author: LAMAR, Justice, KITCHENS, Justice,

text:
    Rickey WILKERSON and Phenix Transportation, Inc. v. Ronnie GOSS and Pamela Goss.
    No. 2011-IA-01686-SCT.
    Supreme Court of Mississippi.
    May 16, 2013.

      James F. Noble, III, Ridgeland, Ross R. Barnett, Jr., Jackson, attorneys for appellants.
    S. Wayne Easterling, Hattiesburg, John Raymond Tullos, Raleigh, attorneys for appellees.
   LAMAR, Justice,

for the Court:

¶ 1. Ronnie and Pamela Goss filed suit against Rickey Wilkerson and Phenix Transportation, Inc. (“Defendants”), in the Chancery Court of Smith County, Mississippi, alleging that “Rickey Wilkerson fraudulently induced the plaintiffs to settle their workers’ compensation claims and to release all claims against Phenix Transportation, Inc.” in return for $65,000. The Gosses further alleged that Wilkerson knew, or should have known, that the checks would not clear due to insufficient funds. The Gosses did not allege any specific facts in their complaint nor have they presented any cognizable evidence to establish venue in Smith County.

¶ 2. Defendants timely answered the complaint, including in their answer a motion to dismiss or, alternatively, to transfer jurisdiction and venue. Defendants argued that the Gosses’ claims were legal in nature and were improperly brought in chancery court. Defendants also argued that venue was not proper in Smith County because Wilkerson resides in Scott County and Phenix has its principal place of business in Scott County. Defendants further argued that venue was not proper because no substantial act or omission or substantial event that allegedly caused the injury occurred in Smith County. The Gosses never filed a response to Defendants’ motion.

¶ 3. The chancery court heard oral argument on Defendants’ motion. No transcript exists of this hearing. The chancery court found that the settlement checks and other documents were sent to the Gosses in Smith County, and the Gosses attempted to negotiate the checks in Smith County. Therefore, the chancery court concluded that venue was proper in Smith County because the “cause of action occurred/accrued in Smith County, Mississippi.” The chancery court also found that the Gosses’ claims were “more legal than equitable in nature” and transferred the case to the Circuit Court of Smith County.

¶ 4. After the chancellor entered his order denying Defendants’ motion to transfer venue, Defendants sought permission to file an interlocutory appeal, which we granted. On appeal, Defendants argue that the chancery court erred in denying their motion to transfer venue because (1) the chancellor relied upon facts to establish venue that the Gosses did not plead in their complaint; (2) the chancellor relied upon an earlier version of Mississippi’s venue statute; and (3) venue is proper only in Scott County, as Defendants are residents of and have their principal place of business in Scott County. The Gosses argue on appeal that the chancellor was correct in finding that venue is proper in Smith County, because that is where they received the settlement checks.

DISCUSSION

¶ 5. 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.”

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

(l)(a)(i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the. county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

The Mississippi Legislature amended Section 11-11-3 in 2004, “to set venue where substantial acts or events causing the injury occurred, not where the cause of action accrued, as was permissible under the former statute.” There is no dispute that Wilkerson lives in Scott County and that Phenix’s principal place of business is in Scott County; therefore, venue is proper in Smith County only if that county is “where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.”

¶ 7. The Gosses’ complaint was filed in May 2010; therefore, the amended version of the statute clearly governs this case. However, the chancery court denied Defendants’ motion to transfer venue because the “cause of action occurred/accrued in Smith County.” The chancery court dearly erred to the extent it based its decision on where the cause of action accrued, which was permissible only under Mississippi’s former venue statute. As the chancery court’s order was equally based on its determination that the Gosses’ cause of action occurred in Smith County, we discuss whether the Gosses have shown that venue is proper in Smith County under the requirements of the current statute.

¶ 8. Mississippi Code Section 11-11-3 is a plain and unambiguous statute that should be applied according to its plain meaning. “Of 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.” To determine if a plaintiffs choice of venue is proper, “[i]t is necessary to begin with the ‘well-pleaded allegations of the complaint[,]’ ” which may be supplemented by affidavits or “any ‘other evidence in cognizable form.’ ” Our venue statute “lays out four venue options from which plaintiffs can choose when filing a lawsuit.” While the first two options are based upon where the defendant resides or, if defendant is a corporation, where it has a principal place of business, the second two are based upon where the acts or omissions giving rise to the plaintiffs claim occurred. Thus, in addition to where a defendant resides or has a principal place of business, the Gosses could have filed suit “where a substantial alleged act or omission occurred” or “where a substantial event that caused the injury occurred.”

¶ 9. Furthermore, “even if an act or omission did not cause the injury, it can nevertheless establish venue if it is both substantial and alleged by the plaintiff.” But, in this case, the Gosses did not allege in their complaint and the record does not reveal any affidavits or any other cognizable, credible evidence that would support the chancery court’s finding that the Gosses received the checks in Smith County or that the checks were dishonored in Smith County. Therefore, we find that the chancery court erred in relying upon facts to support his ruling which, even if taken as true, were neither alleged in the Gosses’ complaint nor supported by cognizable evidence.

¶ 10. Notwithstanding the fact that there is no record support for the allegations upon which the chancellor based his order, we find that the allegations would not support a finding of venue in that county even if properly supported by cognizable, credible evidence. We recently addressed venue in a case involving facts similar to the instant action. In Myers, the plaintiff, a physician located in Holmes County, argued that his insurer, a Madison County business, had violated a statutory duty to renew his insurance. The plaintiff filed an action against his insurer in the Chancery Court of Holmes County, and the insurer moved to transfer venue to Madison County.

¶ 11. The chancellor found that venue was proper in Holmes County in part because the plaintiff had completed his insurance application in Holmes County, the premiums were mailed from Holmes County, there were communications between the plaintiff and the insurer when the plaintiff was in Holmes County, the plaintiff had mailed letters to and received letters from the insurer in Holmes County, and the insurer had mailed the letter advising his coverage would not be renewed to the plaintiff in Holmes County.

1112. On interlocutory appeal, we noted that the plaintiffs basis for his cause of action was the insurer’s decision not to renew his insurance. We found little relevance in the plaintiffs claims that he had completed an application for insurance in Holmes County or had mailed letters from that county, concluding that the plaintiff “is suing [his insurer] based on the company’s own acts or omissions, all of which occurred in Madison County.” We further found that “the location of the mailbox where [the plaintiff] received his policy, non-renewal notice, or other communication from [his insurer] is likewise immaterial.” We concluded that the plaintiffs “receipt of information in Holmes County is a passive function of his presence there and not a substantial event causing the damages he claims.”

¶ 13. We additionally found that, even though the plaintiff claimed he was damaged when he “experienced” being uninsured in Holmes County, “this could be the result of substantial acts, omissions, or injury-causing events which occurred in Madison County alone.” We explained that “the venue statute does not allow the piling of acts or events to establish venue. It specifically requires a substantial alleged act, omission, or injuiy-causing event to have happened in a particular jurisdiction in order for venue to be proper there.” We ultimately determined that venue was not proper in Holmes County.

¶ 14. In this case, the Gosses’ basis for their lawsuit is the alleged fraudulent inducement to settle their claims. They do not argue that fraudulent acts occurred in Smith County, that they entered into the settlement agreement in Smith County, or that either defendant ever committed a fraudulent act or omission, or ever was physically present, in Smith County. Rather, they argue that they received fraudulent documents in Smith County and that they experienced having a check dishonored in Smith County. We find that, just as in Myers, the Gosses’ mere receipt of the documents in Smith County was a “passive function” of their presence there and not a substantial event causing the damages they claim.

CONCLUSION

¶ 15. For the forgoing reasons, we find that the Chancery Court of Smith County erred in its interpretation of Mississippi Code Section 11-11-3 and in denying Defendants’ motion to transfer venue. We reverse and remand this case to chancery court for entry of an order transferring the case to the Circuit Court of Scott County.

¶ 16. REVERSED AND REMANDED.

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

KITCHENS, Justice,

dissenting:

¶ 17. While the only proper venue may be Scott County, this decision cannot be made on the record before us, and I respectfully disagree with the analysis by which the majority opinion reaches this conclusion. In reversing the trial court and ordering a transfer of venue to the Scott County Circuit Court, my learned colleagues in the majority disregard the defendants’ petition for interlocutory appeal and the attached documents, finding that they are not part of the record. Moreover, I respectfully disagree with the majority’s interpretation of the law governing motions to transfer venue. Notwithstanding my disagreements with the analysis, this issue is premature without a determination of whether subject matter jurisdiction and venue are governed by the Mississippi Workers’ Compensation Act. Thus, I would remand the case for further proceedings to consider these statutory provisions before applying the general venue statute, Section 11-11-3 of the Mississippi Code. Should it be necessary for the trial court to apply Section 11-11-13, the court should apply the current version of the statute in light of all the relevant facts and allegations, including the defendants’ contention that venue also may be proper in Hinds County. For these reasons, I respectfully dissent.

Jurisdiction and the Workers’ Compensation Act

¶ 18. “It is the first and one of the most important of all the duties of courts to see to it, before proceeding in any case, that the court has jurisdiction both of the subject matter and of the parties.” Broom v. Bd. of Supervisors of Jefferson Davis County, 171 Miss. 586, 158 So. 344, 345 (1934). Courts are not relieved of this duty if the parties fail to raise the issue; and like trial courts, we are bound by duty to decide a question of jurisdiction, even if we must raise the issue sua sponte. Common Cause of Miss. v. Smith, 548 So.2d 412, 414 (Miss.1989); Waits v. Black Bayou Drainage District, 186 Miss. 270, 185 So. 577, 578 (1939). This well-established, nondelegable duty is no different when a case is before us on interlocutory appeal and the parties have failed to raise any jurisdictional error. See Miss. Mun. Liability Plan v. Jordan, 863 So.2d 934, 941 (“While we normally limit our review to specific issues presented by the parties, that limitation is one of expedition and not jurisdiction.... Interlocutory appeals are no different.”)

¶ 19. A challenge to subject matter jurisdiction may be facial or factual. Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1220-22 (Miss.2005). A facial attack challenges the court’s jurisdiction as a matter of law, and the allegations in the complaint are taken as true. Id. at 1220-21. The court looks to the face of the complaint to ascertain the nature of the controversy and the relief sought. RAS Family Partners, LP v. Onnam Biloxi, LLC, 968 So.2d 926, 928 (Miss.2007). Whatever the particular language employed by the plaintiffs, the nature of the case is determined by the substance of the claim and not the form. Trustmark Nat’l Bank v. Johnson, 865 So.2d 1148, 1151 (Miss.2004). A factual attack, on the other hand, goes beyond the face of the complaint and requires resolution of a disputed fact, for example, when there is a question regarding diversity jurisdiction in federal court. Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1221 n. 4 (Miss.2005); 28 U.S.C. § 1332. When there is a factual attack on jurisdiction, the plaintiff must prove jurisdiction by a preponderance of the evidence. Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 822 (Miss.2009). This case potentially could fall under either category; but that is a matter to be addressed on remand.

¶ 20. As noted in the majority opinion, the plaintiffs alleged in their complaint that they were fraudulently induced to settle their workers’ compensation claims, contending that Wilkerson knew, or should have known, that the settlement checks would be issued from an account that lacked sufficient funds. The plaintiffs prayed for actual damages in the amount of the settlements, punitive damages, and general relief. From the documents attached to the plaintiffs’ petition for interlocutory appeal, we learn that the damages claimed by Pamela Goss were $15,200 more than the compromise settlement approved by the Commission and that this additional amount represented a settlement for a non-workers’ compensation claim. The nature of the claim underlying the settlement is unknown. The majority correctly notes that Pamela’s additional settlement would not be governed by our workers’ compensation statutes. Maj. Op. n. 4. Yet, this would not give a court jurisdiction over this entire case. The plaintiffs cannot manipulate jurisdiction by adding Pamela’s non-workers’ compensation claims to the complaint, and any claim related to this settlement is a separate matter. The complaint gave no indication that the settlement amounts were for anything other than workers’ compensation claims. This is but another issue that should be developed on remand.

¶21. Based on the allegations in the complaint and the limited record before us, the nature of the claim is far from clear. The plaintiffs alleged that they were fraudulently induced into settling, but the actual damages sought via the complaint do not exceed the settlement amounts. The complaint did not allege that the plaintiffs suffered any damages beyond the sum of the dishonored checks; thus there appears to be no basis for punitive damages. Accordingly, any and all issues regarding the workers’ compensation settlements would be governed by the provisions of the Workers’ Compensation Act.

¶ 22. Considering that the alleged compensatory damages do not exceed the amount of the award, the relief sought by the plaintiffs is susceptible to two interpretations. If the plaintiffs’ ultimate goal was to set aside the settlement, the Commission has the power to reopen a case under limited circumstances, for example, when compromise settlements are induced by fraud, as alleged here. Miss.Code Ann. § 71-3-53 (Rev.2004); Bailey Lumber Co. v. Mason, 401 So.2d 696 (Miss.1981); Dixon v. Green, 240 Miss. 204, 127 So.2d 662 (Miss.1961). The parties having submitted to the Commission’s jurisdiction, the Commission is the only body with the authority to set aside or otherwise disturb the award, as the Commission has continuing jurisdiction over compromise settlements. Miss.Code Ann. § 71-3-53.

¶ 23. On the other hand, it is reasonable to interpret the complaint as an attempt to enforce the settlement. If an employer defaults on a payment of workers’ compensation, Mississippi Code Section 71-3-49 provides a remedy by means of an entry of judgment in circuit court. In that ease, a circuit court would have limited jurisdiction, and Section 71-3^19 would control venue. That section requires that the interested party file a certified copy of the Commission’s order with the circuit clerk of the county “in which the injury occurred or in the county in which the employer has his principal place of business.” Id. The record reveals that the Gosses were injured in California; thus, Scott County, as the employer’s principal place of business, would be the only proper venue. Of course, to invoke this statute, the employer’s payment must be thirty days in default, and the record supports the defendants’ contention that the plaintiffs’ complaint was filed before thirty days had passed. This presents yet another issue to be considered on remand.

¶ 24. The majority says, in a footnote, that the Gosses’ claims are “clearly” excepted from the Workers’ Compensation Act because the complaint alleged tortious acts occurring after the workplace injury. Maj. Op. n. 4. Undoubtedly, this Court has held that certain claims are not barred by the exclusivity of the available remedies under the Workers’ Compensation Act. Miller v. McRae’s, Inc., 444 So.2d 368, 372 (Miss.1984). However, the type of claims alleged in those cases cited by the majority are for intentional tortious conduct causing damages that are beyond the Commission’s power to award. For example, Mississippi Power & Light Co. v. Cook, 832 So.2d 474 (Miss.2002), and Southern Farm Bureau Casualty Insurance Co. v. Holland, 469 So.2d 65 (Miss.1984), involved claims for bad-faith refusal to pay legitimate claims. In both cases, the alleged refusals to pay either delayed the compromise settlements or induced the plaintiff to settle for less than his or her claim was worth. As a result, the plaintiffs incurred actual damages beyond the amount of the final workers’ compensation award, damages which the Commission did not have the authority to address. Cook, 832 So.2d 474 (action in tort permissible when injuries allegedly caused by insurer’s bad-faith handling of employee’s claim were not compensable under the Workers’ Compensation Act); Holland, 469 So.2d 55 (action in tort permissible when insurance company’s intentional and bad-faith refusal to pay allegedly forced employee to agree to inadequate settlement). Miller, 444 So.2d 368, involved a claim against the employer for false imprisonment, a tortious act for which the Commission could not grant relief. In McCain v. Northwestern National Insurance Company, 484 So.2d 1001, 1002 (Miss.1986), this Court held that an employee’s claim against his employer’s insurer for intentional and bad-faith breach of a settlement contract was sufficient to survive a motion to dismiss for failure to state a claim.

¶ 25. Lastly, in Peaster v. David New Drilling Co., Inc., 642 So.2d 344, 346 (Miss.1994), the employee filed an action seeking damages based on the employer’s alleged failure to repair brakes on tractors and trailers operated by employees. On appeal, this Court held that the claim was barred because the workplace injury was a direct result of the alleged conduct, and because the employer’s actions were, at most, grossly negligent and not intentional. Id. at 346. As in Peaster, the defendants in the present case also argued before the trial court that the conduct alleged in the complaint was merely negligent and not the result of an intentional act.

¶ 26. In sum, the Workers’ Compensation Act does not bar an employee from pursuing a common law remedy for an injury caused by an intentional act that occurred after the workplace injury and when the Commission lacks the authority to remedy the alleged wrong. Cook, 832 So.2d at 479 (citing Peaster, 642 So.2d 344 at 348). While the Gosses alleged intentional, tortious conduct, ie., fraudulent inducement, the particular language used to describe the defendants’ conduct is not determinative. The nature of the case is determined by the substance of the claim and not the form. Trustmark, 865 So.2d at 1151. Because the complaint does not assert that any injury was caused by the defendants’ alleged tortious conduct, I cannot agree with the majority’s conclusion that the plaintiffs clearly allege an independent tort that is excepted from the exclusivity of the Workers’ Compensation Act. The true nature of the plaintiffs’ claim is uncertain, and the trial court should address the defendants’ jurisdictional arguments and determine whether the Workers’ Compensation Act is the only avenue for relief.

Venue under Section 11-11-3

1127. To be clear, I fully agree that, as a question of law, venue is not proper in a county simply because that county is where the plaintiffs received certain documents related to a fraudulently induced agreement or because the plaintiffs learned that they had been defrauded while they were, present in that county. See e.g., Laurel Ford Lincohv-Mercury, Inc. v. Blakeney, 81 So.3d 1123 .(Miss. 2012). However, I simply cannot speculate on the application of our general venue statute without any certainty regarding the nature of the injury and the relief sought. The plaintiffs’ choice of venue may be disregarded “in the end,” but we are not yet there. Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155-56 (Miss. 1992).

¶ 28. Finding that the plaintiffs’ claims are sufficiently clear to determine that the general venue statute applies, the majority provides two alternate analyses for its disposition: (1) that the plaintiffs neither pled nor proved facts to support their choice of venue; or (2) assuming those facts were pled and/or proved, they do not support Smith County as a proper venue under Section 11-11-13. Regarding the first line of reasoning, I disagree with the majority’s finding that the chancellor abused his discretion by basing his findings of fact on unpled allegations that were not supported by “cognizable, credible evidence.” A non-moving plaintiff is under no obligation to provide “cognizable, credible evidence” for its choice of venue to defend against a pretrial motion when the defense has provided this evidence, and the only matter before the trial court is the application of a statute. When this Court has applied the concept of “cognizable evidence” to venue transfers, it is in cases involving motions to transfer for cause. For example, certain evidentiary burdens are placed on defendants moving to transfer venue for prejudice or for fraudulent joinder of another defendant. See Miss.Code Ann. § 11 — 11— 15 (procedure for motions to transfer venue because of prejudice or undue influence that would impair movant’s right to a fair and impartial trial); Park on Lakeland Drive, Inc. v. Spence, 941 So.2d 203, 206-08 (Miss.2006) (transfer of venue based on fraudulent joinder of defendant warranted when plaintiff failed to assert a reasonable claim of liability against resident defendant).

¶ 29. Curiously, the majority states that the record does not contain “evidence that would support the chancery court’s finding that the Gosses received the checks . in Smith County.” Maj. Op. 9. My review of the record indicates otherwise. Attached to the defendants’ petition for interlocutory appeal are briefs and exhibits from the parties to the trial court. These documents are specifically referenced in .the trial court’s order denying transfer. In these documents, the parties allege and offer proof of various matters, but most importantly, the defendants affirmatively state that they mailed the settlement checks and release documents to the plaintiffs’ attorney in Smith County. In fact, the defendants themselves provided the trial court a copy of the cover letter showing that the documents were mailed to the city of Raleigh in Smith County, Mississippi. The plaintiffs’ submitting the same documents would have served no purpose.

¶ 30. As for where the checks were dishonored, the defendants’ petition for interlocutory appeal acknowledged the plaintiffs’ argument at the hearing that the checks were presented to a bank in Smith County. The hearing was not transcribed, but there is no reason to question that the argument was made. In addition, the defendants’ brief to the trial court stated that the plaintiffs “appeared at a Regions Bank to cash [the checks] and were informed at the time that Phenix’s account had non-sufficient funds.” While the parties seemingly dispute the location of the particular branch bank to which the checks were presented, it cannot be said that this allegation does not appear in the record.

¶ 81. The majority finds that anything not “filed in the trial court” that was submitted to this Court with the defendants’ petition for interlocutory appeal cannot be considered part of the record and cannot be considered. Maj. Op. n. 14 (quoting M.R.A.P. 10(a)). However, Rule 10(a) is not a limitation on the contents of the record; rather, it merely sets forth required contents. As recognized by Rule 10 and the comment, not all papers relevant to an issue on appeal are filed with the trial court. For example, Rule 10(b)(8) lists “matters excluded absent designation,” and the comment states, “[bjecause counsel customarily do not file trial court briefs with the clerk, briefs are not included in the (b)(3) list. Briefs do not normally belong in a record on appeal, unless necessary to show that an issue was presented to the trial court.” In this case, briefs and supporting exhibits were given to the trial judge, and these documents were filed with this Court as attachments to the defendants’ petition for interlocutory appeal. It seems unreasonable to consider these documents for purposes of granting the petition for interlocutory appeal, yet ignore their existence when deciding the merits of the issue before us.

¶ 32. The majority opinion faults the chancellor for finding facts based on arguments that were not transcribed and on documents that did not pass through the court clerk. This position conflicts with the well-established rule that “[i]t must be presumed that the rulings of the trial court were correct, and such presumption will prevail, unless the actual record supports the contrary view.” Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). Moreover, the defendants have the duty to ensure “that the record contain[s] all data essential to an understanding and presentation of matters relied upon for reversal on appeal.” Pratt v. Sessums, 989 So.2d 308, 309-10 (Miss.2008) (quoting Shelton, 279 So.2d at 644). Long ago we applied this rule to a venue dispute on appeal:

If any default attaches to the failure of the record herein to set forth the evidence on which the change of venue was granted, it must be attributed to the appellant, for the appellee was not concerned therewith, as he, of course, is satisfied with the order entered thereon. Moreover, the evidence not appearing in the record, we must assume that it supports the allegations of the petition.

Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888, 891 (Miss.1922).

¶ 33. As for the majority’s second line of reasoning, the majority notes that the plaintiffs did not specify where they received the settlement checks and where the checks were dishonored. The majority cites Medical Assurance Company of Mississippi v. Myers, 956 So.2d 213, 218 (Miss.2007); but I read that case to say that venue could not be established on acts, omissions, or events not alleged in the complaint, not that a complaint must allege where such acts, omissions, or events took place. Id. (“Dr. Myers’s complaint does not allege that his decision not to give [the defendant’s] risk management team full access to his practice, including his practice in Holmes County, contributed to his claim. Thus, that fact — even if true — does not meet the ‘alleged’ portion of the test.”).

¶ 34. In the present case, the complaint alleged that the plaintiffs were fraudulently induced into settling a case when the defendants knew the settlement checks would be dishonored. Yet, the plaintiffs were not required to justify their choice of venue by affirmatively pleading where every alleged act, omission, or event occurred. See e.g., M.R.C.P. 8(a) (A complaint shall contain “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.”); M.R.C.P. App. A Forms 2-21 (providing suggested forms for complaints, none of which includes a specific averment for venue). See also Estate of Stevens v. Wetzel, 762 So.2d 293, 295 (Miss.2000) (noting that under Rule 8, “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief which is sought”) (citation omitted)). Indeed, before this Court adopted Rule 8 of the Mississippi Rules of Civil Procedure, which abolished various technical requirements of pleadings, we recognized that “[vjenue need not be stated in the body of the declaration.” Hayes Produce Co. v. Taylor, 213 Miss. 217, 219, 56 So.2d 503, 504 (1952) (citing Miss.Code § 1465 (1942)).

¶ 35. Rule 9(f) is the only rule of civil procedure requiring a complaint to allege a particular place, but this rule is limited to those cases where time and place are material to the sufficiency of a pleading. M.R.C.P. 9(f) (“For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.”) For example, the location of the alleged harm is material in cases involving motions to sever multiple plaintiffs under Rule 20 of the Mississippi Rules of Civil Procedure. See Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493, 495 (Miss.2004) (to defend a motion to sever in a mass-tort asbestos litigation, plaintiffs are required to provide “the name of the defendant or defendants against whom each plaintiff makes a claim, and the time period and location of exposure”). Place is also material when the cause of action is based on fraud, as fraud must be pled with particularity. M.R.C.P. 9(b); Allen v. Mac Tools, Inc., 671 So.2d 636, 642 (Miss.1996) (“The circumstances of the alleged fraud such as the time, place and contents of any false representations or conduct must be stated.”) (quoting Brabham v. Brabham, 483 So.2d 341, 342 (Miss.1986)). While this case involves allegations of fraud, the majority does not address, and the defendants have not argued that the complaint for fraudulent inducement failed to plead the alleged fraud with sufficient particularity.

¶ 36. Finally, the majority finds that Scott County is the only proper venue, ignoring the defendants’ concession that, because the settlements were approved by the Commission in Jackson, Hinds County, Mississippi, venue also would be proper in the First Judicial District of Hinds County. Rule 82 of the Mississippi Rules of Civil Procedure is simple and clear: “The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.” M.R.C.P. 82(d). Because the plaintiffs have a right to select among the permissible venues, Hedgepeth v. Johnson, 975 So.2d 235, 238 (Miss.2008), the plaintiffs should have the opportunity to opt for transfer to Hinds County, if it is found to be a permissible venue. As for evidentiary support in the record, we have the Commission’s orders approving the settlements signed by two commissioners, the Gosses’ attorney, and Phenix’s attorney, and duly attested by the secretary of the Workers’ Compensation Commission. Even if we did not have these orders, this Court can take judicial notice that the Worker’s Compensation Commission is located in Jackson, Mississippi, Hinds County, and that it was the Commission which approved the settlement, oversaw the proceedings leading up to the settlement, and to which the plaintiffs had submitted their claims. See M.R.E. 201. On remand, the trial court should consider all appropriate venues, rather than defaulting to the defendants’ preferred choice.

Conclusion

¶ 37. “[A]ll courts must be constantly aware of questions of their jurisdiction to proceed and must be prepared to decide a question pertaining to jurisdiction at any time, even if the court must raise the issue on its own motion.” Dunaway v. Duna-way, 749 So.2d 1112, 1120 (Miss.Ct.App. 1999) (citing Waits, 185 So. at 578). Based on the record before us, it is questionable whether a court has subject matter jurisdiction over the plaintiffs’ claims; and even if jurisdiction is proper, the next question is whether venue is governed by the Workers’ Compensation Act, specifically Mississippi Code Section 71-3-49. Unless and until it is these questions are answered, application of the general venue statute, Section 11-11-3, is premature. For these reasons, I respectfully dissent and would remand the case with instructions to address these preliminary issues before considering the current general venue statute’s application to this cause of action.

KING, J., JOINS THIS OPINION.

      . The parties have not appealed the chancery court’s decision that the Gosses' claims are more legal than equitable in nature.

      . Although Defendants alternatively had moved the chancellor to dismiss the Gosses' claims, the chancellor did not address the motion to dismiss in the order appealed from, and the Defendants did not petition for interlocutory appeal on any issue other than venue.

      . Laurel Ford Lincoln-Mercury, Inc. v. Blake-ney, 81 So.3d 1123, 1125 (Miss.2012) (citations omitted).

      . Miss.Code Ann. § 11 — 11—3(l)(a)(i) (Rev. 2004) (emphasis added). The dissent would find that a discussion of venue under our general venue statute is premature without a discussion of whether venue is controlled by our Workers’ Compensation Act ("the Act”). Dis. Op. at ¶ 17. We disagree. It is well-settled that claims "based on tortious conduct subsequent to the work place injury,” such as the Gosses’ claim for fraudulent inducement to settle Ronnie Goss’s claim, fall within "recognized exceptions” to the exclusivity of the Act. Mississippi Power & Light Co. v. Cook, 832 So.2d 474, 479 (Miss.2002) (quoting Peaster v. David New Drilling Co., 642 So.2d 344, 348 (Miss. 1994)). This is because ”[t]he independent tort is not compensable under our [Act] and to extend immunity to compensation carriers for separate injury to workers goes far beyond the intent of the [A]ct.” Southern Farm Bureau Cas. Ins. Co. v. Holland, 469 So.2d 55, 59 (Miss.1984). See also McCain v. Northwestern Nat'l Ins., 484 So.2d 1001 (Miss.1986); Millerv. McRae's, Inc., 444 So.2d 368, 371 (Miss.1984). Furthermore, the Gosses also allege that they were fraudulently induced to settle Pamela Goss’s claim, which is not compensation related and clearly is not within the exclusivity provision of the Act. Because the Gosses' claims are based on an intentional tort that is an exception to the exclusivity of the Act, we find that the chancery court properly applied the general venue statute in this case.

      . Medical Assurance Co. of Mississippi v. Myers, 956 So.2d 213, 217 (Miss.2007) (emphasis in original).

      . Miss.Code Ann. § 11-11 — 3(l)(a)(i) (emphasis added).

      . Hedgepeth v. Johnson, 975 So.2d 235, 238 (Miss.2008).

      . Id. (citations omitted).

      . Park on Lakeland Drive, Inc. v. Spence, 941 So.2d 203, 207 (quoting Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss. 1992)). To reiterate, we begin with the pleaded allegations of the complaint, which may be supplemented by affidavits or other cognizable evidence. Therefore, a plaintiff may plead facts to support his choice of forum in his complaint or present other cognizable evidence for the court to consider — we do not hold that a plaintiff must do both. Furthermore, it is well-settled that a plaintiff's choice of venue will be sustained unless there is no credible evidence supporting that choice. A defendant seeking to transfer venue is not going to produce evidence to support the plaintiff’s choice. Therefore, if the plaintiff wishes to defeat a motion to transfer venue, it follows that he or she should be prepared to present some credible evidence supporting his or her choice of forum.

      . Hedgepeth, 975 So.2d at 238.

      . Id.

      . Id.

      . Myers, 956 So.2d at 218 (emphasis in original).

      . The dissent would rely on documents presented to this Court in Defendants’ petition for interlocutory appeal and on statements allegedly made at the hearing, for which we have no record. Dis. Op. at ¶¶ 27-29. However, these documents were not filed in the trial court and the hearing was not transcribed; therefore, they are not part of the record on appeal. See Miss. R.App. P. 10(a) ("the record shall consist of designated papers and exhibits filed in the trial court, the transcript of proceedings, if any, and in all cases a certified copy of the docket entries prepared by the clerk of the trial court”). On appeal, we are limited to a review of the trial court record, and for good reason. To allow parties to introduce documents and facts at the appellate level, through petitions for interlocutory appeal or otherwise, without making a record at the trial-court level would no doubt result in parties attempting to slip in new evidence through the back door, and would needlessly complicate the appellate process. Furthermore, our rules provide methods for parties to supplement the record when no transcript is available and to correct or modify the record; however, these steps were not taken in this case. See Miss. R.App. P. 10(c), (e). Because the documents attached to the petition for interlocutory appeal were not made part of the record below, and no statement in lieu of a transcript from the hearing was filed with the trial court in accordance with Miss. R.App. P. 10(c), we cannot rely on the documents or statements allegedly made at the hearing.

      . Myers, 956 So.2d at 218.

      . Id. at 214.

      . Id. at 215.

      . Id. at 218.

      . Id. at 219.

      . Id.

      . Id.

      . Id.

      . Id. (emphasis in original).

      . Id.See also Hedgepeth v. Johnson, 975 So.2d 235, 239 (Miss.2008).

      . Myers, 956 So.2d at 220.

      . The dissent finds that venue is proper in either Scott or Hinds County and would remand this case for the Gosses to select from the two permissible venues. Dis. Op. at ¶ 34. It is true that a plaintiff who files a case in an improper venue shall have the right to choose between permissible venues if the action could have properly been filed in more than one court. Miss. R. Civ. P. 82(d). However, in this case, the Gosses failed to make any allegations and the record does not contain any cognizable evidence regarding where the alleged fraudulent settlement negotiations occurred. Therefore, we cannot say with certainty where the alleged fraudulent inducement occurred, and Scott County is the only proper venue based on the allegations and evidence presented to the trial court.

      . Nevertheless, it is worth noting that the defendants raised the jurisdictional question in the same pleading which sought a transfer of venue. The notice of hearing filed by the defendants announced that the hearing would address their motion to dismiss. The hearing was not transcribed, and the order did not address any of the defendants' arguments for dismissing the case. For reasons unknown, the trial court limited its ruling to the motion to transfer venue.


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    Randy Keith PAULEY a/k/a Randy K. Pauley, Jr., a/k/a Randy Pauley a/k/a Randy Keith Pauley, Jr. v. STATE of Mississippi.
    No. 2011-KA-01627-SCT.
    Supreme Court of Mississippi.
    May 23, 2013.

      Edmund J. Phillips, Jr., Newton, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. After a jury trial in the Circuit Court of Neshoba County, Randy Keith Pauley was convicted of malicious mischief and sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC) and to pay a fine, restitution, and court costs. He appeals, arguing that (1) the trial court erred in sustaining the State’s hearsay objection; (2) the trial court’s denial of a continuance constituted an abuse of discretion, or, alternatively, he received ineffective assistance of counsel; (3) the trial court erred in sustaining the State’s relevance objections; (4) the trial court erred in sustaining the State’s objection to his redirect examination of Alicia Littlefield; (5) the indictment was fatally defective; and (6) he was entitled to a jury instruction on insanity. Finding no error, we affirm.

FACTS

¶ 2. Pauley and his wife, Alicia, lived in the Laurel Hill area of Neshoba County, Mississippi. When Pauley and Alicia separated in July 2009, Pauley moved out. In September 2009, Alicia and her paramour, Doug Littlefield, began living together in Pauley’s former home, and they married after Pauley and Alicia were divorced. Littlefield kept his Peterbilt semi tractor/trailer truck parked in the driveway. On the afternoon of January 24, 2010, Pau-ley went to the home armed with a pistol. He fired nine shots into Littlefield’s truck. Littlefield and Alicia were inside the house and witnessed the shooting from the window. A neighbor also witnessed the shooting and identified Pauley at the trial. Littlefield testified that the bullets had damaged the passenger-side window and door, the passenger-side fuel tank, a tire, an air line, the fan clutch, and the turbo. Repairs to the truck cost $14,082, plus a $749 towing fee. Pauley testified in his own defense, and admitted that he had shot the truck nine times because he was angry and upset.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S HEARSAY OBJECTION.

¶ 8. Alicia testified for the defense. During direct examination, defense counsel asked Alicia whether she knew that Pauley had said that Littlefield had stolen some of his tools. The State objected on the basis of hearsay, and the trial court sustained the objection. Pauley argues that trial court erred because his statement was not hearsay because it was not offered for its truth. This Court reviews the trial court’s admission or exclusion of evidence for abuse of discretion. Jenkins v. State, 102 So.3d 1068, 1065 (Miss.2012). Further, “error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected....” M.R.E. 103(a).

¶ 4. Pauley correctly argues that his statement did not constitute hearsay. Mississippi Rule of Evidence 801(c) defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). Pauley’s statement that Littlefield had stolen his tools was not offered to prove that Littlefield had, in fact, stolen his tools, but rather that Pau-ley had harbored the belief that Littlefield had stolen his tools. Therefore, the statement was not hearsay, and the trial court erred by excluding the testimony. However, Pauley’s substantial rights were not affected by the exclusion of the testimony because it was cumulative of Pauley’s own testimony that he had believed Littlefield had stolen some of his tools. Therefore, no reversible error occurred.

II. WHETHER THE TRIAL COURT ERRED BY DENYING PAU-LEY’S MOTION FOR A CONTINUANCE, OR, ALTERNATIVELY, WHETHER PAULEY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Denial of a Continuance

¶ 5. Pauley was indicted on May 4, 2010. On May 10, 2010, a public defender, Christopher Collins, was appointed to represent Pauley. The trial was set for July 14, 2010, and on that date, Pauley appeared in court with Collins. However, Collins informed the court that Pauley had told him that he was represented by private counsel, John McNeal. At that point, the trial court heard testimony from Pau-ley, who stated that, in March, he had hired McNeal to represent him on several matters including the malicious-mischief charge, and that McNeal had told him this case would be continued until the November term. The trial court contacted McNeal, who informed the court that he did not represent Pauley on the malicious-mischief charge, but only on two misdemeanor charges.

¶ 6. Then, Collins informed the court that he planned to defend the case on the theory that Pauley’s Type 1 diabetes had rendered him temporarily insane at the time of the shooting. He stated that, in order to fully and meaningfully defend Pauley, he would need to raise a temporary insanity defense, which required ten days’ notice to the State. See URCCC 9.07. Collins also requested that the trial court issue a subpoena for Pauley’s treating physician. The prosecutor objected to the insanity defense due to the lack of notice, and Collins moved for a continuance. The court refused to allow Pauley to raise the insanity defense because he had not afforded the State ten days’ notice and denied Pauley’s motion for a continuance.

¶ 7. Pauley argues that the denial of a continuance prejudiced him because he was barred from raising the insanity defense. The decision to grant or deny a motion for continuance rests within the trial court’s sound discretion. Harden v. State, 59 So.3d 594, 601 (Miss.2011). We will not reverse the denial of a continuance unless it resulted in manifest injustice. Id.

¶ 8. The record is silent on when Pauley (mistakenly) told Collins that he had secured private counsel. However, the record indicates that on the morning of trial, Pauley told Collins that he had private counsel. Pauley’s counsel of record was Collins, and Collins appeared for trial, indicating that he believed that he represented Pauley. Also, the prosecutor informed the trial court that Collins had met with another representative of the district attorney’s office to discuss a continuance on the previous Monday. Nonetheless, Collins did not raise the insanity defense ten days before trial as required by Uniform Rule of Circuit and County Court Practice 9.07. Instead, Collins attempted to secure a continuance to enable him to raise the defense after the required notice period. The record is silent on why Collins neglected to raise the insanity defense at an earlier time. Collins had more than two months from the time of his appointment to prepare for Pauley’s trial. We have held that a defendant was not entitled to a continuance for lack of trial preparation where the attorney had three months to prepare for a capital-murder trial. Ruffin v. State, 992 So.2d 1165, 1175 (Miss.2008). And we have found no error in other murder cases “where defense counsel had even less time to prepare.” Id. (citing Cole v. State, 405 So.2d 910, 911-12 (Miss.1981); Gamer v. State, 202 Miss. 21, 24, 30 So.2d 413, 414 (1947)).

¶ 9. In the absence of record evidence, we cannot assume that Pauley had told Collins not to work on his case. “This Court may not act upon or consider matters which do not appear in the record and must confíne itself to what actually does appear in the record.” Shelton v. Kin dred, 279 So.2d 642, 644 (Miss.1973). Further, “[i]t must be presumed that the rulings of the trial court were correct, and such presumption will prevail, unless the actual record supports the contrary view.” Id. Because the record reflects that Collins had an adequate time to prepare for Pau-ley’s malicious-mischief trial, we cannot say that the trial court’s denial of a continuance was an abuse of discretion.

¶ 10. We note that the trial court went off the record on three occasions during the discussion of the matter of Pauley’s representation and the insanity defense. We take this opportunity to encourage trial courts to conduct the proceedings on the record, to enable this Court to consider the matters raised on appeal. If no record is available, the parties may prepare an agreed statement of the record on appeal under the procedures set forth in Mississippi Rule of Appellate Procedure 10(d).

B. Ineffective Assistance of Counsel

¶ 11. With new appellate counsel, Pauley argues that he received ineffective assistance of counsel due to counsel’s failure to timely raise the insanity defense. This Court applies the two-prong test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to claims of ineffective assistance of counsel. Conners v. State, 92 So.3d 676, 686 (Miss. 2012). Under Strickland, the defendant has the burden to show that (1) counsel’s performance was deficient; and (2) the deficiency prejudiced the defendant. Id. The Court of Appeals has held that, when insanity was the sole defense, an attorney’s failure to give timely notice to the State of the insanity defense constituted deficient performance. Epps v. State, 984 So.2d 1042,1048 (Miss.Ct.App.2008).

¶ 12. Pauley has raised the issue of ineffective assistance of counsel on direct appeal. Mississippi Rule of Appellate Procedure 22(b) provides:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

M.R.A.P. 22(b). The comment states:

Rule 22(b) allows the appellant to raise post-conviction issues on direct appeal where the issues are fully apparent from the record of the trial, and failure to raise such issues constitutes a waiver. Under this provision, issues such as claims of ineffective assistance of counsel for failure to object to evidence offered by the state or to argument by the state must be raised on direct appeal. Other post-conviction issues which cannot be raised at the time of appeal because they involve actions or inaction outside the record are not waived since they cannot practically be raised without further development or investigation.

M.R.A.P. 22 cmt. (emphasis added).

¶ 13. “Just because certain ‘issues may properly be raised on direct appeal, ... we still must make a determination as to whether certain issues should be addressed on direct appeal, or be left for another day for post-conviction relief proceedings.’” Neal v. State, 15 So.3d 388, 405 (Miss.2009) (quoting Havard v. State, 928 So.2d 771, 784 (Miss.2006)). As previously stated, the record is silent on when Pauley notified Collins of his belief that he was represented by private counsel, and on why Collins did not raise the insanity defense until the day of trial. Further, we lack the benefit of any evidence Pauley would have presented in support of his insanity defense, which is relevant to the prejudice prong of the Strickland test. We find that Pauley’s ineffective-assistance-of-counsel claim is better left for post-conviction proceedings. Therefore, we dismiss the issue without prejudice to Pauley’s ability to raise it in appropriate post-conviction proceedings.

III. WHETHER THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S RELEVANCE OBJECTIONS.

¶ 14. During the direct examination of Alicia, defense counsel asked if Alicia thought Pauley was crazy when he shot the truck, and whether she knew that Pauley was a Type 1 diabetic on an insulin pump. The State made a relevance objection. The trial court sustained the objection because Pauley’s questions pertained to the insanity defense, which the trial court had prohibited due to Pauley’s noncompliance with Uniform Rule of Circuit and County Court Practice 9.07.

¶ 15. Mississippi Rule of Evidence 401 states that “relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. With the questions, Pauley sought to elicit testimony that he was mentally compromised at the time of the shooting. Because the trial court had prohibited Pauley from presenting his insanity defense, Alicia’s answers to the questions were not relevant. Therefore, the trial court did not abuse its discretion in sustaining the State’s relevance objection. Moreover, Pauley’s status as a Type 1 diabetic with an insulin pump was revealed during Pauley’s own testimony.

IV. WHETHER THE TRIAL COURT ERRED BY SUSTAINING HIS OBJECTION TO THE REDIRECT EXAMINATION OF ALICIA LITTLEFIELD.

¶ 16. On cross-examination, the State asked Alicia whether she or Littlefield had done anything to incite Pauley to shoot the truck, or whether Littlefield had done anything to cause Pauley to develop such harsh feelings that he shot the truck. Then on redirect, Pauley asked Alicia the following question: “So, Mrs. Littlefield, it’s your opinion that you bring another man to live in y’all’s marital home wouldn’t provoke him to do this?” The State objected on the basis of relevance, and the trial court sustained the objection.

¶17. Pauley argues that his question was a proper subject of redirect examination because the topic had been covered on cross-examination. It is true that matters brought out on cross-examination are a proper subject of redirect examination. Payton v. State, 785 So.2d 267, 272 (Miss.1999). Because Pauley’s question was on the same topic that had been discussed on cross-examination, the trial court erred by sustaining the State’s objection. However, the trial court’s error did not substantially prejudice Pauley, because the same information came in through other means. Pauley testified that he shot the truck because he was angry that Alicia and Littlefield would not allow him on his own property. Therefore, the jury was exposed to the notion that Pauley had felt provoked by the actions of Alicia and Littlefield. Pauley is entitled to no relief on this issue.

V. WHETHER THE INDICTMENT WAS FATALLY DEFECTIVE - BECAUSE IT DID NOT INCLUDE THE SIGNATURE OF THE GRAND^TURY FOREMAN.

¶ 18. Pauley argues that the indictment was fatally defective because it did not include the signature of the grand-jury foreman as required by Uniform Rule of Circuit and County Court Practice 7.06. See URCCC 7.06 (stating that “[a]n indictment shall also include the following: ... [t]he signature of the foreman of the grand jury issuing it ... ”). The State points out that the record does not contain the second page of Pauley’s indictment. It is the ■ appellant’s duty to “see to it that the record contained all data essential to an understanding and presentation of matters relied upon for reversal on appeal.” Page v. State, 990 So.2d 760, 762 (Miss.2008) (quoting Shelton, 279 So.2d at 644)). Because the record contains only,the first page of the indictment, the Court is unable to determine whether the second page contains the foreman’s signature. Because Pauley has failed to ensure that the record contains the document necessary to the Court’s review of this issue, he is entitled to no relief.

VI. WHETHER THE TRIAL COURT ERRONEOUSLY DENIED PAULEY’S JURY INSTRUCTION ON INSANITY.

¶ 19. Pauley requested a jury instruction on insanity. The trial court refused the instruction, because it had prohibited Pauley from raising the insanity defense due to his failure to timely raise the defense. Pauley argues that the denial of the instruction was error.

¶ 20. When reviewing the trial court’s grant or denial of jury instructions, this Court reviews the jury instructions as a whole to determine whether the jury was properly instructed on the applicable law. Flowers v. State, 51 So.3d 911, 912 (Miss. 2010). A party has the right to have the jury instructed on all material issues presented by the evidence; generally, an instruction should be granted if it correctly states the law, is supported by the evidence, and is not repetitious. Id. The trial court properly refused the insanity instruction. The trial court had prohibited Pauley from raising the insanity defense due to his noncompliance with the deadline imposed by Uniform Rule of Circuit and County Court Practice 9.07. Therefore, no instruction on the insanity defense was warranted.

CONCLUSION

¶21. While the trial court erred by sustaining the State’s hearsay objection, the error was not reversible; the trial court did not abuse its discretion by denying a continuance; Pauley may raise the issue of ineffective assistance of counsel in post-conviction. proceedings; the trial court did not abuse its discretion in sustaining the State’s relevance objections; the trial court did not commit reversible error' by restricting Pauley’s redirect examination of Alicia; this Court is unable to review the indictment issue because Pau-ley has not provided a complete record; and Pauley was not entitled to a jury instruction on the insanity defense. We affirm Pauley’s conviction and sentence.

¶ 22. CONVICTION OF FELONY MALICIOUS MISCHIEF AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT SHALL PAY A FINE OF $1,500.00 PLUS COSTS OF COURT AND RESTITUTION OF $1,000.00 TO THE VICTIM, WITH CONDITIONS.

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

      . Rule 9.07 provides, in pertinent part:
      If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, the defendant shall, within the time provided for filing pretrial motions or at such later time as the court may direct, serve upon the prosecuting attorney and the clerk of the court a written notice of the intention to offer a defense of insanity. If there is a failure to comply with the requirements of this subsection, the court may use such sanctions as it deems proper, including:
      1. Granting a continuance, and, in its discretion, assessing costs against the appropriate attorney or party;
      2. Limiting further discovery of the party failing to comply;
      3. Finding the attorney failing to comply in contempt; or
      4.Excluding the testimony of appropriate witnesses.
      The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate. Within ten days thereafter, but in no event less than ten days before the trial unless the court otherwise directs, the defendant shall serve upon the prosecuting attorney the names and addresses of the witnesses upon whom the defendant intends to rely to establish the defense of insanity.
      URCCC 9.07.

      . We take judicial notice that the Monday before Pauley's trial was July 12, 2010. Pau-ley’s trial occurred on Wednesday, July 14, 2010.

      . One of these occasions was to enable the court to take a phone call from McNeal.


author: COLEMAN, Justice,

text:
    In the Matter of Inclusion into the CITY OF BILOXI, Mississippi: James C. Frisby v. City of Gulfport, Mississippi and Harrison County, Mississippi.
    No. 2012-AN-00253-SCT.
    Supreme Court of Mississippi.
    May 28, 2013.

      William Lee Guice, III, Maria M. Cobb, Biloxi, Preston Duncan Goff, attorneys for appellant.
    Jeffrey S. Bruni, Gulfport, Margaret E. Murdock, Jerry L. Mills, Ridgeland, Tim C. Holleman, Gulfport, Patrick Taylor Guild, attorneys for appellees.
    Before DICKINSON, P.J., LAMAR and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. The underlying annexation suit was voluntarily dismissed in 2008 with certain terms and conditions imposed on the plaintiff. The plaintiff now seeks clarification of the terms set forth in the order of dismissal. We find that the case should be dismissed as moot, because nothing remains to be decided on appeal.

Factual Background and Procedural History

¶ 2. James C. Frisby owns property in Harrison County. On September 20, 2007, Frisby filed a Petition for Inclusion, seeking to have his property annexed by the City of Biloxi. Both the City of Biloxi and the City of Gulfport were named in the suit. Biloxi responded and asked the court to grant Frisby’s petition. Gulfport objected to the inclusion of Frisby’s property within the City of Biloxi. Harrison County filed an answer as an interested party and also objected. All of the local chancellors recused, and Judge Jason H. Floyd, Jr. was appointed as special judge for the case.

¶ 3. Frisby initially requested that the case be on a “fast track,” and asked for a trial date as early as February 2008. He subsequently requested continuances of several trial dates, claiming he was negoti-áting a “franchise agreement” with Biloxi, which was not yet complete, and that it would be premature to go to trial without the agreement. Trial eventually was set for October 13, 2008. At a discovery hearing on August 15, Judge Floyd learned that the franchise agreement still had not been completed and produced. He ordered the parties to consummate the agreement within two weeks or they would proceed to trial without it. On August 29, Frisby filed a motion for extension of time to finalize the franchise agreement. The court agreed to extend the deadline to September 9, but the trial date was not changed.

¶ 4. On October 10, 2008, the court held a telephonic status conference with the attorneys. Frisby asked for another continuance, which the chancellor denied. Later that afternoon, Frisby filed a Motion for Leave to Voluntarily Dismiss pursuant to Rule 41(a)(2) of the Mississippi Rules of Civil Procedure. Frisby claimed he was unable to finalize the agreement with Biloxi, and he asked for dismissal without prejudice, saying he would refile the inclusion suit when the agreement was finalized. Biloxi did not oppose Frisby’s motion. . Rather than proceeding with the trial as scheduled on October 13, Judge Floyd held a hearing on the motion to dismiss.

¶ 5. Gulfport asked the chancellor to apply Mississippi Code Section 21-1-45, which provides that an inclusion suit cannot be refiled for two years after a dismissal on the merits. Miss.Code Ann. § 21-1-45 (Rev.2007). In the alternative, Gulfport requested compensation for the costs incurred in defending the suit. Judge Floyd allowed the parties to submit documentation of their costs and expenses with indications of the discovery items that could and could not be used again if the suit was refiled. Gulfport submitted documentation of $111,500 in expenses and testified that approximately twenty percent of the discovery produced could be used again if the suit was refiled. Harrison County submitted proof of approximately $30,500 in expenses; Harrison County testified that twenty to twenty-five percent of its discovery could be reused when the suit was refiled.

¶ 6. Judge Floyd granted Frisby’s motion to dismiss without prejudice. He declined to apply Section 21-1-45, but he agreed that the defendants should be compensated for their expenses if the suit was refiled, because Frisby should not have filed the suit prematurely. The order of dismissal provided:

The [c]ourt, having now considered the evidence presented, both oral and documentary, finds that the Defendants would not be so prejudiced as to preclude the requested dismissal. The [cjourt further finds, however, that justice requires the imposition of certain terms and conditions upon the Plaintiff. IT IS THEREFORE ORDERED AND ADJUDGED that the motion to dismiss the subject litigation filed by the Plaintiff is hereby GRANTED, without prejudice, on the following terms and conditions:
1. Plaintiff pay all court costs;
2. Plaintiff pay unto the Defendant City of Gulfport the sum of $17,265.00 for expert witness fees;
8. Plaintiff pay the Defendant City of Gulfport the sum of $78,151.00 for partial reimbursement of attorney fees; and
4. Plaintiff pay the Defendant Harrison County the sum of $20,884.00 for partial reimbursement of attorney fees. Neither the Plaintiff, nor anyone on his behalf, may refile this litigation until the foregoing terms and conditions have been satisfied and fulfilled. The amounts included in the foregoing conditions recognize that some portion of the work being charged for can be used in future litigation.

The order of dismissal was entered October 21, 2008. Nothing happened in the case for nearly two years after the dismissal.

¶ 7. In September 2010, a new attorney for Harrison County filed an entry of appearance. He also filed a Motion to Reduce Award of Costs and Fees to Judgment, asking the court to enter a judgment in favor of Harrison County and Gulfport. The record revealed the following about how this came about: Some time in 2009, Gulfport (rather than Biloxi) began the process of annexing a portion of Frisby’s land. Gulfport- filed the appropriate petition for inclusion; Harrison County intervened and opposed the inclusion. Harrison County asked the judge in that case to enforce Judge Floyd’s order in the earlier case and require Frisby to pay the costs set forth in the order since the suit had been refiled. The judge refused to do so, holding that the conditions applied only if Frisby, or someone on his behalf, refiled the same suit. He held that the Gulfport filing was a different matter, so the conditions did not apply. Unsatisfied, Harrison County attempted to enroll the order as a judgment. The circuit clerk did not view the order as a final judgment and would not enroll it, so Harrison County filed a motion in the original action asking to have the order reduced to a judgment.

¶8. Frisby responded and asked the court to deny the motion, claiming Judge Floyd had not intended for the order of dismissal to be a final judgment. Frisby claimed that his refiling the annexation litigation was the only event that would trigger the requirement that he pay the amounts set forth in the order of dismissal. A new special chancellor, Judge Hollis McGehee, was appointed to preside over the case. After a hearing, Judge McGehee entered an order on June 1, 2011, denying Harrison County’s motion. The order read, in its entirety:

On October 21, 2008, this court entered an “ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE AND WITH TERMS AND CONDITIONS!;,”] a copy of which is attached hereto and incorporated herein by reference. This was a final order, subject to appeal, thus constitutes a final judgment pursuant to Rule 54(a) and Rule 58 MRCP. Therefore the court finds that the Motion to Reduce Award of Costs and Fees to Judgment is not well taken and is denied.

¶ 9. Relying on Judge McGehee’s ruling, Harrison County enrolled judgments, in its own name and on behalf of Gulfport, against Frisby for the amounts set forth in the original order of dismissal. When the judgments were not paid, Harrison County filed a Motion for Examination of Judgment Debtor on September 9, 2011. Fris-by responded to the motion and contended that the original order of dismissal did not require payment of the costs set forth therein unless he refiled the inclusion suit. Thus, he maintained that Harrison County did not have a valid judgment. Frisby also filed a motion for relief from judgment under Rule 60(b), setting forth the same position and asking the court to clarify that the original order of dismissal was not a judgment, but that the chancellor intended only to provide conditions that must be satisfied before Frisby could refile the suit.

¶ 10. Following a hearing, Judge McGe-hee entered a short order denying Frisby’s motion for relief, which incorporated his “ruling on the record.” At the hearing, he had said, in part:

When I look at this order ... I don’t think you can focus in on any one word .... you’ve certainly got to look at the whole document and try to ascertain its meaning.... “The [c]ourt further finds that justice requires the imposition of certain terms and conditions upon the plaintiff.” It does not say upon the plaintiff refiling, or upon — if the plaintiff wants to come back. It says for this to be done, there are certain terms and conditions that must be imposed.
And then he says, just as plain and straightforward, the [c]ourt order says, that the motion to dismiss is granted on the following terms and conditions, and then it sets those out.... That language just doesn’t beg any argument, as I read it....
And then he adds: “Neither the plaintiff nór anyone on his behalf may refile this litigation until the foregoing terms and conditions have been satisfied and fulfilled.” I don’t think anything in that language modifies or does away with the fact that he said I am granting this motion to dismiss on the following conditions. So I don’t find anything ambiguous about his order or anything that’s not clear .... we’ve got a three-plus-year-old order that is plain and unambiguous on its face. It says what it says.

The order was entered January 10, 2012, and Frisby timely appealed. In February 2012, Frisby paid Harrison County $20,384 in hopes of settling the matter, although he still disputed that he owed that amount to Harrison County. Even though Harrison County has been paid, the parties have proceeded with the appeal.

Discussion

¶ 11. Frisby presents one issue on appeal — whether the chancellor erred in denying his Rule 60(b) motion for relief. Frisby asks this Court to grant his motion for relief and “enter an [o]rder reflecting Rule 60(b) relief from judgment, or in the alternative, to remand the [m]otion for evi-dentiary hearing at the [cjhancery [c]ourt level.” In his rebuttal brief, Frisby articulates that he actually seeks clarification of the original order of dismissal from October 2008. Frisby also raises the issue of standing, arguing that Harrison County does not have standing to assert its position in the appeal. The question of standing is dispositive, so we address that issue only.

Whether Harrison County has an interest in the matter sufficient to maintain its position on appeal.

¶ 12. Frisby argues that Harrison County does not have standing to assert its position in the appeal because it does not have a stake in the outcome. Although Frisby disputed that he owed anything to Harrison County, he paid Harrison County $20,384 in hopes of settling the matter. A Partial Satisfaction of Judgment, which stated that Frisby had paid Harrison County “all sums due” and that Frisby’s obligations to Harrison County were satisfied, was signed by the attorneys for Fris-by and Harrison County and filed on March 5, 2012.

A. Standing

¶ 13. The question of standing is a jurisdictional issue that can be raised at any time by any party or by the Court, and the standard of review is de novo. Hall v. City of Ridgeland, 37 So.3d 25, 33 (¶ 23) (Miss.2010) (internal citations omitted). “In Mississippi, parties have standing to sue ‘when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise provided by law.’ ” Id. at 33 (¶ 24) (quoting Burgess v. City of Gulfport, 814 So.2d 149, 152-53 (¶13) (Miss.2002)). A “colorable” claim or action is one “appearing to be true, valid, or right.” Hall, 37 So.3d at 33 n. 6 (quoting Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 827 n. 13 (Miss.2009)). A party’s claim “must be grounded in some legal right recognized by law, whether by statute or by common law” and that party must be able to show that it has “a present, existent actionable title or interest[.]” City of Picayune v. S. Regí Corp., 916 So.2d 510, 526 (¶40) (Miss.2005) (internal citations omitted).

¶ 14. Frisby and Harrison County extinguished Harrison County’s claim when Frisby paid Harrison County and both parties executed a satisfaction of judgment. If Harrison County were to prevail in the instant appeal, it would not be entitled to any award. Therefore, Harrison County does not have a present interest in this matter. Harrison County acknowledges that it has been paid, but it asserts that its interest in the matter is based on its representation of the taxpaying citizens of Harrison County, some of whom also are citizens of Gulfport. Harrison County asserts that it is in those citizens’ best interest for Frisby to pay Gulf-port.

¶ 15. Harrison County maintains that the issue of standing was settled in Harrison County v. City of Gulfport, 557 So.2d 780 (Miss.1990). In that case, we held that the county had standing to intervene in an annexation matter. Id. at 787. Certainly, counties have the right to intervene in annexation cases, as Harrison County did in the underlying suit here. However, this is no longer an annexation case. Harrison County provides no additional support for its claim that it has standing to assert its position on behalf of the taxpaying citizens of the City of Gulfport.

¶ 16. Municipalities have a statutory right to “sue and be sued.” Miss.Code Ann. § 11-45-25 (Rev.2002). See also Miss.Code Ann. § 21-17-1 (Rev.2007) (“[e]very municipality of this state shall be a municipal corporation and shall have power to sue and be sued”). Municipal corporations that have at least 2,000 inhabitants are classified as cities. Miss.Code Ann. § 21-1-1 (Rev.2007). Thus, cities are entities with the right to “sue and be sued.” Counties are authorized by a separate statute to “sue and be sued.” Miss. Code Ann. § 11-45-17 (Rev.2002). Further, a county can bring a suit “where only a part of the county or of its inhabitants are concerned, and where there is a public right of such part to be vindicated.” Miss. Code Ann. § 11-45-19 (Rev.2002). However, a county does not have the right to pursue an action on behalf of some of its citizens, who are otherwise represented by a separate entity that has its own authority to sue but has declined to do so. See Robertson v. Thomas, 118 Miss. 423, 79 So. 289, 290 (1918) (code section permitting a county to bring suit on behalf of part of the county was intended only for those instances “where the Legislature had not provided adequate remedies for the protection of public interests and had not conferred power to sue and be sued on such parts of a county”).

¶ 17. Gulfport’s interest in this matter, if any, is related to the amount of expenses enumerated in the original order, which were assigned to Gulfport in its capacity as a municipal corporation. Harrison County does not have the right to pursue an action on behalf of Gulfport, because Gulfport has its own right to do so. See Robertson, 79 So. at 290. Gulfport has participated throughout this suit and contends Frisby is not required to pay the amounts set forth in the order. Harrison County certainly cannot assert a position on behalf of Gulfport that is contrary to the city’s actual position. We hold that Harrison County does not have the right to pursue a claim on behalf of some of its citizens, who are aptly represented by the city, just because the county does not agree with the city’s position.

¶ 18. We recognize that standing generally applies to plaintiffs, and in the instant case, Harrison County is the defendant and appellee. Standing is defined as “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right.” Black’s Law Dictionary 671 (3d pocket ed.2006). Harrison County was an inter-venor in the underlying annexation suit, and Harrison County initiated the collection of the judgments against Frisby. Thus, standing did apply to Harrison County as a party “mak[ing] a legal claim or seeking] judicial enforcement of a duty or right.” Id. Harrison County had standing to participate when the annexation suit was initiated. Harrison County also had standing when it attempted to collect what it believed it was owed under the order of dismissal. However, the original annexation suit was dismissed by the order entered October 21, 2008, and Harrison County’s monetary claim was satisfied by Frisby’s payment of the disputed money to Harrison County.

¶ 19. Although Frisby has pursued the appeal, Harrison County continues to participate and maintains the same position it asserted in seeking to have the judgments enforced against Frisby. Frisby has argued that his payment to Harrison County “satisfied all sums claimed by Harrison County” and that Harrison County no longer has anything at risk in the litigation and has no judicable interest in the appeal. Thus, Frisby has bound himself to the position that his payment to Harrison County in satisfaction of the judgment was a final payment for which he will not seek redress. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 482 (¶ 22) (Miss.2002) (“Judicial estoppel is a doctrine of law applied by a trial court to a situation where a party asserts one position in a prior action or pleading but then seeks to take a contrary position to the detriment of the party opposite.”). Because Frisby’s payment to Harrison County was final, we agree that Harrison County no longer has a present interest in this matter.

B. Mootness

¶ 20. We repeatedly have held that “[c]ases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot.” See Fails v. Jefferson Davis County Pub. Seh. Bd., 95 So.3d 1223, 1225 (¶ 10) (Miss.2012); City of Madison v. Bryan, 763 So.2d 162, 166 (¶22) (Miss.2000); Monaghan v. Blue Bell, Inc., 393 So.2d 466, 466 (Miss.1980). Thus, standing must exist when litigation is commenced and must continue through all subsequent stages of litigation, or the case will become moot. Cases that have become moot will be dismissed, because the Court does not adjudicate moot questions. City of Madison, 763 So.2d at 166 (¶ 22).

¶ 21. A case is moot if “a judgment on the merits ... would be of no practical benefit to the plaintiff or detriment to the defendant.” Gartrell v. Gart-rell, 936 So.2d 915, 916 (¶ 8) (Miss.2006) (internal citations omitted). Because Harrison County no longer has an interest in the instant case, the case is moot. The remaining parties — Frisby and Gulfport— agree that the original order of dismissal required Frisby to pay the expenses only if Frisby refiled the annexation suit. Gulf-port does not seek any money from Fris-by. Therefore, we have nothing to decide. We have held that “the review procedure should not be allowed for the purpose of settling abstract or academic questions, and that we have no power to issue advisory opinions.” City of Madison, 763 So.2d at 166 (¶ 23) (quoting Allred v. Webb, 641 So.2d 1218,1220 (Miss.1994)).

¶ 22. “This Court cannot entertain an appeal where there is no actual controversy. If an appeal involves questions about rights which no longer exist, the appeal will be dismissed.” Gartrell, 936 So.2d at 916 (¶ 7) (Miss.2006) (citing McDaniel v. Hurt, 92 Miss. 197, 41 So. 381 (1906)). The Court has found that an appeal became moot where the dispute pertained to a fee assessed by a chancellor, but the fee was paid between the announcement of the chancellor’s judgment and the appeal. Rhodes v. Rhodes, 336 So.2d 1315, 1316 (Miss.1976) (“the error, if any, in the chancellor’s holding has become moot and decision by this Court would be an exercise in academics”). The Court dismissed another appeal as moot where the action had been reduced to judgment and the appellant had accepted payment for his portion of the judgment prior to the appeal. Ford v. Miss. Power Co., 289 So.2d 694, 694 (Miss.1974). Similarly, Harrison County has accepted payment for the amount it claims it was owed under the order of dismissal. Harrison County no longer has any interest in the case. Gulf-port agrees with Frisby’s understanding of the conditions in the order, and it does not seek payment from Frisby. Thus, there is nothing to be determined at this point, and the appeal is dismissed as moot.

Conclusion

¶ 23. Harrison County no longer has an interest in the instant case. Because Harrison County has been paid by Frisby, and Gulfport does not claim it is owed anything, nothing is left to be adjudicated. The instant appeal is dismissed as moot.

¶ 24. DISMISSED AS MOOT.

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

      . The City of Gulfport was named in the annexation petition because its boundaries were within three miles of Frisby's property. In cases of annexation or enlargement of boundaries, any municipality within three miles “of the territory proposed to be incorporated” in another municipality must be named as a defendant in the petition for inclusion. Miss. Code Ann. § 21-1-31 (Rev.2007).

      . Mississippi Rule of Civil Procedure 41(a)(2), pertaining to voluntary dismissals, gives judges the authority "to dismiss a case in way which insures protection for the unwitting litigant.” BellSouth Pers. Comm’n, LLC v. Bd. of Supervisors of Hinds County, 912 So.2d 436, 443-44 (¶ 26) (Miss.2005). In other words, "the chancellor has the authority to condition the dismissal or the ability to refile when it unfairly affects the other side.” Roebuck v. City of Aberdeen, 671 So.2d 49, 51 (Miss. 1996). Granting a motion to dismiss, with or without conditions, under Rule 41(a)(2) is within the sound discretion of the trial court. BellSouth, 912 So.2d at 440 (¶ 13).

      . Biloxi is not participating in the appeal, as it has no interest in the matter.

      . "Mootness has been called ‘the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ " Jeffrey Jackson, 1 Mississippi Civil Procedure § 1:28 (2013) (quoting Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973) (citing Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973) ("an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.”))).