text:
    Joseph Robert REITH a/k/a Joseph R. Reith a/k/a Joseph Reith v. STATE of Mississippi.
    No. 2011-CT-01591-SCT.
    Supreme Court of Mississippi.
    April 10, 2014.

      Office of State Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Presiding Justice, for the Court:

¶ 1. Following a jury trial in the Circuit Court of Madison County, Mississippi, Joseph Robert Reith was convicted for the murder of his ex-wife and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Reith appealed, and his conviction and sentence were affirmed by the Mississippi Court of Appeals. Reith v. State, 135 So.3d 892 (Miss.Ct.App.2013). Following that court’s denial of his motion for rehearing, Reith filed a petition for writ of certiorari, which this Court granted.

FACTS

¶ 2. For purposes of certiorari review, we adopt the following facts from the Court of Appeals’ opinion.

Reith and his wife, Tammy, divorced in 2007. The couple shared custody of their only child, Dylan. Following the divorce, Tammy voiced her intent to move to Alaska and to take Dylan with her. On March 12, 2010, Reith petitioned the chancery court for a temporary restraining order and a permanent injunction to prevent Tammy from removing Dylan from the state.
On March 23, 2010, Tammy allegedly went to Reith’s apartment to visit with Dylan. However, Dylan was not home. While inside the apartment, Reith and Tammy began to argue about Tammy threatening to take Dylan to Alaska. Reith later killed Tammy as she attempted to leave his apartment. Reith admitted that he killed Tammy but insisted that he “blacked out” before killing her.

Reith, 135 So.3d at 895.

ISSUES

¶ 3. On writ of certiorari, Reith raises the following issues, restated as follows:

I. The trial court’s error in granting instruction S-5 was not harmless.
II. Ineffective assistance of counsel regarding instruction S-5.

As issue I is dispositive, we will address only that issue.

ANALYSIS

¶ 4. This Court applies an abuse-of-discretion standard to jury instructions. Williams v. State, 111 So.3d 620, 623 (Miss.2013). “The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context.” Bailey v. State, 78 So.3d 308, 315 (Miss.2012) (quoting Young v. State, 891 So.2d 813, 819 (Miss.2005)). “When read together, if the jury instructions fairly state the law of the case and create no injustice, then no reversible error will be found.” Bailey, 78 So.3d at 315 (citing Newell v. State, 49 So.3d 66, 73 (Miss. 2010)).

The trial court’s error in granting instruction S-5 was not harmless.

¶ 5. Reith argues that instruction S-5 was given in error. S-5 read, in pertinent part,

Deliberate design may be presumed from the unlawful and deliberate use of a deadly weapon.

¶ 6. “Instructions in forms similar to [S-5] have been before the Court for many years and a long line of cases have discussed such instructions.” Tran v. State, 681 So.2d 514, 517 (Miss.1996). The Court has “consistently held such an instruction erroneous[,]” but the rationale espoused in those eases left open the opportunity to request such an instruction. Id. Today, we clarify and foreclose its future use, for “due process requires that the State prove each element of the offense beyond a reasonable doubt” and instructions which allow the jury to presume guilt on an essential element of an offense run counter to our most basic tenet of criminal law. Neal v. State, 451 So.2d 743, 757 (Miss.1984).

¶ 7. Throughout a criminal prosecution, there is only one presumption as to the defendant — “[t]he presumption of innocence — that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’” In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (quoting Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895)). The “presumption of innocence ... extends to every element of the crime.” Morissette v. United States, 342 U.S. 246, 275, 72 S.Ct. 240, 96 L.Ed. 288 (1952). The crime with which Reith was charged in this case was deliberate-design murder. “ ‘Deliberate design connotes an intent to kill....’ Thus, ‘intent’ was an essential element of the crime upon which” Reith was presumed innocent and “the State was required to prove [his] guilt beyond a reasonable doubt.” Williams, 111 So.3d at 623 (quoting Brown v. State, 965 So.2d 1023, 1030 (Miss.2007)).

¶ 8. As intent is an essential element of deliberate-design murder, “its existence is a question of fact which must be submitted to the jury.” Morissette, 342 U.S. at 274, 72 S.Ct. 240. “It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act.” Id. (emphasis added). S-5 did just that — it told the jury that it may presume intent from the use of a deadly weapon, i.e., “an act.” Allowing the jury to “assume intent from an isolated fact ... pre-judgefs] a conclusion which the jury should reach of its own volition.” Id. at 275, 72 S.Ct. 240. As such, S-5 is in hopeless “conflict with the overriding presumption of innocence with which the law endows the accused....” Id.

¶ 9. Our prior cases have not addressed this conflict. In Tran, this Court examined a jury instruction which contained the exact language of S-5. The Tran Court stated “that an instruction on an asserted presumption of maliee from the use of a deadly weapon is proper only where the testimony has failed to establish the circumstances of the use of the weapon.” Tran, 681 So.2d at 517 (quoting Stewart v. State, 226 So.2d 911, 912 (Miss.1969)). The Court held the instruction in error because eyewitness testimony established “the facts of the shooting[,]” and because the instruction “relieved the prosecution of its [burden of] persuasion.” Tran. 681 So.2d at 518.

¶ 10. Relying on Tran in the case sub judice, the Court of Appeals held that, “even though deliberate design may be presumed from the unlawful and deliberate use of a deadly weapon, ... the circumstances surrounding the use of the weapon were established”; thus, “the jury should not have been instructed that deliberate design could be presumed from the use of the deadly weapon.” Reith, 135 So.3d at 897, 898. We agree that the instruction should not have been given. However, we must depart from our prior cases and hold that a jury may never be instructed that it may presume deliberate design from the unlawful and deliberate use of a deadly weapon, even “where the testimony has failed to establish the circumstances of the use of the weapon.” Tran, 681 So.2d at 517.

¶ 11. Recently, in Williams, we addressed the use of presumptive instructions regarding an element of the charged offense. Like Reith, “Williams was indicted for deliberate design murder.” Williams, 111 So.3d at 623. “Williams admitted] that she shot and killed” the victim. Id. at 624. “Her defense at trial was that the shooting was an accident, and, therefore, she lacked the requisite intent to be found guilty of deliberate design murder.” Id. Williams’s jury was instructed, in pertinent part:

[A] person is presumed to have intended the natural and probable consequences of his voluntary and deliberate acts. (Instruction S^4.)

Id. at 623 (emphasis in original). As Williams did not deny shooting the victim, she argued that this instruction “shifted the burden of proof on the only contested issue at trial, her intent, vel non.” Id. at 624. (emphasis in original). We agreed. “As a presumption is accepted as true without proof to the contrary,” we held that instruction S^4 (“[a] person is presumed to intend ....”) impermissibly shifted “the burden to [Williams] to provide prooff ]” that she lacked intent. Id. at 625.

¶ 12. In the case sub judice, Reith did not deny that he killed his ex-wife with a dangerous weapon. Essentially, S-5 told the jury that it could assume Reith intended to kill her, thus relieving the State of its burden to prove Reith’s guilt on an essential element of the crime. Just like S^4 in Williams, S-5 allowed the jury to “convict[ ] [Reith] based upon a presumption as opposed to evidence beyond a reasonable doubt.” Williams, 111 So.3d at 626.

Harmless Error

¶ 13. The Court of Appeals concluded that any error in granting S-5 was harmless “in light of the overwhelming evidence against Reith and the other jury instructions[.]” Reith, 135 So.3d at 898. We disagree.

¶ 14. Regarding the “other jury instructions[,]” the Court of Appeals stated:

The last paragraph of instruction S-1A informed the jury that the State must prove every element of either crime beyond a reasonable doubt before the jury could find Reith guilty. We find that, despite the language in instruction S-5, the jury was fully and fairly instructed of the State’s burden in proving Reith’s guilt.

Id. In Williams, the State argued that the jury separately was instructed that Williams “was ‘presumed ... innocent’ and that the ‘State must prove beyond a reasonable doubt’ that [she] was ‘guilty of every material element of the offense.’” Williams, 111 So.3d at 624. We rejected that contention, for “these general instructions as to the [State’s] burden and the defendant’s presumption of innocence do not dissipate the error in the challenged portion of the instructions.” Id. at 625 (quoting Francis v. Franklin, 471 U.S. 307, 319-20,105 S.Ct. 1965, 85 L.Ed.2d 344 (1985)). Based on our analysis supra, not only does a general instruction on the presumption of innocence not “dissipate the error” in S-5, the instructions are in hopeless conflict.

¶ 15. The Court of Appeals also found that “the State presented overwhelming evidence from which the jury could infer that Reith ... intended to kill [his ex-wife].” Reith, 135 So.3d at 898. In Williams, we noted that “Undoubtedly, the State presented substantial evidence of Williams’s guilt.” Williams, 111 So.3d at 626. However,

[h]er testimony was sufficient to warrant an instruction on accident or mistake, which was granted. .Once her defense was placed in issue and the instruction given, it was the duty of the jury to consider Williams’s testimony and defense among all the other evidence presented. It was S-4 which created this dilemma, for it is impossible to determine beyond a reasonable doubt whether the jury engaged in this consideration or merely relied on S-4’s presumption as to intent.

Id. We agree that considerable evidence existed by which the jury could have inferred deliberate design on the part of Reith, but a presumption (assumption) based on that evidence is erroneous. The evidence presented also was sufficient to warrant a heat-of-passion manslaughter instruction, which was granted. Reith, 135 So.3d at 898. “Once [Reith’s] defense was placed in issue and the [manslaughter] instruction given, it was the duty of the jury to consider [his] ... defense among all the other evidence presented.” Williams, 111 So.3d at 626. Just as in Williams, we find it “impossible to determine beyond a reasonable doubt whether the jury engaged in this consideration or merely relied on [S-5’s] presumption as to intent.” Id. Thus, we cannot conclude that the error in granting S-5 was harmless beyond a reasonable doubt.

CONCLUSION

¶ 16. The circuit court erred in granting instruction S-5, and we cannot conclude that such error was harmless. Deliberate design may not be presumed, and we overrule our prior cases to the extent that they conflict with this principle. We admonish the circuit courts not to grant an instruction which relies upon a presumption of intent, as it conflicts with the presumption of innocence, relieving the State of its burden to prove guilt beyond a reasonable doubt on an essential element of the offense. Reith’s conviction and sentence in the trial court and the judgment of the Court of Appeals are reversed, and this case is remanded to the Circuit Court of Madison County for a new trial consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

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

      1. See Tran, 681 So.2d at 517 (quoting Blanlcs v. State, 542 So.2d 222, 227 (Miss. 1989)) (internal citations omitted) (“Definitionally, we regard malice aforethought and deliberate design as synonymous.”).


source: Caselaw Access Project

author: KING, Justice, for the Court:

license: Public Domain

text:
    MISSISSIPPI COMMISSION ON ENVIRONMENTAL QUALITY, Mississippi Department of Environmental Quality and Mississippi Environmental Quality Permit Board v. BELL UTILITIES OF MISSISSIPPI, LLC.
    No. 2013-CC-00165-SCT.
    Supreme Court of Mississippi.
    April 10, 2014.

      Lisa Thompson Ouzts, Roy Furrh, Jackson, attorneys for appellants.
    Kathryn H. Hester, Jackson, attorney for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   KING, Justice, for the Court:

¶ 1. Lawrence Elliott owned and operated the Black Creek Water and Waste-water systems in Forrest County from the 1990s until 2005. The systems are a few miles upstream of an area of Black Creek that is designated as a National Wild and Scenic River. Under Elliott’s ownership and operation, the systems suffered numerous violations of environmental regulations, including multiple illegal sewage discharges. Bell Utilities purchased the systems from Elliott in 2005 and vastly improved the situation, expending its own money in an attempt to bring the system into compliance. In this vein, Bell entered into an Agreed Order with the Mississippi Department of Environmental Quality in which compliance issues were addressed, and in which Bell agreed to put up a $20,000 financial assurance that would be returned to Bell after two years of adequate compliance. In 2010, Bell sought to sell the Black Creek systems to Utility One, LLC, and to transfer the attendant permits to it. MDEQ refused to transfer Bell’s wastewater permit to Utility One unless Utility One put up a $20,000 financial assurance. Bell appealed the denial of the permit transfer to the chancery court. The chancery court reversed the Permit Board, finding that its actions were arbitrary and capricious because it has not promulgated regulations on how to conduct a regulatory hearing and on when and whether to demand financial assurances prior to permit transfer. It ordered MDEQ and the Permit Board to promulgate such regulations. MDEQ appeals to this Court. Because this Court finds that the Permit Board’s demand of $20,000 from Utility One to transfer the permit was beyond its power, this Court reverses and renders the Permit Board’s denial of the permit transfer, thus affirming the portion of the chancery court judgment that reverses the Permit Board. However, because the agencies are not required under the APA to promulgate rules and regulations for formal Permit Board hearings, we vacate the portion of the trial court’s judgment that requires them to do so.

FACTS AND PROCEDURAL HISTORY

¶ 2. Several state agencies are involved in this case. The Mississippi Commission on Environmental Quality (“Commission”) is the agency tasked with carrying out the state’s policies preventing, controlling, and abating pollution of the State’s air and waters by enforcing pollution control laws and regulations and any permits issued by the Permit Board. The Mississippi Environmental Quality Permit Board (“Permit Board”) has the power to take action on permits administered through MDEQ. The Mississippi Department of Environmental Quality (“MDEQ”) is tasked with providing technical assistance and support to the Commission and Permit Board, and its duties include conserving, managing, developing, and protecting the State’s natural resources. The duties of the Mississippi Department of Health (“MSDH”) include regulating drinking water systems. The Mississippi Public Service Commission (“PSC”) regulates water and sewer utilities, specifically rates, service, and whether the facilities are required for the convenience and necessity of the public.

¶ 3. The “Black Creek System” consists of a water treatment system and a waste-water system, and is located in Forrest County on the Black Creek. Black Creek is a state scenic stream, and a portion downstream from the Black Creek System is designated as a National Wild and Scenic Stream. 16 U.S.C.A. § 1274(a)(59); Miss.Code Ann. § 51-4-23.4 (Rev.2003). Lawrence Elliott constructed the Black Creek System to service developments in the area.

¶ 4. During his ownership, Elliott committed many compliance violations. MDEQ also received an “inordinate” number of citizen complaints for the Black Creek System under Elliott’s ownership. All in all, Elliott’s numerous violations and pervasive non-compliance resulted in poor to nonexistent service to residents and numerous illegal sewage discharges. Because Elliott refused to make needed repairs, MDEQ was forced to expend over $63,000 from the Pollution Emergency Fund to keep the system operable and to protect the citizens and the environment.

¶ 5. Because of the dire situation at Black Creek caused by Elliott, the PSC began looking for someone to purchase the Black Creek System. The PSC approached Bell and asked Bell to consider purchasing the system. Bell ultimately agreed and purchased the Black Creek System.

¶ 6. In late 2004, the Commission, MSDH, and Bell entered into an Agreed Order regarding the Black Creek System in anticipation of Bell’s impending purchase of the Black Creek System from Elliott. The Agreed Order noted that the system was “not in compliance with applicable permits, certificates, and federal and state laws and regulations” and that “Bell has committed to operate the ... System and cause ... [it] to achieve compliance with all federal and state laws and regulations, and permits.” The purpose of the Agreed Order was to bring the Black Creek System into compliance, by giving Bell time and help to bring the extremely troubled system into compliance. It also outlined some of Bell’s specific obligations to the end of achieving compliance.

¶ 7. The Agreed Order provided that any sale or conveyance of the Black Creek System would not relieve Bell of its obligations under the order:

[n]o change in ownership, corporate, and/or partnership status relating to the [Black Creek] System that is covered by this Agreed Order will in any way alter the responsibilities of Bell under this Agreed Order. In the event of any conveyance of easement, or other interest in the [Black Creek System], ... all of Bell’s obligations under the Agreed Order shall remain in full force and effect and shall continue to be met.

However, the agreement did provide that if a private party acquired the Black Creek System, “and the acquisition is approved by the appropriate regulatory authority (s) ”, then Bell’s responsibilities under the Agreed Order would be relieved upon the transfer of all necessary permits to the new owner. (Emphasis added). Later in the same paragraph, the Agreed Order provided merely that “Bell shall notify the Agencies in the event of any such conveyance.” (Emphasis added). The Agreed Order further provided that “[a]ny deed, title, or other instrument of conveyance executed by Bell that transfers title to any part of the [Black Creek System] shall contain a notice that the [Black Creek System] is the subject of this Agreed Order.” The financial assurance provision of the Agreed Order stated that “Bell shall provide financial assurance of $20,000 ... The financial assurance shall be secured within thirty days from obtaining all necessary permits from the Permit Board. Bell shall continue to provide this financial assurance for a period of two years at which time the requirement shall cease if Bell demonstrates an adequate compliance for the duration of the two-year period.” The Agreed Order noted that if Bell and MDEQ do not agree on the adequacy of the compliance record, the matter should be taken before the Commission for a determination. The adequacy of the compliance was to be determined by the forfeiture provisions of Mississippi Code Section 49-17-44(2).

¶ 8. Bell ultimately took control of the Black Creek System on January 7, 2005. MDEQ inspected the system fairly regularly. While early inspections in 2005 indicate some significant problems, ostensibly due to the state of disrepair the system was in when Bell acquired it, inspections by 2006 indicated that the system was much improved regarding compliance. Moreover, one 2005 inspection noted that erosion seemed to be a continuing issue for the site, and that an entirely new system could be constructed at a different location for what it would cost to permanently fix the erosion issue. It indicated that erosion should continue to be fixed if and when it occurred.

¶ 9. In 2008, Bell Utilities entered into negotiations with Ni-Ameriea to sell them the Black Creek System. Bell worked with MDEQ regarding the prospective sale. On July 1, 2008, Bell wrote to MDEQ requesting that MDEQ find that Bell had satisfied the requirements and obligations of the Agreed Order. On July 8, 2008, MDEQ inspected the Black Creek System “[t]o determine the facility’s compliance with [the] Agreed Order.” The inspection report concluded that “[o]verall the site was in satisfactory operating condition and appears to have met the conditions set forth in the Agreed Order regarding the collection system.” On August 7, 2008, Bell transmitted the $20,000 financial assurance to MDEQ to satisfy the Agreed Order, noting that “we anticipate closing [with Ni-America] in the next day at which time we will discuss the release of these funds in regards to Ni-America assuming the responsibilities for Black Creek Utility.” The financial assurance was submitted over three years after the submission date contemplated by the Agreed Order.

¶ 10. On August 11, 2008, Trey Smith, a Senior Attorney with MDEQ, sent Bell a letter regarding the Agreed Order. The letter stated that it was “MDEQ’s written notice that Bell Utilities of Mississippi, LLC ... has appeared to satisfy and complete the outstanding requirements and obligations of Agreed Order 4928-04 within the authority of the Mississippi Commission on Environmental Quality .... ” The letter further noted that an inspection of the Black Creek System was performed on July 8, 2008 “at which time the facility was found to be in compliance with the conditions of Agreed Order No. 4928-04.” It stated that “[t]he requirements of the Order appear to have been completed and no further action by Bell regarding Agreed Order No. 4,928-Ob will be required by the Commission or MDEQ.” (Emphasis added). The letter also confirmed that MDEQ was in receipt of Bell’s $20,000 financial assurance. It then informed Bell that “[i]n the event that Bell sells, assigns and/or otherwise transfers title and/or control of Black Creek Retreat, the financial assurance of $20,000 provided ..., upon the Commission receiving satisfactory replacement financial assurance from the acquiring party, shall be returned to Bell ... or if alternative financial assurance was provided all rights and interests in such financial assurance shall be immediately terminated.” It concluded that the letter did not limit the rights of MDEQ “for future violations of environmental laws, rules, regulations and permit conditions.” The sale of the Black Creek System to Ni-America fell through shortly thereafter.

¶ 11. MDEQ inspected the Black Creek System again on August 4, 2009. MDEQ noted a few violations, notably that access to the lagoon was not restricted, significant erosion had occurred at the bottom of the levee, and four-wheeler trails were on the levee and such activity should be prevented.

¶ 12. In 2010, Bell and Steve Womack, the operator of the Black Creek Systems since 2008, began discussing selling the Black Creek System to Womack’s newly created company, Utility One. On September 24, 2010, Bell and Womack requested that MDEQ transfer the permit from Bell to Womack. The cover letter stated that “[t]he form indicates a closing date of November 1, 2010, but due to the need for ... [PSC] approval, the final closing may occur at a later date.... Please review this information and call if there are any problems with the transfer or if you need additional information.” On December 6, 2010, counsel for Bell exchanged emails with Harry Wilson of MDEQ regarding the transfer, and Wilson stated that MDEQ was looking into the issue and would get back to Bell shortly.

¶ 18. On December 7, 2010, the PSC approved the sale of the Black Creek System to Utility One, including transferring Bell’s Certificate of Public Convenience and Necessity to Utility One. The PSC found that Utility One was “ready, fit, willing and financially able and intends in good faith to furnish reasonably adequate sewer service to all persons within Bell’s certificated area that is being transferred.”

¶ 14. On December 13, 2010, Bell again wrote to MDEQ requesting that it facilitate the permit transfer. It noted that the transfer to Utility One was scheduled to close on December 14, 2010. MDEQ and Bell continued to go back and forth about the transfer and the $20,000 during January, February, and March of 2011. MDEQ informed Bell that it would require financial assurance from Utility One before recommending or approving the permit transfer. Roy Furrh, MDEQ General Counsel, admitted that Bell dealt with the conveyance to Utility One in the “normal regulatory way,” but indicated that, because of the Agreed Order, that was not sufficient.

¶ 15. On January 28, 2011, MDEQ inspected the Black Creek System. The inspection concluded that the lagoon should have a level measuring device installed, vegetation overgrowth around the lagoon should be cut, the effluent pipe from the filter-box should be repaired, and all manholes and pump stations should have covers in place. The inspection also noted that the levee had “no apparent problems, nor any sign of recent overflows into the surrounding area.”

¶ 16. On August 11, 2011, Bell filed a petition for a writ of mandamus in Hinds County Chancery Court, requesting that the court require that MDEQ return Bell’s $20,000 financial assurance and transfer Bell’s NPDES permit to Utility One. MDEQ represented in chancery court that it would transfer the permit if Utility One provided the $20,000 in financial assurance. On September 26, 2011, the Hinds County Chancery Court ordered MDEQ “to submit the matter to the Permit Board for a transfer request at the October 11, 2011, Permit Board meeting with comments by Bell Utilities and other interested parties as allowed under current Permit Board statutes.” It further ordered that, if the Permit Board denied the transfer, Bell must be given an evidentiary hearing before the Permit Board on or before December 13, 2011. It stated that if the Permit Board denied the transfer, Bell may return to the chancery court to appeal the decision.

¶ 17. At its October 11, 2011, meeting, the Permit Board denied Bell’s request to transfer the permit to Utility One. It noted that “MDEQ staff informed Bell and Utility One that MDEQ would not recommend the issuance of the permit transfer and release of the $20,000 in financial assurance provided by Bell until substitute or alternate financial assurance was provided.” Bell therefore requested an evi-dentiary hearing. On October 18, 2011, Furrh sent Bell and Womack a letter attaching the Permit Board hearing procedures and outlining a schedule. Furrh’s letter stated that the law “is not clear regarding the authority of a party other than the hearing petitioner to participate in an evidentiary hearing without the express authority of the Permit Board.... If Utility One, LLC would also like to participate in the hearing, I suggest that it file a Motion to Intervene with the Permit Board.... Requiring parties to file Motions to Intervene in similar circumstances is standard procedure with the Permit Board.” Permit Board procedure required that all direct and rebuttal testimony must be pre-filed, and that parties may call “adverse” witnesses without submitting pre-filed testimony. Bell filed an objection to the Permit Board’s procedures on November 17, 2011, arguing that the Permit Board has failed to formally promulgate rules and regulations governing a formal hearing and challenging the requirement that direct and rebuttal testimony must be pre-filed. The Permit Board Hearing Officer overruled Bell’s objections in a December 8, 2011, order. She found the Permit Board statute regarding the promulgation of regulations permissive in nature and concluded that the Permit Board’s longstanding procedures, which apply equally to all parties and aid in administrative efficiency, were not arbitrary and capricious.

¶ 18. On November 16, 2011, MDEQ again inspected the Black Creek System, with the stated purpose of rebutting Bell’s pre-filed testimony for the evidentiary hearing. The inspection found the following alleged violations: 1) several manhole concrete lid ring collars were cracked or unsealed; 2) one electrical power outlet at one lift station was unprotected; 3) the level-measuring device in the lagoon did not clearly indicate the depth of the lagoon; 4) the lagoon had some vegetation growth around it; 5) the lagoon levee had “significant erosion near the toe of the levee and spanning its entire length” and there was an “absence of established vegetative stabilizing cover on this particular levee”; and 6) while the entrance to the lagoon access road was fenced, the lagoon perimeter was not secured.

¶ 19. The Permit Board held an eviden-tiary hearing on the matter of Bell’s permit transfer request on December 13, 2011. At the hearing’s outset, Womack asked to participate in the hearing by offering testimony and evidence and cross-examining witnesses. MDEQ objected, and the Hearing Officer sustained the objection, thus denying Womack the ability to participate in the hearing as an interested party.

¶ 20. In the opening argument for MDEQ, Furrh stated that “MDEQ recommends the proposed transfer of the state operating permit from Bell to Utility One, LLC be denied unless or until Bell and Utility One agree to provide $20,000 in financial assurance to protect this extraordinary system.” MDEQ called Harry Wilson and Michael Freiman to testify, as they had performed the November 16, 2011 inspection at the Black Creek System. Both testified that Bell had compliance problems and that Utility One should put up financial assurance in order for the permit to be transferred. When asked how MDEQ calculated the amount of $20,000 as applied to Utility One, Wilson testified that “I don’t have a calculation. I think it was a number that was fair. It’s a number that seemed reasonable from what we’d seen out there in the past couple of years. But there’s not a calculation, so to speak.” The hearing and attendant evidence primarily centered around issues of compliance, the $20,000, and the Agreed Order. MDEQ emphasized the erosion issues found in the November 2011 inspection. Furrh closed MDEQ’s case recommending that “the permit be denied until financial assurance is provided.”

¶ 21. The hearing concluded with one of the board members unequivocally stating that he would vote to approve the transfer if Utility One agreed to provide $20,000 in financial assurance, and would vote to deny the transfer if Utility One did not agree to give the $20,000 financial assurance. The Permit Board then voted three to two to deny the transfer of the permit. On March 13, 2012, the Permit Board adopted its Findings of Fact and Conclusions of Law (FOFCOL) regarding its denial of the permit transfer. The Permit Board found that the erosion issues were “significant and constitute an imminent danger to Black Creek.” It further found that the erosion issues had not been adequately nor permanently addressed. The Permit Board noted that “transfer from a permittee with financial assurance to a never-before-permitted entity which will not agree to provide financial assurance should be denied.” It concluded that “it is entirely reasonable for the Permit Board to deny transfer of the permit unless and until Bell or Utility One brings the Black Creek System into compliance and provides $20,000 in financial assurance, as required by the Agreed Order, to protect this extraordinary and precious resource.” The Permit Board concluded that the financial assurance is a “continuing obligation that binds the Black Creek system until the Commission finds that all obligations under its Agreed Order have been met.” It also determined that “the ongoing compliance issues, including the levee erosion, and noncompliance with the Agreed Order, constitute a relevant basis to deny the transfer.”

¶ 22. Bell appealed the Permit Board’s decision to deny the transfer to the Hinds County Chancery Court. MDEQ then moved to transfer venue to the Forrest County Chancery Court. The court granted MDEQ’s motion, and the appeal proceeded in the Forrest County Chancery Court. The arguments were fully briefed at the chancery court level, with the chancery court sitting as the appellate court. The chancery court found that the Permit Board’s operation without formal rules and regulations allowed it to yield “unbridled authority” and thus the operation was arbitrary and capricious. It then reversed and remanded the denial of the permit transfer and ordered the Permit Board to promulgate rules and regulations regarding financial assurances. Bell then moved to amend the court’s order, and its motion was granted. The court amended its order to reverse and remand the denial of the permit transfer and ordered MDEQ and/or the Permit Board to promulgate rules and regulations under the Mississippi Administrative Procedures Act (“APA”) for the Permit Board’s formal hearings. It further stated that “[i]f the Permit Board wishes to require financial assurance for wastewater systems such as the Black Creek Wastewater Treatment Facility, then the Commission on Environmental Quality must first promulgate the rules and regulations required by Miss.Code Ann. § 49-17-44.”

¶ 23. Aggrieved, MDEQ appeals to this Court, arguing that: 1) the APA does not require the Permit Board to promulgate hearing procedure regulations for its formal hearings; 2) the lack of promulgated hearing procedures does not violate due process; 3) the financial assurance for the Black Creek System was governed by the Agreed Order, in that the “financial assurance is a continuing obligation that binds the Black Creek System until the Commission finds all obligations under the Agreed Order have been met;” and 4) the chancery court used the wrong standard of review and failed to give proper deference to the Permit Board.

ANALYSIS

Standard of Review

¶ 24. At the chancery court, Permit Board matters “shall be affirmed” “[i]f no prejudicial error is found.” Miss. Code Ann. § 49-17-29(5)(b) (Rev.2012). “If prejudicial error is found the decision of the board shall be reversed and the chancery court shall remand the matter to the Permit Board for appropriate action as may be indicated or necessary under the circumstances.” Id. Appeals are to be considered only on the record as made before the Permit Board. Id.; Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.2d 673, 677 (Miss.2006). This Court reviews the matter under the same standard as does the chancellor in his or her review. Sierra Club, 943 So.2d at 677. Matters of law are to be reviewed de novo, giving great deference to an administrative agency’s construction of its own rules and regulations and the statutes under which it operates. Id. at 678 (quoting McDerment v. Miss. Real Estate Comm’n, 748 So.2d 114, 118 (Miss.1999)). “Therefore, an agency’s decision will not be disturbed on appeal absent a finding that it (1) was not supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.” Sierra Club, 943 So.2d at 678 (quoting McDerment, 748 So.2d at 118). Substantial evidence is something more than a scintilla of evidence, yet less than a preponderance of the evidence. Sierra Club, 943 So.2d at 678. Further, “[a]n action is arbitrary or capricious if the agency entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. (internal quotations omitted). “A rebuttable presumption exists in favor of agency decisions, and this Court may not substitute its own judgment for that of the agency.” Id.

Financial Assurance

¶25. MDEQ argues on appeal that “[t]he Permit Board denied transfer because of unresolved compliance issues.” While the Permit Board certainly considered compliance issues, as it had every right to do, the record makes abundantly clear that the Permit Board’s decision was not based solely, or even primarily, on compliance issues. MDEQ and the Permit Board made it abundantly and unequivocally clear that, notwithstanding the compliance and other issues, the permit would have been transferred had Utility One provided $20,000 in financial assurance. MDEQ also argues that the $20,000 and the compliance issues are intertwined because the Agreed Order and its financial assurance provision apply to the Black Creek System, and thus apply to Utility One. Bell argues that the $20,000 financial assurance in the Agreed Order applies only to Bell and that the Permit Board has no authority to demand $20,000 from Womack in exchange for agreeing to transfer the permit.

¶ 26. The Permit Board may require financial assurance from applicants. Miss. Code Ann. § 49-17-44(1) (Rev.2012). However, “[t]he commission shall establish by regulation the acceptable forms of financial security and the amount of financial security required for the various types and sizes of facilities.” Id. (emphasis added). The Commission has not established financial assurance regulations for waste-water treatment systems, thus, as a general matter the Permit Board cannot require financial assurance from an applicant such as Utility One. MDEQ concedes this point. Therefore, whether the Permit Board has the authority to demand $20,000 from Utility One as a condition of the transfer depends upon whether the financial assurance provision of the Agreed Order applies to Utility One because the Agreed Order applies to the System, not to the particular parties.

¶ 27. The Agreed Order is essentially a contract in nature. Contract interpretation involves three steps. McFarland v. McFarland, 105 So.3d 1111, 1119 (Miss.2013). First, a court must determine whether the contract is ambiguous by analyzing the express wording. Id. If it is not, the plain meaning is enforced as written. Id. Second, if the contract is ambiguous, the Court applies the meaning more favorable to the nondrafting party. Id. Third, if the contract’s meaning remains ambiguous, the Court may consider extrinsic evidence. Id.

¶ 28. The Agreed Order states that it is between Mississippi Commission on Environmental Quality, the Mississippi State Department of Health, Bell, and Elliott. Neither Utility One nor Womack are signatories. The Agreed Order further goes to great pains to declare that no change in ownership of the system will relieve Bell of its duties under the Order. This provision indicates that the Agreed Order applies to and follows Bell, and does not follow the Black Creek System. On the other hand, the Agreed Order states that “[a]ny deed, title, or other instrument of conveyance executed by Bell that transfers title to any part of the STP or DWP shall contain a notice that the STP and/or DWP is the subject of this Agreed Order.” However, this provision appears simply to the purpose of placing purchasers on notice, not to obligate a nonsignatory to the contract. In the same paragraph, the order provides that if any acquisition of the system is approved by MDEQ, only then shall Bell be relieved of responsibility under the order. This language also supports the notion that the responsibilities under the order are Bell’s, but do not follow the system.

¶ 29. The Agreed Order’s express purpose is “to cause the STP and DWP to achieve compliance with all federal and state laws and regulations.” (Emphasis added). The Agreed Order goes on to provide a detailed list of action items that Bell must complete and the time periods in which Bell must complete them. This language indicates that, once Bell has achieved compliance as contemplated by the order, the order is no longer in effect.

¶ 30. The financial assurance provision of the Agreed Order states that “Bell shall provide financial assurance of $20,000 ... The financial assurance shall be secured within thirty days from obtaining all necessary permits from the Permit Board. Bell shall continue to provide this financial assurance for a period of two years at which time the requirement shall cease if Bell demonstrates an adequate compliance for the duration of the two-year period.” The Agreed Order goes on to provide that if Bell and MDEQ do not agree on the adequacy of the compliance record, the matter will be taken before the Commission for determination. This indicates that the financial assurance provision is specific to Bell. The Agreed Order clearly obligates its signatories, but does not follow the system.

¶ 31. The Agreed Order plainly does not apply to Utility One, a nonsignatory. Therefore, denying the permit transfer because of the lack of financial assurance from Utility One is beyond the power of the Permit Board, because the Commission has not promulgated financial assurance regulations for wastewater systems. The record makes clear that the $20,000 was the reason for denying the transfer— MDEQ and the Permit Board made multiple statements that they would transfer the permit for $20,000 notwithstanding any of the other issues.

¶ 32. We therefore affirm the portion of the chancery court’s judgment that reversed the Permit Board, and we reverse and render the Permit Board’s decision to deny the permit transfer, and effectuate the transfer to Utility One. The Permit Board and MDEQ clearly found that Utility One was an acceptable permittee and clearly would have transferred the permit to it had it put up the $20,000. Since the $20,000 was beyond the Permit Board’s authority to demand, and since it was the lone impediment to transferring the permit, we find reversing and rendering the Permit Board to be the appropriate resolution.

Whether the Permit Board is required to adopt regulations to govern its formal hearings under the Administrative Procedures Act.

33. The APA requires that all agencies “[a]dopt rules of practice setting forth the nature and requirements of all formal and informal proceedings available to the public.” Miss.Code Ann. § 25-43-2.104(b) (Rev.2010). However, the law notes that “[Specific statutory provisions which govern agency proceedings and which are in conflict with any of the provisions of this chapter shall continue to be applied to all proceedings of any such agency to the extent of such conflict only” and that “to the extent that the provisions of any other law conflict or are inconsistent with the provisions of this chapter, the provisions of such other law shall govern and control.” Miss.Code Ann. § 25-43-1.103(3) & (4) (Rev.2010) (emphasis added). The Permit Board statute provides that “[t]he Permit Board may adopt rules of practice and procedure governing its proceedings that are consistent with the commission’s regulations.” Miss.Code Ann. § 49-17-29(3)(d) (Rev.2012) (emphasis added).

¶ 34. MDEQ argues first that the APA rule-making requirement applies to the “right of the public to review and comment upon proposed rules and regulations, or amendment or repeal of the same, before the agency takes rule-making action.” Second, it argues that, regardless of whether the APA applies to rules for adjudicatory hearings, the conflict of law provisions mandate that the specific Permit Board statute, which is permissive, trumps the APA. Bell argues that the plain language of the APA mandates that the Permit Board adopt rules and regulations for its “formal hearing,” because such a “formal hearing” “is just such a formal proceeding for which this minimum procedural code was required.”

¶ 35. We need not determine whether the Permit Board hearing is the type of proceeding to which the APA rule-making provision applies, because the conflict provision of the APA applies. Even if the APA applies to evidentiary proceedings, the specific statute of the Permit Board, which is in conflict and inconsistent with the APA, trumps the APA because that statute is clearly permissive, not mandatory. Thus, the Permit Board is not required by the APA to promulgate rules and regulations for its evidentiary hearings. To the extent the chancery court judgment ordered the Permit Board and MDEQ to promulgate rules and regulations for its formal hearings, it was in error, as the agencies are not required to do so under the APA.

Whether the lack of promulgated hearing rules violated due process.

¶ 36. Because this issue is capable of repetition, we write to note our concerns regarding it. Bell argues that the Permit Board’s lack of rules and regulations are arbitrary and capricious because the lack thereof results in “ad hoc” procedures which do not allow for a fair and impartial hearing. “Administrative agencies must afford minimal due process consisting of notice and an opportunity to be heard.” D.J. Koenig & Assocs., Inc. v. Miss. State Tax Comm’n, 838 So.2d 246, 254 (Miss.2003). “Due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). To determine whether administrative proceedings provide proper due process, a court may examine 1) the private interest that will be affected, 2) the risk of erroneous deprivation of the interest through the procedures used and the probable value of additional or substitute procedural safeguard’s, and 3) the government’s interest, including the burden that additional or substitute procedural requirement would entail. Id. at 335, 96 S.Ct. 893. A full evidentiary hearing is not necessary to comply with procedural due process. Id. at 334-35, 96 S.Ct. 893.

¶ 37. The statute governing Permit Board hearings provides that “[a]t a hearing, any interested party may present witnesses and submit evidence and cross-examine witnesses.” Miss.Code Ann. § 49-17 — 29(4)(b) (Rev.2012) (emphasis added). An “interested party” is defined as “any person claiming an interest relating to the property or project which is the subject of the permit action, and who is so situated that the person may be affected by the disposition of that action.” Id. Womack certainly fits this definition. Roy Furrh stated in his letter to Bell that the law “is not clear regarding the authority of a party other than the hearing petitioner to participate in an evidentiary hearing without the express authority of the Permit Board.... If Utility One, LLC would also like to participate in the hearing, I suggest that it file a Motion to Intervene with the Permit Board.... Requiring parties to file Motions to Intervene in similar circumstances is standard procedure with the Permit Board.” However, the statute is clear that any interested party, not just the hearing petitioner, may participate in a formal hearing and does not need the express authority of the Permit Board to do so. MDEQ’s apparent lack of adherence to this statute is concerning. MDEQ is put on notice that, without formal rules and regulations, every proceeding before it may be subject to a claim of violation of some statutory or constitutional right of the complaining party.

CONCLUSION

¶ 38. The judgment of the chancery court is affirmed in part, vacated in part, and rendered. Consequently, we reverse and render the Permit Board’s decision to deny the permit transfer, thus effectuating the transfer of the permit to Utility One. To the extent the chancery court reversed the denial of the permit transfer and held that the Permit Board could not require financial assurance for wastewater systems in the absence of promulgated rules and regulations pursuant to Mississippi Code Section 49-17-44, we affirm. We vacate the portion of the chancery court judgment requiring the Permit Board to promulgate rules and regulations under the APA.

¶ 39. AFFIRMED IN PART; VACATED IN PART AND RENDERED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, J.

DICKINSON, Presiding Justice, concurring in part and in result:

¶ 40. The majority recognizes that Bell suffered no due process violation, so any discussion or warning that MDEQ “may be subject ” to a possible “claim of violation of some statutory or constitutional right” in some future case, is an advisory opinion. And because “it is not within the province of this Court to render advisory opinions,” concur with the majority in part and result.

COLEMAN, J., joins this opinion.

      . Confusingly, many key documents in the record indicate that the system is in Lamar County, while others indicate that it is in Forrest County. At oral argument, the parties conceded that the system is in Forrest County and that documents to the contrary are mistaken.

      . Section 49-17-44(2) provides that
      The commission may enter an order requiring forfeiture of the bond or other financial security, if the commission determines that:
      (a)The continued operation or lack of operation and maintenance of the facility ... represents an imminent threat to the public health, welfare and the environment because the permittee is unable or unwilling to adequately operate and maintain the facility or the facility has been actually or effectively abandoned by the permittee;
      (b) Reasonable and practical efforts under the circumstances have been made to obtain corrective actions from the permittee; and
      (c) It does not appear that corrective actions can or will be taken within an appropriate time as determined by the commission.

      . Womack was a Level IV Operator, who operated several wastewater systems in Mississippi.

      . Bell apparently followed similar protocol with the MSDH, which requested that Bell and Utility One enter into a new Agreed Order covering the water system. Bell and Utility One did enter such an order on December 6, 2010.

      . The transfer did ultimately occur.

      . Womack did testify as a witness, called by Bell.

      . Wilson was the chief of the environmental permits division of MDEQ.

      .From 2007 to November 2011, Freiman was the chief of the municipal and private facilities branch within the permit division of MDEQ. Beginning in November 2011, he held the position of chief of the surface water division at MDEQ.

      . Bell argues that this Court should review the agency’s decision de novo because MDEQ, Bell’s adversary in the formal hearing, authored the Permit Board’s FOFCOL. However, this Court recently rejected the argument that factual findings should be reviewed under any sort of “heightened scrutiny,” even if they are adopted verbatim from a party's proposed findings of fact. Bluewater Logistics, LLC v. Williford, 55 So.3d 148, 156-57 (Miss. 2011). However, "should a party suspect and suggest that the judge’s factual findings are somehow tainted or untrustworthy, we hold that the party-upon proper proof-may seek a new trial.” Id. at 157. Likewise, if the Permit Board’s factual findings appear tainted or untrustworthy, this Court may find that the Permit Board's findings are not supported by substantial evidence and/or are arbitrary and capricious, upon proper proof.

      . The parties concede that whether MDEQ should return Bell’s $20,000 is not at issue in this appeal.

      . The Permit Board may make permitting decisions "based upon any information as it deems relevant." Miss.Code Ann. § 49-17-29(3)(c). Further, ‘‘[i]n considering an application for a permit issuance or transfer, the Permit Board may consider the applicant's compliance history, financial capability, financial responsibility, or any other aspect of the applicant’s history it deems necessary or appropriate.” 11 Miss. Admin. Code Pt. 6, 1.1.3(H)(1).

      . The record contains more than twenty statements by MDEQ and the Permit Board that, notwithstanding compliance or any other issues, the permit would be transferred if Utility One gave them $20,000 in financial assurance. Moreover, at oral argument, MDEQ admitted that it communicated to Bell that it would agree to the transfer if only Utility One would provide $20,000 in financial assurance.

      . The next line of the order states that "Bell shall notify the Agencies in the event of any such conveyance." (Emphasis added). MDEQ seems to interpret this line to mean that Bell required MDEQ’s permission to convey title, thus partially justifying the transfer denial. Bell clearly notified MDEQ about the conveyance. This sentence plainly does not require prior permission before Bell is allowed to transfer title, but merely requires that MDEQ be notified.

      . MDEQ also attempts to use this portion of the Agreed Order to justify denying the permit transfer, seemingly arguing that Bell is required to obtain MDEQ permission for a sale in order to have the permit transferred. This assertion belies the plain language of the order. The only thing affected by whether Bell obtains agency approval for the sale is whether Bell remains liable under the Order or not. It has no bearing on permit transfer, simply on Bell’s contractual liability.

      . While Bell clearly requested its $20,000 be returned, and Bell and MDEQ clearly disagree about the adequacy of the compliance record, it does not appear that the "matter” of the return of the $20,000 and "adequate compliance” has been "taken” before the Commission for a final determination. Thus, it seems that the issue of whether the Agreed Order has been completed is as yet undetermined.

      . We presume that if Utility One was an inappropriate permittee, the Permit Board and MDEQ certainly would not transfer the permit to it, even with a $20,000 financial assurance.

      . Hughes v. Hosemann, 68 So.3d 1260, 1263 (Miss.2011) (citing Sheldon v. Ladner, 205 Miss. 264, 38 So.2d 718, 719-20 (1949)).


author: KITCHENS, Justice, for the Court:

text:
    Brent HUBBARD a/k/a Brent P. Hubbard and Amy Hubbard a/k/a Amy C. Hubbard v. BANCORPSOUTH BANK.
    No. 2013-CP-01028-SCT.
    Supreme Court of Mississippi.
    April 10, 2014.

      Brent Hubbard, Amy Hubbard, appellants, pro se.
    Kaytie Michelle Pickett, Jackson, Gary P. Snyder, Olive Branch, attorneys for ap-pellee.
    Before RANDOLPH, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice, for the Court:

¶ 1. This is an appeal from the DeSoto County Circuit Court’s grant of judgment on the pleadings in favor of BancorpSouth Bank. In 2010, the residence of Brent and Amy Hubbard secured a note and deed of trust held by Trustmark National Bank. Additionally, the Hubbards obtained a second loan, which was secured by a note and second deed of trust held by BancorpSouth on the same residence. In 2011, Trust-mark foreclosed on the first deed of trust and sold the property. More than a year later, BancorpSouth sued the Hubbards in the DeSoto County Circuit Court for money due under the second note. The Hub-bards admitted they were in default, but asserted as an affirmative defense that BancorpSouth’s claim was time barred under the one-year statute of limitations prescribed in Mississippi Code Section 15-1-23. After a hearing on the motion, the circuit court found Section 15-1-23 inapplicable and ruled instead that Mississippi Code Section 15-1-49 provides the proper limitations period (three years). The circuit court entered judgment in favor of BancorpSouth. On appeal, the Hubbards argue that the circuit court committed reversible error in granting BancorpSouth’s judgment on the pleadings because the action was barred by the one-year statute of limitations prescribed by Section 15-1-23.

¶ 2. We affirm the circuit court’s grant of judgment on the pleadings. However, the three-year statute of limitations provided under Section 15-1-49 is inapplicable in this case. The circuit court reached the right result, but for the wrong reason. The proper limitations period for suits on promissory notes for nonforeclosing lenders is Mississippi Code Section 75-3-118, which provides a six-year statute of limitations, rather than the three-year statute of limitations set forth in Section 15-1-49.

FACTS AND PROCEDURAL HISTORY

¶ 3. On an unknown date, the Hubbards obtained a home loan from Trustmark. The Hubbards secured the note with a deed of trust on their residence. The Hubbards defaulted in the payment of their loan, and on April 7, 2011, Trustmark foreclosed on the property. On May 19, 2011, Trustmark sold the property.

¶ 4. On October 6, 2010, before foreclosure, the Hubbards had obtained a second loan from BancorpSouth secured by a second deed of trust on the residence. The note was in the amount of $39,641.79, with an interest rate of 5.00% per annum. The note was payable in sixty payments, due on the 26th of each month beginning October 26, 2010, with the final payment of remaining principal and interest due on September 26, 2015. The Hubbards defaulted on their obligations under this note by failing to make scheduled payments when due.

¶ 5. On February 5, 2013, Bancorp-South sued the Hubbards in DeSoto County Circuit Court for $42,110.09 due under the note, plus attorneys’ fees, costs, and interest. The action was brought twenty-one months after Trustmark had foreclosed on the property secured by Bancorp-South’s note. The Hubbards, proceeding pro se, timely answered and admitted they were in default. As an affirmative defense, the Hubbards asserted that the claim was time barred under the one-year statute of limitations provided in Mississippi Code Section 15-1-23. BancorpSouth moved for judgment on the pleadings on April 8, 2013. The Hubbards opposed the motion. After a hearing on the motion, the circuit court entered judgment in favor of BancorpSouth. The circuit court found Section 15-1-23 inapplicable and held instead that the three-year statute of limitations provided by Section 15-1^19 was controlling. The Hubbards timely perfected their appeal.

STANDARD OF REVIEW

¶ 6. A judgment on the pleadings raises an issue of law, and this Court conducts de novo review. R.J. Reynolds Tobacco Co. v. King, 921 So.2d 268, 270 (Miss.2005).

ANALYSIS

¶ 7. The issue on appeal is whether BancorpSouth’s action was governed by the one-year statute of limitations set forth in Section 15-1-23, the three-year limitations period prescribed by Section 15 — 1— 49, or the six-year limitations period provided by Section 75-3-118. The circuit court applied Section 15 — 1—49, a catchall provision appropriate only if no other statute of limitations governs. The Hubbards argue that the one-year statute of limitations provided under Section 15-1-23 is controlling. Conversely, BancorpSouth argues that the appropriate statute of limitations is six years pursuant to Section 75-3-118.

¶ 8. The Hubbards and BancorpSouth are correct in their contentions that Sections 15-1-23 and 75-3-118 have application in actions on unpaid promissory notes. Thus, the trial court’s application of the three-year catchall statute of limitations was error. An analysis of the relevant statutes provides guidance.

1. Application of Section 15-1-49

¶ 9. The Hubbards and BancorpSouth agree that the circuit court mistakenly held that the three-year statute of limitations defined by Section 15-1^9 controls this case. It is clear from the plain language of Section 15-1^9 that it does not apply in this case. Section 15-1-49 states in relevant part:

(1) All actions for which no other period of limitation is prescribed shall 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) (emphasis added). In this case, other statutes of limitations are prescribed for unpaid promissory notes, specifically Sections 15-1-23 and 75-3-118, and these are the controlling statutes. The question of which statute is appropriate for the present case remains.

2. Application of Section 15-1-23

¶ 10. The court below correctly found that Section 15-1-23 does not bar Ban-corpSouth’s suit. Section 15-1-23 states:

In all cases, no suit or action shall hereafter be commenced or brought upon any installment note, or series of notes of three or more, whether due or not, where said note or notes are secured by mortgage, deed of trust, or otherwise, upon any property, real or personal, unless the same is commenced or brought within one year from the date of the foreclosure or sale of the property pledged as security for said note or notes.

Miss.Code Ann. § 15-1-28 (Rev.2012). The Hubbards argue that, after the foreclosure on the first deed of trust, the one-year statute of limitations began to run against BancorpSouth on the second deed of trust. However, this Court has held that Section 15-1-23 applies only to the foreclosing lienholder. See Lewis v. Simpson, 176 Miss. 123, 167 So. 780 (1936).

¶ 11. In Lewis, the defendants executed a note that was secured by a mortgage on their property. Id. Later, the defendants obtained a second loan on the same property. Id. The defendants subsequently defaulted on both notes. Id. at 780-81. The first lender foreclosed and sold the property. Id. at 781. More than a year later, the second lender sued on its note, which was secured by the second mortgage. Id. The defendants argued the second lender’s suit was time barred by the one-year statute of limitations provided by Chapter 251, Laws of 1934 (codified today as Mississippi Code Section 15-1-23). Id. The question presented to the Court was whether the one-year statute of limitations in Chapter 251 applied to both the first and second mortgages. Id.

¶ 12. In Lewis, this Court looked first to the statutory language of Chapter 251 to determine whether the second lender’s action was time barred. Id. The statute provided:

[N]o suit or action shall hereafter be commenced or brought upon any installment note ... whether due or not, where said note or notes are secured by mortgage, deed of trust, or otherwise upon any property, real or personal, unless the same is commenced or brought within one year from the date of the foreclosure or sale of property pledged as security for said note or notes ....

Id. (quoting Ch. 251, Laws of 1934). The Court found this language ambiguous as to whether it applied to suits on notes held by nonforeclosing lenders. Id. The Court, therefore, looked to the title to determine the statute’s application because “Section 71 of the Constitution provides that every bill introduced into the Legislature shall have a title which ought to indicate clearly the subject-matter of the proposed legislation .... ” Id. The title of the act is: “An Act to fix the period of limitation within which suits may be brought on notes secured by mortgages, trust deeds, or otherwise, where such mortgages have been foreclosed.” Id. The Court found the words “where such mortgages have been foreclosed” to mean that actions by the foreclosing party must be brought within one year of foreclosure. Id. at 781. The second lender was not the foreclosing party. Id. Accordingly, the Court held the action was not time barred under the one-year statute of limitations. Id. Further, to support its holding, the Court stated:

The foreclosing mortgagee is the one causing the trouble, and it is at him the statute is aimed. To apply the statute to [the second lender] would work in this way: [Second lender] received nothing by the foreclosure; the proceeds were not sufficient to pay the first mortgage. [Second lender] therefore is in no better position than an unsecured creditor. Why, in such a case, should an unsecured creditor have the benefit of the six-year statute of limitation, and [second lender] be bound by the one-year statute?

Id.

¶ 13. Although this case is nearly identical to Lewis, the Hubbards argue it is no longer good law because the Legislature removed the language of Chapter 251 when the statute was codified into the Mississippi Code. The Hubbards assert that the codification broadened the statute’s application to all cases where any note is secured by foreclosed property. According to the Hubbards’ argument, the one-year limitations period in Section 15-1-23 applies to the second note Bancorp-South held on the foreclosed property.

¶ 14. BancorpSouth argues to the contrary. Although Chapter 251 has been codified, the act’s title and its language have not changed. A review of the act’s legislative history reveals that it has not been amended since it was adopted in 1934. The codification simply changed the statute’s caption when it was included in the Mississippi Code. In the Code, the caption of the codified statute differs from the act’s title. BancorpSouth contends the difference does not matter because the statute’s caption is not part of the law, and to the extent the caption differs from the act’s title, the title controls. Miss.Code Ann. §§ 1-3-81(2), 1-1-109 (Rev.2005).

¶ 15. The caption is not part of the law; therefore, the caption changes that occurred with codification have no effect on the statute’s title or substantive language upon which this Court relied in Lewis. Thus, consistent with Lewis, the one-year statute of limitations applies only to actions brought by the foreclosing party. BancorpSouth was not the foreclosing party and, thus, its suit is not time barred by Section 15-1-23. Accordingly, as this Court held in Lewis, Section 15-1-23 does not apply to actions brought by nonforec-losing parties. Further, this Court’s reasoning in Lewis squarely applies in this case. Trustmark and BancorpSouth each held a lien on the Hubbards’ property. Trustmark foreclosed on the property, and BancorpSouth presumably received nothing from that foreclosure. When Trust-mark foreclosed and sold the Hubbards’ property, it eliminated the collateral that had secured BancorpSouth’s loan to the Hubbards. In effect, BancorpSouth was transformed from a secured creditor to an unsecured creditor. Therefore, Bancorp-South sued to recover the money due under its promissory note as an unsecured creditor, and the statute of limitations for suits by unsecured creditors on promissory notes should apply. When the Hubbards’ property was sold, BancorpSouth was essentially in the same position as an unsecured creditor. Accordingly, we find that BancorpSouth is not bound by the stringent one-year statute of limitations.

3. Application of Section 75-3-118

¶ 16. The circuit court committed an inconsequential error when it held that Section 15-1^9 applied in this case, because BancorpSouth’s action was timely commenced, regardless of whether we apply the three-year statute of limitations in Section 15-1-49 or the six-year statute of limitations in Section 75-3-118. Despite the circuit court’s error in applying Section 15-1-49 rather than Section 75-3-118, BancorpSouth was entitled to judgment on the pleadings. The one-year statute of limitations in Section 15-1-23 applies to foreclosure actions and does not bar Ban-corpSouth’s suit to recover funds due under the promissory note. See Miss.Code Ann. § 15-1-23 (Rev.2012). The appropriate statute of limitations for actions on promissory notes by a nonforeclosing party is six years, pursuant to Section 75-3-118. Section 75-3-118 states in pertinent part:

(a) [A]n action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six (6) years after the due date or dates stated in the note or, if a due date is accelerated, within six (6) years after the accelerated due date.

Miss.Code Ann. § 75-3-118 (Rev.2012).

¶ 17. Moreover, the Mississippi Court of Appeals has correctly held that the six-year statute of limitations, rather than the three-year statute of limitations in Section 15-1-49, applies to suits on unpaid promissory notes. Jordan v. BancorpSouth Bank, 964 So.2d 1205, 1206 (Miss.Ct.App. 2007). In Jordan, BancorpSouth Bank filed suit against the defendant to recover funds due under a promissory note. Id. The defendant moved to dismiss, arguing the suit was time barred under Section 15-1-49. Id. The defendant also argued that Section 75-3-118 was inapplicable because the promissory note was an instrument, not a note payable. Id. at 1207. The court found those arguments to be without merit and held suits on unpaid promissory notes are controlled by Section 75-3-118 rather than Section 15-1-49. Id.

¶ 18. In this case, BancorpSouth timely sued to recover funds due under a promissory note. BancorpSouth’s suit is factually similar to the suit in Jordan; thus, the six-year limitations period in Section 75-3-118 applies. The lower court committed harmless error in holding the three-year statute of limitations prescribed in Section 15-1-49 controlled, because BancorpSouth filed suit within that period. Accordingly, in affirming that court’s decision, we clarify that the more specific six-year statute of limitations under Section 75-3-118 applies in the present case.

CONCLUSION

¶ 19. The DeSoto County Circuit Court mistakenly held the Section 15-1-49 three-year statute of limitations period applies in this case. The appropriate statute of limitations on actions for unpaid promissory notes brought by non-foreclosing lenders is six years, pursuant to Section 75-3-118, as held in Jordan. The one-year statute of limitations provided in Section 15-1-23 applies to actions brought on promissory notes by foreclosing lenders, as this Court held in Lewis. BancorpSouth did not foreclose on the property; rather, it filed suit to enforce payment on a promissory note. Thus, Section 75-3-118 is the appropriate statute. We affirm the DeSoto County Circuit Court’s decision to grant judgment on the pleadings, but clarify that Section 75-3-118, rather than Sections 15-1-23 or 15-1-49, applies to actions brought by non-foreclosing lenders.

¶ 20. AFFIRMED.

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


author: RANDOLPH, Presiding Justice,

text:
    MISSISSIPPI POWER COMPANY v. MISSISSIPPI PUBLIC SERVICE COMMISSION and Bigger Pie Forum, LLC.
    No. 2013-CC-00682-SCT.
    Supreme Court of Mississippi.
    April 10, 2014.

      Ben Harry Stone, Ricky J. Cox, Leo Ernest Manuel, Gulfport, Michael Brant Pettis, Timothy Alan Ford, attorneys for appellant.
    Office of the Attorney General by William Jeffrey Jernigan, Harold Edward Piz-zetta, III, Robert P. Wise, Dorsey R. Carson, Jr., attorneys for appellees.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Mississippi Power Company (“Mississippi Power”) filed documents asserting confidentiality with the Mississippi Public Service Commission (“Commission”) related to a certificate-of-public-convenience- and-necessity proceeding in January 2009. In July 2012, Bigger Pie Forum (BPF) requested three of those documents from the Commission, and Mississippi Power sought a protective order. Following a hearing, Hinds County Chancellor Dewayne Thomas ordered that the documents be produced. Mississippi Power appealed.

FACTS AND PROCEDURAL HISTORY

¶2. On January 16, 2009, Mississippi Power filed a “Petition for a Certificate of Public Convenience and Necessity!,]” requesting authority to construct an electric generation facility in Kemper County, Mississippi (“Kemper Project”). Associated with that filing, Mississippi Power filed documents with the Commission, at least some of which were marked “confidential.” Ultimately, the Commission approved the Final Certificate Order on June 3, 2010.

¶ 3. On July 3, 2012, Bigger Pie Forum (“Bigger Pie”) requested several documents from the Commission marked confidential by Mississippi Power during the certificate proceeding in January 2009. On August 6, 2012, the Hinds County Chancery Court granted Mississippi Power a temporary protective order which prevented the Commission from releasing the “confidential” documents pending a hearing on the matter. Following a hearing on September 18, 2012, Hinds County Chancellor Dewayne Thomas denied Mississippi Power’s “Petition for Protective Order” and ordered that the documents be produced within ten days of his April 2013 ruling. Subsequently, Mississippi Power filed a “Notice of Appeal” and an accompanying motion to stay the order pending resolution of the appeal. The chancellor granted Mississippi Power’s motion to stay.

¶ 4. Although the chancery court granted Bigger Pie access to the requested documents, in its brief to this Court, Bigger Pie “reviewed its requests for disclosure ... and clarif[ied] exactly what portions of the three withheld documents it ... seeks disclosure.” Bigger Pie narrowed the information at issue to “the long term natural gas price forecast and a forecast of the economic impact of pending federal legislation of greenhouse gas emissions.” Bigger Pie seeks the forecast information Mississippi Power presented to the Commission in support of its choice of the Kemper plant as opposed to the other alternatives considered, ie., natural gas and nuclear. Bigger Pie argues, inter alia, that Mississippi Power’s choice of alternatives directly affects the “rates” that customers will be charged; therefore, under Mississippi Code Section 79-23-1(1), the information should be made available.

¶ 5. Mississippi Power argues that the information does not affect “rates” as contemplated by statute, and, even if it does affect rates, the information is nonetheless protected as “trade secrets or confidential commercial or financial information,” under Section 79-23-l(2). Mississippi Power also argues that the information was presented in a certificate-of-need (CON) proceeding — not a rate proceeding. Mississippi Power presented the documents under seal and requested that this Court conduct an in camera inspection, arguing that this case “involve[s] a straightforward matter of statutory interpretation as applied to the documentary evidence submitted by the parties.”

¶ 6. After the parties had fully briefed the issues before this Court, on October 21, 2013, Bigger Pie filed a “Motion ... to Dismiss [Mississippi Power’s] Appeal and Determine Damages pursuant to Rule 38 MRAP.” Bigger Pie asserted that it had learned, after filing its brief, that Mississippi Power had provided the same forecast information sought by Bigger Pie to the Wall Street Journal (WSJ) in July 2012. That information was published in an article by the WSJ regarding the Kem-per project. Bigger Pie further asserted:

“It is apparent that the tablet] of long term natural gas prices and C02 cost assumptions that the WSJ obtained from Southern/MPC ... is the information that BPF sought in its public records request.... Further, it is apparent that the natural gas price forecast and C02 cost assumption data revealed ... by Southern/MPC to the WSJ regarding the Kemper IGCC constitutes the data BPF sought in un-redacted form.... ”

Bigger Pie sought a damages sanction, arguing that Mississippi Power’s claim of “confidentiality” was fraudulent in light of the fact that it had released the same information to the WSJ.

¶ 7. Then, the very next day, Bigger Pie filed a motion withdrawing its October 21 motion, stating that it had conducted a search of its own records and discovered that Bigger Pie had “received the fuel price data [from Mississippi Power] ... that the Wall Street Journal has now published.” As a result of Bigger Pie’s request to narrow the scope of the appeal and [Bigger Pie’s post-brief revelations[,] it appeared that this appeal may be moot]. Thus, on December 13, 2013, this Court ordered “that the parties shall show cause why this proceeding should not be dismissed as moot and vacate the order of the chancery court.”

¶ 8. In its “Response to the Court’s En Banc Order,” Bigger Pie clarified:

The long term natural gas price forecast with C02 cost assumptions that [Mississippi Power] emailed to [Bigger Pie] in 2012 is a filing [Mississippi Power] made with the [commission] eleven months later dated December 7, 2009. [Bigger Pie] seeks the earlier January 19, 2009 long term natural gas forecast and C02 cost assumptions....

Bigger Pie submitted that this Court should “compare the sealed ... documents” with the forecast chart given to the WSJ and Bigger Pie in August 2012. If “the two forecasts are different,]” Bigger Pie contends “this case is not moot.”

¶ 9. In its “Response to Order to Show Cause[,]” Mississippi Power submitted that “the documents [it] filed confidentially with the ... Commission and that are the subject of this appeal are distinctively different than the information [Mississippi Power] provided to Bigger Pie and the Wall Street Journal.” Mississippi Power reiterated its argument that the documents “contain confidential, proprietary and/or trade secret information[,]” and are not subject to disclosure.

ANALYSIS

¶ 10. A review of the documents under seal and the forecast chart published by the WSJ reveals that the sealed documents contain information that is similar in kind, yet “distinctively different” from that published by the WSJ. The sealed documents contain various charts and graphs which pertain to natural gas price forecasting and C02 cost assumptions. The documents also contain information that does not relate to natural gas price forecasting and C02 cost assumptions.

¶ 11. First, we will address the latter information. Bigger Pie voluntarily narrowed the scope of the information that it sought on appeal to “the long term natural gas price forecast and C02 cost assumptions.” Bigger Pie is not seeking information which is outside its stated scope. Thus, this Court need not reach the issue of whether information not related to natural gas price forecasts and C02 cost assumptions is protected as “confidential, proprietary and/or trade secret information.”

¶ 12. Addressing the information that is within Bigger Pie’s stated scope, Bigger Pie argues, “[i]f the two forecasts are of the same kind of information, although using different gas price numbers, it follows that the earlier January 19, 2009 filing [Bigger Pie] seeks is no more a ‘secret’ or ‘trade secret’ than the later December 7, 2009 filing.” We agree. Mississippi Power’s revelation of natural gas price forecasts and C02 cost assumptions provided to the Commission in December 2009 militates against the argument that a similar forecast submitted in January 2009 would be entitled to confidential, secret status.

¶ 13. Finally, we will address the information which Bigger Pie is entitled to have produced. Most of the charts and graphs in the sealed documents are not in the same format as that published by the WSJ. The chart(s) that are in similar forms reveal numbers that are different from those published by the WSJ, but it is beyond our expertise to assess whether the various charts take into account the same considerations. Bigger Pie has argued that if “the two forecasts are different ... this case is not moot.” Simply put, we are unable to answer that question, for there is not a chart under seal that is identical to the published chart by which a side-by-side comparison can be made. However, whether the numbers are “different” is not the controlling issue. As discussed swpra, Bigger Pie is entitled to the January 2009 natural gas price forecasts and C02 cost assumptions similar in kind to those published by the WSJ. This information cannot be argued to be confidential, regardless of whether the numbers related to long-term natural gas forecasts and C02 cost assumptions are the same or different.

¶ 14. We affirm the judgment of the Hinds County Chancery Court to the extent that it ordered disclosure of the January 2009 gas price forecasts and C02 cost assumptions that are similar in kind to those published by the WSJ. However, we remand this case to the Chancery Court of Hinds County to consider the documents under seal and order that information pertaining to natural gas price forecasts and C02 costs assumptions be produced by Mississippi Power. Mississippi Power should not be compelled to produce portions of the documents which do not relate to natural gas price forecasts or C02 cost assumptions.

¶ 15. Such a determination may prove difficult, if not impossible, for the chancellor, based on the format of the sealed documents compared to the information published by the WSJ. A special master may be required. This Court “recognize[s] that reference to a special master without the consent of the parties is the exception and not the rule.” Lewis v. Lewis, 54 So.3d 216, 218 (Miss.2011) (citing Miss. R. Civ. P. 53(c)). Such “reference without the consent of the parties would require a finding by the chancellor of exceptional conditions.” Id. at 219. An exceptional condition would be the inability of the chancellor to discern what we likewise cannot. “The chancellory” not this Court, “is in the best position to make the determination of whether” the complexities of the documents under consideration “are sufficiently exceptional to warrant the appointment of a special master.” Id.

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

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

      . The Commission filed a brief in this matter but took “no position whether the requested documents are exempt from disclosure under the Mississippi Public Records Act.”

      . Bigger Pie is a media outlet which has covered the Kemper Project extensively and has expressed disapproval of the project.

        .See Miss.Code Ann § 79-23-1(1) (Rev.2013) ("Commercial and financial information of a proprietary nature required to be submitted to a public body, as defined by paragraph (a) of Section 25-61-3, by a firm, business, partnership, association, corporation, individual or other like entity, shall be exempt from the provisions of the Mississippi Public Records Act of 1983; provided, however, that nothing herein shall be construed to deny access to such information submitted to a regulatory agency by a public utility that is related to the establishment of, or changes in, rates regulated by such agency.”)

      . See Miss.Code Ann. § 79-23-1(2) (Rev. 2013) ("Nothing in this section shall be construed to deny a public utility the right to protect trade secrets or confidential commercial or financial information, as provided in subsection (1) of Section 25-61-9.”)

      . In the WSJ article, the "table” was entitled “Fuel Prices Used in 2009 Kemper Business Case (Certification Filing).”