text:
    Bettye LOGAN v. KLAUSSNER FURNITURE CORPORATION d/b/a Bruce Furniture Industries and American Casualty Company of Reading, PA.
    NO. 2015-CT-01760-SCT
    Supreme Court of Mississippi.
    March 15, 2018
    ATTORNEYS FOR APPELLANT: ROY O. PARKER, Tupelo, HALEY WADE McINGVALE, II
    ATTORNEYS FOR APPELLEES: AMY LEE TOPIK, JOSEPH ANTHONY GERACHE, III
    EN BANC.
    ON WRIT OF CERTIORARI
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Bettye Logan sustained a compensable leg injury while employed at Klaussner Furniture Corporation d/b/a Bruce Furniture Industries ("Klaussner"). An Administrative Judge ("AJ"), and the Mississippi Workers' Compensation Commission ("Commission"), found that Logan had suffered a sixty-percent loss of industrial use to her left lower extremity, which entitled her to 105 weeks of compensation set at $331.06 for her "scheduled-member" injury under Mississippi Code Section 71-3-17(c)(2). Logan appealed, and the Court of Appeals reversed, finding that the Commission and the AJ had applied the incorrect part of Section 71-3-17 and that either subsection (a) or subsection (c)(25) of the statute-and not subsection (c)(2)-applied. Klaussner and the American Casualty Company, the carrier, petitioned this Court for writ of certiorari. Having granted certiorari, the Court finds that the Commission and the AJ properly awarded Logan permanent-partial disability benefits under Section 71-3-17(c)(2). Accordingly, we reverse the judgment of the Court of Appeals and reinstate and affirm the holding of the AJ and Commission.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case is before the Court after a lengthy procedural history, having been heard twice by the Court of Appeals, the Commission, and an AJ. On October 9, 2003, Logan, then employed by Klaussner, tripped and fell at work, sustaining a leg injury. Logan filed a petition to controvert with the Commission on December 9, 2004.

Logan I

¶ 3. A hearing was held on August 12, 2010. Logan testified that she was working at Klaussner as a cutter and spreader when she tripped on strings of fabric and fell. Logan returned to light-duty work in May 2004. Initially, Logan was accommodated and placed in a position tearing tags from bundles and placing labels on products. Logan was able to remain seated in this position. After two weeks, a Klaussner plant manager suggested that Logan take the bundling job. Logan did not believe that she could perform that job, and the bundling job paid less than her previous position. So Logan took a voluntary layoff. Logan began receiving Social Security disability benefits in May 2005.

¶ 4. Logan stated that, after the accident, she had trouble completing daily activities because of her injury and testified that she began living with her daughter, Ginnie Graham ("Graham"). Graham also testified that, since Logan's accident, she had to take care of her mother, as she could no longer complete daily activities, such as grocery shopping or driving long distances. According to Graham, Logan could not sit upright for more than two or three hours before her leg began to swell.

¶ 5. Extensive medical records and testimony were produced at the hearing, which were summarized by the Court of Appeals:

On the day of the accident, [Logan] saw Dr. Bruce Longest, who then referred her to Dr. Earnest B. Lowe Jr., an orthopedic surgeon.
On October 10, 2003, Logan visited Dr. Lowe. X-rays revealed that Logan had a fractured fibia and a spiral fracture of the tibia. Dr. Lowe treated Logan by putting a cast on her left leg and foot. He noted that her injury would likely take at least three months to heal.
On November 14, 2003, Logan visited Dr. Kim Stimpson, another orthopedist. Dr. Stimpson recommended that Logan continue to wear the cast and return in a month. He also advised her to continue on non-weight-bearing status. On January 9, 2004, Dr. Stimpson recommended a fracture brace to replace the cast. Dr. Stimpson found that Logan would be unable to return to work from January 20, 2004, through March 20, 2004.
Logan visited Dr. Stimpson again on March 26, 2004. Although the fracture was healing, Logan had some lower-extremity edema in her foot below the fracture base. Dr. Stimpson recommended the removal of the fracture brace, range-of-motion exercises for her knee and ankle, and progressive weight bearing on her right leg. He further opined that Logan was unable to return to work from March 26, 2004, through May 26, 2004.
In an April 23, 2004 visit, Dr. Stimpson noted that Logan continued to have pain and swelling in her left leg. His report stated: "This appears to be some neuralgia and is most likely secondary to her fracture brace that was applied quite tightly as we noticed at her last visit." At this time, Logan was ambulatory but still walked with a limp and had significant weakness. Dr. Stimpson returned Logan to limited-work duty, which he suggested should be sitting work only, from April 24, 2004, until May 30, 2004. He later extended the recommendation from May 25, 2004, until July 25, 2004. During this time, Logan was not permitted to work more than two hours at a time and could not lift or push more than ten pounds.
...
At Logan's last appointment with Dr. Stimpson, she continued to have problems with her leg, which Dr. Stimpson noted was consistent with anterior tibial nerve injury. Dr. Stimpson found that Logan's recovery was not within what would normally be expected. He recommended that Logan continue her work restrictions, but opined that Logan would be at maximum medical improvement (MMI) by October 2004.
Dr. Stimpson then referred Logan to Cornerstone Rehabilitation to undergo an MMI evaluation and a functional capacity evaluation (FCE). On September 22, 2004, David Brick, an occupational therapist, conducted the FCE. He found there was no physical or functional reason that Logan could not perform the light-duty work required by Klaussner.
Hill Rehabilitation Services also performed an FCE on Logan since Logan had attended Hill Rehabilitation Services for physical therapy. She was discharged from physical therapy on September 7, 2004. However, she returned to Hill Rehabilitation Services for an FCE on February 28, 2005. The therapist performing the evaluation found that Logan still had problems with her leg; therefore, she was only suited for sedentary positions where she was allowed to sit constantly and elevate her left leg.
Logan first saw Dr. Rommel Childress, an orthopedic surgeon, on August 1, 2006. He ordered magnetic resonance imaging (MRI) tests on her hip and knee. On Logan's August 21, 2007 visit, Dr. Childress had reviewed the MRIs and found that Logan had a tear in the medial meniscus. He recommended that she use a cane or crutch and suggested some exercises for her knee. Dr. Childress advised Logan that she would need surgery to repair the tear but that this could be done on an elective basis.
Per her employer's request, Logan visited Dr. Cooper Terry on February 9, 2009. At the time, Logan still had complaints regarding her knee. Dr. Terry opined that the knee pain and meniscal tear were related to Logan's work injury. He also recommended a left knee arthroscopy. Logan had the surgery on July 18, 2009. As of September 23, 2009, Dr. Terry deemed Logan to have reached MMI. He assessed a 4% left-lower-extremity impairment and gave her no permanent work restrictions.

Logan I , 127 So.3d at 1139-1141.

¶ 6. Two vocational-rehabilitation experts testified at the hearing as well. Logan's expert, C. Lamar Crocker, opined that Logan had a one-hundred-percent loss in the labor market. Contrastingly, Klaussner's expert, Jennifer Oubre, opined that Logan had transferable skills and remained employable, and that she could work in customer service or as a receptionist. Oubre never met with Logan, but based her opinion on Logan's medical records.

¶ 7. On July 29, 2011, the AJ entered an order, finding Logan had not suffered "any industrial loss of use of her left lower extremity because of her work-connected injuries[.]" The AJ further stated: "Although [Logan] has a permanent medical impairment of 4% to her left lower extremity, a preponderance of the evidence does not support a finding that she sustained any industrial loss of use of her left lower extremity because of the work-connected impairment." Logan then filed a petition for review before the full Commission, and on February 6, 2012, the full Commission affirmed the AJ's order.

¶ 8. Logan appealed the decision of the AJ and Commission. The Court of Appeals characterized the sole issue on appeal as whether the AJ's and Commission's finding was supported by substantial evidence. The Court of Appeals held that "[t]he lay testimony, vocational experts, and medical evidence establish that Logan has suffered a permanent partial or total disability[,]" and, "at the very least, Logan should have been assessed a loss of wage-earning capacity." Id. at 1143. The Court of Appeals reversed and remanded "for a determination of the appropriate award of compensation." Id.

Logan II

¶ 9. On remand, the AJ issued an amended opinion in light of the Court of Appeals' decision and the evidence presented at the first hearing. The AJ found that Logan had suffered a sixty-percent loss of industrial use to her left lower extremity, entitling her to permanent-partial disability benefits in the amount of $331.06 for a period of 105 weeks. The AJ held that a finding of a permanent-total loss (one hundred percent) of industrial use to her left lower extremity would be contrary to the medical evidence. In support, the AJ relied on the testimony of two physicians-Dr. Stimpson and Dr. Terry-who opined that Logan could return to some form of work. On October 23, 2015, the Commission affirmed the decision of the AJ, finding that Logan had the ability to return to employment at least at a sedentary level based on the medical and vocational evidence. Logan again appealed.

¶ 10. Logan argued that she was entitled to the maximum allowable amount of permanent-total disability compensation instead of the lower amount awarded by the AJ and the Commission. The Court of Appeals again reversed and remanded, this time on the basis of the Commission's alleged "erroneous application of law" with respect to Mississippi Code Section 71-3-17. The majority of the Court of Appeals held that either Section 71-3-17(a) or Section 71-3-17(c)(25), instead of Section 71-3-17(c)(2), applied because Logan's injury was "permanent" and resulted in a loss of wage-earning capacity. Klaussner and American Casualty Company petitioned this Court for writ of certiorari, which we granted.

STANDARD OF REVIEW

¶ 11. It is well-settled law in this State that the Commission is the ultimate finder of fact in workers' compensation cases, and where substantial credible evidence supports the Commission's decision, then, absent an error of law, the decision must stand without judicial interference. Smith v. Jackson Constr. Co. , 607 So.2d 1119, 1124 (Miss. 1992). In other words, the "Commission's findings of fact are entitled to substantial deference when challenged on appeal to the judiciary." Raytheon Aerospace Support Servs. v. Miller , 861 So.2d 330, 335 (Miss. 2003) (citing Vance v. Twin River Homes, Inc. , 641 So.2d 1176, 1180 (Miss. 1994) ). Even if there is conflicting evidence, the reviewing court is not to determine where the preponderance lies because "it is presumed that the Commission as trier of fact has previously determined which evidence is credible and which evidence is not." Miller , 861 So.2d at 335 (citation omitted). "The Commission's decision will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law." Lovett v. Delta Reg'l Med. Ctr. , 157 So.3d 88, 89 (Miss. 2015) (citation omitted). The findings of the Commission should be reversed "only in rather extraordinary cases." Miller , 861 So.2d at 335 (quoting Hale v. Ruleville Care Ctr. , 687 So.2d 1221, 1224-45 (Miss. 1997) ).

DISCUSSION

¶ 12. In Logan I , the Court of Appeals held that "evidence establish[ed] that Logan has suffered a permanent partial or total disability," and that court remanded the case "to the Commission for a determination of the appropriate award of compensation" in light of that holding. Logan I , 127 So.3d at 1143 (emphasis added). Following that court's instructions on remand, the Commission found that Logan had established a sixty-percent industrial loss of use to her left leg, after finding she had failed to prove a total loss of wage-earning capacity and permanent total disability. Logan was awarded 105 weeks of compensation for her permanent-partial, scheduled-member injury.

¶ 13. In Logan II , the Court of Appeals improperly held that either Section 71-3-17(a) or Section 71-3-17(c)(25) applied in this scheduled-member case, not Section 71-3-17(c)(2), which the Commission properly applied. Permanent-partial disability compensation is governed by Section 71-3-17(c), which reads:

In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with paragraph (b) of this section, and shall be paid to the employee ....

Miss. Code Ann. § 71-3-17(c) (Rev. 2011) (emphasis added). A claimant may be compensated for a leg injury under the permanent-partial statute for a maximum of 175 weeks. See Miss. Code Ann. § 71-3-17(c)(2). Under this statute, subsections (c)(1) thru (c)(24) control in cases of permanent-partial disability involving the loss or loss of use of a scheduled member, such as a leg, and other specified injuries.

¶ 14. The Commission specifically found that Logan did not sustain a total loss of wage-earning capacity, and its finding was supported by substantial evidence. The Commission correctly awarded benefits under the schedule, Section 71-3-17(c)(2), because subsection (c)(25) does not apply to scheduled-member cases. Nor does subsection (a) apply, as the injury was not permanent total. Subsection (c)(2) controls this case, as this case involved a permanent-partial disability to Logan's leg.

CONCLUSION

¶ 15. The Commission's decision is consistent with the law governing benefits for a permanent-partial disability and is supported by substantial evidence. Therefore, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Commission.

¶ 16. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION IS REINSTATED AND AFFIRMED.

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

      Logan v. Klaussner Furniture Corp. , 127 So.3d 1138, 1140 (Miss. Ct. App. 2013) (Logan I ).

      Logan v. Klaussner Furniture Corp. , No. 2015-WC-01760-COA, 238 So.3d 1166, 2016 WL 9454440 (Miss. Ct. App. Nov. 15, 2016), cert. granted , 229 So.3d 711 (Miss. 2017) (Logan II ).


source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    ESTATE OF Russell PUCKETT v. Carol CLEMENT
    NO. 2016-IA-00636-SCT
    Supreme Court of Mississippi.
    March 15, 2018 Rehearing Denied March 15, 2018
    ATTORNEY FOR APPELLANT: KENNETH B. RECTOR, Vicksburg.
    ATTORNEY FOR APPELLEE: DAVID M. SESSUMS, Vicksburg.
    EN BANC.
    ON MOTION FOR REHEARING
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn and these opinions substituted therefor.

¶ 2. This interlocutory appeal arises from a 2010 civil suit filed in the Circuit Court of Warren County (the "trial court") by Carol Clement against Russell Puckett. After Puckett's death in 2014, Clement substituted the Estate of Russell Puckett (the "Estate") as the defendant in the suit and served the Estate. The Estate moved to dismiss the suit due to failure to timely serve process under Mississippi Rule of Civil Procedure 4(h). The Estate argued that the statute of limitations had expired before Clement perfected service. The trial court denied the motion to dismiss. The Estate now appeals the trial court's denial of the motion to dismiss. Because the trial court erred when it denied the motion to dismiss, we reverse and render judgment in favor of the Estate.

FACTS AND PROCEDURAL HISTORY

¶ 3. In her complaint, Clement maintained that Puckett had told her she could have the two planters on his front porch when he either passed away or closed the antique store where he also lived. According to Clement, she had purchased antiques from Puckett in the past, and she claimed that by September 2009 there had been no activity at Puckett's residence for some months. She also asserted that she had heard from the neighbors that Puckett had passed away. Further, Clement alleged that she had knocked on Puckett's door and rung his doorbell on a number of occasions and had not received any response.

¶ 4. Therefore, on the evening of September 11, 2009, Clement, with the assistance of her daughter, removed one of Puckett's planters from his porch and began to carry it toward her nearby home. Clement maintained that she and her daughter crossed the street in front of Puckett's home with the planter carried between them when Puckett fired four shotgun rounds behind them. Clement claimed that two of the shots struck her and caused the planter to explode. She also alleged that Puckett fired two additional shots "in a direction unknown."

¶ 5. Clement filed suit against Puckett on June 11, 2010. The complaint set forth three counts: (1) negligence in the operation and discharge of a firearm, (2) gross negligence in the operation and discharge of a firearm and (3) deliberate, intentional and reckless disregard of the safety of Clement and her daughter.

¶ 6. Before the Estate was served with process and its motion to dismiss was denied, a number of procedural motions, orders and notices were entered. The relevant procedural history of the case is summarized in the following timeline:

Procedural History Timeline

Sept. 11, 2009 Puckett allegedly shot Clement. June 11, 2010 Clement filed her complaint in the trial court. Statute of limitations tolled with 93 days remaining. 120-day period to serve process until October 12, 2010, began. Aug. 18, 2010 Trial court granted Clement's first motion for additional time to serve process until November 18, 2010. Nov. 17, 2010 Trial court granted Clement's second motion for additional time to serve process until January 31, 2011. Jan. 20, 2011 Trial court granted Clement's third motion for additional time to serve process until May 2, 2011. May 3, 2011 Statute of limitations resumed. June 27, 2011 Trial court granted Clement's fourth motion for additional time to serve process until October 1, 2011. Statute of limitations tolled with 38 days remaining.3 Oct. 2, 2011 Statute of limitations resumed. Oct. 24, 2011 Trial court granted Clement's fifth motion for additional time to serve process until February 28, 2012. Statute of limitations tolled with 16 days remaining. Feb. 29, 2012 Statute of limitations resumed. Mar. 16, 2012 Statute of limitations expired. July 31, 2014 Warren County Chancery Court (the "chancery court") received Puckett's will for probate. Chancery court issued letters of administration to Harvey Smith4 as executor of the Estate. Aug. 7, 2014 Clement filed a motion for suggestion of death and an amended complaint. Aug. 12, 2014 Trial court substituted the Estate as the defendant. Aug. 26, 2014 Clement returned service, executed on the Estate. Oct. 10, 2014 Estate filed motion to dismiss. Estate answered the complaint. Nov. 20, 2014 Estate served requests for admission, interrogatories and production of documents on Clement. Nov. 21, 2014 Clement answered requests for admission.
Mar. 10, 2015 Puckett's heirs-at-law filed a will contest in the chancery court. Apr. 10, 2015 Clement filed notice of her response to the Estate's interrogatories and request for production of documents. Mar. 4, 2016 Chancery court recognized that Puckett's heirs-at-law had settled the will contest. Mar. 15, 2016 Chancery court issued letters of administration to Gerald Puckett as the estate's executor. Mar. 17, 2016 Gerald Puckett entered an appearance as the estate's executor in Clement's suit. Mar. 18, 2016 Estate filed a brief in support of its motion to dismiss. Mar. 22, 2016 Estate filed a notice of hearing on its motion to dismiss. Apr. 14, 2016 Trial court held a hearing on the motion to dismiss. Apr. 21, 2016 Trial court denied the Estate's motion to dismiss.

[Editor's Note: The preceding image contains the references for footnotes , ].

¶ 7. After the hearing, the trial court denied the motion to dismiss. The record and the transcript before us, however, do not reflect the trial court's rationale in denying the motion to dismiss. The trial court may have denied the motion based on either a finding of good cause or waiver of the statute-of-limitations defense or both. Although the trial court recognized that the Estate had filed its motion to dismiss based on Clement's failure to serve process within the time prescribed by Rule 4(h), the trial court failed to state whether Clement had shown good cause.

¶ 8. Aggrieved, the Estate appeals. The Estate argues that the trial court erred in denying the motion to dismiss because (1) Clement failed to show good cause for failing to serve Puckett within the statute of limitations, and (2) it did not waive its statute-of-limitations defense. Clement responds that the trial court properly denied the motion to dismiss since she demonstrated good cause and the Estate waived its defense of the statute of limitations. We address first the issue of the statute of limitations and second the issue of good cause.

STANDARD OF REVIEW

¶ 9. "The waiver ... of an affirmative defense is subject to an abuse-of-discretion standard of review." Kinsey v. Pangborn Corp. , 78 So.3d 301, 306 (Miss. 2011). " 'This Court uses a de novo standard of review when passing on questions of law including statute of limitations issues.' " Chimento v. Fuller , 965 So.2d 668, 673 (Miss. 2007) (quoting ABC Mfg. Corp. v. Doyle , 749 So.2d 43, 45 (Miss. 1999) ).

ANALYSIS

I. Statute of Limitations

A. Waiver

¶ 10. The Estate did not waive its right to assert the statute of limitations as a defense. In Mississippi, "[a] defendant's failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver." MS Credit Ctr., Inc. v. Horton , 926 So.2d 167, 180 (Miss. 2006) (n.8 omitted). In order to constitute a waiver, the delay must be "substantial and unreasonable." Id.

¶ 11. In Horton , the amended complaint was filed on May 5, 2003. Id. The defendants filed their answers to the amended complaint on May 23, 2003, and July 7, 2003, asserting their right to compel arbitration. Id. The defendants then delayed eight months, "all the while participating in the litigation process," before moving to compel arbitration on March 22, 2004. Id. According to the Horton Court, the defendants had "provided no plausible explanation for th[e] delay." Id.

¶ 12. Unlike the delay in Horton , the seventeen-month delay between the Estate's filing of its motion to dismiss and noticing the motion for hearing was not unreasonable. Such a delay, with "no plausible explanation," might be unreasonable. Id. Here, though, the delay is reasonable because, five months after the Estate moved to dismiss, Puckett's heirs-at-law filed a will contest which questioned the legitimacy of Smith as the Estate's executor. Ultimately, the will challenge was settled, Puckett's will was set aside, and Smith was removed as executor. The settlement was recognized by the chancery court on March 4, 2016, and letters of administration were issued to Gerald Puckett on March 15, 2016. Seven days later, the Estate set its motion for hearing. The delay here is reasonable as the Estate could not be expected to set its motion for hearing and argue it before the chancery court had determined who was the proper executor of the Estate.

¶ 13. Further, in contrast to the defendants in Horton , the Estate did not participate actively "all the while" during the delay in the litigation process. Id. The Estate initially answered and moved to dismiss the complaint. Forty-one days later, the Estate served an initial set of discovery requests on Clement. After this, the Estate did not enter any other filings or participate in the litigation in the trial court until its new executor filed an entry of appearance after the will contest was settled. Thus, the Estate did not actively participate "all the while ... in the litigation process" during the delay. Id.

¶ 14. After review of the record, we find that the trial court abused its discretion in determining that the Estate had waived its statute-of-limitations defense. The delay was reasonable, given the will contest, and the Estate did not participate "all the while ... in the litigation process" during the delay. Id. Therefore, the Estate did not waive its statute-of-limitations defense as a matter of law.

B. One-Year Statute of Limitations

¶ 15. Clement's claims are subject to the one-year statute of limitations. Mississippi Code Section 15-1-35 provides that "[a]ll actions for assault, assault and battery ... shall be commenced within one ... year next after the cause of such action accrued, and not after." Miss. Code Ann. § 15-1-35 (Rev. 2012).

¶ 16. At the outset of our analysis, we recognize that Clement's suit would be barred by either the one-year or the three-year statute of limitations. Given our precedent, though, we decline to apply a three-year limitations period to Clement's allegations of negligence, as Clement's "complaint states a claim generically akin to a common law assault and battery." City of Mound Bayou v. Johnson , 562 So.2d 1212, 1215 (Miss. 1990).

¶ 17. In Mississippi, the torts of negligence, assault, and battery are separate. See Webb v. Jackson , 583 So.2d 946, 951 (Miss. 1991). "[T]here is no such thing as a negligent assault." Id. Further, the Court of Appeals rightly has found that "an intentional tort cannot be committed negligently." Jordan v. Wilson , 5 So.3d 442, 447 (Miss. Ct. App. 2008).

¶ 18. Within the context of statutes of limitation, we recently reaffirmed this principle when we held that we would "not recognize claims for intentional torts veiled in a cloak of negligence." Sanderson Farms, Inc. v. McCullough , 212 So.3d 69, 80 (Miss. 2017) (citing Jordan , 5 So.3d at 447 ). Moreover, this Court "prohibit[s] the characterization of an intentional tort as an act of negligence in order to escape the one-year bar." Howard v. Wilson , 62 So.3d 955, 956 (Miss. 2011). Further, " 'there can be no escape from the bar of the statute of limitations applicable to intentional torts by the mere refusal to style the cause brought in a recognized statutory category and thereby circumvent prohibition of the statute.' " Johnson , 562 So.2d at 1215 (quoting Dennis v. Travelers Ins. Co. , 234 So.2d 624, 626 (Miss.1970) ).

¶ 19. While Count I and II of Clement's complaint allege negligence and gross negligence "in the operation and discharge of the firearm," Clement never alleges any facts to support her claim of negligence. Clement maintains that she "heard a loud explosion and the portion of the planter being carried by [her] exploded in her arms[,] and [she] was hit by multiple shotgun pellets from a shotgun fired in the direction of [her] by [Puckett]." She also claims "[t]hat after firing in the direction of [her] ..., [Puckett] fired another two ... rounds from said shotgun in a direction unknown." Presumably, it is this language "in a direction unknown" with which Clement supports her claims of negligence.

¶ 20. This allegation, though, is insufficient to support a claim of negligence. The mere fact that Clement does not know the direction in which Puckett fired the last two rounds does not support the conclusion that he was negligent. All of the allegations in the complaint provide support for the fact that Puckett intentionally fired the shotgun at Clement. Clement had left Puckett's property and was across the street when she was struck by the pellets from the gun. She also detailed her significant injuries from the shotgun pellets. No factual allegations in the complaint support a claim of negligence by Puckett.

¶ 21. We recognize that a plaintiff may plead claims that are inconsistent with one another, but this fact does not relieve the plaintiff of the duty to set forth a claim. See M.R.C.P. 8(a)(2), (e)(2) ; Jordan , 5 So.3d at 447-48. Therefore, while the outcome of our analysis would be the same under a three-year§ bar, we apply a one-year bar to Clement's suit in accordance with our precedent.

C. Application of the Statute of Limitations

¶ 22. It is settled Mississippi law that when a suit "is commenced within the period of limitation, the statute of limitations stops running, for a time. " Heard v. Remy , 937 So.2d 939, 942 (Miss. 2006) (quoting Triple "C" Transp., Inc. v. Dickens , 870 So.2d 1195, 1199 (Miss. 2004) ) (emphasis in original). "In the event process is not served during the 120 day service period, the statute begins to run again." Dickens , 870 So.2d at 1199-200 (Miss. 2004). Rule 4(h) sets out the 120-day deadline:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

M.R.C.P. 4(h). In order to toll the statute of limitations beyond 120 days, the plaintiff must seek an enlargement of the Rule 4(h) deadline under Mississippi Rule of Civil Procedure 6 or dismiss the suit and refile it. See Dickens , 870 So.2d at 1200 (citing Holmes v. Coast Transit Auth. , 815 So.2d 1183, 1185 (Miss. 2002) ).

¶ 23. Assuming all of Clement's extensions of time were proper and tolled the statute of limitations, she still failed to perfect service before the expiration of the statute of limitations, and her suit is barred. The statute of limitations began running in this case on September 11, 2009. On June 11, 2010, Clement filed the complaint and tolled the statutes with ninety-three days remaining. The statute began running again in the interim periods between the third and fourth extensions of time and the fourth and fifth extensions of time. After the fifth extension expired on February 28, 2012, the statute of limitations resumed running and expired on March 16, 2012. Clement did not serve process on Puckett or the Estate until August 25, 2014. Therefore, Clement's suit is barred by the statute of limitations, and the trial court erred in denying the Estate's motion to dismiss.

II. Good Cause

¶ 24. As we have noted, it is not apparent from the record before us whether or not the trial court made a finding of good cause, much less whether substantial evidence existed to support a finding of good cause. A determination of good cause is a discretionary ruling by the trial court and is reviewed for an abuse of discretion and whether substantial evidence supports the determination. Martin v. Lowery , 912 So.2d 461, 467 (Miss. 2005). The Martin Court was faced with a similar situation as we are today. Id. It reviewed a trial court's order which had stated merely that the plaintiff had shown good cause for not serving process on the defendants within the 120-day period of Rule 4(h). Id. at 466. There, the Court noted that it was not apparent whether or not the trial court's determination of good cause was based on substantial evidence because the trial court had failed to provide express reasoning and facts upon which its determination was made. Id. at 467. Accordingly, the Court held that the trial court's failure to make specific findings of fact was an abuse of discretion and reversed the denial of the motion to dismiss and remanded with instructions for the trial court to dismiss the case without prejudice as to the unserved defendants. Id.

¶ 25. Today, we follow the guidance in Martin . While a dismissal of the complaint may not be required in every case as it was in Martin , it is warranted here as there is nothing in the record to support a finding of good cause. "To establish 'good cause' the plaintiff must demonstrate at least as much as would be required to show excusable neglect, 'as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.' " Collins v. Westbrook , 184 So.3d 922, 929-930 (Miss. 2016) (quoting Webster v. Webster , 834 So.2d 26, 28 (Miss. 2002) ). " 'Good cause' can never be demonstrated where plaintiff has not been diligent in attempting to serve process." Montgomery v. SmithKline Beecham Corp. , 910 So.2d 541, 545 (Miss. 2005).

¶ 26. Here, it is undisputed that during the period to serve process before the statute of limitations expired, Clement knew that Puckett was inside his house. Despite this, Clement did not exercise all of her options to serve Puckett. Also, it is clear from the record that for almost fourteen months, from August 21, 2010, to December 15, 2011-a period during which Clement allowed her extensions to lapse twice-no summons was issued. Thus, no summons was issued for almost half of Clement's last extension to serve process upon Puckett. Even if a process server had tried to serve Puckett during this time, no summons was issued with which to serve him. Therefore, under Martin , and after review of the record, we find that the trial court's denial of the motion to dismiss was error.

CONCLUSION

¶ 27. The trial court abused its discretion in denying the motion to dismiss, as the Estate did not waive its statute-of-limitations defense and the trial court did not make specific findings of fact to support its possible finding of good cause. Further, the one-year statute of limitations applies to Clement's claims and serves to bar her suit. Thus, we reverse the trial court's denial of the motion to dismiss and render judgment in favor of the Estate.

¶ 28. REVERSED AND RENDERED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL AND BEAM, JJ., CONCUR. KITCHENS, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. ISHEE, J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, CONCURRING IN PART AND IN RESULT:

¶ 29. I agree with the majority that the one-year statute of limitations applies to bar Carol Clement's claim that Russell Puckett intentionally and deliberately fired a shotgun in her direction. But I cannot join the majority's finding-at the motion to dismiss stage-that the allegations pled in Clement's complaint do not support her claims of negligence and gross negligence. Accordingly, Clement's claims of negligence and gross negligence are barred by the three-year statute of limitations. Therefore, I respectfully concur in part and in result.

¶ 30. In Jordan v. Wilson , 5 So.3d 442, 444 (Miss. Ct. App. 2008), cert. denied , 11 So.3d 1250 (Miss. 2009), the Mississippi Court of Appeals considered a case in which the plaintiff had "parked her vehicle, temporarily, in the [d]efendant's driveway, while attempting to locate a patient whom she was scheduled to see." Misapprehending the plaintiff to be an intruder, the defendant "pointed a long firearm directly toward [p]laintiff" and "kept her firearm pointed at [p]laintiff for several minutes." Id. The actions of the defendant, which placed plaintiff in fear for her life, resulted in the plaintiff's having to seek medical attention and undergo counseling: "[s]he has suffered extreme stress and anxiety[ ] and has lost income[ ] as a result of the [d]efendant's actions." Id.

¶ 31. The trial court had dismissed the case under Mississippi Rule of Civil Procedure 12(b)(6), finding that the plaintiff had pled "a nonexistent cause of action for 'negligent assault.' " Id. at 445. While noting that no cause of action for negligent assault exists and "an intentional tort cannot be committed negligently," the Court of Appeals observed that it "does not follow that one may not be found liable for either an intentional tort or negligence based on the same conduct, assuming of course that there is sufficient evidence to support a jury finding of liability on either theory." Id. at 447 (emphasis in original). The Court of Appeals therefore reversed the judgment and remanded the case, holding that the plaintiff adequately had pled "a claim of both negligence and assault, notwithstanding that the claims are inconsistent." Id. at 448, 450.

¶ 32. The Court of Appeals continued that, "[t]aking the facts alleged in [the plaintiff's] complaint as true, we find that they are such that [the plaintiff] could prove a set of facts that would entitle her to relief on her claim of negligence." Id. at 449. "Jordan would be entitled to relief if the jury were to believe that [the defendant] rested the gun on the windowsill without the intent required to constitute an assault, [the defendant's] conduct breached the standard of care, and [the plaintiff's] injuries were foreseeable." Id.

¶ 33. In the present case, Clement alleged that Puckett's "operation and discharge" of the firearm constituted negligence and gross negligence and that the negligence and gross negligence proximately caused her injuries. She also claimed that Puckett's actions "were deliberate and intentional and in reckless disregard of the safety of Plaintiff and her daughter ...." Specifically, Clement alleged that she and her daughter, under the mistaken belief that Puckett had died or closed the antique shop which he operated on the premises of his residence, had gone to Puckett's house to remove two planters "located outside the entrance to the subject premises" which Puckett had promised to her. After having collected the planters, Clement and her daughter walked across Cherry Street and "heard a loud explosion." According to the complaint, "the portion of the planter being carried by [Clement] exploded in her arms and [she] was hit by multiple shotgun pellets from a shotgun fired" by Puckett "in the direction of Clement." Puckett did not make his presence known prior to firing the shotgun, nor did he call out to Clement "to either stop or return to the subject premises." Puckett then fired two more "rounds from said shotgun in a direction unknown."

¶ 34. Taking the allegations Clement pled in her complaint as true, Clement, like the plaintiff in Jordan , "could prove a set of facts that would entitle her to relief on her claim of negligence" and/or gross negligence. Jordan , 5 So.3d at 449. Clement could prove negligence and/or gross negligence were the jury to believe that Puckett fired the shotgun in Clement's direction, not with the intent to assault and batter her, but rather with the intent to startle a pair of intruders who had, moments before, made off with planters which had been situated outside his home. Id. at 449.

¶ 35. The majority finds that "[a]ll of the allegations in the complaint provide support for the fact that Puckett intentionally fired the shotgun at Clement." (Maj. Op. ¶ 20). The majority mentions that "Clement had left Puckett's property and was across the street when she was struck by the pellets from the gun" and that she had experienced "significant injuries from the shotgun pellets." (Maj. Op. ¶ 20). But none of those allegations negates Clement's claims of negligence and gross negligence. A jury still reasonably could believe that Puckett's act of firing a shotgun in the direction of Clement was negligent and/or grossly negligent. Accordingly, the three-year statute of limitations applied to Clement's negligence and gross negligence claims.

¶ 36. This case is unlike those on which the majority relies. In Sanderson Farms, Inc. v. McCullough , 212 So.3d 69, 71 (Miss. 2017), at the summary judgment stage, this Court held that "[a]lthough the plaintiff's overarching claim is framed in negligence, it factually sounds in intentional tort and is subsequently barred by the one-year statute of limitations ...." The Court continued that "[t]he evidence presented to support the claim alleged in [the plaintiff's] complaint-while pleaded as an action in negligence-supports a claim generically akin to common-law assault and battery[,] an intentional tort." Id. at 75. In Howard v. Wilson , 62 So.3d 955, 956 (Miss. 2011), the complaint alleged that, "[w]hile shopping on the premises of Citi Trends, [the plaintiff] was brutally injured when an employee of Citi Trends, [the defendant] maliciously, reckless[ly], negligently, and violently attacked [the plaintiff] with a pair of scissors." The Court affirmed dismissal, holding that "[s]imply adding 'negligently' to the list of adjectives describing the attack does not make it an act of negligence ...." Id. at 957 (internal citation omitted).

¶ 37. Howard involved only an intentional tort. Here, based on the allegations pled in the complaint, Puckett's act was not so clearly intentional. And, unlike the plaintiff in McCullough , Clement had no opportunity to present evidence in support of her claims of negligence and gross negligence. Nevertheless, because Clement allowed the three-year limitations period to expire, her claims of negligence and gross negligence are barred.

KING, J., JOINS THIS OPINION.

      On appeal, the Estate and Clement both analyze Clement's claims under a three-year statute of limitations. While Clement's suit would be barred by a three-year statute of limitations, we decline to apply a three-year limitations period to these facts. In accord with settled law, we apply a one-year statute of limitations to Clement's claims as discussed infra .

      In its brief, the Estate claims that the events in the complaint took place on September 24, 2009. We rely on the date alleged by Clement. The difference between the two dates does not affect the outcome of our analysis.

      Because Clement allowed the deadline for service of process to expire before she filed her fourth motion for additional time to serve Puckett, we calculate the limitations period based on the date that the trial court entered the order granting the extension, not on the date that Clement filed her fourth motion. The outcome of our analysis is the same with either date.

      Harvey Smith was Puckett's longtime caretaker and friend.

      See M.R.C.P. 4(c)(2) (service by sheriff); Miss. Code Ann. § 19-25-39 (Rev. 2012) (granting the sheriff the authority to "tak[e] the power of the county" to execute process); M.R.C.P. 4(c)(3) (service by mail).

      Miss. Code Ann. § 15-1-35 (Rev. 2012) ("All actions for assault, assault and battery ... shall be commenced within one (1) year next after the cause of such action accrued, and not after.").

      Miss. Code Ann. 15-1-49(1) (Rev. 2012) ("All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.").

      In the criminal context, a person can be convicted of simple assault if he or she "negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm ...." Miss. Code Ann. § 97-3-7(1)(a)(ii) (Rev. 2014).


author: CHAMBERLIN, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

text:
    Sedric SUTTON a/k/a Cedric Sutton a/k/a Sedric Quintorus Sutton v. STATE of Mississippi
    NO. 2016-KA-00816-SCT
    Supreme Court of Mississippi.
    March 15, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: BENJAMIN A. SUBER, GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, JACKSON
    BEFORE WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. Sedric Sutton was indicted by a grand jury in Washington County on two counts: (1) possession of a controlled substance with intent to distribute and (2) possession of a firearm by a convicted felon. After a trial by jury, Sutton was convicted on the first count and acquitted on the second. The trial court sentenced Sutton as a habitual offender to fifteen years in the custody of the Mississippi Department of Corrections. He now appeals his conviction and sentence.

¶ 2. All of the State's evidence in the case stemmed from an unconstitutional search pursuant to an invalid warrant which failed adequately to describe the property to be seized by the executing officers. Pretrial, the court denied Sutton's motion to suppress the evidence obtained from the search. After review, we reverse Sutton's conviction and sentence and remand the case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 3. On July 15, 2014, a confidential informant ("CI") told law-enforcement officers at the Washington County Sheriff's Office that "stolen items" were located at 331 Muscadine Street in Greenville, Mississippi ( "Muscadine house"). Based on the information provided by the CI, Officers Dwight Donham and Charlton Smith prepared an Affidavit for Search Warrant and presented it to Washington County Justice Court Judge Laverne Holmes-Carter. Judge Holmes-Carter issued a search warrant for "stolen items" in the Muscadine house at 331 Muscadine Street in Greenville, Mississippi.

¶ 4. The same day, law-enforcement officers-including Officer Smith-executed the warrant on the Muscadine house. Upon entering, the officers detained and searched Sedric Sutton. As a result of the search of Sutton and the Muscadine house, the officers found sixty pills, $4,995 in cash, a handgun, and two digital scales.

¶ 5. While conducting a safety check, Officer Christopher Surf searched Sutton's right, front pocket and discovered sixty small, yellow pills in a clear plastic bag. Sutton, who testified in his own defense at trial, admitted to possession of the pills but argued that he had them solely for his personal use.

¶ 6. Beyond the pills, the officers found additional evidence in the Muscadine house. Officers discovered $4,995 in cash in Sutton's black waist pack. Officer Smith also discovered a 9 mm handgun in a black holster "located inside the wall in between the threshold of the dining room and the living room area." Investigator Cedric Adams testified that the handgun was in plain view. Additionally, Officer Smith found two digital scales-one small and one large-in the dining room.

¶ 7. After the officers completed the search, Sutton was taken into custody and charged with possession of a controlled substance under Mississippi Code Section 41-29-139(c)(3)(A) -a misdemeanor, given that he had less than 100 pills. A Washington County grand jury indicted Sutton as a habitual offender for possession of a controlled substance with intent under Mississippi Code Section 41-29-139(a)(1) and for possession of a firearm by a convicted felon.

¶ 8. Pretrial, Sutton moved to suppress the evidence from the execution of the warrant. Sutton attacked the warrant on two separate grounds: (1) that the underlying facts and circumstances on which the warrant was based were unreliable and (2) that the warrant failed sufficiently to describe the property to be seized. The trial court held a hearing on Sutton's motion.

¶ 9. At the hearing, Officer Donham testified that the CI had informed him that the Muscadine house was a warehouse for stolen goods and that he had sold stolen items there. The CI, according to Donham, claimed that he had seen the stolen items in the house two days before the arrest warrant was executed. On cross-examination, Sutton's counsel engaged in the following exchange with Officer Donham:

Q. Now, [the CI] did not give you any specific items whatsoever at Mr. Sutton's address, did he? Isn't that correct?
A. He said there were numerous things there.
Q. Numerous things. A warehouse of stolen stuff?
A. Right.
Q. But he did not give you a single itemized piece of stolen property, did he?
A. No.

Officer Donham also claimed the CI had given him reliable information in the past and that the CI had personal knowledge-unknown to the public-of a number of local, recent house burglaries. Officer Donham recounted that the CI had told him of a residence at which the CI had sold a "Barnett cross bow." Upon visiting the residence, Officer Donham had recovered the crossbow.

¶ 10. After consideration of the testimony and arguments of counsel, the trial court denied the motion to suppress. From the bench, the trial court explained its finding: "[T]he [c]ourt, having reviewed the underlying facts and circumstances, finds that there is sufficient factual basis presented upon which the magistrate could have verified the v[e]racity or the reliability of the confidential informant." In its written order, the trial court found that the information in the affidavit seeking the warrant "described the things to be seized with sufficient particularity to satisfy [the] Fourth Amendment."

¶ 11. Sutton was tried before a jury on May 26, 2016. At trial, Sutton stipulated to his status as a felon. The jury found Sutton guilty of the first count, possession with intent, and acquitted him of the second count, possession of a firearm. On June 1, 2016, the trial court sentenced Sutton to a term of fifteen years in the custody of the Mississippi Department of Corrections pursuant to Sections 41-29-139(b)(4)(C) and 99-19-81.

¶ 12. Sutton now appeals. Sutton, pro se , and his counsel raise a number of issues. Because our analysis of the suppression issue is dispositive, we need not address Sutton's other claims of error.

STANDARD OF REVIEW

¶ 13. " 'In reviewing a magistrate's finding of probable cause, this Court does not make a de novo determination of probable cause, but only determines if there was a substantial basis for the magistrate's determination of probable cause.' " Roach v. State , 7 So.3d 911 (Miss. 2009) (quoting Petti v. State , 666 So.2d 754, 758 (Miss. 1995) ). Our review is guided by the totality-of-the-circumstances analysis established by the United States Supreme Court. Lee v. State , 435 So.2d 674, 676 (Miss. 1983) (citing Illinois v. Gates , 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) ). The United States Supreme Court in Gates detailed the test:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Gates , 462 U.S. at 238-39, 103 S.Ct. 2317 (alteration in original) (quoting Jones v. United States , 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), overruled by United States v. Salvucci , 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) ). In making this determination, " 'this Court looks both to the facts and circumstances set forth in the affidavit for search warrant and as well, the sworn oral testimony presented to the issuing magistrate.' " Petti , 666 So.2d at 757 (quoting Williams v. State , 583 So.2d 620, 622 (Miss. 1991) ). Further, "[T]he information necessary to establish probable cause 'must be information reasonably leading an officer to believe that, then and there, contraband or evidence material to a criminal investigation would be found.' " Id. (quoting Rooks v. State , 529 So.2d 546, 554-55 (Miss.1988) ).

ANALYSIS

The trial court erred in denying Sutton's motion to suppress.

¶ 14. Sutton argues that the trial court erred in denying the motion to suppress the evidence seized in the search. While we find that the facts and circumstances undergirding the warrant were sufficient to support a determination of probable cause as to "stolen items," we agree with Sutton that the warrant failed adequately to describe the property to be seized. Thus, we find that Sutton's constitutional rights under both the Mississippi Constitution and the United States Constitution were infringed.

¶ 15. The Mississippi Constitution provides that "[t]he people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the ... thing to be seized ." Miss. Const. art. 3, § 23 (1890) (emphasis added). "Section 23 provides greater protections to citizens than does the United States Constitution [and] ... should be liberally construed in favor of individual citizens and strictly construed against the State." State v. Woods , 866 So.2d 422, 425 (Miss. 2003) (citing Graves v. State , 708 So.2d 858, 861 (Miss. 1997) ).

¶ 16. The Fourth Amendment to the United States Constitution provides: "[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the ... things to be seized ." U.S. Const. amend. IV (emphasis added). "When evidence is obtained in violation of the Fourth Amendment," the exclusionary rule is implicated.

Illinois v. Krull , 480 U.S. 340, 347, 107 S.Ct. 1160, 1165, 94 L.Ed.2d 364 (1987). Both the Fourth Amendment and the accompanying exclusionary rule apply to the States "through the Fourteenth Amendment." Hudson v. Michigan , 547 U.S. 586, 590, 126 S.Ct. 2159, 2163, 165 L.Ed.2d 56 (2006).

A. The information supporting the determination of probable cause as to "stolen items" was sufficiently reliable.

¶ 17. Sutton argues that the search warrant was invalid as it was based on underlying facts and circumstances which were not reliable, violating the Fourth Amendment to the U.S. Constitution as well as Article 3, Section 23 of the Mississippi Constitution. After review, we find that this contention is without merit.

¶ 18. "A confidential informant's veracity may be demonstrated through 'a statement of the affiant that the confidential informant has given credible information in the past.' " Chesney v. State , 165 So.3d 498, 505 (Miss. Ct. App. 2015) (quoting Peden v. State , 132 So.3d 631, 636 (Miss. Ct. App. 2014) ); see also State v. Woods , 866 So.2d 422, 426 (Miss. 2003) (recognizing that "[u]sually ... corroborating evidence consists of a statement that the officer had successfully used the CI in the past.").

¶ 19. This Court has determined that a warrant is supported by sufficiently reliable information where the confidential informant has provided reliable information in the past and the informant's reliability can be corroborated independently. Roach , 7 So.3d at 919. In Roach , the Court recognized that the investigator "described the CI as reliable in the past because he knew him to be a reliable CI used by the department on occasion." Id.

¶ 20. Under a totality-of-the-circumstances review, it is evident that there was a substantial basis for Judge Holmes-Carter's determination that the search warrant's language concerning "stolen items" was supported by sufficiently reliable information. The affidavit before Judge Holmes-Carter claimed that the CI had shown Officer Donham "several locations in Washington County where stolen items from recent house burglaries were taken and sold ... and described details of the burglaries that were not public knowledge." The CI also knew the brand name-Barnett-of a stolen crossbow that Investigator Donham later recovered. According to the affidavit, the informant demonstrated his knowledge of these burglaries on July 15, 2014, the same day that Judge Holmes-Carter issued the arrest warrant.

¶ 21. Further, as in Roach , Officer Donham testified that the CI had provided reliable information to law-enforcement authorities in the past. The following exchange occurred during Donham's examination at the suppression hearing:

Q. Did you have any contact with that confidential informant before that day?
A. Yes, I did.
...
Q. And had he give[n] you reliable information in the past before?
A. Yes, he had.

Investigator Donham also reaffirmed the events recorded in the Affidavit for Search Warrant.

¶ 22. Given that the CI proved reliable information on the same day that the search warrant was issued and that the CI had given reliable information in the past, the information supporting the warrants was sufficiently reliable. Next, we determine if the warrant itself was valid.

B. The search warrant was invalid.

1. The warrant did not sufficiently describe the things to be seized.

¶ 23. Sutton argues that the search warrant did not adequately describe the property to be seized. After review, we agree.

¶ 24. "The description 'stolen property' is no description. For property other than what is illicit or contraband, the thing or things to be seized must be described with some particularity." Conn v. State , 251 Miss. 488, 170 So.2d 20, 24 (1964) (citing 79 C.J.S. Searches and Seizures § 81c (1952) ). " 'Descriptions in search warrants need not be positively specific and definite, but are sufficient if the places and things to be searched are designated in such a manner that the officer making the search may locate them with reasonable certainty.' " Barrett v. Miller , 599 So.2d 559, 566 (Miss. 1992) (quoting Hamilton v. State , 556 So.2d 685, 689 (Miss. 1990), and Cole v. State , 237 So.2d 443, 445 (Miss. 1970) ).

¶ 25. At the outset of this analysis, we address the trial court's written order. In it, the trial court cited Logan v. State , 773 So.2d 338 (Miss. 2000), for the proposition that the information in the Affidavit for Search Warrant "described the things to be seized with sufficient particularity to satisfy [the] Fourth Amendment."

¶ 26. Upon review, we find that the trial court erred here in this conclusion for a number of reasons. First, the Affidavit for Search Warrant was not incorporated into the issued search warrant and, therefore, did not describe the items to be seized with any particularity for the executing officers. Second, even considering the Affidavit for Search Warrant, it does not describe the items to be seized with any more particularity than "stolen items." Third, while the Logan Court did not record the specific language at issue in the search warrant, Logan is distinguishable from the instant facts as the items sought in that search were particular: "... any documents relating to vehicles rebuilt or repaired by Logan at his shop facility...." Logan , 773 So.2d at 344. Fourth, the trial court's order did not analyze the description of the things to be seized in the warrant under Article 3, Section 23, of our State Constitution, which has been held to "provide[ ] greater protections to citizens than ... the United States Constitution." Woods , 866 So.2d at 425.

¶ 27. With the trial court's order addressed, we now turn to the description of the things to be seized in the warrant. Here, the description of "stolen items" was wholly inadequate to inform the officers executing the search as to which items in the Muscadine house were to be seized. The description "stolen items" is even less descriptive than the conclusory description "stolen property." There simply was no means for the executing officers to distinguish any stolen items from any items that rightfully belonged in the Muscadine house. Indeed, after the search, Sutton had to reclaim a number of his items that were confiscated from the Muscadine house as a result of the warrant's execution.

¶ 28. Also, despite the claims that the Muscadine house was a "warehouse" for stolen goods, the warrant should have included a more particularized description of at least some of the property to be seized-especially since it is clear from the record that it could have. See United States v. Fuccillo , 808 F.2d 173, 176 (1st Cir. 1987). In Fuccillo , pursuant to warrants authorizing the seizure of "[c]artons of women's clothing," the FBI seized, among other items, a number of cartons of clothing from several warehouses. Id. at 175. The defendant moved to suppress all the evidence seized, and the trial court granted the motion. Id. Affirming, the First Circuit noted that "[t]he instant warrants contained no explanation as to how the executing agents were to differentiate cartons of stolen women's clothing from legitimate goods at either location." Id. at 176. Further, the First Circuit found that "the FBI clearly could have obtained specific information for ... placement in the warrant which would have enabled the agents executing the ... warehouse searches to differentiate contraband cartons of women's clothing from legitimate ones." Id. at 176-77.

¶ 29. While there are clear distinctions between legitimate warehouses, such as those in Fuccillo , and criminal "warehouses," the reasoning undergirding the Fuccillo decision provides us guidance. Here, the Affidavit for Search Warrant provided that the CI had told officers that he "ha[d] been to the [Muscadine house] on numerous occasions and seen stolen items in the residence." In fact, Officer Donham testified that the CI "had given us information that he had rendered stolen property at that location before. He had taken stolen property there to dispose of." Also, the CI demonstrated that he had sufficient memory recall to remember the brand names of certain property that he stole. The CI recalled that he had stolen a "Barnett" crossbow that later was recovered by Officer Donham. After review of the record, we are convinced that law-enforcement officers could have provided a more detailed description of the things to be seized beyond the conclusory language of "stolen items." As the information was available to them, the officers should have included it in the warrant. Indeed, both the United States Constitution and our State Constitution required them to do so.

2. The warrant's drug-related language was not supported by probable cause.

¶ 30. The search warrant additionally was invalid as there was no substantial basis for the inclusion of the language related to drug activity. While not raised by the parties, upon review, we find that there was no probable cause to issue a search warrant for any illegal drug activity.

¶ 31. Again, "the information necessary to establish probable cause 'must be information reasonably leading an officer to believe that, then and there, contraband or evidence material to a criminal investigation would be found.' " Petti , 666 So.2d at 757 (quoting Rooks v. State , 529 So.2d 546, 554-55 (Miss. 1988) ).

¶ 32. The warrant listed the drug-related items to be seized, yet the record-pretrial, at trial and on appeal-is devoid of any allegation that either the issuing judge or the officers had reason to believe that the Muscadine house contained drugs. The CI related only activity about theft. Also, at the hearing on the motion to suppress, Investigator Donham did not claim that law-enforcement officers had sought the warrant due to drug-related activity.

¶ 33. Because the warrant insufficiently describes the stolen goods to be seized and there was no probable cause for any drug-related language to be included in it, the warrant was invalid. The issue now becomes whether the exclusionary rule applies to this case.

C. The exclusionary rule applies.

¶ 34. "The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search ...." Murray v. United States , 487 U.S. 533, 536, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988) ; Wong Sun v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ). The United States Supreme Court, in Wong Sun , explained the application of the exclusionary rule:

We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

Wong Sun , 371 U.S. at 487-88, 83 S.Ct. 407 (internal quotations and citations omitted).

¶ 35. The exclusionary rule, however, does not apply automatically, as even a search pursuant to an invalid search warrant may be found to be reasonable under the good-faith exception. See White v. State , 842 So.2d 565, 571 (Miss. 2003) ; United States v. Leon , 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In White , this Court, quoting the Fifth Circuit, explained the good-faith exception:

The [United States Supreme] Court has stated that the exclusionary rule should not be applied to suppress evidence if the evidence was obtained by officers acting in objectively reasonable reliance on a subsequently invalidated search warrant. However, this good faith exception does not apply if: (1) in issuing the warrant the magistrate is misled by information in the affidavit that the affiant knows is false or would have known was false except for his reckless disregard of the truth; (2) the issuing magistrate wholly abandons his judicial role; (3) the warrant is based on an affidavit so lacking in indicia of probable cause that official belief in its existence is entirely unreasonable; or, (4) the warrant is so facially deficient in failing to particularize the place to be searched and things to be seized that the executing officers cannot reasonably presume it to be valid.

White v. State , 842 So.2d 565, 571 (Miss. 2003) (alteration in original) (quoting United States v. Russell , 960 F.2d 421, 423 (5th Cir.1992) ) (citing Leon , 468 U.S. at 922-23, 104 S.Ct. 3405 ).

¶ 36. In the present case, we find that the evidence seized pursuant to the invalid warrant cannot "be purged of the primary taint" of the illegal search. As such, the exclusionary rule applies.

¶ 37. Here too, the warrant was so facially deficient that the executing officers could not have presumed it to be valid. The executing officers did not have any way to distinguish stolen items from property that was not stolen. A reasonable officer who sees a warrant authorizing the seizure of "stolen items" would know that it failed to provide any guidelines for what property was to be seized.

¶ 38. Also, it is important to reiterate that, under the facts of this case, the inclusion of the drug-related language in the warrant does not somehow validate the search. From the evidence before us in the record, there was no probable cause for the language to be in the warrant.

¶ 39. Indeed, Officer Smith knew this. He had assisted Officer Donham in the preparation of both the Underlying Facts and Circumstances as well as the Affidavit for Search Warrant. He knew that there was no particular description of the stolen property in the underlying facts or affidavit. He knew a better description was available from the informant. He knew there was no probable cause for the drug language in the warrant. This knowledge, in and of itself, should have raised a red flag as to the validity of the warrant. The good-faith exception is to protect those who act in good faith upon a seemingly valid warrant. It is not to protect those who continue forward with full knowledge of the insufficiencies of the warrant.

¶ 40. Also of note, the State does not raise the argument on appeal that the search was valid because of the drug-related language. In fact, the State conceded at trial that the search warrant was executed only for "stolen items." Thus, the exclusionary rule applies to this case and prohibits the introduction into evidence of the tangible items seized during the search.

CONCLUSION

¶ 41. While the dissent would render judgment in Sutton's favor, we do "not presume to speculate as to the substance of the prosecution's case against" Sutton. Woods , 866 So.2d at 428 (dismissing indictment without prejudice). Had the trial court properly suppressed the evidence in this case, the State may have dismissed the case against Sutton, or it may have offered other evidence that it chose not to use against Sutton in light of the evidentiary ruling. Even though the case may be dismissed against Sutton upon remand, we need not make the final determination here. There has been no representation from the State that its case cannot proceed against Sutton without the suppressed evidence. In fact, Sutton's counsel requested that this Court remand "this case for a new trial." Although we do not make a finding as to the merits of a new trial, we find here that the proper procedure (as we have followed multiple times in analogous circumstances) is to remand to the trial court. See Petti , 666 So.2d at 760 (reversing conviction and remanding to the trial court after finding that the only evidence supporting the conviction should have been suppressed); Conn , 170 So.2d at 24 (same).

¶ 42. Sutton's constitutional right to be free from unreasonable search and seizure was violated by the State. The language "stolen items" failed to describe particularly the things to be seized by the officers executing the search of the Muscadine house. Therefore, we reverse Sutton's conviction of possession with intent to distribute, vacate his sentence and remand this case for further proceedings consistent with this opinion.

¶ 43. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL AND BEAM, JJ., CONCUR. KITCHENS, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. ISHEE, J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 44. I agree with the majority that "[a ]ll of the State's evidence in the case stemmed from an unconstitutional search pursuant to an invalid warrant which failed adequately to describe the property to be seized by the executing officers." Maj. Op. ¶ 2 (emphasis added). Without the illegally obtained evidence, the State's case fails and there remains no appropriate remedy apart from rendering a judgment in Sutton's favor. Accordingly, I respectfully concur in part and dissent in part.

¶ 45. This Court has held repeatedly that, when evidence against a criminal defendant is insufficient to sustain a conviction in the absence of the admission of illegally obtained evidence, the correct remedy is to reverse and render. See Cook v. State , 159 So.3d 534, 541 (Miss. 2015) ("Without the evidence gathered as a result of the stop, the evidence against Cook is insufficient to sustain a DUI conviction .... As such, we reverse and render a judgment of acquittal."); Eaddy v. State , 63 So.3d 1209, 1216 (Miss. 2011) ("Since the evidence against Eaddy is insufficient to sustain a conviction for possession with intent to distribute without admission of evidence of the illegally obtained cocaine, we reverse and render."); Johnson v. State , 81 So.3d 1020, 1026 (Miss. 2011) ("Because the State failed to present sufficient evidence to support a finding of constructive possession, we reverse the Court of Appeals' and the trial court's decisions and render judgment in favor of Johnson."); Trejo v. State , 76 So.3d 684, 690 (Miss. 2011) ("As noted by the Court of Appeals, '[w]ithout the cocaine, there is no remaining evidence to uphold Trejo's conviction.' Therefore, we affirm the Court of Appeals' judgment to reverse and render Trejo's conviction and sentence."); White v. State , 735 So.2d 221, 224 (Miss. 1999) ("We hold that the search in this case was improper and unlawful. The evidence obtained thereby was 'fruit of the poisonous tree' and therefore inadmissible. Without this evidence, the conviction can not stand.").

¶ 46. In the present case, had the trial court sustained the defendant's motion to exclude the wrongfully seized evidence, that court also should have dismissed the charge with prejudice, as the State had adduced no other evidence of his guilt. Accordingly, nothing remains for the trial court to do and the proper course for this Court is to reverse and render judgment for the defendant.

KING, J., JOINS THIS OPINION.

      The items to be seized were "particularly described" in the search warrant as "marijuana, cocaine, methamphetamine, stolen items and or any other illegal controlled substances as well as any paraphernalia which reflect the use(s) of, sale(s) of, or proceed(s) of illegal drug transactions." As discussed infra , no probable cause existed to issue a warrant for any drug-related items.

      At trial, Allison Conville, a forensic scientist with the Mississippi Forensics Laboratory, gave expert testimony that the sixty pills were a Schedule III controlled substance, containing hydrocodone and acetaminophen.

      Mississippi Code Section 41-29-139(b)(3)(D) (Supp. 2017) allows a maximum sentence of twenty years for Sutton's offense. Section 41-29-139(b)(3)(D) did not become effective until July 1, 2016. 2016 Miss. Laws 482. Thus, Sutton received the maximum sentence of fifteen years under Mississippi Code Section 41-29-139(b)(4)(C) (2014).

      This statement of law is not unique to Mississippi. See United States v. LeBron , 729 F.2d 533, 537 (8th Cir. 1984) ("But the general description of 'property ... believe[d] to be stolen' is not a description of a generic class. In fact, it is not descriptive at all. It is simply conclusory language."); Martin v. City of Barstow , 2015 WL 12743595, at *2 (C.D. Cal. July 24, 2015) (" '[S]tolen property' is an objectively non-particular description."); Thompson v. Superior Court , 70 Cal.App.3d 101, 108, 138 Cal.Rptr. 603, 606 (Cal. App. 1977) ("The [State] concede[s] that a general description of 'stolen property' standing alone in a warrant would be constitutionally overbroad because it would enable an officer to engage in an unlimited exploratory search of all personal property and papers situated in the described premises."); Clark v. Bridges , 211 F.Supp.3d 731, 746 (D. S.C. 2016) (There was an "obvious failure of the warrant to describe any particular thing that was to be seized [when] [t]he warrant's description of property that is appropriate for seizure merely states [d] 'stolen property' ....") (emphasis in original).

      The cases cited by the dissent are distinguishable. Four of the cases involve traffic stops where the law-enforcement officer's first encounter with the defendant was unconstitutional. See Cook v. State , 159 So.3d 534, 540-41 (Miss. 2015) (no reasonable suspicion for stop); Eaddy v. State , 63 So.3d 1209, 1216 (Miss. 2011) (same); Trejo v. State , 76 So.3d 684, 690 (Miss. 2011) (same); White v. State , 735 So.2d 221, 224 (Miss. 1999) (unlawful search of automobile). In contrast, Sutton was the subject of an ongoing police investigation, and the search warrant against him was supported by probable cause. The remaining case cited by the dissent also is distinguishable as the dispositive issue there was whether or not the evidence was legally sufficient to support the verdict-not whether or not certain evidence should have been suppressed. Johnson v. State , 81 So.3d 1020, 1023 (Miss. 2011).


author: RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: KING, JUSTICE, SPECIALLY CONCURRING:

text:
    NATCHEZ HOSPITAL COMPANY, LLC and Natchez Community Hospital, LLC v. ADAMS COUNTY BOARD OF SUPERVISORS
    Natchez Hospital Company, LLC and Natchez Community Hospital, LLC v. Adams County Board of Supervisors
    NO. 2016-CA-00982-SCT NO. 2016-CA-01006-SCT
    Supreme Court of Mississippi.
    March 22, 2018
    ATTORNEYS FOR APPELLANTS: ANDY LOWRY THOMAS L. KIRKLAND, JR.
    ATTORNEYS FOR APPELLEE: SCOTT FLETCHER SLOVER ELIZABETH D. MARTIN AISHA ARLENE SANDERS
    EN BANC.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Pursuant to Mississippi Code Section 27-35-119 (Rev. 2017), Natchez Hospital Company, LLC, ("Hospital") filed a Complaint and Petition For Reduction of Assessment on Software in circuit court. This ad valorem assessment was made by the Adams County Board of Supervisors ("Board"). Prior to appealing to the circuit court, the Hospital paid the ad valorem taxes as assessed. The Board filed a motion to dismiss for lack of jurisdiction, arguing that the Hospital had failed to post the necessary appeal bond required by Mississippi Code Section 11-51-77 (Rev. 2012), thus depriving the circuit court of jurisdiction.

¶ 2. Following a hearing on the motion, the circuit court determined that the Hospital's failure to post the bond under Section 11-51-77 deprived the court of jurisdiction to hear the appeal and granted the Board's motion to dismiss.

¶ 3. The merits of the tax appeal are not before this Court. Rather, the Hospital appeals the circuit court's decision to dismiss the case, asking only whether the bond requirement of Mississippi Code Section 11-51-77 is mandatory to confer jurisdiction on a circuit court to hear an appeal from a decision of a board of supervisors regarding an assessment of taxes.

ANALYSIS

¶ 4. When reviewing a lower court's decision to dismiss a matter for lack of jurisdiction, we apply a de novo standard of review. Derr Plantation, Inc. v. Swarek , 14 So.3d 711, 715 (Miss. 2009). Likewise, the interpretation of a statute and its harmony with other provisions presents a question of law, which we review de novo. See Estate of Klaus ex rel. Klaus v. Vicksburg Healthcare, LLC , 972 So.2d 555, 556 (Miss. 2007).

¶ 5. Three statutes are at issue in this case: Mississippi Code Section 11-51-77 ; Mississippi Code Section 27-35-119 ; and Mississippi Code Section 27-35-121. The statutes provide, in pertinent part:

Any person aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town or village, as to the assessment of taxes, may, within ten days after the adjournment of the meeting at which such decision is made, appeal to the circuit court of the county, upon giving bond, with sufficient sureties, in double the amount of the matter in dispute, but never less than One Hundred Dollars ($100.00), payable to the state, and conditioned to perform the judgment of the circuit court, and to be approved by the clerk of such board, who, upon the filing of such bond, shall make a true copy of any papers on file relating to such controversy, and file such copy certified by him, with said bond, in the office of the clerk of the circuit court, on or before its next term. The controversy shall be tried anew in the circuit court at the first term, and be a preference case, and, if the matter be decided against the person who appealed, judgment shall be rendered on the appeal bond for damages at the rate of ten percent (10%) on the amount in controversy and all costs. If the matter be decided in favor of the person who appealed, judgment in his favor shall be certified to the board of supervisors, or the municipal authorities, as the case may be, which shall conform thereto, and shall pay the costs. ...

Miss. Code Ann. § 11-51-77 (Rev. 2012) (emphasis added).

(2) Any taxpayer who feels aggrieved at the action of the board of supervisors in equalizing his assessments shall have the right of appeal to the circuit court in the manner provided by law, within twenty (20) days after the date the notice is mailed as provided for in subsection (1) of this section.

Miss. Code Ann. § 27-35-119(2) (Rev. 2017) (emphasis added).

In case of an appeal from the judgment of the board of supervisors in the matter of an assessment, the appeal shall not delay the collection of taxes due by the assessment as approved . If such taxes be collected before a final disposition of the appeal, and the judgment be in favor of the person appealing, in whole or in part, as to the matter in dispute, any money improperly collected from him for taxes, as shown by the judgment, shall be refunded to him by the state and county respectively, if they have received the money; and, if it shall not have been paid over, the tax collector receiving it shall refund it to him. ... If the case be decided in favor of the party appealing while the collector is proceeding with the collection of taxes, he shall conform his action to the judgment.

Miss. Code Ann. § 27-35-121 (Rev. 2017) (emphasis added).

¶ 6. The Hospital argues that Section 11-51-77 and the two statutes in Title 27, Section 35 provide distinct, independent paths for appeal. The Hospital argues that, because Section 27-35-121 (requiring that a party's "appeal shall not delay the collection of taxes due by the assessment as approved") is included within the chapter providing for a party's ability to appeal, and because Section 27-35-119 does not require a party to post a bond in addition to its taxes already paid under Section 27-35-121, the bond requirement in 11-51-77 is rendered superfluous and does not apply to this matter. A historical review of these statutes and this Court's application of these statutes requires a different outcome. We affirm the trial court's dismissal.

¶ 7. Though Sections 11-51-77 and 27-35-121 now are codified separately, their genesis can be traced to one statute in Mississippi's revised Code of 1880. The 1880 statute required an appealing taxpayer to post a bond equal to the amount of the tax due, plus required payment of the taxes owed, inter alia. Twelve years later, the Code of 1892 separated these requirements, utilizing identical language in the new, separate statutes.

¶ 8. Mississippi Code Section 27-35-121, the statute requiring payment of taxes owed, was codified in Mississippi Code Section 3797 (1892), which is identical to today's statute, save for punctuation changes. The statute of 1892 clearly provided that "[i]n case of an appeal from the judgment of the board of supervisors in the matter of an assessment, the appeal shall not delay the collection of taxes due by the assessment as approved," just as it did in 1880, and just as it does today. Miss. Code § 3797 (1892); Miss. Code Ann. § 27-35-121.

¶ 9. At the same time, Section 11-51-77 was codified in the 1892 Code, which also is identical to the most current version of the statute. The 1892 version increased the bond amount from "the amount of the matter in dispute" in 1880 to "double the amount of the matter in dispute," which remains the law 126 years later. Miss. Code § 80 (1892). The requirement for an appealing taxpayer to post a bond has never been removed, just as the requirement to pay the tax as found in Section 27-35-121.

¶ 10. Decades later, in 1921, the Legislature created a right to appeal tax assessment equalizations , which now is codified in Section 27-35-119. That statute then read as follows: "And any taxpayer who feels aggrieved at the action of the board of supervisors in equalizing his assessments shall have the right of appeal ... to the circuit court as now provided for by law ...," just as it does in today's version of the statute. Hemingway's Supplement § 7769h1 (1921) (emphasis added); Miss. Code Ann. § 27-35-119. The Legislature was clear that the method of appealing under this statute already was provided for by law; three years after the statute was created, this Court explicitly held that Section 119 is to be construed together with Section 77. Moller-Vandenboom Lumber Co. v. Bd. of Supervisors of Attala Cty. , 135 Miss. 249, 99 So. 823 (1924).

¶ 11. In Moller-Vandenboom , a lumber company objected to a tax-assessment increase imposed by a board of supervisors. The board of supervisors filed a motion to dismiss the lumber company's complaint, arguing the lumber company's appeal was interlocutory and not final, and therefore was not provided for by law. Id. at 823. The lumber company argued that taxpayers had a right to file an interlocutory appeal challenging a board's equalization, or file an appeal challenging the final tax assessment. Id. at 823-24. This Court held that only the final order could be appealed, "and that the grant of the right of appeal and the manner in which it is to be prosecuted are regulated and controlled by [ Section 11-51-77 ] and [ Section 27-35-119 ], construed together."

¶ 12. This Court was clear that, in order to appeal a tax-assessment equalization under Section 27-35-119, just as the Hospital has done, the appellant must comply with Section11-51-77-in other words, post a bond in an amount certain. Indeed, this Court heard Moller-Vandenboom for a second time in 1925, where the lumber company posted an appeal bond in order to perfect its appeal. Moller-Vonderboom [sic] Lumber Co. v. Bd. of Supervisors of Attala Cty. , 138 Miss. 289, 103 So. 81, 82 (1925) (" Moller-Vonderboom [sic] II ").

¶ 13. Seven years after this Court issued Moller-Vandenboom I , the Court addressed another tax appeal in Grenada Bank v. Town of Moorhead , 160 Miss. 163, 133 So. 666 (1931). There, a board of supervisors equalized, adjusted, and approved the assessment rolls for the year 1929. Grenada Bank, feeling aggrieved by this action of the board of supervisors, filed an appeal in circuit court and posted an appeal bond in accordance with Section 11-51-77 (then Mississippi Code Section 62 (1930) ). Id. at 667. After filing its complaint, the bank paid the taxes in accordance with the assessment, as approved by the board. Id. at 668. The board filed a motion to dismiss, arguing that the bank's complaint became moot upon payment of the taxes assessed. Id. This Court reversed, holding that "a taxpayer aggrieved, and appealing from an assessment, is required to pay his taxes , and the payment does not affect the appeal of the case." Grenada Bank , 133 So. at 668 (emphasis added). The bank posted an appeal bond pursuant to Section 11-51-77and paid the tax owed. We held that was proper. In the case sub judice , the Hospital failed to post the bond and argued it had a choice between paying the tax or posting the bond. There is no statutory authority or caselaw to support this argument. Payment of the tax does not excuse the requirement to post a bond.

¶ 14. This Court's precedent in Moller-Vandenboom I, Moller-Vonderboom [sic] II , and Grenada Bank answers the question before the Court today. A taxpayer who chooses to appeal a tax assessment, or equalization of his tax assessment, must comply with Section 11-51-77. If his tax becomes due in the course of appeal, he also must comply with Section 27-35-121.

¶ 15. AFFIRMED .

KITCHENS, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J. WALLER, C.J., NOT PARTICIPATING.

KING, JUSTICE, SPECIALLY CONCURRING:

¶ 16. I agree with the majority that the Hospital was required to pay both the tax and the bond in this case. I write separately to emphasize that the Hospital did not ask the circuit court to waive, excuse, or reduce the bond; it merely declined to pay the bond and argued that it had a choice of paying the bond or paying the tax. Whether a circuit court has the power to waive, reduce, or excuse the bond therefore is not before this Court.

KITCHENS, P.J., JOINS THIS OPINION .

      Mississippi Code Section 504 (1880) reads, in its entirety, as follows:
      Any person aggrieved by any decision of the board of supervisors as to the assessment of taxes may, within five days after the adjournment of the meeting at which such decision is made, appeal to the circuit court of the county, upon giving bond, with sufficient sureties, in the amount of the matter in dispute, payable to the state and conditioned to perform the judgment of the circuit court, and to be approved by the clerk of such board, who, upon the filing of such bond, shall make a true copy of any papers on file relating to such controversy, and file such copy, certified by him with said bond, in the office of the clerk of said circuit court, on or before its next term; and the controversy shall be tried anew in said circuit court at the first term, and be a preference case, and, if judgment shall be rendered on the appeal bond for damages at the rate of ten per cent on the amount in controversy and all costs. If the matter shall be decided in favor of the person who appealed, judgment in his favor shall be certified to the board of supervisors, which shall conform thereto, and shall pay all costs of such case. Such appeal shall not delay the collection of taxes due by the assessment as approved by the board of supervisors ; and if such taxes shall be collected before a final disposition of said appeal, and the judgment shall be in favor of the person appealing, as aforesaid, in whole or in part, as to the matter in dispute, any money improperly collected from such person for said taxes, as shown by such judgment, shall be refunded to him by the state and county, respectively, if they have received such money; and, if it has not been paid over, the tax collector receiving it shall be liable to him for such sums as were collected from him, wrongfully, as aforesaid; and his claim, in either case, against the state, shall be audited by the auditor, and a warrant issued for the amount, after the auditor shall have submitted the matter to the attorney general of the state under this act; and the board of supervisors shall, after such allowance by the auditor, audit and allow the claim, as aforesaid, of such party against the county. If the case shall be decided in favor of the party who appealed, while the collector is proceeding with the collection of taxes, he shall conform his action to such judgment, in collecting from such person.
      Miss. Code § 504 (1880) (emphasis added).

      The most current version of the statute also includes a provision excusing governmental authorities from posting a bond in order to appeal a tax assessment. This provision was added in 1930. Otherwise, the language of 1892 is identical to today's version of the statute. Miss. Code Ann. § 11-51-77 (Rev. 2012).

      Moller-Vandenboom references Section 81, Code of 1906 (Hemingway's Code § 61), which is now Section 11-51-77, and Section 10 of Chapter 323, Laws of 1920 (Hemingway's Supplement § 7769h1 (1921) ), which is now Section 27-35-119. Moller-Vandenboom , 99 So. at 824-25.