author: KING, JUSTICE,

text:
    HERMAN GRANT CO., INC. v. Jo Ann WASHINGTON, Administrator of the Estate of Carl W. Washington, Jo Ann Washington, Individually and Derrick Frontrell Jones and James R. “Rusty” Bradford
    NO. 2016-IA-00392-SCT
    Supreme Court of Mississippi.
    03/30/2017

      ATTORNEYS FOR APPELLANT: RYAN JEFFREY MITCHELL, RICHARD O. BURSON, KATHERINE BIS-NETTE SUMRALL
    ATTORNEYS FOR APPELLEES: JAMES W. NOBLES, JR., WILLIAM R. RUFFIN, JOSEPH TALLY SIMS, JOHN WINCIE LEE, JR.
   KING, JUSTICE,

FOR THE COURT:

¶ 1. Herman Grant Company (“Herman Grant”) filed this interlocutory appeal, asking the Court to determine if the Circuit Court of the First Judicial District of Jasper County abused its discretion by denying its motion to transfer venue to the Second Judicial District of Jones County. Because the trial court abused its discretion in denying the motion to transfer venue, we reverse the trial court and remand the case for further proceedings. Venue is proper in the Second Judicial District of Jones County, where a substantial event that caused the injury occurred.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 29, 2013, at Dunn Road Builders, LLC, in Laurel, Mississippi, a Load Cell Pod assembly, which was part of a Weigh Pod Fly Ash Hopper and Load Cell Suspension System sold and shipped to Dunn Road Builders, LLC, by Herman Grant and Cotí, Inc. (“Cotí”), collapsed, striking Carl Washington and James Rusty Bradford. Both men sustained spinal fractures and other injuries. Washington died on June 13, 2013, as a result of his injuries. Bradford and the Estate of Washington (Washington) filed suit against Herman Grant, a Tennessee Corporation, and Cotí, an Alabama Corporation, alleging that the Weigh Pod System product package was defective when it left the premises of Herman Grant and caused the injuries and death of Washington and the injuries and damages to Bradford.

¶3. Bradford and Washington alleged that venue was proper in the First Judicial District of Jasper County pursuant to Mississippi Code Section 11—11—3(1)(b) because “[njeither Herman Grant Company nor Cotí, Inc., has qualified to do business within the State of Mississippi, neither has a principal place of business in this state and neither has appointed an agent for process within this State. Plaintiff Derrick Frontell Jones is a resident citizen of the First Judicial District of Jasper County, Mississippi.”

¶ 4. Herman Grant filed a Motion to Transfer Venue, alleging that venue was not proper in the First Judicial District of Jasper County. Herman Grant argued that Bradford and Washington failed to follow the mandatory directive of Section 11-11-3(1)(a) and instead relied on the permissive language of Section 11—11—3(1)(b) placing venue in the First Judicial District of Jasper County. Herman Grant maintained that venue was proper in Jones County because it was the county where the “substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.” Herman Grant thus requested that the trial court transfer venue to the Second Judicial District of Jones County, where the accident occurred.

¶ 5. In response, Bradford and Washington argued that venue was proper in the First Judicial District of Jasper County because the substantial alleged act or omissions, namely the product defects, occurred in Tennessee and Alabama, not in Mississippi. Bradford and Washington alleged that only the result of those substantial acts, or the manufacturing defects, occurred in Jones County. Additionally, Bradford and Washington argued that the acts of Herman Grant and Cotí, not the acts of Bradford and Washington, established venue.

¶ 6. Herman Grant argued that the actions which occurred in Jones County were the precise actions the venue statute contemplated when describing properly laid venue. Herman Grant contended that it shipped the weigh pod system to Dunn Road Builders, LLC, in parts. The parts were then “accepted, assembled, erected, and perhaps, most importantly, altered such that the injuries that precipitated this lawsuit occurred.” Bradford testified about the extensive installation work which had to be completed in order to assemble the weigh pod system. Bradford also testified that he altered the lengths of the rods from the dimensions on the drawings provided by Herman Grant. Herman Grant argued that the “installation of the weigh pod system, alteration of the system from the design specifications provided by HGC, the alleged failure of the purchased products, and the occurrence of the injury” all occurred in Jones County. Additionally, the accident occurred and the injuries and damages were inflicted in Jones County.

¶7. At the hearing on the motion to transfer venue, Herman Grant stated that its argument was very simple. Section 11-11-3(b) could only be invoked if venue was not available under Section 11-11-3(a). Because Section 11—11—3(a) provided that venue was proper in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred, venue was proper in Jones County. Herman Grant argued that the Complaint specifically alleged that Bradford and Washington were injured when the weigh pod system broke loose and fell on them at Dunn Road Builder’s plant in Laurel, Mississippi.

¶ 8. Bradford and Washington argued that the venue statute contemplated the actions of the defendant, not the actions of the plaintiffs—in other words, where the damage occurred to the products as a result of the negligence of the defendants. Because this was a defective product case, they asserted that the negligence of the defendants occurred in Tennessee and Alabama.

¶ 9. Herman Grant argued that Section 11—11—3(b) should not even be considered since there was a venue option under subsection (a). The event which led to the injuries and damages of Bradford and Washington occurred in Jones County. Herman Grant agreed that a substantial event occurred outside of the State of Mississippi, but it also contended that a substantial act occurred in Jones County,

¶ 10. The judge denied the motion to transfer venue from the bench, holding that:

In applying Section 11-11-3 to the present case, this Court finds that the defendant corporations do not have a principal place of business in the State of Mississippi. Likewise, the defendants do not have registered agents for process in Mississippi. The parties acknowledge that the defendants are not Mississippi corporations and do not do business in the State of Mississippi.
This case involves allegations of a defective product. It is unclear to this Court whether the substantial event relating to the alleged defective design and manufacture of the product occurred in Mississippi or another state. While the plaintiffs were injured in the First [sic] Judicial District of Jones County, the plaintiffs allege that the injuries were a result of design and manufacturing defects which occurred outside the State of Mississippi,
The Court must give the plaintiffs the benefit of the reasonable doubt where there is credible evidence supporting the factual basis for the claim of venue. The Mississippi Supreme Court has further held that the plaintiffs choice of venue must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue. Derrick Jones, the plaintiff, testified before this Court that he was a resident citizen of the First Judicial District of Jasper County and a legal heir to Carl Washington. Without a clear significant act or omission of the defendant related in Jones County related to the defect of the defendants’ products, the Court finds that venue is proper in the First Judicial District of Jasper County, Mississippi.

¶ 11. Herman Grant appealed, raising one issue to be addressed by this Court:

Whether the trial court abused its discretion in denying Herman Grant’s Motion to Transfer Venue when Plaintiffs filed suit in the county of residence of a Plaintiff (Jasper County) instead of the county where a substantial alleged act or omission occurred (Jones County) and where a substantial event that caused the injury occurred (Jones County).

ANALYSIS

¶ 12. “An abuse of discretion standard of review is applied by this Court when reviewing the trial court’s denial of a motion to change venue.” Merchant v. Forest Family Practice Clinic, P.A., 67 So.3d 747, 754 (Miss. 2011) (quoting Crenshaw v. Roman, 942 So.2d 806, 809 (Miss. 2006)). A trial judge’s ruling on such motion “will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.” Park on Lakeland Drive, Inc. v. Spence, 941 So.2d 203, 206 (Miss. 2006) (quoting Austin v. Wells, 919 So.2d 961, 964 (Miss. 2006)).

¶ 13. Section 11-11-3 of the Mississippi Code states:

(1)(a)(i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
(ii) Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.
(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

Miss. Code Ann. § 11-11-3 (Rev. 2004). “[T]he interpretation of a statute is a question of law requiring this Court to apply a de novo standard of review.” Hedgepeth v. Johnson, 975 So.2d 235, 237 (Miss. 2008). However, this Court has previously held that the language of this statute is plain and unambiguous:

Clearly, Section 11-11-3(1)(a)(i) lays out four venue options from which plaintiffs can choose when filing a lawsuit. The first two are based on the status of the defendant; that is, if the defendant is a resident defendant, the suit may be filed in his county of residence; or, if the defendant is a corporation, the suit may be filed in the county of its principal place of business. The latter two venue options focus on the alleged acts or omissions of the defendants; that is, the suit may be filed where a substantial alleged act or omission occurred; or, finally, suit may be filed where a substantial event that caused the injury occurred. According to the clear language of the statute, “[cjivil actions of which the circuit court has original jurisdiction shall be commenced in” one of these four places.

Hedgepeth, 975 So.2d at 238-39. Therefore, this Court applies the clear meaning of the statute, laying out the four mandatory venue options for a plaintiff filing a lawsuit. If no proper venue is available under Section 11—11—3(1)(a), only then does Section 11-11—3(1)(b) apply.

¶ 14. The dispute presented by this case concerns whether Bradford’s and Washington’s choice of venue, the First Judicial District of Jasper County, is a proper venue for this action. “It is the plaintiffs prerogative to decide where, among permissible venues, to sue the defendant. Forrest County Gen. Hosp. v. Conway, 700 So.2d 324, 326 (Miss. 1997). Therefore, absent weighty reasons, a plaintiffs choice of forum should not be disturbed. Purdue Pharma, L.P. v. Estate of Heffner, 904 So.2d 100, 102 (Miss. 2004).” Bayer Corp. v. Reed, 932 So.2d 786, 788-89 (Miss. 2006). Neither of the first two venue options under Section 11-11-3 is applicable in this case. No defendant resides in Mississippi, Herman Grant’s principal place of business is in Tennessee, and Coti’s principal place of business is in Alabama. Bradford and Washington allege that the “defects which were designed into, manufactured, shipped, and sold to Dunn Road Builders, LLC, for [their use], occurred in Tennessee and Alabama.” Therefore, the third option under the venue statute is not applicable. So we must examine whether a “substantial event that cause the injury occurred” in the Second Judicial District of Jones County.

¶ 15. In Holmes v. McMillan, 21 So.3d 614 (Miss. 2009), Holmes was involved in a motor vehicle accident with McMillan in the roundabout intersection at the entrance of the Jackson-Evers International Airport. Holmes, 21 So.3d at 615. After the accident, McMillan filed a claim for uninsured motorist benefits with her insurance company, State Farm. Id. at 616. State Farm refused to pay McMillan a satisfactory amount, and McMillan filed a complaint in the County Court of Hinds County, alleging breach of contract against State Farm and negligent conduct against Holmes. Id. State Farm and Holmes moved to transfer venue, which was denied by the trial court, holding Hinds County was proper because the airport’s property fell within the jurisdiction of the City of Jackson. Id.

¶ 16. Reversing the trial court’s denial of the motion to transfer venue, this Court held:

Pursuant to Section 11-11-3(1)(a)(I), this Court holds that the plaintiff cannot establish venue in Hinds County pursuant to any basis provided for in the statute for the following reasons: (1) Holmes, the resident defendant, resided in Rankin County at the time of the accident; (2) corporate defendant State Farm’s principal place of business is in Bloomington, Illinois, i.e., outside of Mississippi; (3) under the facts of this case, the communications received in Hinds County by McMillan between himself and State Farm are not sufficient to show that a “substantial alleged act or omission occurred” in Hinds County, pursuant to this Court’s precedents in Myers and Hedgepeth, and (4) the accident-which certainly occurred in Rankin County-is “a substantial event that caused the injury.”

Holmes, 21 So.3d at 618 (emphasis added). Therefore, venue was not proper in Hinds County, but was proper in Rankin County. Id.

¶ 17. “The venue statute does not allow the ‘piling* of acts or events to establish venue. It specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there.” Med. Assurance Co. of Miss. v. Myers, 956 So.2d 213, 219 (Miss. 2007) (emphasis added). The location where the accident giving rise to this suit occurred is in Laurel, Mississippi, which is in the Second Judicial District of Jones County. The Complaint specifically alleged that Bradford and Washington were injured when the weigh pod system broke loose and fell on them at Dunn Road Builder’s plant in Laurel, Mississippi. Therefore, under Section 11—11—3(1)(a)(i) of the venue statute, venue is proper in the Second Judicial District of Jones County. The First Judicial District of Jasper County is not among the permissible venues that Bradford and Washington could select for this action under Section 11—11—3(1)(a)(i).

CONCLUSION

¶ 18. In this case, no Mississippi resident defendant was named, the corporate defendants did not have principal places of business in Mississippi, and the alleged acts or omissions related to the defective product occurred outside Mississippi. However, the accident, which occurred in Laurel, Mississippi (in the Second Judicial District of Jones County), is “a substantial event that caused the injury.” Therefore, the Second Judicial District of Jones County is the proper venue in this matter. Because a permissible venue exists under Section 11-11—3(1)(a)(i), it was not proper for Bradford and Washington to select the county of residence of one of the beneficiary-plaintiffs pursuant to Section 11—11—3(1)(b). Consequently, this Court reverses the trial court’s order denying the motion to transfer venue and remands the matter to the trial court for transfer to the Second Judicial District of Jones County.

¶ 19. REVERSED AND REMANDED.

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

      . Bradford and Washington argue that Herman Grant waived any right to challenge venue. While they raised this issue in briefing before the trial court, they failed to raise it at the hearing, and the trial court did not rule on waiver. We therefore decline to address this issue.

      . If no substantial event causing Bradford’s and Washington’s injuries occurred in the Second Judicial District of Jones County, then venue would be proper in the county where Derrick Jones is a resident.


source: Caselaw Access Project

license: Public Domain

text:
    Cleveland SMITH v. KANSAS CITY SOUTHERN RAILWAY COMPANY
    NO. 2016-IA-00031-SCT
    Supreme Court of Mississippi.
    03/30/2017

      ATTORNEY FOR APPELLANT: C. E. SOREY, II
    ATTORNEYS FOR APPELLEE: CHARLES EDWIN ROSS, VICTORIA REPPOND BRADSHAW
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   KING, JUSTICE,

FOR THE COURT:

¶ 1. This interlocutory appeal presents the Court with the question of whether, pursuant to Mississippi’s venue statute, a corporation may have only one national principal place of business or may have a principal place of business in multiple or all states. Cleveland Smith, a resident of Lowndes County, filed suit against his employer, Kansas City Southern Railway Company (“KCS”), in the Lowndes County Circuit Court. The trial court granted KCS’s Motion for a Change of Venue, holding that, although KCS’s national principal place of business was in Kansas City, Missouri, KCS also did business in Mississippi and that its principal place of business in Mississippi was Rankin County. Because holding that a corporation has a single, principal place of business follows the plain language of the statute and promotes simplicity, we reverse the decision of the trial court and remand the case.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 20, 2012, while working as a railroad machine operator in Sibley, Louisiana, Smith, a KCS employee, had been standing on a tie-inserter machine when he allegedly slipped on a sill step and injured his left shoulder.

¶ 3. Smith had been a resident of Columbus, Lowndes County, and on April 10, 2015, filed a lawsuit against KCS in the Lowndes County Circuit Court, alleging a violation of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51, et seq., for negligently failing to provide Smith with a reasonably safe workplace, inter alia. The complaint stated that KCS was a corporation “doing business in the State of Mississippi where it has officers and agents for the usual and customary transaction of its business. Its principle [sic] place of business is Kansas City, Missouri.”

¶ 4. The Mississippi venue statute, Mississippi Code Section 11-11-3(1), provides in pertinent part:

(1)(a)(i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

Miss. Code Ann. § 11—11—3(1)(a)(i)-(b) (Rev. 2004).

¶ 5. On September 8, 2015, KCS filed a Motion for Change of Venue, arguing that, for venue purposes, its national principal place of business was irrelevant, and that the case should be transferred to its principal place of business in Mississippi, Rankin County. Thus, KCS contended that Smith’s domicile, Lowndes County, could be an appropriate venue only if KCS did not have a principal place of business in Mississippi. Because KCS alleged that it had a second principal place of business in Rankin County, pursuant to Section 11-11-3, it contended that the only proper venue in Mississippi was Rankin County.

¶ 6. Attached as an exhibit to its motion, KCS submitted an affidavit of Kiley L. Hinds, Director of Field Transportation of the Southeast Division for KCS. The affidavit stated that KCS’s main offices were located in Kansas City, Missouri, along with the offices of the President and Vice Presidents of Transportation, Mechanical, Human Resources, Marketing, and Finance. Hinds stated that KCS’s main management office in Mississippi was located in Rankin County, its largest yard was in Rankin County, and, in addition, Rankin County housed the offices of the claims department, the only marketing office in Mississippi, and the main office for KCS’s police force.

¶ 7. The trial court granted KCS’s motion, holding that KCS’s national principal place of business was irrelevant and that Section 11—11—3(1)(a)(i) applied to a corporation’s principal place of business in Mississippi. Smith timely appealed, arguing that the trial court had erred in holding that a corporation had multiple principal places of business under the statute.

DISCUSSION

¶ 8. Prior to 2002, Mississippi had separate venue statutes for general cases, cases against railroads, nonresidents, “express, steamboat, power, superpower, telephone and insurance companies, executors, nonresident motorists and state boards.” Adams v. Baptist Mem’l Hosp.-DeSoto, Inc., 965 So.2d 652 (Miss. 2007). Section 11-11-3, the general venue statute, stated:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and if the defendant is a domestic corporation, in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue except where otherwise provided

Miss. Code Ann. § 11-11-3 (1992). That version of the statute differentiated between foreign corporations and domestic corporations, stating that actions against domestic corporations may be brought in the county where the domestic corporation was domiciled. This Court held that, pursuant to the general venue statute, a foreign corporation could be found in any county in which it had an agent upon whom process could be served. Dean v. Brannon, 139 Miss. 312,104 So. 173, 174 (1925).

¶ 9. Section 11-11-5, the venue statute specific to railroads, stated:

Actions against any railroad ... corporation ... may be brought [1] in the county where the cause of action accrued, [2] in the county where the defendant has its principal place of business or [3] in the county in which the plaintiff resides.

Miss. Code Ann. § 11-11-5 (repealed 2002).

¶ 10. A different statute applied in suits against nonresidents:

All civil actions for the recovery of damages brought against a nonresident or the representative of the nonresident in the state of Mississippi may be commenced in the county in which the action accrued or where the plaintiff then resides or is domiciled, except as otherwise provided by law.

Miss. Code Ann. § 11-11-11 (repealed 2002).

¶ 11. The Legislature significantly altered the venue laws in 2002 and repealed the railroad venue statute and nonresident venue statute. The general venue statute was amended to cover all corporations. For circuit court actions filed after January 1, 2003, and before January 1, 2004, Section 11-11-3 had provided:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides or in the county where the alleged act or omission occurred or where the event that caused the injury occurred. Civil actions against a nonresident may also be commenced in the county where the plaintiff resides or is domiciled.

Miss. Code Ann. § 11-11-3(1) (repealed 2004).

¶ 12. The general venue statute was again amended in 2004 to its current text:

(1)(a)(i) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
(b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.

Miss. Code Ann. § 11—11—3(1)(a)(i), (b) (Rev. 2004). The current version of the statute does not differentiate between a foreign and a domestic corporation.

¶ 13. Smith argues that, because KCS’s national principal place of business is in Missouri, and because the injury occurred in Louisiana, Section 11—11—3(1)(b) applies and the appropriate venue for the action is in his place of residence, Lowndes County.

¶ 14. Smith argues that, in federal court, corporations have only one principal place of business and cites Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010), and its holding that a corporation’s principal place of business is defined as its “nerve center.” Id. at 93, 130 S.Ct. 1181. The Supreme Court held that the “nerve center” is a single place that usually is the corporation’s main headquarters. Id. The Court reasoned that “the word ‘place’ is in the singular, not the plural. The word ‘principal’ requires us to pick out the ‘main, prominent’ or ‘leading place.” Id. Additionally, interpreting the statute to mean that a corporation may have one principal place of business avoids increasingly complex litigation and promotes simplicity. Id. at 93-94, 130 S.Ct. 1181. “Administrative simplicity is a major virtue in a jurisdictional statute.” Hertz, 559 U.S. at 94, 130 S.Ct. 1181. “Simple jurisdictional rules also promote greater predictability. ... Predictability also benefits plaintiffs deciding whether to file suit in a state or federal court.” Id. Cf. Daimler AG v. Bauman, — U.S. —, 134 S.Ct. 746, 760, 187 L.Ed.2d 624 (2014) (With respect to a corporation, the place of incorporation and principal place of business are ‘paradigfrn] ... bases for general jurisdiction.’ Those affiliations have the virtue of being unique—that is, each ordinarily indicates only one place—as well as easily ascertainable.”).

¶ 15. Smith additionally cites Illinois Central Railroad Co. v. Carlos Mooney, No. 2011-IA-00355-SCT (Miss. May 11, 2011). In Mooney, the petitioner railroad argued on interlocutory appeal that it was a foreign corporation and had only one national principal place of business, in Illinois. The respondent instead argued that Illinois Central also had a principal place of business in Hinds County, Mississippi. This Court entered an order finding that the respondent “has made no showing that venue is proper in Hinds County. On the contrary, Illinois Central has demonstrated its status as a foreign corporation with its principal place of business in Illinois.” Id.

¶ 16. We now find that a corporation may have only one principal place of business. Holding that the Legislature intended the venue statute to apply to a corporation’s principal place of business inside Mississippi would require analyzing in each case how much of a presence a foreign business has to have in Mississippi to have a principal place of business both inside Mississippi and nationally. Additionally, if any business with an office in Mississippi can be considered to have a principal place of business inside the state, that interpretation would render Section 11-11—3(1)(b) venue in the county of the plaintiffs residence or domicile, virtually irrelevant. If the Legislature had intended for a foreign corporation to have a principal place of business inside the state, it easily could have clearly stated that in the statute.

¶ 17. Further, the previous version of the general venue statute in Mississippi stated that “if the defendant was a domestic corporation venue would be proper in the county in which said corporation is domiciled. If the corporation was a foreign corporation, venue was proper where the foreign corporation’s registered agent was located. This difference in appropriate venues between a foreign and a domestic corporation logically can be interpreted to mean that the Legislature did not consider a foreign corporation to have a principal place of business in Mississippi.

¶ 18. KCS cites Kansas City Southern Railway v. Johnson, 798 So.2d 374 (Miss. 2001), superceded by rule on other grounds by Mississippi Transportation Commission v. McLemore, 863 So.2d 31, 36 (Miss. 2004), in support of its argument that it has both a national principal place of business and a principal place of business in Mississippi. In Johnson, this Court analyzed the previous version of the venue statute, Section 11-11-5, which had been specific to railroads. Id. at 377-78. At that time, KCS took the opposite position and argued that its principal place of business was in Kansas City and that it did not have a principal place of business in Mississippi. Id. at 378. This Court held that KCS’s national principal place of business was irrelevant and that “[t]he trial court had before it evidence that KCS’s principal place of business was in Hinds County.” Id.

¶ 19. Although the Johnson Court held that KCS’s national principal place of business had been irrelevant, in other cases a corporation’s national principal place of business has been applied when determining venue. In Holmes, this Court stated that State Farm’s principal place of business was in Bloomington, Illinois, and not inside Mississippi. Holmes v. McMillan, 21 So.3d 614, 618 (Miss. 2009). The Blakeney Court stated that Kia was a nonresident corporation with its principal place of business outside of Mississippi. Laurel Ford Lincoln-Mercury, Inc. v. Blakeney, 81 So.3d 1123, 1124 (Miss. 2012). And the Ellison Court stated that “it is undisputed ... that AFLAC’s principal place of business is outside Mississippi. Thus, pursuant to the plain language of the statute, the action must be commenced in Rankin County ....” American Family Life Assurance of Columbus v. Ellison, 4 So.3d 1049, 1051 (Miss. 2009).

¶20. KCS argues that Smith failed to cite any relevant legal authority and that this Court should summarily affirm the trial court’s decision. Because Smith has cited relevant legal authority in support of his position, this argument has no merit.

¶21. As the United States Supreme Court has held, interpreting the venue statute to allow a foreign corporation to have only one principal place of business promotes simplicity and avoids complex litigation. “Principal place of business” is a singular reference to a corporation’s nerve center. Having multiple principal places of business nationally as well as in each state does not logically promote the term “principal place.” The statute refers to a corporation’s principal place of business and not to its principal places of business. The term “place” is singular, which indicates that there can be only one. The plain language of the statute reads “if venue in a civil action against a nonresident defendant cannot be asserted ... a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled.” Miss. Code Ann. § 11-11-3(1)(b) (emphasis added). Therefore, because KCS is a nonresident defendant with its principal place of business in Kansas City, Missouri, we reverse the decision of the trial court and remand the case to the Lowndes County Circuit Court for further proceedings consistent with this opinion.

¶ 22. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . Both parties stipulate that KCS’s national principal place of business is Kansas City, Missouri.

      . KCS has a registered agent in Rankin County, Mississippi. However, Mississippi Code Section 79-35-15 now specifically states that "the address of the agent does not determine venue in an action or proceeding involving the entity.” Miss. Code Ann. § 79-35-15 (Rev. 2013).

      . See also Wood v. Safeway Ins. Co., 114 So.3d 714 n.3 (Miss. 2013) ("The insurance policy reveals that Safeway’s principal place of business is in Westmont, Illinois.”).


author: MAXWELL, JUSTICE,

text:
    BAPTIST MEMORIAL HOSPITAL-DESOTO, INC. d/b/a Baptist Memorial Hospital-DeSoto v. MISSISSIPPI STATE DEPARTMENT OF HEALTH and Methodist Healthcare-Olive Branch Hospital
    NO. 2015-SA-01464-SCT
    Supreme Court of Mississippi.
    03/30/2017

      ATTORNEY FOR APPELLANT: BARRY K. COCKRELL
    ATTORNEYS FOR APPELLEES: CASSANDRA S. WALTER, KATHRYN RUSSELL GILCHRIST, ALLISON TRELOAR JONES
   MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. The Mississippi State Department of Health (MSDH) is tasked with addressing Mississippians’ healthcare through the State Health Plan and the certificate-of-need regulatory scheme. The State Health Plan sets the goals and criteria for healthcare in the state. And the certificate-of-need process ensures healthcare providers maximize access to quality healthcare, while minimizing cost and inefficiency.

¶ 2. Citing the 2014 State Health Plan, Methodist Healthcare—Olive Branch Hospital (Methodist) applied for a certificate of need (CON)—seeking approval to perform percutaneous coronary intervention(s), a type of cardiac procedure, at its Olive Branch hospital. But Baptist Memorial Hospital—DeSoto (Baptist)—a competing hospital from the same service area—contested Methodist’s application. MSDH held a hearing and ultimately approved Methodist’s application. Baptist appealed to the Hinds County Chancery Court. And after review, the chancellor affirmed MSDH’s decision. Baptist now appeals to this Court.

¶ 3. On appeal, we give great deference to MSDH’s decisions. And we affirm those decisions if supported by substantial evidence. Here, we find substantial evidence that Methodist’s application substantially complied with the State Health Plan and was consistent with its requirements. So we affirm.

Background Facts and Procedural History

¶ 4. On July 29, 2010, Methodist applied for and was granted a CON. This CON authorized Methodist to construct a 100-bed, acute-care hospital in DeSoto County, Mississippi. The CON further allowed Methodist to provide diagnostic and therapeutic cardiac catheterizations. The hospital opened August 26, 2013, and began treating patients in December 2013. When Methodist was granted its CON in 2010, the Mississippi State Health Plan allowed healthcare providers to perform therapeutic cardiac catheterization(s) only if the provider had an on-site, open-heart-surgery program. But the State Health Plan was modified in 2014 to allow percutaneous coronary intervention(s) (PCI)—a type of therapeutic cardiac catheterization—with-out requiring an on-site, open-heart-surgery program.

¶ 5. In response, Methodists—whose on-site, open-heart-surgery program was not yet operational—applied for a separate CON to perform PCIs. MSDH reviewed Methodist’s application and recommended to grant it. MSDH issued the statutorily required notice to the public and other healthcare providers in the service area. And Baptist requested a public hearing, which was held on August 14 and 15, 2014.

¶ 6. The hearing focused on four of the nine criteria for the acquisition or control of therapeutic cardiac catheterization equipment and/or services, under Section 115.04 of the 2014 State Health Plan:

Criterion 1: the minimum population base required in the service area(s)
Criterion 2: the minimum number of diagnostic and therapeutic procedures required annually
Criterion 7: the requirements for offering PCIs without an on-site, open-heart-surgery program
Criterion 9: the minimum number of diagnostic catheterization procedures required in the two most recent years, prior to an application, for existing diagnostic catheterization providers seeking to establish a therapeutic cardiac catheteri-zation program

¶7. Don Eicher testified for MSDH, presenting Methodist’s application and MSDH’s recommendation. He believed Methodist’s project was consistent with the State Health Plan’s regulatory goals. Methodist presented fourteen witnesses— ranging from physicians, nurses, and emergency-services representatives to the present and former Mayors of Olive Branch and an expert in hospital planning. Baptist offered only one witness—an expert in hospital planning. Thirty-three separate exhibits were presented to the hearing officer.

¶ 8. The hearing officer found that Methodist’s application substantially complied with the State Health Plan. And he submitted these findings to the Mississippi State Health Officer, who agreed with the recommendations and granted Methodist a CON.

¶ 9. Upset with this decision, Baptist appealed to the Hinds County Chancery Court. Both Methodist and Baptist submitted briefs to the chancellor. On appeal, Baptist only contested MSDH’s interpretation and application of Criteria 1 and 9 of Section 115.04 of the 2014 State Health Plan. Baptist argued MSDH had wrongly concluded the minimum-population criterion was met and improperly waived the minimum-procedure criterion. But the chancellor disagreed.

¶ 10. For Criterion 1, the chancellor found Methodist had properly documented the population in the proposed service area. At the time there were 311,111 people, with substantial future population growth. And MSDH was not required to conduct a market-share analysis to divide the population between Baptist and Methodist. The chancellor held Baptist failed to demonstrate MSDH’s chosen methodology was arbitrary or capricious.

¶ 11. The chancellor also found MSDH could reasonably conclude Criterion 9 did not disqualify providers from seeking a therapeutic catheterization program, if the provider’s diagnostic catheterization program was less than two years old. This determination was deemed reasonable, since Criterion 9 does not require an applicant to be a diagnostic catheterization provider for two years before applying for a therapeutic catheterization program. Alternatively, the chancellor found Criterion 9 inapplicable because Methodist had an existing therapeutic cardiac catheterization program. She found Criterion 9 deals solely with providers seeking to establish such a program. As the chancellor saw it, Methodist was already in compliance with the State Health Plan because its therapeutic catheterization program had already been approved. Thus, it did not have to meet the Criterion 9 requirement. Based on these findings, the chancellor affirmed MSDH’s decision. Baptist has now appealed to this Court.

Discussion

¶ 12. Mississippi Code Section 41-7-193(1) (Supp. 2016) governs CON approvals. The statute is clear that no CON shall be granted unless it has been “reviewed for consistency with the specifications and criteria established by the State Department of Health and substantially complies with the projection of need as reported in the State Health Plan in effect at the time .... ” Miss. Code Ann. § 41-7-193(1) (emphasis added).

¶ 13. This Court’s standard of review for administrative agency decisions applies to CON appeals:

The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal.

Miss. Code Ann. § 41-7-201(2)(f) (Supp. 2016). We afford “great deference” to the decisions of hearing officers and the State Health Officer. Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 976 (Miss. 1999) (citations omitted). But if MSDH’s decision is not based on substantial evidence, “it necessarily follows that the decision is arbitrary and capricious.” Queen City Nursing Ctr., Inc. v. Miss. State Dep’t of Health, 80 So.3d 73, 78 (Miss. 2011) (quoting Natchez Cmty. Hosp., 743 So.2d at 977).

¶ 14. “The burden of proof rests on the challenging party to prove that MSDH erred.” Jackson HMA, Inc. v. Miss. State Dep’t of Health, 822 So.2d 968, 970 (Miss. 2002) (citing Delta Reg’l Med. Ctr. v. Miss. State Dep’t of Health, 759 So.2d 1174, 1176 (Miss. 1999)). And this Court will affirm a decision by MSDH, despite an imperfect analysis or review, where the decision is supported by substantial evidence. See CLC of Biloxi, LLC v. Miss. Dep’t of Health, 91 So.3d 633, 639 (Miss. 2012) (MSDH’s decisions should be affirmed where supported by substantial evidence, even where it allegedly failed to follow its own regulations or employed imperfect methods); see also Miss. State Dep’t of Health v. Rush Care, Inc., 882 So.2d 205, 210-11 (Miss. 2004) (this Court upholds MSDH’s decisions based on substantial evidence, even when imperfect analysis is used).

¶ 15. On appeal to this Court, Baptist attacks the chancellor’s decision, again claiming MSDH’s interpretation and application of Criteria 1 and 9 of Section 115.04 of the 2014 State Health Plan were arbitrary and capricious. But this Court finds Methodist’s CON application substantially complied with the 2014 State Health Plan, and that MSDH’s findings are suppoi'ted by substantial evidence. Thus, for these reasons, we affirm.

I. Criterion 1—Minimum Population Base

¶16. While different methodologies exist to measure whether a CON applicant meets the minimum-population criterion, the ultimate goal “is to determine need.” HTI Health Servs. of Miss., Inc. v. Miss. State Dep’t of Health, 603 So.2d 848, 853 (Miss. 1992). Baptist, however, pitches a very narrow view of how it believes MSDH should determine need. As Baptist sees it, MSDH has a “longstanding practice” of using market-share analysis. So it was required to apply a market-share analysis to the service area population to ensure Methodist’s market share met the 100,000 mark. In other words, Baptist insists market-share analysis is mandatory. As support, Baptist cités cases where this Court affirmed MSDH’s use of market-share analysis for minimum-population calculations. But what Baptist misses is that those cases say market-share analysis is an allowable method—not the sole method to consider the minimum-population criterion.

¶ 17. Indeed, this Court has never mandated MSDH perform a market-share analysis when considering minimum-population criteria. Nor does the applicable State Health Plan support this view. Paragraph 7 of Section 115.02 of the 2014 State Health Plan explains MSDH may use different methodologies to analyze a CON application, depending upon the circumstances. Furthermore, this Court has affirmed MSDH’s use of a different methodology based on the circumstances of that application. Miss. State Dep’t of Health v. Sw. Miss. Reg’l Med. Ctr., 580 So.2d 1238, 1241-42 (Miss. 1991). So, despite Baptist’s protestations, simply because MSDH has applied a certain methodology in the past, its use of an alternative method is not itself arbitrary or capricious.

¶ 18. The objectives of the 2014 State Health Plan were to increase cardiac services for poor, minority, and rural populations. And the 2014 State Health Plan emphasizes that certain methodologies, such as population base and optimum capacity at existing providers, have been ineffective to meet Mississippi’s cardiac-care needs. Both MSDH and the chancellor found Methodist’s minimum-population methodology substantially complied with objectives of the 2014 State Health Plan. And we too find substantial compliance.

II. Criterion 9—Minimum Annual Diagnostic Catheterizations

[7] ¶ 19. Criterion 9 of Section 115.04 requires an existing provider of diagnostic cardiac catheterizations, seeking to establish a therapeutic catheterization program, perform a minimum of 300 diagnostic cath-eterizations each year for two years prior to its application.

¶ 20. Criterion 9 applies to providers of diagnostic catheterizations proposing the establishment of a therapeutic catheterization program. And here, Methodist is not seeking to establish a therapeutic catheter-ization program—it already has one. Rather, Methodist is seeking permission to operate a PCI program without having a fully operational on-site, open-heart-surgery program. This is permissible under the 2014 State Health Plan, provided Criterion 7 is met—which is not at issue. Simply put, Criterion 9 does not apply here.

¶21. We therefore find that Methodist “substantially complie[d] with the projection of need as reported in the state health plan in effect at the time ....” Miss. Code Ann. § 41-7-193(1). And Baptist has failed to show MSDH’s decision that Methodist substantially complied with the 2014 State Health Plan was not based on substantial evidence. We therefore affirm.

Conclusion

¶22. MSDH’s analysis is supported by substantial evidence, and Baptist failed to meet its burden of proof. This Court therefore affirms MSDH’s grant of a CON to Methodist to provide PCI services.

¶ 23. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, BEAM AND CHAMBERLIN., JJ., CONCUR.

      . See CLC of Biloxi, LLC v. Miss. Dep't of Health, 91 So.3d 633, 639 (Miss. 2012), and Miss. State Dep’t of Health v. Rush Care, Inc., 882 So.2d 205, 210-11 (Miss. 2004).

      . Mississippi Code Section 41-7-197 requires written notification from MSDH to other healthcare facilities in the service area and notice by publication to the public in the service area. A public hearing may be held upon request by an affected party, i.e., other healthcare facilities or private citizens. Miss. Code Ann. § 41-7-197 (Supp. 2016).

      . Under Section 115.04 of the 2014 State Health Plan, Criterion 1 states in full:
      The applicant shall document a minimum population base of 100,000 in the CC/OHS-PA where the proposed therapeutic cardiac catheterization equipmenl/service is to be located. Division of Health Planning and Resource Development population projections shall be used.
      And Criterion 9 states in full:
      An applicant proposing the establishment of therapeutic cardiac catheterization services, who is already an existing provider of diagnostic catheterization services, shall demonstrate that its diagnostic cardiac catheterization unit has been utilized for a minimum of 300 procedures per year for the two most recent years as reflected in the data supplied to and/or verified by the Mississippi State Department of Health.

      . For example, Baptist cites HTI Health Servs. of Miss., Inc., 603 So.2d 848 (the use of market-share methodology does not exceed MSDH's statutory authority); Sw. Miss. Reg’l Med. Ctr., 580 So.2d 1238 (the minimum-population criterion aims to prevent a healthcare program from being established that will be underutilized); Miss. State Dep't of Health v. Golden Triangle Reg'l Med. Ctr., 603 So.2d 854 (Miss. 1992) (MSDH’s use of market-share methodology to review certificate of need applications is not arbitrary or capricious); and Delta Reg'l Med. Ctr., 759 So.2d 1174 (this Court has consistently upheld MSDH's market-share methodology).

      . Paragraph 7 of Section 115.02 of the 2014 SHP states; in part:
      At its discretion, the Department of Health may use market share analysis and other methodologies in the analysis of a CON application ... [t]he Department shall not rely upon market share analysis or other statistical evaluations if they are found inadequate to address access to care concerns.

      . In HTI Health Services, this Court noted the State Health Plan "does not identify specific methods which must be used to determine if the requirements of the Plan have been met.” HTI Health Serv’s. of Miss., Inc., 603 So.2d at 853. Rather, we recognized, "[t]he methodology used to determine or measure population base in any given case should not be carved in granite; instead, some flexibility is required.” Id. The prudent approach is to "utilize a methodology that will accommodate the various and sundry circumstances found in each individual case.” Id. Thus, it is quite apparent MSDH has a good bit of discretion and flexibility in making these calls.

      . MSDH determined Criterion 9 should be waived until the hospital reached its third year of operation. At that time, the number of diagnostic procedures should be examined. However, the hearing officer found Methodist had met the requirements of Criterion 9 because it showed projections it would meet minimum-procedure requirements within three years. Notwithstanding these differing analyses, we affirm decisions by MSDH based on substantial evidence, despite imperfect analysis or review. See CLC of Biloxi, LLC, 91 So.3d at 639; see also Rush Care, Inc., 882 So.2d at 210-11.


author: WALLER, CHIEF JUSTICE, DICKINSON, PRESIDING JUSTICE,

text:
    Cynthia KULJIS v. WINN-DIXIE MONTGOMERY, LLC
    NO. 2015-CT-00256-SCT
    Supreme Court of Mississippi.
    03/30/2017

      ATTORNEYS FOR APPELLANT: GARNER J. WETZEL, JAMES K. WET-ZEL, GULFPORT
    ATTORNEYS FOR APPELLEE: DAVID W. STEWART, BRIAN C. WHITMAN, BILOXI
   ON WRIT OF CERTIORARI

WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶ 1. Cynthia Kuljis appeals the chancery court’s dismissal of her Bill of Discovery for lack of subject-matter jurisdiction. The Bill sought discovery related to a prospective premises-liability and personal-injury claim. Finding the actions of the chancery court were correct as a matter of law, we affirm the Court of Appeals’ judgment and the chancery court’s dismissal of this case.

FACTS AND PROCEDURAL HISTORY

¶2. Cynthia Kuljis alleges she suffered injuries when she tripped on a piece of rubber holding down a carpet in the Winn-Dixie grocery store in D’Iberville, Mississippi. As a result, she filed a Complaint for Discovery in the Harrison County Chancery Court, requesting that the chancellor order Winn-Dixie to “produce incident reports, photographs, video surveillance, investigation reports, work orders, witness statements of the incident in question and all other information that may be in their possession.” Winn-Dixie moved to dismiss, arguing Kuljis must first file a complaint for negligence in the circuit court and obtain discovery through the Mississippi Rules of Civil Procedure.

¶ 3. The chancellor dismissed Kuljis’s complaint, finding she could not pursue a complaint for discovery in chancery court when the Mississippi Rules of Civil Procedure provided her an adequate opportunity for discovery in circuit court. Kuljis appealed, and the Mississippi Court of Appeals affirmed. Kuljis v. Winn-Dixie Montgomery, LLC, 214 So.3d 318, 319-20, 2016 WL 1203823, *1 (Miss. Ct. App. Mar. 29, 2016). We granted certiorari.

DISCUSSION

¶4. The bill of discovery is a viable equitable action and remedy in chancery court, but not under the facts of this case. Kuljis seeks discovery in chancery court for a trip and fall at a Winn-Dixie grocery store. Yet the chancery court lacks jurisdiction over personal-injury actions. See Miss. Const. Art. 6, § 159 (1890). To distinguish between the chancery court’s and circuit court’s subject-matter jurisdiction, “the substance of the action ... should be controlling on the issue, not its form or label.” Briggs & Stratton Corp. v. Smith, 854 So.2d 1045, 1049 (Miss. 2003) (quoting Tillotson v. Anders, 551 So.2d 212, 214 (Miss. 1989)). In addition, where doubts exist regarding the legal or equitable nature of a case, the case should be tried in the circuit court. Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (Miss. 1999).

¶ 5. The bill of discovery is an original action that may be pursued when there is no other remedy, as set out in State Oil & Gas Board v. McGowan and Moore v. Bell Chevrolet-Pontiac-Buick-GMC, LLC. McGowan involved an administrative proceeding before the Mississippi Oil and Gas Board where McGowan sought additional discovery to prepare for a hearing. State Oil & Gas Bd. v. McGowan, 542 So.2d 244, 245 (Miss. 1989). After the Board denied his request, he filed a Bill of Discovery in chancery court. Id. The McGowan Court found that the Bill of Discovery was a viable action, as administrative proceedings specifically are excluded from the Mississippi Rules of Civil Procedure and no discovery mechanism exists under the Administrative Procedures Act. Id. at 247. Despite finding that the Bill of Discovery was an appropriate procedural device, the Court found that, because discovery was not permitted under the Oil and Gas Board’s rules, it could not be sought by McGowan through a bill of discovery. Id. at 248.

¶ 6. In Moore, this Court found that a bill of discovery was a viable means to obtain discovery in conjunction with administrative proceedings. Moore v. Bell Chevrolet-Pontiac-Buick-GMC, LLC, 864 So.2d 939, 947 (Miss. 2004). However, the Court found that it was not permitted there because the parties seeking it had not “demonstrate^ that they were diligent or [had] made reasonable efforts to exhaust other avenues of obtaining the information without proceeding in [the] trial court on a complaint for discovery.” Id.

¶ 7. Filed by way of Citation to Supplemental Authorities pursuant to Mississippi Rule of Appellate Procedure 28(k), Kuljis cites the recent decision of Elizabeth Graham and Matthew Graham v. James “Jaime” R. Franks, Jr. And Wheeler and Franks Law Firm, P.C. in support of her Bill of Discovery. Graham v. Franks, No. 2015-CA-01428-COA, — So.3d —, 2017 WL 194268 (Miss. Ct. App. Jan. 10, 2017). The Grahams retained Franks for representation in a criminal matter for a fixed fee. The Grahams alleged that, notwithstanding the fixed-fee contract, Franks demanded, and they paid, additional money and gave what is described as valuable property in excess of the fixed fee. Id. Becoming disenchanted with the representation, the Grahams hired different counsel and sought documentation and explanation for the fees Franks had charged. Id. When rebuffed, the Grahams filed their “Mom-plaint for [discovery, [accounting, and [r]eturn of [property” in chancery court. Id. The trial court dismissed the complaint for failure to plead the specific causes of action. Id.

¶8. The Court of Appeals reversed, holding that a complaint for discovery and accounting is a viable, standalone, cause of action, properly subject to equitable jurisdiction in chancery court. That court found that “[i]t is beyond dispute that a complaint for an accounting is a valid cause of action under Mississippi law ... [and] ‘[a] Mississippi chancery court holds the authority to hear a case for an accounting.’ ” Graham v. Franks, — So.3d at —, 2017 WL 194268, at*2 (quoting Univ. Nursing Assocs. PLLC v. Phillips, 842 So.2d 1270, 1275 (Miss.2003)). The court also stated that “[t]he Supreme Court of Mississippi has recognized ... that a complaint for discovery has discovery itself as the substantive relief sought—‘the sole object and end of the bill, no relief other than the discovery being prayed.’” Id. (quoting McGowan, 542 So.2d at 248.) The Court of Appeals also addressed the issue of the return of property, stating “[t]he remedy sought by an accounting is the accounting itself ‘and a judgment for the amount found due upon the accounting.’ ” Id. (citing 1A C.J.S. Accounting § 54 (2005)).

¶ 9. Graham v. Franks provides Kuljis no support. The discovery she desires is not itself the relief she seeks. It is only incidental to an action at law for which a justiciable claim already has been articulated in her complaint, and for which there is no jurisdiction in chancery court.

¶ 10. Kuljis also contends that a bill of discovery would prevent her from filing a frivolous lawsuit. However, avoidance of Rule 11(b) sanctions does not provide support for Kuljis’s Bill of Discovery. Winn-Dixie’s stated failure to respond to a letter seeking this information provides a sound and reasoned basis for maintaining a civil action and attendant discovery for Kuljis’s claim. This Court has reversed the use of Rule 11 sanctions where a plaintiff made an arguable claim and filed a pleading in good faith. Milliken & Michaels, Inc. v. Fred Netterville Lumber Co., 676 So.2d 266, 270 (Miss. 1996); McDonald’s Corp. v. Robinson Indust., Inc., 592 So.2d 927, 935 (Miss. 1991). Further, the comment to Mississippi Rule of Professional Conduct 3.1 states that “[t]he filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.” (Emphasis added.) Kuljis already provides a “short and plain statement of the claim showing ... the relief to which [she] deems [herself] entitled.” Miss. R. Civ. P. 8. Kuljis’s complaint states:

Plaintiff would show that on July 27, 2013, Plaintiff, Cynthia Kuljis, was a guest patron at the Defendant’s place of business in D’Iberville, Mississippi. Plaintiff, Cynthia Kuljis, was walking into the store of the Defendant’s place of business when suddenly and without warning, Plaintiff tripped over a piece of rubber sticking up, which was suppose to hold down the carpet, falling face first onto the floor. Plaintiff would show that she has sustained serious and permanent medical injuries.

¶ 11. The authoritative work on chancery-court practice written long before the adoption of the Mississippi Rules of Civil Procedure references a need to exhaust other available means for obtaining the information prior to filing a bill of discovery. As stated in Mississippi Chancery Practice, the relief is available when “it is not within the reasonable reach of the complainant to obtain [the information] without the aid of the discovery prayed.” V.A. Griffith, Mississippi Chancery Practice § 429, 424 (1950). The chancellor succinctly set out in his order that, “in order for the [c]ourt to assume jurisdiction, Plaintiff must make a showing that the information sought cannot be obtained by other methods.” See also Moore v. Bell Chevrolet-Pontiac-Buick-GMC, LLC, 864 So.2d 939, 947 (Miss. 2004).

CONCLUSION

¶ 12. Because the chancery court did not abuse its discretion in determining that it lacked jurisdiction over this matter, we affirm the judgments of the Court of Appeals and the Harrison County Chancery Court.

¶ 13. AFFIRMED.

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

DICKINSON, PRESIDING JUSTICE,

DISSENTING:

¶ 14. Mississippi Rule of Civil Procedure 82(a) states “[t]hese rules shall not be construed to extend or limit the jurisdiction of the courts of Mississippi.” The majority ignores this rule by holding that somehow the enactment of the Rules of Civil Procedure did in fact “limit the jurisdiction” of the chancery court. Our chancery courts’ equitable jurisdiction has included subject-matter jurisdiction over bills of discovery—even when the discovery related to a matter that ultimately would be litigated in circuit court—since before any justice in the majority was born.

¶ 15. It is no answer to say that “the chancery court lacks jurisdiction over personal-injury actions.” No one has attempted to file a personal-injury action in chancery court. The chancery court has always had jurisdiction over bills of discovery, regardless of where the discovery might suggest a suit is warranted.

¶ 16. To sum it up, the majority holds that because we adopted the Rules, the chancery courts now lack jurisdiction over bills of discovery. In other words, by claiming the Rules do exactly what Rule 82(a) says they do not do, this Court refuses to follow its own rules. This is the same Court that sanctions lawyers and judges for failing to follow the rules, so one wonders how today’s decision contributes to confidence in the judiciary.

¶ 17. Because I believe we should follow the rules we adopt—just as we expect everyone else to do—I dissent. Rule 82(a), if followed, ensures that the complaint of discovery remains a viable action in chan-eery court even when the discovery relates to a matter which will be litigated in circuit court.

¶ 18. One thing more needs to be said. Complaints of discovery serve a valuable purpose. Given attorneys’ ethical and legal obligation to avoid frivolous filings, prefil-ing discovery empowers attorneys to make more informed decisions as to whether meritorious claim exist and better equips attorneys to fulfill their ethical obligations. Moreover, any concern that this practice will be abused is mitigated by the chancellor’s discretion to deny unreasonable requests.

KITCHENS, KING AND COLEMAN, JJ., JOIN THIS OPINION.

      . This case is subject to rehearing.

      . Miss. R. Civ. P. 82(a).

      . See Buckner v. Ferguson, 44 Miss. 677, 681-82 (1870).

      .Maj. Op. atfl4.

      . See Miss. R. Civ. P. 11; Miss. Code Ann. § 11-55-5 (Rev. 2012).


author: CARLTON, J., FOR THE COURT:

text:
    Arnold BAILEY, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01524-COA
    Court of Appeals of Mississippi.
    12/06/2016
    Rehearing Denied April 4, 2017

      RICHARD T. STARRETT, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA MCCLINTON, ATTORNEY FOR AP-PELLEE
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. On April 1-2, 2015, a jury in the Rankin County Circuit Court found Arnold Bailey guilty of grand larceny in violation of Mississippi Code Annotated section 97-17-41 (Rev. 2006), and the court sentenced him to serve ten years in the custody of the Mississippi Department of Corrections (MDOC), with two years suspended, followed by five years of supervised probation. The trial court entered an order allowing Bailey to file an out-of-time appeal. Bailey filed his notice of appeal of his conviction and sentence on October 12, 2015. Bailey also filed a motion for a judgment notwithstanding the verdict, or, in the alternative, a new trial. The trial court denied Bailey’s posttrial motions.

¶2. Bailey now appeals, asserting the following assignments of error: (1) the trial court committed reversible error in cutting off Bailey’s good-faith defense by sustaining the State’s hearsay objection to what Douglas Walters told Bailey, since the testimony was not offered for the truth of the statements but to show that Bailey relied upon them in good faith; (2) the evidence was insufficient to support a finding that Bailey either took away property of the victim or aided and abetted Walters in taking away property of the victim; (3) the trial court committed reversible error in refusing Bailey’s circumstantial-evidence jury instruction; (4) the prosecution committed plain error during closing argument or, in the alternative, defense counsel was ineffective for failing to object; and (5) the effect of the cumulative errors entitles Bailey to a new trial. Finding no error, we,affirm.

FACTS

¶ 3. On February 9, 2012, police officers arrested Bailey for stealing items from the property of Robert- Nelson. At Bailey’s trial, Nelson testified that shortly before 8 a.m. on Thursday, February 9, 2012, he drove onto his approximately 140-acre property on Tanglewood Drive in Rankin County to check on construction equipment he stored at that location. When Nelson arrived, he discovered that the gate to his property had been opened, and that someone had cut the chain used to secure the gate. Nelson observed that another lock had been used to secure the severed ends of the chain. Nelson testified that he saw a man, later identified as Bailey, driving a forklift carrying a concrete hopper. Nelson called the police and waited for them to arrive.

¶ 4. Investigator Bradley Turner of the Brandon Police Department testified that shortly before 8 a.m. on February 9, 2012, he was called to the location on Tangle-wood Drive in Brandon, Mississippi. Investigator Turner testified that when he asked Bailey what he was doing on the property, Bailey replied that he was removing items that someone else had placed on his property. Investigator Turner testified that when he informed Bailey that the property belonged to someone else, Bailey then said that he had been hired by Walters to remove scrap metal from the property. Investigator Turner testified that he obtained a copy of Bailey’s drivers license, which showed Bailey’s address as 297 Value Road. Investigator Turner testified that this address was “directly through the woods” from Nelson’s Tanglewood Drive property.

¶ 5. Officer John Adams of the Rankin County Sheriffs Department also responded to Nelson’s call. Officer Adams testified that when he asked Bailey why he was on the property, Bailey claimed that the land belonged to his son and he was removing items off of the property for him. Officer Adams testified that he ran the vehicle identification number on the forklift Bailey was using, and he discovered that Walters rented the forklift from McGraw Rental. When he asked Bailey about the forklift, Officer Adams testified that Bailey responded that he was working for Walters.

¶ 6. A Rankin County grand jury indicted Bailey and Walters for stealing metal items, including steel scaffolding, from the property of Nelson. The State subsequently amended the indictment to limit the stolen items to steel scaffolding and to reflect that the items were stolen on February 8-9, 2012. Nelson testified that from 150 to 200 pieces of heavy specialized scaffolding were missing, which cost about $50 to $60 each. Nelson also testified that he had not granted anyone permission to be on. his land.

¶ 7. At trial, Bailey claimed that on February 8, 2012, his acquaintance, Walters, called Bailey and asked him if he would be interested in helping on a job to clean up property-that Walters had been hired to do at Nelson’s property. Bailey stated that Walters had a key to this property, and Walters gave the key to Bailey on the morning of February 9, 2012. Bailey maintained that he believed he was being -hired to clean up property and that he would be paid in return.

¶ 8. Bailey testified that when he arrived to Nelson’s property, his truck became stuck in a ditch and he used a forklift to get it unstuck. During this time, Bailey testified that, a man drove up-and asked him what he was doing there. Bailey responded that he was performing work for Walters. Bailey testified that the man then made a phone call, and police arrived shortly thereafter.

¶ 9. During Bailey’s testimony regarding what Walters told him, the State made two hearsay objections. As a result, Bailey was prohibited from testifying about the specifics of his conversation with Walters. However, Bailey provided testimony that he arrived on Nelson’s property only because he believed he was there to perform work for Walters. Bailey also denied lying to police officers.

¶ 10. Jeff Pate of McGraw Rental provided testimony that he rented a front-end loader to Walters on February 7, and that he never saw Bailey. Steve Lambright, an employee of General Recycling, a company that purchases scrap metal, testified that he purchased $722.40 worth of bridge scaffolding from Walters on February 9, 2012. Lambright testified that Bailey was not present when Walters sold the scrap metal. During trial, the State showed Nelson pictures of the metal scaffolding sold to General Recycling and Nelson testified that the metal scaffolding belonged to him and was missing from his property.

¶ 11. The jury ultimately found Bailey guilty of grand larceny, and the trial court sentenced him to serve ten years in the custody of the Mississippi Department of Corrections (MDOC), with two years suspended, followed by five years of supervised probation. Bailey now appeals his conviction and sentence.

DISCUSSION

I. Hearsay Objection

¶ 12. Bailey argues that the trial court committed reversible error in depriving him of his theory of defense by improperly sustaining the State’s hearsay objection to what Walters told Bailey regarding performing work on Nelson’s property. Bailey claims that although he was allowed to testify to his actions and what he knew of Walters’s actions, he was not allowed to testify to what Walters told him that made him believe that he was authorized to be on Nelson’s property.

¶ 13. Bailey also claims that, defense witness Debra Grant was similarly not allowed to testify to what she heard Walters tell Bailey. Grant testified that she lived with Walters in February 2012. When Grant was asked what she knew about Walters hiring Bailey to remove material from Nelson’s property, Grant began to explain that she overheard Walters call Bailey, but the State objected. The trial court sustained the State’s hearsay objection and' did not allow Grant to testify to what she heard Walters tell Bailey. Grant was allowed, however, to testify that Walters gave Bailey the key to Nelson’s property.

¶ 14. On appeal, “[w]e review a trial court’s admission or exclusion of evidence for abuse of discretion.” Wilson v. State, 96 So.3d 721, 726 (¶ 13) (Miss. 2012); Davis v. State, 183 So.3d 112, 116 (¶ 17) (Miss. Ct. App. 2016).

¶ 15. Bailey admits that his defense counsel failed to make a proffer of his testimony once the hearsay objection was sustained. Our supreme court has provided that “[wjhen testimony is not allowed at trial, a record of the proffered testimony must be made in order to preserve the point for appeal.” McKenzie v. State, 119 So.3d 1145, 1149 (¶ 9) (Miss. Ct. App. 2013) (citing Green v. State, 89 So.3d 543, 554 (¶ 28) (Miss. 2012)). In McKenzie, the defense questioned a witness, Detective Ver-siga, about statements made to Detective Versiga regarding the victim, and the State objected as to relevance. Id. at (¶ 7). The trial court sustained the State’s objection. Id. On appeal, the supreme court found that the defense failed to make a proffer of Detective Versiga’s proposed testimony; thus, the issue had “not been properly preserved for appeal, and it is procedurally barred.” Id. at (¶ 9). Bailey acknowledges that such a proffer is necessary for the appellate court to discern whether precluding the testimony was prejudicial to the defense; however, Bailey maintains that such a proffer would have been superfluous because counsel’s opening statement fully explained what Bailey’s testimony would have been and how crucial it was to establishing his good-faith defense.

¶ 16. Regarding the hearsay objections sustained by the trial court herein, the record reflects the following conversation ensued:

Bailey: The conversation started off, “Man, what you doing?” I said, “Well”—
Prosecutor: Objection as to hearsay, your Honor.
The Court: Sustained. Mr. Bailey, you can’t say what he said. As a result of your conversation with him, what, if anything did you do?
Bailey: (No response).

Bailey then testified that Walters gave him a key to a gate on Nelson’s property. When he was asked what the key was for, the following occurred:

Defense counsel: What was the key for?
Bailey: He told me about—
Prosecutor: Objection as to hearsay.
Bailey:—saying—the key was for—
The Court: Hang on just a second. So you met him to get a key?
Bailey: Yes.
The Court: Did you meet him and did you get a key?
Bailey: Yes.
The Court: What, if anything, then did you do with that key?
Bailey: I went and I opened the lock up.
The Court:Go ahead.

¶ 17. The State argues that although the hearsay evidence was excluded, Bailey was still able to present his theory of defense. See Ames v. State, 17 So.3d 130, 139 (¶ 41) (Miss. Ct. App. 2009) (finding no error in the trial court’s decision allowing the defendant to testify regarding events as long as he avoided hearsay statements). The record reflects that Bailey testified that Walters had approached him the night before he went to Nelson’s land and said he had a job for Bailey on Nelson’s land and would call him later to give him the details. Bailey said he met Walters the next morning and was given a key to unlock the gate to Nelson’s property. Bailey testified he was on Nelson’s property Monday morning because Walters said the job consisted of working on that property, at that time. Bailey explained that when Nelson allegedly confronted him, Bailey thought Nelson was the job foreman and told Nelson he was working for Walters. Bailey told the jury he did not know that Walters did not have permission to be on Nelson’s land.

¶ 18. The record reflects that Bailey submitted jury instruction D-2 setting out his theory of defense. Instruction D-2 stated:

Evidence has been presented that the Defendant, Arnold Bailey, acted in ignorance or on mistaken belief of fact. “Ignorance” or “Mistake of Fact” is a defense to the commission of a crime if:
1. The mistaken belief is honestly held, and
2. The belief is of such a nature that the conduct would have been lawful and proper, had the facts been as they were believed to be, and
3. The mistaken belief is not the result of the negligence or fault of the defendant.
If the State has failed to prove from the evidence in this case beyond a reasonable doubt that the Defendant, Arnold Bailey, acted with knowledge of the true facts or was negligent in determining the true facts, then you shall find the Defendant, Arnold Bailey, not guilty.

¶ 19. At the jury-instruction conference, the trial court found this instruction inappropriate. The trial court explained:

[HJonestly, I thought that that was going to be the defense. But from what I heard from the Defense was that this Defendant didn’t take anything or participate in taking anything from that property so I don’t really see how this instruction would apply. Do you understand what I’m saying? ... If he said that he took it at Doug Walters’[s] insistence or based upon his word, then perhaps, but—

Bailey’s counsel agreed to withdraw the instruction. Bailey argues that the trial court was mistaken in believing that Bailey could only claim a good-faith defense if he admitted to acting -with Walters to take the property. Bailey claims that the since the trial court erroneously precluded him and Grant from testifying as to what Walters told Bailey, no evidentiary basis existed to give the good-faith instruction, and as a result, defense counsel was forced to withdraw it.

¶ 20. However, the record reflects that the trial court did allow jury instruction 4, which provided:

Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.
In other words, you may not find Arnold Bailey guilty unless you And beyond a reasonable doubt ... that Arnold Bailey voluntarily participated in [the] commission [of the crime] with the intent to violate the law.

This jury instruction thus required the jury to determine whether Bailey intentionally participated or associated himself with Walters to bring about the crime. We find that this instruction indeed sets forth Bailey’s theory of defense. Since Bailey’s theory of defense was covered in jury instruction 4, which was submitted to the jury before deliberation, we cannot say that Bailey’s counsel was deficient in withdrawing defense instruction D-2. See Chamberlin v. State, 55 So.3d 1046, 1050 (¶ 5) (Miss. 2010) (We must “strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. In other words, defense counsel is presumed competent.”).

II. Insufficient Evidence

¶21. Bailey next argues that the State failed to show that Bailey met all of the elements necessary to convict him for grand larceny. Bailey specifically asserts that the State presented no proof that he participated in helping Walters sell or steal any property belonging to Nelson. As a result, Bailey asserts that his motion for a directed verdict and his proposed peremptory jury instruction were erroneously denied.

¶22. “A motion for a directed verdict and a request for a peremptory instruction challenge the legal sufficiency of the evidence supporting a conviction.” Smith v. State, 180 So.3d 771, 773 (¶ 10) (Miss. Ct. App. 2015). On appeal, we review “a challenge to the sufficiency of the evidence in the light most favorable to the State, giving the State the benefit of all favorable inferences reasonably drawn from the evidence.” Henley v. State, 136 So.3d 413, 415 (¶ 8) (Miss. 2014). We must reverse and render “[i]f the facts and inferences so considered point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guflty[.]” Id. at 415-16 (¶ 8).

¶ 23. The State maintains that it proved each element of grand larceny at Bailey’s trial, and reiterated each proven element in its closing argument. The version of section 97-17-41 in effect in 2012 provided:

[E]very person who shall be convicted of taking and carrying away, feloniously, the personal property of another of the value of Five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny and shall be imprisoned ... for term not exceeding ten (10) years[.]

The trial court submitted jury instruction 5 to the jury, which listed the elements of grand larceny as follows: (1) willfully, unlawfully, and feloniously (2) taking, stealing, and carrying away (3) metal scaffolding, valued at $500 or more, (4) from the personal property of Nelson (5) with the intent to permanently deprive the owner of his personal property.

¶24. Our review of the record shows that the State presented the transaction ticket into evidence, establishing that the scrap value of the metal scaffolding was over the requisite $500. The transaction ticket provided showed the value of the metal was $722.40. Nelson testified at trial that the metal scaffolding belonged to him. Nelson stated that after Bailey was caught on his land, he looked around his property and realized a significant amount of his scaffolding and other steel items were missing. Nelson then identified the scaffolding in the General Recycling scale photo as the specific type of bridge scaffolding he owned and was missing. Nelson further testified he is the only person in the area who uses that kind of scaffolding. Lam-bright, who purchased the stolen scrap metal from Walters, testified that the metal scaffolding was scrapped for money and quickly melted down; as a result, Nelson was permanently deprived of his property. Finally, the State argued that Bailey aided and abetted Walters, or acted in concert with Walters, to meet the element of taking and carrying away, feloniously. During closing argument, the State explained to the jury that “the law recognizes that ordinarily anything a person can do for himself may also be accomplished by that person through the direction of another person or his agent by acting in concert under the direction of another person or persons in [a] joint effort or enterprise.” The State reasoned that although Bailey did not remove the property from Nelson’s land, he was using a forklift to move Nelson’s equipment around, therefore presumably working with Walters or under his direction to gather and remove Nelson’s property.

¶ 25. The State also argued that Bailey was an active participant in the crime, and not a knowing spectator or innocent party, explaining that a knowing spectator or innocent party would not have lied to two separate law-enforcement officers about his purpose on Nelson’s land.

¶ 26. Upon our review of the record, we find that the State presented credible evidence at trial such that a reasonable juror could find beyond a reasonable doubt that Bailey was guilty of grand larceny. See Smith, 180 So.3d at 775 (¶ 16). This issue lacks merit.

III. Circumstantial-Evidence Jury Instruction

¶ 27. Bailey claims that the trial court erred in refusing to allow his circumstantial-evidence jury instruction. Bailey argues that the present case constituted a circumstantial-evidence case since he did not confess to the crime, nor were there any eyewitnesses to the crime. Thus, the State bore the burden of proving Bailey’s guilt “not only beyond a reasonable doubt, but to the exclusion of every reasonable hypothesis consistent with innocence.”

¶28. We recognize that “jury instructions generally are within the discretion of the trial court, so the standard of review for the denial of jury instructions is abuse of discretion.” Thomas v. State, 75 So.3d 1112, 1114 (¶ 9) (Miss. Ct. App. 2011) (citing Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss. 2010)). In reviewing the jury instructions given at trial, the instructions “must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. at 1115 (¶ 9). We further acknowledge that “a defendant is entitled to have every legal defense he asserts to be submitted as a factual issue for determination by the jury under proper instruction of the court.” Id.

¶ 29. At trial, Bailey offered a jury instruction (D-6), which stated:

The Court instructs the jury that if the State has relied on circumstantial evidence to establish its theory of guilt of the Defendant, then the evidence for the State must be so strong as to establish the guilty [sic] of the Defendant, not only beyond a reasonable doubt, but the evidence must be so strong as to exclude every other reasonable hypothesis other than that of guilt.

Although the trial court cautioned that “only by the narrowest of margins do I believe that there is some direct proof of the taking,” the trial court refused this instruction. We recognize that the Mississippi Supreme Court has set forth that “[a] circumstantial evidence case is one where the State is without a confession and wholly without eyewitnesses to the gravamen of the offense charged.” Garrett v. State, 921 So.2d 288, 291 (¶ 17) (Miss. 2006) (internal quotation marks omitted). The supreme court further explained that “where the accused has made an admission on an element of the offense, it is no longer a circumstantial evidence case.” Id. (citing Lynch v. State, 877 So.2d 1254, 1256 (Miss. 2004)). “The defendant is not entitled to a circumstantial evidence instruction where both circumstantial and direct evidence are admitted at trial.” Id. at 292 (¶ 17).

¶ 30. The record reflects that this case was not a purely circumstantial case. Eyewitnesses to the offense testified at trial, as follows: Officer Adams testified that Bailey told him he was moving some equipment off his son’s property; Investigator Turner testified he saw Bailey on the property and the rented forklift was stopped but still running by Bailey’s truck; and Nelson testified he drove onto his property and saw Bailey driving a forklift and moving a piece of equipment to a “sort of a staging area ... to load stuff on trailers.” Bailey also testified that he had been on Nelson’s property that morning.

¶ 31. After our review, we find no abuse of discretion by the trial court in denying Bailey’s proposed circumstantial-evidence jury instruction. See Thomas, 75 So.3d at 1114 (¶ 9).

IV. Closing Argument

¶ 32. Bailey argues that during the State’s closing argument, the prosecutor committed plain error by improperly expressing his own personal belief in Bailey’s guilt. During the State’s closing, the prosecutor stated: “I believe this defendant has insulted your common sense and that we have proven, beyond a reasonable doubt, that this defendant was involved in this and that he is guilty of the crimes charged.” Bailey maintains that “[a] prosecutor is forbidden from interjecting his personal beliefs regarding the veracity of witnesses during closing argument.” Foster v. State, 639 So.2d 1263, 1288 (Miss. 1994).

¶ 33. Bailey acknowledges that his counsel failed to object to this statement at trial, but he argues that in Foster, the supreme court applied the plain-error standard because the defendant failed to object. Id. at 1288-89; see also Matthews v. State, 132 So.3d 646, 653 (¶ 30) (Miss. Ct. App. 2014) (failure to object to prosecution’s statements during closing argument constitutes procedural bar). However, Bailey argues that if the failure to object to this statement deprived Bailey of his constitutional rights, then it is ineffective assistance of counsel to fail to object. We again state “that ineffective-assistance-of-counsel claims ordinarily are more appropriately brought during post-conviction proceedings, as [the appellate court] on direct appeal is limited to the trial-court record in its review of the claim.” Galloway, 122 So.3d at 638 (¶ 52).

¶34. In Matthews, 132 So.3d at 654 (¶ 33), we explained that “[t]he prosecutor’s boundaries in closing arguments are wide—extending not only to the facts presented in evidence, but also to deduction and conclusions he may reasonably draw therefrom, and the application of the law to the facts.” (Internal quotation marks omitted). “As applied to closing arguments, plain error may only be found when the substance of the statement is out of bounds for closing arguments.” Mitchell v. State, 21 So.3d 633, 642 (¶ 31) (Miss. Ct. App. 2008) (internal quotation marks omitted) (citing Boyd v. State, 977 So.2d 329, 337 (¶ 34) (Miss. 2008)). In Mitchell, this Court recognized that

the supreme court has alluded to what is “out of bounds” as follows:
Attorneys are allowed a wide latitude in arguing their cases to the jury. However, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.

Id. citing Dampier v. State, 973 So.2d 221, 235 (¶ 39) (Miss. 2008)).

¶ 35. Since Bailey’s counsel failed to object to the prosecutor’s statement at trial, Bailey must demonstrate that a constitutional right was violated as a result of the State’s comments in order to overcome the procedural bar. See id. at (¶32). Stated differently, in considering the prosecutor’s remarks in light of the entire trial, we must determine if the comment rises “to the level of prosecutorial misconduct so extreme as to violate [Bailey’s] constitutional right to a fair trial.” Matthews, 132 So.3d at 654 (¶ 34).

¶ 36. The State argues that the prosecutor’s statement at issue does not reflect his personal opinion on the merits of the case; rather, the statement speaks directly to the quality of the evidence against Bailey. We have held that “[e]xcept to the extent the prosecutor bases any opinion on the evidence in the ease, he may not express his personal opinion on the merits of the case or the credibility of witnesses.” Stokes v. State, 141 So.3d 421, 427 (¶24) (Miss. Ct. App. 2013). The State maintains that the prosecutor’s statement was based upon the evidence and facts presented at trial and was not inflammatory or highly prejudicial and did not unduly prejudice the jury.

¶37. We have reviewed the record from Bailey’s trial in its entirety to determine if the prosecutor’s comment “I believe this defendant has insulted your common sense and that we have proven, beyond a reasonable doubt, that this defendant was involved in this and that he is guilty of the crimes charged” resulted in a miscarriage of justice. Based on guidance from the supreme court in Dampier, 973 So.2d at 235 (¶ 39), we cannot say that the prosecutor’s statement was out of bounds. As stated, “plain error may only be found when the substance of the statement is out of bounds for closing arguments.” Mitchell, 21 So.3d at 642 (¶ 31). Furthermore, the record reflects that several witnesses provided testimony offering evidence supporting Bailey’s guilt. See Stokes, 141 So.3d at 428 (¶ 28). Accordingly, we find that the prosecutor’s statement failed to prejudicially affect Bailey’s constitutional right to a fair trial.

Y. Cumulative Error

¶ 38. Finally, Bailey claims that his conviction should be reversed on the basis of cumulative error, the effect of which deprived him of a fair trial.

¶ 39. The supreme court has explained that “[t]he cumulative error doctrine stems from the doctrine of harmless error which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss. 2007) (citing Ross v. State, 954 So. 2d 968, 1018 (¶ 138) (Miss. 2007)). The supreme court clarified that “where there is no error in part, there can be no reversible error to the whole.” Id. Since we have found no errors regarding Bailey’s conviction, we likewise find no cumulative error. This issue is without merit.

¶ 40. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF GRAND LARCENY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS SUSPENDED, FOLLOWED BY FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . The trial court sentenced Bailey to an additional term of five years on supervised probation and to pay costs and fees of $1,931,50, and $13,000 in restitution.

      . Bailey was indicted with a codefendant, Walters. Bailey and Walters were tried separately. Walters is also appealing his conviction in a separate appeal.

      . Walters did not testify at Bailey’s trial.

      . Bailey argues that if this Court should conclude that defense counsel should have made a formal proffer of Bailey’s and Grant’s testimony about what Walters said, then it was ineffective assistance of counsel to fail to do so and Bailey’s conviction should be vacated. The supreme court has “note[d] that ineffective-assistance-of-counsel claims ordinarily are more appropriately brought during post-conviction proceedings, as this Court on direct appeal is limited to the trial-court record in its review of the claim." Galloway v. State, 122 So.3d 614, 638 (¶ 52) (Miss. 2013). The supreme court explained that ”[i]f we find that the record before us contains insufficient information to address the claim, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief.” Id. However, appellate courts “may address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record." Id.


author: LEE, C.J.,

text:
    Mary E. STEVENS, Appellant v. Ginger GRISSOM, Appellee
    NO. 2016-CA-00315-COA
    Court of Appeals of Mississippi.
    03/21/2017

      ATTORNEY FOR APPELLANT: GLENN S. SWARTZFAGER
    ATTORNEY FOR APPELLEE: ROBERT D. JONES
    BEFORE LEE, C.J./ISHEE AND GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this appeal, we must determine whether the circuit court properly dismissed Mary E. Stevens’s complaint for replevin. Finding no error, we affirm.

PROCEDURAL HISTORY

¶2. Mary’s son, Michael Stevens, was married to Ginger Grissom for fifteen years. The couple’s divorce was finalized in March 2014. On July 18, 2014, Mary filed a complaint for replevin in the Lauderdale County County Court against Ginger, claiming that Ginger was in wrongful possession of Mary’s personal property. Ginger filed an answer and then a motion to dismiss. After a hearing, the county court, finding that Mary failed to meet her burden of proof, dismissed Mary’s complaint with prejudice.

¶ 8. Mary then appealed to the Lauder-dale County Circuit Court. The circuit court affirmed the county court’s decision. Mary now appeals, asserting that the circuit court erred in affirming the dismissal of her replevin action.

FACTS

¶ 4. The property at issue included two rings, one cameo necklace, and one carved wooden dog figurine. In her complaint, Mary listed the value of the items as follows: a 1.31 carat diamond ring valued at $9,097.11; a .75 carat diamond ring valued at $6,013.04; a large cameo valued at $450; and the dog figurine valued at $200. Mary had both rings appraised, and the appraisals were attached to the complaint. The appraisals were both dated April 21, 2004.

¶ 5. Mary contended she gave Michael the two rings and the cameo for safekeeping. Ginger contended Mary gave her the rings and the cameo as a Christmas present early in the couple’s marriage. And that Mary included appraisals for both rings and the cameo. Ginger testified that the figurine had belonged to Michael, and they displayed it in the marital home. Ginger also testified that Michael and Mary removed these items, among others, from the marital home after Ginger and Michael separated. The chancellor presiding over Michael and Ginger’s divorce found Michael in contempt for various reasons, one of which was removing the rings, the cameo, and the figurine from the marital home. The chancellor ordered those items returned to Ginger. And Ginger was awarded these items in the final judgment of divorce. Both the order finding Michael in contempt and the final judgment of divorce were entered into evidence during the hearing.

STANDARD OF REVIEW

¶6. “The county court was the fact finder, and the circuit court, as well as this Court, are bound by the judgment of the county court if supported by substantial evidence and not manifestly wrong.” Patel v. Telerent Leasing Corp., 574 So.2d 3, 6 (Miss. 1990) (citation omitted). And “the judgment of a circuit or county court in a non-jury trial is entitled to the same deference on appeal as a chancery court decree.” Id. (citation omitted).

¶ 7. Furthermore, we review the grant or denial of a motion to dismiss under the familiar substantial-evidence/manifest-error standard. Crowell v. Butts, 153 So.3d 684, 687 (¶ 6) (Miss. 2014).

DISCUSSION

¶ 8. Replevin actions are governed by statute. Lacoste v. Sys. & Servs. Techs. Inc., 126 So.3d 111, 112 (¶ 1) (Miss. Ct. App. 2013). Mary filed her replevin action pursuant to Mississippi Code Annotated section 11-37-101 (Rev. 2012). To maintain her action, Mary had to establish the following: (1) a description of the personal property; (2) the value of the property; (3) her entitlement to immediate possession of the property; (4) the property was in Ginger’s possession; and (5) Ginger had wrongfully detained the property. Id.

¶ 9. The county court found that Mary failed to adequately prove the value of the items and failed to prove Ginger had wrongfully possessed the items. The circuit court agreed with the county court’s decision. In her appeal, Mary argues that she did submit sufficient evidence of the value of the items she alleged Ginger wrongfully possessed. Mary did submit two appraisals estimating the value of the rings at $9,097.11 and $6,013.04. The appraisals were not current; both were dated April 21, 2004, and had an expiration date of April 21, 2006. In response, Ginger testified that a local jeweler estimated she could sell one of the rings for $250. Even though the appraisal was not current, Mary did put on proof of the value of the rings. Regardless, the circuit court determined that Ginger had not wrongfully retained the property. Ginger and Michael had entered into a property-settlement agreement, stating that the parties were each entitled to keep the property in their possession. This included the items subject to the replevin action, all of which were in Ginger’s possession.

¶ 10. Ultimately, the county court and the circuit court found Ginger’s testimony to be more credible than Mary’s testimony. “[W]hen a trial judge, rather than a jury, is the finder of fact, he has the full authority to determine the credibility of witnesses, just as is the jury’s duty in a jury trial.” Murphree v. W.W. Tramp., 878 So.2d 241, 243 (¶ 7) (Miss. Ct. App. 2004) (citation omitted). We find substantial evidence to support the circuit court’s decision; thus, we affirm.

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

IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. GRIFFIS, P.J., NOT PARTICIPATING.

      . The chancellor noted that Mary had asked Michael to remove some items from the marital home.

      . Ginger testified that when Michael returned the items, the appraisals were not included with the jewelry. And a gold chain that had been given to Ginger with the cameo was not returned.

      .The contempt order was dated February 13, 2012. The final judgment of divorce was dated March 26, 2014, and included a property-settlement agreement.