author: RANDOLPH, Presiding Justice, PIERCE, Justice, KING, Justice,

text:
    Mari Lynn HAYS (Alexander) and Lon Frederick Alexander, II, by and through his Conservator, Mari Lynn Hays v. Lon Frederick ALEXANDER.
    No. 2011-CA-01890-SCT.
    Supreme Court of Mississippi.
    June 6, 2013.
    Sarah Ann Ellis, James D. Bell, Jackson, attorneys for appellants.
    T. Jackson Lyons, Jackson, attorney for appellee.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Before the Court is an appeal of a motion for contempt and modification of alimony and child support first filed by Mari Lynn Hays, and later amended to include Mari Lynn in her capacity as conservator for Lon Frederick Alexander, II (“Rick”), seeking unpaid alimony and child-support payments and additional financial support from her former husband, Lon Frederick Alexander (“Lon”), for the couple’s adult son, Rick. Mari Lynn claims that the chancery court erred by failing to: (1) require Lon to pay additional alimony and/or child support after Rick had reached the age of majority; or (2) require Lon to make payments into a conservator-ship to support Rick after Rick attained the age of majority. We find that the chancery court did not abuse its discretion by declining to require Lon to provide post-majority financial support for Rick, for state law does not vest our Court with the authority to mandate that parents financially support their offspring post-majority. Accordingly, we affirm the judgment of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mari Lynn and Lon were married in 1986, and their only child, Rick, was born in December 1987. On August 2, 2001, Mari Lynn filed a “Complaint for Divorce on Ground of Irreconcilable Differences” in the Hinds County Chancery Court. On October 17, 2002, the chancery court issued a “Judgment of Divorce — Irreconcilable Differences” incorporating Mari Lynn’s and Lon’s “Agreement for Custody and Maintenance of Child and Settlement of Property Rights” (“the agreement”). At that time, Rick was fourteen years old.

¶ 3. The agreement provided that Mari Lynn and Lon would have joint legal custody. Mari Lynn would have primary physical custody. Lon would have weekend visitation. Lon was to pay Mari Lynn $1,500 each month “for the support and maintenance of the minor child” and maintain health insurance covering Rick. (Emphasis added.) The parties were to share equally all reasonable medical expenses. Lon also agreed to pay all of Rick’s private school expenses and college-education expenses through a baccalaureate degree, so long as Rick was actively pursuing a degree and maintaining a 2.50 grade-point average. The agreement further provided that Lon was to pay lump-sum alimony of $100,000 to Mari Lynn in four payments of $25,000, and installment alimony of $9,500 each month for one-hundred-eight months.

¶ 4. On October 26, 2010, Mari Lynn filed a “Motion for Modification, and Motion for Contempt[,]” alleging that Lon was in arrears in alimony, medical, and college-expense payments under the agreement, and seeking additional financial support from Lon due to Rick’s medical conditions. At that time, Rick was less than two months shy of his twenty-third birthday, well past the age of majority. Mari Lynn requested that the chancellor extend Lon’s alimony payments or require him to reinstate child-support payments past the age of majority.

¶ 5. On April 21, 2011, the chancellor held a hearing on Mari Lynn’s modification and contempt claims. At the close of the hearing, the chancellor asked for briefs regarding “why and how I could modify the alimony as well as the child support and what basis I should do it under. And I would like for y’all to get together and submit to me what you think is owed in alimony from both sides. And I will pick a number if y’all can’t agree on something.” Thereafter, Mari Lynn provided that Lon owed $59,000 in past-due alimony, had not paid Rick’s college tuition for the fall of 2010, and had not paid half of Rick’s medical expenses.

¶ 6. On May 31, 2011, the chancellor ordered Lon to pay Rick’s outstanding college expenses, as required by his agreement. On June 15, 2011, the chancellor permitted Mari Lynn, in her capacity as Rick’s conservator, to be added as a party-plaintiff. On June 29, 2011, the court entered an order declining to find Lon in contempt, based on its findings that Lon had paid half of Rick’s medical bills until Rick reached the age of majority, as required by the divorce decree; Lon had reasonably believed that Rick’s delay in returning to college relieved him of his duty to continue paying Rick’s tuition; and Lon had demonstrated an inability to pay an increase in alimony. The chancellor ordered Lon to reimburse Mari Lynn $1,083.15 for his portion of Rick’s college expenses for the fall semester of 2010, which Mari Lynn had paid, and found that Mari Lynn was entitled to a judgment against Lon in the amount of $59,000 for past-due alimony. However, the chancellor declined to require Lon to make child-support payments in futuro for Rick, finding no legal basis for an action, brought by one parent against the other, seeking post-majority support payments.

¶ 7. On July 11, 2011, Mari Lynn filed a motion to amend the motion for modification to reflect her status as Rick’s conservator, and to request — in addition to her requests for continued alimony and child— support payments — that the chancellor require Lon “to provide support directly to [Rick], through his Conservator.... ” On December 9, 2011, the chancellor entered an order, inter alia, addressing Mari Lynn’s amended motion for modification. The chancellor recognized that “[i]n its Order, the Court did not make any reference to the recent appointment of Mari Lynn Hays as Rick’s conservatory” and stated that “[b]ecause the proof that would be offered in support of the Amended Motion is identical to the proof already received by the Court ..., rather than try the issue a second time, for the sake of judicial economy, the Court hereby adopts the evidence at the first trial for the Amended Motion.” The chancery court denied Mari Lynn’s request that Lon be required to support Rick by depositing money into a conservatorship, holding that the court was without legal authority to grant the request.

ISSUES

¶ 8. Mari Lynn raises the following arguments on appeal:

(1) The chancery court erred by failing to modify Lon’s alimony obligation upward.
(2) The chancery court erred by failing to modify Lon’s child-support obligation upward.
(3) The chancery court erred by failing to order Lon to pay monies into a con-servatorship for Rick.

LAW AND ANALYSIS

- ¶ 9. We will reverse a decision of the chancery court in a domestic-relations case where the chancery court applied an erroneous legal standard or reached a manifestly wrong or clearly erroneous decision. Williams v. Williams, 37 So.3d 1171, 1173-74 (Miss.2010).

¶ 10. We find that the chancery court properly denied Mari Lynn’s request that Lon be required to provide support in futuro for Rick after Rick attained majority. The chancellor found as follows, in relevant part:

a modification proceeding is an inappropriate proceeding in which to decide whether a parent has a legal duty to contribute to the support of an adult disabled child. Taylor v. Taylor, .478 So.2d 310, 312 (Miss.1985). Therefore, this Court finds that Plaintiffs Motion for Modification is procedurally improper with regard to the modification of child support for Rick. Further, this Court would note that it is without statutory authority or jurisdiction to entertain the consideration of continued support for an adult disabled child. It is the Court’s sincere hope that the Mississippi Supreme Court will address this specific issue and give direction to the chancery courts of this state. It is also the Court’s sincere hope that the Mississippi Legislature will address this matter. Until such time, however, this Court is simply without authority ... to grant post-majority support for a disabled adult child.

(Emphasis added.)

¶ 11. We agree with the chancellor that neither a motion for modification nor a motion for contempt was a permissible procedure to consider support for an adult child after the child had attained majority. We specifically have held that a child-support-modification proceeding brought by one parent against the other is not a proper proceeding in which to consider post-majority support. In Taylor, we held that “[cjourts in other jurisdictions have held the custodial parent has no standing to bring an action or seek support for a child after the child attains majority[,]” and found that “[w]e think the same rule applies in this state.” Taylor, 478 So.2d at 313 (citations omitted). After specifically holding that no such right existed, the Taylor Court continued, without citing authority:

In our opinion if there is a legal duty for a parent to support an adult incapacitated child, the duty runs from the parent to the child; not from one divorced spouse to the other. The action should therefore be maintained by or on behalf of the adult child against the parent from whom support is sought.

Id. The chancellor properly found that Mari Lynn’s motion for modification was “procedurally improper with regard to the modification of child support for Rick.”

¶ 12. Although Taylor — in dicta, as it was not an issue to be decided— suggested a procedure for an adult child to seek post-majority support, Taylor clearly did not establish a substantive right (for, indeed, that is a legislative function) to post-majority support, or cite the existence of such authority under either the common law or our statutes. Taylor, 478 So.2d at 313. Nor did Taylor overrule Wright, et al. v. Coleman, 137 Miss. 699, 102 So. 774, 776-77 (1925), which provided that:

Under the common law there is no legal obligation resting upon the adult child to support his needy parent, or upon the parent to support his adult child, but such services between persons occupying such relationships are presumed to be gratuitous and out of a spirit of humanity and affection, and the general rule is that an adult child cannot sue a parent who is a member of his household for support and maintenance in the absence of a contract, express or implied.

Wright, 102 So. at 776-77.

¶ 13. The chancery court properly found that the common law did not endow our courts with the substantive power to require a parent to support an adult child. “The common law of England has, from the earliest times, left this duty [of parents to support their children] to the natural feelings of the parents, and experience has shown that the confidence has not in general been misplaced.” Rawlings v. Rawl- ings, 121 Miss. 140, 83 So. 146, 147 (1919) (citation omitted). We have explained that, “[a]s a general rule, even in the absence of statute, parents are under a legal as well as a moral duty to support, maintain and care for minor children[,] ... [b]ut at common law, the duty imposed on the parents to support their children ceased when the children reached majority.” Watkins v. Watkins, 337 So.2d 723, 724 (Miss.1976) (emphasis added) (citations omitted).

¶ 14. The chancery court also properly found that statutory law did not endow our courts with the power to require a parent to support an adult child. In Watkins, we found that no Mississippi statute vests chancery courts with jurisdiction “to impose a duty on parents to support adult children.” Watkins, 337 So.2d at 724. We find the same today. In 2002, when the child-support judgment was entered, Mississippi Code Section 93-5-23 provided that “[t]he duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child ... [a]t-tains the age of twenty-one (21) years.... ” Miss.Code Ann. § 93-5-23 (2000) (amended 2006) (emphasis added). Justice King correctly observes that Section 93-5-23 makes the chancellor’s determination of emancipation permissive (“[t]he court may determine that emancipation has occurred”). However, it does not follow that, in the absence of an emancipation determination in a child-support judgment, the child remains unemanci-pated beyond the age of majority. This Court has provided that:

Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.

Rennie v. Rennie, 718 So.2d 1091, 1093-94 (Miss.1998) (citations omitted). Obviously, an individual cannot be freed “for all the period of its minority after the individual has reached the age of majority and is no longer a minor. Under Mississippi law, a “minor” is “any person, male or female, under twenty-one years of age.” Miss. Code Ann. § 1-3-27 (Rev.2005). In the absence of a determination of emancipation in a child-support judgment, a child is freed for all the period of his minority from the care, custody, control, and service of his parents (ie., he is emancipated) upon attaining the age of twenty-one, at which time Mississippi statute provides that his minority terminates. Accordingly, the duty imposed by Section 93-5-28 for a parent to support its child does not extend beyond the child’s minority, which terminates when the child reaches twenty-one years of age, as provided by our Legislature.

¶ 15. Thus, neither the common law nor statutory law provides to the courts of this State the authority, under the facts as presented today, to require Lon to support Rick. The power to grant the authority to require parents in Mississippi to support their adult children financially is confided to a separate magistracy: the Legislature. Our courts are without the constitutional power to declare otherwise.

CONCLUSION

¶ 16. We conclude that the chancery court properly declined to require Lon to support Rick financially via support payments, by depositing money into a conser-vatorship, or by making alimony payments to Mari Lynn. Accordingly, we affirm the judgment of the Hinds County Chancery Court.

¶ 17. AFFIRMED.

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

PIERCE, Justice,

specially concurring:

¶ 18. Although I believe the dissent’s heart is in the right place, the Legislature has not created a statutory scheme whereby parents may be required to pay support for, or on the behalf of, adult disabled children. Nor has the Legislature created a statutory scheme whereby adult children may be required to pay for, or on behalf of, disabled parents. For this Court to hold otherwise is to violate the separation of powers.

WALLER, C.J., RANDOLPH, P.J., LAMAR AND COLEMAN, JJ., JOIN THIS OPINION.

KING, Justice,

dissenting:

¶ 19. The majority concludes that neither the common law nor statutory law provides to the courts of this State the authority to require a parent to support an adult child. Maj. Op. ¶ 13-14. Because I believe that the Legislature has provided the chancery courts the authority to order a parent to support an adult disabled child, I respectfully disagree.

¶20. In this case, both parties admit that Rick suffered from serious ailments prior to their divorce. Mari Lynn argues that the medical conditions have escalated, while Lon argues that they have remained the same since before the parties’ divorce. Regardless, it is clear that Rick has suffered from serious medical conditions since his minority. In denying Mari Lynn’s requests for support of Rick into adulthood, the chancery court stated that “it is without statutory authority or jurisdiction to entertain the consideration of continued support for an adult disabled child. It is the Court’s sincere hope that the Mississippi Supreme Court will address this specific issue and give direction to the chancery courts of this state. It is also the Court’s sincere hope that the Mississippi Legislature will address this matter. Until such time, however, this Court is simply without authority or jurisdiction to grant post-majority support for a disabled adult child.” With appreciation for the difficult position of the chancery court, I disagree, and find that statutory authority does exist granting our courts the power to require a parent to support an adult child.

¶ 21. Mississippi law provides that “[t]he duty of support of a child terminates upon the emancipation of the child.” Miss. Code Ann. § 98-5-23 (Rev.2004); Miss. Code Ann. § 93-11-65(8) (Rev.2004). The majority cites Watkins for the proposition that no statute vests chancery courts with jurisdiction “to impose a duty on parents to support adult children.” Maj. Op. ¶ 14; Watkins v. Watkins, 337 So.2d 723, 724 (Miss.1976). With all due respect to the majority, the statutory scheme regarding child support has undergone significant changes since 1976, when this Court decided Watkins. In 1976, neither Section 93-5-23 nor Section 93-11-65 contained any provisions mandating when the duty of support terminated. Laws 1954, Ch. 228, § 1; Laws 1960, Ch. 268, § 1. In fact, the Legislature did not explicitly provide for when the duty of support terminated until 1996, when it provided that the duty terminates upon the child’s emancipation. Laws 1996, Ch. 345, § 1. Thus, the decision turns on the definition of “emancipation of the child.”

¶ 22. The Legislature provided that a “court may determine that emancipation has occurred pursuant to Section 93-11-65.” Miss. Code Ann. § 93-5-23 (Rev. 2004) (emphasis added). This determination of emancipation is clearly permissive, and not mandatory. See Burt v. Burt, 841 So.2d 108, 111-12 (Miss.2001) (“The statutory requirements for emancipation [under the prior version of Section 93-5-23] are clearly permissive and not mandatory; the court may determine that the child has been emancipated if any of the four factors are satisfied.” (emphasis in original)). Thus, the Legislature clearly gave the courts the option to use Section 93-11-65 as guidance to determine emancipation in a divorce case, but did not mandate a finding of emancipation under any particular circumstances. Rather, the statute explicitly gives the courts the authority to determine when emancipation occurs with regard to child support ordered pursuant to a divorce proceeding.

¶ 23. Section 93-11-65 provides that

[ujnless otherwise provided for in the underlying child support judgment, emancipation shall occur when the child:
(i) Attains the age of twenty-one (21) years, or
(ii) Marries, or
(iii) Joins the military and serves on a full-time basis, or
(iv) Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony[.]

Miss.Code Ann. § 93-ll-65(8)(a) (Rev. 2004) (emphasis added). While emancipation under Section 93-11-65, which is not at issue in this case, “shall” occur when one or more of the four factors is met, this section also provides that emancipation occurs unless the court provides otherwise in the underlying child support judgment. This provision clearly gives courts the latitude to make provisions regarding emancipation in their child support judgments other than those situations outlined in the statute.

¶ 24. Thus, under both Section 93-5-23, at issue here, and Section 93-11-65, the duty of support ends with emancipation of the child. The plain language of both Sections gives the courts latitude to determine under what circumstances emancipation occurs.

¶ 25. This Court has defined emancipation as

the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.

Burt, 841 So.2d at 111 (quoting Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss.1991)). Twenty-one is generally considered the age of majority and presumptively the age of emancipation. See Watkins, 337 So.2d at 724. “At that age a person is presumed to possess the physical and mental capabilities to support himself, to establish his own residence, and in general to manage his own affairs.” Koltay v. Koltay, 667 P.2d 1374, 1376 (Colo.1983). However, when a child is under a mental or physical disability which renders the child incapable of self-support, the presumption of emancipation at age twenty-one may be overcome. Streb v. Streb, 774 P.2d 798, 800 (Alaska 1989); Riggs v. Riggs, 353 S.C. 230, 578 S.E.2d 3, 5 (2003). “A different interpretation would be wholly inconsistent with the independence that the word ‘emancipation’ connotes.” Koltay, 667 P.2d at 1376. A child who is so mentally or physically disabled as to render him incapable of self-support, and who is thus dependent on one or both of his parents, clearly is not free from the “care, custody, control, and service” of his parents. Furthermore, in such a situation, parental control has not been relinquished. Thus, because I believe that the plain language of the statutes grant the courts the latitude to determine when emancipation occurs, and because emancipation does not occur when, upon attaining the age of majority, a child labors under a mental or physical disability rendering him or her incapable of self-support, I respectfully dissent. I would reverse the chancery court and remand the case for a determination of 1) whether Rick labors under a mental and/or physical disability that renders him incapable of self-support, and thus whether Rick was ever “emancipated,” and 2) if the court determines that Rick overcomes the presumption of emancipation at age twenty-one and has never been emancipated, whether support is appropriate in this case. If the chancery court reaches the second question, it would be appropriate for the court to consider to what extent Rick receives or is capable of earning his own income, whether it be through government assistance or any work Rick is able to perform.

DICKINSON, P.J., KITCHENS AND CHANDLER, JJ, JOIN THIS OPINION.

      . Formerly Mari Lynn Alexander.

      . Mari Lynn also stated that "Rick has reached the age of majority. However, Lon was legally required by the Agreement to pay half of Rick’s medical expenses and has failed to do so.”

      . The conservatorship proceedings are not a part of the record in this appeal.

      . The appellants have not proven that such a contract for support and maintenance of Rick exists.

      . The Legislature has created two exceptions to the common law. Post-majority maintenance is statutorily provided for in Mississippi Code Section 43-31-28. It provides that a county board of supervisors may require certain family members to provide care for a pauper who is unable to work, as follows, in relevant part:
      The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall, at their own charge, relieve and maintain such pauper; and, in case of refusal, shall forfeit and pay the county the sum of One Hundred Fifty Dollars ($150.00) per month, for each month they may so refuse, to be recovered in the name of the county; and shall be liable to any governmental entity who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month.... Miss.Code Ann. § 43-31-28 (Rev.2004) (emphasis added). We have held that "this statutory liability can only be enforced in the manner provided by statute." Wright, 102 So. at 111.

      Post-majority support also is statutorily provided for in a Department of Human Services paternity case. A putative father who has acknowledged paternity and is responsible for making support payments for a minor child is required to continue making support payments if the child has a disability that continues into adulthood. Miss.Code Ann. § 43-19-33(3) (Rev.2004) ("in the case of a child who, upon reaching the age of twenty-one (21) years, is mentally or physically incapable of self-support, the putative father shall not be relieved of the duty of support unless said child is a long-term patient in a facility owned or operated by the State of Mississippi.).

      . Moreover, the child-support judgment in this case specifically provided for Lon to make payments for the "support and maintenance of the minor child.” Thus, according to both the definition of "emancipation” and the terms of the child-support judgment at issue, Lon’s duty to make support payments for Rick terminated when Rick reached the age of majority.

      . Article 1, Section 1 of tire Mississippi Constitution provides that:
      The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.
      Miss. Const, art. 1, § 1.

      . Presiding Justice Randolph’s majority emphasizes that the underlying child support judgment (the property settlement agreement entered into by the parties) in this case provides for the maintenance and support of the minor child. While I disagree that this case turns on a reading of the underlying child-support judgment, I must point out that the majority misreads the property settlement agreement. The property settlement agreement is a contract. Courts look to the "four corners’’ of a contract in order to ascertain its meaning. Harrison County Commercial Lot, LLC v. H Gordon Myrick, Inc., 107 So.3d 943, 959 (Miss.2013). On its first page, the property settlement agreement specifically defines "minor child” as Rick, who was indeed a minor at the time of the agreement. The agreement specifies elsewhere that certain provisions, such as custody, affect the “minor child” "during his minority.” Such a statement would be superfluous if "minor" modified "child.” Because the property settlement agreement specifically defines the “minor child” as Rick, who was a minor at the time, and not, as the majority asserts, as Rick only while he is a minor, this emphasis on the term the "minor child” clearly misinterprets the agreement and its explicit definition of the "minor child.” Thus, the child support judgment applied to "the support and maintenance” of Rick, making a post-majority child support determination appropriate.

      . The majority of states impose a duty of support on parents of adult disabled children, particularly when the child was disabled during his or her minority. Some states impose such a duty via statute, with some of the statutes merely codifying earlier court decisions or common law to impose a duty of support for adult disabled children. See, e.g., Ariz.Rev.Stat. Ann. § 25-320(E); Ark.Code Ann. § 9-12-312(a)(5)(B); Cal. Fam.Code § 3910(a); Colo.Rev.Stat. Ann. § 14-10-115(B)(a)(II); Fla. Stat. Ann. § 743.07(2); Haw.Rev.Stat. Ann. § 580-47(a); 750 Ill. Comp. Stat. Ann. 5/513(a)(l); Ind.Code Ann. § 31-16-6-6(a)(2); Iowa Code Ann. § 252A.3(3); Ky.Rev.Stat. Ann. § 405.020(2); Minn.Stat. Ann. § 518A.26 (Subd. 5); Mo. Ann. Stat. § 452.340(4); Nev.Rev.Stat. Ann. § 125B.110; N.H.Rev.Stat. Ann. § 461-A:14(IV) & (XVI); N.J. Stat. Ann. § 2A:34-23(a); N.D. Cent.Code § 14-09-08.2(6); Ohio Rev.Code Ann. § 3119.86(A)(1); Okla. Stat. Ann. tit. 43 § 112.1A; 23 Pa. Cons.Stat. Ann. § 4321(3); R.I. Gen. Laws § 15-5-16.2; S.C.Code Ann. § 63-3-530(A)(17) (granting court jurisdiction over cases regarding support of adult disabled child, but not creating such a duty); Tenn.Code Ann. § 36 — 5— 101 (k); Tex. Fam.Code Ann. § 154.066(a)(4); Va. Code Ann. § 20-124.2(C); Wyo. Stat. Ann. § 14-2-204(a)(I). In the absence of a statute, many courts impose such a duty. See, e.g., Ex Parte Brewington, 445 So.2d 294 (Ala. 1983) (interpreting "children” in the child support statute to mean "dependent” children, not "minor” children, thus including children whose dependency results "from physical and/or mental disabilities that continue to render them incapable of self-support beyond majority”); Streb v. Streb, 774 P.2d 798 (Alaska 1989) (“the presumption of emancipation may be overcome by evidence that an adult child is incapable of supporting himself or herself by reason of a physical or mental disability”); Nelson v. Nelson, 548 A.2d 109 (D.C.1988); Sininger v. Sininger, 300 Md. 604, 479 A.2d 1354 (1984); Feinberg v. Diamant, 378 Mass. 131, 389 N.E.2d 998 (1979); Maberry v. Maberry, 183 Mont. 219, 598 P.2d 1115 (1979); Cohn v. Cohn, 123 N.M. 85, 934 P.2d 279 (N.M.App.1996); Riggs v. Riggs, 353 S.C. 230, 578 S.E.2d 3 (2003) (interpreting statute granting court jurisdiction over cases of support of an adult disabled child and finding that "[wjhere ... disability prevents the child from becoming emancipated, the presumption of emancipation upon reaching majority is inapplicable”); Dehm v. Dehm, 545 P.2d 525 (Utah 1976) (defining "children” to include incapacitated children and noting the highly equitable nature of divorce proceedings); Casdorph v. Casdorph, 194 W.Va. 490, 460 S.E.2d 736 (1995). See abo M.C. Dransfield, Annotation, Parent’s Obligation to Support Adult Child, 1 A.L.R.2d 910 (1948); Noralyn O. Harlow, Annotation, Post-majority Disability as Reviving Parental Duty to Support Child, 48 A.L.R.4th 919 (1986).

      . This statement is arguably dicta. The Court in Watkins ultimately determined that "the contempt proceeding was not an appropriate suit in which to determine whether Roy Watkins was retarded, and whether his father was liable for his support if he was. It is, therefore, inappropriate for the Court to express any opinion on the question of whether a parent has a duty to support an adult retarded child.” Watkins, 337 So.2d at 724-25; see also Taylor v. Taylor, 478 So.2d 310, 312 (Miss.1985) ("[S]ome members of the bench and' bar have relied on [Watkins ] for the proposition that a parent has no legal duty to support an adult retarded child beyond the age of majority. This is a misconstruction. The Watkins case never reached the question, but merely held a contempt proceeding was an inappropriate suit in which to do so.”).

      . The majority also cites Watkins for the proposition that the common law does not provide for this Court to recognize a duty to support an adult disabled child. This notion has also been discredited. While it is generally recognized that the English common law did not recognize such a duty, many courts have determined that the common law has evolved and found a duty to support an adult disabled child. See, e.g., Nelson v. Nelson, 548 A.2d 109, 114 (D.C.Ct.App.1988) (“As we believe this opinion demonstrates, Watkins is contrary to the great body of authority recognizing the existence of such a parental duty to support[.]”); Holleyman v. Holleyman, 78 P.3d 921, 936 (Okla.2003) ("Although the early common law did not extend to one’s parental duty of support beyond a child's minority, the great majority of American jurisdictions, in which the statutory law is silent, has recognized an exception where, as here, the child is unable to care for itself upon attaining majority. This view is rested on common-law developments.” (emphasis in original)).

      . At the time of the divorce, and the time that Burt was decided, the statute provided that the duty of child support "terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child” reaches the age of twenty-one, marries, discontinues full-time schooling and obtains full-time employment, or voluntarily moves away from home and establishes independent living arrangements and obtains full-time employment. 2000 Miss. Laws Ch. 453 (emphasis added).

      . The case at hand was decided under Section 93-5-23 governing divorce cases, which clearly states that a chancellor may, but is not required, to determine emancipation based upon Section 93-11-65. Further, at the time of the divorce, the statute merely stated that the chancellor may determine emancipation under certain circumstances, including the attainment of the age of twenty-one.
      Child support judgments are generally entered when children are at a young age. According to the majority, a child support judgment entered for a three-year-old child must provide for emancipation in that child support judgment in order for emancipation to be prevented at age twenty-one. Maj. Op. ¶ 14. Clearly, that is an impossible determination to make in most circumstances. In order to give effect to Section 93-5-23, a chancellor could only make a determination that the presumption of emancipation was overcome if the child was near in age to the age of majority such that the determination was made on the child's condition as an adult or near adulthood. The time at which to make that determination would be in a motion to modify the original child support judgment when the child is of an age to make a proper determination as to whether the presumption of emancipation at the age of majority has been overcome, and, if proper, substitute it with a modified child support judgment.
      However, in light of today’s opinion finding that emancipation must occur at age twenty-one unless the chancellor otherwise provides in the child support order, Majority Opinion ¶ 14, I would encourage all chancellors to include in the original child support order in all divorce cases henceforth a provision delaying the determination of emancipation. This will allow chancellors to later consider child support in the event the child is disabled prior to attaining the age of twenty-one.

      . This Court's duty under the Constitution is to apply the law as it is written. Falco Lime, Inc. v. Mayor and Aldermen of Vicksburg, 836 So.2d 711, 725 (Miss.2002). To give any effect at all to the express statutory language that a court may determine that emancipation occurred at age twenty-one, one must allow that the court has the power to determine that emancipation does not occur at age twenty-one under certain circumstances. The majority and the special concurrence cite separation-of-power concerns, yet they themselves violate the separation of powers by rewriting the statute to mean that emancipation shall occur at age twenty-one, no matter what a court determines. The plain language of Section 93-5-23 belies such an interpretation.

      . This standard is the same as that provided by Section 43-19-33, which provides that a putative father is not relieved of the duty of support in the case of an adult child who "is mentally or physically incapable of self-support.” Miss.Code Ann. § 43-19-33(3) (Rev. 2009). The majority takes note that the Legislature did provide a duty of support to adult disabled children in cases of illegitimate children in which the Mississippi Department of Human Services Child Support Unit is involved. Maj. Op. n. 5. While the parties do not brief this particular issue, thus I decline to go into detail regarding it, I note that the Equal Protection implications of the majority’s decision are troubling. Under the majority, Mississippi will mandate a duty to support illegitimate adult disabled children, but not legitimate ones, or ones whose fathers otherwise recognize and support them. Such a distinction appears to be problematic under the Equal Protection Clause, as I see no rational basis for treating these classes differently. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (classifications based on legitimacy receive a level of heightened scrutiny); Mathews v. Lucas, 427 U.S. 495, 504, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976).

      .The majority's contention that children are emancipated by operation of law at the age of twenty-one is inconsistent with the fact that the age of twenty-one creates only a presumption of emancipation, and that presumption is subject to being rebutted by the facts of a specific case. The chancellor may consider the facts of this particular case to determine if Rick was ever emancipated, or whether such a presumption has been rebutted.

      . The statutes are clear that the duty of support terminates upon emancipation. Thus, I believe that a child who becomes disabled after emancipation, by attaining the age of majority or otherwise, does not have a right to parental support under Sections 93-5-23 and 93-11-65. Once liability is terminated, it cannot be restored. Kruvant v. Kruvant, 100 N.J.Super. 107, 241 A.2d 259, 266 (1968). However, if the disability occurs before emancipation and renders the child unable to be emancipated, such a duty continues so long as the child remains unemancipated.


source: Caselaw Access Project

author: RANDOLPH, Presiding Justice,

license: Public Domain

text:
    Pam WOOD, David Wood, Justin Wood, Josh Wood and Jacob Wood v. SAFEWAY INSURANCE COMPANY.
    No. 2012-IA-00019-SCT.
    Supreme Court of Mississippi.
    June 6, 2013.

      Mark K. Tullos, Craig N. Orr, attorneys for appellants.
    Christopher David Morris, Jackson, Philip W. Gaines, attorneys for appellee.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. In this interlocutory appeal, we are asked to determine whether the Circuit Court of Rankin County abused its discretion by denying the defendants’ motion to transfer venue to the Circuit Court of Smith County. We find that Plaintiff Safeway Insurance Company (“Safeway”) failed to demonstrate sufficient facts to support a finding that venue is proper in Rankin County. Therefore, we reverse the order of the circuit court and remand this action with instruction to transfer the case to a permissible venue.

FACTS

¶ 2. Defendant Pam Wood (“Pam”) applied for automobile insurance provided by Safeway at the office of an independent insurance agent in Covington County, Mississippi. The application was for a policy to cover two vehicles owned by Pam and her husband, David. The insurance agent faxed the application from Covington County to Safeway’s Rankin County office, where Safeway approved the application. Safeway alleges that subsequent renewal activities also took place at its Rankin County office.

¶ 3. During the effective dates of the policy, Pam’s and David’s fourteen-year-old daughter was killed in an automobile accident while she was a passenger in one of the covered vehicles. The car was being driven by Pam and David’s sixteen-year-old son, Jacob, who Safeway alleges did not have a valid driver’s license.

¶4. Shortly thereafter, Safeway filed suit against Pam, David, Jacob, and their two adult sons, Josh and Justin, in the Circuit Court of Rankin County. Safeway’s complaint seeks: (1) declaratory judgment that the insurance contract is void ab initio due to misrepresentations that were made at the time the contract was entered into, or (2) in the alternative, declaratory judgment that Safeway is not liable under the contract, because the car accident at issue falls under a contractual exception to coverage for uninsured drivers driving the car with the owner’s permission. Safeway’s complaint stated that the Rankin County Circuit Court had jurisdiction over its claims:

due to the fact that the communication in question was delivered and made to Safeway within this judicial district and Application processing for the insurance policy contract that is the subject matter of this action was submitted by Defendant(s) to and accepted and processed by Safeway’s office in this judicial district.

(Emphasis added.)

¶ 5. The Woods, all residents of Smith County, filed a motion to transfer venue from Rankin County to Smith County. The Woods argued that venue was not proper in Rankin County, because no defendant resided in Rankin County and the allegations contained in Safeway’s complaint did not establish that a “significant act or omission” or “substantial event causing injury” occurred in Rankin County, as contemplated by Mississippi’s venue statute. The circuit court denied the Woods’ motion, and the Woods petitioned this Court for permission to file an interlocutory appeal, which we granted.

DISCUSSION

I. Standard of review

¶ 6. We review “a trial court’s grant or denial of a motion for change of venue for an abuse of discretion, but questions of law, such as interpretation of the general venue statute, are reviewed de novo.” Laurel Ford Lincoln-Mercury, Inc. v. Blakeney, 81 So.3d 1123, 1125 (Miss.2012) (citations omitted).

II. Venue does not lie in Rankin County, because a substantial act or omission did not occur there.

¶ 7. Mississippi’s general venue statute, Mississippi Code Section 11-11-3, reads in pertinent part as follows:

Civil actions of which the circuit court has original jurisdiction shall be commenced [1] in the county where the defendant resides, ... or [2] in the county where a substantial alleged act or omission occurred or [3] where a substantial event that caused the injury occurred.

Miss.Code Ann. § 11 — 11—3(l)(a)(i) (Rev. 2004). All agree that the defendants reside in Smith County. Thus, under [1], Smith County is a permissible venue. The county where a substantial event (car accident) that caused injury occurred also is Smith. Thus, under [3], Smith County is a permissible venue. Since all defendants reside in Smith County, and the accident occurred in Smith County, venue would be proper in Rankin County only if that county is “where a substantial alleged act or omission oceurred[,]” under [2].

¶ 8. In its “Complaint for Declaratory Relief and Determination of Insurance Policy as Void,” Safeway requested judicial determination of the invalidity of an insurance contract or, in the alternative, construction of its terms (specifically, its exception to coverage for uninsured drivers driving the car with the owner’s permission).

¶ 9. Safeway’s complaint fails to allege sufficient facts that a substantial act or omission by any of the defendants occurred in Rankin County. In its complaint, Safeway, a non-resident corporation, averred that the Rankin County Circuit Court had jurisdiction, because: “the communication in question was delivered and made to Safeway within [Rankin County] and Application processing for the insurance policy contract ... was submitted by Defendant(s) to and accepted and processed by Safeway’s office in [Rankin County].” Safeway’s attempt to establish venue by stating that Pam’s communications were delivered and submitted and accepted and processed in Rankin County is unavailing, for “[t]he venue statute does not allow the ‘piling’ of acts or events to establish venue. It specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there.” Medical Assurance Co. of Miss. v. Myers, 956 So.2d 213, 219 (Miss.2007).

¶ 10. Moreover, no support can be found in the record that Pam delivered, submitted, communicated, or made alleged misrepresentations in Rankin County, and no similar claim is made against any other defendant. The record reveals that Pam submitted an application for insurance to an agent in Covington County and conducted her business at the agent’s office in Covington County. It was the agent who faxed documents to Safeway’s office. The complaint does not allege that Pam conducted any business at Safeway’s Rankin County office or sought to avail herself of the jurisdiction of Rankin County in any other way. We conclude that Safeway has failed to establish that its receipt of the application was a substantial act to establish venue in Rankin County.

¶ 11. While it is true that, “[o]f right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue[,]” Rankin County is not among the permissible venues that Safeway could select for this action. Hedgepeth v. Johnson, 975 So.2d 235, 238 (Miss.2008) (emphasis added) (citation omitted).

¶ 12. In Hedgepeth, we declared that the “two venue options [of where a substantial alleged act or omission occurred and where a substantial event causing the injury occurred] focus on the alleged acts or omissions of the defendants.” Id. (emphasis added). We specifically have provided that “where the ... basis of the suit is an act or omission by a party, venue may lie in the county in which that party’s act or omission took place, not the county in which the plaintiff acted.” Holmes v. McMillan, 21 So.3d 614, 619 n. 5 (Miss.2009) (emphasis added) (citation omitted). “[S]imply experiencing the effects of an act or omission in a county is insufficient to establish venue.” AFLAC v. Ellison, 4 So.3d 1049, 1051 (Miss.2009) (citation omitted).

¶ 13. In Holmes, we found that, in determining venue for a claim that an insurer breached a contract by denying coverage, “the relevant acts ... are those associated with the denial of the claim. The record clearly establishes that the decision to reject the plaintiffs settlement demand was made in Alabama, and ... [n]othing in the record ... suggests that the rejection of the settlement demand was connected to [the plaintiffs home county].” Id. at 619. The relevant acts for purposes of Safeway’s lawsuit are those associated with Pam Wood’s alleged misrepresentations in an insurance application, which occurred in Covington County, and her allegedly allowing an unlicensed driver to drive the insured vehicle in Smith County.

¶ 14. Similarly, in Myers, the relevant actions for venue purposes were the defendant-insurer’s actions related to its decision not to renew an insurance policy, and actions by the plaintiff, including receipt of mail, were an “insufficient basis for establishing venue.” Myers, 956 So.2d at 218-19. The Myers Court found that the plaintiffs receipt of communications in its home county was “a passive function of [its] presence there” and that the plaintiff was “suing [the defendant] based on [the defendant’s] own acts or omissions, all of which occurred in Madison County.” Id. at 219. The Myers Court further discussed whether subsequent acts or effects of a defendant’s alleged wrong were “substantial” so as to establish venue, as follows:

The venue statute ... specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there. In American Home Products Corp. v. Sumlin, 942 So.2d 766 (Miss.2006), the plaintiff filed suit against a pharmaceutical company for injuries sustained from taking Redux. The plaintiff obtained the prescription, filled it, and ingested the pills in Wayne County. Id. at 771. However, she filed suit in Smith County because the echocardiogram revealing her injuries was performed there. Id. Whether the test was properly performed was a major point of contention between the parties. Id. at 769. Nevertheless, this Court held that venue was only proper in Wayne County, saying “the performance and interpretation of an echocardiogram, alone, is not sufficient so as to constitute a ‘substantial component’ of this claim. Likewise, any emotional distress or psychological pain resulting from the findings of an echo-cardiogram does not constitute a substantial component of the claim.” Id. at 771 (internal citations omitted). Thus, the performance of an echocardiogram or the place where the plaintiff experienced her injuries was not “substantial” enough to establish venue in a particular county. The same is true of the receipt of correspondence, the location of a single clinic in a multi-clinic operation, or the place where Dr. Myers “experienced” being uninsured.

Id. at 219-20 (emphasis added). As in Myers, Safeway’s receipt and reliance of communications in Rankin County was a passive function of its presence there, for Safeway is suing the defendants based on the acts or omissions of Pam and/or David Wood, all of which occurred either in Cov-ington County or Smith County. Safeway’s receipt of and claimed reliance in Rankin County — i.e., where the plaintiff “experienced” the misrepresentations — is not a substantial alleged act to establish venue.

¶ 15. In Hedgepeth, the plaintiffs county of residence was a permissible venue, but only because the plaintiffs claim was based in part on actions by the defendants at the plaintiffs residence (i.e., not because the plaintiff resided or had received mail there). Hedgepeth, 975 So.2d at 240. Safeway has not demonstrated that Pam or David Wood substantially acted or failed to act in Rankin County. Rather, Safeway’s complaint seeks a declaration that the contract is void ab initio for wrongful acts originally committed in Cov-ington County or that it is not liable for wrongful acts occurring in Smith County.

CONCLUSION

¶ 16. Safeway did not establish sufficient facts to support its claim of venue in Rankin County. Accordingly, we reverse the Rankin County Circuit Court’s order denying the defendants’ motion to transfer venue, and remand this action with instruction to transfer the case to a permissible venue, consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

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

      . Safeway alleges that it approved the Woods’ insurance policy "in reliance upon certain material misrepresentations and warranties made by ... Pam Wood." Safeway further alleges that it has been advised of "factual discrepancies, material misrepresentation(s), and/or failure to comply with policy conditions with regard to Pam Wood ...” including the following:
      a)Residence and/or domicile of the applicant and/or, members of her household with substantial variance and/or lack of acceptability and/or increase in the risk(s) purportedly affected or insured under the policy;
      b) Compliance with specified obligations and/or conditions relevant to and/or necessary for valid issuance of the Safeway policy in question and/or potential payment obligations under said policy;
      c) Cooperation and provision of necessary relevant information pertaining to the vehicle(s) listed on the policy, the driver(s) and/or custodian(s) and/or all persons with any type of ownership of use rights(s) to said vehicle.

      . Rule 57 specifically provides for declaratory judgment to determine questions of contractual validity and interpretation, as follows:
      Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status or other legal relations thereunder.
      Miss. R. Civ. P. 57(b)(1).

      . The insurance policy reveals that Safeway’s principal place of business is in Westmont, Illinois.


author: CHANDLER, Justice,

text:
    DELPHI OIL, INC. v. FORREST COUNTY BOARD OF SUPERVISORS
    No. 2012-CA-00563-SCT.
    Supreme Court of Mississippi.
    June 6, 2013.

      L. Clark Hicks, Jr., Hattiesburg, R. Lane Dossett, L. Grant Bennett, attorneys for appellant.
    David B. Miller, attorney for appellee.
    Before DICKINSON, P.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. The Forrest County Board of Supervisors (the Board) passed an ordinance requiring that oil and gas facilities within Forrest County be fenced. Delphi Oil, Inc. (Delphi) filed a bill of exceptions and appealed to the Circuit Court of Forrest County, which affirmed the fencing ordinance. Delphi appeals, arguing that, because the regulatory authority of the Mississippi Oil and Gas Board (OGB) preempts any local regulation of oil and gas activity, this Court should invalidate the ordinance. We find that state law does not preempt the fencing ordinance and affirm the circuit court’s order.

FACTS

¶ 2. On October 31, 2009, two teenagers were killed in an explosion at an oil and gas storage tank in Forrest County owned by Delphi. No fence restricted access to this storage tank. In response, the Board entered an order setting a public hearing to discuss a proposed ordinance that would address safety requirements for oil and gas facilities. Notice of this hearing was published in The Hattiesburg American, a local newspaper. After hearing testimony and evidence at the public hearing, the Board concluded that requiring construction of fencing, gates, signage, and locking mechanisms at oil and gas facilities would “help protect private property, prevent physical injury, and otherwise contribute to the public health and safety of the citizens of Forrest County without imposing an undue burden on the owners of such facilities.... ” Accordingly, on September 9, 2010, the Board enacted an ordinance requiring oil and gas facilities located within Forrest County to construct and maintain perimeter fencing at least five feet high and topped with strands of barbed wire. The ordinance also required locked gates and signs indicating the danger of the area. This ordinance was enacted pursuant to Mississippi Code Section 19-3^40, also known as the home rule statute. Miss.Code Ann. § 19-3-40(1) (Rev.2012). The ordinance was amended several times.

¶ 3. Aggrieved, Delphi filed a Bill of Exceptions on September 20, 2010, appealing the fencing ordinance. See Miss.Code Ann. § 11-51-75 (Rev.2002) (providing that the circuit court sits as an appellate court in cases presented by bills of exceptions). Delphi argued that the Board was prohibited from adopting the ordinance because Mississippi Code Section 53-1-17(7) gave the OGB exclusive jurisdiction to regulate property used for oil and gas activities. During the pendency of the appeal, after a hearing, the OGB amended Statewide Rule 6 to revise its requirements for warning signs and to require that all stairways and ladders leading to storage tanks be equipped with a gate restricting access. The OGB issued an order setting out its considerations in adopting the amendments to Rule 6. In the order, the OGB explained that it had considered a requirement that fences be erected around oil and gas wells and related facilities. The OGB stated it had determined that fencing would be inappropriate because, in case of emergency, fences would restrict the ability of workers to flee and first-responders to gain immediate, unfettered access to the facilities, and that fences would unnecessarily restrict the ability of OGB field inspectors to access facilities for inspection purposes.

¶ 4. After hearing arguments from Delphi, the Board, and the OGB, on March 19, 2012, the Circuit Court of Forrest County entered an order affirming the fencing ordinance. The circuit court found that the ordinance was within the Board’s authority to protect the health and safety of county residents. The circuit court found that the fencing requirement could co-exist with the OGB’s statutory charge, duties, and responsibilities.

STANDARD OF REVIEW

¶ 5. This Court will not disturb a decision of a board of supervisors unless the decision “was unsupported by substantial evidence; was arbitrary or capricious; was beyond the [board’s] scope or powers; or violated constitutional or statutory rights of the aggrieved party.” A & F Props., LLC v. Madison County Bd of Supervisors, 933 So.2d 296, 300 (Miss.2006) (citing Bd. of Law Enforcement Officers Standards and Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996)). However, a board of supervisors decision related to a question of law is reviewed de novo. A & F Props., 933 So.2d at 300; Nelson v. City of Horn Lake ex. rel. Board of Aldermen, 968 So.2d 938, 942 (Miss.2007).

DISCUSSION

WHETHER THE FENCING ORDINANCE IS PREEMPTED BY STATE LAW.

¶ 6. The Board contends that its authority to enact the fencing ordinance emanates from the home rule statute, which provides:

[t]he board of supervisors of any county shall have the power to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi.

Miss.Code Ann. § 19-3-40(1) (Rev.2012). The Court has held that “[i]f a county or municipality passes an ordinance which stands in opposition to the law as pronounced by the legislature, the ordinance, to the extent that it contradicts state law, will be found void by this Court, as the laws of this state supersede any and all local ordinances which contradict legislative enactments.” Ryals v. Bd. of Supervisors of Pike Co., Miss., 48 So.3d 444, 448 (Miss.2010). When faced with the question of whether a local law is preempted by a legislative enactment, the Court determines whether the ordinance contradicts state statutory law. Id.

¶ 7. When determining issues of state law preemption of local law, this Court looks to whether the local law is inconsistent with state law. See Maynard v. City of Tupelo, 691 So.2d 385, 388 (Miss.1997). In Maynard, the Court held that a local ordinance in Tupelo was not preempted by state law due to the absence of a clearly expressed legislative intent and the presence of strong public policy considerations. Id. at 386. The ordinance in question was a “brown bag” ordinance prohibiting the consumption of alcohol in commercial establishments between the hours of midnight and 7 a.m. Id. It was argued that this ordinance was preempted by Mississippi Code Section 61-1-7 which permits the possession of alcoholic beverages in municipalities which have opted out of the “dry” provisions. Id. at 387. The Court held that it was within the city’s authority to regulate alcoholic beverages within the community under Mississippi Code Section 67-3-65. Id. at 388. The Court further found that the Legislature had not preempted the entire area of law relating to alcohol. Id. We reasoned that the Legislature had not expressed a clear intent to cover the consumption of alcohol since the statute in question mentioned only the possession of alcohol. Id. We were “unwilling to read the statute more expansively than it [was] written in light of public policy considerations in favor of [the ordinance in question] and similar ordinances.” Id. at 389.

¶ 8. In Ryals, this Court again considered a preemption challenge to a local ordinance concerning alcohol. Ryals, 48 So.3d at 448. The Court stated that the relevant inquiry in the case was whether state law contradicted the ordinance in question. Id. at 448. The ordinance at issue restricted possession and consumption of alcohol on local waterways. Id. at 445-46. The Board of Supervisors had passed the ordinance in response to numerous drownings and other serious accidents caused by excessive consumption of alcohol. Id. at 446. We found that a portion of the ordinance dealing with possession of alcohol was preempted by state law because it directly contradicted Mississippi Code Sections 67-1-7 and 67-3-5. Id. at 448-49. However, we upheld the portion of the ordinance dealing with consumption of alcohol, because the state statute in question did not specifically speak to issues of consumption. Id. at 449-50.

¶ 9. In Somerville v. Keeler, 165 Miss. 244, 145 So. 721 (Miss.1933), the Court upheld a local ordinance against arguments that it was preempted by state law. Keeler concerned an ordinance making it unlawful for any person under the age of fifteen to drive an automobile within the city limits. Id. at 723. Appellees contended that the city ordinance was in conflict with state statutory law providing that “[n]o person shall operate or attempt to operate a motor vehicle while such person is in a state of intoxication, or is in other respects incapable of properly and safely operating said motor vehicle, on any public highway, street, avenue or alley within this state.” Id. The Court disagreed, finding that the local ordinance was “merely supplementary” to the state statute. Id. Further, the enactment of the ordinance was a valid exercise of the city’s jurisdiction over the streets. Id.

¶ 10. The Court also upheld a local ordinance in Hattiesburg Firefighters Local 184 v. City of Hattiesburg, 263 So.2d 767, 772 (Miss.1972). In that case, the ordinance in question required all municipal employees to reside within the city limits. Id. at 768. It was argued that this ordinance was inconsistent with Section 3825-09 of the Mississippi Code 1942 (1956), which stated:

[a]ll applicants for a position of any kind under civil service must be a citizen of the United States, an elector of the county in which he resides and must have so resided for a period of at least three years immediately preceding the filing of his application.

Id. at 769. The Court said that the relevant inquiry was whether the state statute prohibited the local ordinance, or whether the local ordinance was an additional regulation not inconsistent with state law. Id. at 770. The Court held that the ordinance in question was an additional regulation not in conflict with the state statute. Id. The Court further said that the enactment of this ordinance was within the Legislature’s broad grant of authority to the city to “promote efficient conduct of the business of the city.” Id.

¶ 11. These cases show that this Court resolves the issue of whether state law preempts local law by considering the express language of a statute to determine whether there is a direct conflict between the state statute and the local ordinance. We turn to the statutes governing the OGB. Mississippi Code Section 53-1-1, which created the OGB, states:

It is hereby declared to be in the public interests to foster, encourage and promote the development, production and utilization of the natural resources of oil and gas in the State of Mississippi; and to protect the public and private interests against the evils of waste in the production and utilization of oil and gas, by prohibiting waste as herein defined; to safeguard, protect and enforce the coequal and correlative rights of owners in a common source or pool of oil and gas to the end that each such owner in a common pool or source of supply of oil and gas may obtain his just and equitable share of production therefrom; and to obtain, as soon as practicable, consistent with the prohibition of waste, the full development by progressive drilling of other wells in all producing pools of oil and gas or of all pools which may hereafter be brought into production of such, within the state, until such pool is fully defined.

Miss.Code Ann. § 53-1-1 (Rev.2003). The OGB’s powers and duties are listed in Section 53-1-17, which states, in part, that “[t]he board shall have jurisdiction and authority over all persons and property necessary to enforce effectively the provisions of this chapter and all other laws relating to the conservation of oil and gas.” Miss.Code Ann. § 53-1-17(1) (Rev.2003). But the OGB’s governing statutes do not expressly define OGB’s role in promoting public safety from the dangers posed by oil and gas operations.

¶ 12. Certainly, the OGB has jurisdiction over cleanup. Donald v. Amoco Prod. Co., 735 So.2d 161, 177 (Miss.1999). But the Legislature has expressed no intent for the OGB to have exclusive governance over general issues of safety in the industry. The OGB does have authority to make necessary regulations concerning the prevention of blowouts and fee hazards. Miss.Code Ann. § 53-l-17(3)(f)-(g) (Rev. 2003). But nowhere does the statute state that this authority is exclusive to the OGB. Indeed, in a different section, the Legislature expressly granted the OGB exclusive authority to regulate the “use, management, manufacture, production, ownership, investigation and noncommercial disposal of oil field exploration and production waste_” Miss.Code Ann. § 53-1-17(7) (Rev.2003). This indicates that the Legislature did not intend for the OGB to have exclusive jurisdiction over safety issues in the industry.

¶ 13. Forrest County’s fencing ordinance is not inconsistent with state oil and gas statutes and regulations and can be read as supplemental to these laws. The OGB has not promulgated any regulation prohibiting perimeter fencing around oil and gas storage sites. As in Maynard, in this case statutory and regulatory law have not specifically addressed the requirement of perimeter fencing. Therefore, we find that the Board had the authority to enact the fencing ordinance to protect the citizens of Forrest County. Under the authority of Section 19 — 3—40(1), the Board had the ability to respond to the dangers surrounding oil and gas storage tanks to protect citizens and prevent further injuries or death.

¶ 14. We recognize that the OGB issued an order that considered and rejected perimeter fencing requirements for oil field facilities. The OGB’s order stated:

After careful evaluation, the Board has concluded that the adoption of mandatory fencing requirements for those facilities would be inappropriate. In addition, the Board has concluded that the adoption of mandatory fencing for those facilities would significantly increase (rather than decrease) the safety risks to first-responders and oil field personnel in the event of oil field emergencies (fees, explosions, etc.).

Miss. Oil and Gas Bd. Order No. 452-2011 (October 5, 2011). But, although the OGB issued an order, it did not amend Rule 6 to address fencing; therefore, there is no conflict between the fencing ordinance and any OGB rules and regulations. It is notable that, despite the safety concerns cited by the OGB, it did not amend Rule 6 to ban all fencing at oil and gas facilities. And even though the OGB has considered the fencing issue, the Legislature has not expressly granted the OGB the exclusive authority to address industry safety issues. We find that the fencing ordinance does not contradict state law and was not preempted. Further, because we find no support in our caselaw for Delphi’s argument that the federal doctrine of field preemption should apply to this matter, we reject Delphi’s argument that the Legislature intended to preempt the entire field.

¶ 15. We note Delphi’s argument that the fencing ordinance creates an “operational conflict” between the fencing ordinance and the rules and regulations of the OGB. The OGB has authority to make inspections of oil and gas sites. Miss.Code Ann. § 53-1-17(2) (Rev.2003). Mississippi Code Section 53-1-33 provides that the State Oil and Gas supervisor “and his representatives or employees shall have access to all wells drilled for oil or gas at any and all times.” Miss.Code Ann. § 53-1-33 (Rev.2003). Delphi argues that the fencing ordinance will hinder the OGB’s seven field inspectors from performing random site inspections, because they will be required to obtain preapproval before accessing a locked well site.

¶ 16. We observe that the fencing ordinance does not materially impede the inspection duties of the OGB; the issue of inspectors’ access to sites could be dealt with without undue hardship. The inspectors would not need to give significant advance notice in order to perform their inspections. Inspectors could make an appointment or obtain access from the owner or manager of the oil or gas site. Alternatively, keys could be provided to the inspectors, or combination locks could be installed. In light of the public-policy considerations cited by the Board in its order adopting the fencing ordinance, the inconvenience to field inspectors is minimal.

CONCLUSION

¶ 17. Because the fencing ordinance promulgated by Forrest County is not preempted by state law, we affirm the circuit court’s decision to uphold the ordinance.

¶ 18. AFFIRMED.

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

      . The Board did not participate in the OGB proceedings that culminated in the amendments to Rule 6.

      . The OGB obtained permission to Hie an amicus brief and participate in oral argument before the circuit court. Other oil companies also filed amici briefs in tire circuit court and this Court.


author: GRIFFIS, P.J.,

text:
    Timmy Dale WHITAKER a/k/a Timmy Whitaker a/k/a Timmy D. Whitaker, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00857-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.
    Rehearing Denied Mar. 19, 2013.
    Certiorari Denied June 6, 2013.

      George T. Holmes, Jackson, Clay Spencer Nails, Corinth, Mollie Marie McMillin, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. An .Alcorn County jury found Timmy Dale Whitaker guilty of aggravated assault, under Mississippi Code Annotated section 97-3-7(2)(a) (Supp.2011), and burglary of a dwelling, under Mississippi Code Annotated section 97-17-23 (Supp.2011). On appeal, Whitaker argues that: (1) the circuit court erred in denying a mistrial following comments made by prospective jurors during voir dire; (2) his constitutional and statutory right to a speedy trial were violated; (3) the circuit court erred by not suppressing the statement he made to investigators while under the influence of narcotics; and (4) the jury’s verdict was against the overwhelming weight of the evidence. We find no reversible error and affirm.

FACTS

¶ 2. On August 5, 2008, Whitaker, Samuel Patterson Jr., and William Danny Whitaker (Danny), went to William Clark’s home in search of money to purchase drugs. Danny told Whitaker that he and Darlene Bush, Clark’s granddaughter, had gotten money from Clark on a previous occasion. Danny said that if Clark would not give them money again, they would take it.

¶ 3. Whitaker drove Patterson and Danny to Clark’s home. They stopped to pick up a crowbar and a pipe from Patterson’s workplace. Whitaker then dropped Danny and Patterson off at Clark’s trailer, where they broke in, severely beat Clark, and took his wallet containing several hundred dollars. The two took Clark’s telephone so that he would be unable to call for help. Whitaker returned to pick up Danny and Patterson approximately twenty minutes after he had dropped them off. Clark’s daughter found Clark the next morning lying in bed, severely beaten. Clark was transported to Magnolia Hospital and then transferred to the Regional Medical Center in Memphis, Tennessee. Clark was released from the hospital but later died on November 8, 2008.

¶4. On November 4, 2008, during the police investigation, Detective Jerry Rogers picked up Whitaker to question him about the crime. Whitaker was Miran-dized, but he did not give a statement. The next day, while Whitaker was in the hospital and taking morphine and lortab to control his pain, he requested to speak to Detective Rogers. Detective Rogers and another investigator went to the hospital. There, Detective Rogers verbally Miran-dized Whitaker, who then proceeded to give a statement about his involvement in the crime. Though he confessed, Whitaker refused to sign the statement.

¶ 5. Whitaker was indicted on January 21, 2009, and arraigned on March 25, 2009. The matter continued upon Whitaker’s request and was set for trial in the August term. On June 22, 2009, Whitaker filed for a continuance, which was granted. On September 16, 2010, the prosecution filed for a continuance due to the unavailability of a witness who was suffering from health problems. The circuit court granted the prosecution’s request and a trial date was set for November 8, 2010. Whitaker was convicted on November 9, 2010.

¶ 6. At a pretrial hearing, Whitaker made a motion to suppress the statement he gave while in the hospital. The circuit court denied the motion, noting that though the statement was not adopted as Whitaker’s own, it was still a record of the conversation, and those present who heard about the statements could testify about what they heard.

¶ 7. At trial, Danny testified that when Whitaker served as the getaway driver, he knew that the purpose of the trip to was to break into the house and rob Clark by force. Further, Detective Rogers testified that he advised Whitaker of his Miranda rights and that Whitaker did not appear to be under the influence of any drug or narcotic at the time he gave his statement.

¶ 8. At the conclusion of the trial, the jury convicted Whitaker of aggravated assault and burglary of a dwelling. It was also determined that Whitaker was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Whitaker was sentenced, as a habitual offender without eligibility for parole or probation, to twenty-five years for burglary of a dwelling and twenty years for aggravated assault, all in the custody of the Mississippi Department of Corrections. Whitaker was also ordered to pay a $10,000 fine.

STANDARD OF REVIEW

¶ 9. “A motion for new trial challenges the weight of the evidence.” Wilkins v. State, 1 So.3d 850, 854 (¶ 11) (Miss.2008) (quoting Ivy v. State, 949 So.2d 748, 754 (¶ 21) (Miss.2007)). The trial court’s decision to grant or deny the motion falls under an abuse-of-discretion standard on appeal. Id. The evidence is considered “in the light most favorable to the verdict,” and we will not order a new trial unless the verdict is found to be “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005).

ANALYSIS

1. Whether the jury panel was tainted by the comments made by jurors during voir dire.

¶ 10. During voir dire, in the presence of the entire jury panel, three potential jurors responded to questions from the court. Whitaker contends the answers were prejudicial.

¶ 11. The first prospective juror indicated that he had jailed Whitaker, and that he had been sued by him. The second prospective juror responded that she was a former correctional officer and was a lifelong associate of the Whitaker family. The third prospective juror indicated that he was a jail administrator while Whitaker had been incarcerated for an unrelated crime. All three jurors were dismissed for cause. After their dismissal, Whitaker moved for a mistrial based on the three juror’s comments. The circuit court denied the motion. The judge instructed the jury that nothing had been offered into evidence during voir dire and that they could only make their decision based on evidence presented at trial. The judge then asked the jurors if they could be fair and impartial and directed them to raise their hands if they had any reservations about their ability to be fair and impartial. There were no responses from the jury.

¶ 12. Further, at the close of voir dire, the circuit judge queried the panel as follows:

The State and defense have posed quite a number of questions, and once again, it may be that somehow we did not ask the right question. There’s something dancing around in your mind that we need to know. And I want you to tell me if there is anything, whether we’ve talked about it or not, that would deprive you of the ability to afford both the State and the defendant a fair and impartial trial? Anything whatsoever?
(NO RESPONSE)
Now, during the course of questions by the State and the defendant, there have been responses from your fellow venire persons about their knowledge of this or that or the other. Is there anything about any of those responses that cause you to know something you didn’t know, I suppose, or anything that would have any bearing on your ability to fairly and impartially sit as a juror in the trial of this case?
(NO RESPONSE)

¶ 13. The circuit judge instructed the jury that their decision on Whitaker’s guilt or innocence could only be based on the evidence presented at trial, not statements made during voir dire, and he once again asked them to raise their hands if they had any reservations about their ability to be fair and impartial. No juror raised his or her hand.

¶ 14. There is a presumption in Mississippi that juries have followed the instructions of the trial judge. Young v. State, 831 So.2d 585, 589 (¶ 11) (Miss.Ct.App.2002) (citing Ragin v. State, 724 So.2d 901, 904 (¶ 13) (Miss.1998)). To that end, the Mississippi Supreme Court has also held that when follow-up questions reveal there is nothing to indicate that a venire panel is biased, prejudiced, or would be less than fair in discharging its duty, it is proper for a trial judge to refuse to disqualify the entire jury panel. Benson v. State, 551 So.2d 188, 191 (Miss.1989). Further, the decision to declare a mistrial is within the sound discretion of the trial judge. Evans v. State, 725 So.2d 613, 649 (¶ 114) (Miss.1997) (quoting Brent v. State, 632 So.2d 936, 941 (Miss.1994)).

¶ 15. “While a comment by a single prospective juror during voir dire may taint the entire panel, where there is no evidence of such a taint, the court may correctly refuse to disqualify the entire panel from service if the jury affirms that it can render a verdict based solely on the evidence brought before the court.” Young, 831 So.2d at 589 (¶ 11) (citing Holland v. State, 705 So.2d 307, 339-40 (¶¶ 119-23) (Miss.1997)). This presumption also applies when multiple jurors make improper comments. Hopson v. State, 625 So.2d 395, 402-03 (Miss.1993).

¶ 16. Based on the presumption that juries follow the instruction of the trial judge, and the fact that the circuit judge repeatedly asked the jurors whether they could be fair and impartial in rendering a verdict at trial, it is clear that the judge did not abuse his discretion by allowing the jury to continue to trial. As in Young, there was no evidence in this case that the jury was tainted. Therefore, the circuit judge was within his discretion when he refused to grant a mistrial and disqualify the entire panel where they affirmed they could render a verdict based solely on the evidence brought before the court. This issue has no merit.

2. Whether Whitaker was denied, his statutory and constitutional rights to a speedy trial.

¶ 17. Mississippi Code Annotated section 99-17-1 (Rev.2007) states: “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.”

¶ 18. Whitaker was arraigned on March 25, 2009, and his trial was on November 9, 2010 — more than 270 days later. However, this Court has “held that if a defendant fails to raise the statutory right to a speedy trial within 270 days of his arraignment, he acquiesces to the delay.” Roach v. State, 938 So.2d 863, 867 (¶ 9) (Miss.Ct.App.2006) (citing Mims v. State, 856 So.2d 518, 522 (¶ 11) (Miss.Ct.App.2003)). Whitaker did not make his motion to dismiss for the delay until the morning of trial — approximately 595 days after arraignment. Therefore, the circuit judge properly dismissed Whitaker’s motion because he was well outside the time frame to raise the statutory violation. This argument is without merit.

¶ 19. Amendment VI of the United States Constitution guarantees Whitaker’s right to a speedy trial. “The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905). Though the United States Supreme Court has rejected “the rule that a defendant who fails to demand a speedy trial forever waives his right,” it has also found that the defendant has a responsibility to assert his right. Barker v. Wingo, 407 U.S. 514, 528, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Therefore, the United States Supreme Court has developed a balancing test that compels courts to approach speedy trial cases on an ad hoc basis. Id. at 530. Mississippi has also adopted the Barker factors to determine whether there has been a speedy-trial violation. Sharp v. State, 786 So.2d 372, 380 (¶ 15) (Miss.2001). The four factors analyzed are: the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id.

¶ 20. In analyzing whether the constitutional right to a speedy trial has been violated, the Mississippi Supreme Court has noted that “although complying with the 270 day rule is suggestive of whether the constitutional speedy trial right has been violated, it is not dispositive.” Id. (citing Flores v. State, 574 So.2d 1314, 1321 (Miss.1990)). The supreme court has noted different considerations, such as the fact that the attachment of the right occurs at arrest rather than arraignment, and that a delay between arrest and trial of more than eight months establishes presumptive prejudice that triggers Barker analysis. Id. Here, there was just over a two-year delay between arrest and trial. Therefore, even though there was no statutory violation, the Barker factors must be considered to ensure that there was no constitutional violation.

¶21. Here, the length of delay from arrest to trial was approximately 735 days. Though this delay triggers the presumption of prejudice, the length of time does not shock the conscience because of the reasons for the delay. The continuances requested by Whitaker caused a 216-day delay. The State, on the other hand, requested one continuance because of a witness’s unavailability due to illness, only causing a 54-day delay. The State’s reason for the delay was clearly legitimate and did not maliciously deprive Whitaker of his right to a speedy trial.

¶ 22. Moreover, Whitaker did not assert his constitutional right to have a speedy trial. In fact, based on his requests for continuances, Whitaker appears to have wanted the proceedings to be delayed, rather than expedited. To that end, the only time Whitaker brought up the length-of-time issue was at a pretrial hearing the day before trial, long after his continuance was granted. It appears that rather than wanting to have his constitutional right to a speedy trial invoked during the trial, Whitaker simply wanted to argue a procedural defect after the fact in order to get the charges dismissed or a new trial. Further, the delays have not caused any prejudice to Whitaker, nor does he argue they have. Therefore, this Court finds that, weighing the Barker factors, Whitaker’s constitutional right to a speedy trial has not been violated. This issue has no merit.

3. Whether the circuit court erred by failing to suppress Whitaker’s confession.

¶ 23. The United States Supreme Court announced in Miranda:

There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind aré not barred by the Fifth Amendment!,] and their admissibility is not affected by our holding today.

Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶24. The voluntariness of a waiver, or of a confession, is a factual inquiry that must be determined by the trial judge from the totality of the circumstances. Gavin v. State, 473 So.2d 952, 954 (Miss.1985) (citing Stevens v. State, 458 So.2d 726, 729 (Miss.1984)). This Court will not reverse a trial court’s finding that a confession was voluntary and admissible as long as that trial court applied the correct principles of law, and the finding is factually supported by the evidence. Greenlee v. State, 725 So.2d 816, 825 (¶ 21) (Miss.1998) (citing Haymer v. State, 613 So.2d 837, 839 (Miss.1993)). Further, where there is conflicting evidence about a confession’s admissibility, this Court “will not disturb the trial court’s finding unless it appears clearly contrary to the overwhelming weight of the evidence.” Wiley v. State, 465 So.2d 318, 320 (Miss.1985). No one factor is dispositive in the totality-of-circumstances test. Johnson v. State, 511 So.2d 1360, 1365 (Miss.1987). The supreme court held in State v. Williams, 208 So.2d 172, 175 (Miss.1968):

The fact that the accused is under the influence of liquor or drugs, which affect his recollection, does not make his confession inadmissible. The intoxicated condition of the accused at the time of making a confession does not, unless such intoxication goes to the extent of mania, affect the admissibility in evidence of such confession if it was otherwise a voluntary one, although the fact of intoxication may affect its weight and credibility with the jury.

¶ 25. In this case, the circuit judge conducted a hearing on the admissibility of Whitaker’s confession. Testimony established that Whitaker was the one who initiated the conversation the day he confessed. Moreover, Detective Rogers gave Whitaker a verbal Miranda warning in front of others, which Whitaker stated he understood. Whitaker did not appear to be intoxicated, nor has he asserted that his intoxication was to the extent of mania. Therefore, the circuit judge properly admitted the confession and allowed the jury to weigh its credibility. This issue has no merit.

U. Whether the verdict is against the overwhelming weight of the evidence.

¶ 26. “In reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, this Court will disturb a verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Smith v. State, 925 So.2d 825, 832 (¶ 16) (Miss.2006). The evidence is viewed in the light most favorable to the verdict. Withers v. State, 907 So.2d 342, 352 (¶31) (Miss.2005).

¶ 27. Whitaker contends that he was not aware of Danny and Patterson’s plan to assault Clark and steal money from him. But we find that, viewing the evidence in the light most favorable to the verdict and taking the supporting credible evidence as true, the evidence presented at trial supports that Whitaker knew the crimes he was committing and that he had the requisite knowledge and participation to support a guilty verdict.

¶ 28. Whitaker drove Danny to Patterson’s home, where Danny asked Patterson to go with them to get money for drugs from Clark. Whitaker then drove Danny and Patterson to Patterson’s workplace to pick up a crowbar. Whitaker drove Danny and Patterson to Clark’s house where Danny and Patterson used the crowbar to pry open Clark’s door and assault Clark. Even if we were to assume, as Whitaker claims, that Whitaker did not hear Danny explain his robbery plan to Patterson, it is reasonable to infer that Whitaker knew what was happening when the three stopped to get the crowbar used in the assault and that Whitaker dropped Danny and Patterson at Clark’s trailer only to return to pick them up twenty minutes later. Further, Whitaker’s confession establishes his active involvement in the crimes. Accordingly, this issue has no merit.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY OF CONVICTION OF COUNT I, BURGLARY OF A DWELLING, AND SENTENCE OF TWENTY-FIVE YEARS, AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A FINE OF $10,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.

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


author: LEE, C.J.,

text:
    Eddie BROCK a/k/a Eddie Brock III, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01570-COA.
    Court of Appeals of Mississippi.
    Oct. 9, 2012.
    Rehearing Denied April 2, 2013.
    Certiorari Denied June 6, 2013.
    Eddie Brock, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., MAXWELL and RUSSELL, JJ.
   LEE, C.J.,

for the Court:

¶ 1. Eddie Brock’s motion for post-conviction relief was dismissed by the Bolivar County Circuit Court for failure to obtain permission from the Mississippi Supreme Court to seek relief. See Miss.Code Ann. § 99-39-7 (Supp.2011). It is from this dismissal that Brock now appeals. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1994, Brock was found guilty of five counts of uttering a forgery. He was sentenced as a habitual offender to forty-five years in the custody of the Mississippi Department of Corrections. Brock filed a direct appeal, and this Court affirmed his conviction and sentence in an opinion not designated for publication. See Brock v. State, 704 So.2d 469 (Miss.Ct.App.1997).

¶ 3. In 1998, Brock filed a motion for leave in the Mississippi Supreme Court seeking permission to file a motion for post-conviction relief in the trial court. This motion was denied. Subsequently, he filed several more motions with the supreme court. In 2006, he again submitted a motion requesting leave to file a motion for post-conviction relief. This time, not only was his motion denied, he was sanctioned for filing a frivolous motion.

¶4. Despite the denial of his motions, Brock filed a motion for post-conviction relief in the trial court on November 17, 2010. In this motion, he asserted his sentence was illegal, and an intervening decision of the United State’s Supreme Court provided an exception to any procedural bars. Citing the Mississippi Supreme Court’s denial of his motion for leave, the trial court dismissed Brock’s motion for post-conviction relief.

¶ 5. Brock now appeals asserting the trial court erred in dismissing his motion for relief without holding an evidentiary hearing.

STANDARD OF REVIEW

¶ 6. We will not disturb the circuit court’s dismissal of a motion for post-conviction relief unless it is clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). Issues of law are reviewed de novo. Id.

DISCUSSION

¶ 7. Because Brock has filed a direct appeal that was ruled on by this Court, he must obtain permission from the Mississippi Supreme Court before seeking post-conviction relief in the trial court. See Miss.Code Ann. § 99-39-7. Section 99-39-7 states:

Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, ... and an order granted allowing the filing of such motion in the trial court.

¶ 8. Brock attempted to comply with this statute by filing multiple motions with the supreme court seeking permission. However, each request was denied. Brock, nonetheless, filed his motion for post-conviction relief. The requirements of section 99-39-7 are “not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017 (¶ 6) (Miss.Ct.App.2000). Because permission to proceed had been denied, the trial court was without jurisdiction to hear Brock’s motion. Likewise, this Court is without jurisdiction. See Cortez v. State, 9 So.3d 445, 446 (¶ 6) (Miss.Ct.App.2009) (“If the circuit court did not have jurisdiction to address the defendant’s motion for post-conviction relief, the appellate court is also without jurisdiction.”). We find Brock’s motion was correctly dismissed.

¶ 9. Despite the procedural bar, we would find Brock’s argument without merit. On appeal, Brock contends two intervening decisions would have affected the outcome of his trial. These two decisions are Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Rowland v. State, 42 So.3d 503 (Miss.2010). Brock argues that under Apprendi, he was entitled to have a jury, rather than the trial judge, decide his habitual-offender status and whether his sentences were to run consecutively or concurrently. Brock argues that he is allowed to bring this argument because, according to Rowland, “errors affecting fundamental constitutional rights are excepted from the procedural bars” of the Uniform Post-Conviction Collateral Relief Act. Rowland, 42 So.3d at 506 (¶ 9). Apprendi clearly states: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). Brock’s sentence was enhanced because he was a habitual offender. Since Apprendi provides an exception for sentences enhanced by prior convictions, Brock’s argument is without merit.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT.