author: KITCHENS, JUSTICE,

text:
    MISSISSIPPI DEPARTMENT OF CORRECTIONS, Marshall Fisher, Earnest Lee and Sonja Stanciel v. Charles D. ALLEN a/k/a Charles David Allen
    NO. 2015-CA-01905-SCT
    Supreme Court of Mississippi.
    01/26/2017
    ANTHONY LOUIS SCHMIDT, JR., OFFICE OF THE ATTORNEY GENERAL, BY: DARRELL CLAYTON BAUGHN, ATTORNEYS FOR APPELLANTS
    JAMES M. NORRIS, CHARLES D. ALLEN (PRO SE), ATTORNEY FOR APPELLEE
   KITCHENS, JUSTICE,

FOR THE COURT:

¶ 1. Charles Allen, a parole-eligible inmate in the custody of the Mississippi Department of Corrections (MDOC), filed a request pursuant to the administrative review procedure (ARP) that MDOC develop a case plan for him. MDOC denied the request and, after exhausting his administrative remedies, Allen appealed to the Circuit Court of Sunflower County. The circuit court found that Allen was entitled to receive a case plan under an amendment to the Probation and Parole Law. MDOC appeals, arguing that the circuit court lacked jurisdiction over Allen’s appeal because it was untimely, and, alternatively, that the Probation and Parole Law does not entitle Allen to receive a case plan.

¶ 2. Because MDOC’s argument that the circuit court lacked jurisdiction over Allen’s action is not supported by the record, we do not consider it. We find that, based on our recent holding in Fisher v. Drankus, 204 So.3d 1232 (Miss. 2016), the Probation and Parole Law does not entitle Allen to a case plan. Therefore, we reverse the decision of the circuit court and render a decision in favor of MDOC.

FACTS

¶ 3. The record includes the first page of Allen’s circuit court appeal, which shows that Allen filed an “Appeal from Administrative Decision” on September 16, 2015. Also included is the first page of a supporting memorandum, which claims that MDOC, by adopting certain regulations, violated state statutes by denying a case plan to Allen and other inmates. Although MDOC’s designation of the appellate record requested all papers filed in the trial court, no other pages of Allen’s appeal or memorandum were included in the record. On November 2, 2015, MDOC filed a motion to dismiss, arguing that Allen had neither alleged nor shown that he had exhausted his administrative remedies, that Allen’s claim was procedurally barred, and that his appeal was not ripe for adjudication.

¶4. On November 6, 2015, the circuit court entered an order granting Allen’s request for a case plan. The circuit court found that Allen had sought relief through ARP, and that, on July 21, 2015, MDOC had denied Allen’s request for relief on the ground that Mississippi Code Section 47-7-3.1 did not apply “retroactively” to prisoners sentenced before the effective date of the amendment on July 1, 2014. After examining Mississippi Code Section 47-7-3.1, the circuit court rejected MDOC’s position, finding that, because Section 47-7-3.1(1) provides that MDOC shall develop a case plan for all parole-eligible inmates, the plain language of the statute mandates that MDOC develop a case plan for all such inmates, including Allen. Although Section 47-7-3.1(2) does say that MDOC must complete a case plan within ninety days of an inmate’s admission to MDOC custody, the circuit court found that Section 47-7-3.1(2) merely established a deadline for the completion of case plans for new inmates. The circuit court ordered MDOC to complete Allen’s case plan within ninety days.

DISCUSSION

I. WHETHER THE CIRCUIT COURT HAD JURISDICTION OVER ALLEN’S APPEAL.

¶ 5. Mississippi Code Section 47-5-807 provides that an inmate aggrieved by a decision of MDOC under ARP may appeal within thirty days after the inmate receives MDOC’s final decision. Miss. Code Ann. § 47-5-807 (Rev. 2015). MDOC contends that Allen received its final decision on July 21, 2015, but that he did not file his appeal until September 16, 2015, well past the thirty-day period. MDOC argues that timely filing under Section 47-5-807 is jurisdictional, Stanley v. Turner, 846 So.2d 279, 282 (Miss. Ct, App. 2003), and that, because Allen’s appeal was untimely, the circuit court lacked jurisdiction,

¶ 6. Although MDOC asserts in its brief that Allen received its final decision on July 21, 2015, it fails to cite any record evidence that Allen received its final decision on July 21, 2015. And the record does not disclose the date that Allen received the department’s final decision. “This Court will consider only those matters that actually appear in the record and does not rely on mere assertions in briefs.” Touchstone v. Touchstone, 682 So.2d 374, 380 (Miss. 1996). Accordingly, we do not consider this issue.

II. WHETHER ALLEN WAS ENTITLED TO A CASE PLAN UNDER SECTION 47-7-3.1 OF THE PROBATION AND PAROLE LAW.

¶ 7. Effective July 1, 2014, the legislature amended the Probation and Parole Law to require MDOC to develop a case plan for “all parole eligible inmates.” Miss. Code Ann. § 47-7-3.1(1) (Rev. 2015). A “parole case plan” is defined as “an individualized, written accountability and behavior change strategy developed by the department in collaboration with the parole board to prepare offenders for release on parole at the parole eligibility date.” Miss. Code Ann. § 47-7-2(c) (Rev. 2015). Case plans must “focus on the offender’s criminal risk factors that, if addressed, reduce the likelihood of reoffending.” Id.

¶ 8. Under review is MDOC’s denial of Allen’s request for a case plan based on its interpretation of the Probation and Parole Law. On review of the decision of an administrative agency, this Court determines whether the agency’s decision was supported by substantial evidence, was arbitrary and capricious, was beyond the agency’s power to make, or violated a party’s constitutional rights. Jones v. Miss. Emp’t Sec. Comm’n, 181 So.3d 1001, 1003 (Miss. 2016). While this Court affords de novo review to an agency’s interpretation of a governing statute, we give great deference to the agency’s interpretation. Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 606 (Miss. 2009) (citing Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So.2d 673, 678 (Miss. 2006)). This Court’s polestar consideration when determining the meaning of a statute is the legislative intent. Miss. Gaming Comm’n v Imperial Palace of Miss., Inc., 751 So.2d 1025, 1028 (Miss. 1999).

¶9. MDOC argues that Section 47-7-3.1(2), which requires that the case plan be completed within ninety days of the inmate’s admission, and Section 47-7-3.1(4), which provides that the case plan must be achievable before the inmate’s parole eligibility date, indicate legislative intent to limit the case plan requirement only to those inmates admitted after July 1, 2014, the effective date of the amendments to the Probation and Parole Law, After the conclusion of briefing in this case, this Court held in Drankus, 204 So.3d at 1232 (¶ 10), that the case plan requirement in Section 47-7-3.1(1) does not apply to inmates admitted to MDOC custody before the effective date of the statute.

¶ 10. In Drankus, an inmate who had been sentenced in 1987 filed an ARP request for a case plan. Drankus, 204 So.3d at 1232 (¶ 2). MDOC denied the request on the ground that Section 47-7-3.1 does not apply retroactively to inmates sentenced before July 1, 2014. Id. at 1232 (¶ 3). Dran-kus appealed to the circuit court, which held that Mississippi Code Section 47-7-3.1 means that all parole eligible inmates, including Drankus, must receive a case plan. Id. at 1232 (¶6). MDOC appealed, and this Court found that the department’s interpretation of the Probation and Parole Law was reasonable and supported by the statutory language. Id. at 1232 (¶ 10). The Court applied the rule that “[a] statute will not be construed to be retroactive unless the words admit of no other construction or meaning, and there is a plain declaration in the act that it is.” Id. at 1232 (¶ 13) (quoting Hudson v. Moon, 732 So.2d 927, 931 (Miss. 1999)). A majority of this Court observed that Section 47-7-3,1(2) requires MDOC to complete a case plan within ninety days of an inmate’s admission to MDOC custody. Id. at 1232 (¶ 10). The majority further observed that Section 47-7-3.1(4) provides that MDOC “shall ensure that the case plan is achievable prior to [an] inmate’s parole eligibility date.” Id. at 1232 (¶ 7); Miss. Code Ann. § 47-7-3.1(4). The Court found that, although Section 47-7-3.1(1) provides that “all parole eligible inmates” receive a case plan, it would be impossible for MDOC to develop case plans for all such inmates and comply with Section 47-7-3.1(2) and 47-7-3.1(4). Drankus, 204 So.3d at 1232 (¶ 10). Therefore, the Court held that Section 47-7-3.1 did not “clearly and unequivocally express an intention for retroactive applicability”; thus, it did not apply to Drankus. Id. at 1232 (¶ 14).

¶ 11. This Court’s holding in Dran-kus governs the outcome of this case. Like Drankus, Allen, who was sentenced before July 1, 2014, filed an ARP request that MDOC develop a case plan for him. MDOC denied Allen’s ARP request on the ground that Section 47-7-3.1 does not apply to inmates sentenced before July 1, 2014. Although the circuit court reversed MDOC’s decision, on appeal this Court held that the department’s interpretation of the Probation and Parole Law was reasonable. Applying Drankus, we hold that, because Allen was sentenced before the effective date of the Probation and Parole Law, he is not entitled to a case plan. Therefore, we reverse the decision of the circuit court and render a decision in favor of MDOC.

CONCLUSION

¶ 12. This Court determined in Fisher v. Drankus, 204 So.3d 1232, that, under the Probation and Parole Law, an inmate sentenced before July 1, 2014, is not entitled to receive a case plan. Therefore, because Allen was sentenced before July 1, 2014, he is not entitled to a case plan. We reverse the decision of the circuit court and render a decision in favor of MDOC.

¶ 13. REVERSED AND RENDERED.

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

      . On November 14, 2016, this Court received a copy of Allen's request for an administrative remedy and MDOC's First Step Response Form and Second Step Response Form denying relief. A file stamp on these documents reflects that they were filed in the circuit court on November 9, 2016, approximately one year after that court had rendered its decision dated November 6, 2015. Because this filing was not a part of the record before the circuit court at the time of its ruling, we do not consider it. See M.R.A.P. 10(f) (‘‘[n]oth-ing in this rule shall be construed as empowering the parties or any court to add to or subtract from the record except insofar as may be necessary to convey a fair, accurate, and complete account of what transpired in the trial court with respect to those issues that are the bases of appeal”).

      . Also, in Rochell v. State, 204 So.3d 774 (Miss. 2016), the Court held that an amendment to the Probation and Parole Law providing for presumptive parole did not apply to an inmate sentenced before July 1, 2014. Id. at 776. To reach this conclusion, the Court in Rochell relied in part on its determination that the case plan requirement did not apply to such inmates. Id.

      . Three justices disagreed with the reasoning of the majority. Id. at 1232 (¶¶ 16-29) (Dickinson, P J., concurring in result only; Kitchens, J., dissenting, joined by King, J.).


source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE,

license: Public Domain

text:
    MISSISSIPPI DEPARTMENT OF CORRECTIONS v. Jerry BLAND
    NO. 2015-CA-01908-SCT
    Supreme Court of Mississippi.
    01/26/2017
    ANTHONY L. SCHMIDT, JR., OFFICE OF THE ATTORNEY, GENERAL, BY: DARRELL C. BAUGHN, ATTORNEYS FOR APPELLANT
    JERRY BLAND (PRO SE), ATTORNEY FOR APPELLEE
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶ 1. The Mississippi Department of Corrections (MDOC) appeals the Sunflower County Circuit Court’s decision requiring it to develop a parole case plan for Jerry Bland. We reverse and render.

FACTS AND PROCEDURAL HISTORY

¶2. In 1982, Bland pleaded guilty to capital murder, burglary of a dwelling, and uttering a forgery. He was sentenced to life imprisonment for the capital murder, to ten years for the burglary, and to fifteen years for the forgery. Bland first was eligible for parole in October 1998, but he was denied. Since then, Bland has had seven more parole hearings, and his next hearing currently is scheduled for May 21, 2018.

¶ 3. After House Bill 585 went into effect in July 2014, Bland sought a parole case plan pursuant to newly enacted Mississippi Code Section 47-7-3.1. On July 1, 2015, Bland filed his “first step” with MDOC’s Administrative Remedy Program (ARP). In response, MDOC said that House Bill 585 was not retroactive and that it applied only to those offenders sentenced on or after July 1, 2014. MDOC informed Bland that he was not entitled to a parole case plan, but that he would “continue to be considered for Parole Docket and be reviewed by the Parole Board.” Bland proceeded to ARP’s “second step,” and MDOC again informed him that he was not entitled to a parole case plan.

¶ 4. Bland then filed a motion for judicial review in the Circuit Court of Sunflower County, and the circuit judge reversed MDOC’s decision, finding that Section 47-7-3.1 applied retroactively to offenders sentenced before July 1, 2014. MDOC now appeals to this Court and presents two arguments:

1. Bland is not eligible to receive a parole case plan, pursuant to Miss. Code Ann. § 47-7-3.1, since he was convicted prior to July 1, 2014; and
2. Developing a case plan is moot since Bland’s parole eligibility date is in the past, so the purpose of the case plan which is to facilitate presumptive parole cannot be fulfilled.

ANALYSIS

¶ 5. This Court recently addressed these exact arguments in Fisher v. Drankus, 204 So.3d 1232 (Miss. 2016)—a case also from the Sunflower County Circuit. There, as here, inmate Drankus argued that he was entitled to a case plan under newly enacted Section 47-7-3.1. Drankus appealed after MDOC informed him that he was not eligible for a case plan because he was sentenced in 1987, and the circuit judge reversed MDOC’s decision. MDOC appealed to this Court, and we found that “MDOC’s interpretation of Section 47-7-3.1 [was] reasonable and not inconsistent with the language of the statute and ascertainable legislative intent.” Drankus, 204 So.3d at 1232 (¶ 10). We also found that “[bjecause Section 47-7-3.1 does not clearly and unequivocally express an intention for retroactive applicability, we cannot say that Section 47-7-3.1 applies to Drankus.” Id. at 1236 (¶ 14). We find the same here and therefore reverse and render the judgment of the Sunflower County Circuit Court.

CONCLUSION

¶ 6. For the reasons stated in Fisher v. Drankus, we reverse and render the judgment of the Sunflower County Circuit Court.

¶ 7. REVERSED AND RENDERED.

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

      . Section 47-7-3.1 provides, in pertinent part, that "... [MDOC] shall develop a case plan for all parole eligible inmates to guide an inmate’s rehabilitation while in [MDOC’s] custody and to reduce the likelihood of recidivism after release.” Miss. Code Ann. § 47-7-3.1(1) (Rev. 2015).

      . Mississippi Code Sections 47-5-801 and 47-5-803 authorize MDOC to "adopt an administrative review procedure,” which "shall constitute the administrative remedies available to offenders for the purpose of preserving any cause of action such offenders may claim to have against the State of Mississippi, the Department of Corrections or its officials or employees.” Miss. Code Ann. §§ 47-5-801, 47-7-803(1) (Rev. 2015).

      . Section 47-5-807 provides that “[a]ny offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure under Sections 47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency's final decision, seek judicial review of the decision.” Miss. Code Ann. § 47-5-807 (Rev. 2015).

      . See also Rochell v. State, 204 So.3d 774 (Miss. 2016).


author: WALLER, CHIEF JUSTICE,

text:
    Quindon D. THOMAS and Latara S.J. Thomas v. CHEVRON U.S.A., INC. and Dwayne Haisch
    NO. 2016-CA-00101-SCT
    Supreme Court of Mississippi.
    01/26/2017

      ATTORNEYS FOR APPELLANTS: JAMES R. REEVES, JR., MATTHEW G. MESTAYER
    ATTORNEYS FOR APPELLEES: MICHAEL JAMES BENTLEY, PATRICK R. BUCHANAN •
   WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶ 1. Quindon D. Thomas, an employee of a contractor at Chevron’s petroleum refinery plant in Pascagoula, Mississippi, was injured on the job. Thomas accepted workers’ compensation benefits provided by Chevron for his injuries, Thomas then sued Chevron and one of its employees for the same injuries. Chevron asserted the exclusive-remedy defense under the Mississippi Workers’ Compensation Act and the circuit court granted summary judgment to Chevron. Thomas now appeals. We reverse and remand for a trial on the merits.

FACTS AND PROCEDURAL HISTORY

¶2. The facts in this case are largely undisputed. Quindon' D. Thomas was injured while working at Chevron’s petroleum refinery in Pascagoula, Mississippi, on October 13, 2012. Thomas was employed with Bragg Investment Co., d/b/a American Plant Services, Inc. (APS), as a maintenance worker for the refinery. At the time of the injury, Thomas was working near Dwayne Haisch, a Chevron employee, who opened a valve that expelled hot steam, coke, and water onto Thomas, burning most of his body.

¶ 3. Chevron had contracted with APS since 2004, to perform maintenance and other specialized services at its refinery. As part of this initial contract, Chevron required APS to provide workers’ compensation benefits for its employees. In June 2010, Chevron and APS amended their contract to acknowledge that Chevron would provide workers’ compensation insurance for all APS employees working at the refinery through Chevron’s Owner Controlled Insurance Program (OCIP).

¶ 4. Following the incident, Thomas immediately began receiving workers’ compensation benefits. Chevron paid $350,000 to Thomas, fully exhausting the policy’s self-insured retention. Following that, Indemnity Insurance began paying wages and benefits pursuant to the workers’ compensation coverage under the OCIP. In addition to Chevron’s payment, Indemnity Insurance had paid Thomas $628,734 in workers’ compensation benefits.

¶ 5. Thomas and his wife (hereafter collectively referred to as “Thomas”) sued Chevron and its employee, Dwayne Haisch, in the Circuit Court of Jackson County for the injuries Thomas sustained while working at Chevron’s refinery. The complaint asserted negligence and premises liability claims against Chevron. In its reply, Chevron raised affirmative defenses, including its immunity from tort liability under the Mississippi Workers’ Compensation Act (MWCA). Indemnity Insurance Company of North America (Indemnity Insurance) intervened in the suit. It sought reimbursement for more than $600,000 it had paid to Thomas, in the event Thomas succeeded in the suit against Chevron.

¶ 6. Following Indemnity Insurance’s motion to intervene, Chevron and Haisch moved for summary judgment on the issue of “Whether Chevron was a statutory employer entitled to immunity from suit under the MWCA’s exclusive remedy provision.” Thomas filed a cross-motion for summary judgment seeking a ruling that Chevron was not entitled to immunity because Chevron was not his statutory employer. On December 22, 2015, the circuit court entered a final judgment in favor of Chevron’s motion for summary judgment, dismissing Thomas’s cross-motion, and dismissing with prejudice all claims against Chevron. Thomas timely appealed to this Court on January 19, 2016.

DISCUSSION

¶ 7. The standard of review of a trial court’s grant of a summary judgment motion is de novo. Miller v. Meeks, 762 So.2d 302, 304 (Miss. 2000) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss. 1988)). Accordingly, this Court will review all the evidentiary matters, admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss. 1996). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law, summary judgment should be entered forthwith for the movant. Otherwise, the motion should be denied. Heigle v. Heigle, 771 So.2d 341, 345 (Miss. 2000).

I. Whether the circuit court erred in granting Chevron’s motion for summary judgment.

¶8. In its motion for summary judgment, Chevron argued that Mississippi Code Section 71-3-9 would afford it immunity from tort liability since it had acted as its own general contractor and had provided compensation benefits to Thomas. See Miss. Code Ann. § 71-3-9 (Rev. 2011). Chevron also argued that this Court had recognized a flexible definition of contractor such that Mississippi Code Section 71-3-7(6) would make Chevron the statutory employer of APS and its employees. Nash v. Damson Oil Corp., 480 So.2d 1095, 1100 (Miss. 1985); see Miss. Code Ann. § 71-3-7(6) (Rev. 2011). Under Mississippi Code Section 71-3-7(6), a contractor shall be liable for workers’ compensation benefits for a subcontractor’s employees if the subcontractor has not provided for such benefits. Id. When this statute is applicable, the contractor who secures the benefits becomes a statutory employer of the subcontractor’s employees and may receive immunity from tort liability.

¶ 9. Chevron also argues that, since no Mississippi case yet has dealt with a premises owner acting as a contractor, this Court should look to a recent Texas Supreme Court case, which determined that a premises owner would have tort immunity as a general contractor. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 438 (Tex. 2009). In Summers, Entergy contracted with International Maintenance Corporation (IMC) to provide certain maintenance and technical services on its various facilities. Summers, 282 S.W.3d at 435-36. The parties agreed that Entergy would provide workers’ compensation benefits through its Owner Provided Insurance Program (OPIP). Id. After John Summers, an IMC employee, was injured at Entergy’s Sabine Station plant, he applied for and received benefits under Entergy’s policy. Id. Summers then sued Entergy for negligence. Id. The Texas Supreme Court faced the issue of whether a premises owner also could act as a general contractor and receive immunity under the workers’ compensation act.

¶ 10. The Workers’ Compensation Act in Texas provides immunity for a general contractor who qualifies under the act. To qualify, the general contractor and subcontractor must enter into a written agreement under which the general contractor agrees to provide the subcontractor with compensation benefits. Id. at 436. Further, the Texas Labor Code defines a general contractor as “a person who undertakes to procure the performance of work or a service, either separately or through the use of subcontractors.” Tex. Lab. Code § 406.121(1). That Court decided that En-tergy clearly was a general contractor under the statute and, despite also being a premise owner, was entitled to immunity. Id. at 438.

¶ 11. Chevron also argues that, since it voluntarily provided compensation benefits to APS’s employees, it was acting as any other general contractor would. Thus, rather than using contractors to avoid liability and defeat the purposes of the Act, Chevron sought to provide maximum coverage for all employees working on its premises. Chevron argued that this was what the Legislature had intended under the Act.

1112. In his cross-motion for summary judgment, Thomas argued that Chevron was not a traditional prime or general contractor of APS, as defined by caselaw, and was in fact the owner of the premises; therefore Chevron was not a statutory employer of Thomas, such that Mississippi Code Section 71-3-9 would apply. Additionally, the contract between Chevron and APS clearly labels APS as a contractor. Thomas argues that, even though Chevron provided compensation for Thomas’s injuries, it cannot seek immunity from tort liability where it was not required by statute to provide the coverage in the first place and where it was not a statutory employer of Thomas.

¶ 13. The Court has dealt with similar situations before, though none in which a premises owner contractually agreed to provide workers’ compensation benefits to a contractor’s employees. First, in Doubleday v. Boyd Construction, Boyd contracted with the Mississippi Highway Department to complete a project and in turn hired W.T. Ratliff Co. as a subcontractor. Doubleday v. Boyd Constr., 418 So.2d 823 (Miss. 1982). In the subcontract, Boyd required Ratliff to provide workers’ compensation insurance for its employees. Doubleday, an employee of Ratliff, was injured when a vehicle struck him while he was working on the project. Workers’ compensation benefits were paid to Doubleday by Ratliffs workers’ compensation carrier. Doubleday filed suit against Boyd, alleging that Boyd had failed to provide adequate traffic warnings. The Court held that when Boyd had contractually required workers’ compensation insurance for the employees of Ratliff, its subcontractor, Boyd, had “secured” compensation insurance for the benefit of Doubleday within the meaning and purpose of the statute. Doubleday, 418 So.2d at 826; see also Miss. Code Ann. § 71-3-7(6) (Rev. 2011). That Court further concluded that it would be paradoxical for Boyd to face personal injury judgments while attempting to comply with the statute by contractually securing compensation insurance. Doubleday, 418 So.2d at 826. The Court stated that the “primary intention of the [workers’ compensation] statute ... [is] for the protection of employees of independent contractors or subcontractors. ” Id. at 826.

¶ 14. Next, in Falls v. Mississippi Power & Light Co. (MPL), the Court held Doubleday was not controlling, as MPL was not a prime or general contractor. Falls v. Mississippi Power & Light Co., 477 So.2d 254, 258 (Miss. 1985). The Falls Court relied on a two-part test to determine whether MPL had to secure workers’ compensation insurance: Whether (1) Falls was an employee of MPL (he was not); and (2) whether MPL qualified as a prime contractor and Deviney a subcontractor within the meaning of Section 71-3-7. Id. at 256. MPL contracted with Deviney to remove some pine branches around its high-voltage power lines located on the right of way it acquired by permit on the Natchez Trace Parkway near Port Gibson, Mississippi. Id. at 255. Deviney’s employee, Henry Falls, was electrocuted to death when he came into contact with a power line on the work site. Id. MPL had mandated contractually that Deviney provide workers’ compensation benefits to its employees. Id. at 256. The Court found that MPL was “not a prime or general contractor within the meaning of those decisions and statute.” Id. at 258; see also Nations v. Sun Oil Co., 695 F.2d 933 (5th Cir. 1983); Doubleday, 418 So.2d at 823. The right of way acquired by MPL through its “permit did not constitute appellee/permit-tee [ (MPL) ] as a general or prime contractor for work done by Deviney Company along the right-of-way.” Falls, 477 So.2d at 258. “Deviney Company and its employees were not statutory employees of appellee [ (MPL) ] and ... no statutory-obligation was imposed upon appellee [ (MPL) ] to provide workmen’s compensation coverage for Deviney and its employees.” Id. MPL was a third party and subject to a common-law tort claim as “any other party” within the meaning of Section 71-3-71. Id.

¶ 15. Next, in Nash v. Damson Oil Corp., Damson operated an oil field in Wayne County, Mississippi, and entered into a contract with Trigger Contractors, Inc., an independent contractor, to do work .on its oil and gas wells. Nash v. Damson Oil Corp., 480 So.2d 1095, 1096 (Miss. 1985). Gary Nash was injured while working on an oil well and received workers’ compensation benefits from Trigger Contractors, Inc. Id. at 1097. Almost three years later, Nash brought a suit against Damson, asserting that Damson was not a statutory employer and was an “other party” under Mississippi Code Section 71-3-71, which allows an injured employee to bring suits against third parties despite having received workers’ compensation benefits. Id. at 1097-98. The trial court had found that this case was similarly situated to Doubleday and, as a result, Damson was provided immunity. Id. at 1096. However, on appeal, this Court found that Damson was not similar to Boyd and listed several differences, including that “Boyd Construction Co. had no ownership interest in the premises.”- Id. at 1098. The Nash Court stated the following regarding the ownership interest and Damson’s status as a contractor:

The operative point is that Damson’s interest, use and activities with respect to the premises are wholly different in nature from those of one ordinarily considered a general or prime contractor-the sort of contractor we believe contemplated by Doubleday .... See Miss. Code Ann. § 71-3-7. Damson’s position with respect to the premises is similar to that of Mississippi Power <⅞ Light Company in Falls and unlike that of Boyd Construction Co. in Doubleday. Damson is an operator or even in a sense an owner pro hac vice, a lessee. On the other hand, Damson lies outside the common understanding of such terms as “prime contractor” or “general contractor.” Therefore, Damson is not the sort of “contractor” within the meaning and contemplation of Section 71-3-7.

Nash, 480 So.2d at 1100.

¶ 16. Additionally the Nash Court found that “nothing in the law obligate[d] such a contractor to secure compensation insurance.” Id. at 1099. This is because Mississippi Code Section 71-3-7(6) provides that the contractor is, liable only where the subcontractor failed to provide the coverage and Trigger Contractors had provided it to its employees. Further, the Nash Court relied on the holding in Falls, where that Court concluded that MPL was not a statutory employer of the injured employee because “nothing in Section 71-3-7 imposed upon MP & L the duty to secure or pay compensation to employees of [the subcontractor].” Id. at 1100.

¶ 17. In Richmond v. Benchmark, the injured employee of a subcontractor of Benchmark challenged the precedent of Doubleday where there were similar factual circumstances. Richmond v. Benchmark, 692 So.2d 60, 63 (Miss. 1997). Benchmark hired United Piping Systems, Inc. (UPS) to perform plumbing work on a site in Brandon, Mississippi. UPS’s employee Ernest Richmond was injured while on the work site. ■ Id. at 61. Though the agreement was oral, Benchmark had required UPS to maintain workers’ compensation insurance, which UPS did at all relevant times. Id. at 62-63.

¶ 18. The Court in Richmond was asked to overrule the Doubleday holding because the idea that a “contractor-in these cases has ‘secured’ the payment of compensation to the injured employees of the subcontractors [was a complete fiction]. In each of these cases, the compensation was secured by the subcontractor/employer.” Richmond, 692 So.2d at 63 (quoting; Nash, 480 So.2d at 1102.) The Court declined to overrule Doubleday because, where a contractor/subcontractor relationship existed, the statute placed the burden on the contractor to provide coverage if the subcontractor had failed to do so. The statute requires the contractor to “stand in the place of the subcontractor, if the subcontractor fails to obtain workers’ compensation coverage.” Richmond, 692 So.2d at 63.

¶ 19. In Salyer v. Mason Technologies, Inc., this Court again found that the contractor was entitled to tort immunity because it had secured benefits to the employees of its subcontractor albeit through the subcontractor’s coverage. The Court held that Mason’s lack of ownership of the premises and its resemblance to the contractor in Doubleday afforded Mason immunity from tort liability. The Court again focused on the fact that the “purpose of the legislature was to prevent the general contractor from escaping liability by employing subcontractors who were not financially responsible and leaving the employees unprotected.” Salyer v. Mason Technologies, Inc., 690 So.2d 1183, 1186 (Miss. 1997) (quoting Mills v. Barrett, 213 Miss. 171, 174, 56 So.2d 485, 486 (1952)).

¶ 20. The federal courts also have relied on a narrow definition of contractor/subcontractor in Honey v. United Parcel Service. Though this case turned-on-the borrowed servant doctrine, the Honey Court stated that the relevant statutes provide no definitions for either subcontractor or contractor, and therefore, the Court quoted from Nash that “one who is a ‘contractor’ in the ‘generic sense’ but who ‘lies outside the general understanding of such terms as “prime contractor” or “general contractor,’ ” is “not the sort of ‘contractor’ within the meaning and contemplation of Section 71-3-7.” Honey v. United Parcel Serv., 879 F.Supp. 615, 617 n.2 (S.D. Miss. 1995) (quoting Nash, 480 So.2d at 1100).

¶21. Finally, in Magee v. Transcontinental Gas Pipe Line Corp., Transcontinental (Transco) purchased a right of #ay on which it sought to lay a pipeline. Tran-sco then contracted with Singley for the construction of the project. This Court held that Transco had no duties under the Workers’ Compensation Act and therefore “enjoy[ed] no benefits under the Act.” Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 184 (Miss. 1989). The Court continued, “Transco may' not gain tort immunity by assuming compensation obligations which in fact and in law it did not have.” Id. Likewise, Chevron may not purchase workers’ compensation benefits and secure for itself immunity from tort liability.

11-22. In sum, this Court never has treated the owner of land as a prime or general contractor for purposes of the Workers’ Compensation Act. Here, Chevron was the owner of the plant. The fact that Chevron contracted with APS for certain maintenance and other work does not change Chevron’s- status as an owner. APS is the chief or prime contractor. A “chief or prime contractor” is defined as one “who has a contract with the owner of a project or job, and has full responsibility for its completion.”

¶ 23. Chevron had no duty as an employer or contractor to secure workers’ compensation insurance and its act of voluntarily purchasing coverage does not change its status. Chevron in this case is not immune from a negligence action and thus is subject to Thomas’s tort claim as “any other party” pursuant to Mississippi Code Section 71-3-71. Doubleday, 418 So.2d at 827.

II. Whether the circuit court erred in denying Thomas’s cross-motion for partial summary judgment.

¶ 24. Since this Court reverses the trial court’s grant of Chevron’s motion for summary judgment, it also reverses the trial court’s denial of Thomas’s cross-motion for partial summary judgment, holding that Chevron is not a statutory employer and not immune from tort liability. This Court remands the case for further proceedings consistent with this opinion.

CONCLUSION

¶25. This Court finds that Chevron is not a statutory employer of Thomas and therefore is not immune from tort liability. Accordingly, this Court reverses the trial court’s grant of summary judgment in favor of Chevron, reverses the trial court’s denial of Thomas’s cross-motion for summary judgment, and remands for a trial on the merits.

¶ 26. REVERSED AND REMANDED.

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

      . Mississippi Code Section 71-3-9 states in pertinent part:
      The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death.
      (Emphasis added.)

      . Mississippi Code Section 71-3-7(6) provides:

        In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.

      . The Texas Supreme Court stated in Summers:

      There can be no doubt that premises owners can be, and often are, employers who carry workers’ compensation insurance. It is also true that owners frequently contract with others to perform work on their premises. But there has never been a requirement that an owner must first engage a general contractor to have work done on its premises. The owner is free to do the work with its own employees, to directly contract with others to do the work, or to do the work using some combination of the two. The dissent says an owner can be an employer, but cannot be a general contractor. However, we can find nothing in the statute specifying that an owner who also wears the hat of a general contractor is disqualified from coverage under the Workers’ Compensation Act simply because it chooses to contract directly for work on its premises.

        Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 440 (Tex. 2009).

      . Chief or Prime Contractor, Business Dictionary, http://www.businessdictionary.com/ definition/prime-contractor.html (last visited Jan. 24, 2017).


author: BEAM, JUSTICE,

text:
    MISSISSIPPI DEPARTMENT OF CORRECTIONS v. Sandy ROBERTS
    NO. 2015-CA-01907-SCT
    Supreme Court of Mississippi.
    02/02/2017

      ATTORNEYS FOR APPELLANT: ANTHONY LOUIS SCHMIDT, JR., OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN
    ATTORNEY FOR APPELLEE: SANDY ROBERTS (PRO SE)
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   BEAM, JUSTICE,

FOR THE COURT:

¶ 1. The Mississippi Department of Corrections (MDOC) appeals from the Sunflower County Circuit Court’s order mandating that Sandy Roberts, an inmate in the custody of MDOC, be issued a parole case plan pursuant to Mississippi Code Section 47-7-3.1. See Miss. Code Ann. § 47-7-31 (Rev. 2015). Finding that Roberts is not entitled to a parole case plan, we reverse the circuit court’s order and render judgment.

FACTS AND PROCEDURAL HISTORY

¶2. Roberts was convicted in 1978 of capital murder and two counts of armed robbery. He was sentenced to life in prison for the capital-murder conviction and thirty years for each armed robbery conviction. Roberts’s parole eligibility date was in 1997, and he has been incarcerated since his commitment.

¶ 3. In June 2015, Roberts filed a “first-step” request with MDOC’s administrative remedy program (ARP), asserting that he should be issued a parole case plan due to statutory provisions passed in House Bill 585 (HB 585), which went into effect July 1, 2014. In response, MDOC said that Roberts is ineligible to receive a parole case plan because he was sentenced in 1978, and HB 585 did not go into effect until 2014 and is not retroactive.

¶4. Roberts proceeded to the ARP’s “second-step” process, in which he again requested that he be given a parole case plan. MDOC denied his request on the same basis.

¶ 5. Roberts appealed MDOC’s decision to the Sunflower County Circuit Court. The circuit court reversed MDOC’s decision and ordered MDOC to provide Roberts with a parole case plan pursuant to Section 47-7-3.1. MDOC appeals that decision to this Court.

DISCUSSION

¶ 6. We addressed this exact issue in Fisher v. Drankus, 204 So.3d 1232 (Miss. 2016), which handed down on December 8, 2016. There, as here, MDOC denied inmate Michael Drankus’s ARP request(s) that he be issued a parole case plan under newly enacted Section 47-7-3.1. Drankus appealed MDOC’s decision to the Sunflower County Circuit Court, which reversed MDOC’s decision and ordered that Dran-kus be issued a case plan. MDOC appealed to this Court.

¶ 7. We reversed the circuit court’s order and rendered judgment in favor of MDOC’s decision. Construing certain provisions in HB 585, we found that MDOC’s interpretation of Section 47-7-3.1 was reasonable and not inconsistent with statute’s language and ascertainable legislative intent. We concluded that, “[bjecause Section 47-7-3.1 does not clearly and unequivocally express an intention for retroactive applicability, we cannot say that Section 47-7-3.1 applies to Drankus.”

¶ 8. We find the same here.

CONCLUSION

¶ 9. For these reasons, we reverse the Sunflower County Circuit Court’s order requiring that Roberts be issued a parole case plan under Section 47-7-3.1 and render judgment in favor of MDOC’s ARP decision.

¶ 10. REVERSED AND RENDERED.

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


author: RANDOLPH, PRESIDING JUSTICE,

text:
    MISSISSIPPI DEPARTMENT OF CORRECTIONS v. Martin GROOT
    NO. 2016-CA-00433-SCT
    Supreme Court of Mississippi.
    02/02/2017
    ANTHONY LOUIS SCHMIDT, JR. OFFICE OF THE ATTORNEY GENERAL BY: DARRELL C. BAUGHN, ATTORNEYS FOR APPELLANT
    MARTIN GROOT (PRO SE), ATTORNEY FOR APPELLEE
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. The Circuit Court of Sunflower County directed the Mississippi Department of Corrections (MDOC) to issue Martin Groot (pro se) a parole case plan pursuant to Mississippi Code Section 47-7-3.1(1) (Rev. 2015), which went into effect on July 1, 2014. The MDOC appeals, arguing that Groot is not entitled to a parole case plan because he was convicted prior to July 1, 2014.

FACTS AND PROCEDURAL HISTORY

¶ 2. Groot is an inmate in MDOC custody. On March 15, 1983, Groot was sentenced to life imprisonment, having been found guilty of murder. On August 9,1983, Groot pled guilty to prescription forgery and was sentenced to three years in MDOC custody. Groot’s parole eligibility date was January 21, 1993. Groot and the MDOC disagree regarding how many times Groot’s parole was granted and subsequently revoked. However, it is unquestioned that Groot was released on parole in August 2010 and that parole was revoked in either July or August 2012. Groot’s next parole hearing is scheduled for February 24, 2017.

¶ 3. On October 22, 2015, Groot submitted a grievance through MDOC’s Administrative Remedy Program (ARP), in which Groot requested a case plan pursuant to Section 47-7-3.1. On November 22, MDOC issued a first-step response, which informed Groot that he was not entitled to a case plan because House Bill 585 applied only to offenders who were sentenced on or after July 1, 2014. The response further informed Groot that offenders who were eligible for parole before July 1, 2014, “will continue to be considered for [p]arole [djocket and be reviewed by the Parole Board.” Unsatisfied, Groot sought a second-step response. MDOC again found Groot was not entitled to a parole case plan because House Bill 585 only applied only to offenders who were sentenced on or after July 1, 2014.

¶ 4. Groot sought judicial review, requesting the Circuit Court of Sunflower County “enjoin the [MDOC] to prepare and provide to [Groot] a case plan as stated in House Bill 585, pursuant to Miss. Code Ann. § 47-7-3.1.” As the identical issue was pending on appeal in Fisher v. Drankus, the MDOC moved to hold Groot’s case in abeyance pending the resolution of Dranlms on appeal. The trial court found Section 47-7-3.1(l)’s language “plain and unambiguous” and ordered “that if Martin Groot is eligible for parole, then he is entitled to receive a case plan pursuant to the statutory mandate.” The MDOC’s motion to hold in abeyance was denied. The MDOC appealed.

ANALYSIS

¶ 5. The sole issue on appeal is whether Groot, a parole-eligible inmate convicted prior to July 1, 2014, is entitled to a parole case plan under Section 47-7-3.1(1). The identical issue on substantially similar facts and from the same trial court was presented to us in Drankus, and we answered in the negative. Drankus, 204 So.3d at 1234. Finding the MDOC’s interpretation “reasonable and not inconsistent with the language of the statute and ascertainable legislative intent,” we reversed the circuit court’s order requiring that Drankus be issued a case plan and affirmed the MDOC’s ARP decision that Drankus was not entitled to a case plan. Id. at 1235.

¶ 6. Suffice it to say that, pursuant to Drankus, the judgment of the Circuit Court of Sunflower County is reversed and judgment rendered here in like fashion.

¶ 7. REVERSED AND RENDERED.

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

      . MDOC argues Groot was paroled three times. Groot argues he was paroled only once.

      . Fisher v. Drankus, 204 So.3d 1232 (Miss. 2016).


text:
    SANDERSON FARMS, INC. and George Varnado v. D. D. MCCULLOUGH
    NO. 2015-IA-00854-SCT
    Supreme Court of Mississippi.
    02/02/2017

      RICHARD O. BURSON, SHIRLEY M. MOORE, ATTORNEYS FOR APPELLANTS
    ORVIS A. SHIYOU, JR., ATTORNEY FOR APPELLEE
   BEAM, JUSTICE,

FOR THE COURT:

¶ 1. This case comes to the Court on interlocutory appeal of the Lincoln County Circuit court’s Order Denying the Defendant’s Motion for Summary Judgment. Although the plaintiffs overarching claim is framed in negligence, it factually sounds in intentional tort and is subsequently barred by the one-year statute of limitations under Mississippi Code Section 15-1-49. Therefore, this Court reverses the trial court’s Order Denying Summary Judgement and renders a verdict in favor of the Defendant.

FACTS

¶2. The following facts are disputed, though they have been summarized based on both party’s briefs, deposition transcripts, and trial court orders.

¶ 3. On May 24, 2010, Plaintiff/Respondent D.D. McCullough was injured when he was struck by a vehicle driven by Petitioner/Defendant George Varnado. Varna-do, an employee of Petitioner/Defendant Sanderson Farms, Inc., visited McCullough’s chicken farm that afternoon to inspect its chicken houses, as directed by his employer. Consistent with a Boiler Production Agreement (BPA) McCullough signed earlier that year, Varnado sought to conduct a routine evaluation of the chicken-house conditions to ensure they met the standards under the contract.

¶ 4. Throughout his inspection, Varnado discovered deficiencies in violation of the BPA, after which he returned to the cab of his truck and began to write a deficiency report. McCullough approached Varnado’s vehicle and asked what he was doing, to which Varnado responded, that he was “writing deficiencies.” Recognizing this report would affect the terms of the BPA and potentially terminate his contract, McCullough stood at the closed driver’s side window and shouted to Varnado, “you lied to me, you gave me four days ... its [sic] only been two!” He then moved in front of Varnado’s truck and yelled at him to get out to talk about the report. Varna-do remained in the truck, with the doors locked and window closed, refusing to exit the vehicle.

¶ 5. McCullough continued to urge Var-nardo to “get out and talk.” Without warning or a discernable request to leave the property, Varnado then “mashed the gas,” striking McCullogh with the vehicle. This contact forced McCullough back roughly two feet but did not cause him to fall. He again urged Varnado to get out and talk, but Varnado refused and instead moved his truck “straightforward,” hitting McCullough a second time. McCullough again stumbled backward, though he did not fall.

¶ 6. McCullough approached the vehicle a third time and implored Varnado to get out and talk, while Varnado continued to yell inaudible responses from the safety of the truck cab. Varnado then moved the truck forward and “went straight through,” knocking McCullough’s “ass off,” causing him to fall and hit his head on the truck’s bumper. The impact pushed McCullough to the side of the truck, after which Varnado continued to drive off and exited the property.

¶ 7. Following the altercation, Varnado returned to McCullough’s property, accompanied by several Sanderson officials and a deputy sheriff. The officials and the deputy approached McCullough’s home in an effort to discuss the incident. They request ed that McCullough go with them to the Sanderson office to discuss it further, but he refused and said that he was going to the emergency room instead. The officials, Varnado, and the deputy then left the property.

¶ 8. On May 26, two days following the incident, McCullough received a letter from Sanderson, terminating the BPA. The termination letter cited the BPA and noted that McCullough had violated both the duty to not interfere with Sanderson employees in the execution of their duties and the duty to not use threatening language toward those same employees. That same day, Sanderson officials removed roughly 99,000 chickens and their supplies from McCullough’s farm and severed the relationship.

¶ 9. McCullough subsequently filed two lawsuits; the first, which alleged Sander-son’s breach of contract, was dismissed on summary judgment. The second the case at hand—alleges that Varnado (and, as a result, Sanderson) breached the duty of reasonable care to operate a motor vehicle safely when Varnado failed to allow McCullough to move out of the truck’s path prior to accelerating forward. Following a period of discovery, Sanderson and Varnado moved for summary judgment, claiming that McCullough’s suit alleged a tort in negligence where, factually, the actions identified would constitute an intentional tort. Sanderson asserts that, sounding in intentional tort, McCullough’s claims are time-barred and the suit should be dismissed.

¶ 10. The trial judge reviewed the partys’ arguments and determined that, because Varnado denies having hit McCullough with his truck, much less intentionally doing so, a genuine issue of material fact exists surrounding the claims. The court denied the defendant’s motion, and Sanderson filed this appeal.

¶ 11. On interlocutory appeal, and in their motion for summary judgment, Sanderson and Varnado (collectively, Defendants) argue the following issues:

I. Whether Plaintiff’s sworn testimony demonstrates he alleges an intentional toyt which is barred by the one-year statute of limitations.
II. Whether Sanderson is liable for the intentional acts alleged by Plaintiff-
III. Whether Plaintiff has abandoned any claim against Sanderson related to the May 24, 2010, incident for failing to comply with the party’s contractual dispute-resolution procedure.
IV. Whether Plaintiff’s claim of negligent supervision is properly before this Court and tvhether it demonstrates that he alleges an intentional tort, not negligence.

Because we find that McCullough’s claims are grounded in intentional tort, rather than negligence, they are accordingly time-barred. As all other issues are now immaterial, we address only the petitioner’s first issue.

STANDARD OF REVIEW

¶ 12. This Court employs the de novo standard when reviewing a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it, including admissions in pleadings, answers to interrogatories, deposition testimony, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (Miss. 2002), citations omitted. Summary judgment is properly granted when the “pleadings, depositions, answers to interrogatories, and admissions on file ... 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.” M.R.C.P. (56)(c). The evidence must be viewed in the light most favorable to the nonmoving party. Simpson, 880 So.2d at 1050. However, that party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “[A] complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.” Galloway et al. v. The Travelers Ins. Co., et al. 515 So.2d 678, 683 (Miss. 1987). If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be granted in his or her favor. Anderson, 477 U.S. 242, 248, 106 S.Ct. 2505.

LAW AND ANALYSIS

Whether Plaintiffs sworn testimony demonstrates he alleges an intentional tort which is barred by the one-year statute of limitations.

¶ 13. While McCullough alleges negligence in his complaint, calling for the application of the three-year statute of limitations, this Court is not bound by the claims set forth in his petition. Instead, ‘[t]he law of the state is realistic. Sub-stance prevails over form.’ ” The question before this Court is whether the substance of McCullough’s claim against Varnado and Sanderson sounds in intentional tort or negligence. The evidence presented to support the claim alleged in McCullough’s complaint—while pleaded as an action in negligence—supports a claim generically akin to a common-law assault and battery: an intentional tort.

¶ 14. Under Section 15-1-35 of the Mississippi Code, civil actions for enumerated intentional torts—including assault, battery, and recently, intentional infliction of emotional distress—must be filed within one year of the injury alleged. While this Court “will not squeeze all intentional wrongs into the actions enumerated, ... [if] ... the conduct alleged may be fairly categorized as one of the enumerated torts, the one-year statute applies. Otherwise, it does not.” Nichols v. Tri-State Brick & Tile Co., 608 So.2d 324, 333 (Miss. 1992). Here, the fact that McCullough did not allege an intentional tort “is of no moment, as [t]here can be no escape from the bar of the statute of limitations applicable to intentional torts by the mere refusal to style the cause brought in a recognized statutory category and thereby circumvent prohibition of the statute.” City of Mound Bayou v. Johnson, 562 So.2d 1212, 1215 (Miss. 1990) (citing Dennis v. Travelers Ins. Co., 234 So.2d 624, 626 (Miss.1970)). The conduct alleged— though framed in negligence—is notably like the intentional torts of assault and battery and should be treated as such.

¶ 15. The incident at McCullough’s farm occurred on May 24, 2010, though the claims against Sanderson and Varnado were not filed until June 17, 2011—roughly one month beyond the running of the statute of limitations for intentional torts. All issues presented in this appeal depend on the substantive basis of McCullough’s claims and whether Varnado acted intentionally or negligently when he hit McCullough with his truck. If he acted intentionally, McCullough’s claims are time-barred; if he acted negligently, then the claims are timely under Mississippi Code Section 15-1-49 and its three-year limitations period.

¶ 16. The intentional tort of assault “occurs where a person (1) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (2) the other is thereby put in such imminent apprehension.” Morgan v. Greenwaldt, 786 So.2d 1037, 1043 (Miss. 2001) (citing Webb v. Jackson, 583 So.2d 946, 951 (Miss. 1991)). However, an action done without the requisite intent “does not make the actor liable to the other” for the apprehension caused, “although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.” Restatement (Second) of Torts, § 21 (1965). “Intent is an emotional operation of the mind, and is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time. Defendant’s intention is manifested largely by the things he does.” Mississippi State Bd. of Nursing v. Wilson, 624 So.2d 485, 494 (Miss. 1993). While the question of intent generally is a question of fact reserved for the jury, “it is well settled that intent may be shown by circumstances.” Id. Further, “[a] battery goes one step beyond an assault in that a harmful contact actually occurs.” Greenwaldt, 786 So.2d at 1043 (citing Restatement (Second) of Torts, § 18 (1965)).

¶ 17. Alternatively, to prevail on a claim of negligence, the “plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury.” Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 922 (Miss. 2006) (quoting Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262 (Miss. 2003), overruled on other grounds by Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789 (Miss. 2012)). Further, the plaintiff must show “a causal connection between the breach and the [injury], such that the breach is the proximate cause of the [injury].” Double Quick v. Lymas, 50 So.3d 292, 298 (Miss. 2010). The plaintiff must first prove the existence of a duty owed, then “[t]he elements of breach and proximate cause must be established ... with supporting evidence. Duty and breach of duty, which both involve foreseeability, are essential to finding negligence and [therefore,] must be demonstrated first.” Griffith v. Entergy Miss., Inc., 203 So.3d 579, 585 (Miss. 2016) (citations omitted). Generally, if a person of ordinary intelligence would not have “anticipated the dangers that his negligent act created for others,” then the injury would not be considered foreseeable. Ogburn v. City of Wiggins, 919 So.2d 85, 92 (Miss. Ct. App. 2005) (citations omitted). Moreover, “[foreseeability does not require that a person anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence.” Id.

¶ 18. These rules make clear that the principal difference between an intentional tort and negligence is that “an intentional tort is an act of intentional behavior designed to bring about the injury,” while a claim for negligence simply requires that the defendant failed to act as a reasonable person would under the same or similar circumstances, thereby breaching the applicable standard of care. Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 404 (Miss. Ct. App. 2007). Here, McCullough claims not that Varnado acted intentionally to injure him, but that both defendants breached their duty of reasonable care to pedestrians to operate a vehicle in a safe manner. In other words, when Varnado struck McCullough he violated that duty and this breach resulted in injuries, pain and suffering, medical expenses, income and wage loss, mental distress, and consequential damages. McCullough claims the defendants owed the duty of reasonable care at all times and them negligent breach of this duty was the foreseeable proximate cause of all injuries. However, the only evidence of Varnado’s breach—outside of the claims registered in the record’s pleadings and motions—is found in transcript excerpts of McCullough’s deposition testimony and other limited discovery materials.

¶ 19. Looking to the deposition transcripts, McCullough’s account of the event implies that he perceived Varnado’s actions as intentional. Specifically, McCoul-lough stated that, with less than one foot between himself and the truck, he looked “straight into the windshield” as “Mr. Var-nado mashed the gas .... Period. Point blank.” McCullough stated that he then told Varnado to “get his A out of the truck,” at which point “[Varnado] decided he wanted to leave.” The first two times Varnado hit McCullough with his truck, Plaintiff stumbled backward but approached the truck again after regaining his balance. McCullough testified that “[t]he third time he hit me, he knocked my ass off .... He meant to hit me. He meant to take me down, period.” The attorney conducting the deposition asked if, at this point, Varnado failed to give him enough time to get out of the way of the vehicle. McCullough responded, “[t]hat’s obvious .... He did not give me any time at all.” McCullough noted that he did not move away from the path of the truck because he “didn’t think [Varnado] was stupid enough to run [him] down,” although he also did not “think [Varnado] ever intended to give [him] a chance to get out from in front of the vehicle.”

¶ 20. Alternatively, Varnado contends that, while there was a dispute between McCullough and himself on May 24, at no point did he hit the grower with his truck; much less did he do so intentionally. He claims that there was neither an intentional act nor a negligent one, because the incident never happened. While Varnado’s deposition transcript was not presented to the trial court and is not properly before this court, attorneys for both parties described the provided testimony to the trial judge at the hearing on the defendant’s motion for summary judgment. There, counsel for the plaintiff discussed the content of Varnado’s testimony, noting that “part of his deposition said, I never intended to run over the man.” Defense counsel also summarized this portion of the deposition, stating that “he never intended to run over [McCullough], In fact, he denies that he ever did run over him. His testimony is completely the opposite of what Mr. McCullough has testified to with respect to the contact of his vehicle with Mr. McCullough.” The defense attorney further noted that, throughout Vanardo’s testimony, “the whole point is that [the incident] never happened.” The trial court reviewed this summary together with McCullough’s testimony and ruled that, in light of Varna-do’s account, a genuine issue of material fact existed as to whether his actions that day were intentional or whether the accident even occurred. This ruling seems to consider only the attorneys’ summaries of Varnado’s testimony and fails to account for all other testimony presented. In its order—which opted for brevity over detail—the court failed to address the lack of evidence presented by Plaintiff to support the claim that Defendants acted negligently. Rather, the court focused its ruling on testimony taken out of context, understanding only that Varnado did not intend to hit McCullough, but ignoring the fact that intent was mentioned only to support the fact that he denied the incident entirely. When viewed in light of McCullough’s deposition and his description of the events, Varnado’s claim that he did not hit McCullough and (as a result) did not intend to hit him, does not rise to the level of the material. factual dispute needed to deny summary judgment.

¶ 21. As the Supreme Court of the United States has held (and this Court steadfastly has followed),

the plain language of [Rule 56] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (emphasis added)). Here, the only “proof concerning an essential element of the non-moving party’s case,” was provided by McCullough through his deposition transcripts. To prove his allegation of negligence has merit, he cites the following dialogue:

Q: And it is your testimony that Mr. Varnado did not give you enough time to get out of the way of his vehicle?
A: That’s obvious.

¶ 22. McCullough asserts that this testimony shows that Varnado’s act was one of negligence, and not intent, as his failure to allow a person time to move from in front of his vehicle before proceeding forward, thereby striking the individual, can be perceived only as a breach of his owed duty of care. We find that this excerpt does not, in fact, show negligence, but instead furthers Sanderson’s claim that the act was intentional. Without more, this testimony merely addresses the fact that Varnado willingly and without hesitation accelerated his truck forward, doing nothing to advance Plaintiffs claim of negligence.

¶23. In its ruling, the trial court proposed that “the defendant, George Varna-do, testified that he either did not intent [sic] to strike the plaintiff with his vehicle or that he did not in fact strike the plaintiff with this vehicle.” However, the court’s ruling—seemingly based completely on Varnado’s deposition excerpt—again misinterprets the provided testimony.

¶ 24. While the question of whether the incident occurred remains in dispute, it does not affect the question of whether the act—if it in fact occurred—sounds in negligence or intentional tort. For our purposes, if Varnado did not hit McCullough, as he asserts, then the claim is baseless and thus should be dismissed. Alternatively, if he did hit McCullough, he did so intentionally, which, in turn, bars Plaintiffs action. In either scenario, the case presents no genuine issue of material fact for review. Accordingly, because the court’s ruling on this issue was based solely on a misinterpretation of testimony provided, it was in error and merits reversal.

¶ 25. The court’s application of Varna-do’s testimony is not the only basis for this Court’s reversal, however. In addition to the deposition testimony, the record includes an itemization of undisputed facts provided by both plaintiff and defendants. Defendants filed their list first, with Plaintiff responding in turn, and both parties agreed that (1) there was an incident on May 24, 2010, (2) after a verbal altercation regarding a deficiency report, (3) In which Plaintiff was standing in front of Defendant’s truck, (4) during which Plaintiff alleges that Varnado struck him three times with the vehicle. McCullough did not rebut any of Defendant’s undisputed facts, nor did he seek to amend the statements he made through his deposition by which he described an intentional act by Varnado, indicating an assault under Section 15—1— 35,

¶ 26. Previously, this Court has held that a plaintiff who testifies “in his own behalf as an eye-witness to all of the facts and circumstances immediately prior to, at the time of and following the [incident] ... is bound by his own testimony.” Seedkem S., Inc. v. Lee, 391 So.2d 990, 994 (Miss. 1980). “The general rule is that when a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him to show that he was mistaken although testifying in good faith, he is conclusively bound by his own testimony, and cannot successfully complain if the court directs a verdict against him.” Bradshaw v. Stieffel, 230 Miss. 361, 367, 92 So.2d 565, 567 (1957) (citations omitted). “To apply the rule the [and preclude a party from testifying to certain facts directly within his knowledge, and then offering testimony to contradict his own statements of facts], the following prerequisites must appear in the record:

(1) The party must be in a position to testify positively to the facts so testified; i.e., what he testifies to must be in his own plain view, or he [must] be otherwise situated so that there can be no mistake in his observation.
(2) He must testify to facts which if true would defeat recovery.

Bratschi v. Ray, 393 So.2d 1356, 1359-60 (Miss. 1981). Through his deposition testimony, McCullough has met both prongs of the Bratschi test: first, Varnado was in the truck, in front of McCullough, in plain view and within earshot of his pleas to exit the vehicle to talk. Second, he testified multiple times, in various ways, that Var-nado “meant” to hit him with his truck. This amounts to definitive, uncontested evidence that serves to defeat his requested recovery and bar his claims under Section 15-1-49.

¶ 27. Finally, the complaint and McCullough’s responses provide no indication of negligence other than bald assertions and a perversion of the provided testimony. Most notably, the complaint states that the negligence occurred through Varnado’s failure to 'operate his vehicle in a safe manner, breaching his duty of reasonable care to pedestrians. It further shows that when he struck McCullough, Varnado caused physical injuries and other consequential damages. While serving as a “short plain statement;” these claims failed to be supported by the testimonial evidence and limited items in discovery, as discussed above. Without alleging additional evidence of negligence, McCullough has failed to “make a showing sufficient to establish the existence of an element essential to the case...,” making it ideal for summary judgment. Karpinsky v. Am. Nat'l Ins. Co., 109 So.3d 84, 89 (Miss. 2013) (quoting Bucket v. Chaney, 47 So.3d 148, 153 (Miss. 2010)).

¶28. In his response to Defendant’s motion for summary judgment, McCullough elaborates on his negligence theory by noting that “Varnado had a duty not to strike the Plaintiff with his vehicle,” and because the “evidence clearly shows that Varnado struck the Plaintiff with his vehicle [and] [t]he Plaintiffs testimony ... sets forth that he was injured as a result [of the collision],” Plaintiff is entitled to damages. Not unlike every other motorist, Varnado owed McCullough a high duty of care in operating his vehicle; however, by definition, “there is no such thing as a negligent assault.” Webb v. Jackson, 583 So.2d 946, 951 (Miss. 1991) (citations omitted). Therefore, even if he breached his duty to operate the truck safely, in acting with intent to cause McCullough either apprehension or harm, Varnado committed civil assault—and subsequently battery— which cannot be considered negligence.

¶ 29. According to McCullough, there is no question that Varnado was (or should have been) aware that moving his vehicle forward would result in an injury. After requesting Varnado to exit the vehicle, McCullough positioned himself in front of the truck, on the driver’s side, directly in line with the steering wheel. Varnado claims that, at this point, McCullough began to curse and pound on the hood of the truck, while McCullough asserts that he stood at the front of the truck and shouted to Varnado to “get out and talk.” Varnado acknowledged that McCullough was in front of the truck, within an arm’s length of the hood. McCullough acknowledged that Varnado saw him. Both accounts indicate that one thing was certain: McCullough was situated in a position in front of the vehicle, such that if Varnado moved forward, he did so knowing that McCullough undoubtedly would be in the truck’s immediate path. While McCullough claims that accelerating'the vehicle forward without allowing him to move indicates negligence on Varnado’s part, doing so three times and making contact with McCullough each time demonstrates something more than mere negligence, rising to the level of an intentional act. Because McCullough failed to offer proof to support the essential elements of negligence in this case, he accordingly failed to make a sufficient showing to survive summary judgment. See Celetox, 477 U.S. 317, 322-323, 106 S.Ct. 2548.

CONCLUSION

¶ 30. It is well-settled in this state that claims for intentional torts of assault and battery fall under the restrictions of Mississippi Code Section 15-1-35. Moreover, just as this Court does not recognize claims of “negligent assault,” it accordingly does not recognize claims for intentional torts veiled in a cloak of negligence. Jordan v. Wilson, 5 So.3d 442, 447 (Miss. App. 2008). McCullough’s claims, though carefully presented through the elements of duty, breach, causation, and injury do not conform to the State’s prima facie requirements for negligence. Rather, the evidence presented through the testimony provided indicates an “intentional behavior designed to bring about the injury. ” Peaster v. David New Drilling Co., 642 So.2d 344, 349 (Miss. 1994) (citations omitted). Because there are no triable issues of material fact in the record for the case at hand, and McCullough’s claims are barred by the applicable statute of limitations, we reverse the trial court’s decision to deny summary judgment, granting Sanderson’s motion and rendering the case dismissed.

¶ 31. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN AND MAXWELL, JJ., CONCUR. CHAMBERLIN, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, P.J., NOT PARTICIPATING.

      , Whether George Varnado actually hit D.D. McCullough, and if so, whether he hit McCullough intentionally, is under dispute. McCullough's complaint alleges that Varnado negligently hit him with his truck, while Varnado denies any claims that he hit McCullough with his truck, negligently or otherwise.

      . McCullough and his wife began their employment with Sanderson in 1998 when they signed their first BPA. The couple entered subsequent BPAs with the company over the course of the next ten years, with the most recent agreement signed on January 4, 2010.

      . Unless otherwise noted, quoted language throughout the fact section was derived from excerpts of McCullough's deposition transcript.

      .McCullough’s deposition testimony notes that while Varnado was shouting in his truck, he could not make out what was being said because the doors were closed and the windows were rolled up. When asked if it was possible that Varnado was requesting to leave, McCullough said no.

      . The termination letter indicates that the day the letter was received, the chickens would be removed from the property, though McCullough stated he thought the chickens were removed on the twenty-fifth, the day before the letter was received. This discrepancy is of no consequence.

      . If properly submitted to the Court, we would address Issue IV and affirm the trial court’s decision to deny summary judgment on that issue alone. However, the only mention of Sanderson’s negligent supervision is asserted in McCullough’s response to the defendant’s motion for summary judgment. Therein, McCullough asserts that, within his complaint, he initially alleged that Sanderson is "liable for the injuries and damages he sustained as a result of acts and omissions” by the defendants. These acts and omissions made Sanderson "at least, negligent in its supervision of Varnado. What company would grant an employee the authority to intentionally injure another[?] Thus, Sander-son was negligent in its supervision of Vama-do by not ensuring he would not intentionally injure people with whom it had contracted.”
      In his complaint, McCullough notes that the "negligent acts and omissions of the Defendants proximately caused damages to Plaintiff .,.. ” While Mississippi employs a liberal pleading standard through Rule 8 of the Mississippi Rules of Civil Procedure, this "short and plain statement” fails to set forth a claim including "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Carter v. Reddix, 115 So.3d 851 (Miss. App. 2012). See also Penn. Nat’l Gaming, Inc. v. Ratliff, 954 So.2d 427, 432 (Miss. 2007). “Even under [these] liberal pleading requirements, a plaintiff must set forth factual allegations ... respecting each material element necessary to sustain recovery under some actionable legal theory; however, the pleadings need only provide sufficient notice to the defendant of the claims and grounds upon which relief is sought.” Scott v. City of Goodman, 997 So.2d 270 (Miss. App. 2008) (citing M.R.C.P. 8(a)).
      To that end, the Mississippi Court of Appeals has held that, without warning or reason to know or anticipate that an employee would behave in a violent manner, an employer cannot be held to be liable on an improper training or supervision theory of liability. Holmes v. Campbell Props., Inc., 47 So.3d 721, 729 (Miss. Ct. App. 2010). When there is “no contradicting evidence of prior actual or constructive knowledge of ... violent nature[, or] any indication of any actual or constructive knowledge that an atmosphere of violence existed [at employee's worksite],” an employer cannot be held to have acted unreasonably. Id. This Court has repeatedly supported this view in various negligence cases against employers. See Simpson v. Boyd, 880 So.2d 1047 (Miss. 2004); Country Club of Jackson v. Turner, 192 Miss. 510, 4 So.2d 718, 721 (1941). Because McCullough does not formally plead knowledge or presence of violent tendencies and only briefly alleges negligent supervision in his response to a motion by the defense, the issue of whether Sanderson was negligent in its supervision of Varnado is not properly before this Court.

      . "[This Court] is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff’s allegations. We therefore reject the notion that a court must accept as ‘having an arguable basis in fact,’ all allegations that cannot be rebutted by judicially noticeable facts.” Bilbo v. Thigpen, 647 So.2d 678, 689 (Miss. 1994) (quoting Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992)).

      . Kozan v. Comstock, 270 F.2d 839, 846 (5th Cir. 1959) (quoting Travis v. Bishoff, 143 Kan. 283, 54 P.2d 955, 956 (1936).

      . “Intentional infliction of emotional distress is of like kind or classification as the torts enumerated in Mississippi Code Section 15-1-35, and is therefore barred by a one-year statute of limitations.” Jones v. Fluor Daniel Servs. Corp., 32 So.3d 417, 425 (Miss. 2010).

      ."All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace,, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.” Miss. Code Ann. § 15-1-35 (Rev. 2013).

      . Peaster v. David New Drilling Co., 642 So.2d 344, 349 (Miss. 1994) (citing Mullins v. Biglane Operating Co., 778 F.2d 277, 279 (5th Cir.1985)).

      . McCullough does dispute the analysis of deposition testimony provided by the defense in its Itemization of Undisputed Facts, though this discrepancy is negligible.


author: CARLTON, J.,

text:
    Boyce WILLARD, Appellant v. MISSISSIPPI STATE PAROLE BOARD, Appellee
    NO. 2015-CP-01095-COA
    Court of Appeals of Mississippi.
    10/18/2016
    Rehearing Denied February 21, 2017

      BOYCE WILLARD (PRO SE), FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: ANTHONY LOUIS SCHMIDT JR., FOR APPELLEE.
    BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Boyce Willard appeals the judgment of the Sunflower County Circuit Court dismissing with prejudice his motion for declaratory and injunctive relief against the Mississippi State Parole Board for its denial of parole. On appeal, Willard raises the following issues: (1) whether the enactment of Mississippi Code Annotated section 47-7-18 (Supp. 2014) creates a liberty interest in the form of an expectation in parole that is protected by due process; (2) whether the Parole Board’s failure to employ the procedural mandates of section 47-7-18 in determining Willard’s eligibility for release on parole violated his right to due process; (3) whether Willard’s parole set-off of five years violates section 47-7-18(6); (4) whether the amendments to Mississippi Code Annotated section 47-7-3 (Supp. 2014) pursuant to Mississippi House Bill (H.B.) 585 render Willard ineligible for parole; and (5) whether the circuit court erred in dismissing Willard’s motion on the ground that he could not meet the prerequisites for issuance of an injunction.

¶ 2. Upon review, we find that the circuit court properly dismissed Willard’s motion. We therefore affirm the circuit court’s judgment.

FACTS

¶ 3. In 1984, Willard was convicted of murder. The Humphreys County Circuit Court sentenced Willard to life in prison, with eligibility for parole consideration after serving ten years of his sentence. Willard became eligible for parole on February 19, 1994. However, the Parole Board denied Willard parole. The Parole Board subsequently reconsidered Willard for parole several times, but each time, it denied him parole. Most recently, on December 3, 2014, the Parole Board again reconsidered and denied Willard parole after finding that Willard lacked the ability or willingness to fulfill the obligations of a law-abiding citizen. The Parole Board also imposed a five-year set-off for reconsidering Willard’s parole.

¶ 4. On February 26, 2015, Willard filed a motion with the circuit court for declaratory and injunctive relief. Willard argued that the Parole Board’s denial of parole and its five-year set-off for reconsidering parole violated his due-process rights. On March 19, 2015, the Parole Board filed a response to Willard’s motion as well as a motion to dismiss Willard’s cause. On May 12, 2015, the circuit court entered an order finding that Willard had provided no proof that he had exhausted his remedies under the Administrative Remedy Program (ARP) prior to seeking judicial review. The circuit court therefore continued the matter for ninety days to afford Willard the opportunity to utilize and exhaust his available administrative remedies. See Miss. Code Ann. § 47-6-803(2) (Rev. 2015).

¶5. On May 28, 2015, Willard filed a response to the circuit court’s order. Willard asserted that, under the current policy of the Mississippi Department of Corrections (MDOC), “parole and pardon decisions shall not be administratively exhausted through the MDOC’s ARP.” Willard also attached a copy of MDOC’s ARP to his response to the circuit court’s order. Under the heading “Applicability,” the ARP stated that Parole Board decisions were not matters appeal-able through the ARP. Willard therefore contended that he was not required to exhaust any remedies through ARP prior to seeking judicial review of the ■ Parole Board’s decision. In addition, Willard contended that his claim of a constitutional-rights violation justified the circuit court’s assertion of jurisdiction over the matter.

¶ 6. Also on May 28, 2015, the circuit court entered an order dismissing Willard’s motion for declaratory and injunc-tive relief. The circuit court acknowledged that H.B. 585, which took effect on July 1, 2014, amended the statutory law prohibiting parole eligibility. See Miss. Code Ann. § 47-7-3. However, because Willard was serving a sentence for murder, the circuit court found that Willard was ineligible for parole consideration under H.B. 585 and its amendments to section 47-7-3. The circuit court therefore concluded that no due-process violation occurred, and the court declined to further review the Parole Board’s actions.

¶ 7. In addition, the circuit court determined that Willard failed to show a substantial likelihood that he would prevail on the merits of his claims for injunctive relief. The circuit court found that-Willard was not entitled to parole and that the Parole Board had granted Willard parole hearings and reviewed his status. Based on these findings, the circuit court denied Willard’s requested injunctive relief and dismissed Willard’s motion with prejudice.

¶ 8. Willard subsequently filed a motion to amend the circuit court’s findings or to make additional findings and amend the circuit court’s judgment accordingly. Treating Willard’s filing as a motion for reconsideration, the „ circuit court denied the motion. Aggrieved by the circuit court’s judgment, Willard appeals.

STANDARD OP REVIEW

■ ¶ 9. “Whether the circuit court has jurisdiction is a question of law and is reviewed de novo. Likewise, ■ this Court reviews the trial court’s dismissal of a lawsuit based on a question of law under a de novo standard of review.” Mangum v. Miss. Parole Bd., 76 So.3d 762, 765-66 (¶6) (Miss. Ct. App. 2011) (internal citations and quotation marks omitted).

DISCUSSION

¶ 10. On appeal, Willard asks this Court to interpret Mississippi parole statutes and to determine whether the Parole Board violated these statutes in denying him parole. The record reflects that, although Willard was eligible for parole, the Parole Board nevertheless denied him parole. In reviewing Willard’s assignments of error, we acknowledge that the decision to grant or deny parole falls exclusively within the Parole Board’s discretion. Rochelle v. State, 36 So.3d 479, 482 (¶ 9) (Miss. Ct. App. 2010).

¶ 11. In Cotton v. Mississippi Parole Board, 863 So.2d 917, 920-21 (¶ 10) (Miss. 2003), the Mississippi Supreme Court stated:

It is well settled that a right of appeal is statutory. A circuit court has no authority to judicially create a right of appeal from an administrative agency in the absence of clear statutory authority therefore[]. Since Title 47, Chapter 7 does not contain a statutory mandate granting circuit courts jurisdiction over appeals concerning the denial of parole, the circuit court was correct in dismissing the petition due, in part, to lack of jurisdiction.

(Internal citations and quotation marks omitted).

¶ 12. In addition, this Court has previously stated:

By statute, the Parole Board is given absolute discretion to determine who is entitled to parole within the boundaries of factors set forth in [section] 47-7-3. Prisoners have no constitutionally recognized liberty interest in parole. Further, Mississippi Code Annotated section 47-7-5(3) (Rev. 2004) provides that: the [P]arole [B]oard shall have exclusive responsibility for the granting of parole as provided by [s]ection[s] 47-7-3 and 47-7-17. This control is independent of the circuit court’s sentencing authority.

Hopson v. Miss. State Parole Bd., 976 So.2d 973, 975 (¶ 6) (Miss. Ct. App. 2008) (internal citations and quotation marks omitted).

¶ 13. Because defendants possess “no liberty interest in obtaining parole in Mississippi, [they] cannot complain of the denial of parole baséd on an allegation of a denial of due process, abuse of discretion, or consideration of false or improper factors.” Mangum, 76 So.3d at 768-69 (¶ 17) (citation omitted). “Although it is recognized that Mississippi courts have a duty to hear and adjudge cases concerning constitutional issues despite a statutory mandate, that duty only arises when certain criteria are met.” Cotton, 863 So.2d at 921 (¶ 11) (citations omitted). As explained in Vice v. State, 679 So.2d 205, 208 (Miss. 1996):

The United States Supreme Court [has] ... held that[,] while maintenance of a parole system does not, in and of itself, create a protected interest in parole, one exists only where mandatory language creates a presumption of entitlement to parole once certain objective criteria are met. However, because the Mississippi parole statutes contain no such mandatory language, employing the permissive “may” rather than “shall,” prisoners have no constitutionally recognized liberty interest in parole.

(Internal citations and quotation marks omitted).

¶ 14. In the present case, Willard argues that section 47-7-18, which became effective on July 1, 2014, with the passage of H.B. 585, now creates a liberty interest in the form of an expectation of parole that is protected under due process. Specifically, Willard asserts that section 47-7-18(1) uses the explicitly mandatory language of “shall” and creates a presumption of entitlement to parole release in Mississippi once the subsection’s objective criteria are met.

¶ 15. Relevant to Willard’s argument, section 47-7-18(1) states:

Each inmate eligible for parole pursuant to [s]ection 47-7-3, shall be released from incarceration to parole supervision on the inmate’s parole[-]eligibility date, without a hearing before the board, if:
(a) The inmate has met the requirements of the parole case plan established pursuant to [s]ection 47-7-3.1;
(b) A victim of the offense has not requested the board conduct a hearing;
(c) The inmate has not received a serious or major violation report within the past six (6) months;
(d) The inmate has agreed to the conditions of supervision; and
(e) The inmate has a discharge plan approved by the board.

Section 47-7-18(6) states that the Parole Board may deny parole if “the inmate has not substantively complied with the requirement(s) of [his] case plan” and provides that “[a]ny inmate not released at the time of the inmate’s initial parole date shall have a parole hearing at least every year.” Section 47-7-3.1 establishes the requirements of inmate case plans.

¶ 16. In addition to arguing that the use of the word “shall” in section 47-7-18(1) creates a judicially enforceable right to parole, Willard asserts that the Parole Board violated section 47-7-18(6)’s requirement of an annual parole hearing by setting his next hearing five years away in December 2019. In response, the Parole Board contends that Willard is ineligible for parole under section 47-7-18 because he is not entitled to a case plan under section 47-7-3.1. The Parole Board maintains that sections 47-7-3.1 and 47-7-18 apply prospectively only—i.e., only to inmates sentenced on or after July 1, 2014. The Parole Board emphasizes that Willard was convicted of murder thirty years before these provisions were enacted; thus, it would have been impossible for MDOC to comply with the statutory requirement to “complete a case plan” “[w]ithin ninety ... days of [Willard’s] admission” into MDOC’s custody. See Miss. Code Ann. § 47-7-3.1(2).

¶ 17. We also acknowledge that the statute provides that “[MDOC] shall ensure that the case plan is achievable prior to [the] inmate’s parole[-]eligibility date.” Miss. Code Ann. § 47-7-3.1(4). This would have been impossible in Willard’s case since his parole-eligibility date occurred twenty years before the relevant provisions became effective. Moreover, when the Legislature passed H.B. 585 in 2014, thousands of potentially parole-eligible inmates were in MDOC’s custody. We find it unlikely that the Legislature, without clearly stating so, intended to require MDOC and the Parole Board to create a case plan for every one of these thousands of inmates. Instead, we find the language of section 47-7-3.1 indicates that the Legislature intended the statute to apply prospectively since it would be impossible for MDOC to retroactively comply with the statute’s requirements.

¶ 18. Although Willard claims that the language of section 47-7-18 creates a constitutionally protected interest in parole, compliance with a parole case plan is 'a prerequisite to parole under section 47-7-18. However, the parole case plan requirements of section 47-7-3.1 are inapplicable to the present case because Willard’s conviction and sentence predate the effective date of both sections 47-7-3.1 and 47-7-18. Thus, Willard is ineligible for parole under those provisions.

¶ 19. While Willard remains eligible for parole under sections 47-7-3 and 47-7-17, our caselaw clearly establishes that these sections confer no constitutionally protected liberty interest. See Harden v, State, 547 So.2d 1150, 1150-52 (Miss. 1989). In addition, as previously discussed, the grant or denial of parole is entirely within the Parole Board’s discretion, and the denial of parole is not subject to a statutory right of appeal. Rochell, 36 So.3d at 482 (¶ 9). As a result, the circuit court properly dismissed Willard’s motion, and we affirm the circuit court’s judgment.

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

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

      . At the time of Willard's conviction, Mississippi Code Annotated section 97-3-21(1) (Supp. 1983) mandated life imprisonment for every person convicted of murder. However, Mississippi Code Annotated section 47-7-3(1) (Supp. 1983) provided that, as long as certain specified exceptions did not apply, a prisoner sentenced to life imprisonment could be eligible for parole after serving ten years of his sentence.

      . Willard's sentence for murder was imposed in 1984, well before the effective date of the new parole procedures enacted in H.B. 585 and Mississippi Code Annotated section 47-7-3.1 (Rev. 2015).

      . Mississippi Code Annotated section 47-7-2 (Rev. 2015) defines a parole case plan as "an individualized, written accountability and behavior change strategy developed by the department in collaboration with the parole board to prepare offenders for release on parole at the parole[-]eligibility date. The case plan shall focus on the offender’s criminal risk factors that, if addressed, reduce the likelihood of reoffending.”

      . “Our duty is to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.” Pope v. Brock, 912 So.2d 935, 937 (¶ 8) (Miss. 2005). We also "have a duty to give statutes a practical application consistent with their wording, unless such application is inconsistent with the obvious intent of the [L]egislature.” Marx v. Broom, 632 So.2d 1315, 1318 (Miss. 1994). Generally, "statutes ... will be construed to have a prospective operation only, unless a contrary intention is manifested by the clearest and most positive expression.” Mladinich v. Kohn, 186 So.2d 481, 483 (Miss. 1966).