author: CHAMBERLIN, JUSTICE, FOR THE COURT: COLEMAN, JUSTICE, DISSENTING:

text:
    MISSISSIPPI BAPTIST HEALTH SYSTEMS, INC., Baptist Medical Center-Leake, Inc., David Moody, M.D. and Madden Medical Clinic, PLLC v. Sylvia Dianne HARKINS and Reggie Harkins
    Baptist Medical Center-Leake, Inc., Mississippi Baptist Health Systems, Inc., David Moody, M.D. and Madden Medical Clinic, PLLC v. Sylvia Dianne Harkins and Reggie Harkins
    NO. 2016-IA-00398-SCT CONSOLIDATED WITH NO. 2016-IA-00399-SCT
    Supreme Court of Mississippi.
    February 15, 2018 Rehearing Denied June 21, 2018
    ATTORNEYS FOR APPELLANTS: D. COLLIER GRAHAM, JR., CHARLES E. COWAN, GINNY Y. KENNEDY, C. MAISON HEIDELBERG
    ATTORNEYS FOR APPELLEES: MICHAEL T. JAQUES, BOBBY L. DALLAS, JENNIFER P. BURKES
    EN BANC.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. In August 2014, Dianne and Reggie Harkins filed suit in the Circuit Court of the First Judicial District of Hinds County, alleging that the direct and proximate negligence of multiple healthcare providers located in Leake County and Hinds County resulted in, among other problems, the amputation of Dianne Harkins's hands and feet. In January 2015, Madden Medical Clinic, PLLC (Madden Medical) and David Moody, M.D. (Dr. Moody) filed a motion to dismiss or, alternatively, for severance and transfer of venue to the Circuit Court of Leake County. Shortly thereafter, Baptist Medical Center-Leake, Inc. (BMC-Leake) and Mississippi Baptist Health Systems, Inc. (Baptist Health) filed a motion also to dismiss or transfer venue to the Circuit Court of Leake County. A hearing was held on April 16, 2016. On February 26, 2016, the Circuit Court of the First Judicial District of Hinds County entered an order denying the motions of Dr. Moody, Madden Medical, BMC-Leake, and Baptist Health to dismiss or, in the alternative, to transfer venue. The parties appealed, collectively filing two interlocutory appeals, and both appeals were granted and consolidated.

¶ 2. The Court holds Section 11-11-3(3) to be clear and unambiguous. Under the plain language of Section 11-11-3(3), venue is proper for the properly joined defendants in Hinds County or Leake County, and the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 3. On March 11, 2013, Dianne Harkins arrived at the BMC-Leake emergency room at approximately 3:50 p.m. and complained of right flank pain. From 3:51 p.m. until 7:00 p.m., Harkins's blood pressure declined and her heart rate increased. That evening, a CT scan showed moderate to severe hydronephrosis, a dilated ureter, and the probable presence of calcifications in the right ureter. The emergency-room physician then admitted Harkins to the hospital to the care and service of Dr. Moody.

¶ 4. Dr. Moody evaluated Harkins at approximately 7:15 a.m. on March 12, 2013. After Harkins's vital signs were taken and noted at 7:48 a.m., Dr. Moody was notified of Harkins's declining condition, and he ordered medications to be administered. By 10:30 a.m., Harkins's blood pressure had dropped to 67/31. After being notified of Harkins's condition, Dr. Moody saw Harkins at approximately 10:50 a.m. At 11:15 a.m., Dr. Moody ordered Harkins to be transferred via air ambulance to Mississippi Baptist Medical Center in Jackson. Harkins was transferred at approximately 12:25 p.m. Dr. Moody's discharge summary reflected that Harkins was transferred with hydronephrosis and shock.

¶ 5. Harkins arrived at Mississippi Baptist Medical Center in Jackson at approximately 1:10 p.m., and she was admitted to the emergency room. Harkins was prescribed antibiotics at 2:13 p.m. The complaint alleges that Harkins was not given antibiotics until 3:00 and/or 3:45 p.m. Harkins was then admitted to Baptist Medical Center's critical care unit with acute respiratory failure, hypotension, sepsis, septic shock, acidemia, pneumonia, renal failure syndrome, and urethral stone with urosepsis. Harkins developed more complications during her stay in the critical care unit which culminated in the development of gangrene in Harkins's hands and feet. Due to the development of gangrene, both Harkins's hands and feet were amputated.

¶ 6. On August 29, 2014, based on the events described above, Harkins filed a medical-malpractice suit. Harkins's husband, Reggie Harkins, also brought a claim for loss of consortium. In January 2015, Madden Medical and Dr. Moody filed a motion to dismiss or, alternatively, to sever and transfer venue to Leake County. Thereafter, BMC-Leake and Baptist Health also filed a motion to dismiss or transfer to Leake County. In their respective motions, each party cited Mississippi Code Section 11-11-3(3), arguing that Leake County is the only proper venue for each of them based on the facts.

¶ 7. On February 26, 2016, the Hinds County Circuit Court entered an order denying the motions of Dr. Moody, Madden Medical, BMC-Leake, and Baptist Health (collectively, "Leake County Appellants") to dismiss or, in the alternative, to transfer venue. Aggrieved by the denied motions to dismiss or transfer, the Leake County Appellants filed interlocutory appeals. This Court granted each appeal and consolidated the appeals.

STATEMENT OF ISSUES

¶ 8. The briefs that the parties and friends of the Court have filed each set forth their rendition of the issue or issues. For clarity and conciseness, the Court has consolidated the issues into one issue with two subsections. Because the Court holds the single issue and two subsections to be case-dispositive of all additional issues brought before the Court and aptly argued during oral argument, the additional issues are not addressed.

Whether, under Mississippi Code Section 11-11-3(3), the malpractice allegations against all the medical defendants may be brought in Hinds County, when the alleged malpractice occurred in Hinds County and in Leake County.
(a) Whether Mississippi Code Section 11-11-3(3) is plain and unambiguous.
(b) Whether Mississippi Code Section 11-11-3(3) prevents joinder.

STANDARD OF REVIEW

¶ 9. The Court reviews "a trial court's grant or denial of a motion for change of venue for an abuse of discretion, but questions of law, such as interpretation of the general venue statute, are reviewed de novo ." Laurel Ford Lincoln-Mercury, Inc. v. Blakeney , 81 So.3d 1123, 1125 (Miss. 2012) (emphasis in original) (citing Hedgepeth v. Johnson , 975 So.2d 235, 237 (Miss. 2008) ).

ANALYSIS

Whether, under Mississippi Code Section 11-11-3(3), the malpractice allegations against all the medical defendants may be brought in Hinds County, when the alleged malpractice occurred in Hinds County and in Leake County.

¶ 10. The Harkinses do not dispute that all the alleged malpractice on the part of the Leake County Appellants occurred in Leake County, not in Hinds County. The issue of venue, however, arises under Section 11-11-3(3) because additional alleged malpractice occurred in Hinds County by Mississippi Baptist Medical Center. The Harkinses argue that the malpractice in both counties created one injury that prevents the separate alleged acts of malpractice from being severable. The Leake County Appellants argue the alleged medical negligence in Hinds County should be severed, and venue as to them is appropriate in Leake County alone. Our analysis rests on Section 11-11-3(3), and for the below-detailed reasons, we affirm the trial court judgment.

(a) Whether Mississippi Code Section 11-11-3(3) is plain and unambiguous.

¶ 11. The Leake County Appellants argue that the language of the statute is plain and unambiguous, providing that the only proper venue for a suit against a medical provider is the county in which the alleged act or omission occurred. Without stating whether the statute is clear or ambiguous, the Harkinses argue that Section 11-11-3(3) limits the plaintiffs' venue choices to a county in which the alleged acts or omissions of medical malpractice occurred.

¶ 12. The Court's role "is not to decide what a statute should provide, but to determine what it does provide." Lawson v. Honeywell Int'l, Inc. , 75 So.3d 1024, 1027 (Miss. 2011). The Court examines the statute and linguistic choices as a whole, not looking to the words in isolation. Miller v. French , 530 U.S. 327, 340, 120 S.Ct. 2246, 2255, 147 L.Ed.2d 326 (2000) ; In re Settoon Towing, L.L.C. , 859 F.3d 340, 345 (5th Cir. 2017). "If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction." Lawson , 75 So.3d at 1027. On the other hand, if a statute is "ambiguous or silent," statutory interpretation is warranted. Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid , 21 So.3d 600, 607 (Miss. 2009).

¶ 13. Mississippi Code Section 11-11-3, in pertinent part, provides:

(1)(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.
(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.
(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.
...
(3) Notwithstanding subsection (1) of this section, any action against a licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred .

Miss. Code Ann. § 11-11-3 (Rev. 2004) (emphasis added). The instant version of Section 11-11-3 is a product of the 2004 amendment. Prior to 2004, no special venue distinction existed for medical-malpractice suits. H.B. 13, 2004 Leg., 1st Exec. Sess. (Miss. 2004). ¶ 14. The dispute here revolves around the understanding of the word "only" in subsection three. "All words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning." Miss. Code Ann. § 1-3-65 (Rev. 2014); see also Lawson , 75 So.3d at 1028. To determine whether the meaning of "only" is plain and unambiguous, the Court evaluates the statute and linguistic choices as a whole, beginning our analysis with subsection one. Miller , 530 U.S. at 340, 120 S.Ct. 2246 ; In re Settoon Towing, L.L.C. , 859 F.3d at 345.

¶ 15. Subsection one addresses venue for general civil litigation and states that the action shall be commenced: (1) "in the county where the defendant resides," (2) "in the county of its principal place of business" "if a corporation," (3) "in the county where a substantial alleged act or omission occurred," (4) "where a substantial event that caused the injury occurred," (5) "in the county where the plaintiff obtained the product" if alleging a "defective product." Miss. Code Ann. § 11-11-3(1)(a)(i)-(ii). Further, for products liability actions, Section 11-11-3(1)(b) allows the plaintiff to commence an action "in the county where the plaintiff resides or is domiciled" if the defendant is a nonresident. Miss. Code Ann. § 11-11-3(1)(b).

¶ 16. When deciding where to file an action, the plaintiff may have more than one county from which to pick. Am. Home Prods. Corp. v. Sumlin , 942 So.2d 766, 769 (Miss. 2006) ("Of right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no factual basis for the claim of venue."). However, "in the county where the defendant resides" could provide the plaintiff two different possible and proper venues when there is more than one defendant. Thus, because each venue option listed in the paragraph above may define more than one county, they are best described as venue categories . Subsection one contains six possible venue categories, and depending on the facts of each case, even more possible proper venue counties.

¶ 17. Subsection two addresses venue for cases with more than one plaintiff. Miss. Code Ann. § 11-11-3(2). Subsection four addresses the doctrine of forum non conveniens . Miss. Code Ann. § 11-11-3(4). For our analysis, subsections two and four are not pertinent.

¶ 18. Moving to subsection three, first we encounter the following: "Notwithstanding subsection (1) of this section ...." Miss. Code Ann. § 11-11-3(3). The dissent argues that "notwithstanding" means we should not look to subsection one. In essence, we should consider subsection three in isolation. We respectfully disagree. "Notwithstanding" ensures that subsection one does not define or allow additional venues for medical-malpractice cases. Adams v. Baptist Mem'l Hosp.-DeSoto, Inc. , 965 So.2d 652 (Miss. 2007) ("The presence of medical providers in [an] action renders subsection (1) inapplicable, as the 'notwithstanding' language of subsection (3) negates the language of subsection (1)."). However, despite the "notwithstanding" language, Section 11-11-3 was written as one statute. To read "notwithstanding" to mean we are restrained to look only to subsection three in isolation prevents us from considering the linguistic choices as whole, which are crucial to reading the plain language in subsection three. See Miller , 530 U.S. at 340, 120 S.Ct. 2246 ; In re Settoon Towing, L.L.C. , 859 F.3d at 345.

¶ 19. Subsection three then goes on to list specific types of medical providers and the types of claims that may be brought. See Miss. Code Ann. § 11-11-3(3). It then states the venue language at issue. It states that the action "shall be brought only in the county in which the alleged act or omission occurred." Miss. Code Ann. § 11-11-3(3). Unlike subsection one, subsection three contains one single or sole venue category for medical malpractice-"the county in which the alleged act or omission occurred." Id. Thus, "only" defines the sole category to determine the venue for a medical-malpractice action. The question now becomes whether the singularity of the category confines the venue choice to one county.

¶ 20. The Legislature has stated: "Words used in the singular number only, either as descriptive of persons or things, shall extend to and embrace the plural number; and words used in the plural number shall extend to and embrace the singular number, except where a contrary intention is manifest." Miss. Code Ann. § 1-3-33 (Rev. 2014). Therefore, as long as there is no manifest contrary intention, the statutory language also can be read as stating that the action "shall be brought only in the count[ies] in which the alleged act[s] or omission[s] occurred." See Miss. Code Ann. § 11-11-3(3).

¶ 21. To determine if there is a manifest contrary intention, the Court looks to subsection one. Subsection one provides in pertinent part:

(1)(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.
(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.
(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

Miss. Code Ann. § 11-11-1 (emphasis added). The language illustrates that subsection one similarly contains words in the singular form when referring to "the county" in which suit may be filed and the "act or omission" or "event" that occurred. Id. Further, as stated above, for each category, plaintiffs falling under subsection one may choose from more than one county for proper venue. Sumlin , 942 So.2d at 769 ("Of right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no factual basis for the claim of venue."). Therefore, the Court holds there is no manifest contrary intention to keep the language singular in Section 11-11-3(3), and under case-specific facts, subsection three may take the plural form.

¶ 22. It is foreseeable that the Court could be faced with a scenario in which the same doctor committed malpractice on the same defendant in more than one county. Under the instant reading of the statute, all the counties would satisfy the single category defined in Section 11-11-3(3). However, if the Court were to adopt the Leake County Appellants' and the dissent's reading of the statute, the plaintiff would have to file a suit against the same doctor in each and every county where the doctor committed malpractice. This simply does not comport with any plain or logical reading of the language of Section 11-11-3(3).

¶ 23. Thus, considering that our role is to determine what a statute does provide, Section 11-11-3(3) plainly and unambiguously provides that where both defendants are private medical defendants and where an act or omission occurred in both counties forming an indivisible injury, both counties satisfy the single category defined within Section 11-11-3(3). The issue now becomes whether Section 11-11-3(3) prevents joinder of the two medical defendants.

(b) Whether Mississippi Code Section 11-11-3(3) prevents joinder.

¶ 24. The Leake County Appellants argue that joinder under Rule 20 does not cure improper venue because if joinder was allowed, a Leake County Appellant-who committed all its alleged acts or omissions in Leake County-would be brought into court in Hinds County. Dr. Moody and Madden Medical specifically point to Adams , 965 So.2d at 657, to argue that cases involving "a medical malpractice defendant and another defendant" are "only appropriate in the county where the alleged malpractice occurred." Further, they argue that difficulty in splitting up fault and damages is not a reason to allow joinder and disregard venue.

¶ 25. On the other hand, the Harkinses argue that, because both defendants are medical providers, there is no mandated legislative priority of venue; both defendants fall equally under Section 11-11-3(3), and the joinder provisions of Rule 20 and Rule 82 should be similarly read to fix venue in either county that satisfies the priority-venue requirements of Section 11-11-3(3). Further, the Harkinses state that if the case is severed, complete relief cannot be accorded.

¶ 26. Section 11-11-3(1) has not been construed to prevent permissive joinder under Rule 20 of the Mississippi Rules of Civil Procedure or application of Rule 82(c) of the Mississippi Rules of Civil Procedure. It is an issue of first impression for the Court whether Section 11-11-3(3) allows permissive joinder under Rule 20 of the Mississippi Rules of Civil Procedure and application of Rule 82(c) of the Mississippi Rules of Civil Procedure where both defendants are medical providers.

¶ 27. Rule 20(a) of the Mississippi Rules of Civil Procedure allows permissive joinder. It states in pertinent part:

All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

Miss. R. Civ. P. 20(a). Rule 82(c) of the Mississippi Rules of Civil Procedure states: "Where several claims or parties have been properly joined, the suit may be brought in any county in which any one of the claims could properly have been brought." Miss. R. Civ. P. 82(c).

¶ 28. As explained above, the existence of one category for venue is different from the existence of one county for venue, and two counties may satisfy the only category for determining venue. Therefore, where two medical defendants fall within the same category, the Court holds that Section 11-11-3(3) does not contain any language preventing permissive joinder under Rule 20. Further, the plain language does not prevent the application of Rule 82(c). Turning to the instant case, the Leake County Appellants and Baptist Medical Center in Hinds County satisfy the only category for venue, albeit in different counties. Therefore, they have been joined properly, and due to the proper joinder of the Leake County Appellants and Baptist Medical Center, the claim can be brought in either of the two counties, under Rule 82(c).

¶ 29. It is worth noting that, unlike here, in the Mississippi Tort Claims Act, the Legislature specifically noted that joinder of nongovernmental entities should not change the venue of a party falling under the Act. See Miss. Code Ann. § 11-46-13(2) (Rev. 2012). Section 11-46-13 states in pertinent part, "The venue specified in this subsection shall control in all actions filed against governmental entities, notwithstanding that other defendants which are not governmental entities may be joined in the suit , and notwithstanding the provisions of any other venue statute that otherwise would apply." Id. (emphasis added). Thus, despite joinder, if the Legislature wanted to limit the defendants in the instant suit to the county in which each respective alleged act or omission took place, the Legislature could have done so as it did in Section 11-46-13.

¶ 30. In summation, the Court reads Section 11-11-3(3) in harmony with Rules 20 and 82(c)of the Mississippi Rules of Civil Procedure. Due to the permissive joinder of the Leake County Appellants and Baptist Medical Center, the claim can be brought in either of the two counties. Further, because the Court holds that the plain language allows permissive joinder, the Court will not address the additional arguments put forth by the parties regarding compulsory joinder, including claim and issue preclusion.

CONCLUSION

¶ 31. The Court affirms the judgment of the trial court and holds Section 11-11-3(3) to be plain and unambiguous. Under the instant facts, the Harkinses are allowed to choose between the two counties, as both counties satisfy the categorical requirement contained in Section 11-11-3(3) and both defendants are properly joined.

¶ 32. AFFIRMED AND REMANDED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, BEAM AND ISHEE, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MAXWELL, J.

COLEMAN, JUSTICE, DISSENTING:

¶ 33. The Legislature sets venue for civil actions in Mississippi. Whether the Supreme Court sees wisdom or folly in the statute passed by the Legislature, we are constrained by the Constitution to follow it unless it is unconstitutional beyond a reasonable doubt. In Mississippi Code Section 11-11-3(3), the law of Mississippi requires venue in medical malpractice actions against a given caregiver to be set in the county in which the negligence alleged against the caregiver occurred. Because the majority's holding today departs from the law as set by the Legislature, I, with respect, dissent.

¶ 34. Statutes establish venue. Salts v. Gulf Nat'l Life Ins. Co. , 743 So.2d 371, 373 (¶ 7) (Miss. 1999) ; Bd. of Trustees of State Inst. of Higher Learning v. Van Slyke , 510 So.2d 490, 492 (Miss. 1987). The statute governing the venue issue in the case sub judice reads as follows:

Notwithstanding subsection (1) of this section, any action against a licensed physician, osteopath, dentist, nurse, nurse-practitioner, physician assistant, psychologist, pharmacist, podiatrist, optometrist, chiropractor, institution for the aged or infirm, hospital or licensed pharmacy, including any legal entity which may be liable for their acts or omissions, for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred.

Miss. Code Ann. § 11-11-3(3) (Rev. 2004). "When interpreting a statute that is not ambiguous, this Court will apply the plain meaning of the statute." Pitalo v. GPCH-GP, Inc. , 933 So.2d 927, 929 (¶ 5) (Miss. 2006). To determine the plain meaning, "we must look at the words of the statute." Adams v. Baptist Mem'l Hosp.-DeSoto, Inc. , 965 So.2d 652, 656 (¶ 21) (Miss. 2007).

¶ 35. The effect of the above-quoted statute is straightforward and clear. An action sounding in medical negligence against a given caregiver may be brought only in the county in which the alleged negligent act or omission occurred. When the Hinds County Circuit Court denied the Leake County defendants' motion to transfer venue of the claims against them, it allowed the claim for negligent acts alleged to have occurred in Leake County to proceed in a county other than the one where the alleged acts or omissions took place, i.e. , Hinds County. The court's denial of the motion contradicted Section 11-11-3(3)'s clear directive.

¶ 36. It is a "fundamental rule of our sovereignty" that "the legislature has the power to enact any law it sees fit, be it sincere or hypocritical, moral or immoral, wise or foolish, beneficial or harmful, provided it does not violate the prohibitions of the State or Federal Constitution." State v. Wood , 187 So.2d 820, 827 (Miss. 1966). I share many of the concerns raised by the plaintiffs that arise from a statute that requires plaintiffs to split their causes of action, which if they sounded in another area of law would be tried together, between two different venues. However, those policy concerns and the ill effects, if any, of poor policy decisions that fall within the legislative prerogative cannot be our concern when the effect of the statute in question is clear and no questions regarding its constitutionality are raised. In effect, if the Legislature has spoken, the nine lawyers sitting on the Mississippi Supreme Court, pursuant to our constitutional separation of powers, must listen absent a concern over the constitutional validity of a statute. "The function of the Court is not to decide what a statute should provide, but to determine what it does provide." Lawson v. Honeywell Int'l, Inc. , 75 So.3d 1024, 1027 (¶ 7) (Miss. 2011). Again, no party to the instant case has challenged the constitutionality of Section 11-11-3(3).

¶ 37. The majority reaches its holding, i.e. , that the venue statute allows plaintiffs to bring suit in Hinds County against the defendants whose alleged negligence occurred in Leake County, in part by interpreting it in light of Section 11-11-3(1). (Maj. Op. at ¶¶ 15-19). However, the Legislature explicitly included in Subsection 3 that it applies "[n]otwithstanding" subsection 1. The majority also relies on Mississippi Code Section 1-3-33 for the proposition that the Legislature itself has authorized courts to construe singular nouns as plural and plural as singular "as long as there is no contrary intention." (Maj. Op. at ¶ 20). As applied to Section 11-11-3(3), the Legislature made its contrary intent crystal clear when it added the word "only." An action against a physician "shall be brought only in the county in which the alleged act or omission occurred." Miss. Code Ann. § 11-11-3(3) (Rev. 2004) (emphasis added). In my opinion, the word "only" manifests the intention that the word "county" hold its singular form.

¶ 38. For the foregoing reasons, I would reverse and remand with instructions for the trial court to sever the claims against the Leake County defendants and transfer them to Leake County.

MAXWELL, J., JOINS THIS OPINION.

      Baptist Medical Center in Hinds County did not join the motions or file its own motion; therefore, it is not a party to the instant appeal.

      Madden Medical and Dr. Moody collectively filed one appeal, and BMC-Leake and Baptist Health collectively filed the other appeal.

      Mississippi State Medical Association, Mississippi Hospital Association, Mississippi Dental Association, Mississippi Health Care Association, and Mississippi Nurses Association collectively filed an amici curiae brief in support of the Leake County Appellants. Further, The Mississippi Association for Justice filed an amicus curiae brief in support of the Harkinses.

      Although the meaning of "notwithstanding" was addressed in Adams , Adams is distinguishable from the instant case because, unlike here, Adams addressed venue for a medical and a nonmedical defendant. Adams , 965 So.2d at 652.

      The Leake County Appellants place great weight on Adams . Adams , 965 So.2d at 652. However, despite the weight placed on Adams , the issue here still is an issue of first impression because Adams dealt with a medical and a nonmedical defendant. Id.


source: Caselaw Access Project

author: KING, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    GERALD EMMETT BEARD, Charles Jules Michel, Harold Joseph Byrd, Nils Kerem Mungan, George Thatcher Shepard, Jr., Matthew Denson DeShazo, William M. Aden, Thomas I. Rice, III and Joel G. Payne, Jr. v. CITY OF RIDGELAND, Mississippi and Mayor and Board of Aldermen of the City of Ridgeland
    NO. 2017-CC-00669-SCT
    Supreme Court of Mississippi.
    April 19, 2018
    ATTORNEYS FOR APPELLANTS: WILLIAM DEMENT DRINKWATER, NORMAN ELVIN BAILEY, JR., SHELDON G. ALSTON, Jackson
    ATTORNEYS FOR APPELLEES: JERRY L. MILLS, JOHN PRESTON SCANLON, Ridgeland
    EN BANC.
   KING, JUSTICE, FOR THE COURT:

¶ 1. Shortly after the adoption of its current comprehensive zoning ordinance and map in 2014, the City of Ridgeland ("the City"), on June 2, 2015, adopted an amendment to the zoning ordinance, creating as a permitted use in general commercial ("C-2") districts a Large Master Planned Commercial Development ("LMPCD"). The amendment allowed uses previously prohibited in C-2 districts and created an opportunity for the potential location of a Costco Wholesale ("Costco") off Highland Colony Parkway. Appellants Gerald Emmett Beard, Charles Jules Michel, Harold Joseph Byrd, Nils Kerem Mungan, George Thatcher Shepard Jr., Matthew Denson DeShazo, William M. Aden, Thomas I. Rice III, and Joel G. Payne Jr., residents of the City who live in nearby neighborhoods, appealed the City's decision, arguing that the amendments constitute illegal rezoning and/or spot zoning.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2009, the City adopted a Comprehensive Plan for land development to serve as a policy guide for the economic development of Ridgeland. General commercial districts were listed as C-2, C-2A, C-3, and C-6 districts. These districts were to include businesses in which the principal activity is conducted indoors. However, it stated that certain land uses that involve some outdoor activities could be permitted in these areas.

¶ 3. On February 4, 2014, the City replaced its 2001 comprehensive Zoning Ordinance and Map and adopted its current comprehensive Zoning Ordinance and Map, in which the proposed Costco site was rezoned from a C-4 district to a C-2 district. C-2 districts did not permit gas stations, fast-food drive-through restaurants, drive-through pharmacies, banks, drive-through automatic teller machines (ATMs), food-product carry-out or delivery stores, or laundry and dry-cleaning pickup stations as either permitted or conditional Uses. A C-2 district was defined as follows:

410.01 PURPOSE OF THIS DISTRICT:
A. The purpose of this district is to promote the development of well-planned shopping centers and independent (free-standing) commercial uses within carefully selected areas of the City of Ridgeland. The commercial activities permitted in this district include uses of a higher intensity than those first allowed in Low-Intensity Commercial districts (C-1).
B. It is the intent of this Ordinance that shopping centers and independent commercial uses be developed so that pedestrian and vehicular circulation is coordinated with the circulation patterns of adjacent properties in the vicinity that are also affected. In order to facilitate access between adjoining properties and to reduce the number of curb cuts onto arterial streets, the installation of a service drive shall be considered in connection with any independent commercial use (i.e., a commercial use that is not a part of a shopping center) proposed in this district.
410.02 LAND USES PERMITTED:
A. All commercial uses allowed in the Low-Intensity Commercial (C-1) District, subject to all C-1 district regulations.
B. Business-related retail and service establishments first permitted in Low-Intensity Commercial (C-1) District (no size restrictions).
C. Commercial uses in which services performed and merchandise offered for sale are conducted or displayed entirely within enclosed structures, including department stores (full line or discount) and furniture and appliance stores.
D. Shopping centers located on minimum sites of three (3) acres on an existing or proposed arterial street as shown on the adopted Thoroughfares Plan; shopping centers may contain any of the uses permitted outright in C-2 zones.
E. Strip Center Developments.
F. Hotels and motels and related restaurants.
G. Broadcast studios (with transmitting towers located elsewhere).
H. Commercial healthcare facilities, such as dialysis centers, physical therapy facilities, diagnostic and imaging facilities, 24-hour medical clinics, etc.
I. Veterinary clinics and pet shops, excluding outside runs (kennels) subject to Special Use Site Plan Standards in Section 600.14.F.
J. Mortuaries, funeral homes, mausoleums, chapels and related facilities subject to Special Use Site Plan Standards in Section 600.14.F.
K. Public streets, highways, private streets, and alleys.
L. Free standing, enclosed restaurants including fast food and fast casual restaurants with no drive-thru (excluding drive-in restaurants).
410.03 CONDITIONAL USES AND STRUCTURES AS PROVIDED UNDER SECTION 600.09
A. Townhouses, patio homes, and zero lot line homes subject to the regulations of the R-3 Single Family Residential District, R-4 Zero Lot Line Residential District, and R-4A Townhouse Residential District provided: that the front yard setback for these residential uses when fronting on a principal arterial or minor arterial street (according to the adopted Thoroughfares Plan); shall be at least 100 feet from the existing or proposed street right-of-way of such arterial streets; or that noise mitigation measures, acceptable to the Mayor and Board of Aldermen (such as berms), be installed by the developers of these residential uses.
B. Public or quasi-public facilities and utilities in compliance with Section 32 and other regulations of this Ordinance.
C. Other Conditional uses listed under the C-1 Low-Intensity Commercial District regulations.
D. Buildings in excess of 48 feet or four stories.

¶ 4. The commercial zoning districts progressively increased in commercial intensity. The next commercial zoning district listed was a General Commercial District ("C-2A") (Arterial Streets). The purpose of a C-2A district was to "allow property ... on arterial streets to have additional permitted uses because of the volume of traffic located in these areas." All commercial uses allowed in C-2 districts also were permitted in C-2A districts, in addition to: food-product carry-out and delivery stores; banks, branch banks, drive-through ATMs, and other banking facilities; laundry and dry-cleaning pickup stations; restricted uses ; and public streets, highways, private streets, and alleys. Conditional uses for C-2(A) districts included: fast-food restaurants with drive-through, fast casual restaurants with drive-through, and drive-in restaurants; convenience stores; service stations; convenience grocery stores; pharmacies with a drive-through; other conditional uses listed under the C-2 general commercial district regulations; lawn and garden equipment sales and service (excluding outside sales and display); coin-operated laundromats; and public or quasi-public facilities or utilities might be considered as conditional uses subject to the provisions of Section 32 of the ordinance.

¶ 5. The next commercial zoning district was a convenience commercial district ("C-3"), whose stated purpose was:

to establish specific areas for the development of convenience commercial uses. These uses generate heavier vehicular traffic volumes than uses first allowed in the C-2 General Commercial districts. The uses first permitted in this district tend to generate more noise and litter than General Commercial uses. These districts are appropriate for location near the intersections of arterial streets, well away from ANY residential uses.

Permitted uses in C-3 districts included any use permitted outright in C-2A districts, as well as convenience stores; convenience grocery stores; service stations; fast-food restaurants, drive-through restaurants, and drive-in restaurants; photomats; public streets, highways, private streets, and alleys; and pharmacies with drive-through. Conditional uses in C-3 districts included: public or quasi-public facilities or utilities; climate-controlled storage facilities; car washes/vacuum-cleaner stations and quick car-care clinics (lubrication, tune-up, etc.); and free-standing "game rooms," for electronic video games, pool tables, etc.

¶ 6. Shortly after the February 2014 adoption of the new comprehensive zoning ordinance, in March 2014, Alan Hart, Director of Community Development for the City, prepared concept plans to send to a Costco representative regarding the possibility of locating a Costco in Ridgeland. In August 2014, the City submitted six potential sites along I-55 for Costco to consider. Costco's consultant determined that the Highland Colony Parkway site most aptly suited its requirements. The proposed Costco site was to be located on a forty-five-acre tract along the east side of Highland Colony Parkway, south of Old Agency Road. Once negotiations began, the City was advised that all discussions must be held in strict confidence.

¶ 7. In September 2014, City officials nicknamed the Costco project "Project Santa Claus" in order to keep the venture confidential from the public. At that point, the Board of Aldermen, the city engineer, and the public works director had not been informed of the talks with Costco. Mayor Gene McGee repeatedly stated to the press and public that rumors regarding a Costco locating in Ridgeland were untrue, even subsequent to an article in the Jackson Clarion-Ledger stating that Costco had posted job openings for a Ridgeland location.

¶ 8. Costco representatives then began the process of acquiring the necessary real estate. On November 5, 2014, Mayor McGee sent an email to Dan Venable, Costco's local real estate agent, stating that Mayor McGee's "staff will bend over backwards to assist [Venable] with all [his] needs."

¶ 9. Costco chose Andrew Mattiace, the developer of The Renaissance at Colony Park, to lead the development and acquisition of the Costco project. On November 12, 2014, Hart emailed a Costco representative regarding a meeting held the previous week. Hart stated that the sale of all goods except for the fuel center complied with the City's current zoning regulations. He then wrote, "[w]e also believe that we can appropriately amend the language of the zoning ordinance to accommodate the accessory detached fuel facility. That process would take less than 60 days and could be done in as few as 30 days." The record also includes an email Mattiace sent to Hart on November 19, 2014, requesting that Hart call him because "we have a BIG question regarding zoning."

¶ 10. On February 27, 2015, at a planning retreat, Mayor McGee first informed the Board of Aldermen that Costco was the anchor tenant being considered and stated that all discussions must be confidential.

¶ 11. On April 23, 2015, Mattiace's attorney, Mark Davis, sent Hart an email stating that the Purchase and Sale Agreement for the Costco site would require that the seller make representations about the zoning status of the property:

including the fact that the property can be used for a vehicle fueling facility. Since the Santa site is zoned C-2, the seller cannot make that representation without an exception to explain that the property cannot be used for a vehicle fueling facility. [Mattiace] indicated that the City is proposing an amendment of the zoning code to resolve that matter. To make the exception in the Purchase and Sale Agreement acceptable, the seller will need to provide an explanation about the proposed amendment. A copy of the proposed amendment and a proposed schedule for its adoption would be helpful to keep the proposed transaction moving....

Hart responded with an email stating:

Yes. I will have something to you by the beginning of next week provided [Mattiace] can offer me some specific parameters of the project, which will assist me in shaping the "draft" ordinance amendment. Information like use types and square footages of each would be a good start. I would also ask for any wisdom regarding anything else that would make this development unique to any other. We also discussed the importance of making the uses "Permitted Uses."

On May 1, 2015, Hart sent Davis an email with the proposed zoning language, stating that Hart would like comments before he sent it to "Santa Claus" for review. Davis responded that he had "made a few tweaks" that he needed to go over with Mattiace.

¶ 12. The proposed amendment expanded the definition of "Service Station," adding the sale of propane and other fuels to the term. In addition, it created an LMPCD, which allowed for uses prohibited in C-2 districts. The adopted zoning amendment defined an LMPCD as:

Any large commercial development consisting of a group of one (1) or more contiguous separately owned or ground leased tracts or parcels that contain, among the group of tracts or parcels, at least one building for occupancy for retail/wholesale purposes exceeding 100,000 square feet of heated and cooled space for the indoor display and sale of goods, a site with a minimum of 15 contiguous acres, access to an Arterial Street, and approved by the Mayor and Board of Aldermen which may or may not include conditions. Large Master Planned Commercial Developments may include any of the uses permitted in the underlying Zoning District as well as Service Stations; Banks, branch banks, drive-thru ATM's, and other banking facilities; Food product and carry-out and delivery stores, laundry and dry cleaning pickup stations; Fast Food Restaurant with drive-thru; Fast Casual Restaurant with drive-thru; Pharmacy with a drive-thru; and outdoor display of goods in designated areas approved by the Mayor and Board of Aldermen in one (1) or more locations not exceeding an aggregate of 15,000 square feet.

¶ 13. On May 5, Davis emailed Hart, informing him that he had discussed the proposed amendments with Mattiace. Davis stated that the proposed language for the new service-station definition was acceptable. However, Davis proposed amendments to the language regarding the LMPCD. Two hours after Davis sent the proposed changes, Mayor McGee and the Board of Aldermen held their regularly scheduled public meeting and voted to set a public hearing to consider amending the Official Zoning Ordinance. The City published notice of the hearing in the Madison County Journal on May 14, 2015. On June 2, 2015, the City adopted the version of the zoning ordinance that included Mattiace's proposed language.

¶ 14. Businesses in the State of Mississippi have the opportunity to qualify for significant tax incentives through the Mississippi Tourism Project Incentive Program. In order to qualify, a development may be considered as a "cultural retail attraction":

a project which combines destination shopping with cultural or historical interpretive elements specific to Mississippi with a minimum private investment of Fifty Million Dollars ($50,000,000.00) in land, buildings, architecture, engineering, fixtures, equipment, furnishings, amenities and other related soft costs approved by the Mississippi Development Authority and which ... is located in a qualified resort area ... and is a part of a master-planned development .

Miss. Code Ann. § 57-26-1 (Rev. 2014) (emphasis added). On June 11, 2015, a Mattiace representative emailed Hart, requesting that the City approve the Costco site as a "qualified resort area." The City approved the site as a qualified resort area on June 16, 2015.

¶ 15. In July 2015, anti-Costco emails began to be sent to the Board of Aldermen. Mayor McGee and the Board of Aldermen continued to deny that a Costco was coming to Ridgeland.

¶ 16. The Appellants herein, residents of subdivisions near the proposed Costco site, filed a Complaint for Declaratory Judgment on November 25, 2015. The Appellants argued that the June 2, 2015, zoning ordinance amendment should be declared invalid because it had been adopted without notice and for the specific purpose of benefitting a favored developer. Instead of litigating the issue further, the City revised and republished its notice and held another hearing to consider the same subject.

¶ 17. On February 16, 2016, the City voted to hold a public hearing scheduled for April 5, 2016, to consider the adoption of an ordinance that would repeal the zoning amendments adopted on June 2, 2015, and would replace those amendments with a new amendment of substantially similar language. The City noticed the public hearing on February 25, 2016.

¶ 18. The new amendment defined LMPCD as:

Any large commercial development consisting of one (1) or more contiguous parcels that may be individually owned, separately owned, or ground leased tracts or parcels that meets the following criteria, among the group of tracts or parcels: (a) contains at least one building for occupancy for retail/wholesale purposes exceeding 100,000 square feet of heated and cooled space for the indoor display and sale of goods, (b) is a site with a minimum of 15 contiguous acres, and (c) has access to an Arterial Street. Before any land may be defined as a Large Master Planned Commercial Development, a site plan thereof shall be approved by the Mayor and Board of Aldermen. The Mayor and Board of Aldermen may impose conditions or restrictions as part of the approval. Large Master Planned Commercial Developments may include any of the uses permitted in the underlying Zoning District as well as Service Stations; Banks, branch banks, drive-thru ATM's, and other banking facilities; Food product and carry-out and delivery stores, laundry and dry cleaning pickup stations; Fast Food Restaurant with drive-thru; Fast Casual Restaurant with drive-thru; Pharmacy with a drive-thru; and outdoor display of goods in designated areas approved by the Mayor and Board of Aldermen in one (1) or more locations not exceeding an aggregate of 15,000 square feet.

¶ 19. In the April 5, 2016, meeting, counsel for the City argued that the proposed amendments were general textual amendments to the current zoning ordinance and that the amendments did not constitute a rezoning. However, Alderman D.I. Smith testified that "we were told in February of 2015 for the very first time that Costco was interested in rezoning...." Alderman Ken Heard argued that the zoning amendment language was "tailor made for a very specific project." By a four-three vote, the Board of Aldermen voted to adopt the new amended zoning ordinance.

¶ 20. The Appellants appealed the adoption of the April 5, 2016, Ordinance on April 14, 2016, in the Circuit Court of Madison County, arguing that the amendments constituted illegal rezoning or spot-zoning. The City argued that the zoning change was a mere textual amendment.

¶ 21. On April 21, 2017, the circuit court affirmed the zoning amendments. Because the applicant's site plan must be approved by the City before any land may be defined as a LMPCD, the trial court found that no rezoning had occurred. The circuit court also found that the amendment could apply equally to seventeen different C-2 districts, not solely to the Costco site. Therefore, the trial court held that the amendment did not constitute a rezoning or spot-zoning.

¶ 22. The Appellants raise the following issues:

a. Whether the April 5, 2016, amendments to the Official Zoning Ordinance of the City of Ridgeland constitute de facto rezoning that required the City to show a substantial change in neighborhood character prior to rezoning.
b. Whether the April 5, 2016, amendments constitute impermissible spot zoning designed to benefit a single favored developer.

¶ 23. The City additionally argues that the Appellants lack standing to challenge the amendments.

ANALYSIS

¶ 24. This Court will affirm a board's zoning decision unless it is "arbitrary, capricious, discriminatory, or is illegal or without a substantial evidentiary basis." Modak-Truran v. Johnson , 18 So.3d 206, 209 (Miss. 2009) (citation omitted). "There is a presumption of validity of a governing body's enactment or amendment of a zoning ordinance and the burden of proof is on the party asserting its invalidity." Id.

I. Whether the zoning amendments constitute de facto rezoning that required the City to show a substantial change in neighborhood character prior to rezoning.

¶ 25. The Appellants argue that the City's decision to amend the zoning ordinance materially changed the uses previously allowed in C-2 districts and thus can be valid only upon a showing of substantial change in neighborhood character. Amendments to zoning ordinances "must be made after careful consideration because investments in land and property are significant financial decisions, and a landowner should be able to rely upon a zoning plan to maintain the use and value of his property." Roundstone Dev., LLC v. City of Natchez , 105 So.3d 317, 321 (Miss. 2013) (citation omitted). As this Court previously has stated:

The courts presume that comprehensive zoning ordinances adopted by municipal authorities are well planned and designed to be permanent. Before property is reclassified from one zone to another, there must be proof either, (1) that there was a mistake in the original zoning or, (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that public need exists for rezoning. Furthermore, an applicant seeking rezoning must prove by clear and convincing evidence either (1) or (2) above.

Town of Florence v. Sea Lands, Ltd. , 759 So.2d 1221, 1224, 1227 (Miss. 2000). "A finding of no sufficient proof will lead this Court to conclude that the Board's decision was arbitrary and capricious." Id. at 1227.

¶ 26. The Appellants first cite as controlling authority Modak-Truran , in which this Court held invalid two zoning ordinance amendments adopted by the Jackson City Council which allowed the Fairview Inn, a bed and breakfast inn located in a residential zone, to operate a restaurant. Modak-Truran , 18 So.3d at 207. This Court found that the amendments effectively rezoned the Fairview Inn from residential to commercial property by allowing the bed and breakfast to operate a restaurant as of right without having to apply for a use permit. Id. at 211. Despite the City of Jackson's argument that the amendments did not make any changes to the zoning map and were text amendments, this Court found that the amendments circumvented the "stringent procedural requirements for rezoning." Id. at 210-11.

¶ 27. Similarly, in Drews v. City of Hattiesburg , 904 So.2d 138 (Miss. 2005), Lee Medical Development had purchased land located close to a hospital in Hattiesburg. Drews , 904 So.2d at 140. Although the land had been zoned as B-1, professional business district, Lee Medical requested variances to the zoning ordinance that would have allowed the maximum building size to increase from 10,000 to 60,000 square feet and allowed an increase in building height from thirty-five to forty-five feet. Id. Finding that the proposed variances constituted spot-zoning, this Court stated that the City of Hattiesburg had "attempted to bypass the safeguards provided by the rezoning process in that the need for a variance must be proven by only a preponderance of the evidence while the need for rezoning must be proven by clear and convincing evidence." Id. at 142.

¶ 28. The City's zoning ordinance also provides criteria for rezoning. It states:

No amendment to the Official Zoning Map shall be approved unless the proposed re-zoning meets one of the following criteria:
1. That there was a mistake in the original zoning. "Mistake" in this context shall refer to a clerical or administrative error, such as a mistake of draftmanship on the Official Zoning Map or incorrectly reflecting the Mayor/Board of Aldermen's decision in the minutes. "Mistake" DOES NOT mean that the Mayor/Board of Aldermen made a mistake in judgment in their prior zoning, such as not realizing the full import of the zoning classification or mistakenly placing the property in one classification when the evidence indicated that another would have been more appropriate.
2. That the character of the neighborhood has changed to such an extent as to justify reclassification, AND that there is a PUBLIC NEED for the re-zoning.

(Emphasis in original.)

¶ 29. The zoning amendments at issue here allow any site approved as an LMPCD to be allowed uses previously prohibited in C-2 districts but permitted in C-2A districts, such as: banks, branch banks, drive-through ATMs, and other banking facilities; food-product and carry-out and delivery stores; and laundry and dry-cleaning pickup stations. According to the 2014 Zoning Ordinance, C-2A districts are allowed those additional uses because those properties are located on arterial streets and are able to handle the volume of traffic.

¶ 30. Moreover, service stations, fast-food restaurants with drive-through, and drive-through pharmacies are not permitted uses in C-2 or C-2A districts. Instead, those uses are permitted in C-3 districts. The purpose of C-3 districts is:

[t]o establish specific areas for the development of convenience commercial uses. These uses generate heavier vehicular traffic volumes than uses first allowed in the C-2 General Commercial districts . The uses first permitted in this district tend to generate more noise and litter than General Commercial uses. These districts are appropriate for location near the intersections of arterial streets, well away from ANY residential uses .

Therefore, the 2014 zoning ordinance specifically contemplated uses in C-2 and C-3 districts and rejected allowing those additional permitted uses in C-2 districts because of the increase in vehicular traffic, noise, and litter associated with those uses. Even according to the City's newly adopted zoning ordinance, the uses allowed in C-3 districts should be located "well away from ANY residential uses."

¶ 31. We find no merit in the City's argument that the amendments were purely textual amendments. In context, before the proposed amendments, even a Chick-fil-A with a drive-through had not been allowed in a C-2 district. Yet the City argues that the addition of a Costco with a service station and drive-through restaurants did not effectively rezone the proposed area. Although the City labeled its actions as mere textual amendments, as this Court in Modak-Truran has recognized, "the name given a municipal act does not dictate its nature." Modak-Truran , 18 So.3d at 210. The City cites Blacklidge v. City of Gulfport , where the City of Gulfport rezoned a certain area from residential to residential-business. Blacklidge v. City of Gulfport , 223 So.2d 530, 531 (Miss. 1969). However, the City of Gulfport's comprehensive zoning ordinance had been twenty-eight years old and the City of Gulfport had vastly changed since the adoption of the ordinance. Id. at 532. In contrast, the City of Ridgeland's comprehensive zoning ordinance had been passed mere months before the City sought to change the zoning districts.

¶ 32. The City argues, and the circuit court found probative, that the amendments did not automatically allow a LMPCD but instead hinged on the Mayor's and Board of Aldermen's approval of a site plan. Yet, without the amendments, no opportunity existed to submit a site plan for the additional uses the Costco development required. The amendments effectively rezoned the property by allowing a LMPCD upon approval of the Mayor and Board of Aldermen. The amendment stated that, "before any land may be defined as a Large Master Planned Commercial Development, a site plan thereof shall be approved by the Mayor and Board of Aldermen. The Mayor and Board of Aldermen may impose conditions or restrictions as part of the approval." Therefore, the Mayor and Board of Aldermen had complete authority to approve or disapprove a LMPCD without any objective criteria. The proposition that seventeen additional sites in C-2 districts could be approved as LMPCDs lacks substance when the Mayor and Board of Aldermen have complete authority over whether or not to allow any or all of those sites to become LMPCDs.

¶ 33. The City further argues that, pursuant to Mississippi Code Section 21-19-1, a municipality has broad authority to make regulations to promote and preserve the health, safety, and general welfare of its citizens. See Miss. Code Ann. § 21-19-1(1) (Rev. 2015). In addition, Section 21-17-5 states that municipal authorities "shall ... have the power to alter, modify and repeal such orders, resolutions or ordinances." Miss. Code Ann. § 21-17-5(1) (Rev. 2015). Section 17-1-9 provides insight into the purpose of zoning regulations by stating:

Zoning regulations shall be made in accordance with a comprehensive plan, and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings, and encouraging the most appropriate use of land throughout such municipality.

Miss. Code Ann. § 17-1-9 (Rev. 2012).

¶ 34. In the 2014 Zoning Ordinance and Map, the Costco site was zoned in a C-2 district in accordance with the above-cited code sections. Because the proposed site is in close proximity to residential neighborhoods, allowing the site effectively to be rezoned to a C-3 district directly goes against the goal of zoning regulations listed in Section 17-1-9 : to lessen street congestion and prevent overcrowding of land. Although Section 17-1-15 states that municipal authorities have the power to amend a zoning ordinance "from time to time," again, the City had zoned the Costco site as a C-2 site mere months before the City began attempting to rezone the area again.

¶ 35. The City cites Mississippi Manufactured Housing Association v. Board of Supervisors of Tate County , 878 So.2d 180 (Miss. Ct. App. 2004), and argues that the "change or mistake" rule does not apply in this case. However, we do not find that case probative or precedential. In that case, the board of supervisors was attempting to amend its comprehensive zoning plan that had been adopted in 1972. Id. at 182-83. Mississippi Manufactured Housing Association (MMHA) argued that a political entity was powerless to amend its entire zoning ordinance and asserted that the board of supervisors was required to show a change or mistake in the original comprehensive zoning plan. Id. at 185. The Court of Appeals stated that the clear and convincing rule applied when the amended zoning ordinance altered the character of the community. Id. 187. Clearly the amended zoning ordinances here operated to alter the character of the community.

¶ 36. The City failed to show by clear and convincing evidence that a mistake in the original zoning occurred or that a change in the character of the neighborhood occurred that justified rezoning, and a public need existed for the rezoning.

Because, almost immediately after adopting a new comprehensive zoning ordinance and map in 2014, the City sought to change the zoning of the proposed Costco site to allow numerous prohibited uses, and because those additional uses effectively transformed the proposed Costco site from a C-2 district to a C-3 district, we find that the City illegally rezoned the property at issue.

II. Whether the April 5, 2016, amendments constitute impermissible spot-zoning designed to benefit a single favored developer.

¶ 37. The Appellants additionally argue that the zoning amendments constituted spot-zoning. "Spot-zoning" is considered an arbitrary or discriminatory zoning decision and is determined on a case-by-case basis. Modak-Truran , 18 So.3d at 209-10. It is invalid when used primarily for the private interest of the owner of the property and not related to the community as a whole. Id. "The term 'spot zoning' is ordinarily used where a zoning ordinance is amended reclassifying one or more tracts or lots for a use prohibited by the original zoning ordinance and out of harmony therewith.... The one constant in the cases, as stated by the textwriter, where zoning ordinances have been invalidated due to 'spot zoning' is that they were designed 'to favor' someone." McKibben v. City of Jackson , 193 So.2d 741, 744 (Miss. 1967) (citing Yokley Zoning Law and Practice §§ 8-1 to 8-3 (3rd ed. 1965) ).

¶ 38. The 2014 Zoning Ordinance provided guidelines for amendments to either the zoning ordinance text or the official zoning map, a rezoning. Because the amendments at issue here constituted a rezoning, in order to be upheld they must have passed the following threshold standards for a valid spot-zoning:

(a) The proposal must not be a small parcel of land singled out for special and privileged treatment.
(b) The proposed change must be in the public interest and not only for the benefit of a land owner(s).
(c) The proposed change is consistent with all elements of the comprehensive plan and sound planning principles as follows:
1. If a development proposal falls within one of the use and/or residential density categories indicated on the Future Land Use Map, the Zoning Board and the Mayor and Board of Aldermen shall determine if the proposal is consistent with the plan.
2. If a development proposal is not consistent with the Future Land Use Map, the Zoning Board and the Mayor and Board of Aldermen will review the plan's written policies to determine whether the proposal would undermine or conflict with them. If the Mayor and Board of Aldermen determines that the proposal would not conflict with or undermine the plan's policies, they shall find the proposal consistent with the plan.
3. If an applicant's property for re-zoning falls adjacent to a district having the desired zoning classification, the rezoning proposal may be determined to be consistent as an extension of the adjacent property's zoning classification.
(d) The proposed change must not create an isolated district unrelated and incompatible to adjacent districts.

¶ 39. Thus, a rezoning will be considered illegal spot-zoning if the proposed amendment is for a small parcel of land singled out for special and privileged treatment. This Court in Modak-Truran found that, because the Fairview Inn had been the only business affected by the amendments and because "the entire debate was focused on the Inn and its activities," the amendments had constituted illegal spot-zoning. Modak-Truran , 18 So.3d at 209-10.

¶ 40. Here too, the proposed amendments were created and were focused solely on Costco and its activities. City officials worked closely together with Mattiace and with Costco representatives to shape the ordinance to fit Costco's needs specifically. Mattiace's attorney emailed Hart regarding the problem with the Costco site being zoned C-2. He stated: "Since the Santa site is zoned C-2, the seller cannot make that representation without an exception to explain that the property cannot be used for a vehicle fueling facility. [Mattiace] indicated that the City is proposing an amendment to the zoning code to resolve that matter." Hart responded, stating:

I will have [the proposed amendment] to you by the beginning of next week provided [Mattiace] can offer me some specific parameters of the project, which will assist me in shaping the "draft" ordinance amendment. Information like use types and square footages of each would be a good start. I would also ask for any wisdom regarding anything else that would make this development unique to any other.

Hart also wrote to another Mattiace representative, assuring her that the City could appropriately amend the language of the zoning ordinance to accommodate the accessory detached fuel facility. Hart then emailed Mattiace's attorney the proposed amendments and asked for comments before sending the proposed amendments for Costco's review. Mattiace's attorney even made changes to the definition of LMPCD, which the City adopted. And the amendments created a Large Master Planned Commercial Development, which enabled Mattiace to apply for the significant tax incentives through the Mississippi Tourism Project Incentive Program.

¶ 41. The City argues that the amendments were consistent with the 2009 Comprehensive Plan. The Comprehensive Plan stated that general commercial districts included zoning districts C-2, C-2A, C-3, and C-6. It stated that "these areas should include businesses in which the principal activity is conducted indoors. However, certain land uses that involve some outdoor activities could be permitted in these areas...." In addition, it stated that "convenience commercial uses can be easily absorbed into the C-2 or C-2A zones, rather than a stand-alone zone." Although the comprehensive plan contemplates absorbing C-3 uses into C-2 or C-2A zones, the City chose not to follow the recommendations of the 2009 Comprehensive Plan when it comprehensively rezoned its districts in 2014. Only when Costco chose the site at issue did the City attempt to rezone the proposed location and add C-3 uses into a C-2 zone.

¶ 42. Because the City engaged in illegal spot-zoning by singling out a parcel of land for special and privileged treatment, we find that the zoning amendments are arbitrary, capricious, and unsupported by substantial evidence.

III. Whether the Appellants lacked standing to challenge the amendment.

¶ 43. The City next argues that the Appellants have failed to prove that any of the additional convenience uses were inconvenient to them personally in a way not common to the public generally. This Court previously has stated, "for a plaintiff to establish standing on grounds of experiencing an adverse effect from the conduct of the defendant/appellee, the adverse effect experienced must be different from the adverse effect experienced by the general public." Hall v. City of Ridgeland , 37 So.3d 25, 34 (Miss. 2010). The Hall Court reiterated that standing requirements in Mississippi are "quite liberal." Id. at 33. There, the residents of Ridgeland appealed an ordinance issued by the City to allow the construction of the thirteen-story Butler Snow Attorneys building. Id. at 27-28. The developers of the building applied for a conditional use permit to build a building exceeding four stories in a C-4 District. Additionally, the developers sought a variance from certain setback requirements. Id. at 29-30.

¶ 44. The Ridgeland Mayor approved an ordinance allowing the conditional use and variance. Id. at 30. When residents of Ridgeland challenged the ordinance, the developers argued that the appellants had no standing. Id. at 33. The Hall Court found that the appellants were property owners in the City of Ridgeland, with property located near the subject property, and that the appellants had alleged that the development would adversely impact them and other residents. Id. at 34. Therefore, the appellants had standing to challenge the conditional use permit regarding the building height. Id. at 35. However, the Court found that the appellants did not have standing to oppose the variance because it was minor and would not have an adverse effect on the appellants. Id.

¶ 45. As in Hall , here, the Appellants are property owners in the City of Ridgeland, whose properties are located near the proposed Costco site. The Complaint stated that the Appellants are residents of the Montrachet, Dinsmor, Canterbury, Windrush, and Greenwood Plantation Subdivisions in Ridgeland. The petition, included in the record and signed by the Appellants, lists most of the Appellants' addresses, and the Madison County land records confirm the addresses of the Appellants.

¶ 46. Additionally, the Appellants allege that the Costco development would adversely impact them as well as other Ridgeland residents. Moreover, the Costco development is not a minor variance and would greatly increase traffic, as well as change the aesthetics of the area. Accordingly, the Appellants do have standing to appeal the zoning amendments, and this issue has no merit.

CONCLUSION

¶ 47. Because the City of Ridgeland amended its zoning ordinance shortly after adopting a new comprehensive zoning ordinance and map in order to accommodate Costco, substantially changing the uses previously allowed in a C-2 district without showing a substantial change in neighborhood character, the amendments constituted an illegal rezoning. In addition, because the amendments were entirely designed to suit Costco, the amendments constituted illegal spot-zoning as well. Accordingly, the circuit court erred in finding that the Costco amendments were not arbitrary and capricious. We reverse the decision of the circuit court and render judgment for the Appellants in this case.

¶ 48. REVERSED AND RENDERED.

RANDOLPH AND KITCHENS, P.JJ., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. WALLER, C.J., AND COLEMAN, J., NOT PARTICIPATING.

      Restricted uses were "to be limited to C-2A only and were not permitted to pyramid into any other zoning district."

      Davis inquired in the interim whether or not the amendment was on track for adoption.

      Mattiace then sent an email requesting "the documentation for the Zoning Variance ...." Hart responded, stating "it is not considered a 'zoning variance.' We passed a Zoning Amendment."

      The City approved Costco's Site Plan/Architectural Review on June 7, 2016. The Appellants appealed that action but subsequently agreed to dismiss the appeal.

      Pursuant to the Mississippi Tourism Project Incentive Program, a development may qualify as a "cultural retail attraction" if it "is located in a qualified resort area ... and is a part of a master-planned development ." Miss. Code Ann. § 57-26-1 (Rev. 2014).


text:
    Shalonda Nikkia VALE v. STATE of Mississippi
    2016-CT-00914-SCT
    Supreme Court of Mississippi.
    Filed: January 31, 2018 Closed: April 26, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Granted.


text:
    Clyde Eugene WILLIAMS v. STATE of Mississippi
    2016-CT-00634-COA
    Supreme Court of Mississippi.
    Filed: January 23, 2018 Closed: April 19, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Ralph Martin BILLINGSLEY v. Amy Diane BILLINGSLEY
    2015-CT-01134-COA
    Supreme Court of Mississippi.
    Filed: February 6, 2018 Closed: April 19, 2018
    Motion Desc: Appellants Petition For Writ Of Certiorari.
    Certiorari - Denied.


text:
    Patrick L. KING v. STATE of Mississippi
    2016-CT-00203-COA
    Supreme Court of Mississippi.
    Filed: January 29, 2018 Closed: April 5, 2018
    Motion Desc: Motion For Writ Of Certiorari From The Court Of Appeals Of Mississippi.
    Certiorari - Denied.


text:
    Victoria BANKSTON v. CLC OF BILOXI, LLC
    2016-CT-01190-COA
    Supreme Court of Mississippi.
    Filed: March 6, 2018 Closed: April 12, 2018
    Motion Desc: Petition for Writ of Certiorari of CLC of Biloxi, LLC.
    Certiorari - Denied.


text:
    Kevin Darnell POWELL v. STATE of Mississippi
    2016-CT-00518-COA
    Supreme Court of Mississippi.
    Filed: January 30, 2018 Closed: April 12, 2018
    Motion Desc: Petition For Writ of Certiorari.
    Certiorari - Denied.


text:
    David H. VINCENT v. Joan Hankins RICKMAN
    2016-CT-00457-COA
    Supreme Court of Mississippi.
    Filed: January 24, 2018 Closed: April 5, 2018
    Motion Desc: Petition For Writ of Certiorari.
    Certiorari - Denied.


text:
    Gary DILLON v. PICO, INC.
    2016-CT-01290-COA
    Supreme Court of Mississippi.
    Filed: February 19, 2018 Closed: April 5, 2018
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


author: ISHEE, JUSTICE, FOR THE COURT:

text:
    Derrick Ramone HALL a/k/a Derrick Hall a/k/a Derrick R. Hall v. STATE of Mississippi
    NO. 2017-KA-00849-SCT
    Supreme Court of Mississippi.
    June 7, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH
    BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. In May 2017, Derrick Hall was convicted by a jury of first-degree murder in the Warren County Circuit Court. Due to his status as a habitual offender, Hall was sentenced to serve life in prison. Having his posttrial motion for a judgment notwithstanding the verdict (JNOV) denied by the circuit court, Hall now seeks relief from this Court. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of May 6, 2015, Kathryn Peacock was found dead in her home, the apparent victim of a gruesome murder. Peacock was nude and had suffered more than thirty stab wounds to her neck and throat, as well as defensive wounds to her arms and hands.

¶ 3. Peacock's body was discovered by her boyfriend at the time, Devonzell Morgan. Morgan had last seen Peacock the night before, May 5, 2015. He stated that he and Peacock had gone out for dinner, then returned to her home afterward. And around 5:30 p.m., Morgan left Peacock's home for the evening. He texted her "good night" later that night, to which Peacock responded "good night." The following morning, Morgan texted her "good morning," to which she replied around 6:40 a.m.

¶ 4. When Morgan left work around 11:00 a.m., he texted Peacock several times but received no reply. Around 3:00 p.m., he again tried texting Peacock, to no avail. Morgan then called Peacock, but she did not answer or return any of his texts. Worried, Morgan and his brother, Matthew, drove to Peacock's home to check on her.

¶ 5. When they arrived, Morgan knocked on Peacock's door, but no one answered. He then knocked on her window with a broom and eventually went to check her door. Morgan claimed that Peacock had three locks on her door, which she always used-but when Morgan checked, the door was unlocked. Concerned, he entered Peacock's home and began looking for her. Morgan then discovered Peacock's nude body on her bathroom floor, with her lower half covered by bath drapes. Shocked, Morgan touched Peacock on the shoulder and said, "Kat." He then closed her eyes, and ran outside to alert Matthew. Once Morgan informed Matthew of his discovery, the two reentered Peacock's home-Matthew saw Peacock's body and immediately ran back outside. Morgan then used Peacock's phone to call 911.

¶ 6. Police arrived on scene and found a distraught Morgan sitting on the curb. Noticing no signs of forced entry, police then entered Peacock's home and noted blood in a variety of locations, including blood-transfer patterns throughout the kitchen, on the floor leading into Peacock's bedroom, and in the bathroom where she was found. Investigators also identified a bloody shoe print on the kitchen floor. Upon inspection, it was determined that the print was made as someone left Peacock's home and derived from a Danskin brand shoe. The print did not match the shoes worn by Morgan.

¶ 7. From inside Peacock's home, investigators collected the following: (1) a bloody, white tank top, found in a clothes basket; (2) a long-handled steak knife with a bent tip and what appeared to be blood, which was found under clothes on the floor; and (3) a pair of bloody, women's underwear, located in the bathroom's garbage can. In addition, investigators observed cleaning supplies in the bathroom, surmising that a clean-up attempt had been made.

¶ 8. Moving outside Peacock's home, investigators searched her vehicle, which was parked in her driveway. Found inside her car was a pair of Nike Air Jordans and a white t-shirt, both of which had blood on them. A spot of blood was noted on the back seat, and a Brillo pad with what appeared to be carpet-like fibers within it was found.

¶ 9. That same evening, investigators were approached by Hall's mother, Jovita Hall, who lived nearby. Jovita told investigators that she had seen Hall wearing clothes in her home earlier that day that she knew were not his because they were too small for him. This information rendered Hall a possible suspect. As a result, investigators obtained a search warrant for Jovita's home and seized the following items: (1) a pair of black Danskin shoes, with blood on them; (2) a pair of black stretch pants, with blood on them; and (3) a brown tank top. When inspected, the soles of the Danskin shoes matched the bloody shoe print identified in Peacock's kitchen. While at Jovita's, investigators also seized a pair of gold Levi jeans, which also had blood on them. The next day, Jovita contacted investigators again, stating that she had discovered a pair of blue boxers with bloodstains-in response, investigators seized the boxers, as well as a red shirt.

¶ 10. Evidence submitted to the Mississippi Crime Laboratory revealed the following DNA results:

• Blood found on the Nike shoes in Peacock's car was Peacock's blood, but no conclusive DNA profile was recovered from inside the Nikes;
• Blood found on the white t-shirt left in Peacock's car was Hall's blood;
• No conclusive DNA profile was obtained from the steering wheel of Peacock's car;
• The white tank top recovered from inside Peacock's home bore Peacock's DNA, as well as a Y-chromosome mixture, from which Hall and all his patrilineal male relatives could not be excluded-however, 99.9% of the world's male population could be excluded;
• The knife found in Peacock's home tested negative for blood and no conclusive DNA profile was obtained;
• Blood from the bathroom sink and wall was Peacock's blood;
• The right Danskin shoe recovered from Jovita's possessed Peacock's DNA on the interior, with Peacock's blood on the exterior;
• The left Danskin shoe also recovered from Jovita's contained Peacock's blood on the exterior, but the interior of the shoe revealed a mixture of DNA profiles from which Hall was excluded;
• The black pants found at Jovita's had Peacock's blood on the front right leg; the interior waist band revealed a mixture of DNA profiles from which Peacock could not be excluded; Y-chromosome testing of the interior revealed a mixed DNA profile, of which Hall and all his patrilineal male relatives could not be excluded-however, 99.5% of the world's male population could be excluded;
• The gold Levi jeans recovered from Jovita's contained Hall's blood; and lastly
• The blue boxers found at Jovita's contained Peacock's blood, with Y-chromosome testing revealing a mixed DNA profile, of which Hall and all his patrilineal male relatives could not be excluded-however, 99.9% of the world's male population could be excluded.

¶ 11. At trial, Cre'tarsha Taylor, Hall's cousin who resides across the street from Peacock's home, testified as to her encounters with Hall on May 6, 2015-the day of the murder. Taylor testified that she and Hall had smoked a cigarette together at her house around 6:00 a.m. She described Hall as wearing a long-sleeved red shirt with blue jeans and Nike Air Jordans. Taylor stated that she next saw Hall shortly after 7:00 a.m. on the side of Peacock's home-but this time he was in different clothes. At this time, Taylor said she saw Hall wearing a brown tank top with dark-colored sweat pants and shoes that he had just "stuck his [feet] in." Taylor then said that she witnessed Hall get into Peacock's car and drive off, noticing a bag on the front passenger seat.

¶ 12. Taylor testified that, around noon that same day, she saw Hall for a third time. This time, she described Hall as sweating, and wearing blue jeans and a white tank top. She claimed that Hall asked her for a bottle of water and a band-aid; though she did not have a band-aid, she noticed that Hall had blood on the top of his right hand. When asked by Taylor whether she had seen him in Peacock's car, Hall stated, "No." On cross-examination, Taylor did state that she saw a man named Calvin outside Peacock's home; Calvin is known for cutting grass in the neighborhood and walks with a cane. She also noted two other men outside Peacock's home without shirts.

¶ 13. It was after the information was provided by Jovita and Taylor that investigators chose to arrest Hall. While arresting Hall, investigators observed a fresh cut on his right pinky finger, and a smaller cut on his palm. Because Hall was intoxicated, police waited until the following day to question him. So, on May 7, 2015, Hall was interviewed by investigators but denied any involvement in Peacock's murder. Then, at his own request, Hall was interviewed again on May 18, 2015. Portions of the interviews were played for the jury.

¶ 14. Hall's first trial for the murder of Peacock ended in a mistrial. In his first trial, Hall testified in his own defense. In Hall's second trial, however, he declined to testify-as a result, the State introduced Hall's testimony from his mistrial, which was read into the record.

¶ 15. In that, Hall stated that he and Peacock had visited three days before her murder, during which time the two had smoked marijuana for around an hour, and Hall had informed Peacock of his plans to barbecue on May 6, 2015 (Hall's birthday). On the day Peacock was murdered, Hall testified that he was at or around Peacock's home three separate times. Hall stated that the first time was when he stopped at Taylor's house for a cigarette. Needing a grill for his barbeque, Hall said he then retrieved a grill from his friend's house. Hall said that he and his friend brought the grill to another friend's house where he and his brother, Kenneth, cleaned the grill. While cleaning the grill, however, Hall claimed that he cut his finger using a wire hanger attempting to prop up the grill. Because he was bleeding, Hall claimed that he used the white t-shirt he was wearing to wrap his hand and stop the bleeding-he also stated that he was wearing gold jeans. Once the grill was operational, Hall went to Taylor's to get a band-aid and water. Hall claimed that he was not wearing a white tank top at that time, as described by Taylor. After leaving Taylor's, Hall said he went to Jovita's to get seasoning salts.

¶ 16. Hall then dropped off the seasoning salts at the location where they were barbecuing, and while on his way back to Jovita's, he stopped by Peacock's. Hall testified that it was around 6:50 a.m. when he stopped at Peacock's. He said that he first knocked on Peacock's side window, as he normally does, but received no answer. He then went around to Peacock's door, which he claimed was partially ajar, knocked again, and called out to Peacock. Hall then entered Peacock's home and proceeded to find her on the floor, naked and dead.

¶ 17. Citing panic and untied shoes, Hall stated that he fell as he retreated from Peacock's body. Having gotten Peacock's blood on him when he slipped, Hall took off his shoes and put on Peacock's. He then placed Peacock's black sweat pants over his gold Levi jeans, and also put on Peacock's brown tank top. Hall then went outside and sat in Peacock's car, at which time Taylor saw Hall in Peacock's clothes. He stated that he left his Nikes and his white t-shirt in her car. And because Hall recently had been released from prison, he did not call the police, left Peacock's, and went to Jovita's wearing Peacock's clothes.

¶ 18. At Jovita's, Hall took a bath and changed clothes. He stated that he left Peacock's clothes at Jovita's, and that, due to his involvement with the Vice Lords (a gang whose colors are red and gold), he would not own blue clothing-thus denying that the blue boxers found at Jovita's were his. When cross-examined, however, Hall stated that he had not found Peacock's body until around 9:00 a.m. Instead, Hall claimed that it was 6:50 a.m. when he first knocked and received no answer, and so he left-but it was not until 9:00 a.m. when he actually found Peacock's body.

¶ 19. Rejecting Hall's theory of innocence, the jury found him guilty of first-degree murder. As a habitual offender, he was ordered to serve life in prison. The circuit court denied Hall's posttrial motion, which prompted this appeal.

DISCUSSION

¶ 20. Hall argues that the State's evidence was insufficient to support his conviction and, as a result, the verdict was against the overwhelming weight of the evidence. We disagree; therefore, we affirm.

I. Sufficiency of the Evidence

¶ 21. When the legal sufficiency of a conviction is challenged, this Court must discern whether the evidence shows "beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]" Carr v. State , 208 So.2d 886, 889 (Miss. 1968). In doing so, we must view all evidence in the light most favorable to the State. Bush v. State , 895 So.2d 836, 843 (Miss. 2005), abrogated on other grounds by Little v. State , 233 So.3d 288, 291 (Miss. 2017). Should this Court determine that "reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed legally sufficient. Edwards v. State , 469 So.2d 68, 70 (Miss. 1985). Because Hall did not confess, nor were there any eyewitnesses to the crime, this is a case based on circumstantial evidence. Jones v. State , 918 So.2d 1220, 1234 (Miss. 2005). As such, the State bore the burden of proving Hall's guilt "not only beyond a reasonable doubt, but to the exclusion of every reasonable hypothesis consistent with innocence." Beasley v. State , 136 So.3d 393, 402 (Miss. 2014) (citing Leflore v. State , 535 So.2d 68, 70 (Miss. 1988) ). That said, this Court will not disturb a conviction based upon circumstantial evidence unless it is opposed by a "decided preponderance of the evidence." Leflore , 535 So.2d at 70.

¶ 22. Hall was convicted under Mississippi Code Section 97-3-19(1)(a), which defines first-degree murder as: "The killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]" Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014). Thus, the State was required to prove that Hall: (1) killed Peacock; (2) without authority of law; and (3) did so with deliberate design to effect her death. Id. ; see also Beasley , 136 So.3d at 402. Though it is undisputed that Peacock was the victim of a homicide, Hall contends the State failed to prove with sufficient evidence that he was Peacock's killer. Instead, Hall claims the evidence proves only that he was in Peacock's home, and that he left with her clothing.

¶ 23. Reviewing the evidence in this case, we hold that the State proved beyond a reasonable doubt Hall murdered Peacock. First, Hall admitted that he was at or around Peacock's home three separate times the day she was murdered. Furthermore, Hall originally stated that it was around 6:50 a.m. when he found Peacock murdered in her home. But Hall also stated that when he found Peacock, she was not actually dead-rather, Peacock was making a gurgling sound, with blood pouring from her mouth and neck. And Taylor testified that she saw Hall outside Peacock's home in Peacock's clothes (which Hall admitted to wearing) shortly after 7:00 a.m. We find this sequence of events informative, as the record reflects that Peacock was alive until approximately 6:40 a.m., which is when she replied to Morgan's "good morning" text. As such, this Court finds the evidence produces a reasonable inference that Peacock was murdered at some time between approximately 6:40 a.m. and 7:00 a.m.

¶ 24. But more informative is the testimony of Dr. Lisa Funte-a forensic pathologist and the deputy chief medical examiner for the Mississippi Medical Examiner's Office. Funte testified that the severity of Peacock's injuries would have killed her within a "matter of minutes." In addition, investigators on scene surmised that a clean-up attempt had been made-which further undercuts Hall's theory of innocence. Even more, Funte testified that the blood patterns found on Peacock's person and in her bathroom were consistent with a victim who originally was lying face down and then was turned over only after the blood had dried. Nonetheless, Hall's account is that he found Peacock alive and on her back-the same position in which she was found dead by Morgan and as evidenced in the record.

¶ 25. Under the time frame established from the record, then, the evidence creates a reasonable inference that Hall was in Peacock's home between 6:40 a.m. and 7:00 a.m., and that Hall murdered Peacock. And in reviewing the evidence in the light most favorable to the State, we hold that the jury's verdict is not opposed by a "decided preponderance of the evidence," nor is it "based on no evidence whatsoever," thus requiring reversal. Beasley , 136 So.3d at 403 (quoting Kitchens v. State , 300 So.2d 922, 927 (Miss. 1974) ).

¶ 26. In fact, the DNA evidence in this case points almost entirely to Hall. To that end, Hall could not explain why the bloody white tank top found in Peacock's home contained a DNA mixture from which Hall could not be excluded, but that could exclude 99.9% of the world's male population. As to the blue boxers found at Jovita's, Hall vehemently denied that they were his-yet, the boxers contained Peacock's blood, as well as a Y-chromosome mixture from which Hall could not be excluded, but that likewise excluded 99.9% of the world's male population. But even without the forensic evidence derived from the boxers, Hall admitted to investigators that he was wearing those blue boxers when he allegedly slipped and fell in Peacock's blood.

¶ 27. In a similar vein, Hall testified that he also was wearing his gold Levi jeans when he slipped-and because he had Peacock's blood on both his jeans and boxers, he chose to wear Peacock's sweat pants. But Taylor testified that Hall was wearing blue jeans that morning-not the gold Levi jeans recovered from Jovita's. And when tested forensically, Hall's gold jeans contained only his blood, which further belies his claim that he was wearing those jeans when he allegedly fell in Peacock's blood.

¶ 28. This Court also holds that the State provided sufficient evidence proving Hall murdered Peacock with deliberate design. "Deliberate design may be proved or inferred from the use of a deadly weapon." Beasley , 136 So.3d at 402. To that end, a mere glance at the State's crime-scene photographs illustrates the gruesome manner in which Peacock was murdered. Testimony revealed that Peacock had been stabbed more than thirty times, mostly in her neck and throat. Moreover, Peacock's body evidenced defensive wounds to her arms and hands.

¶ 29. These injuries, when coupled with the blood-transfer patterns (found in multiple rooms of Peacock's home) and the fresh cuts on Hall's hand, reasonably suggest that a struggle ensued. And because "[t]he existence of a deadly weapon is a question of fact for the jury to decide," we find that the State's evidence could lead the jury to only one conclusion-that Peacock was deliberately murdered with a knife. Id. As such, we conclude that the jury reasonably could have rejected Hall's testimony as an unreasonable theory of innocence. Id. at 403. Therefore, we hold that the State presented sufficient evidence to prove Hall guilty of deliberate-design murder.

II. Weight of the Evidence

¶ 30. When the weight of the evidence is challenged, this Court will overturn a verdict only "when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Bush , 895 So.2d at 844. In addition, this Court views all evidence in the light most favorable to the verdict. Id. "Factual disputes are properly resolved by a jury and do not mandate a new trial." Beasley , 136 So.3d at 403.

¶ 31. Hall argues here that, because the State's evidence was legally insufficient, the verdict is contrary to the overwhelming weight of the evidence. In its simplest form, this case presented to the jury two versions of how Peacock came to be murdered. The State, through its circumstantial evidence, labeled Hall as Peacock's killer. Attempting to cast doubt on the State's evidence, Hall's testimony espoused multiple theories through multiple inconsistent versions. At first, Hall denied any involvement in Peacock's murder. Hall then changed his story, outlining a version of events similar to that ultimately provided in his trial testimony-but inconsistencies were present. As is their province, the jury was free to accept or reject the witnesses' testimony, and this Court will not second-guess the jury's witness-credibility determinations. See id. at 404.

¶ 32. The jury here accepted the State's evidence and its witnesses' version of events. This being so, allowing the jury's verdict to stand does not "sanction an unconscionable injustice," as the evidence does not "preponderate heavily against the verdict." Bush , 895 So.2d at 844. As such, we conclude that the trial court did not err in denying Hall's motion for a new trial.

CONCLUSION

¶ 33. In sum, our review of the record leads us to conclude that the State presented evidence legally sufficient to convict Hall of first-degree murder, and the jury's verdict is not against the overwhelming weight of the evidence. Therefore, we affirm.

¶ 34. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE OPINION.

      Police ultimately ruled out Morgan as a suspect, as his cell-phone records and his employer both corroborated his whereabouts during the day. Police likewise ruled out Peacock's ex-husband, as records revealed that he was incarcerated on the date of Peacock's murder.

      Vicksburg Police Investigator Bobby Jones testified that Hall had informed him he had cut his hand on a grill, and insisted that Jones inspect the grill to confirm Hall's story. Jones claimed to have gone and inspected the grill, but found no wire hanger as described by Hall. In Jones's report, however, he made no mention of inspecting the grill and did not include any photographs.


text:
    Curtis BROWN v. PROFESSIONAL BUILDING SERVICES, INC.
    2016-CT-00818-SCT
    Supreme Court of Mississippi.
    Filed: February 20, 2018 Closed: April 26, 2018
    Motion Desc: Appellants Petition for Writ of Certiorari.
    Certiorari - Granted.