author: PIERCE, Justice,

text:
    JOURDAN RIVER ESTATES, LLC, and Jourdan River Resort and Yacht Club, LLC v. Scott M. FAVRE, Cindy Favre and Jefferson Parker.
    No. 2013-IA-01139-SCT.
    Supreme Court of Mississippi.
    June 25, 2015.

      George W. Healy, IV, Reed Stanton Bennett, attorneys for appellants.

      Robert B. Wiygul, attorney for appellees.
    Before DICKINSON, P.J., PIERCE and COLEMAN, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Plaintiffs Jourdan Rivers Estates, LLC (JRE) and Jourdan River Resort and Yacht Club (Yacht Club), filed suit for damages in December 2011 against Defendants Scott Favre, Cindy Favre, Jefferson Parker, and CB Partners, LLC d/b/a Cinque Bambini. CB Partners, LLC d/b/a Cinque Bambini was later dismissed from the action without prejudice. The complaint alleged multiple claims against Defendants, including slander of title; slander and/or defamation; trespass; nuisance; tortious interference with use of property; tortious interference with contractual relationships; harassment and intimidation of plaintiffs’ agents and intentional infliction of emotional distress upon plaintiffs’ agents; assault upon plaintiffs’ agents; willful destruction of plaintiffs’ property; negligence; gross, willful, and wanton negligence; malicious prosecution; unjust enrichment (inasmuch as defendants’ actions are believed to be motivated, in part, by a desire to increase the value of their own property by using improper means to limit the use of plaintiffs’ property); false imprisonment; and any other applicable theory of law giving rise to a cause of action.

¶ 2. Defendants subsequently filed a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. The circuit court granted the motion in part and denied it in part. The circuit court dismissed all of Yacht Club’s claims in relation to the claim(s) that Defendants made false representations to the Hancock County Board of Supervisors and/or Hancock County employees, finding that such allegations fell under the Noerr-Pennington doctrine, expressly adopted by this Court in Harrah’s Vicksburg Corp. v. Pennebaker, 812 So.2d 163, 171 (Miss.2001) (citing Video Int'l Prod., Inc. v. Warner-Amex Cable Commc’ns, Inc., 858 F.2d 1075, 1082 (5th Cir.1988)). The circuit court dismissed JRE’s claims of slander of title, slander and/or defamation; harassment; assault; and false imprisonment and intentional infliction of emotional distress because each claim constituted an intentional tort and was barred under the statute of limitations. The circuit court denied Defendants’ motion to dismiss as to JRE’s claims for trespass; nuisance; tortious interference with use of property; tortious interference with contractual relationships; willful destruction of property; negligence; gross, willful, and wanton negligence; malicious prosecution; and unjust enrichment.

¶ 3. Plaintiffs thereafter petitioned for an interlocutory appeal, which this Court granted. Because we find that Defendants’ Rule 12(b)(6) motion should have been converted into a motion for summary judgment, as provided in Rule 56 of the Mississippi Rules of Civil Procedure, we reverse the circuit court’s order granting the Rule 12(b)(6) motion and remand for further proceedings.

DISCUSSION

¶4. A motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted is reviewed de novo, as it raises an issue of law. Cook v. Brown, 909 So.2d 1075, 1077-78 (Miss. 2005). “[A] Rule 12(b)(6) motion tests the legal sufficiency of the complaint.” Id. at 1078. Our review is limited to the face of the pleading. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1211 (Miss.2001). The allegations in the complaint must be accepted as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff -will be unable to prove any set of facts in support of his claim. Rose v. Tullos, 994 So.2d 734, 737 (Miss.2008) (citing Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006)). The appellate court need “not defer to the trial court’s ruling.” Id. (quoting Ralph Walker, 926 So.2d at 893). “In order to affirm an order granting dismissal on a Rule 12(b)(6) motion, ... there must be no set of facts that would allow the plaintiff to prevail.” J.B. Hunt Transp., Inc. v. Forrest Gen. Hosp., 34 So.3d 1171, 1173 (Miss.2010) (quoting Wilbourn v. Equitable Life Assurance Soc’y of the U.S., 998 So.2d 430, 435 (Miss.2008)). Also, Mississippi is a “notice-pleadings” state, which means:

[UJnder our rules, [the plaintiff] is not required to plead the specific wrongful conduct. At the pleading stage, he is required only to place [the defendant] on reasonable notice of the claims against it and to demonstrate that he has alleged a recognized cause of action upon which, under some set of facts, he might prevail.

Children’s Med. Grp., P.A. v. Phillips, 940 So.2d 931, 934 (Miss.2006).

¶ 5. When presented with a Rule 12(b)(6) motion, the only way for the trial court to consider evidence outside the pleadings is to convert the Rule 12(b)(6) motion into a motion for summary judgment. Williams v. Mueller Copper Tube Co., Inc., 149 So.3d 527, 529 (Miss.Ct.App. 2014). Rule 12(c) provides in relevant part that “[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.... ” Whenever a trial judge considers matters outside the pleadings, the Rule 12(b)(6) motion to dismiss must be converted into one for summary judgment, and the judge must give all parties ten days’ notice that he is converting the motion. Delta MK, LLC v. Miss. Transp. Comm’n, 57 So.3d 1284, 1289 (Miss.2011). “Regardless of how baseless a plaintiffs claim appears to the trial court, our rules require that she be given 10 days notice once a motion to dismiss is converted into a motion for summary judgment.” Id. (quoting Jones v. Regency Toyota, Inc., 798 So.2d 474, 476 (Miss. 2001)).

¶ 6. Here, in considering the Rule 12(b)(6) motion, the circuit court did a skilled job in addressing and applying Mississippi law to each individual cause of action pleaded by Plaintiffs in this case. However, as demonstrated by the Rule 12(b)(6) motion hearing held in this matter, numerous facts were presented to the circuit court that existed outside the pleadings. Accordingly, we find that Defendants’ Rule 12(b)(6) motion should have been converted into a motion for summary judgment, as provided by Rule 56.

CONCLUSION

¶ 7. We reverse the circuit court’s grant of Defendants’ Rule 12(b)(6) motion and remand the matter for further proceedings consistent with this opinion.

¶ 8. REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: WALLER, Chief Justice, KITCHENS, Justice,

license: Public Domain

text:
    Randy WILLIAMS, Gary Mathis, Larry James Mitchell, Rayford James Williams, Terry T. Roberts, Earnest Weathersby, Charles Gatlin, Ava C. Fox, Curtis Harville, Willie Ben Williams, Jr., Chester Gregory Hopson, Vincent Jerod Holloway, James A. Griggs, Demetrius R. Givens, Willie James Marshall, Curtis Lee Hill and Larry O’Neal Williams v. CLARK SAND COMPANY, INC.
    No. 2014-CA-00579-SCT.
    Supreme Court of Mississippi.
    Oct. 1, 2015.
    Rehearing Denied Jan. 7, 2016.

      David Neil McCarty, R. Allen Smith, Jr., Timothy W. Porter, Patrick Malouf, John T. Givens, attorneys for appellants.
    Fred Krutz, III, Daniel J. Mulholland, Colleen S. Welch, Edwin S. Gault, Jr., attorneys for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. This is a latent-injury silicosis case filed against a Florida corporation that was dissolved. This appeal presents the questions of whether the Florida corporate-survival statute applies to a Mississippi plaintiff, or whether the discovery rule for latent injuries permits claims to be brought against the foreign corporation after dissolution.

¶ 2. At common law, when a corporation dissolved, it no longer existed, and it could not be sued. But because of the harshness of this rule, Florida, like most states, has adopted a corporate-survival statute that allows plaintiffs to bring suit against a Florida corporation for up to four years after dissolution. This rule applies to claims that were unknown to the corporation at the time of dissolution. Here, sixteen plaintiffs sued Clark Sand Company, Inc., a Florida corporation, more than four years after the corporation’s dissolution. The circuit court judge therefore sustained Clark Sand’s motion for summary judgment. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On June 9, 2008, Clark Sand, a Florida corporation, filed its Articles of Dissolution and Notice of Corporate Dissolution. The Florida Secretary of State posted the notice of dissolution on its website. At that time, the claims of Randy Williams and the other sixteen plaintiffs in this suit were unknown to Clark Sand. More than four years later, in 2013, Williams sued Clark Sand in the Circuit Court of Jackson County. In its answer to the complaint, Clark Sand argued the claims were barred under Florida’s corporate-survival statute, Florida Statutes Section 607.1407. Subsequently, Clark Sand filed a motion for summary judgment on this ground, which the trial court sustained.

¶4. Williams now appeals, arguing the trial court erred in granting summary judgment for three reasons. First, Williams claims the Florida law is a statute of limitations, and under the principles of conflicts of law, the Mississippi statute of limitations and discovery rule should apply. Second, if the Court finds the Florida statute to be substantive and not procedural, Mississippi law still should apply because the “center of gravity” of the suit was in Mississippi. And last, Williams claims Clark Sand failed to follow Florida Statutes Section 607.1406 on a number of other occasions, which requires written notice to be sent to known claimants. Therefore Clark Sand should not be allowed to invoke Florida Statute Section 607.1407, which relates to unknown claimants. All plaintiffs in the instant matter are unknown claimants. We restate the issues as follows:

I. Whether the Florida corporate-dissolution survival statute is a statute of limitations.
II. Whether the center-of-gravity test applies in this case.
III. Whether Clark Sand’s alleged failure to follow Florida law in regard to Section 607.1406 in pri- or suits affects the current case.

DISCUSSION

¶ 5, We review the grant of summary judgment de novo. MS Comp Choice, SIF v. Clark, Scott & Streetman, 981 So.2d 955, 959 (Miss.2008). “Summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Clark Sand Co. v. Kelly, 60 So.3d 149, 154 (Miss.2011) (quoting Miss. R. Civ. P. 56(c)).

I. Whether the Florida corporate-dissolution survival statute is a statute of limitations.

¶ 6. The first question before the Court is whether a corporate-survival statute is a statute of limitations. The answer is no. See Air Control Products, Inc. v. Perma-Stress, Inc., 189 So.2d 412, 414 (Fla. 1st Dist.Ct.App.1966) (finding predecessor to the statute at issue here was not a statute of limitations); Bahl v. Fernandina Contractors, Inc., 423 So.2d 964, 965 (Fla.Dist. Ct.App.1982); see also Keefe v. Glasford’s Enters., Inc., 248 Neb. 64, 68, 532 N.W.2d 626, 629 (1995) (discussing the reasoning for why corporate-survival statutes are not statutes of limitations). This is important here because the statute’s nature may raise a conflict-of-laws issue, which we discuss below. Here, the trial court found the survival statute was not a statute of limitations and determined that Florida law applied.

A. A dissolved corporation cannot be sued.

¶ 7. At common law, once a corporation was dissolved, it was dead in the eyes of the law and no claim could be maintained against it. Oklahoma Nat. Gas Co. v. State of Oklahoma, 273 U.S. 257, 259-60, 47 S.Ct. 391, 392, 71 L.Ed. 634 (1927); Theta Props. v. Ronci Realty Co., 814 A.2d 907, 910, 912 (R.I.2003) (“Raising the dead to sue them can prove as difficult with dissolved corporations as with other quondam life forms.”). To soften this harsh rule, many states have adopted corporate-survival statutes. Theta Props., 814 A.2d at 912; see also, e.g., Miss.Code Ann. § 79-4-14.07 (Rev.2013) (allowing claims to be brought for three years); Ind.Code Ann. § 23-1-15-7 (allowing claims to be brought for two years). These statutes temporarily extend the life of a corporation for the limited purposes of winding up and allowing parties to bring any claims they may have against the corporation. See Theta Props., 814 A.2d at 912. But once this period ends, the corporation expires and no longer may be sued. Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 129-30, 58 S.Ct. 125, 128, 82 L.Ed. 147 (1937) (providing that, once the prolongation period granted by a corporate survival statute ends, the corporation’s powers are terminated “for all time and for all purposes”); Keefe, 532 N.W.2d at 629.

¶ 8. The Florida statute at issue here is Section 607.1407. This statute, which tracks the Model Business Corporation Act Section 14.07, is a corporate-survival statute and is similar to the statutes adopted in numerous other jurisdictions. See, e.g., Miss.Code Ann. § 79-4-14.07 (Rev.2013) (identical to the Florida statute, save the time frame to bring suit in Mississippi is three years instead of four); Ga. Code Ann. § 14-2-1407; Mich. Comp. Laws Ann. § 450.1842a; Neb.Rev.Stat. § 21-20, 157; Ind.Code Ann. § 23-1-45-7.

¶ 9. The question of whether a corporate-survival statute is a statute of limitations has been considered by a number of courts, all of which have concluded that corporate-survival statutes are not statutes of limitation. See, e.g,, OXY USA Inc. v. Quintana Prod. Co., 79 So.3d 366, 382 (La.Ct.App.2011); Gomez v. Pasadena Health Care Mgmt., Inc., 246 S.W.3d 306, 315-13 (Tex.App.2008); Deere & Co. v. JPS Dev., Inc., 264 Ga.App. 672, 673, 592 S.E.2d 175, 177 (2003); Theta Props, v. Ronci Realty Co., 814 A.2d 907, 910, 912 (R.I.2003); Gilliam v. Hi-Temp Prods. Inc., 260 Mich.App. 98, 112, 677 N.W.2d 856, 867 (2003); State ex rel. Nat. Super Markets, Inc. v. Sweeney, 949 S.W.2d 289, 292 (Mo.Ct.App.1997); Keefe v. Glasford’s Enters., Inc., 248 Neb. 64, 68, 532 N.W.2d 626, 629 (1995); Swindle v. Big River Broad. Corp., 905 S.W.2d 565, 568 (Tenn. Ct.App.1995); Smith v. Halliburton Co., 118 N.M. 179, 879 P.2d 1198, 1202-03 (1994); Indiana Nat’l Bank v. Churchman, 564 N.E.2d 340, 344 (Ind.Ct.App. 1990); Davis v. St. Paul Fire & Marine Ins. Co., 727 F.Supp. 549, 551 (D.S.D. 1989); Williams v. United States, 674 F.Supp. 334, 337 (N.D.Fla.1987) (finding a predecessor statute to Section 607.1407 a survival statute and not a statute of limitations); see also Gillespie Cmty. Unit Sch. Dist. No. 7 v. Union Pac. R. Co., 2012 WL 7009965 (Ill.App.(4th) April 13, 2012), 2012 IL App (4th) 110142-U, ¶ 85 (not published in N.E.2d); 19 C.J.S. Corporations § 953 (2007) (discussing distinction between a survival statute, which extends the time a suit may be brought, and a statute of limitations, which cuts off the time stale during which claims may be pursued). This includes Florida courts finding this statute’s predecessor was not a statute of limitations. Bahl, 423 So.2d at 965 (finding predecessor statute was a “prolongation” statute that continued the corporation’s existence); see also Air Control Prods., Inc. v. Permar-Stress, Inc., 189 So.2d 412, 414 (Fla. 1st Dist.Ct.App.1966) (finding the statute “continued as a body corporate” in order to satisfy its liabilities); Williams v. United States, 674 F.Supp. 334, 336-37 (N.D.Fla.1987) (same).

¶ 10. Nevertheless, Williams claims the Florida survival statute is indeed a statute of limitations. In support, Williams points to a Senate staff analysis, which refers to the statute as a statute of limitations. Fla. Staff Analysis, S.B. 2718, Apr. 16, 2004. Williams also cites dicta in a New York federal district court opinion that referred to the statute’s predecessor as a statute of limitations. See Idylwoods Assocs. v. Mader Capital, Inc., 177 F.R.D. 136, 140 (W.D.N.Y.1997).

¶ 11. Clark Sand notes the Florida Senate Journal makes no reference to Section 607.1407 being a statute of limitations. Moreover, the Florida Supreme Court has held that a Senate staff analysis is but “one touchstone of the collective legislative will,” and is “not determinative of final legislative intent.” White v. State, 714 So.2d 440, 443 n. 5 (Fla.1998). Indeed, the language in the Senate staff analysis, in light of the overwhelming nationwide case-law to the contrary, is not persuasive, and we find that it is not indicative of the “final legislative intent.” Further, it is unlikely the Florida Legislature would diverge from all other states in this regard, especially considering the language was adopted from the Model Business Corporation Act.

¶ 12. Nor is Idylwoods Associates v. Mader Capital persuasive. That proceeding was on a motion seeking leave to amend a cross-claim. Idylwoods, 177 F.R.D. at 137. The trial court denied the motion on grounds other than the survival statute and then went on to note the claims also would be barred because they were brought after the time permitted by Florida’s corporate-dissolution statute. Id. at 139-40. In doing so, the trial court judge erroneously referred to the statute as a statute of limitations. This was dicta without any consideration of whether the corporate-dissolution statute was, in fact, a statute of limitations. Id. at 139-40.

¶ 13. In sum, we agree with our sister jurisdictions in finding corporate-survival statutes, specifically Florida Section 607.1407, are not statutes of limitation. See OXY USA Inc., 79 So.3d at 382; Gomez, 246 S.W.3d at 315-13; Deere & Co., 592 S.E.2d at 177; Theta Props., 814 A.2d at 912; Sweeney, 949 S.W.2d at 292; Keefe, 532 N.W.2d at 629; Swindle, 905 S.W.2d at 568; Smith, 879 P.2d at 1202-03; Churchman, 564 N.E.2d at 344; Davis, 727 F.Supp. at 551; Williams, 674 F.Supp. at 337. Furthermore, once a corporation is dead, ie., the survival-statute time period has lapsed, it no longer can be sued. Chicago Title & Trust Co., 302 U.S. at 129-30, 58 S.Ct. 125; Theta Props., 814 A.2d at 912. Accordingly, we affirm the trial court on this point.

B. Tort claims are claims.

¶ 14. Williams also claims that the survival statute does not apply to tort claims. Williams cites no authority in support of this argument. Indeed, one of the primary purposes of survival statutes like that of Florida is to allow claimants to bring suit against a dissolved corporation for a limited time. See Smith, 879 P.2d 1198; Model Bus. Corp. Act § 14.07 cmt. (amended 2005) (specifically mentioning the purpose of the rule is to permit lawsuits to be filed against dissolved corporations for a set number of years); 19 C.J.S. Corporations §§ 952, 953 (2007) (noting corporate-survival statutes exist, in part, to allow suits against dissolved corporations); see also Mejia v. Ruiz, 985 So.2d 1109, 1114 (Fla.Ct.App.2008) (applying Florida corporate-dissolution statute Section 607.1406 to a tort claim). This argument is without merit.

C. Corporate-survival statutes are constitutional.

¶ 15. Williams further argues that enforcing the Florida statute would violate his due process and equal protection rights. Williams says the Florida law results in different treatment of similarly situated plaintiffs who rely on Mississippi’s discovery rule. He claims that the Florida statute unconstitutionally permits one class of persons—those who discover their injuries and file within four years of dissolution—to maintain a suit, while preventing another class—those who do not discover their injuries in time to file within four years—from bringing a claim.

¶ 16. Williams cites no authority on point. Indeed, the U.S. Supreme Court and other courts considering this issue have ruled the other way. Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 128, 58 S.Ct. 125, 128, 82 L.Ed. 147 (1937) (“There is nothing in the Federal Constitution which operates to restrain a state from terminating absolutely and unconditionally the existence of a state-created corporation, if that be authorized by the statute under which the corporation has been organized.”); In re All Cases Against Sager Corp., 132 Ohio St.3d 5, 967 N.E.2d 1203, 1205 (2012), (“In conformity with constitutional requirements of due process and the Full Faith and Credit Clause, the law of the state of incorporation controls whether a corporation is amenable to suit.”); see also Oklahoma Nat. Gas Co. v. State of Okla., 273 U.S. 257, 259-60, 47 S.Ct. 391, 392, 71 L.Ed. 634 (1927) (noting no constitutional defects in finding dissolved corporations cease to be entities that can be sued and that “corporations exist for specific purposes, and only by legislative act, so that if the life of the corporation is to continue even only for litigating purposes it is necessary that there should be some statutory authority for the prolongation.”).

II. Whether the center-of-gravity test applies in this case.

¶ 17. The center-of-gravity analysis is a choice-of-laws mechanism that this Court uses to resolve conflicts of law. Mitchell v. Craft, 211 So.2d 509, 515 (Miss.1968) (“This doctrine is a rule whereby the court trying the action applies the law of the place which has the most significant relationship to the event and parties, or which, because of the relationship or contact with the event and parties, has the greatest concern with the specific issues with respect to the liabilities and rights of the parties to the litigation.” (citing 15A C.J.S. Conflict of Laws 8(2) (1967))); see also Zurich, 920 So.2d at 433; Restatement (Second) Conflict of Laws §§ 145, 146 (Am. Law Inst.1971). Here, Williams claims there is a conflict between Florida’s corporate-survival statute and Mississippi’s statute of limitations and discovery rule. Yet, the center-of-gravity test is inapplicable to the instant matter.

¶ 18. Where there is a conflict of laws, Mississippi follows the Restatement (Second) Conflict of Laws. Newman v. Newman, 558 So.2d 821, 823-24 (Miss. 1990). The Restatement (Second) Conflict of Laws provides in Section 299 that a corporation’s existence is determined by the laws of the state of incorporation. Restatement (Second) Conflict of Laws § 299 (Am. Law Inst.1971). The Florida statute at issue here terminates a corporation’s existence for purposes of unknown claims four years after its filing notice dissolution. Williams filed suit after Clark Sand ceased to exist under Florida law.

¶ 19. Mississippi will apply the substantive law of a foreign state where the other state’s law is not “offensive to the deeply ingrained or strongly felt public policy of the state.” Boardman v. United Servs. Auto. Ass’n, 470 So.2d 1024, 1038 (Miss.1985). Mississippi’s corporate-survival statute is identical to Florida’s, except Mississippi’s is slightly more restrictive, in that it extends the privilege to sue a dissolved corporation only for three years instead of four. Compare Miss.Code Ann. § 79-4-14.07, and Fla. Stat. Ann. § 607.1407. To state the obvious, applying a statute essentially identical to Mississippi’s own is not offensive to this State’s public policy. Indeed, Mississippi law holds that, where another state’s law creates a right of action and places limits on that action, it is not controlled by Mississippi’s statute of limitations. Louisville & Nashville R.R. Co. v. Dixon, 168 Miss. 14, 160 So. 811, 812-13 (1933).

¶ 20. Moreover, not only is the Florida corporate-survival statute not in conflict with Mississippi’s corporate-survival statute in this case, Williams does not assert that Mississippi’s statute of limitations conflicts with any actual Florida statute of limitations. Consequently, there is no conflict requiring application of the center-of-gravity test. See Mitchell, 211 So.2d at 515 (holding Mississippi applies the center-of-gravity (most substantial relationship) test to conflicts between substantive laws). To the extent that a conflict ostensibly does exist, the authorities point to application of Florida law. See, e.g., Louisville & Nashville R.R. Co. v. Dixon, 168 Miss. 14, 150 So. 811, 812-13 (1933); Newman, 558 So.2d at 823-24; Restatement (Second) Conflict of Laws § 299.

¶ 21. A recent Ohio Supreme Court decision is instructive. There, Ohio plaintiffs, like Williams here, argued the center-of-gravity test in Restatement (Second) Conflict of Laws Section 146 required the application of Ohio law to determine whether their claims were barred against an Illinois corporation for injuries allegedly occurring in Ohio. Sager, 967 N.E.2d at 1206. The plaintiffs, like Williams, claimed that under conflicts-of-law analysis, Ohio’s statute of limitations and discovery rule permitted suit against the Illinois corporation despite the running of Illinois’s five-year corporate-survival statute. Id.

¶ 22. Rejecting the plaintiffs argument, the Ohio court, citing Chicago Title and Oklahoma Natural Gas, held that the determination of whether a corporation is amenable to suit is controlled by the state of incorporation, regardless of the statute of limitations and discovery rule of the forum state. Sager, 967 N.E.2d at 1207-10 (“the law of the state of incorporation [applies] in deciding whether a dissolved corporation has capacity to be sued in a forum state.”). The court noted that, because a corporation’s existence is determined by the state of incorporation, its existence is a separate legal consideration from the statute of limitations. Id. at 1208-09. The court then noted numerous other jurisdictions reaching the same conclusion. Id. (citing Halliwell Assocs., Inc. v. C.E. Maguire Servs., Inc., 586 A.2d 530, 531-532 (R.I.1991) (“since Halliwell Associates is a Massachusetts corporation, Massachusetts law governs the capacity of a Massachusetts corporation or its shareholders to sue or be sued”); Velasquez v. Franz, 123 N.J. 498, 510, 589 A.2d 143 (1991) (“The choice-of-law question regarding a corporation’s capacity to be sued has been answered by reference to the laws of the state of incorporation since long before the rule’s incorporation into the federal rules of civil procedure”); Gassert v. Commercial Mechanisms, Inc., 277 N.W.2d 392, 393 (Minn.1979) (“We have held that the law of the state of incorporation applies to a dissolved corporation. Since it is undisputed that CMI is a Missouri corporation, the Missouri survival statute applies.”) (citation omitted); Casselman v. Denver Tramway Corp., 195 Colo. 241, 244, 577 P.2d 293 (1978) (“We hold that the question of whether a foreign corporation can be sued after dissolution depends upon the law of the state of incorporation”); Bazan v. Kux Mach. Co., 52 Wis.2d 325, 333, 190 N.W.2d 521 (1971) (“It is the rule that when a corporation becomes defunct by dissolution in the state of its creation, it is defunct in every other state unless such other state has also granted it a charter”)); Owens v. Allied Underwriters, 207 La. 437, 450, 21 So.2d 490 (1945) (“Since the life of the corporation has been terminated under the laws of Texas, it no longer has the capacity to be sued in Louisiana”); Chaplin v. Selznick, 293 N.Y. 529, 540, 58 N.E.2d 719 (1944) (the California survival statute “is entitled to recognition and enforcement by the courts of this State”); Meehl ex rel. Eagle Indem. Co. v. Barr Transfer Co., 305 Mich. 276, 283, 9 N.W.2d 540 (1943) (“There is no question but that the dissolution of a corporation is governed by the laws of the state granting its charter”); Floerchinger v. Sioux Falls Gas Co., 68 S.D. 543, 547, 5 N.W.2d 55 (1942) (applying New Jersey corporation law); Wettengel v. Robinson, 288 Pa. 362, 370, 136 A. 673 (1927) (“The Riverside Company being a West Virginia corporation, the law of that state governs the status and powers of the corporation and its directors after the surrender of its charter”).

¶23. A recent Michigan case made a similar finding. After noting that Michigan’s corporate-saving statute was not a statute of limitations, the Michigan Court of Appeals held that the savings statute applied to latent injuries discovered after the savings period expired. Gilliam, 677 N.W.2d at 866-69. The court noted that the intent of corporate-saving statutes is to bar unknown claims “ ‘that arise after the dissolution of the corporation , thus cutting off the possibility that the corporation’s potential liability could never be completely resolved.” Id. at 868 (quoting Freeman v. Hi Temp Prods., Inc., 229 Mich.App. 92, 96, 580 N.W.2d 918, 922 (1998)). Consequently, the Michigan court found asbestos-related claims discovered after the corporate-survival statute had expired were barred, despite the injuries being latent and undiscoverable before the dissolution became final. Id.

¶24. We find these cases persuasive. And, importantly, the above analysis comports with the requirements of the Full Faith and Credit Clause. Article IV, Section 1, of the United States Constitution requires Mississippi courts to accord “full faith and credit” to “the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const, art. IV, § 1. Accordingly, Florida’s organization and dissolution laws are entitled to enforcement in Mississippi. CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 89, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987) (“No principle of corporation law and practice is more firmly established than a State’s authority to regulate domestic corporations.”); Lilliquist v. Copes-Vulcan, Inc., 2011 PA Super. 102, 21 A.3d 1233, 1235 (2011) (applying Alabama survival statute to claims filed in Pennsylvania, finding the claims were filed after dissolution and thus barred). Consequently, we affirm the trial court on this issue.

III. Whether Clark Sand’s alleged failure to follow Florida law in regard to Section 607.1406 in pri- or suits affects the current case.

¶ 25. Florida Statute 607.1406 provides “The dissolved corporation or successor entity shall deliver to each of its known claimants written notice of the dissolution at any time after ité effective date.” Fla. Stat. Ann. § 607.1406(2). Williams’s attorneys claim they had forty to fifty known claims pending against Clark Sand when the corporation filed for dissolution, and that Clark Sand never sent the law firms notice of dissolution. As a result, the law firms allege they did not expedite filing the current suits. They claim sixteen of the seventeen suits potentially could have been filed before the cutoff date, had they known of the dissolution.

¶ 26. Williams relies on Mejia v. Ruiz, 985 So.2d 1109 (Fla.3d Dist.Ct.App.2008). There, the Florida Court of Appeals for the Third District found that, where the shareholders and directors of a corporation defrauded a judgment creditor and failed to provide notice of their corporation’s dissolution as part of that fraud, they were not entitled to the benefits of dissolution. Id. at 1114. In other words, the shareholder’s wrongdoing prevented them from invoking the dissolution’s shield against lawsuits, See id. (“Shareholders and directors that follow the procedures set forth in section 607.1406 are given limited immunity. Conversely, those that ignore its dictates are not.”).

¶27. To be clear, the notice requirements of Section 607.1406 do not apply to any of the current plaintiffs. It also is not disputed that the notice of dissolution relevant to unknown claimants was posted on the Florida Secretary of State’s website upon Clark Sand’s filing. Williams’s argument is that Clark Sand may have withheld actual notice intentionally to these law firms in an effort to defraud or somehow hinder subsequent plaintiffs represented by these law firms. Williams does not explain, however, why the law firms were entitled to notice, as opposed to their clients, but Clark Sand never objected to this assertion. Therefore, we give Williams the benefit of the doubt that the lawyers were entitled to notice.

¶ 28. The trial court found no evidence that Clark Sand was trying to perpetrate a fraud or to hinder these plaintiffs. Indeed, no evidence has been presented showing that Clark Sand failed to provide notice to any known claimants for an improper purpose. However, Williams’s attorneys stated to the trial court that they never received notice of dissolution and requested leave to depose Clark Sand’s former owner in an effort to determine why they were never provided notice. Clark Sand did not deny they failed to provide notice to the attorneys. Nevertheless, the trial court found that the notice requirements of Section 607.1406 did not apply to the unknown plaintiffs, and that, because there was no evidence of fraud or intent to hinder subsequent unknown plaintiffs, Clark Sand was entitled to judgment.

¶ 29. In response to a motion for summary judgment, “parties may not simply rely on their pleadings, nor may they escape summary judgment by outlining what they might discover later.” Franklin Collection Serv., Inc. v. Kyle, 955 So.2d 284, 291 (Miss.2007). Importantly here, there is no evidence that Clark Sand withheld notice in an effort to defraud or hinder Williams. Williams’s attorneys essentially argued there may have been an improper purpose for withholding notice regarding known suits and then sought leave, ore tenus, to conduct further discovery. In effect, they merely “outlin[ed] what they might discover later.” See Kyle, 955 So.2d at 291.

¶ 30. Accordingly, we find that the trial court correctly sustained Clark Sand’s motion for summary judgment regarding this issue. Under Mejia, a Florida corporation may not be entitled to shield itself from liability where the corporation’s dissolution is employed in an effort to defraud or hinder claimants. But here, Williams’s attorneys failed to support their allegations that Clark Sand withheld notice of the corporation’s dissolution in other suits in order to perpetrate a fraud or hinder Williams. Moreover, Clark Sand complied with the notice requirements to unknown claimants, which applies here. As a result, the judgment of trial court is affirmed.

CONCLUSION

¶ 31. The Florida corporate-dissolution and survival statute applies in this case. Williams failed to file his suit prior to Clark Sand’s dissolution. Therefore, his claim is barred. Additionally, Williams failed to support his allegations of potential fraud or hindrance. The Circuit Court of Jackson County therefore properly granted summary judgment in favor of Clark Sand, and that judgment is affirmed.

¶ 32. AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

KITCHENS, Justice,

dissenting:

¶ 33. Because I would reverse the trial court’s grant of summary judgment to Clark Sand Company, Inc. (Clark Sand), I respectfully dissent.

¶ 34. Florida statutory law provides that unknown claims against a dissolved corporation .are “barred unless the claimant commences a proceeding to enforce the claim against the dissolved corporation within 4 years after the date of filing the notice with the Department of State or the date of the second consecutive weekly publication .... ” Fla. Stat. Ann. § 607.1407. Mississippi statutory law provides that unknown claims against dissolved corporations are “barred unless the claimant commences a proceeding to enforce the claim against the dissolved corporation within the lesser of three (3) years after the publication date of the newspaper notice, or any other applicable limitations period established by applicable law .... ” Miss. Code Ann. § 79-4-14.07(c) (Rev.2013).

¶ 35. The majority is correct in finding that the Florida corporate-survival statute is not in conflict with Mississippi’s corporate-survival statute. See Zurich American Ins. Co. v. Goodwin, 920 So.2d 427, 432 (Miss.2006) (“Choice of law analysis arises only when there is a true conflict between the laws of two states, each having an interest in the litigation.”) Williams asserts that the substantive Florida corporate-survival statute conflicts in this case with the procedural Mississippi statute of limitations found in Mississippi Code Section 15-1-49(2), which provides that “[i]n actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.” Miss. Code Ann. § 15-1-49(2) (Rev.2012). But in the context of products liability cases, Florida, as does Mississippi, recognizes a latent-injury exception: “ ‘[Manifestation’ of a latent injury in a products liability claim occurs when the plaintiff is on notice of a causal connection between exposure to the allegedly defective product and the resultant injury.” R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331, 335 (Fla. 1st Dist.Ct.App.2012) (quoting Barnes v. Clark Sand Co., Inc., 721 So.2d 329, 332 (Fla. 1st Dist.Ct.App.1998)).

¶ 36. The majority states that, “where another state’s law creates a right of action and places limits on that action, it is not controlled by Mississippi’s statute of limitations,” Maj. Op. ¶ 19 (citing Louisville & Nashville R.R. Co. v. Dixon, 168 Miss. 14, 150 So. 811 (1933)). Dixon involved an administratrix of an estate who sought workers’ compensation benefits under the applicable Louisiana workers’ compensation statute. Dixon, 150 So. at 811. This Court found that the cause of action had become extinct because Louisiana’s substantive law, pursuant to which relief was sought, was not extended by Mississippi’s procedural statute of limitations. Id. at 813. The present case is distinguishable from Dixon because, unlike in that case, relief was not sought pursuant to the Florida corporate-survival statute. Here, the defendants moved for summary judgment on the basis of the Florida corporate-survival statute, and the Circuit Court of Jackson County agreed and applied it.

¶37. The majority further finds that Florida law should apply to this case: “[t]o the extent that a conflict ostensibly does exist, the authorities point to application of Florida law.” Maj. Op. ¶20. With respect, I disagree. The majority bases its determination solely on the Restatement (Second) Conflict of Laws: “[t]he Restatement (Second) Conflict of Laws provides in Section 299 that a corporation’s existence is determined by the laws of the state of incorporation.” Maj. Op. ¶ 18 (citing Restatement (Second) Conflict of Laws § 299 (Am.Law.Inst.1971)). When faced with a eonflict-of-laws analysis, this Court has applied the “choice of law principles now generally advanced in Restatement (Second) of Conflict of Laws (1971).” Newman v. Newman, 558 So.2d 821, 823 (Miss.1990) (citations omitted). It is true that Section 299 provides that “[t]he local law of the state of incorporation determines the method of terminating or suspending corporate existence;” however, Section 299 also provides that:

Primarily for the purpose of saving local creditors from the inconvenience of having to present their claims in the state of incorporation, statutes sometimes provide that foreign corporations which own things or do business in the state can sue, and remain subject to suit, in the corporate name for a period after their existence has terminated or suspended. Even if there is no similar statute in the state of incorporation, such a statute will permit suit to be brought in the state of enactment to wind up the corporation’s business in that state or to proceed against corporate property there.

Restatement (Second) of Conflict of Laws § 299(2) cmt. (Am.Law.Inst.1971) (emphasis added). Clark Sand was incorporated and dissolved pursuant to the laws of Florida. But Section 299 contemplates suits initiated for the purpose of winding up corporate business, for the purpose of proceeding “against corporate property there,” and for the purpose of “saving local creditors from the inconvenience of having to present their claims in the state of incorporation.” Those rationales for the application of local law of the state of incorporation are not relevant to the present lawsuit.

¶ 38. Assuming, as does the majority, that a conflict of laws exists, Section 299 does not contemplate tort claims against the corporation after the dissolution and the expiration of the statutory corporate-survival period. Section 145 of the Restatement governs tort claims and provides the following:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.

Id. at § 145. Section 6 provides that:

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Id. at § 6. According to longstanding precedent of this Court, “[i]n determining which State’s law to apply, Mississippi relies on the ‘center of gravity’ doctrine of the Restatement,” and therefore applies

the law of the place which has the most significant relationship to the event and parties or which, because of the relationship or contact with the events and parties, has the greatest concern with the specific issues with respect to the liabilities and rights of the parties to the litigation.

Goodwin, 920 So.2d at 433 (quoting Mitchell v. Craft, 211 So.2d 509, 510 (Miss.1968)).

¶ 39. Here, the alleged injury, exposure to harmful silica dust, occurred in Jackson County, Mississippi. Clark Sand actively did business in Mississippi, the conduct which allegedly caused Williams’s exposure to Clark Sand’s product. Williams is a resident of Alabama. Clark Sand was incorporated and dissolved in Florida, though it actively conducted business in Mississippi. With regard to the place where the relationship was centered, the product of Clark Sand which allegedly caused injuiy to Williams was used by him in Mississippi. Therefore, applying Section 145 of the Restatement and the precedent of this Court to the facts of the present case, Mississippi has the most significant relationship to the occurrence and parties, and was therefore the “center of gravity” of events giving rise to the litigation. The State of Mississippi has a strong interest in protecting those who are employed within its borders.

¶ 40. Under Mississippi law, the question of whether the corporate-survival statute is tolled in the context of latent injuries remains unanswered. The corporate-survival statute, which extends the right to file suit to a fixed and definite point after corporate dissolution, is akin to a statute of repose. Statutes of repose, according to this Court, “ ‘cut[ ] off the right of action after a specified period of time .... ’ ” Windham v. Lateo of Mississippi, Inc., 972 So.2d 608, 611 (Miss.2008) (quoting Evans v. Boyle Flying Serv., Inc., 680 So.2d 821, 827 n. 4 (Miss.1996)). In Windham, this Court considered “[w]hether an act of fraudulent concealment, if proven, will bar application of the statute of repose found in Mississippi Code Annotated Section 16-1-41 (Rev.2003).” Windham, 972 So.2d at 610. We opined that, “[a]s fraud can never be sanctioned, we conclude that the Legislature intended that the fraudulent-concealment exception of Mississippi Code Annotated Section 15-1-67 applies to the statute of repose in Mississippi Code Annotated Section 15-1-41.” Id. at 614. Windham is analogous to the present case. The latent-injury discovery rule of Mississippi Code Section 15-1-49(2) should be applied to the statute of repose extending corporate life beyond dissolution. The effect of corporate dissolution is not so broad as to render unavailable a remedy to individuals suffering from an injury which was latent until after the extinguishment of the repose period. That result is too harsh to justify. Under Mississippi law, Williams’s claim ought to have survived summary judgment.

¶ 41. But even assuming arguendo that Florida law applies in this case, it seems that Williams’s claim survives summary judgment. The Florida Supreme Court considered a case involving latent “lung disease (silicosis) from exposure to silica dust emanating from the sand used in sandblasting operations.” Pulmosan Safety Equip. Corp. v. Barnes, 752 So.2d 556, 557 (Fla.2000). The Florida Supreme Court ruled that “in a products liability action where the now-defunct statute of repose is still applicable, the latent injury exception remains viable so that the statute of repose will not extinguish the plaintiffs cause of action if his or her injuries are latent and undiscoverable within the repose period.” Id. at 559. So, even applying Florida law, which formed the basis for the trial court’s grant of summary judgment to Clark Sand in this case, the trial court erred.

¶ 42. Absent a determination by this Court that our discovery rule was inapplicable in the context of the corporate-survival statute, application of Mississippi law would not offend the relevant policies and relative interests of Florida in protecting plaintiffs suffering from latent injuries from strict application of repose periods.

¶ 48. For the reasons stated, I would reverse the judgment of the Circuit Court of Jackson County granting summary judgment to Clark Sand and would remand the case for trial.

KING, J., JOINS THIS OPINION.

      . For convenience we use "Williams" to refer to all seventeen plaintiffs.

      , Chicago Title, 302 U.S. at 128, 58 S.Ct. 125 ("There is nothing in the Federal Constitution which operates to restrain a state from terminating absolutely and unconditionally the existence of a state-created corporation ...,”);

      . Oklahoma Nat. Gas Co., 273 U.S. at 259-60, 47 S.Ct. 391 ("[C]orporations exist for specific purposes, and only by legislative act, so that if the life of the corporation is to continue even only for litigating purposes it is necessary that there should be some statutory authority for the prolongation. The matter is really not procedural or controlled by the rules of the court in which the litigation pends. It concerns the fundamental law of the corporation enacted by the state which brought the corporation into being.”).

      . Conversely, if a judgment was granted against Clark Sand in Mississippi, that judgment would not be entitled to full faith and credit in Florida, i.e., a Florida court would have no obligation to enforce that judgment in Florida. Pendleton v. Russell, 144 U.S. 640, 645, 12 S.Ct. 743, 745, 36 L.Ed. 574 (1892).

      . No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.
      Miss.Code Ann. § 15-1-41 (Rev.2012) (emphasis added).

      . If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.
      Miss.Code Ann. § 15-1-67 (Rev.2012)


text:
    William Michael JORDAN a/k/a Booty, Appellant/Petitioner v. STATE of Mississippi, Appellee/Respondent
    No. 2014-CT-00615-SCT
    Supreme Court of Mississippi.
    December 13, 2016.
   EN BANC ORDER

Four of the justices of this Court are of the opinion that the judgment of the Court of Appeals should be affirmed, and four are of the opinion that it should be reversed; consequently, that judgment must be, and is, affirmed.

Accordingly, as the judgment of the Court of Appeals has not been decided to be erroneous by a majority of the justices sitting in this case, the judgment of the Court of Appeals is affirmed without opinion. The costs on appeal are assessed to Lauderdale County.

SO ORDERED.

/s/ William L. Waller, Jr, WILLIAM L. WALLER, JR., CHIEF JUSTICE

TO AFFIRM: WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR AND BEAM, JJ.

KING, J, OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY DICKINSON, P.J., KITCHENS AND COLEMAN, JJ.

NOT PARTICIPATING: MAXWELL, J.

KING, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. William Michael Jordan was convicted of murder and felon in possession in a case devoid of physical evidence. At trial, an inflammatory rap video with a tenuous connection to this case, and which included only very minor participation by Jordan, was introduced into evidence. Its authentication was based on testimony much of which was untrue. It was error to allow the rap video into evidence. Because I believe that the decisions of the trial court and Court of Appeals are incorrect and violate Jordan’s rights, I respectfully object to the order affirming his conviction.

FACTS AND PROCEDURAL HISTORY

¶ 2. Late in February 2012, Aaron Coleman’s mother reported him missing. Coleman’s car was soon found outside of Meridian .... [Sjeveral more days passed before Coleman’s body was discovered in the woods near Interstate 20.

Coleman was last seen alive on February 27[, 2012,] at Jordan’s house. When questioned, Jordan confirmed [that] Coleman had stopped by that day .... Jordan told the Meridian Police that Coleman had only stayed a few minutes. After that, Jordan [asserted that he] never saw him again. Charlie Henderson and Bobby Baker—longtime friends of both Coleman and Jordan—had also been at Jordan’s house that evening. And they gave similar stories to the police.
The police [received an anonymous tip that] they should also question JaMicha-el Smith[ ] because he had been at Jordan’s house that nighty too. But Smith [had] quickly left Meridian late [the] night [of February 27, 2013,] on a Greyhound bus headed for Michigan. A year later, Smith was extradited from Michigan to Mississippi, where he finally told the police his version of what happened.
A. Smith’s Account
While Smith had grown up in Meridian, he moved to Michigan when he was seventeen .... [He did not return to Mississippi for five years.] But he returned to Meridian in February 2012 for his grandfather’s funeral. He ended up at Jordan’s house on February 27, drinking and smoking marijuana. According to Smith, everyone seemed to be having a good time when Jordan went to his bedroom and retrieved a shotgun. Jordan returned to the living room, where both Henderson and Coleman were. Jordan ... [flashed and cocked the gun.] Smith got nervous, so he went into the kitchen. Smith heard the gun go off. He saw Coleman [grab his stomach and lean] over in the corner of the living room. Smith ran out [of] the back door of Jordan’s house and took the first bus out of town.
B. Baker’s Account
Once Smith was in custody in Mississippi, Baker came forwardU too. He admitted [that] he had initially lied to investigators when he denied knowing what happened to Coleman. The truth, according to Baker, was that he[,] too[,] was in Jordan’s living room, drinking and smoking marijuana, when Jordan shot Coleman.
Coleman claimed he had received a phone call from his mother, saying it was time to come home. Henderson started teasing Coleman about having a curfew. This is when Jordan retrieved the shotgun. Like Smith, Baker was worried about the gun, so he kept his eyes on Jordan. He saw the gun go off, Henderson lunge, and Coleman—who was standing right behind Henderson— get shot in the stomach.
Coleman fell over, but he was still breathing. Baker wanted to call for an ambulance[,] [b]ut Jordan pointed the gun at him and told him to stop. Baker tried to reason with Jordan, saying everyone would see it was an accident and that Jordan did not know the gun was loaded. So with Coleman still alive, Baker started to call 911.... Henderson told him to hang up. Baker saw Smith run out the back door.
About ten minutes went by. Coleman was still alive, and Jordan and Henderson were trying to figure out what to do. They finally told Baker to help them load Coleman into the back of Jordan’s Honda. Baker got into the backseat with Coleman. Jordan and Henderson stayed outside the car, further devising a plan. Another five minutes passed .... Coleman suddenly stopped breathing and his whole body stopped moving. Henderson opened the door and saw that Coleman had died.
At this point, Jordan’s live-in girlfriend pulled up in her car. Henderson quickly shut the car door to conceal Coleman’s body. Jordan followed his girlfriend into his house for a few minutes, while Henderson rifled through Coleman’s pockets and found his keys. Baker testified that Henderson then pulled out a pair of gloves. When Jordan exited his house again, Jordan got into the driver’s seat of his car. Henderson, gloves on, then took Coleman’s keys and got into Coleman’s car. The two cars started' driving around Meridian .... Jordan and Henderson were on their cell phones [the entire time] trying to figure out what to do. Jordan eventually turned onto I-20[,j but ran out of gas. He [pulled] over to the shoulder and waited for Henderson to bring him more fuel.
When Henderson pulled up behind them with a gas can fifteen minutes later, he was surprised [that] Coleman’s body was still in the backseat. Baker and Jordan then lifted the body out of the car and rolled it down an embankment, where it was found days later. The two cars then drove off down the interstate. They took a nearby exit, where they dumped Coleman’s car.
The three then drove to Henderson’s house in Jordan’s car. There, a fourth man came out with a metal barrel and started a fire. Baker testified [that] he, Jordan, and Henderson threw their clothes into the fire, along with Coleman’s cell phone and wallet.
C. Indictment
Jordan was indicted for second-degree murder. See Miss. Code Ann. § 97-8-19(1)(b) (Rev. 2014). He was also charged with felon in possession of a firearm. See Miss. Code Ann. § 97-37-5 (Rev. 2014).
Henderson and Baker were indicted as accessories after the fact to the murder, for their role in dumping Coleman’s body. Smith[,] too[,] was indicted as an accessory after the fact[] because he knew Jordan had killed Coleman[,] but did not come forward until almost a year later ....
Jordan and Henderson were set to be tried together.[] But the morning of trial, after the jury was selected, Henderson moved for severance :... Jordan had subpoenaed Henderson as a defense witness, and to avoid issues with Henderson asserting his Fifth Amendment right against self-incrimination in response to certain questions by Jordan in the joint trial, the judge granted Henderson’s motion ....
During Jordan’s trial, Smith and Baker testified for the State, but Jordan ultimately decided not to call Henderson to testify. Jordan, however, took the stand and testified in his own defense. Jordan stuck to his original story—that while, he, Coleman, Henderson, and Baker had all been at his house on February 27, Coleman'left after a few minutes. Jordan’s girlfriend also testified. She said [that] he had come home at 3 p.m. that day. While Henderson and Baker were there with Jordan, she insisted [that] Coleman had never come by that day[,] [n]or did Jordan ever leave with Henderson and Baker.
[The State did not offer any] physical evidence ....

Jordan v. State, 212 So.3d 836, 836-41, 2015 WL 8142708, at **1-3, No. 2014-KA-00615-COA(Miss. Ct. App. Dec. 8, 2015).

¶ 3. At trial, the State also introduced a YouTube video of a rap song. The defense objected to its introduction and suggested the evidence be proffered outside the presence of the jury, but the judge stated “I can rule,” thus having the video authenticated in the presence of the jury. The defense objected that the video was not authenticated, was not relevant to Jordan’s guilt or innocence, and that it was not probative under the Rules of Evidence. The State decided to establish the foundation for the video with the testimony of Danny Knight, an investigator on the case. Knight testified that Baker’s attorney alerted him to the existence of a video on YouTube. Knight stated that the video is of a “mock killing,” and that it was “a reenactment, in my opinion, of the killing of Aaron Coleman.” He testified that the “stars” of the video were William Jordan and Charlie Henderson. He then stated that the video is “a rap video that Mr. Jordan and Mr. Henderson get a witness, which is Mr. Baker, and they get him out in the woods and kill him for ratting on them.” Knight also testified that the video was a threat to Baker. The court then admitted the short, five-and-a-half minute video into evidence without even watching the video. ‘The video was not then published to the jury, but went with them to the jury room for deliberations, and was referred to by the prosecution multiple times during the trial.

¶ 4. The video is five minutes and thirty-five seconds long. It

features performances by Henderson and “King Chris.” A third man is credited as the director. There are five or six extras who are uncredited—Jordan was one of them. Baker and Smith testified that they “recognized” Henderson, Jordan, and “King Chris,” though their testimony differed as to whether his name was Chris King or Chris Randall. Smith and Baker did not seem to know any of the extras (other than Jordan).
The video was shot with a high-definition camera, which at times tracks and pans. It includes numerous “artsy” shots—the camera tracks across a chain link fence, Henderson appears silhouetted in a doorway, a man (who is probably Jordan) smokes in the dark, Henderson shakes his head sadly in slow motion, etc. The music and vocals were recorded separately from the video, presumably in a studio, and are dubbed over. The video seems to have been assembled from ten or so scenes that were filmed separately and spliced together, back and forth throughout, as well as a number of isolated shots. Henderson is seen wearing three different sets of clothes, suggesting that the filming was done over a period of time. The lip-synching is coordinated with the vocals and music, apparently requiring that the performances at each filming location be scripted out in advance .... [T]he production values and the number of people involved ... suggest that the video was not created just as a pretext to threaten Smith and Baker.
Jordan is just one of the uncredited extras. He appears on screen for a total of about thirty seconds [out of five minutes and thirty-five seconds], in only one of the major settings, sitting at a table to Henderson’s right. Another extra stands to Jordan’s right, doing the same things Jordan does. And most of the time Jordan is at the periphery as the camera focuses on one of the rappers; often only Jordan’s arm is visible. When Jordan can be seen, he sits and drinks or smokes, or he mouths the words to the chorus and mimes along. He is apparently seen in one of the “establishing” shots at the beginning, sitting on a couch in a dark room smoking what appears to be a marijuana cigarette.[] Some of the other extras have speaking parts in the “short film” at the end, but Jordan does not appear there .... [It appears that] Jordan is never actually-heard on the video.
... [T]he lyrics of the song ... [are] threatening—they are also very profane and offensive. The basic outline fits—the narrators have been betrayed by a friend who turned state’s evidence. But otherwise the story differs in important respects.
The first half or so of the song is preformed by Henderson, and King sings the remainder. Both sing in the first person and both relate the same basic events as happening to them[]— that they were falsely implicated by a friend-turned-pohce-informant, that the friend thinks they are ignorant of his betrayal, that he shook their hand but would not look them in the eyes, that they have been praying “a hundred times a day.” Toward the end of the song, King says he has been praying because he wants to murder the informant.
Not only does the song not contain explicit threats against Smith or Baker, but it is Uttered with references to incidents and people that appear to have nothing to do with this case. The encounter where the informant shook the narrators’ hands but would not look them in the eye is referred to over and over in the song (both Henderson and King sing about it, and it forms most of the chorus), but no one testified it had actually happened in real life. Henderson refers to some kind of event involving an unnamed woman, and the informant’s sister making “statements” (presumably to the pohce; he makes a gesture like he is writing). He also makes the puzzling complaint that the informant refuses to “speak up on my parents just because I won’t speak up on yours.” Henderson describes a more intimate relationship with the informant than was attested in this case: they were “best friends from elementary” school, and Henderson used to give the informant money and food. He suggests that the informant needed charity because he was a poor drug dealer (he had no “hustle skills”). Henderson believes he was betrayed because of “jealousy and envy,” which the informant had concealed; King says the informant did it “just to save himself.” Henderson refers to the informant’s story as “bulls***” and King says he wants to kill the informant without “even asking him why he lied.”

Jordan v. State, 212 So.3d 836, 853, 2015 WL 8142708, at **14-25, No. 2014-KA-00615-COA (Miss. Ct. App. Dec. 8, 2015)(Fair, J., dissenting).

¶ 5. At the very beginning of the State’s attempt to authenticate the video using Knight’s testimony, the defense objected to Knight’s testimony. The court overruled the objection, and the defense asked to reserve the right to make a motion, and the court granted this request. Throughout Knight’s testimony to authenticate the video, the defense objected, and even stated “Let the record reflect I have a continuing objection.” As Knight’s testimony continued, the defense continued to explain his objections, but was met with the prosecutor complaining that he had “about had it with the speaking objections.” At the conclusion of Knight’s testimony, Jordan’s counsel asked for permission to make the motion he had reserved the right to make. He moved for a mistrial, in part because the video was not properly authenticated, was not relevant, and violated the discovery rule. Then again, prior to Jordan testifying in his own defense, his counsel renewed his motion for mistrial due to the admission of the YouTube video and renewed his objection to its admission, and cited Brooks v. State, in which rap lyrics were objected to under Rule 404(b), thus triggering the balancing test of Rule 403. In denying the motion, the trial court, which had apparently still not actually watched the video, held that Jordan “was a star player in the video. There is testimony and evidence that relates the consensus message that’s described in the video to the two witnesses that were testifying against Mr. Jordan. That’s relevant. That’s probative.”

¶ 6. The jury ultimately found Jordan guilty of both murder and felon in possession of a firearm. Jordan filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, new trial, in which he argued that the trial court “erred by the admission of the youTube [sic] video over continuous objections of Defendant without having viewed it, based on hearsay, relevance and Rule 403, without weighing the balancing test as to prejudicial effect versus probative value.” He also argued that the court “erred by allowing the prosecution to present opinions of investigator Knight ... as to the youTube [sic] video” and “by allowing the prosecution to place into evidence the youTube [sic] video without proper authentication, with only verification by the investigator based on hearsay. The prejudicial effect outweighed any probative value.” The trial court denied Jordan’s motion, and he appealed.

¶7. A divided Court of Appeals affirmed. The majority found that the video was relevant and had been properly authenticated. It also argued that Jordan only raised two reasons why the video should not be admitted at trial, and thus found that Jordan’s argument that the video should not have been admitted under Mississippi Rules of Evidence 404(b) and 403 procedurally barred. It also found that the trial court did not commit plain error under Rule 403 in admitting the video. Judge Fair dissented. He argued that Jordan had clearly preserved the issue of admission of the video under Rules 404(b) and 403, given that he raised the issue at trial and the trial judge actually ruled on it. He also argued that the video was improperly introduced into evidence, and that, combined with the multiple statements about it after it was admitted into evidence, it was cumulative error that was overwhelming.

ANALYSIS

¶ 8. This Court reviews the admission of evidence for abuse of discretion. Debrow v. State, 972 So.2d 550, 552 (Miss. 2007). “A case may be reversed based on the admission of evidence if the admission results ⅛ prejudice and harm’ or adversely affects a substantial right of a party.” Smith v. State, 839 So.2d 489, 495 (Miss. 2003).

1. Issue Preserved for Appeal

¶ 9. As everyone acknowledges, Jordan preserved for appeal the issues of the relevance of the video and its authentication, or lack thereof. Where the parties and the Court of Appeals opinions disagree is whether Jordan preserved for appeal the issue of whether the video was improperly admitted under Rules 404(b) and 403.

¶ 10. A contemporaneous objection is generally required to preserve an issue for appeal. This is because this Court will not pass on anything that the trial court has not had an opportunity to rule on itself, except plain error. Indeed, the primary purposes of the contemporaneous objection rule are “to permit the trial court to accurately evaluate the legal issues and to enable the appellate court to apprehend the basis of the objection.” Goff v. State, 14 So.3d 625, 640 (Miss. 2009) (quoting Kettle v. State, 641 So.2d 746, 748 (Miss. 1994) (quoting Uptain v. Huntington Lab, Inc., 723 P. 2d 1322, 1330-31 (Colo. 1986))). So an objection that serves those purposes, even if not raised at the exact moment the evidence is introduced, may be sufficient under the facts of a particular case. See Goff, 14 So.3d at 640. Not only did the defense in its original objection object that the video was “not probative,” it also objected later during the trial to the video’s admission specifically based upon Rules 404(b) and Rule 403. Then, the defense filed its motion for new trial and specifically raised the Rules 404(b) and Rule 403 issues. The trial court actually ruled not once, but twice, specifically on these issues, including explicitly ruling on the later trial objection, finding that the video was probative. Clearly, the purposes of requiring contemporaneous objections have been met. The trial court did have at least two opportunities to evaluate the legal issues, and did so evaluate. And this Court can clearly apprehend the basis of the objection.

¶ 11. Moreover, Rule 403 “is the ultimate filter through which all otherwise admissible evidence must pass.” McKee v. State, 791 So.2d 804, 810 (Miss. 2001) (quoting Bounds v. State, 688 So.2d 1362, 1370 (Miss. 1997) (overruled on other grounds by Brown v. State, 890 So.2d 901 (Miss. 2004))) (emphasis added). Additionally, “Rule 404(b) is an issue of relevancy[.]” Carter v. State, 722 So.2d 1258, 1261 (Miss. 1998). In Carter, the defense objected to the admission of evidence of prior criminal conduct on the grounds of relevance, but not specifically on the grounds of Rule 404(b). Id. This Court found that the issue was not procedurally barred since Rule 404(b) is an issue of relevance and the defense had objected on the grounds of relevance. Id. “Where the specific grounds for objection are apparent from the context, a general objection is sufficient to preserve the error for appeal.” Id. at 1261-62. In this case, Jordan objected multiple times regarding relevance, and Rule 404(b) is an issue of relevance. Further, all otherwise admissible evidence must go through the filter of Rule 403. Thus, Jordan’s multiple objections, and the trial court’s rulings on those objections, were certainly sufficient to preserve the issue for appeal.

2. Failure to View Video

¶ 12. The Court of Appeals failed to address the trial court’s failure to actually view the short video it allowed into evidence. It is impossible for a trial court to rule on the admissibility of evidence it does not even view. This is especially true when, as here, the testimony authenticating the video was largely incorrect, and the trial court repeated the incorrect information in determining that the video was probative, namely by incorrectly stating that Jordan was a “star” of the video. See, e.g., Tard v. State, 132 So.3d 550, 553 (Miss. 2014) (trial court failed to watch entire videotaped interrogation, thus this Court was unable to determine if the trial court erred). The trial court cannot adequately rule on that of which it knows nothing. What if, for example, a trial court ruled on the admissibility of gruesome photographs without actually viewing the photographs? The trial court’s ruling on the admissibility of the video without having watched the video is highly problematic. This is especially true given that the trial court’s ultimate ruling on the issue was explicitly based upon incorrect information regarding the video.

3. Authentication

¶ 13. The State claims that the evidence in question was a YouTube video in which Henderson and Jordan “rapped lyrics” to threaten Baker and Smith, the State’s witnesses. Mississippi Rule of Evidence 901 provides that authentication or identification is a condition precedent to admissibility. M.R.E. 901(a). The condition precedent “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. In a case interpreting Federal Rule of Evidence 901(a), the Fourth Circuit noted with approval that the district court had “required the government, pursuant to rule 901, to prove that the Facebook page [that contained links to YouTube videos] were linked to” the defendants. United States v. Hassan, 742 F.3d 104, 132-33 (4th Cir. 2014). The government had introduced certificates from Facebook and Google (the owner of YouTube) under Rule 902(11) to authenticate the Facebook pages and YouTube videos. Id. at 133. The court deemed it sufficient that the government had connected the pages to the defendants as required under Rule 901, because the government showed that the Facebook pages contained the defendants’ user profiles, personal biographical information, quotations, and listing of interests, and had used IP addresses to track the Facebook pages and accounts to the defendants’ known mailing and email addresses. Id. at 133.

¶ 14. The State attempted to provide evidence that this was a rap video in which Jordan threatened Baker and Smith. Knight’s testimony failed to do so. He incorrectly testified that the video was a re-enactment of the murder of Coleman. Such an interpretation of the rap video is not remotely plausible. He then contradicted his earlier assertion and testified that the rap video essentially acted out murdering Baker. Nothing in the rap video itself indicates that this was the murder of Baker specifically. Knight also incorrectly testified that Jordan “starred” in the video. Viewing the five-and-a-half minute video easily makes abundantly clear that Jordan was a minor participant in the video. Moreover, no testimony indicated that Knight was involved in the writing of the song or lyrics or in the production of the video. How he could have any knowledge of the subjective and completely unspecified “target” of the song, if there was any target at all, is befuddling. Also important is that Knight gave no indication as to the author of the rap—so the authenticating witness was unable to even testify as to who wrote the lyrics at issue. And the rap video itself gave no indication that Jordan wrote the lyrics; in fact, the video seems to indicate that Jordan did not write the lyrics, thus it is tenuous to attribute them to him. Furthermore, Knight provided no testimony regarding who posted the video to YouTube. If a music producer who thought Henderson and King had talent posted it to gauge interest in them, could its posting credibly be considered a threat to Baker and Smith? Knight gave no testimony giving any indication of who posted the "video. Nor did he give any indication when the video was actually made or when the rap was written. While the rap had a post date in April 2013, YouTube users may post and re-post things, and they may copy things and post them with no connection to the creator; thus, the mere posting of a YouTube video, absent more, gives utterly no indication of the date of production or creation of the rap itself, the identity of the person who posted it online, and very little indication of when the rap was originally posted to YouTube. The rap easily could have been written and/or the video produced before Coleman’s death, rendering it difficult to prove that it was a threat to Baker and Smith.

¶ 15. Overall, the evidence the State offered to show that the evidence was a rap video of Jordan threatening Baker and Smith was not sufficient to prove this. Most of the evidence offered via Knight’s testimony was completely and blatantly incorrect and had no basis in any personal knowledge of Knight’s. This is compounded by the fact that the trial court did not watch the short video, which would have easily illuminated the problems with the incorrect authenticating testimony. Moreover, no date was adduced as to when the rap was written, when the rap video was produced, or even who posted the rap video to YouTube. Since the rap video itself is not self-authenticating—it is not obviously a threat to Baker and Smith—these things are pertinent to authentication and the question of whether the rap video is a threat.

¶ 16. Because the video was not properly authenticated, the trial court abused its discretion by admitting the video.

4. Rule 403

¶ 17. The analysis need not end with authentication, because, even if it had been properly authenticated, the video is not admissible against Jordan. Rule 403 states that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice ....” M.R.E. 403. This Court has held, in a pre-Rules of Evidence case, that “attempts by the accused to procure the death of one of the material witnesses against him” “was of probative value as an incriminating circumstance inconsistent with ... innocence; and as tending to show a consciousness of guilt and that his cause lacked honesty and truth.” Mattox v. State, 243 Miss. 402, 137 So.2d 920, 923 (1962). In Maddox, the evidence showed not merely that the defendant issued some ambiguous or arguable threat, but that he specifically asked certain jailmates to murder the witness, and after they were released from jail, he even sent them a Christmas card with the witness’s photograph and gave them the witness’s address. Id. at 922-23.

¶ 18. In this case, whether the probative value of Jordan being an extra during approximately nine percent of a rap video for a rap that he did not write and that can only be very tenuously tied to threats to the witnesses in the case at hand, if at all, is much less probative than actual attempts to procure the death of a witness. The connection of the song to Baker and Smith is specious at best. Indeed, the only seeming connection is that the song is about a friend from elementary school, as Baker and Henderson were, and that the friend had turned state’s witness, as Baker apparently had. However, many of the other lyrics in the rap song contradict Baker and/or Smith being its subjects. The song makes several mentions of an encounter between the informant and the narrators in which the informant shook the narrators’ hands, but would not look them in the eye. No one testified that this encounter had happened involving Baker and/or Smith. The song also references the informants’ sister making statements, which never occurred in this case. The lyrics refer to the fact that the informant refuses to “speak up on my parents just because I won’t speak up on yours,” which no one testified occurred in this case. The lyrics indicated that the narrators were best friends with the informants from elementary school, and that one used to give the informant money and food, a more intimate relationship than was alleged in this case between Henderson, Jordan, Baker, and/or Smith, and a much more intimate relationship than existed between King and Baker and/or King and Smith. Neither Baker nor Smith indicated that he had ever taken charity from Henderson. Moreover, Henderson rapped lyrics stating that the informant needed charity because he was an unsuccessful drug dealer and that he was betrayed because of “jealousy and envy.” King rapped that the informant gave information “just to save himself.” The physical description of the informant in the rap included “duck lips” and “rotten teeth.” No evidence was adduced in those case that any of these lyrics remotely described the parties involved in the case.

¶ 19. Violence and retribution are spectacularly common themes in rap music. In a survey of rap songs from albums with over 1,000,000 sales (not limited to so-called gangster rap), one scholar found themes of violence in 65% of the songs, and violent retaliation in 35%. Charis E. Kubrin, Gangstas, Thugs, and Hustlas: Identity and the Code of the Street in Rap Music, 52 Social Problems 360, 369 (2005). After reviewing more than 400 popular songs, she observed: “In cases of snitching or disrespect, violent retaliation is portrayed as punishment and is characterized as an acceptable and appropriate response as part of the street code. In many instances violent retaliation is claimed to be not only appropriate but also obligatory.” Id. at 374. For snitching in particular, “rappers are not at all reluctant to administer capital punishment.” Id “Entire songs may be devoted to warning others about the repercussions of snitching and testifying.” Id. Other scholars have observed that “[ajrguably, the anti-snitching message has emerged as a central theme within hip-hop.” Rachael A. Woldoff & Karen G. Weiss, Stop Snitchin’: Exploring Definitions of The Snitch and Implications for Urban Black Communities, 17 Journal of Criminal Justice & Popular Culture 184, 190 (2010).

... [R]ap music is especially vulnerable to prosecutorial misuse because jurors often hold it in disregard or are unfamiliar with the genre’s conventions. See, e.g., Andrea L. Dennis, Poetic (Injustice? Rap Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J. L. & Arts 1 (2007).
Introducing evidence of threats requires real proof of threats—because threats against a witness are supposed to be proof of the defendant’s consciousness of his own guilt. Evidence of consciousness of guilt amounts to evidence of guilt itself. McClendon v. State, 387 So.2d 112, 115 (Miss. 1980). Courts should not and do not admit such evidence when it is founded on speculation.
In United States v. Hayden, 85 F.3d 153, 159 (4th Cir. 1996), the Fourth Circuit Court of Appeals held that to be admissible, evidence of threats against the witness must be “(1) ... related to the offense charged and (2) ... reliable.” In United States v. Smith, 629 F.2d 650, 651-52 (10th Cir. 1980), the Tenth Circuit noted: “Evidence of threats to a prosecution witness is admissible as showing consciousness of guilt if a direct connection is established between the defendant and the threat.” (Emphasis added.)
In State v. Marlar, 94 Idaho 803, 498 P.2d 1276, 1281-82 (1972), the Idaho Supreme Court reversed a conviction following the admission of threats against a witness over the telephone, where the prosecution failed to prove that the caller really was the defendant. Id. In United States v. Vaulin, 132 F.3d 898, 900-01 (3d Cir. 1997), the Third Circuit held that threats against the witness, which were never shown to be connected to the defendant, “may have had some highly attenuated, theoretical relevance ... [but t]he probative value is so minimal and the risk of prejudice so certain that it fails [the Rule 403 balancing test].”
In State v. Rogers, 96 S.C. 350, 80 S.E. 620, 620-21 (1914), a conviction was reversed after the trial judge admitted into evidence a letter threatening a witness without any proof the defendant had sent it. The South Carolina Supreme Court later summarized the law on the subject as follows: “References to threats or dangers to witnesses are improper unless evidence is offered connecting the defendant with the threats .... It would be a ‘prostitution of justice’ to permit evidence that someone attempted to influence a witness by fear or fright without any evidence that connects the defendant with the tampering.” Mincey v. State, 314 S.C. 355, 444 S.E.2d 510, 511 (1994) (citations omitted). The error in Mincey—where the prosecutor alleged threats against witnesses without proving them—was so egregious that the reviewing court found defense counsel constitutionally ineffective for failing to object. Id.
Finally, in State v. Skinner, 218 N.J. 496, 95 A.3d 236, 238-39 (2014), the New Jersey Supreme Court reversed a conviction based on the erroneous admission of song lyrics. It held:
Fictional forms of inflammatory self-expression, such as poems, musical compositions, and other like writings about bad acts, wrongful acts, or crimes, are not properly evidential unless the writing reveals a strong nexus between the specific details of the artistic composition and the circumstances of the underlying offense for which a person is charged, and the probative value of that evidence outweighs its apparent prejudicial impact.
Id.

Jordan v. State, 212 So.3d at 859, 2015 WL 8142708, at **21-22(Fair, J., dissenting).

¶20. This Court has previously ruled that rap lyrics introduced in a murder trial did not survive a Rule 403 analysis. Brooks v. State, 903 So.2d 691, 699-700 (Miss. 2005). In Brooks, the State introduced rap lyrics written by the defendant extolling murder (with a gun), along with evidence that Brooks had been involved in gang activity, that he had a tattoo of the Grim Reaper holding a pitchfork, and that the defendant’s gang used the symbol of a six-pointed star and a pitchfork as its signs. Id. at 699. The State argued that the evidence was introduced to show identity, because the gang followed the devil, the devil uses a pitchfork, and the victim had been stabbed with a meat fork. Id. The Court found that the trial court did not make a Rule 403 determination on the record, and noted that the rap lyrics made no mention of gangs and discussed murder with a gun, not a fork. Id. at 700. It ultimately reversed the trial court on that issue. Id.

¶ 21. The probative value of Jordan lip-syncing to lyrics as an extra on thirty seconds of a rap video that has no shown connection to the witnesses in this case is slight; indeed, the assertion that any probative value exists at all is tenuous. On the other hand, the danger of unfair prejudice from the introduction of the rap video is high. The rap video is offensive and vulgar. It espouses violence. And the artistic medium is one often misunderstood by jurors. It is clear that under Rule 403, this rap video does not pass muster—its danger of unfair prejudice far outweighs its alleged probative value. Ha4 the trial court viewed the video, this would likely have become apparent, illustrating the importance of examining evidence to be admitted before so admitting. The only other evidence against Jordan aside from the rap video was the testimony of Baker and Smith. The video was mentioned by State witnesses numerous times. Thus, the rap video played a central part of the State’s case against Jordan and was not harmless error and the trial court abused its discretion in admitting the video, as it does not pass Rule 403 muster.

5. Relevance

¶22. Evidence must be relevant to be admissible. M.R.E. 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. The State arguably fails to prove even how the rap video is relevant to Jordan’s case. Given the dearth of connections of the video to Baker and Smith and Jordan’s very slight and somewhat innocuous participation in the video, it is difficult to ascertain how the video is even relevant. Indeed, if participation as an extra for thirty seconds in this rap video is as relevant as the State claims, why then did the State not investigate or charge the other participants in the video in Coleman’s death or for threatening witnesses? If the case for relevance is as lock-step as the State asserts for Jordan’s participation, certainly at least the second star of the video, Chris King, should have been investigated. However, nothing in the record indicates that anyone other than Jordan, Henderson, Baker, and Smith were investigated and prosecuted. The State’s argument that this rap video is relevant to any fact in this case is tenuous at best. Moreover, the trial court’s finding on relevance included the incorrect statement that Jordan was a “star” in the video, as the trial court did not watch the video. Thus, the trial court’s relevance finding was based on an incorrect premise.

CONCLUSION

¶ 23. The trial court did not watch the video at hand, leading to compounding errors in its admission. Because the YouTube video was not properly authenticated, was more prejudicial than probative under Rule 403, and was not relevant, the trial court abused its discretion by admitting the video into evidence, and this Court should reverse Jordan’s convictions and remand the case for a new trial.

DICKINSON, P.J., KITCHENS AND COLEMAN, JJ., JOIN THIS SEPARATE WRITTEN STATEMENT.

      . Much of this recitation of the facts is taken from the Court of Appeals’ opinion.

      . It also found that other errors raised by Jordan were without merit.

      . The State seems to assert that ‘'contemporaneous” means "immediate,” In fact, "contemporaneous” means "existing or happening during the same time period," Contemporaneous, Merriam Webster, http://www.merriam-webster.com/dictionary/contemporaneous (last visited December 12, 2016).

      . Indeed, despite its opinion in Jordan’s case, the Court of Appeals now appears to agree that Jordan was not a “star” of the video. In Henderson’s case, the Court of Appeals stated that the video " ‘starred’ Henderson and another rapper; Jordan had a small part” and that the video was “featuring Henderson and another rapper, with Henderson’s brother, Jordan, and others having smaller parts." Henderson v. State, 2016 WL 3512507, No. 2015-KA-00164-COA, at **2, 3 (Miss. Ct. App. June 26, 2016). The Court of Appeals again noted that “[t]he main rapper is Henderson, but Jordan also appears briefly, in addition to Henderson’s brother and other extras.” Id, at *3. It specifically distinguished Henderson’s case from Jordan’s because Henderson was the "lead performer” and Jordan “only had a minor role.” Id. at *3 n.5.

      . The State does not assert that Jordan wrote the lyrics.

      . See Viacom Int'l Inc. v. YouTube, Inc., 676 F.3d 19, 32 (2d Cir. 2012) (noting that surveys had found that significant percentages—between 80 and 50 percent—of videos on YouTube contained material published or republished without the permission of the copyright holder).

      . Rule 404(b) provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” M.R.E. 404(b)(1). It is admissible, however, for other purposes "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” M.R.E. 404(b)(2). Rule 404(b) triggers a Rule 403 analysis. Brooks v. State, 903 So.2d 691, 699-700 (Miss. 2005). Rule 404(b) evidence must be relevant to prove a material issue other than the defendant's character and its probative value must outweigh the prejudicial effect. Id.

      . "From the parts [of the video] where Jordan appears, it is arguable whether he necessarily knew the song was about a police informant and not just an unspecified betrayal by a friend." Jordan v. State, 212 So.3d at 853, 2015 WL 8142708, at *16 (Fair, J., dissenting).