author: KITCHENS, Justice,

text:
    Michael Demetrius AMBROSE a/k/a Michael D. Ambrose a/k/a Michael Ambrose a/k/a Michael Demetric Ambrose v. STATE of Mississippi.
    No. 2012-KA-01716-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.

      Office of State Public Defender by Hunter Nolan Aikens, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Michael Ambrose was indicted for capital murder while in the commission of a robbery in Harrison County, Mississippi. After his trial in August 2012, the jury acquitted Ambrose of capital murder and found him guilty of deliberate design murder. The trial court sentenced Ambrose to life imprisonment. Ambrose appealed, arguing that:

1. The evidence is insufficient to support the verdict.
2. The verdict is against the overwhelming weight of the evidence, which establishes that Ambrose either acted in necessary self-defense or was guilty, at most, of manslaughter.
3. Ambrose received constitutionally ineffective assistance of counsel due to trial counsel’s failure to request an instruction on imperfect self defense.

¶2. We affirm Michael Ambrose’s conviction and sentence, finding that issues one and two are without merit, because sufficient evidence to support a murder verdict was adduced and the verdict was not against the overwhelming weight of the evidence. Further, we dismiss Am-brose’s claim of ineffective assistance of counsel without prejudice to his ability to raise it in post-conviction proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 3. It is undisputed that on the night of April 3, 2009, Michael Ambrose shot and killed Marshall Still. Ambrose is the only-living witness to the shooting. The events which led to the shooting generally are undisputed. The facts immediately surrounding and subsequent to the shooting and death of Still are disputed, but they provide significant evidence which supports Ambrose’s conviction.

1. Investigation

¶ 4. At around 9:45 p.m. on the night of April 3, 2009, the body of Marshall Peter Still was discovered in the parking lot of the Snappy Car Wash in Biloxi, Mississippi, by Gesrick Palmer. Palmer immediately called 911. At trial, he testified that the police arrived less than five minutes later, and that he never touched the body or removed anything from it. He also testified that he had no way of knowing how long the corpse had been where he found it.

¶ 5. Investigator Michael Manna of the of the Biloxi Police Department testified that he arrived on the scene approximately one hour after Palmer had called 911. He saw the decedent lying on his back, -with one pocket semi-pulled out, with a pack of cigarettes in it. Other than an earring, Manna did not see any jewelry on the body. He also testified that, to his knowledge, Still did not have any money on him, nor did he have any marihuana. Manna took swab samples of Still’s blood.

¶ 6. Chris Deback, another investigator with the Biloxi Police Department, testified that the police recovered Still’s cellular telephone from the scene. Investigators ascertained the last phone number that had been entered into the cell phone and tracked down the owner of that cell phone number. The owner of the telephone number was Diana Smith of Gulf-port, who told investigators that her relative, Chadwick Moffett, had been using the phone with Robert Williams and Michael Ambrose. This led to the development of Ambrose as a suspect by the police.

¶ 7. The subsequent investigation led police to Ambrose’s car in Terry, Mississippi. When they came upon the vehicle, a tan 1995 Ford Crown Victoria, police noticed that the license plate was missing and the window tinting had been removed. The car was parked in a neighbor’s driveway, and the neighbor told police the vehicle belonged to Ambrose and that he did not have permission to park there. The police were informed that Ambrose lived in a trailer nearby, and they subsequently obtained authorization to search the trailer and surrounding area. In the area around the trailer, police recovered a black box, which contained a large bag of marihuana. The bag of marihuana had blood on it, a sample of which was collected. Investigators also collected samples of blood that were found in the front passenger section of the car. The blood sample from the passenger seat and the blood from the bag of marihuana matched the reference sample from Still. Police also recovered from the vehicle a gold necklace in the driver’s side, an identification card for Michael Ambrose, and a beer bottle. Ambrose was arrested later that morning and was charged with the capital murder of Still, with the underlying felony of robbery.

¶ 8. An autopsy revealed that Still was killed by a single bullet which had entered the back of his left arm and continued through his heart and both lungs before exiting near his right nipple, causing massive internal hemorrhaging. An unidentified spent bullet was found in the trunk of Ambrose’s car. Forensic pathologist Dr. Paul McGarry testified that, based on gunpowder marks on the body, the gun must have been fired from inches away. He testified that, once Still had suffered a wound of this kind, he would have died in minutes.

2. Ambrose’s testimony

¶ 9. At trial, Ambrose testified in his own defense as follows. On April B, 2009, Ambrose had driven from his home in Terry, Mississippi, in a tan 1995 Crown Victoria automobile, to meet his friend, Chad Moffett, in the Orange Grove area of Gulfport. When he arrived, Ambrose, Moffett, Robert Williams (Moffett’s cousin), and some other men visited and smoked marihuana. Ambrose and Moffett decided to purchase some more marihuana, so Moffett telephoned Marshall Still, described as a known drug dealer. Later that evening, Ambrose called Deshawn Brown to ask whether he would come along to buy some marihuana. Ambrose met Brown in College Heights, and eventually the two of them, without Williams or Moffett, went to meet with Still at a gas station in Biloxi. Before they left, Brown and Ambrose put their respective firearms in the trunk of Ambrose’s car. On the way, Ambrose had several phone conversations with Still regarding the purchase of marihuana.

¶ 10. When Ambrose and Brown drove up to the gas station, they saw Still, along with a couple of other people, waiting outside the store. Still then telephoned Am-brose, asking him who was in the car with him and telling him to come back alone. Ambrose took Brown back to College Heights, dropped him off, and gave Brown his gun to hold for him. Ambrose returned to the gas station, Still got in his car, and the two drove to a nearby convenience store parking lot to make a deal. The two could not reach an agreement, and Still exited the vehicle, visibly upset. Ambrose returned to meet Brown; but on the way, he received several phone calls from Still asking him to come back and do the deal. Ambrose agreed. However, before meeting with Still a second time, Am-brose drove back to Brown’s location and retrieved his gun.

¶ 11. When Ambrose returned to the gas station, Still entered Ambrose’s car, this time holding a beer bottle, and the two went to a nearby car wash at Still’s instruction. Ambrose then told Still that he wanted to spend around two hundred dollars on marihuana. Still said Ambrose was a wasting his time and became upset. Ambrose testified that Still began using foul language and behaving aggressively, and that Still then raised his beer bottle in his left hand, apparently intending to strike Ambrose. Ambrose claims that, at this point, he feared for his life, so he pulled out his gun and shot Still once. According to Ambrose, Still fell out of the car and, as he fell, dropped two bags of marihuana in the passenger area. Am-brose testified that he did not take any money or jewelry from Still. Ambrose then fled the scene, returning to College Heights to pick up Deshawn Brown. Am-brose dropped off Brown at the residence of Ambrose’s sister, picked up Moffett and Williams in Gulfport, and drove back to Terry. During the ride back to Terry, Ambrose told Moffett and Williams that things had not gone well, and that he had “accidentally shot the guy.” When he arrived at Terry, Ambrose removed the tinting from his ear’s windows and also removed the license plate from his car. He placed the black box that contained the bag of marihuana in the area around the trailer in which he was living.

3. Gas station clerk, surveillance evidence, and Still’s necklace

¶ 12. The testimony of the State’s witnesses largely corroborated Ambrose’s version of events preceding the shooting. Crystal Elliott, an attendant at the gas station where Ambrose had met with Still, said that she knew Still as a regular around the gas station, and that he was picked up by a Crown Victoria that had pulled up that night. Elliot said that Still returned about fifteen minutes later, bought a twenty-four ounce beer, stayed for a few minutes, then left again. Elliott testified that, when Still returned to the gas station, he was upset because his drug deal had not gone down. He said that “the people he was supposed to do the deal with were being shady and sketchy about the whole situation.” He called his girlfriend to come pick him up, made some other phone calls, and left. Telephone records confirmed that Still had called Ambrose four times prior to calling his girlfriend, and once afterward. Elliott testified that Still was wearing a necklace and may have been wearing a ring. He also paid for his purchases out of a “thick stack” of folded-over bills. Still had told Elliott that he had an unspecified amount of marihuana in his possession. When the police came to the store later that night after discovering Still’s body, Elliott gave them access to the surveillance tapes from the store. The tapes confirmed that Still had been in the store twice, once buying cigarettes and later buying a twenty-four ounce beer. They also confirmed that he was wearing a necklace.

¶ 18. Regarding the necklace that was found in Ambrose’s car, which the State alleged had belonged to Still, the defense called Ambrose’s sister, Tiwana Ambrose, to testify that the necklace found in Am-brose’s car belonged to her brother. The defense also moved into evidence a photograph of Ambrose wearing the necklace in question, and Ambrose identified the necklace as his.

4. Robert Williams’s Testimony

¶ 14. Robert Williams, one of the men who had been with Ambrose that day, testified for the State at trial. His version of events differed substantially from Am-brose’s. He testified about the return trip to Terry, during which he, Ambrose, and Chad Moffett were in the car. Williams testified that Ambrose had told them that he “robbed a dude for two pounds, a stack of money, a ring with diamonds in it and a chain.” According to Williams’s testimony, Ambrose told them that Still had reached under the seat to grab a scale to weigh the drugs and felt a gun, at which point he tried to get out of the car. Am-brose put the gun that was under the seat to Still’s head, and when Still tried to get out, Ambrose grabbed his shirt and shot him in the back. Williams said that Am-brose told them that he had shot Still because Still would not hand over the marihuana. Ambrose also showed Williams and Moffett the chain, diamond ring, and stack of cash he had taken from Still, according to Williams. On the way back to Jackson, Williams said that Ambrose was in a jovial mood, “making it rain” by throwing the money he had stolen into the air, dancing, and playing happy music. When they got to Jackson, they went to a hotel and rented two rooms, then went to a club. They then went to the trailer that Williams’s sister shared with Ambrose’s girlfriend and Ambrose. Williams witnessed Ambrose peeling the tint from the car windows, removing the tag from the car, and attempting to wipe the blood from the passenger area of the car. After hearing about Still’s death on the news, Williams went to Biloxi and gave a statement to the police in order to clear himself. Ambrose was arrested the next day.

¶ 15. Ambrose was indicted for capital murder with the underlying felony of robbery. The jury was instructed on capital murder with the underlying felony of robbery, deliberate design murder, heat of passion manslaughter, and justifiable homicide in necessary self-defense. The jury acquitted Ambrose of capital murder, but found him guilty of deliberate design murder. Ambrose was sentenced to imprisonment for life. He appealed, raising three issues:

1. The evidence was insufficient to support the jury’s verdict finding Am-brose guilty of deliberate design murder.
2. The verdict is against the overwhelming weight of the evidence, which establishes that Ambrose is guilty, at most, of manslaughter.
B. Ambrose received ineffective assistance of counsel because his trial attorney failed to request an instruction on imperfect self-defense manslaughter, and Ambrose was prejudiced by that deficiency.
ANALYSIS
I. Whether the evidence was insufficient to support a guilty verdict for deliberate design murder.

¶ 16. When reviewing a challenge for sufficiency of the evidence, this Court must determine whether, “after ■viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). The State receives the benefit of any favorable inferences that reasonably can be drawn from the evidence, and this Court will reverse only where the facts and inferences which were considered “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Hughes v. State, 983 So.2d 270, 275-76 (¶¶ 10-11) (Miss.2008).

¶ 17. Ambrose argues that, because self defense was raised, the State had the burden of proving beyond a reasonable doubt that Ambrose did not kill Still in self defense. “The defendant is not required to prove he acted in self-defense, and, if a reasonable doubt of his guilt arises from the evidence, he must be acquitted.” Heidel v. State, 587 So.2d 835, 843 (Miss.1991) (internal quotation omitted); see also Scott v. State, 203 Miss. 349, 354, 34 So.2d 718, 719 (1948). Ambrose claims that the State failed to meet its burden of proving beyond a reasonable doubt that he did not act in self defense when he killed Still. The State responds that it submitted sufficient evidence such that a reasonable jury could have found beyond a reasonable doubt that Ambrose killed Still with deliberate design and not in necessary self defense.

¶ 18. Mississippi’s justifiable homicide statute states that

the killing of a human being ... shall be justifiable ... [w]hen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.

Miss.Code Ann. § 97-3-15(1)00 (Rev.2006). Ambrose testified that Still raised a twenty-four ounce beer bottle in a threatening gesture and, fearing that his life was in jeopardy, he shot Still. The evidence at trial showed that Still did purchase a twenty-four ounce bottle of beer before he was picked up by Ambrose the second time, and a beer bottle of that size was found in the car when it was searched by police. Further, Ambrose argues that if he had intended to kill Still, he would have done it the first time the two met, and that they met a second time only at Still’s insistence. This is corroborated by the four phone calls made from Still’s phone to Ambrose’s phone between 8:56 and 9:10 p.m. Further, Ambrose shot Still but once.

¶ 19. If Ambrose’s testimony were the only version of the events immediately surrounding the shooting presented at trial, his protestations might be more compelling. However, the State provided conflicting testimony through Robert Williams. Williams testified that, after the shooting, Ambrose said that he shot Still to take his belongings and marihuana, and that he had to shoot him because he “wasn’t trying to give it up.” Williams said that Ambrose told him that Ambrose had grabbed Still’s shirt when Still was trying to leave the car, and that Ambrose had shot him in the back.

¶ 20. “The issue of justifiable self-defense presents a question of the weight and credibility of the evidence rather than sufficiency and is to be decided by the jury.” Wade v. State, 748 So.2d 771, 774 (¶ 11) (Miss.1999). In this case, conflicting testimony was adduced regarding the events immediately surrounding the shooting. The jury was instructed on deliberate design murder and justifiable self defense. The jury weighed the evidence in favor of the State, and we cannot say that the evidence presented was insufficient for a rational jury to find beyond a reasonable doubt that Ambrose had shot Still with deliberate design to kill him and not in necessary self defense. The opposing theories of the prosecution and the defense were fully and fairly presented to the trier of fact. In the end, the disputed issues of fact were resolved in favor of the State and against the defendant. The issue is without merit.

II. Whether the verdict is against the overwhelming weight of the evidence because the evidence established either that Ambrose acted in self defense or is guilty, at most, of manslaughter.

¶ 21. This Court will disturb a verdict as against the overwhelming weight of the evidence only when to allow the verdict to stand would “sanction an unconscionable injustice.” Springer v. State, 89 So.3d 567, 572 (1126) (Miss.2012) (quoting Bush, 895 So.2d at 844). The Court must view all the evidence in the light most favorable to the State and give the State “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Springer, 89 So.3d at 572.

¶22. Ambrose argues that his conviction of deliberate design murder is against the overwhelming weight of the evidence, and that the evidence supported only the conclusion that he shot Still in justifiable self defense. This argument is without merit. Ambrose did present evidence and testimony to the effect that he met Still once, left, and then, at Still’s insistence, returned to do a drug deal. Ambrose admitted he was armed, and he admitted that he shot Still. Ambrose claims he shot Still because Still had a large beer bottle with which he was poised to strike Am-brose. All of the evidence supports Am-brose’s story up to the point that Still actually was shot. However, the State presented competing testimony in support of its theory that Ambrose killed Still because Still would not give up the drugs and was attempting to exit the car. Ambrose admitted that he kept the two pounds of marihuana that he claims fell out of Still’s possession when he was shot. Williams testified that Ambrose told him that he, Ambrose, had shot Still because Still would not give him the drugs. The jury did not find beyond a reasonable doubt that Am-brose shot Still while engaged in the commission of a robbery; but it did find, beyond a reasonable doubt, that Ambrose killed Still with deliberate design to effect his death.

¶28. Although Ambrose did submit evidence to support his claim that he was acting in justifiable self defense when he shot Still, the State adduced testimony that Ambrose had shot Still as he was leaving the vehicle and not posing a threat. “Conflicting testimony does not evince overwhelming evidence; where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.” Brown v. State, 995 So.2d 698, 702 (Miss.2008) (¶ 13) (quotation omitted). Viewing the evidence in the light most favorable to the State, and granting the State the benefit of all inferences that may be drawn from the evidence, we find that the conviction for deliberate design murder was not against the overwhelming weight of the evidence.

¶ 24. Additionally, Ambrose’s alternative argument that the evidence weighed in favor of manslaughter only is without merit. Ambrose was granted a heat of passion manslaughter instruction. The jury was told that:

[T]he term heat of passion is defined as a state of violent and uncontrollable rage caused by certain provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment, or terror.

The awkward wording and grammar of this instruction notwithstanding, it matches this Court’s definition of “heat of passion.” See Givens v. State, 967 So.2d 1, 11 (¶ 33) (Miss.2007). The jury was sufficiently instructed on heat of passion manslaughter and on deliberate design murder. Conflicting evidence and testimony were adduced which could have supported either charge. The jury weighed the evidence and convicted Ambrose of deliberate design murder. Looking at the evidence in the light most favorable to the verdict, we find that the weight of the evidence supported a conviction for deliberate design murder. Allowing the verdict to stand would not sanction an unconscionable injustice. The issue is without merit.

III. Whether Ambrose received constitutionally ineffective assistance of counsel due to trial counsel’s failure to request an instruction on imperfect self defense.

¶ 25. Trial counsel for Ambrose requested and was granted a jury instruction on heat of passion manslaughter. The trial court also granted a jury instruction on necessary self defense. On appeal, Am-brose argues that the facts of the case naturally lend themselves to an instruction on imperfect self defense. He argues that his trial counsel was ineffective for failing to request such an instruction, because, had he done so, there is a reasonable probability that the outcome of his trial would have been different. The State responds that trial counsel’s performance was not deficient, because Ambrose was not entitled to an instruction on imperfect self defense, as the facts of the case did not support such a theory. It further argues that trial counsel’s decision to request a jury instruction is a strategic one, and that this Court generally does not second guess such strategic decisions.

Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983).

Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss.2008). In this case, the Court is in the dark about whether counsel for Am-brose even considered an imperfect self defense theory, or what his reasons were for not requesting an instruction on that theory. Accordingly, we forego consideration of Ambrose’s claim of ineffective assistance of counsel without prejudice so that it may be pursued in post-conviction proceedings, should Ambrose later choose to engage in such an undertaking.

CONCLUSION

¶ 26. The State presented sufficient evidence to convict Michael Ambrose of deliberate design murder. Conflicting evidence was presented which could support self defense, manslaughter, or murder; but the determination was one for the jury, and it found against the defendant. The conviction of murder was not against the overwhelming weight of the evidence. The State adduced testimony that supported a conviction, and the jury was instructed properly on all the relevant defenses and applicable law. Finally, this Court hereby dismisses Ambrose’s ineffective assistance of counsel claim without prejudice to his ability to raise it in post-conviction proceedings.

¶ 27. CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Surveillance footage from the gas station showed Still purchasing a twenty-four ounce bottle of beer just before he left the gas station for good.

      . Ambrose denied doing any of this.

      . Ambrose confirmed this.

      . The jury was instructed on the elements of robbery in Jury Instruction S-2.


source: Caselaw Access Project

author: CHANDLER, Justice, DICKINSON, Presiding Justice,

license: Public Domain

text:
    Brenda S. LOTT and Frances H. Saulters v. Ralph D. SAULTERS.
    No. 2012-IA-01401-SCT.
    Supreme Court of Mississippi.
    Jan. 23, 2014.
    Rehearing Denied March 20, 2014.

      Eugene Coursey Tullos, Raleigh, attorney for appellants.
    Audry Regnal Blackledge, Hattiesburg, attorney for appellee.
   CHANDLER, Justice,

for the Court:

¶ 1. This is an interlocutory appeal from the Chancery Court of Covington County. We are asked to determine whether the plaintiff, Ralph D. Saulters, has alleged sufficient ownership interest in a disputed piece of land to sustain his complaint to clear title to his alleged remainder interest; whether the various allegations in his complaint fall under the ten-year statute of limitations to recover land or the general three-year statute of limitations governing fraud; and whether the relevant statute of limitations has expired. The chancellor denied the defendants’ motion to dismiss, holding that Ralph’s valid claims are not time-barred. We affirm the chancellor’s holding that the claim to quiet title is not barred by the statute of limitations. However, because any claims for actual and punitive damages are barred as untimely, we reverse the chancellor’s holding as applied to Ralph’s claims for damages.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. Frances Saulters is the mother of Ralph Saulters and Brenda Lott. According to Ralph’s complaint, on June 11, 2001, Frances conveyed real property in Coving-ton County via a warranty deed to Ralph, reserving for herself a life estate. Four months later, on October 24, 2001, Frances executed a second warranty deed which conveyed the exact same property to Brenda, once again reserving for herself a life estate. At the time the second deed was executed, Brenda had actual knowledge of Ralph’s deed and “understood that Ralph was going to have his instrument recorded.” On that same day, October 24, Ralph and Brenda each recorded their respective deeds. Brenda beat Ralph to the courthouse by forty-five minutes; Brenda’s deed was stamped filed at 10:25 a.m., while Ralph’s was stamped filed at 11:10 a.m.

¶ 3. On January 3, 2012, more than ten years after Brenda recorded her deed, Ralph brought the present action to set aside the deed to Brenda, to remove cloud and quiet title, to confirm title, for failure of covenants of warranty of deed, and other relief. Ralph also seeks actual and punitive damages from Frances and Brenda, alleging that Frances violated the covenants of warranty in the first deed, that Brenda took her deed with actual knowledge of his deed, and that Brenda procured her deed from Frances by undue influence, fraud, and bad faith. Brenda and Frances moved to dismiss the action, asserting that Ralph’s claims were barred by the statute of limitations. The chancellor denied Brenda’s and Frances’s motion to dismiss, finding the following facts and holding that Ralph’s action was not barred by the statute of limitations:

1. On June 11, 2001, Frances H. Saul-ters executed a Warranty Deed to Ralph D. Saulters which reserved a Life Estate in Frances H. Saulters.
2. Several months later, Frances H. Saulters executed a Warranty Deed on the exact same parcel of real property to Brenda S. Lott, which also reserved a life estate in Frances H. Saulters.
3. Both instruments were recorded on ■October 24, 2001. The instrument to Brenda S. Lott has a time of 10:25 a.m., and the instrument to Ralph D. Saulters has a time of 11:10 a.m.
4. Both instruments reserved a Life Estate in Frances H. Saulters, who is alive, and she has control over the real property as the holder of a Life Estate.
5. Since no adverse entry has been made due to France[s] H. Saulters’ Life Estate, the statute of limitations has not expired.

¶ 4. Brenda and Frances then filed this interlocutory appeal. They argue first that Ralph cannot bring an action to recover the land because Brenda recorded her deed first, leaving Ralph with no possesso-ry interest in the land on which to make a claim. They next argue that, even if Ralph has an interest in the land, the ten-year statute of limitations began to run the day Brenda recorded her deed and has now expired, barring Ralph’s claim. They also argue that the three-year statute of limitations applying to claims based in fraud governs Ralph’s claims because Ralph’s complaint alleges that Brenda obtained her deed from Frances by fraud and seeks to have that deed canceled.

DISCUSSION

¶ 5. “This Court uses a de novo standard of review when passing on questions of law including statute of limitations issues.” Stephens v. Equitable Life Assurance Soc’y, 850 So.2d 78, 82 (Miss.2003). In deciding whether to grant a motion to dismiss, all of the allegations in the plaintiffs complaint must be taken as true, and the motion should be granted only where “it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006).

I. RALPH HAS SUFFICIENTLY ALLEGED AN OWNERSHIP INTEREST IN THE LAND.

¶ 6. According to the complaint, Ralph obtained his deed first but recorded it second. Brenda obtained her deed second but recorded it first. Brenda knew about Ralph’s deed at the time she obtained the second deed from Frances. Under this set of facts, Ralph’s deed takes priority over Brenda’s deed, despite the fact that Brenda recorded her deed first. Mississippi is a “race-notice” jurisdiction. See Miss.Code Ann. § 89-5-1 (Rev.2011). Under the “race-notice” statute, a grantee has a superior claim to the land when he takes a deed without notice of a prior competing deed and then records that deed first; however, “a grantee of land takes the land subject to a prior unrecorded deed from his grantor of which he has actual notice.” Breeden v. Tucker, 533 So.2d 1108, 1110 (Miss.1988) (emphasis added). Brenda would be able to claim superior title to the land only if she had no knowledge of Ralph’s deed at the time she obtained her deed and if she recorded her deed first. Brenda may have won the race to the courthouse, but she loses on the issue of notice. Taking the allegations of the complaint as true, Ralph has a valid ownership interest in the land and therefore has grounds to bring a suit to clear title to his remainder interest.

II. RALPH’S CLAIMS FALL UNDER THE TEN-YEAR STATUTE OF LIMITATIONS GOVERNING ACTIONS TO RECOVER LAND, NOT THE THREE-YEAR STATUTE OF LIMITATIONS THAT GOVERNS FRAUD.

¶ 7. Brenda and Frances argue that Ralph’s claim for cancellation of Brenda’s deed falls under the general, three-year statute of limitations because it alleges fraud. This requires us to address the question of whether an action to cancel a deed that was fraudulently conveyed falls under the three-year statute of limitations governing actions based on fraud, or if it falls under the ten-year statute of limitations governing actions to recover land. We hold that, where a plaintiff alleging a possessory interest in the land brings an action to clear title or to recover land obtained by fraudulent conveyance, that action is governed by the ten-year statute of limitations.

¶ 8. Actions to recover land are subject to the ten-year statute of limitations found in Mississippi Code Sections 15-1-7 and 15-1-9. In relevant part, Section 15-1-7 provides:

A person may not make an entry or commence an action to recover land except unthin ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

Miss.Code Ann. § 15-1-7 (Rev.2012) (emphasis added). Similarly, Section 15-1-9 provides:

A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity.

Miss.Code Ann. § 15-1-9 (Rev.2012). A suit to remove a cloud on title is considered an action to recover land. O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 873 (Miss.2001).

¶ 9. Unlike the legislatures of most states, our Legislature has not created a statute setting a shorter limitations period on actions to recover land obtained by fraud; in fact, Section 15-1-9 states that actions to recover land based on fraud will have a ten-year statute of limitations:

A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity. However, in every case of a concealed fraud, the right of any person to bring suit in equity for the recovery of land, of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which the fraud shall, or, with reasonable diligence might, have been first known or discovered.

Miss.Code Ann. § 15-1-9 (Rev.2012) (emphasis added).

¶ 10. We have twice applied the ten-year statute of limitations in cases where fraud was alleged in an action to recover possession of real estate. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 748 (1905), overruled, on other grounds by Kennedy v. Sanders, 90 Miss. 524, 539-40, 43 So. 913, 915 (1907); Aultman v. Kelly, 236 Miss. 1, 109 So.2d 344, 349 (1959). In Jones, we explained — in the context of an action to recover land-that to take advantage of the concealed — fraud provision of Section 15-1-9 quoted above, plaintiffs must allege “that complainants did not discover or know of this fraud over 10 years before instituting their suit.” Jones, 85 Miss. 802, 38 So. 742, 748 (1905) (emphasis added). Likewise, in Aultman, where heirs sought to cancel a mineral deed they alleged was procured from their father by fraud, we stated that the heirs “were required to institute a suit within ten years from the accrual of their right.” Aultman, 236 Miss. 1, 109 So.2d 344, 349 (1959).

¶ 11. We disagree with the Fifth Circuit’s interpretation of Mississippi law on this issue in Suthoff v. Yazoo County Industrial Development Corporation, 722 F.2d 133 (5th Cir.1983). In it, the Fifth Circuit applied a three-year statute of limitations to an action where the plaintiffs alleged that they were fraudulently induced to sell land under the auspices that their property would be condemned. Suthoff, 722 F.2d 134-35 (5th Cir.1983). The court acknowledged that “the ten-year period for the recovery of land has been applied in two actions in Mississippi to set aside conveyances allegedly procured by fraud,” but noted that no Mississippi court had decided “the precise issue [of] whether such an action is governed by the statute relating to actions for fraud or the statute relating to actions to recover land.” Id. at 137.

¶ 12. In applying the shorter statute of limitations, the Fifth Circuit followed the rule used by the majority of states. We decline to follow this majority rule, because, as mentioned above, the Mississippi Legislature, unlike the majority of states, has not created a statute setting a shorter period of limitation on actions to recover land on the grounds of fraudulent conveyance. A case from Utah, cited in Suthoff as support for this majority rule, explains the majority rule and illustrates why it should not be the rule in Mississippi given our current statutory scheme:

The legislature of this state, as in nearly all other states, has seen fit to fix a shorter period of limitation upon actions for relief upon the ground of fraud or mistake than for recovery of possession of real estate. This is for the very cogent reason that a person claiming to have been defrauded or to have been induced to enter into a contract by mistake should not be permitted to allow a great length of time to elapse after discovery of the fraud or mistake before instituting his suit....

Davidsen v. Salt Lake City, 95 Utah 347, 81 P.2d 374, 376-77 (1938) (emphasis added).

¶ 13. Because our Legislature has not created a law shortening the time to bring an action to recover a fraudulent conveyance, and because our current statutory law imposes a ten-year statute of limitations for actions to recover land based on fraud, we decline to adopt the majority rule. We hold that, where a plaintiff alleging a possessory interest is seeking to regain title to land lost by a fraudulent conveyance, or to clarify his own title clouded by fraudulent conveyance, the action still falls under the ten-year statutes applying to actions to recover land, despite the presence of allegations of fraud.

III. THE TEN-YEAR STATUTE OF LIMITATIONS WILL NOT BEGIN TO RUN AGAINST RALPH UNTIL THE TERMINATION OF THE LIFE ESTATE.

¶ 14. Brenda and Frances argue that, even if the ten-year statute of limitations applies, it has expired because Ralph waited more than ten years after Brenda recorded her competing deed to file his complaint. But, because Ralph is a remainderman who does not yet have the present right to possess the property, the statute of limitations has not yet begun to run on his cause of action to clear title to his future interest. Traditionally, remain-dermen do not have an obligation to bring actions during the precedent estate that are related to the present right to possess the land, such as adverse possession, partition, ejectment, and trespass, etc. See Belt v. Adams, 124 Miss. 194, 86 So. 584, 588 (1920); Reynolds v. Wilkinson, 119 Miss. 590, 81 So. 278, 280 (1919); Clark v. Foster, 110 Miss. 543, 70 So. 588, 585 (1916); Hoskins v. Ames, 78 Miss. 986, 29 So. 828 (1901); Wilson v. Parker, 14 So. 264, 265-66 (Miss.1894). We stated in Clark that “[n]one of the 10-year statutes of limitation invoked could begin to run until after the termination of the life estate.” Clark, 110 Miss. 543, 70 So. 583, 585 (1916). The rationale is that “[plaintiffs], as owners of the equitable estate after the death of the [life tenant], have not come into possession or enjoyment of their equity” and “cannot use it or have it appropriated to their use until the death of the life tenant.” Id. We stated that, “in no event could [the statute of limitations] begin to run until the death of [the life tenant].”

¶ 15. This general principle includes actions by a remainderman to clear title to his future interest, and it has been retained even where remainderman have been given the right by statute to go ahead and bring such actions during the precedent estate., For example, in Evans v. Graves, a Texas case which is exactly on point with the situation at hand, a party attempted to argue that, even though the general rule is that

“[t]he statutes of limitations as to an interest in land, which one owns as a remainderman, subject to a life estate in another, do not begin to run in favor of one in possession until the death of the life tenant,” that an “exception exists where the remainderman has an available remedy, or means of legally protecting himself, in which event, limitation would bar his rights even during the period of life tenancy... .The remedy available ... was [a] suit to remove cloud from title to her future interest.”

Evans v. Graves, 166 S.W.2d 955, 958 (1942). The court rejected this argument, stating,

Though [the remainderman] might have been able to maintain a suit during the life estate to quit title, yet she was not compelled to do so until right of possession accrued. Restatement of the Law, Property, § 222, p. 902, states the rule generally applied; including states where, by statute, the action to quiet title or remove cloud is more comprehensive ... says Restatement, supra: “Frequently the owner of a future interest as such can establish his ownership by a suit in equity to quiet title or to remove a cloud upon title or by analogous statutory proceedings legal or equitable. It might be reasoned that this fact should require him to avail himself of these rights of action and that the statutory period should thenceforth run, not only upon these equitable and statutory proceedings, but also upon the [actions] which might be brought when the interest becomes present. However, these equitable and statutory proceedings are considered to be created for the additional protection of the owner of the future interest; and to hold that their existence causes the statute of limitations to run ... would in considerable measure reduce the protection accorded to the future interest holder when his estate becomes present. It is therefore immaterial in computing the statutory period in an action ... that, before the plaintiffs estate became a present interest, he could have brought suit to quiet title or to remove cloud on title or could have commenced a statutory proceeding analogous to one of these.”

Id. (quoting Restatement (First) of Property § 222 (1936) (emphasis added.)) Similarly, in Alabama, “while the remainder-man may maintain an action to remove a cloud on his reversion during the pendency of the life estate, he is under no duty to do so.... ” Hinesley v. Davidson, 395 So.2d 1, 5 (1981). We adopt this general rule and conclude that, in the context of future interests, a present cause of action to clear title does not trigger the ten-year limitations period to run against a remainder-man until the termination of the precedent estate. The consequence of accelerating the running of the limitations period would be to create an obligation in all remainder-men to police record title to their future interest once a decade. That approach would abrogate, rather than add to, the traditional and common-sense protections afforded future interest holders. Therefore, even though Ralph’s cause of action already has accrued, the statute is tolled until Ralph obtains a present right of possession at the termination of the life estate.

IV. RALPH’S CLAIMS FOR DAMAGES ARE BARRED AS UNTIMELY.

¶ 16. In addition to seeking to have the deed to Brenda set aside and the cloud on his title removed, Ralph also requests damages for the breach of warranty deed and punitive damages for all of the other wrongful conduct alleged in the complaint, including the above-mentioned fraud allegations, detrimental reliance, gross negligence, duress and undue influence, breach of fiduciary duty, bad faith, and conversion. Each of these claims falls under the three-year statute of limitations contained in Section 15-1-49 as “actions for which no other period of limitation is prescribed,” which are to “be commenced within three (3) years next after the cause of such action accrued, and not after.” Miss.Code Ann. § 15-1^49 (Rev.2012). Ralph provides no argument for why these claims should not run until the death of the life tenant, or why the statute of limitations did not begin to run on these claims as of October 24, 2001. We hold that these claims are barred as untimely.

CONCLUSION

¶ 17. We hold that Ralph’s action to set aside Brenda’s deed, remove the cloud on his title, and to quiet title to the disputed property is not time-barred. Because Ralph alleges a possessory interest in land, his claim is not governed by the three-year statute of limitations in Section 15-1-49. However, Ralph’s claims for actual and punitive damages are barred by the three-year statute of limitations. Therefore, the judgment of the Chancery Court of Cov-ington County is affirmed in its holding that the statute of limitations has not run on Ralph’s claim to clear title to his remainder interest, reversed to the extent its holding that the statute has not run applies to Ralph’s claims for actual and punitive damages, and remanded.

¶ 18. AFFIRMED IN PART; REVERSED IN PART; REMANDED.

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

DICKINSON, Presiding Justice,

dissenting:

¶ 19. The majority correctly concludes that an action to clear title is treated as an action to recover land, and is subject to a ten-year statute of limitations. But because the majority tolls the statute in stark contrast to the statutory language, I respectfully dissent.

¶ 20. With no analysis of the statute— and with no explanation of why it refuses to follow the clear statutory language — the majority has determined that the limitations period provided in Section 15-1-7 has yet to run. The statute says:

A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have fírst accrued to- some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

¶ 21. Under this statute, a ten-year limitations period starts to run when the right to bring a lawsuit accrues. There is no other way to read the language of the statute. After Ralph learned of Brenda’s competing interest, his right to file this suit accrued, but he did not file it. Instead, he allowed more than ten years to pass before filing it, so the statute of limitations expired.

¶ 22. Instead of following the statute’s clear language, the majority opts to follow what it believes to be a “general rule” applied in the state courts of Texas and Alabama. These authorities might be persuasive if our statute left room for interpretation — but it does not. The Legislature has imposed a ten-year time limit for actions to clear title, and it begins to run when “the right., to bring the action shall háve first accrued.”

¶ 23. Further, I am compelled to respond to the cases cited by the majority which reference the statutes of limitations in other kinds of actions, and which were addressed by this Court in-nearly century-old precedent that was decided under different law, and without consideration of the statutory language before us today.

¶24. In Wilson, this Court applied a then-existing, general ten-year statute of limitations. In Clark, we addressed a two-year statute for actions to recover land. In Reynolds, we found that “section 8123, Code of 1906 (Section 2487, Hemingway’s Code), had no application to the rights of a remainderman under a devise or grant in trust to take effect only after the termination of a particular estate until the rights of the remainderman fall into possession.” And in Hoskins and Belt, we held that limitations statutes would not run on actions to recover land when the remainderman had no right to bring his action. None of the cases addressed the statutory language we must apply in this case. Because Ralph was aware of Brenda’s competing interest more than ten years before he filed his complaint, Section 15-1-7 bars his action to clear title.

¶ 25. The majority makes clear its view that the Legislature’s statute was a mistake because — if strictly enforced — it “would abrogate, rather than add to, the traditional and common-sense protections afforded future interest holders.” And, because the statute fails to provide these “common-sense protections,” the majority concludes that, “even though Ralph’s cause of action already has accrued, the statute is tolled until Ralph obtains a present right of possession at the termination of the life estate.”

¶ 26. With respect, I must reject the majority’s holding. It places this Court’s view of what makes common sense above the Legislature’s constitutional authority to make the laws. For the reasons stated, I would hold that the statute of limitations has expired, and I would reverse the chancellor’s denial of the defendant’s motion to dismiss.

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

      . "... [A] conveyance of land shall not be good against a purchaser for a valuable consideration without notice, or any creditor, unless it be lodged with the clerk of the chancery court of the county in which the lands are situated to be recorded, but after filling with the clerk, the priority of time of filing shall determine the priority of all conveyances of the same land as between the several holders of such conveyances.”

      . While often persuasive, Fifth Circuit determinations of unsettled Mississippi law are not binding on this Court.

      .We note that an action to cancel a fraudulent conveyance can fall under the three-year statute of limitations where the plaintiff does not allege a possessory interest in the land. See O’Neal Steel, Inc. v. Millette, 797 So.2d 869 (Miss.2001), holding that the three-year statute applied where a plaintiff-creditor sought to cancel a deed the defendant-debtor conveyed to a third party in order to avoid a judgment lien. We further note that today’s decision overrules McWilliams v. McWilliams, 970 So.2d 200 (Miss.Ct.App.2007), in which the Court of Appeals erroneously applied the reasoning of Millette, incorrectly applying the three-year statute where a plaintiff sought to recover land he allegedly was fraudulently induced to convey.

      . Mississippi Code Section 11-17-31 provides a cause of action to clear title in the face of a competing deed "whether such real owner be in possession or not_” Miss.Code Ann. § 11-17-31 (Rev.2004). Ralph has a present cause of action under this statute.

      . The dissent is correct that Mississippi lacks recent caselaw on this specific issue; however, as we will explain, this rule has been retained by the Restatement of Property and other states that have more recently addressed the issue.

      . The dissent contends that the Legislature’s enactment of Section 15-1-7 has altered the law applicable to the rights of remaindermen. But "[t]o the extent that statutes, by their terms and necessary implications, and the common law are not repugnant, they co-exist and will be given effect.” Sanders v. Neely, 197 Miss. 66, 82, 19 So.2d 424, 426 (1944). "The presumption is that the Legislature does not intend to make alterations in the law beyond what it explicitly declares, either by express terms or by necessary implication, and does not intend to overthrow fundamental principles or to infringe existing rights, without expressing or clearly implying such intention.” Clark v. Luvel Dairy, 731 So.2d 1098, 1104 (Miss.1998) (quoting Sanders, 197 Miss, at 82, 19 So.2d at 426). Nothing in Section 15-1-7 is distinguishable from the statutes of limitations found to be tolled until the termination of the precedent estate in Wilson, Clark, Reynolds, Hoskins, and Belt.
        Therefore, we reject the dissent’s contention that Section 15-1-7 effected a change in the law.

      . Miss.Code Ann. § 15-1-7 (Rev.2012) (emphasis added).

      . Id.

      . Wilson v. Parker, 14 So. 264, 266 (Miss.1894).

      . Clark v. Poster, 110 Miss. 543, 70 So. 583, 584 (Miss.1916).

      . Reynolds v. Wilkinson, 119 Miss. 590, 81 So. 278, 280 (Miss.1919).

      . Hoskins v. Ames, 78 Miss. 986, 29 So. 828 (Miss.1901).

      . Belt v. Adams, 124 Miss. 194, 86 So. 584, 588 (Miss.1920).


author: KING, Justice,

text:
    NEWTON COUNTY, Mississippi and Rodney Bounds v. STATE of Mississippi for the Use and Benefit of George DUKES; George Dukes; and Union Insurance Company. Newton County, Mississippi and Rodney Bounds v. State of Mississippi for the Use and Benefit of Joe Jordan; Joe Jordan; and Union Insurance Company.
    Nos. 2011-CT-01500-SCT, 2011-CT-01501-SCT.
    Supreme Court of Mississippi.
    March 6, 2014.

      Michael Jeffrey Wolf, Jackson, Clifford Allen McDaniel, II, attorneys for appellants.
    Thomas L. Tullos, Ron A. Yarbrough, Jackson, attorneys for appellees.
   ON WRIT OF CERTIORARI

KING, Justice,

for the Court:

¶ 1. George Dukes and Joe Jordan sued Union Insurance Company Inc. as surety on the public official bond of Newton County Circuit Clerk Rodney Bounds. Union filed a cross-claim against Bounds for indemnity. The Newton County Circuit Court dismissed the case against Bounds, but found Union liable to Dukes and Jordan. However, it also found Bounds liable to Union for indemnity. Union appealed, and the Court of Appeals reversed, finding that Union was not liable to Dukes and Jordan, and that Bounds was not liable to Union for indemnity. We granted Union’s petition for certiorari, which argued that the Court of Appeals erred by finding that Bounds was not liable to Union for indemnity for its attorneys fees and costs incurred in defending the lawsuits filed on Bounds’s public official bond.

FACTS AND PROCEDURAL HISTORY

¶ 2. George Dukes and Joe Jordan each obtained judgments against their employers, Roy and Kevin White, under the Mississippi Workers’ Compensation Act. The judgments each totaled approximately $135,000. The Whites appealed and posted supersedeas bonds, which their wives signed as the sureties. Rodney Bounds, the Newton County Circuit Clerk, approved the bonds without investigating the Whites’ financial ability to satisfy the bonds. The Whites lost their appeal and subsequently filed for bankruptcy, thus Dukes and Jordan were unable to collect on the supersedeas bonds. Dukes and Jordan then sued Bounds, Newton County, and Union Insurance Company Inc., the surety on Bounds’s public-official bond.

¶ 3. Union filed a cross-claim against Bounds, alleging that, under the terms of Bounds’s public official bond application, “Bounds agreed to indemnify and save Union harmless from and against every claim, demand, liability, loss, fees, charge, expense, suit, order, judgment, and adjudication whatsoever, including counsel fees, and from any and all liability therefor sustained or incurred as a consequence of having executed bonds for and on behalf of Bounds.” It alleged that, in reliance on the bond application, Union issued a public official bond on Bounds’s behalf. Union claimed that Union was required to engage legal counsel to protect its interests, due to the complaint that Dukes and Jordan filed against it, and that Bounds was liable for the costs of counsel according to the bond application terms.

¶ 4. The trial court found that Bounds was not liable to Dukes and Jordan because he had immunity. However, it found that Newton County and Union were liable to Dukes and Jordan for Bounds’s arbitrary and capricious actions. It also awarded Union a judgment against Bounds for indemnification liability. All parties appealed to the Court of Appeals. Bounds argued that he was not liable to indemnify Union. Union argued that it was not liable to Dukes and Jordan because Bounds was not individually liable and Union was acting as Bounds’s surety.

¶ 5. The Court of Appeals found “that the circuit court correctly held that Bounds was not personally liable.” It thereafter correctly concluded that Union is not liable to Dukes and Jordan, because liability may not be imputed to a surety beyond that imputed to its principal. However, the Court of Appeals then found that “the circuit court erred when it held that Bounds was obligated to indemnify Union.” It reasoned that “[bjecause Bounds cannot be personally liable to Dukes and Jordan, Union likewise cannot be liable to Dukes and Jordan. Consequently, Union has no reason to require indemnification from Bounds.” Union filed a motion for rehearing, which the Court of Appeals denied. It then filed a petition for certiorari with this Court, which we granted. In its petition, Union argued that, while Bounds is not liable to Union for its now nonexistent liability to the plaintiffs, Bounds remains liable for Union’s attorneys’ fees and expenses incurred while defending the litigation, such liability emanating from the bond application’s contractual indemnity obligation. It thus concluded that “the Court of Appeals misapprehended the distinction between Bounds’ [sic] contractual indemnity liability for Union’s attorneys’ fees and expenses and Bounds’ [sic] and Union’s liability vel non to the plaintiffs due to immunity under the MTCA.”

ANALYSIS

¶ 6. The law is clear that, in a lawsuit against a bonding company as surety of a public official, “no liability may be imputed to its surety beyond that of its principal.” Mohundro v. Alcorn County, 675 So.2d 848, 854 (Miss.1996), overruled on other grounds by Little v. Miss. Dep’t of Transp., 129 So.3d 132 (Miss.2013). Thus, because Union’s liability to the plaintiffs is based upon Bounds’s liability to the plaintiffs, Union may only be held liable to the plaintiffs to the extent that Bounds is liable to the plaintiffs. Bounds has no liability to the plaintiffs; therefore, Union has no liability to the plaintiffs. Thus, Bounds’s liability for indemnity to Union for Union’s liability to the plaintiffs is obviously nonexistent. It does not follow, however, that Bounds is relieved of his contractual liability to indemnify Union for its attorneys’ fees and costs incurred in defending the lawsuit. Bounds’s bond application clearly contained a provision in which Bounds agreed to indemnify Union for loss or expense incurred by virtue of Union’s executing Bounds’s bond. “[A] surety is entitled to reimbursement for reasonable and necessary expenses incurred by the surety in good faith in defending itself against a suit on a bond.” Jackson v. Hollowell, 685 F.2d 961, 965 (5th Cir.1982) (citing Nat’l Surety Corp. v. Vandevender, 235 Miss. 277, 108 So.2d 860 (1959)).

¶ 7. However, an indemnity agreement does not represent a “blank check” enabling a surety “to incur any expense and send the bill to” the principal. In re Estate of Taylor, 609 So.2d 390, 399 (Miss.1992). Rather, a trial court must determine if a surety is entitled to indemnification under an indemnity agreement by examining whether 1) it was reasonably necessary for the surety to retain separate counsel, 2) the amount of fees and expenses claimed was reasonable, and 3) the surety acted in good faith toward the principal in incurring those expenses. Perkins v. Thompson, 551 So.2d 204, 210 (Miss.1989) (administratrix bond); In re Estate of Taylor, 609 So.2d at 399 (same); see also Jackson, 685 F.2d at 966 (5th Cir.1982) (public official bonds; applying Mississippi law). The trial court must examine the reasonableness and necessity of fees and expenses in light of the language of the indemnity agreement, specifically analyzing the sort of fees and expenses the principal undertook to indemnify. Taylor, 609 So.2d at 400-01. Such an analysis is a factual issue, appropriate for determination at the trial court level. Perkins, 551 So.2d at 210; Jackson, 685 F.2d at 966. In this case, the trial court made no such factual determination. Therefore, we reverse the Court of Appeals’ finding that Union is not entitled to indemnity from Bounds and remand the issue to the trial court for a determination of whether Union is entitled to indemnity from Bounds for reasonable attorneys’ fees and expenses incurred as a consequence of executing Bounds’s public official bond.

CONCLUSION

¶ 8. The Court of Appeals erred to the extent it found that Bounds was not obligated to indemnify Union for reasonable attorneys’ fees and costs. We therefore affirm in part and reverse in part the judgments of the Court of Appeals and the Newton County Circuit Court and remand the case to the trial court for further proceedings consistent with this opinion.

¶ 9. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR.

      . Only the facts pertinent to the sole issue raised in Union's petition for certiorari will be recited.

      . Dukes and Jordan eventually obtained $25,000 from Roy White.

      . The bond application stated that Bounds agrees to
      at all times indemnify and save [Union] harmless from and against every claim, demand, liability, cost, loss, charge, expense, suit, order, judgment, and adjudication whatsoever, counsel fees payable on demand of [Union], whether actually incurred or not, including fees of attorneys whenever by [Union] deemed necessary, and any and all liability therefor, sustained or incurred by [Union] by reason of having executed or procured the execution of said bonds or obligations....

      . In Taylor, the surety company not only undertook to defend the bond issue, but injected itself into a paternity issue in the underlying case. Taylor, 609 So.2d at 400-01. The indemnity agreement limited indemnity to fees and expenses incurred "by reason of having been surety on [the] bond.” Id. at 401. Thus, the Court found that
      [t]he agreement by its terms limits Surety's indemnity’s rights to those attorneys fees and legal expenses reasonably and necessarily incurred in protecting Surety’s interests. Surety is not, however, under the agreement before us entitled to fees and expenses for helping out on the paternity issue and other matters personal to [the principal], no matter how beneficial that help may have been. The mere fact that Surety’s counsel may have been helpful in resisting the paternity issue does not mean that at the time Surety had substantial exposure, thereby needing protection.

        Id. The Court held that the trial court could order the principal indemnify the surety only to the extent the surety’s interests were at risk, under the terms of the specific agreement at issue. Id.


author: LAMAR, Justice,

text:
    Karmjit S. VIRK d/b/a Gas Plus v. MISSISSIPPI DEPARTMENT OF REVENUE.
    No. 2013-CA-00073-SCT.
    Supreme Court of Mississippi.
    March 6, 2014.

      James G. McGee, Jr., Flowood, attorney for appellant.
    Jon F. Carmer, Jr., James L. Powell, Jackson, attorneys for appellee.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Karmjit Virk appealed an increase in his tax liability to the Mississippi Department of Revenue’s Board of Review. When Virk failed to appear at his Board of Review hearing, his appeal was involuntarily withdrawn. Virk’s appeals to the Board of Tax Appeals and the Hinds County Chancery Court both were dismissed. Finding no error, we affirm the decisions of the Board of Review, the Board of Tax Appeals, and the Hinds County Chancery Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Mississippi Department of Revenue (MDOR) “is the primary agency for collecting tax revenues that support state and local governments in Mississippi.” In 2010, MDOR audited Karmjit Virk (Virk) and assessed him $8,679 in individual income taxes for 2008 and 2009, and $67,983 in sales taxes for August 1, 2007, through December 31, 2010. Two weeks after the assessments were issued, Virk notified MDOR that he was represented by his certified public accountant, Michael Mahoney.

¶ 3. Virk timely appealed the assessments, and his hearing before the Board of Review was scheduled for October 13, 2011., MDOR informed Mahoney of the hearing date by letter dated August 18, 2011. Between August 18, 2011, and October 7, 2011, the parties made no attempt to communicate with each other. On October 7, 2011, Latasha Holt, a MDOR employee, called Mahoney to remind him of Virk’s hearing, and Mahoney informed her that he no longer represented Virk. Holt then called Virk directly. Virk claims that, during this phone call, he asked for his hearing date to be postponed, and that Holt denied his request.

¶ 4. Virk did not attend his hearing on October 13, 2011, nor did he submit his position to the Board of Review “in writing or by electronic transmission.” The Board of Review found that he had withdrawn his appeal involuntarily and noted this finding in its minutes. Virk was informed by letter dated January 12, 2012. Three months later, Virk appealed to the Board of Tax Appeals. MDOR responded by filing a motion to dismiss, alleging that “[Virk’s] appeal was properly treated as involuntarily withdrawn ... and that the assessments that are the basis of the appeal are final and not subject to further review.” The Board of Tax Appeals agreed with MDOR and issued an order granting MDOR’s motion to dismiss.

¶ 5. Virk appealed the Board of Tax Appeals order to the Hinds County Chancery Court, arguing that “the Board of Review’s decision to not grant a continuance and its subsequent involuntary withdrawal of his appeal was arbitrary and capricious ... [and that] the Board of Tax Appeals [’] decision to dismiss his appeal was improper.” MDOR countered that the chancery court did not have jurisdiction to hear the appeal because Virk had failed to provide the required surety bond, and the chancery court was statutorily prohibited by Section 27-77-5(8) of the Mississippi Code from reviewing an involuntarily withdrawn appeal. The chancery court held a hearing on December 4, 2012, that focused on whether Virk had to comply with the surety-bond requirement. On December 12, 2012, the chancery court granted MDOR’s motion to dismiss, finding that “[Section 27-77-5(8) ] is clear. If a tax assessment is involuntarily or voluntarily withdrawn, there shall be no further review of that tax assessment.” Virk timely appealed to this Court, challenging the chancery court’s tax assessment.” Virk timely appealed to this Court, challenging the chancery court’s interpretation of Section 27-77-5 of the Mississippi Code.

STANDARD OF REVIEW

¶ 6. Judicial review of an administrative agency’s decision is limited. Typically, “trial courts and appellate courts will reverse the decision of an administrative agency only if the decision (1) was unsupported by substantial evidence; (2) was arbitrary and capricious; (3) was beyond the power of the administrative agency to make; or (4) violated the complaining party’s statutory or constitutional right.” However, an agency’s interpretation of a governing statute is subject to de novo review as “[t]he ultimate authority and responsibility to interpret the law, including statutes, rests with this Court.” The grant of a motion to interpret the law, including statutes, rests with this Court.” The grant of a motion to dismiss also is subject to de novo review.

LAW AND ANALYSIS

¶7. The issues on appeal are whether Section 27-77-5 of the Mississippi Code prohibits an involuntary withdrawal of a tax appeal from being reviewed, whether Virk was denied due process, and whether the chancery court had jurisdiction to hear Virk’s appeal.

I. Effect of Section 27-77-5

¶ 8. The focus of this appeal is Section 27-77-5 of the Mississippi Code. Section 27-77-5 establishes a two-tier review process for tax appeals. Tier one is the Board of Review, and tier two is the Board of Tax Appeals. All tax appeals begin with the Board of Review and are disposed of in one of three ways: order, voluntary withdrawal, or involuntary withdrawal. The parties dispute whether an involuntary withdrawal at the Board of Review stage can be appealed to the Board of Tax Appeals. The authority of the Board of Tax Appeals and the effect of an involuntary withdrawal are addressed in subsections 4 and 8 of Section 27-77-5, respectively. Subsection 4 states:

Any taxpayer aggrieved by an order of the [Bjoard of [Rjeview affirming a tax assessment, the denial of a refund claim, or the denial of a waiver of tag penalty, and who wishes to contest the order shall, within sixty (60) days from the date of the order of the [Bjoard of [Rje-view being contested, file an appeal to the Board of Tax Appeals.

Subsection 8 states:

At any time after the filing of an appeal to the [Bjoard of [Rjeview or from the [Bjoard of [Rjeview to the Board of Tax Appeals under this section, an appeal can be withdrawn. Such a withdrawal of an appeal may be made voluntarily by the taxpayer or may occur involuntarily as a result of the taxpayer failing to appear at a scheduled hearing, failing to make a urritten submission or electronic transmission in lieu of attendance at a hearing by the date specified or by the hearing date, if no date was specified, or by any other act or failure that the [Bjoard of [Rjeview or the Board of Tax Appeals determines represents a failure on the part of the taxpayer to prosecute his appeal.... If the withdrawal of appeal is involuntary, the administrative appeal body from whom the appeal is being withdrawn shall note on its minutes the involuntary withdrawal of the appeal and the basis for the withdrawal. Once an appeal is withdrawn, whether voluntary or involuntary, the action from which the appeal was taken, whether a tax assessment, a denial of refund claim, a denial of waiver of tax penalty, or an order of the [B]oard of [R]eview, shall become final and not subject to further review by the [B]oard of [R]eview, the Board of Tax Appeals or a court.

¶ 9. If Section 27-77-5 is unambiguous, its plain meaning should be applied but, if it is ambiguous, rules of statutory construction should be used to determine its legislative intent. Virk argues that since Section 27-77-5 “does not expressly bar further review of denial of a continuance and resultant involuntary withdrawal on appeal” the statute is ambiguous and that further review of such decisions “is supported by legislative history, an in pari materia analysis of related statutes, and equity jurisdiction of chancery courts.” MDOR argues that Section 27-77-5 is unambiguous and “makes it clear that the Board of Review’s ‘denial of a continuance and involuntary withdrawal flowing therefrom’ is not a renewable matter.” We agree with MDOR.

¶ 10. Section 27-77-5(8) specifically states that an appeal can be involuntarily withdrawn if a taxpayer fails to attend his hearing and that “[o]nce an appeal is withdrawn, whether voluntary or involuntary, the action from which the appeal was taken ... shall become final and not subject to further review by the [B]oard of [R]eview, the Board of Tax Appeals or a court.” As such, there was no statutory authority to hear Virk’s appeal in the Board of Tax Appeals or the Hinds County Chancery Court. In the words of the chancery court, “[flailing to attend the hearing sealed [Virk’s] fate and made his assessment final.”

¶ 11. Additionally, subsection 8 requires an involuntary withdrawal to be documented in the Board of Review’s minutes, as opposed to an order, and subsection 4 authorizes the Board of Tax Appeals to hear appeals only from Board of Review orders. There was no Board of Review order in this case. We find that Section 27-77-5 is unambiguous and that a finding of involuntary withdrawal is not appealable to the Board of Tax Appeals.

II. Due Process

¶ 12. At its heart, Virk’s appeal is a due-process claim. He argues that a denial of a continuance request can amount to a denial of due process and that, therefore, involuntarily withdrawn appeals should be subject to review. This argument is procedurally barred, as Virk failed to raise it before the chancery court and failed to serve a copy of his appellate brief on the Attorney General. Procedural bar

notwithstanding, this argument also is without merit.

¶ 13. “Generally, due process requires notice and a meaningful opportunity to be heard.” Akins v. Miss. Dep’t of Rev., 70 So.3d 204, 208 (Miss.2011) (citing Vincent v. Griffin, 872 So.2d 676, 678 (Miss.2004)). It is undisputed that Virk received both. Virk received notice when MDOR notified his representative of his hearing date by letter dated August 18, 2011. He also had an opportunity to be heard at his October 13, 2011, hearing but chose not to attend.

¶ 14. Virk does not dispute that he received notice and a hearing or that he failed to attend his hearing. Rather, he contends “that the MDOR arbitrarily and capriciously denied his request for a continuance” and that such a denial constitutes a due-process violation. Virk cites three cases from other jurisdictions to support his argument that the “denial of a requested continuance can constitute an effective denial of due process, even in the context of administrative hearings.” Two of the cases do not support Virk’s argument, and the third case, King v. District of Columbia Water and Sewer Authority, 803 A.2d 966 (D.C.2002), is distinguishable.

¶ 15. In King, an elderly woman in poor health missed her hearing before the District of Columbia Water and Sewer Authority due to inclement weather. She claimed to have called the Water and Sewer Authority the morning of her hearing and sent a letter the next day, requesting a continuance. The Water and Sewer Authority denied her continuance request and she appealed. The District of Columbia Court of Appeals reversed, holding that “a request for a continuance when attendance at a hearing would involve serious risk to ... health should not be denied.” Unlike the petitioner in King, Virk never requested a continuance in writing. Additionally, in King, the petitioner’s reasons for her request were substantiated and uncontested, whereas no evidence was presented to justify Virk’s alleged request.

¶ 16. Virk also argues that Holt did not have authority to deny his continuance request and that his request should have been considered by the Chairman of the Board of Review or the Commissioner, based on Section 35-1-1.01 of the Mississippi Administrative Code. The pertinent part of Section 35-1-1.01 states:

a. A request for a continuance of the hearing will be routinely granted if the request is received within ten (10) days after the notice of the hearing is mailed. If the request for continuance is received beyond ten (10) days from the date the notice of hearing is mailed, then the determination whether to continue the hearing will be made by the Chairman of the Review Board, b. The Department of Revenue will not be responsible for delay in the delivery of mail.

However, Virk’s argument fails because he never requested a continuance. His alleged conversation with Holt does not constitute a “continuance request,” and Virk made no other effort to have his hearing date postponed. In fact, he made no effort to request a continuance, as his conversation with Holt was initiated by her, not him. The chairman cannot be expected to consider requests that are not presented to the Board of Review.

¶ 17. Additionally, even if Virk could not attend his hearing, Section 27-77-5(2) allows a taxpayer to make a request “to submit his position in writing or by electronic transmission in lieu of attendance.” Virk failed to take advantage of this alternative. In light of the foregoing, we find no violation of Virk’s due-process rights.

III. Chancery court’s jurisdiction

¶ 18. Finally, Virk argues that Section 27-77-5 divests the chancery court of equity jurisdiction in violation of the Mississippi Constitution. Like Virk’s due-process argument, this argument is procedurally barred, as Virk failed to raise it before the chancery court and failed to serve a copy of his appellate brief on the Attorney General. Procedural bar notwithstanding, this argument also fails on the merits.

¶ 19. Virk is correct that “chancery courts do have subject matter jurisdiction over appeals from tax assessments” pursuant to the Mississippi Constitution and that jurisdiction cannot be divested by statute. But a chancery court’s appellate jurisdiction is governed by statute, and “a chancery court has no authority to create a right of appeal from an administrative agency in the absence of clear statutory authority.” This issue is without merit.

CONCLUSION

¶ 20. Karmjit Virk challenged two tax assessments issued by the Mississippi Department of Revenue. His appeal was withdrawn involuntarily and the assessments became final because of his failure to appear at the hearing before the Board of Review. Virk’s appeals to the Board of Tax Appeals and the Hinds County Chancery Court were dismissed. Finding no error, we affirm the decisions of the Board of Review, the Board of Tax Appeals, and the Hinds County Chancery Court.

¶ 21. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . http://www.dor.ms.gov/ (last visited March 4, 2014). MDOR is created by Section 27-3-19 of the Mississippi Code. Miss.Code Ann. § 27-3-19 (Rev.2013). Its specific responsibilities and powers are set out in Section 27-3-31. Miss.Code Ann. § 27-3-31 (Rev.2013).

      . Virk owns Gas Plus, a convenience store located in Jackson, Mississippi. The assessments were issued on June 28, 2011.

      . Virk executed a Power of Attorney and Declaration of Representation form with MDOR on July 12, 2011, naming Michael Mahoney, a certified public accountant, as his representative.

      . The Board of Review is created by Section 27-77-3 of the Mississippi Code. Miss.Code Ann. § 27-77-3 (Rev.2010).

      . The Board of Review hears appeals from taxpayers regarding tax assessments, refund denials, and tag penalty waiver denials that are issued by MDOR. Miss.Code Ann. § 27-77-5(1) (Rev.2010).

      . Mahoney actively represented Virk until at least the end of August of 2011, considering that on August 22, 2011, Mahoney asked for and paid for copies of Virk’s August 2007 to 2010 sales tax returns.

      . Virk claims that he could not attend the hearing as scheduled for medical reasons but "admits that he did not specifically describe the medical condition” during his phone conversation with Holt, nor did he make a written request for a continuance.

      . See Miss.Code Ann. § 27-77-5(2) (Rev. 2010):
      the taxpayer or his designated representative shall attend the hearing unless a request is made to, and granted by, the board of review to allow the taxpayer to submit his position in writing or by electronic transmission in lieu of attendance. Failure of the taxpayer or his designated representative to attend a hearing or to submit his position in writing or by electronic transmission by the date specified by the board of review or by the hearing date, if no date was specified, shall constitute a withdrawal of the appeal.

      . See Miss.Code Ann § 27-77-5(8) (Rev.2010) (stating ”[i]f the withdrawal of appeal is involuntary, the administrative appeal body from whom the appeal is being withdrawn shall note on its minutes the involuntary withdrawal of the appeal and the basis for the withdrawal”).

      . The chancery court declined to address Section 27-77-7(3)’s bond requirement, stating that
      [T]his Court shall not go into the details of Virk's appeal, meaning Virk's Motion to Forego Surety Bond Requirement, or the like, because such would be reviewing Virk’s tax assessment. At this point the only option this court has is to dismiss Virk's Petition to this Court because Section 27-77-5(8) allows him no further review or relief.

        See Miss.Code Ann. § 27-77-7(3) (Rev.2010) (stating "[a] petition filed by a taxpayer under subsection (1) of this section that appeals an order of the Board of Tax Appeals affirming a tax assessment shall be accompanied by a surety bond approved by the clerk of the court in a sum half the amount in controversy, conditioned to pay the judgment of the court”).

      . The chancery court declined to address Section 27-77-7(3)'s bond requirement, stating that
      [TJhis Court shall not go into the details of Virk’s appeal, meaning Virk's Motion to Forego Surety Bond Requirement, or the like, because such would be reviewing Virk’s tax assessment. At this point the only option this court has is to dismiss Virk's Petition to this Court because Section 27-77-5(8) allows him no further review or relief.

        See Miss.Code Ann. § 27-77-7(3) (Rev.2010) (stating "[a] petition filed by a taxpayer under subsection (1) of this section that appeals an order of the Board of Tax Appeals affirming a tax assessment shall be accompanied by a surety bond approved by the clerk of the court in a sum half the amount in controversy, conditioned to pay the judgment of the court”).

        .W.C. Fore v. Miss. Dep’t of Revenue, 90 So.3d 572, 577 (Miss.2012).

      . Id. (internal quotations and citations omitted).

      . Id.

      . Id.

      . King v. Bunion, 43 So.3d 361, 363 (Miss.2010).

      . Miss.Code Ann. § 27-77-5 (Rev.2010).

      . Miss.Code Ann. § 27-77-5(1-3). (Rev. 2010).

      . Miss.Code Ann. § 27-77-5(4-7) (Rev. 2010).

      . Miss.Code Ann. § 27-77-5(4) (Rev.2010).

      . Miss.Code Ann. § 27-77-5(8) (Rev.2010) (emphasis added).

      . Buffington v. Miss. State Tax Comm'n, 43 So.3d 450, 454 (Miss.2010).

      . See also Miss.Code Ann. § 27-77-5(2) (stating "[fjailure of the taxpayer or his designated representative to attend a hearing or to submit his position in writing or by electronic transmission by the date specified by the [B]oard of [R]eview or by the hearing date, if no date was specified, shall constitute a withdrawal of the appeal”).

      . Miss.Code Ann. § 27-77-5(8) (Rev.2010).

      . Miss.Code Ann. § 27-77-5(4, 8) (Rev. 2010).

      . See In re D.O., 798 So.2d 417, 423 (Miss.2001) (stating "[t]hat although an issue is constitutional in nature, it is not absolved from the general rule that objections must be raised at the trial level”).

      . See Miss. R.App. P. 44(a) (stating "[i]f the validity of any statute ... is raised in the Supreme Court or the Court of Appeals, and the state, municipal corporation, or governmental body which enacted or promulgated it is not a party to the proceeding, the party raising such question shall serve a copy of its brief, which shall clearly set out the question raised, on the Attorney General, the city attorney, or other chief legal officer of the governmental body involved”) and In re D.O., 798 So.2d at 423.

      . See Miss.Code Ann. § 27-77-1 (o) (Rev. 2010).

      . See State v. Crank, 666 S.W.2d 91 (Tex.1984) (holding administrative board’s denial of a petitioner's continuance request was not an abuse of discretion when the petitioner already had received two continuances, had been notified of the hearing a month in advance, and had waited to fire his attorney until the morning of the hearing), and Ungar v. Sarafite, 376 U.S. 575, 588-91, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964) (holding the denial of a petitioner’s continuance request did not deny the petitioner due process when the petitioner was given five days’ notice of the hearing, the issues were limited and clear-cut, and the petitioner did not request the continuance until the day of the hearing).

      . King, 803 A.2d at 967.

      . Id.

      . Id. at 967-68.

      . Id. at 969 (quoting State Bd. of Med. Educ. & Licensure v. Williams, 172 Pa.Super. 448, 94 A.2d 61, 62 (1953)) (internal quotations omitted).

      . Miss. Admin. Code 35-1-1.01 (2013).

      . Miss.Code Ann. § 27-77-5(2) (Rev.2010).

      . See In re D.O., 798 So.2d at 423.

      . See Miss. R. App. P. 44(a) and In re D.O., 798 So.2d at 423.

        .Khurana v. Miss. Dep't of Revenue, 85 So.3d 851, 855 (Miss.2012).

        .Khurana, 85 So.3d at 855 (Miss.2012).


author: DICKINSON, Presiding Justice,

text:
    Exso CHANDLER a/k/a Exo Chandler, Jr. v. MISSISSIPPI DEPARTMENT OF CORRECTIONS and Mississippi Parole Board.
    No. 2012-CT-00597-SCT.
    Supreme Court of Mississippi.
    March 6, 2014.
    Exso Chandler, appellant, pro se.
    Office of the Attorney General by Anthony L. Schmidt, Jr., attorney for appel-lee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Exso Chandler pleaded guilty to selling cocaine. He later filed a motion in the Sunflower County Circuit Court, challenging the denial of his parole. The Sunflower County Circuit Court deemed Chandler ineligible for parole, which the Court of Appeals affirmed. But, because Scott County — where Chandler pleaded guilty and received his sentence — had exclusive, original jurisdiction to hear and determine his petition for post-conviction relief, we vacate the order and reverse the decision of the Court of Appeals without prejudice to Chandler’s right to file his motion in the proper court.

¶ 2. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT IS VACATED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.