author: WALLER, CHIEF JUSTICE, FOR THE COURT:

text:
    SW 98/99, LLC v. PIKE COUNTY, Mississippi, Lexie Elmore, Tazwell Bowsky, Aubrey L. Matthews, Venton Adams, Carroll L. Fortenberry, Joe B. Young, Tax Assessor, Chuck E. Lambert and Gary Honea
    NO. 2017-CA-00120-SCT
    Supreme Court of Mississippi.
    May 17, 2018
    ATTORNEYS FOR APPELLANT: KEN R. ADCOCK, WILLIAM C. IVISON, RIDGELAND
    ATTORNEY FOR APPELLEES: WAYNE DOWDY, MAGNOLIA
    BEFORE WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. SW 98/99, LLC ("SW"), appeals the order of the Pike County Chancery Court dismissing its complaint with prejudice under Mississippi Rule of Civil Procedure 41(b). Finding that the chancery court abused its discretion in ruling that SW had failed to prosecute its complaint, we reverse the chancery court's judgment and remand this case to the chancery court for further proceedings.

FACTS & PROCEDURAL HISTORY

¶ 2. SW owns two low-income housing properties in Pike County, which it operates as "affordable rental housing" under Section 42 of the Internal Revenue Code. In 2005, the Mississippi Legislature amended Section 27-35-50 of the Mississippi Code to address the tax-appraisal method for affordable rental housing, such as SW's properties. However, SW alleges that the Pike County Board of Supervisors and Tax Assessor disregarded this new statutory requirement and continued to appraise SW's properties using a "cost approach" method, which included the value of certain federal tax credits in the properties' appraised values. Under the appraisal method required by the amended Section 27-35-50(4)(d), SW alleges that these tax credits should not have been included in the value of its properties.

¶ 3. SW filed objections to the tax assessments for the years 2005 and 2006, but those objections were denied. SW then filed a complaint in Pike County Chancery Court alleging that Pike County, the Pike County Board of Supervisors, and the Pike County Tax Assessor (collectively "the defendants") had wrongfully and excessively assessed taxes on SW's properties using an appraisal method not authorized by Section 27-35-50(4)(d). SW sought damages for the defendants' negligent and/or willful statutory violations, as well as an injunction prohibiting the defendants from using the "cost approach" method for future tax appraisals. SW also asked the chancery court to remove the individual defendants from office for violation of their official duties. SW subsequently filed identical lawsuits for the years 2007 and 2008, and the chancellor consolidated all of these cases into a single cause of action.

¶ 4. Along with SW's chancery-court lawsuit, SW also appealed the property-tax assessments to the Pike County Circuit Court. SW presented the same legal argument in its tax appeals as it did in this case: the defendants had violated Section 27-35-50(4)(d) by including the value of federal tax credits in the tax appraisals of its properties. The only difference between the two actions is the relief sought: SW's circuit-court tax appeals seek a refund of overpaid taxes, while SW's chancery-court suit seeks damages and injunctive relief.

¶ 5. This case and SW's tax appeals proceeded separately along their own paths until March 2011, when the chancellor entered an order granting the defendants' motion to stay the proceedings in this case pending final resolution of SW's circuit-court tax appeals. The chancellor found that the two cases shared the same threshold issue: "whether or not the Defendants violated Miss. Code Ann. § 27-35-50(4)(d) by including the value of the sale of tax credits in appraising the value of the property each year and assessing ad valorem taxes on that value." Accordingly, the chancellor stayed the proceedings in this case and held SW's summary-judgment motion in abeyance "until such time as the tax appeals currently pending in the Circuit Court of Pike County are finally resolved." As a result of the stay, this case sat dormant from March 28, 2011, until February 2, 2015.

¶ 6. In 2013, while SW's tax appeals were pending before the circuit court, this Court issued an opinion holding that Section 27-35-50(4)(d) prohibits the inclusion of federal tax credits in the tax-appraisal value of properties that qualify as "affordable rental housing." Willow Bend Estates, LLC v. Humphreys Cty. Bd. of Supervisors , 166 So.3d 494, 495 (Miss. 2013). The mandate in Willow Bend issued on August 14, 2014.

¶ 7. Following this Court's ruling in Willow Bend , on February 12, 2015, SW and the defendants entered an agreed order in the chancery-court case setting a trial date for September 15, 2015. SW alleges that it agreed to this trial date only because it believed its tax appeals in the parallel circuit-court action would be resolved well in advance of that date in light of the Willow Bend decision. The agreed order setting the trial date does not mention the chancellor's prior order staying proceedings.

¶ 8. On May 4, 2015, the Pike County Circuit Court granted summary judgment to SW on each of its tax appeals, ordering the defendants to refund SW's overpayments for the years 2005 through 2012. The defendants filed a motion for reconsideration of the circuit court's judgment on May 14, 2015.

¶ 9. On June 25, 2015, SW filed a motion to amend and consolidate its chancery-court complaints to include claims for the tax years 2009 through 2013. This motion was scheduled for a hearing on September 8, 2015. In response to SW's motion, the defendants filed a motion to dismiss, or alternatively, for summary judgment.

¶ 10. During this time period, SW's attorney was involved in an unrelated case in the United States District Court for the Southern District of Mississippi. On August 12, 2015, the district court contacted SW's attorney to inquire as to his availability for a trial beginning September 14, 2015-one day before the trial setting in the instant case. Because the circuit court had not yet ruled on the defendants' motion for reconsideration in SW's tax appeals, SW's attorney believed that the chancellor's stay of proceedings in this case remained in effect, as the circuit-court proceedings were not "finally resolved." Because of this, SW's attorney contacted the chancery court to request that the trial date be continued and removed from the trial docket. The chancellor was on medical leave at this time. SW's attorney called the chancellor's court administrator to inform her of the need for a continuance of the scheduled trial date. Although later disputed by the court administrator, SW's attorney believed at this time that the case had been continued and that the trial setting had been removed from the docket. SW's attorney then informed counsel for the defendants of the continuance. The defendants had no objection to the continuance. SW's attorney then informed the federal court that he would be available for a September 14, 2015, trial.

¶ 11. On September 4, 2015, SW's attorney's secretary called the chancellor's court administrator to request that SW's motion to amend and consolidate its complaints be taken off the hearing docket. SW's attorney was unable to get in touch with the court administrator at this time but his secretary left a voicemail message. SW's attorney also called the defendants' counsel to inform him that the motions hearing would be cancelled.

¶ 12. On September 8, 2015, the date scheduled for SW's motions hearing, counsel for the defendants was attending a meeting of the Pike County Board of Supervisors at the chancery courthouse and was called into the courtroom by Senior Status Judge Larry Buffington, who was serving as a special appointed judge while the chancellor was on medical leave. According to SW, counsel for the defendants told Judge Buffington that he had been advised by SW's attorney that both the motions hearing and the trial had been continued.

¶ 13. Neither of the parties appeared for the September 15, 2015, trial setting. On September 18, 2015, the chancellor, who had returned to the bench, entered a show-cause order instructing the parties to appear in court and explain why this case should not be dismissed. The show-cause order stated that the parties' agreed order setting a trial date "indicat[ed] that the certain other tax appeals had been resolved." The order also noted that SW had not appeared at its scheduled motions hearing and that neither of the parties had appeared on the scheduled trial date. The order acknowledged that "some telephonic communication was made by a staff member of Counsel to the Court Administrator regarding the prior Order staying this litigation."

The chancellor's show-cause order concluded that SW's lawsuit was "stale and in a posture to be dismissed for lack of prosecution inasmuch as Counsel set aside two full trial days on a heavily congested trial docket and failed to appear for trial."

¶ 14. In response to the show-cause order, the defendants filed a Consent for Dismissal in which they agreed that SW's lawsuit was stale and should be dismissed. The defendants also argued that the Mississippi Tort Claims Act shielded them from immunity and that SW had failed to comply with the Tort Claims Act's notice-of-claim requirement before filing suit.

¶ 15. Prior to the hearing, the chancellor's court administrator sent an email to SW's attorney explaining that the stay in this case had been lifted when the parties agreed to a trial date and "[w]hen a matter is set for trial and no motion for continuance is filed and noticed, the matter should be dismissed." While acknowledging her prior conversation with SW's attorney, the court administrator asserted that she was "not authorized to 'remove' anything from the trial docket."

¶ 16. The show-cause hearing was held on November 9 and December 7, 2015. At the hearing, the chancellor again acknowledged that SW's attorney had spoken with her court administrator about continuing the case. However, the chancellor reported from the bench that her court administrator had assured the chancellor that she had not told SW's attorney that the case would be continued. The chancellor noted that Judge Buffington had indicated to the defendants that the trial had been continued, but she also found that Judge Buffington never entered an order continuing the trial date. The parties also discussed the possibility of transferring the case to Pike County Circuit Court rather than dismissing it, since the circuit court still had not ruled on the defendants' motion for reconsideration in SW's tax appeals.

¶ 17. At the conclusion of the hearing, the chancellor ruled:

The Court is going to do this; I am going to dismiss these cases. If you want to file amended pleadings in circuit court seeking to expand the relief you seeking [sic], certainly, that is something for the circuit judge to decide. I will dismiss these cases off the docket and let the circuit court handle whatever it is.

The next day, the chancellor entered a Judgment of Dismissal, finding that, because SW had failed to appear at its scheduled motions hearing and at trial and had neglected to file formal motions to continue those proceedings, the case was "stale" and was appropriate for dismissal under Rule 41(b) of the Mississippi Rules of Civil Procedure.

¶ 18. SW filed a Motion for Reconsideration on December 17, 2015, in which SW's attorney attested to his recollection of his conversations with the chancellor's court administrator and argued that the order setting a trial date did not lift the stay because the circuit-court case still had not been finally resolved. On December 22, 2016, SW filed a supplement to its motion for reconsideration. The chancellor denied SW's motion on December 27, 2016, finding that SW had all but abandoned its motion by failing to set it for a hearing and that SW had not filed its supplement properly.

¶ 19. SW now appeals the dismissal of its complaint, arguing that the chancery court abused its discretion by dismissing this case with prejudice because there was no evidence of dilatory or contumacious conduct attributable directly to SW, because the chancery court had failed to consider lesser sanctions, and because no aggravating factors justifying dismissal exist in this case.

DISCUSSION

Whether the chancery court abused its discretion in dismissing SW's complaint with prejudice for failure to prosecute.

¶ 20. Mississippi Rule of Civil Procedure 41(b) allows a defendant to move to dismiss an action or claim "[f]or the failure of the plaintiff to prosecute or to comply with these rules or any order of court." Miss. R. Civ. P. 41(b). But the trial court has the authority to dismiss an action even in the absence of a motion by the defendant, because "[t]he power to dismiss for failure to prosecute is an inherent power in any court of law or equity and has been regarded as a means necessary to control the court's docket and promote the orderly expedition of justice." Watson v. Lillard , 493 So.2d 1277, 1278 (Miss. 1986). Unless the trial court specifies otherwise, dismissal under Rule 41(b) operates as an adjudication on the merits and is with prejudice. Taylor v. GMC , 717 So.2d 747, 748 (Miss. 1998).

¶ 21. "What constitutes failure to prosecute is considered on a case-by-case basis." Cox v. Cox , 976 So.2d 869, 874 (Miss. 2008). The trial court's decision to dismiss a complaint for failure to prosecute is reviewed for an abuse of discretion. Wallace v. Jones , 572 So.2d 371, 375 (Miss. 1990). However, this Court has cautioned that the harsh sanction of dismissal with prejudice should be "employed reluctantly," because the law favors trial of issues on the merits. AT & T Co. v. Days Inn of Winona , 720 So.2d 178, 180 (Miss. 1998). See also Wallace , 572 So.2d at 376 (finding that "dismissals with prejudice are reserved for the most egregious cases"). Accordingly, dismissal under Rule 41(b) is appropriate only "where the record shows that a plaintiff has been guilty of dilatory or contumacious conduct." Watson , 493 So.2d at 1279. This Court also must consider whether lesser sanctions would have been sufficient to serve the best interests of justice. Holder v. Orange Grove Med. Specialties, P.A. , 54 So.3d 192, 197 (Miss. 2010). Finally, this Court has identified several other aggravating factors that may be considered, including "the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct." Days Inn , 720 So.2d at 181.

¶ 22. Here, the chancery court dismissed SW's complaint because SW had failed to appear at a motions hearing and at trial and had neglected to file motions to continue those proceedings. On appeal, SW contends that the chancery court abused its discretion because SW's failure to appear was the result of a genuine misunderstanding as to whether the chancellor's prior order staying the proceedings remained in effect and whether the court administrator had removed the motions hearing and trial dates from the docket. SW also asserts that the chancellor failed to consider whether lesser sanctions would serve the interests of justice. And finally, SW argues that no aggravating factors supporting dismissal are present in this case. We address each of these factors separately below.

A. Dilatory or Contumacious Conduct

¶ 23. The first question before this Court is whether this case presents a clear record of dilatory or contumacious conduct on the part of the plaintiff. In reviewing this factor, this Court considers whether the plaintiff's conduct during the litigation was proactive or merely reactionary. Hillman v. Weatherly , 14 So.3d 721, 727 (Miss. 2009) (finding a clear record of delay where plaintiff did not respond to discovery until both the defendant and the circuit clerk had filed motions to dismiss for want of prosecution). While there is no set time limit to prosecute an lawsuit, the cases in which this Court has affirmed the dismissal of a complaint for failure to prosecute often feature a substantial period of delay that clearly evinces the plaintiff's prolonged failure to pursue its claims. See Manning v. King's Daughters Med. Ctr. , 138 So.3d 109, 116 (Miss. 2014) (plaintiff took no action for two years after filing her complaint, failed to respond to discovery, and took more than a year to respond to the defendant's motion to dismiss); Holder , 54 So.3d at 199 (plaintiffs delayed their response to the defendant's interrogatories for 435 days, failed to timely serve discovery requests on the defendant, and were late in responding to the defendant's motion to dismiss); Hillman , 14 So.3d at 727 (circuit clerk filed two motions to dismiss plaintiff's complaint for want of prosecution, and plaintiff failed to respond to discovery for three years). In Days Inn , on the other hand, this Court considered a scenario factually similar to the instant case, in which the trial court dismissed the plaintiff's complaint over what the plaintiff's attorney alleged to be a legitimate scheduling misunderstanding. Days Inn , 720 So.2d at 182. In Days Inn , the trial court dismissed the plaintiff's complaint after the plaintiff failed to respond to the defendant's motion to dismiss and failed to appear at a hearing on that motion. Id. at 179. The plaintiff's attorney explained that he had spoken with the trial judge prior to the date of the hearing and had agreed to continue the trial docket in the case to a future term. Id. at 180. Based on this agreement, the plaintiff's attorney claimed that he reasonably had believed that the hearing on the defendant's motion to dismiss was "off the calendar." Id. On appeal, this Court reversed the trial court's dismissal of the complaint, finding that the conduct of the plaintiff's attorney, while "less than diligent," "does not constitute a contemptuous resistance to the authority of the trial court or a clear record of unilateral delay." Id at 181.

¶ 24. After reviewing the record before the trial court, we find that this case is analogous to Days Inn and does not present a clear record of dilatory or contumacious conduct by SW. This case is distinguishable from Manning , Holder , and Hillman , where the plaintiffs took no action until faced with the potential dismissal of their cases. The defendants do not dispute that SW actively litigated this case from 2007 to 2011, when the chancellor imposed a stay in the proceedings at the request of the defendants. Following this Court's decision in Willow Bend , SW agreed with the defendants to set a trial date by order of February 12, 2015, believing that its tax appeals would be "finally resolved" within the intervening seven months, thereby fulfilling the condition for lifting the stay.

¶ 25. When it became clear that the defendants' motion for reconsideration would not be resolved by the circuit court prior to the trial date in this case, SW alleges that its attorney contacted the chancellor's court administrator to request continuances of its motions hearing and the trial date that previously had been set by the agreement of the parties. SW should have filed formal motions requesting continuances rather than simply relying on oral representations of court staff. See Miss. R. Civ. P. 7(b)(1) ("An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be in writing ...."). Thus, we cannot say that the chancellor manifestly erred in findings that her court administrator had not authorized the continuance of the motion hearing and trial and that the parties' agreed order setting a trial date had the effect of lifting the stay. See Cummings v. Benderman , 681 So.2d 97, 100 (Miss. 1996) ("This Court will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard."). However, while SW's actions may have been "less than diligent," as in Days Inn , we do not find that SW's actions amount to a clear record of delay or contumacious conduct, which is required for dismissal with prejudice under Rule 41(b). See Days Inn , 720 So.2d at 179.

B. Consideration of Lesser Sanctions

¶ 26. This Court also must consider whether the imposition of lesser sanctions would have better served the interests of justice in this case. "Lesser sanctions include 'fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.' " Wallace , 572 So.2d at 377 (quoting Rogers v. Kroger Co. , 669 F.2d 317, 321 (5th Cir. 1982) ). However, "[t]hese sanctions will not suffice if they do not cure the prejudice caused by the delay." "Where there is no indication in the record that the lower court considered any alternative sanctions to expedite proceedings, appellate courts are less likely to uphold a Rule 41(b) dismissal." Days Inn , 720 So.2d at 181. But see Collins v. Koppers, Inc. , 59 So.3d 582, 590 (Miss. 2011) (finding that trial court's failure to expressly consider lesser sanctions does not require reversal). Here, the chancellor's order dismissing SW's complaint does not address the propriety of lesser sanctions than dismissal, nor did the chancellor address this issue at the show-cause hearing. Nevertheless, we find no evidence that it would have been appropriate to consider even lesser sanctions in this case. SW did not deliberately attempt to delay the proceedings, the delay was minimal, and the defendants do not allege that they were prejudiced by the delay.

¶ 27. The defendants argue that this Court should affirm the chancellor's dismissal of SW's complaint because SW was not prejudiced by the dismissal. They claim that dismissal under Rule 41(b) is considered a harsh and extreme sanction only because it usually deprives the plaintiff of the opportunity to pursue its claims. Here, however, SW's tax appeals remained pending in circuit court at the time this case was dismissed. In her bench ruling, the chancellor acknowledged this fact and found that SW could attempt to amend its pleadings in the circuit-court proceedings to add the claims that were being dismissed in this case. Thus, the defendants contend that the chancellor's dismissal of this case was proper because SW was not deprived of an opportunity to pursue its claims.

¶ 28. We find that the defendants have failed to support the above argument with any legal authority. SW's chancery-court case is an original civil action in which SW seeks damages and injunctive relief based on the defendants' alleged violations of their official duties. SW's circuit-court case is an appeal from a decision of the Pike County Board of Supervisors concerning the assessment of ad valorem taxes. In that case, the circuit court is sitting as an appellate body, and a tax refund is the only relief authorized by the statute governing SW's appeal. Miss. Code Ann. § 27-35-121. See also Fondren v. State Tax Comm'n , 350 So.2d 1329, 1333-34 (Miss. 1977) (holding that the statute governing appeals of Tax Commission orders assessing property taxes did not provide the plaintiff with an adequate remedy at law for its claim seeking an injunction requiring the Commission to comply with its constitutional duty to equalize property tax assessments among counties). The defendants do not cite any authority supporting the proposition that the two cases could be brought together as a single action. Moreover, dismissal under Rule 41(b) is an adjudication on the merits unless the trial court's judgment specifically states otherwise. Taylor , 717 So.2d at 748. The chancellor's judgment was based on Rule 41(b) and does not specifically state that dismissal was not on the merits, so res judicata arguably would prohibit SW from reasserting the same claims in a subsequent case. See Hall v. Tower Land & Investment Co. , 512 F.2d 481, 483 (5th Cir. 1975) (finding plaintiff's complaint barred by res judicata , where a prior action involving the same parties and issues had been dismissed with prejudice under Federal Rule of Civil Procedure 41(b) ). This argument is without merit.

C. Aggravating Factors

¶ 29. The presence of aggravating factors is not required to justify dismissal under Rule 41(b), but it may strengthen the trial court's decision to dismiss an action. Cox , 976 So.2d at 876. These factors include "the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct." Days Inn , 720 So.2d at 181 (quoting Rogers , 669 F.2d at 320 ). Neither the trial court nor the defendants addressed this issue. But the record reveals that the delay in the litigation can be attributed to the conduct of SW's attorney, rather than SW personally. "The theme running through the cases involving Rule 41(b) is that negligence or inexcusable conduct on the part of plaintiff's counsel does not in itself justify dismissal with prejudice." Id. at 182. In addition, the defendants suffered little if any prejudice because of the delay, as both SW and the defendants believed the case had been continued, both parties failed to appear at trial, and the circuit-court action still was not finalized at the time of trial, which was the justification for the entry of the stay. Finally, we find that SW did not intentionally disobey the chancellor's orders by failing to appear at the motions hearing and at trial.

¶ 30. After considering the facts of this case in the context of the standard for Rule 41(b) dismissal, we find that the chancery court abused its discretion in dismissing SW's complaint for failure to prosecute. This case does not present a clear record of delay or contumacious conduct by SW, the chancellor did not specifically consider any alternative sanctions, and no aggravating factors exist to support the chancellor's decision. Trial courts possess the authority to impose lesser sanctions when the need arises, but the sanction of dismissal with prejudice should be reserved for egregious cases. This case does not fit into that category.

CONCLUSION

¶ 31. For the foregoing reasons, we reverse the judgment of the Pike County Chancery Court and remand this case to the chancery court for further proceedings consistent with this opinion.

¶ 32. REVERSED AND REMANDED.

KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. RANDOLPH, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY COLEMAN AND MAXWELL, JJ.

RANDOLPH, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶ 33. The arguments presented by SW to both the trial court and this Court are a bit dubious, which leads me to question the logic underpinning today's decision. Nonetheless, I acquiesce to the majority opinion dubitante , but not dissentiente . SW's excuses for failing to file motions for (1) a continuance for a hearing on its own motion to amend, and (2) a "needed" continuance for a trial that it had sought and obtained, as well as SW's "beliefs" about the stay, were rejected by the chancellor. See Maj. Op. ¶ 10. SW makes similar arguments before this Court, which are contradicted by the record. The chancellor did not err in rejecting SW's excuses.

¶ 34. SW claims that the court administrator continued the trial, but the court administrator adamantly claimed that she did not because she lacked authority to do so. The chancellor did not accept SW's contention, a finding that cannot be said to be manifestly wrong or clearly erroneous. "We always review a chancellor's findings of fact, but ... will not disturb the factual findings of a chancellor when supported by substantial evidence unless [we] can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard." Lane v. Lampkin , 234 So.3d 338, 345 (Miss. 2017). The chancellor did not accept SW's contention that it believed a stay was still in effect. The chancellor specifically found that the stay was lifted in February 2015 when SW successfully moved the court for an order setting the case for trial in September, 2015. SW then filed a motion to amend its complaint in May 2015. Next, SW contacted the court administrator seeking a continuance. These actions contradict SW's assertion that it "genuinely" believed a stay was in place, rivaling the dubiety of SW's simultaneous complaints for injunctive relief and monetary damages for the same alleged wrongful conduct.

¶ 35. Nevertheless, SW is entitled to some relief. The chancellor's bench ruling dismissing SW's complaint is inconsistent with a Rule 41(b) judgment of dismissal. At the second motion hearing on the chancellor's show-cause order, the chancellor ruled from the bench:

The Court is going to do this; I am going to dismiss these cases. If you want to file amended pleadings in circuit court seeking to expand the relief you seeking [sic], certainly, that is something for the circuit judge to decide. I will dismiss these cases off the docket and let the circuit court handle whatever it is.

¶ 36. The chancellor orally opined that SW could continue to seek relief, which strongly suggests a dismissal without prejudice. Her bench ruling was within her sound discretion and authority to control the court's docket and dismiss a case, where parties failed to appear at trial. This failure to appear was attributable to SW, for SW failed to file a motion for a continuance for trial. Further, SW should have filed a motion for a continuance for the hearing on SW's motion to amend its complaint before trial. Leaving a voicemail with a court administrator is no substitute for seeking a court's permission by order. See Maj. Op. ¶ 11; see also Miss. R. Civ. P. 7(b) ("An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought ....") In the absence of an order granting a continuance, SW was required to appear for trial. Indeed, had SW properly appeared for its hearing to amend or filed a motion for a continuance for its motion to amend, or moved for a continuance for trial, it is unlikely that these issues would be before the Court today.

¶ 37. Unlike the chancellor's bench ruling, the written judgment dismissing the case with prejudice was an abuse of discretion. A dismissal with prejudice was too harsh a sanction, since Rule 41(b) involuntary dismissals with prejudice "are reserved for the most egregious cases." American Tel. And Tel. Co. v. Days Inn of Winona , 720 So.2d 178, 181 (Miss. 1998). The record reveals no consideration of lesser sanctions. "Lesser sanctions include 'fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.' " Manning v. King's Daughters Med. Ctr. , 138 So.3d 109, 117-18 (Miss. 2014). Any one of these lesser sanctions would have better served the interests of justice. Id. at 118. I agree that this case should be remanded for further proceedings.

COLEMAN AND MAXWELL, JJ., JOIN THIS OPINION IN PART.

      Section 27-35-50(4)(d) provides:
      In arriving at the true value of affordable rental housing, the assessor shall use the appraisal procedure set forth in land appraisal manuals of the Department of Revenue. Such procedure shall prescribe that the appraisal shall be made according to actual net operating income attributable to the property, capitalized at a market value capitalization rate prescribed by the Department of Revenue that reflects the prevailing cost of capital for commercial real estate in the geographical market in which the affordable rental housing is located adjusted for the enhanced risk that any recorded land use regulation places on the net operating income from the property. The owner of affordable rental housing shall provide to the county tax assessor on or before April 1 of each year, an accurate statement of the actual net operating income attributable to the property for the immediately preceding year prepared in accordance with generally acceptable accounting principles.
      Miss. Code Ann. § 27-35-50(4)(d) (Rev. 2017).

      However, the order does not mention the conversation between Judge Buffington and counsel for the defendants reflecting an understanding that the case had been continued.

      The defendants argue that SW's complaint was dismissed in part for failure to comply with Rule 7(b)(1), but this rule is not cited in the chancery court's judgment of dismissal.

      The defendants also argue that this Court should affirm the chancellor's judgment of dismissal because SW's claims are barred by the Mississippi Tort Claims Act. The trial court did not address this argument when it dismissed SW's complaint, so we decline to address it for the first time on appeal.

      Although the defendants agreed to the trial setting, it was on SW's motion. Maj. Op. ¶¶ 7, 24.

      A Rule 41(b) dismissal operates as an adjudication upon the merits unless the court in its order for dismissal otherwise specifies. Miss. R. Civ. P. 41(b).

      "Any court of law or equity may exercise the power to dismiss for want of prosecution." Cucos, Inc. v. McDaniel , 938 So.2d 238, 240 (Miss. 2006). "This power, inherent to the courts, is necessary as a means to 'the orderly expedition of justice' and 'the court's control of its own docket.' " Id. (quoting Walker v. Parnell , 566 So.2d 1213, 1216 (Miss. 1990) ) (citation omitted). "This Court will not disturb a trial court's ruling on a dismissal for want of prosecution unless it finds an abuse of discretion." Id. (quoting Watson v. Lillard , 493 So.2d 1277, 1279 (Miss. 1986) ).


source: Caselaw Access Project

author: GREENLEE, J., FOR THE COURT: WILSON, J., DISSENTING:

license: Public Domain

text:
    ILLINOIS CENTRAL RAILROAD COMPANY, Appellant v. Bennie OAKES, Deceased, BY AND THROUGH Clara HAGAN, His Representative, Appellee
    NO. 2015-CA-00644-COA
    Court of Appeals of Mississippi.
    December 13, 2016 Rehearing Denied May 9, 2017
    GLENN F. BECKHAM, HARRIS FREDERICK POWERS III, GREENWOOD, ATTORNEYS FOR APPELLANT
    HENRY DEAN ANDREWS JR., VICKSBURG, TIMOTHY W. PORTER, PATRICK MALOUF, JOHN TIMOTHY GIVENS, RIDGELAND, ATTORNEYS FOR APPELLEE
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. This is an appeal from Warren County Circuit Court stemming from a jury verdict in an asbestos-related action in which Bennie Oakes was awarded $50,000. The jury found that Oakes had $250,000 of damages, with Illinois Central Railroad Company found to be twenty percent negligent and Oakes eighty percent negligent. Following the jury verdict, Illinois Central moved for a setoff of Oakes's damages, asserting that his award should be reduced by the amounts received from asbestosis trust funds and other sources for the same injury. Because the complaint was filed under the Federal Employers' Liability Act (FELA) and that act seeks to fully compensate the employee for tortious conduct, we affirm the circuit court's denial of the setoff.

FACTS AND PROCEEDINGS BELOW

¶ 2. Clara Hagan, the daughter and representative of Oakes, filed suit against Illinois Central under the FELA seeking damages for the lung cancer and death sustained by Oakes as a result of Oakes's exposure to asbestos while working for Illinois Central. Prior to and during the pendency of the complaint, Oakes or his representatives sought recovery for Oakes's lung cancer and death from others, including several asbestos trusts. Illinois Central sought to determine the exact amounts recovered by Oakes through a lengthy and difficult discovery process. The amounts recovered by Oakes or his representatives from others totaled $74,056.89 according to Illinois Central.

¶ 3. The case went to trial and, on February 15, 2013, Hagan obtained a jury verdict against Illinois Central, reduced by Oakes's comparative negligence, in the net amount of $50,000. Following the verdict, Illinois Central moved for entry of the judgment and setoff of the award based on the trust payments received by Oakes and Hagan that Illinois Central unearthed through its diligent discovery. On March 1, 2013, the circuit court denied Illinois Central's motion for setoff and entered the judgment of damages to Hagan of $50,000 with interest at an eight-percent rate from the date of the judgment of the jury. Illinois Central appealed the circuit court's denial of setoff to this Court.

DISCUSSION

¶ 4. Illinois Central's appeal boils down to one question: whether setoff against a jury verdict is required in FELA cases where the claimant has already settled with separate tortfeasors.

¶ 5. The standard of review for a ruling on a motion to alter or amend a judgment is abuse of discretion. Fulton v. Miss. Farm Bureau Cas. Ins. , 105 So.3d 284, 286-87 (¶ 9) (Miss. 2012). Questions of law are reviewed de novo. Green v. State , 195 So.3d 246, 248 (¶ 6) (Miss. Ct. App. 2016). "[The] FELA creates a tort remedy for railroad workers injured on the job and serves as the exclusive remedy for a railroad employee injured as a result of his or her employer's negligence." Ill. Cent. R.R. v. Brent , 133 So.3d 760, 766-67 (¶ 10) (Miss. 2013). This Court is bound to enforce the FELA as written by the Congress and interpreted by the federal courts. Id. at 767 (¶ 10). In a case brought under the FELA, all matters of substantive rights, as opposed to procedural ones, are governed by the applicable principles of the common law as interpreted and applied in the federal courts. St. Louis-San Francisco Ry. v. Dyson , 207 Miss. 639, 43 So.2d 95, 98 (1949).

¶ 6. In support of its claim that it is entitled to a setoff for an alleged settlement Hagan received from a nonparty, Illinois Central cites eight cases from other jurisdictions in which the railroad employers were allowed a setoff. Schadel v. Iowa Interstate R.R. , 381 F.3d 671 (7th Cir. 2004) ; Benson v. CSX Transp. Inc. , 274 Fed.Appx. 273 (4th Cir. 2008) ; Mancini v. CSX Transp. , No. 08-CV-933, 2010 WL 2985964 (N.D.N.Y. July 27, 2010) ; Krueger v. Soo Line R.R. , No. 02-C-0611, 2005 WL 2234610 (E.D. Wisc. Sept. 12, 2005) ; Strasburg v. Union Pac. R.R. , 286 Neb. 743, 839 N.W.2d 273 (2013) ; Hess v. Norfolk S. Ry. , 106 Ohio St.3d 389, 835 N.E.2d 679 (2005) ; Seaford v. Norfolk S. Ry. , 106 Ohio St.3d 430, 835 N.E.2d 717 (2005) ; Hager v. Norfolk & W. Ry. , No. 87553, 2006 WL 3634373 (Ohio Ct. App. Dec. 14, 2006). Five of these cases, Schadel , Benson , Mancini , Krueger , and Strasburg , are immediately distinguishable from the case at hand as the setoff sought was in connection to settlement recoveries from actual parties to the employees' actions. Schadel , 381 F.3d at 673-74 ; Benson , 274 Fed.Appx. at 274 ; Mancini , 2010 WL 2985964, at *1 ; Krueger , 2005 WL 2234610, at *1 ; Strasburg , 839 N.W.2d at 276. Thus, they are inapposite to our analysis. The collateral sources that settled with the claimants here are not parties to the action, nor were they attempted to be made parties to the action.

¶ 7. The remaining cases, Hess , Seaford , and Hager , involved recoveries obtained from nonparties. Hess , 835 N.E.2d at 682 ; Seaford , 835 N.E.2d at 717 ; Hager , 2006 WL 3634373, at *8-9. Seaford and Hager base their rulings solely on Hess ; thus, we proceed directly to an analysis of Hess . In Hess , the railroad sought a setoff of damages the employees recovered in their claims against asbestos manufacturers. Hess , 835 N.E.2d at 681-82. The Ohio Supreme Court's majority opinion held that neither 45 U.S.C. § 55 nor the common law collateral-source rule prohibited the employer from being credited for amounts paid in settlement by a fellow tortfeasor and allowed the railroad a pro tanto credit for the settlements. Hess , 835 N.E.2d at 686-87, 689.

¶ 8. Hess 's conclusion on the setoff issue was premised on the common-law rule of apportionment, where a partial satisfaction received from one of multiple joint tortfeasors serves to diminish the liability of the nonsettling tortfeasor. Id. at 686. The Hess court's premise overlooks the U.S. Supreme Court's rejection of the suggestion that the FELA would permit damages to be apportioned among joint tortfeasors according to the degree of fault attributable to each. Norfolk & W. Ry. v. Ayers , 538 U.S. 135, 161-65, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003). The Ayers Court found significant that Congress, while expressly directing in the FELA the apportionment of responsibility between employer and employee based on comparative fault, did not provide for such apportionment among potentially liable tortfeasors. Id. at 161, 123 S.Ct. 1210.

¶ 9. In considering the employer's assertion that the trial court erred in instructing the jury not to make a deduction from the damages awarded for the contribution of nonrailroad causes of the employees' injuries, the Ayers Court held that the FELA did not allow for apportionment of damages between railroad and nonrailroad causes. Id. at 159-60, 123 S.Ct. 1210. "Nothing in the statutory text [of the FELA] instructs that the amount of damages payable by a liable employer bears reduction when the negligence of a third party also contributed in part to the injury-in-suit."

Id. at 160, 123 S.Ct. 1210. The Ayers Court declined to create new law by requiring apportionment among potential tortfeasors and determined that the FELA's express terms placed the burden of seeking contribution from other tortfeasors on the employer. Id. at 141, 123 S.Ct. 1210. This conclusion was echoed by the dissent in Hess and reaffirmed by the Missouri Court of Appeals. Hess , 835 N.E.2d at 690 ; Palmer v. Union Pac. R.R. , 311 S.W.3d 843, 855-56 (Mo. Ct. App. 2010).

¶ 10. Hess also held that the common-law collateral-source rule would not prohibit a setoff based on amounts paid in settlement by a nonparty tortfeasor. We disagree. Section 55 of the FELA specifically incorporates the interpretation of the collateral-source rule concerning insurance payments, and the Supreme Court in its Ayers language implied that a doctrine such as the collateral-source rule would be applicable. Furthermore, the common law, as here in Mississippi, has long stated that a "wrongdoer is not entitled to have the damages to which he is liable reduced by proving that [the] plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him." Coker v. Five-Two Taxi Serv. , 211 Miss. 820, 52 So.2d 356, 357 (1951). To the extent that federal law is informative on the matter, Mississippi's interpretation of the collateral-source rule has been recognized and applied by the Fifth Circuit, Johnson v. Cenac Towing Inc. , 544 F.3d 296, 304-05 (5th Cir. 2008), and acknowledged by the United States Supreme Court, The Atlas , 93 U.S. 302, 310-11, 23 L.Ed. 863 (1876).

¶ 11. Because an injured railroad employee can recover all his damages from his railroad employer if the employer's negligence caused any part of the employee's injury, and because the collateral-source rule does not allow for a defendant to avoid payment of damages based on compensation to the plaintiff from a third party that was not a party to the action, we find that an allowance of setoff for recoveries from nonparty tortfeasors is inconsistent with the FELA's intent, the statutory language, and Mississippi and U.S. Supreme Court precedent.

CONCLUSION

¶ 12. We affirm the Warren County Circuit Court's denial of Illinois Central's motion for setoff.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.J., ISHEE, CARLTON, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J.

WILSON, J., DISSENTING:

¶ 14. The jury in this Federal Employers' Liability Act (FELA) case awarded the plaintiff (Hagan) damages for injuries that her decedent (Oakes) suffered as a result of his exposures to asbestos while he was employed by Illinois Central. The sole issue in this appeal is whether the judgment against Illinois Central should be offset (i.e., reduced) based on settlement payments that Hagan or Oakes previously received from the bankruptcy trusts of the manufacturers of the asbestos to which Oakes was exposed. The majority rule on this issue of federal law is that Illinois Central is entitled to such an offset, also known as a "pro tanto credit." This rule is consistent with background common law, and it is not inconsistent with the FELA. The majority reaches the opposite conclusion, holding that payments Hagan or Oakes have already received for the exact same injury must be ignored-and that Hagan is entitled to recover more than once for the same injury. I disagree and respectfully dissent.

¶ 15. "[A]lthough common-law principles are not necessarily dispositive of questions arising under [the] FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis." Consol. Rail Corp. v. Gottshall , 512 U.S. 532, 544, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). Addressing the same issue that is raised in this case, the Ohio Supreme Court recognized that "it is well established at common law that apart from the collateral-source rule, a partial satisfaction received from one of two joint tortfeasors serves to diminish the liability of the nonsettling defendant." Hess v. Norfolk S. Ry. , 106 Ohio St.3d 389, 835 N.E.2d 679, 686 (¶ 31) (2005). Accordingly, the Ohio Supreme Court held that as a matter of federal law a FELA defendant is entitled to a pro tanto (i.e., dollar-for-dollar) credit or offset for settlements paid to the plaintiff by non-FELA entities for the same injury. Id. at 689 (¶ 48). This is the correct approach, as nothing in the FELA's text expressly rejects a defendant's common law right to such credits. The U.S. Court of Appeals for the Fourth Circuit, the U.S. Court of Appeals for the Seventh Circuit, and the Nebraska Supreme Court have all reached the same conclusion. Schadel v. Iowa Interstate R.R. , 381 F.3d 671, 678 (7th Cir. 2004) ; Benson v. CSX Transp. Inc. , 274 Fed.Appx. 273, 276 (4th Cir. 2008) ; Strasburg v. Union Pac. R.R. , 286 Neb. 743, 839 N.W.2d 273, 280 (2013) ; see also, e.g. , Mancini v. CSX Transp. Inc. , No. 08-CV-933, 2010 WL 2985964, at *6 (N.D.N.Y. July 27, 2010).

¶ 16. The majority gives three reasons for departing from the majority rule on this issue of federal law. None of these reasons is persuasive. First, the majority says that all but one of the above-cited cases "are immediately distinguishable" and "inapposite" simply because the setoff in those cases related to a settlement paid by another named defendant in the case. The majority does not explain why this makes a difference or cite any authority suggesting that a defendant's right to a credit turns on whether the plaintiff's settlement was obtained in the same lawsuit or in some other context. The distinction makes no legal difference; the relevant question is simply whether the defendant is entitled to a setoff for settlements paid to the employee by other parties who contributed to the same injury.

¶ 17. The majority next contends that Norfolk & Western Railway v. Ayers , 538 U.S. 135, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003), abrogates FELA defendants' right to a pro tanto credit. However, Ayers only held that the FELA does not require "an initial apportionment of damages among potential tortfeasors"-i.e., in a FELA case, the jury does not assign fault to non-railroad defendants. Id. at 141, 123 S.Ct. 1210. Instead, the FELA "allow[s] the worker to recover his entire damages from a railroad whose negligence jointly caused an injury ..., thus placing on the railroad the burden of seeking contribution from other tortfeasors." Id.

¶ 18. The Ayers Court did not address the distinct question whether a railroad is entitled to a setoff for a settlement that the employee has already received from a third party. In fact, the Court noted-without any suggestion of disapproval-that the trial court in that very case had granted such a setoff "for settlements with non-FELA entities." Id. at 144, 123 S.Ct. 1210. Notably, Justice O'Connor joined the Ayers opinion in relevant part and later, sitting by designation, joined the Fourth Circuit's opinion holding that a FELA defendant is entitled to a pro tanto setoff for a settlement paid by another party who contributed to the plaintiff's injury. Benson , 274 Fed.Appx. at 276. Clearly, Justice O'Connor saw no inconsistency between Ayers and the allowance of such credits.

¶ 19. It is one thing to hold, as the Ayers Court did, that an employee's recovery should not be reduced based on a jury's apportionment of fault to a nonparty. It is quite another thing to suggest that an employee should be able to recover the same damages over and over again from different parties, without any offset for compensation he has already received. Ayers addresses the former issue, but nothing in the opinion precludes recognition of a pro tanto credit for settlements already paid for the same injury.

¶ 20. The majority also suggests that the common law collateral-source rule precludes pro tanto credits in this context. However, "a joint tortfeasor is not a collateral source that can be ignored under the collateral-source rule." 22 Am. Jur. 2d Damages § 388 (2003) ("This result is mandated by the rule that a plaintiff is entitled to only one recovery for a single injury ...."). Hagan alleges that Oakes was injured when he was exposed to asbestos during his employment with Illinois Central. The manufacturers of the asbestos to which Oakes was exposed are not "collateral sources." They are joint tortfeasors whose own tortious conduct rendered them directly liable to Oakes (or Hagan) for the same injury sued on here. The collateral-source rule is inapplicable to this situation.

¶ 21. The defendant's right to such credits-and the inapplicability of the collateral-source rule-is reflected in our own common law. "It has long been the practice in Mississippi that, when there are multiple potential defendants liable on a claim and a settlement is reached with some, but not all, defendants, those defendants who proceed to trial and suffer a judgment against them are entitled to credit on that judgment for those amounts received in settlement from entities not party to the litigation." Brown v. N. Jackson Nissan Inc. , 856 So.2d 692, 697 (¶ 20) (Miss. Ct. App. 2003). "This practice has its origins in the notion that, though there may be multiple parties potentially liable for the plaintiff's injuries, a plaintiff is entitled to only one recovery of his damages." Brown , 856 So.2d at 697 (¶ 20).

¶ 22. Nothing in the FELA entitles the plaintiff to more than one recovery for his damages. This case involves an injury caused by exposure to asbestos; the plaintiff has already been compensated for this same injury by the manufacturers of the asbestos; and there is no reason that her recovery against Illinois Central should not be reduced to account for those payments. The purpose of the FELA is to afford the employee a full recovery for his injury, reduced only by the employee's comparative fault. See Ayers , 538 U.S. at 141, 123 S.Ct. 1210 ; Schadel , 381 F.3d at 678 ; Hess , 835 N.E.2d at 689 (¶ 46). Allowing the railroad a credit for settlement payments that the plaintiff has already received for the same injury does not frustrate the plaintiff's ability to obtain a full recovery. It only prevents double recovery for the same injury. I would follow the majority rule permitting such credits in FELA cases. Accordingly, I respectfully dissent.

GRIFFIS, P.J., JOINS THIS OPINION.

      This amount is based on Hagan's supplemental answer 13 to Illinois Central's first request for interrogatories, which was an exhibit to Illinois Central's motion for "Entry of Judgment and Setoff."

      We note that Illinois Central does not assert, nor do we see anything from the record demonstrating, that it contributed to any of the trusts from which Hagan received payments.

      Strasburg is also inapposite to our analysis because the setoff in that case was granted under the authority of 45 U.S.C. § 55 (2012) as the employer did make payments to insurance as a direct result of the employee's injury.

      The dissent would give pro tanto credit to Illinois Central for the amounts previously received from suppliers of asbestos procured through some means other than the instant lawsuit. This Court, as was the court below, is unaware of how and under what conditions those payments occurred as they were made by entities that are not parties herein. The Court does not have the necessary information to allocate damages in direct proportion to their percentages of fault. The only method to determine the issues that would surround those payments would have been to make those entities parties to this action. Had they been made parties, perhaps we would have pertinent evidence to consider or perhaps the jury and the court could have apportioned liability appropriately, with all parties involved. We decline to speculate on what a fully informed trial court or jury would have done, and, therefore, affirm the trial court's ruling.

      "Where the independent tortious acts of two or more persons supplement one another and concur in contributing to and producing a single indivisible injury, such persons are in legal contemplation regarded as joint tortfeasors, notwithstanding the absence of concerted action." D & W Jones Inc. v. Collier , 372 So.2d 288, 292 (Miss. 1979) (quoting 74 Am. Jur. 2d Torts § 62 (1974) ).

      As this Court explained in Brown , our statutory law now provides that a defendant's liability will be reduced based on the jury's apportionment of fault at trial rather than a post-trial credit for any settlements paid. See Brown , 856 So.2d at 697 (¶ 21) (citing Miss. Code Ann. § 85-5-7 (Rev. 1999)).

      In a footnote, the majority argues that Illinois Central is not entitled to a setoff because "[t]his Court and the court below are unaware of how and under what conditions [the relevant settlement] payments occurred as they were made by entities not a party herein." Indeed, the majority goes so far as to assert that "[t]he only method" for Illinois Central to have established its right to a setoff would have been to join the asbestos entities as parties. Ante at n.4 (emphasis added). This is simply incorrect. Hagan acknowledged in response to an interrogatory that the relevant settlements payments were based on the same "injuries [and] damages incurred allegedly due to [Oakes's] exposure to asbestos, silica, dust, sand or other substances as asserted in this suit against Illinois Central." This is all that Illinois Central needed to establish to obtain a setoff. It was unnecessary for Illinois Central to join the asbestos entities or put on evidence of their relative "fault." Further, whether a defendant is entitled to a setoff based on a prior settlement is an issue for the trial judge, not the jury. See Brown , 856 So.2d at 694, 698 (¶¶ 7, 22-27). Therefore, the majority also errs to the extent that it suggests Illinois Central could or should have presented the issue to a jury.


author: WILSON, J., FOR THE COURT:

text:
    Jerrard T. COOK a/k/a Jerrad T. Cook a/k/a Jerrard Cook a/k/a Jerrard Tramaine Cook a/k/a J-Fat, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-00687-COA
    Court of Appeals of Mississippi.
    August 8, 2017 Rehearing Denied November 28, 2017
    OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Jerrard Cook shot and killed Marvin Durr during a robbery. Durr was eighteen years old at the time of his death. Cook was seventeen years old at the time of the offense. Cook's accomplice, Cearic Barnes, was eighteen years old. Cook shot Durr in the head while Durr was seated in the driver's seat of his car. He shot Durr because he and Barnes wanted to use Durr's car to commit a robbery. However, Cook and Barnes were unable to remove Durr's body from the car, so Cook sat on top of Durr's body and drove the car to an isolated location. To destroy evidence, Barnes then set fire to the car.

¶ 2. Cook was arrested, confessed, and pled guilty to capital murder, and the circuit court imposed a mandatory sentence of life imprisonment. Cook's conviction for capital murder rendered him ineligible for parole. Miss. Code Ann. § 47-7-3(1)(f) (Rev. 2015). Several years later, in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012), the United States Supreme Court held "that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Court held that the sentencer must have the "discretion" to "consider mitigating circumstances" before a sentence of life without the possibility of parole (LWOP) may be imposed in cases in which the defendant was under the age of eighteen at the time of the offense. Id. at 2475.

¶ 3. The circuit court appointed counsel to represent Cook and held a new sentencing hearing to consider the factors discussed in Miller . After considering the testimony and other evidence presented, the judge found that Cook was not entitled to parole eligibility under Miller . On appeal, Cook argues (1) that the circuit court erred by not granting him parole eligibility, (2) that he should have been resentenced by a jury rather than a judge, and (3) that a sentence of LWOP is unconstitutional in all cases in which the offender is under the age of eighteen at the time of the offense. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 4. On the evening of June 18, 2002, Cook, Barnes, and Eric Williams were walking together in Brookhaven. Cook had a gun, which he had obtained when he broke into his uncle's house a few days earlier. Cook and Barnes wanted some money. Cook later said he needed money to get his car fixed and could not find a job. So the three young men decided to rob a convenience store. Cook and Barnes planned to go into the store and commit the robbery, while Williams would remain outside as the lookout. Cook and Barnes had masks to wear during the robbery. However, the first store they planned to rob was closed. They planned to rob a second store, but Cook decided there were too many customers present. Eventually, Williams went home, leaving Cook and Barnes.

¶ 5. Cook and Barnes then decided that they would flag down a car and ask for a ride, carjack the car, and drive to McComb to rob a store. Cook and Barnes wanted to rob a store in McComb because they thought that they were less likely to be recognized there. The first car that Cook flagged down turned out to be a police car. Cook and Barnes spoke briefly to the police officer, and the officer drove on without incident.

¶ 6. Durr, who was Barnes's cousin, was driving the next car that Cook flagged down. Cook and Barnes asked Durr to give them a ride to Cook's aunt's house, and Durr agreed. Cook and Barnes gave Durr incorrect directions and caused him to miss the turn to Cook's aunt's house. They then told Durr that he could let them out along South Washington Street in Brookhaven. Cook and Barnes exited the car, and as Durr turned around on South Washington Street, Cook flagged him down again and walked up to the driver's side window to speak. Cook then shot Durr in the left temple from a distance of an inch or two. Cook later told law enforcement that Durr "was just at the wrong place at the wrong time." Cook also said that Durr "was like the weak type," and he could have taken the car from Durr "without using a gun." Nonetheless, Cook shot Durr in the head.

¶ 7. Cook and Barnes then attempted to pull Durr's body from the car, but they were unable to do so. So Cook sat on top of Durr's body and drove the car to a bridge. It was Cook's idea to "[d]ump [Durr's] body under the bridge" because he knew there were "alligators" under the bridge. However, again, Cook and Barnes were unable to remove Durr's body from the car. Cook then went through Durr's pockets but did not find much money. Using a lighter, Barnes then set fire to the car to destroy evidence. Cook later told investigators that he thought that Durr was still alive when they set the car on fire. Cook stated that as he was sitting on top of Durr, he felt Durr "move" and just "had a feeling he wasn't dead." Nonetheless, Barnes set the car on fire, and then he and Cook fled into the woods. Cook discarded his gun in the woods, and Barnes later burned their clothes in order to destroy evidence.

¶ 8. Cook and Barnes were indicted for capital murder. Cook pled guilty to capital murder and was sentenced to life imprisonment. His conviction makes him ineligible for parole. See Miss. Code Ann. § 47-7-3(1)(f). Barnes later pled guilty to murder, was sentenced to life imprisonment, and is also ineligible for parole. See Barnes v. State , 51 So.3d 986, 988 (¶ 2) (Miss. Ct. App. 2010).

¶ 9. In 2012, the United States Supreme Court held "that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller , 132 S.Ct. at 2469. The Court held that the sentencer must have the "discretion" to "consider mitigating circumstances" before a sentence of LWOP may be imposed. Id. at 2475. In Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the Court clarified or expanded Miller 's holding. There, the Court stated that a sentence of LWOP is valid only for "those rare children whose crimes reflect irreparable corruption." Id. at 734. According to the Court, the Eighth Amendment mandates parole eligibility for juvenile murderers "whose crimes reflected only transient immaturity." Id . at 736. Also, in Parker v. State , 119 So.3d 987, 995-99 (¶¶ 18-28) (Miss. 2013), our Supreme Court summarized the factors to be considered and procedure to be followed in cases in which Miller requires a new sentencing hearing.

¶ 10. Post- Miller , Cook filed a motion to be resentenced and granted parole eligibility pursuant to Miller . The circuit court appointed counsel to represent Cook and appointed Dr. Criss Lott, Ph.D., to conduct a mental evaluation of Cook. The court denied Cook's motion to have a jury determine whether he should be parole eligible.

¶ 11. On March 30, 2016, the circuit court held a hearing to determine whether Cook should be declared parole eligible pursuant to Miller . The State called the former district attorney, Brookhaven Chief of Police Bobby Bell, and Durr's father, Reverend Jerry Durr. The former district attorney testified about the murder and its investigation. Chief Bell testified that he mentored Cook when Cook was about thirteen years old; however, he lost touch with Cook thereafter. Reverend Durr testified that Cook attended youth events at his church until he was about twelve years old and that Cook generally was a respectful child; however, like Chief Bell, Reverend Durr had not been around Cook for several years prior to the murder.

¶ 12. The parties also stipulated to the admission of a number of exhibits, including transcripts of recorded statements that Cook, Barnes, and Williams gave to law enforcement; Cook's school records and prison records; and Dr. Lott's report. Cook's prison records show that he has been the subject of twenty-nine rule violation reports (RVRs) during his incarceration, including for assaulting a corrections officer, threatening a corrections officer, possessing a shank, using and possessing marijuana, and possessing a cell phone. Cook's school records show that he attended Oakley Training School (now known as Oakley Youth Development Center) from October 2001 to March 2002. Cook told Dr. Lott that the youth court sent him to Oakley because two friends asked him to drive them to a store, the friends robbed the store, and he was arrested for conspiracy to commit armed robbery.

¶ 13. Cook's cousin Angela Daniels testified on his behalf. She testified that Cook had no relationship with his father and was raised by his mother and grandmother. Daniels described Cook as a "typical child," "always ... smiling." She testified that Cook started to get into trouble as a teenager, and she became concerned that he was smoking marijuana and skipping school. Daniels believed that Cook had "matured a lot" since 2002.

¶ 14. Reverend Bruce Smith testified that Cook attended his church as a child. Reverend Smith remembered Cook as "always joking and jovial." Reverend Smith also testified that Cook seemed immature for his age at seventeen. Reverend Smith believed that Cook had matured since the murder; however, he had only visited Cook twice in prison.

¶ 15. Cook's mother, Sharon, testified that Cook did not have a relationship with his father, who went to prison soon after Cook was born. Sharon testified that when Cook was younger, she used drugs and went out to clubs and frequently worked two jobs. As a result, Cook's grandmother played a significant role in raising him, and they were very close. Cook was devastated when his grandmother passed away when he was twelve years old. Although Sharon was gone a lot, she testified that she always provided for Cook. Cook always had clothes and food, and she "[b]ought him anything he wanted," including a car. There was no evidence or suggestion that Cook was abused or neglected as a child.

¶ 16. Sharon testified that Cook's crime was "out of his character." She thought that he "didn't understand the consequences" of his actions. To illustrate, Sharon testified that Cook was doing pushups when she visited him in jail after the murder. Sharon thought this showed that Cook believed that he would be getting out of jail soon. Sharon testified that Cook had changed and was more mature than he was in 2002. She also thought that he was remorseful.

¶ 17. Cook's fiancee, Vera Quarles, testified that she knew Cook for several years prior to the murder and was "shocked" or "surprised" when she heard about it. She did not believe that Cook understood the consequences of his actions because she went to visit him in jail before he pled guilty, and he asked her on a date, as if he thought he would be released soon. Quarles and Cook did not date prior to the murder, but they reconnected in 2014 and later became engaged. Quarles thought that Cook was more mature than he was in 2002.

¶ 18. Dr. Lott testified as an expert witness in clinical and forensic psychology. Dr. Lott performed a mental evaluation of Cook, with particular attention to the factors discussed in Miller . Dr. Lott testified that Cook was cooperative during their interview. He described Cook as having average to low-average intelligence. He noted that Cook had been an average student and probably could have done better in school. Dr. Lott testified that he "didn't see anything with [Cook's] case that ... indicated that he was well outside the adolescent norm." Dr. Lott also testified that "the first years of [Cook's] life appear to [have been] fairly normal" despite his father's absence and his mother's drug use. With respect to issues of maturity, Dr. Lott testified that it appeared that Cook was a "normal, typical" seventeen year old at the time of the offense.

¶ 19. Dr. Lott opined that the murder appeared to have been committed in a way that "was almost haphazard." Dr. Lott testified that studies have shown that ninety to ninety-five percent of violent juvenile offenders "do not reoffend" as adults. Dr. Lott had not seen "any data ... to suggest" that Cook was the sort of "rare" offender who warranted a sentence of LWOP under Miller . However, Dr. Lott said that was just "[his] impression" and that he could not "state it with certainty." Dr. Lott testified that psychologists "can't distinguish between those [offenders] who commit an offense at sixteen, seventeen, and what they're going to be like at [twenty-seven] or [thirty-seven]." He acknowledged that "[n]o one can do that with any degree of certainty"-no "mental health professional has a crystal ball and can determine what somebody will be like in [twenty] years."

¶ 20. On April 1, 2016, the circuit court entered an order denying Cook's request for parole eligibility. The court addressed the factors discussed in Miller and Parker and found that there were no mitigating circumstances that mandated parole eligibility. Cook filed a timely motion for reconsideration, which was denied, and a timely notice of appeal.

DISCUSSION

¶ 21. On appeal, Cook, through appointed counsel from the Indigent Appeals Division of the Office of State Public Defender, argues (1) that he should be declared eligible for parole under Miller and Parker , (2) that he was entitled to a jury determination of his sentence, and (3) that the Eighth Amendment to the United States Constitution and Article 3, Section 28 of the Mississippi Constitution categorically prohibit a sentence of LWOP when the offender was under the age of eighteen at the time of the offense. We address these issues in turn.

I. The circuit judge did not abuse his discretion by declining to declare Cook parole eligible.

¶ 22. In Miller , the United States Supreme Court stated, "[W]e think appropriate occasions for sentencing juveniles to [LWOP] will be uncommon." Miller , 132 S.Ct. at 2469. The Court said that this sentence would only be appropriate for "the rare juvenile offender whose crime reflects irreparable corruption." Id. (quoting Roper v. Simmons , 543 U.S. 551, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ). Cook argues that the circuit judge erred by declining to grant him parole eligibility because he is not such an "uncommon" or "rare" offender.

¶ 23. As this Court has held on two prior occasions, we review a circuit judge's sentencing decision under Miller only for an abuse of discretion. Hudspeth v. State , 179 So.3d 1226, 1228 (¶ 12) (Miss. Ct. App. 2015) ; Davis v. State , 2016-CA-00638-COA, 234 So.3d 440, 442-43, 2017 WL 2782015, at *2 (¶ 8) (Miss. Ct. App. June 27, 2017). Cook argues that we should apply "heightened scrutiny," as in a death penalty case. See, e.g. , Byrom v. State , 863 So.2d 836, 846 (¶ 9) (Miss. 2003). Neither this Court nor the Mississippi Supreme Court has ever held that appeals from Miller hearings are subject to "heightened scrutiny," and we decline to do so now. Moreover, even in a capital case, it does not appear that any sort of "heightened scrutiny" or de novo review is applied to the circuit judge's or jury's ultimate finding that the death penalty is the appropriate sentence.

¶ 24. This Court is in no position to conduct a de novo, appellate resentencing of the offender. Nor would it be appropriate for us to substitute our own collective view of an appropriate sentence for the considered judgment of the circuit judge, who listened to and observed the demeanor of the witnesses at sentencing and the offender himself, looked the offender in the eye, and imposed what he adjudged to be a just sentence. Rather, our standard of review is abuse of discretion, as it is in other appeals in which a sentence is alleged to be excessive. See, e.g. , Reynolds v. State , 585 So.2d 753, 756 (Miss. 1991) ; Carter v. State , 450 So.2d 67, 69 (Miss. 1984) ; May v. State , 435 So.2d 1181, 1184 (Miss. 1983).

¶ 25. Cook next argues that the circuit judge failed to "acknowledge" that Miller and Montgomery have established a "presumption against" a sentence of LWOP in all cases in which the offender was under the age of eighteen at the time of the offense. In support of this argument, Cook relies on the Connecticut Supreme Court's opinion in State v. Riley , 315 Conn. 637, 110 A.3d 1205, 1214 (2015). But see id. at 1222 (Espinosa, J., dissenting) (rejecting the suggestion that Miller established such a "presumption"). However, our own Supreme Court has indicated that no such presumption exists. In Jones v. State , 122 So.3d 698, 702 (¶ 14) (Miss. 2013), our Supreme Court stated that a sentence of LWOP remains appropriate for "juveniles who fail to convince the sentencing authority that Miller considerations are sufficient to prohibit its [imposition]." (Emphasis added). Thus, Jones places the burden on the offender to persuade the judge that he is entitled to relief under Miller . We are bound to follow the decision of the Mississippi Supreme Court in Jones .

¶ 26. We now consider whether the circuit judge abused his discretion by finding that Cook was not eligible for parole under Miller . We begin by acknowledging that the United States Supreme Court has given the sentencing judge in a Miller case a difficult, if not impossible, task. According to the Supreme Court, the judge is supposed to determine whether the offender's "crimes reflected only transient immaturity" or instead "reflect irreparable corruption." Montgomery , 136 S.Ct. at 736 (emphasis added). Apparently, there are only two possibilities: either the murder reflects only youthful immaturity, or else the offender is irreparably corrupt. We note that there probably are few murders that "reflect[ ] only transient immaturity" and nothing else, a description that seems to effectively absolve the offender of culpability. We also note that the United States Supreme Court has never defined "irreparable corruption," a term that sounds more like a theological concept than a rule of law to be applied by an earthly judge.

¶ 27. With these observations, Miller and our Supreme Court's decision in Parker do identify some factors that the judge is supposed to consider in reaching a sentencing decision. Thus, the judge in a Miller case is bound to consider and apply these factors in a non-arbitrary fashion. If the offender persuades the judge that the Miller factors preponderate in favor of parole eligibility, then the judge must declare the offender parole eligible. Parker , 119 So.3d at 999 (¶ 28). If, however, the judge determines that Miller does not mandate parole eligibility, then the judge must deny relief because the Legislature has provided by law that persons convicted of murder are not eligible for parole. See Miss. Code Ann. § 47-7-3(1)(f) ; Stromas v. State , 618 So.2d 116, 123 (Miss. 1993) ("It is the [L]egislature's prerogative, and not this Court's, to set the length of sentences.").

¶ 28. In Parker , our Supreme Court made clear that " Miller does not prohibit sentences of life without parole for juvenile offenders. Rather, it 'requires the sentencing authority to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' " Parker , 119 So.3d at 995 (¶ 19) (quoting Miller , 132 S.Ct. at 2469 ). As the Parker Court explained, Miller "identified several factors" that the "sentencing authority" must consider before sentencing a juvenile offender to LWOP:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him-and from which he cannot usually extricate himself-no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth-for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.... And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Id. at 995-96 (¶ 19) (quoting Miller , 132 S.Ct. at 2468 ).

¶ 29. The circuit judge addressed these factors in his order denying relief. As to chronological age, the judge noted that Cook was seventeen years and two months old when he murdered Durr. The judge reasoned that Cook "was sufficiently close to his eighteenth birthday that this factor should not weigh against the imposition of a sentence of [LWOP]." In addition, we note that Barnes was only one year older than Cook, and although he did not pull the trigger, he also received an effective sentence of LWOP.

¶ 30. As to maturity or immaturity, the judge noted that the evidence did not show that Cook "was especially immature for his age." Dr. Lott testified that Cook was of average intelligence and well within the normal range of maturity for a seventeen year old.

¶ 31. As to impetuosity, the judge found that there was "no evidence of impetuosity in this case." Rather, "the plan to take the victim's vehicle was just that, a plan." The judge also found that "[t]he crime was premeditated" and that Cook stole the gun from his uncle "for the purpose which he accomplished." The judge's findings are supported by substantial evidence. We also note that Cook and Barnes were presented with repeated opportunities to abandon their plans: The first store they planned to rob was closed, and there were too many customers at the second store. Cook then flagged down a car to rob, but it turned out to be a police car. That was no deterrent. Cook simply flagged down the next driver, which turned out to be Barnes's cousin. Even after Durr gave them a ride and Cook and Barnes exited the car without incident, Cook decided to shoot Durr in the head and take his car. After the crime was committed, Cook and Barnes went to great lengths to try to cover their tracks and destroy evidence. The circuit judge did not abuse his discretion by finding that this factor did not weigh in favor of parole eligibility under Miller .

¶ 32. The court next found "that there ha[d] been little, if any, proof of [Cook's] failure to appreciate risks and/or consequences of his actions." The court did not find it significant that Cook was doing pushups in his jail cell when his mother came to visit him. The court also noted that Cook's and Barnes's efforts to cover their tracks suggested an awareness of the consequences. There is substantial evidence to support the circuit judge's finding that this factor did not weigh in favor of parole eligibility under Miller .

¶ 33. With respect to Cook's "family and home environment," the judge acknowledged that Cook grew up in a broken, single-parent home because of his father's imprisonment and that Cook's mother struggled with drugs. However, the judge also noted that Cook's "mother took care of him in spite of her battles with drug addiction." The judge found that Cook "always had decent clothing as well as computer games, a go cart and later an automobile." There was no suggestion or evidence that Cook was ever abused or neglected. Also, Chief Bell was willing to serve as a mentor to Cook. The court found that although Cook "did not enjoy an ideal childhood," this factor did not indicate that he should be granted parole eligibility. This was not an abuse of discretion. Cook's family and home environment was not a mitigating factor comparable to the backgrounds of the fourteen-year-old offenders discussed in Miller , 132 S.Ct. at 2468-69.

¶ 34. The circuit judge next found that the "circumstances of the homicide offense," including the extent of Cook's participation and any familial or peer pressures, did not weigh in favor of parole eligibility. As the judge noted, there is no question that Cook pulled the trigger, and there was no pressure from his family to commit a crime. While Dr. Lott suggested that there might have been peer pressure, there was no evidence that Barnes or anyone else pressured Cook into murdering Durr. The judge reasoned that, if anything, Cook, Barnes, and Williams all encouraged one another in their violent, criminal plans. We find no abuse of discretion in this aspect of the circuit judge's decision. As discussed above, Cook admitted that he shot Durr in the head because he wanted to use Durr's car to commit an armed robbery, and Cook then went to great lengths to destroy the evidence.

¶ 35. Finally, the judge considered the "possibility of rehabilitation." The judge discussed Cook's numerous RVRs while incarcerated and did "not find any significant possibility of rehabilitation." There was no abuse of discretion in this finding. As discussed above, Dr. Lott testified only that it was his "impression" that he had not seen "any data ... to suggest" that Cook was the type of allegedly "rare" juvenile offender who will commit additional violent crimes as an adult. However, Dr. Lott conceded that he could not make that prediction "with any degree of certainty." He also acknowledged that psychologists really "can't distinguish between" offenders who will reoffend and those who will not. At the end of the hearing in the circuit court, Cook spoke very briefly "in allocution." Although he "ask[ed] for forgiveness from the Durr family," he did not provide any additional testimony or evidence to demonstrate that rehabilitation was likely.

¶ 36. In addition to the circuit judge's findings, we note that there is no evidence to suggest that the crime should have been charged as a lesser offense. Cook was clearly guilty of the capital offense to which he pled. See Miller , 132 S.Ct. at 2468 (suggesting consideration of whether the offender "might have been charged and convicted of a lesser offense"). Also, from the standpoint that proportionality in sentencing is desirable, we again note that Barnes was only one year older than Cook, and although he did not pull the trigger, he also received an effective sentence of LWOP.

¶ 37. Our standard of review is abuse of discretion. The circuit judge in this case discussed and applied the correct legal standard, i.e., the relevant factors outlined in Miller and Parker . In addition, the judge's findings and reasoning are supported by substantial evidence and are not arbitrary or capricious. Even in sentencing a juvenile offender, a judge should consider that retribution and deterrence are proper purposes of sentencing. See Taggart v. State , 957 So.2d 981, 994 (¶ 31) (Miss. 2007). On the facts of this case, we cannot say that the judge abused his discretion by declining to declare Cook eligible for parole.

II. Cook was not entitled to be resentenced by a jury.

¶ 38. Cook next argues that he has a "constitutional right to have his sentence determined by a jury." He reasons that he is entitled to parole eligibility unless the sentencer finds that his offense reflects "irreparable corruption." Montgomery , 136 S.Ct. at 734. And he relies on the principle that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Cook argues that, when read in conjunction with the Apprendi line of cases, Miller and Montgomery establish a constitutional right to jury resentencing. We disagree.

¶ 39. The Miller and Montgomery opinions refute Cook's argument. Miller held that "a judge or jury must have the opportunity to consider mitigating circumstances before imposing" the sentence of LWOP in the case of a juvenile offender. Miller , 132 S.Ct. at 2475 (emphasis added). And in Montgomery , the Court stated, " Miller requires that before sentencing a juvenile to [LWOP], the sentencing judge [must] take into account" certain potentially mitigating factors. Montgomery , 136 S.Ct. at 733 (emphasis added). Moreover, in Montgomery , the Court specifically stated that " Miller did not require trial courts to make a finding of fact regarding a child's incorrigibility" and that " Miller did not impose a formal factfinding requirement." Id. at 735.

¶ 40. It may be that "irreparable corruption" is not considered an objective, provable "fact" for purposes of Apprendi . Or it may be that Apprendi does not apply because "irreparable corruption" is something that a defendant must disprove in order to mitigate his punishment, rather than something the State must prove in order to increase the penalty. Whatever the reason, unless the United States Supreme Court's opinions in Miller and Montgomery do not mean what they specifically say-that a judge may sentence the offender to LWOP-Cook does not have a constitutional right to be resentenced by a jury.

¶ 41. In support of his argument, Cook also cites an unpublished order entered by a panel of the Mississippi Supreme Court. Dycus v. State , 2012-M-02041 (Sept. 17, 2014). Dycus was convicted and sentenced to death following a jury trial. He was later resentenced to LWOP after the United States Supreme Court prohibited the imposition of the death penalty on offenders who were under the age of eighteen when their crimes were committed. See Roper , 543 U.S. at 578, 125 S.Ct. 1183. Post- Miller , Dycus filed a motion in the Mississippi Supreme Court again requesting resentencing. In a two-page order, a three-justice panel ordered a "new sentencing hearing before a jury under [Mississippi Code Annotated] section 99-19-101," the general statute governing sentencing and the imposition of the death penalty in capital cases. The Dycus order provides no further explanation as to why the hearing was to be "before a jury" rather than a judge alone.

¶ 42. We do not believe that the unpublished order in Dycus is controlling or applicable to this case. To begin with, the unpublished panel order has no precedential value. Westbrook v. City of Jackson , 665 So.2d 833, 837 n.2 (Miss. 1995) ; see also Miss. Transp. Comm'n ex rel. Moore v. Allday , 726 So.2d 563, 566-67 (¶ 13) (Miss. 1998) (McRae, J., dissenting) ("[O]ur unpublished orders and opinions are of no precedential value[.]").

¶ 43. In addition, Dycus is distinguishable in that Dycus originally was convicted and sentenced by a jury, which was perhaps a reason that he should be resentenced by a jury. In contrast, Cook pled guilty. When he pled guilty, Cook waived his right to a jury trial and confirmed that he understood that he would be sentenced by the judge. He did so in writing and under oath. Section 99-19-101(1) (Rev. 2015) provides that a sentencing proceeding in a capital case "may be conducted before the trial judge sitting without a jury if both the State ... and the defendant agree thereto in writing."

¶ 44. Finally, section 99-19-101 does not grant Cook a right to a jury in a " Miller hearing." A Miller hearing is a specialized proceeding that is required solely because the United States Supreme Court's decision in Miller decreed it. It is a judicial invention. In such a proceeding, the sentencer is supposed to consider the offender's age, characteristics sometimes associated with youth, the offender's family and home environment, the possibility of rehabilitation, and the facts and circumstances of the crime. See generally Parker , 119 So.3d at 995-96 (¶ 19) (quoting Miller , 132 S.Ct. at 2468 ). The hearing required by section 99-19-101, in contrast, is a statutory procedure established by the Legislature in the exercise of its authority to set sentences for criminal offenses. See Stromas , 618 So.2d at 123. The statute identifies certain aggravating circumstances and mitigating circumstances for the jury to consider. The statutory factors overlap with the Miller factors, but they are not the same. On its face, section 99-19-101 does not apply to Miller hearings. Absent some further direction from the Legislature, we see no reason to interpret section 99-19-101 to require juries in Miller hearings.

III. Cook's sentence is not unconstitutional.

¶ 45. Finally, Cook urges this Court to hold that the United States Constitution and the Mississippi Constitution "categorically prohibit imposing [LWOP] sentences on juveniles." However, the United States Supreme Court has declined to announce such a categorical rule. Miller , 132 S.Ct. at 2463. The Mississippi Supreme Court has also recognized that " Miller does not prohibit sentences of [LWOP] for juvenile offenders." Parker , 119 So.3d at 995 (¶ 19). Rather, a defendant sentenced to life imprisonment is ineligible for parole unless he "convince[s] the sentencing authority that Miller considerations" require parole eligibility. Jones , 122 So.3d at 702 (¶ 14). Moreover, the Legislature has effectively mandated a minimum sentence of LWOP for the offense of capital murder. "It is the [L]egislature's prerogative, and not this Court's, to set the length of sentences." Stromas , 618 So.2d at 123. "Declaring a sentence violative of the Eighth Amendment to the U.S. Constitution carries a heavy burden and only in rare cases should this Court make such a finding." Id. We decline to hold that a defendant convicted of capital murder has an absolute constitutional right to be considered for parole.

CONCLUSION

¶ 46. The circuit judge did not abuse his discretion or otherwise err in declining to declare Cook parole eligible. Cook's sentence does not violate the United States Constitution or the Mississippi Constitution. Therefore, we affirm.

¶ 47. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      Barnes later pled guilty to murder and is also serving a life sentence. See Barnes v. State , 51 So.3d 986, 988 (¶ 2) (Miss. Ct. App. 2010), cert. denied , 50 So.3d 1003 (Miss. 2011). He is also ineligible for parole.

      Cook also subpoenaed Steven Pickett, the chairman of the State Parole Board, to testify at the hearing. However, Pickett had no personal knowledge of Cook's case.

      See Byrom, 863 So.2d at 881-83 (¶¶ 164-71) (affirming sentence of death because "sufficient evidence existed to support the finding" of an aggravating factor, "the trial judge clearly considered all the mitigating circumstances," and the sentence was not "imposed under the influence of passion, prejudice or any other arbitrary factor" and was "not disproportionate"); Bishop v. State , 812 So.2d 934, 948 (¶ 45) (Miss. 2002) ("When the sufficiency of the evidence [of facts necessary to support the death penalty] is challenged, we must view the evidence and all reasonable inferences which may be drawn therefrom in the light most consistent with the verdict. We have no authority to disturb the verdict short of a conclusion that no rational trier of fact could have found the fact at issue beyond a reasonable doubt.").

      As we recently stated, Miller "obviously 'is binding on the tribunals and citizens of the respective states in comparable cases.' " Mason v. State , 2015-CP-00523-COA, 235 So.3d 129, 133, 2017 WL 2335516, at *3 n.2 (Miss. Ct. App. May 30, 2017) (quoting Bolton v. City of Greenville , 253 Miss. 656, 178 So.2d 667, 672 (1965) ).