23-15-927 states that the contestant’s “petition for judicial review shall not be filed unless it bears the certifícate^].” This legislative foray into the procedural requirements for filing a petition in the Circuit Court is a clear violation of Section 2 of the Mississippi Constitution.

In Rule 81, this Court improperly granted the Legislature the power to promulgate certain rules of procedure.

¶ 36. Without addressing and distinguishing Section 2 of the Constitution, the majority cites Rule 81(a)(4) of the Mississippi Rules of Civil Procedure — a Court-made rule that purports to grant to the Legislature a portion of this Court’s constitutional rule-making powers. But this Court has no power or authority to grant powers to the Legislature. And from the day Rule 81 was adopted until today, this Court has neither disclosed nor explained to the bench or bar this Court’s purported authority to delegate to the Legislature a portion of this Court’s power to promulgate the rules of procedure to be followed in the courts. Indeed, our Constitution strictly and expressly forbids it.

¶ 37. In my view, this is an example of this Court having the power to do what it does not have the right to do. The exercise of that power (as in the adoption of Rule 81) does not make it right.

¶38. Rule 81 purports to delegate to the Legislature the judicial power to promulgate certain procedural statutes. Rule 81 states that the Mississippi Rules of Civil Procedure “are subject to limited applicability in [certain] actions which are generally governed by statutory procedures.” Again, I find this to be a clear Section 2 violation.

¶ 39. The Legislature’s powers are granted by the Constitution — not by this Court. So according to Section 2 of the Constitution, if the Legislature has the constitutional power to enact any procedural rules for the courts, then, it has the exclusive power to enact them all. But if, as I believe, and as this Court held in Newell, the Constitution grants that power to this Court, then it is this Court’s duty and responsibility to exercise that power without sharing it. And I reject the notion that Rule 81 — or any other Court-made rule-may supersede Article 1, Section 2 of the Mississippi Constitution.

The United States Attorney General’s failure to object to the amendment to Section 23-15-933 is meaningless.

¶ 40. The majority finds it “worth noting that the United States Attorney General made no objection” to the amendment to Section 23-15-933 that requires the attachments to the petition. It is unclear why the majority thinks this is important. I do not.

CONCLUSION

¶ 41. While others may find comfort in the proposition that this Court’s rule may overpower a clear constitutional provision, I do not. Rule 81’s delegation of this Court’s rule-making powers is indefensible and inherently unconstitutional. And while I agree with the majority that we do not ordinarily address constitutional issues that were are not raised by the parties, I reject the majority’s notion that I must wait for a litigant to raise an issue that calls into question my own constitutional mandate and responsibility. Article 1, Section 2 of our Constitution addresses the powers and responsibilities of this Court and its justices, not the litigants.

¶ 42. So in my view, dismissal of Gloria Jackson’s election petition was and is improper, and any discussion of whether dismissal should be with or without prejudice is beside the point.

KITCHENS, KING AND COLEMAN, JJ., JOIN THIS OPINION.

      . Wimtey v. Reid, 991 So.2d 135 (Miss.2008).

      . Jackson also moves this Court to take judicial notice of an adjudicative fact, which goes to the merits of the action. Since we address only a jurisdictional issue today, the adjudicative fact is of no value to the Court’s consideration today, and we dismiss it as moot.

      . Wimley v. Reid, 991 So.2d 135, 138 (Miss.2008).

      . Id. at 139 (Randolph, P.J., specially concurring).

      . Id. at 135.

      . Id. at 136.

      . «.at 137.

      . Id. at 138 (emphasis added).

      . Miss. Const, art. 1, § 1.

      . Miss. Const, art. 6, § 144.

      . Miss. Const, art. 1, § 2.

      . Newell v. State, 308 So.2d 71, 76 (Miss.1975) (citing Matthews v. State, 288 So.2d 714 (Miss.1974); Gulf Coast Drilling & Exploration Co. v. Permenter, 214 So.2d 601 (Miss.1968); and Southern Pacific Lumber Co. v. Reynolds, 206 So.2d 334 (Miss.1968)).

      . Newell, 308 So.2d at 76.

      . Order Adopting the Mississippi Rules of Civil Procedure (May 26, 1981).

      . Order Adopting the Mississippi Rules of Evidence (Jan. 1, 1986).

      . ”[I]n the event of a conflict between these rules and any statute .... these rules shall control.” Order Adopting the Mississippi Rules of Civil Procedure (May 26, 1981).

      .Mississippi Code Section 11-51-3 states that "an appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case....” See also Casino Magic Corp. v. Ladner, 666 So.2d 452, 456 (Miss.1995) ("A right of appeal is statutory.”) (quoting Bickham v. Dep't of Mental Health, 592 So.2d 96, 97 (Miss.1991)); Miller Transporters Ltd. v. Johnson, 252 Miss. 244, 249, 172 So.2d 542 (1965) ("The right to appeal is a statutory privilege, granted and defined by the legislature.”); McMahon v. Milam Mfg. Co., 237 Miss. 676, 115 So.2d 328, 330 (Miss.1959) ("Appeals are regulated by statute, and only lie in cases provided by statute.”) (citing State ex rel. Brown v. Poplarville Co., 119 Miss. 432, 81 So. 124 (1919); Jones v. Cashin, 133 Miss. 585, 98 So. 98 (1923); Craig v. Barber Bros. Contracting Co., 190 Miss. 182, 199 So. 270 (1940)); Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901 (1943) ("Appeals are matters of right, and are allowable only in cases provided by statute.”).

      . Miss.Code Ann. § 23-15-927 (Rev.2007) (emphasis added).

      . Miss. R. Civ. P. 81(a)(4).

      . Miss. R. Civ. P. 81.

      . Id.

      . Miss. Const, art. 4, § 33.


author: DICKINSON, Presiding Justice, LAMAR, Justice, PIERCE, Justice,

text:
    Rodrique Deshaun WATSON a/k/a Rodrique D. Watson a/k/a Rodrique Watson a/k/a Rodrique E. Watson v. STATE of Mississippi.
    No. 2011-KA-01356-SCT.
    Supreme Court of Mississippi.
    Oct. 17, 2013.
    Office of State Public Defender by George T. Holmes, Phillip Broadhead, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Rodrique Watson appeals his conviction for burglary of a dwelling. Because the trial judge incorrectly instructed the jury that breaking the plane of a door satisfies the force element of burglary of a dwelling, we reverse his conviction and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. When Sue Hegwood returned home from shopping, she parked her car in an open garage, which was attached to her home. According to her testimony at trial, the following events took place as she began unloading her purchases from the back seat:

I looked up, and there was a young man walking up the driveway. As you can see, it’s short. I was close to him. I thought at first he was someone who works for the lady next door, but then I saw his vehicle, and I had never seen that vehicle before, and I didn’t think I’d ever seen him before. I just walked toward him, and I don’t know exactly what I said. I said something like, Could I help you? I thought maybe he was lost. I wasn’t afraid of him. But he didn’t answer me. And then he had a bandanna-like thing. When he didn’t answer me, he pulled it up over his mouth, and I knew that I had a problem. I started to back up, and he just kept backing me up looking me right in the eye. And I’m 69 years old. I was afraid to run. I knew I couldn’t do that. I didn’t know what his intentions were. I thought he probably wanted to get into my house. I didn’t know what he wanted. I told him to go away. I asked him several times what he wanted. Told him to leave me alone. He just kept backing me up into the garage, and then he — I was all the way into my garage. He ran around, and I knew when he ran what was up because I knew he knew where my purse was. He went directly to the passenger side of my car where my purse was and opened the door and got it and ran. I ran. At that point I screamed. Nobody heard me. My husband was inside the house, but he was in the back of the house, and he couldn’t hear me.

¶3. The case proceeded to trial and Watson was convicted of burglary of a dwelling and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections.

DISCUSSION

¶ 4. Watson was convicted for burglary of a dwelling under Mississippi Code Section 97-17-23(1), which provides:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished ... for not less than three (3) years nor more than twenty-five (25) years.

¶ 5. This statute required the State to prove two elements: (1) unlawful breaking and entering the dwelling house and (2) the intent to commit a crime therein. At the jury-instruction conference, the State submitted the following proposed instruction numbered S-2:

The Court instructs the Jury that “breaking” as used in the indictment and in the Court’s instructions, means any act of force, regardless of how slight, which is necessary to be used in entering a building, whether the building be locked or unlocked.
The Court further instructs the Jury that the “force” used to enter the building may be accomplished through the passage of a door, which breaks the plane.

¶ 6. The trial court then had the following discussion concerning S-2 with Watson’s counsel, Mr. Pittman, and the prosecutor, Mr. Vaughn:

MR. PITTMAN: Your Honor, I’d agree to the first paragraph and object to the second.
THE COURT: On what basis?
MR. PITTMAN: Well, I don’t believe that’s the proper statement of the law, and I think there has to be some opening. Not just merely breaking a plane that’s non-existent.
THE COURT: Response?
MR. VAUGHN: Yes, Judge, I have a case, and I can present it to the Court, Chaney v. State, December 8, 2001. Paragraph 9. The language in Paragraph 2 [of S-2] comes almost directly from Paragraph 9 [from the case].
THE COURT: I believe that is a correct statement of the law. It will be given.

¶ 7. In Chaney v. State, the Court of Appeals — in a five to five decision — stated that “even if the door is propped open ... passage through the door, which broke the plane” was sufficient to satisfy the breaking element of burglary of a dwelling house. In Ladd v. State, however, the Court of Appeals held that the mere act of walking through a raised, open garage door does not qualify as a “breaking” since there was no “act or force ... employed to effect an entrance.”

¶ 8. The Ladd court overruled its previous holding in Chaney, stating that the case was “wrongly decided.” We agree with the Court of Appeals in Ladd, that merely walking through an open door does not satisfy the “breaking” requirement for burglary of a dwelling.

CONCLUSION

¶ 9. Because the jury was improperly instructed on the requirements for satisfying the “breaking” element of burglary of a dwelling, we reverse and remand for a new trial.

IF 10. REVERSED AND REMANDED.

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

LAMAR, Justice,

specially concurring:

¶ 11. I concur in today’s decision but write separately to explain my vote. I agree with the dissent that the evidence in this case could support a conviction for burglary under a theory of constructive breaking. But that is a decision to be made by a properly instructed jury. Here, the court gave an erroneous instruction on “actual breaking,” and did not simply omit an instruction on “constructive breaking,” as in Christmas v. State, 10 So.3d 413 (Miss.2009). Because jury instruction S-2 misstated the law, I agree with the majority’s decision to reverse and remand this case for a new trial.

WALLER, C.J., DICKINSON, P.J., KITCHENS AND COLEMAN, JJ., JOIN THIS OPINION.

PIERCE, Justice,

dissenting:

¶ 12. I find no reversible error in the language contained in jury instruction S-2 and would affirm Rodrique Watson’s burglary conviction. Therefore, I respectfully dissent.

¶ 13. For purposes of the breaking requirement of this state’s burglary statute and the definition this Court has given it, the breaking occurred in this instance when Sue Hegwood opened her garage door and Rodrique Watson — lying in wait in his vehicle behind her — thereupon threateningly walked up to and through its threshold. I see this case in the same vein as Christmas v. State, 10 So.3d 413 (Miss.2009), where the defendant, Chancellor Christmas, gained entry into the home of an elderly woman, first, by trick and then by threat of violence. In affirming Christmas’s conviction for burglary of a dwelling, we rejected the claim that Christmas was entitled to a jury instruction defining constructive breaking. Id. at 421-22. We held:

By holding a gun to Ms. [Margie] Sellers’s head and forcing her into the home, Christmas met Mississippi’s established standard for constructive breaking, which this Court has held satisfies the “breaking” element of burglary. See Templeton v. State, 725 So.2d 764, 766 (Miss.1998). While the jury was not issued an instruction on the specific definition of “constructive breaking,” it was issued an instruction on the constituent elements of burglary. This Court has held that “instructions in a criminal case which follow the language of a pertinent statute are sufficient.” Rubenstein v. State, 941 So.2d 735, 772 (Miss.2006) (citations omitted). We find that the jury received adequate instructions regarding this offense.

Id. at 422.

¶ 14. The only substantive distinction that can be made between that case and the one now before us are the methods the intruders used to gain entry into the otherwise closed-off homes. Both - men procured their openings by deception, Christmas overtly and Watson covertly.

¶ 15. The only problem I find with jury instruction S-2 is the lack of language qualifying the term “force.” Given the evidence of the case, however, I find the error harmless, beyond a reasonable doubt.

RANDOLPH, P.J., JOINS THIS OPINION.

      . Miss.Code. Ann. § 97-17-23 (Rev.2006).

      . Jackson v. State, 90 So.3d 597, 604 (Miss.2012) (citations omitted).

      .(Emphasis added.).

      . Chaney v. State, 802 So.2d 113, 115 (Miss.Ct.App.2001), overruled by Ladd v. State, 87 So.3d 1108 (Miss.Ct.App.2012).

      . Ladd, 87 So.3d at 1115; see also Hill v. State, 929 So.2d 338, 340 (Miss.Ct.App.2005) (accused who walks through open door guilty of a trespass, not a burglary).

      . Ladd, 87 So.3d at 1115.

      . Our ruling today does not overrule our previous opinions regarding constructive breaking. See e.g. Christmas v. State, 10 So.3d 413 (Miss.2009); Haynes v. State, 744 So.2d 751 (Miss.1999); Templeton v. State, 725 So.2d 764 (Miss.1998).