author: BEAM, JUSTICE,

text:
    Thomas L. SWAREK and Thomas A. Swarek v. DERR PLANTATION, INC.
    NO. 2015-CA-00871-SCT
    Supreme Court of Mississippi.
    04/06/2017
    Rehearing Denied June 1, 2017
    ISSAQUENA COUNTY CHANCERY COURT, VICKI R. BARNES, J.
    ATTORNEYS FOR APPELLANTS: BENJAMIN McRAE WATSON, JOHN C. HENEGAN
    ATTORNEYS ■ FOR APPELLEE: KENNETH B. RECTOR, ROBERT R. BAILESS
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ. '
   BEAM, JUSTICE,

FOR THE COURT:

¶ 1. Thomas L. Swarek and Thomas A. Swarek, father .and son, appeal from the Issaquena County Chancery Court’s finding that no binding enforceable contract existed between "the Swareks and Derr Plantation, Inc. (DPI) for the lease and purchase and sale of Derr Plantation to the Swareks, thus denying Swareks’ equitable-relief request for specific performance. We affirm the judgment of the chancery court.

FACTS

¶ 2. The Swareks -are Mississippi residents, residing in Harrison County. This action involves the father’s negotiations with DPI, a Mississippi corporation and owner of Derr Plantation-a tract of Mississippi Delta farmland located in Sharkey and Issaquena Counties, Mississippi, consisting of approximately 8,355 acres.

¶ 3. Derr Plantation is owned by a German limited partnership, Wohnbau-Ge-sellschaft H. Derr mbH (Wohnbau Derr), the sole stockholder of DPI during the relevant time period of December 2004 through May 2005. Herman Derr, age ninety-one, was DPI’s president.

¶ 4. In 2003, DPI advertised Derr Plantation for sale at $10.5 million. In December 2004, Swarek sent a handwritten message by fax to DPI, expressing an interest in buying the property for $7 million.

¶ 5. Joachim Witt, an attorney in Germany working for Derr, called Swarek and informed him that the asking price was $10.5 million. During their phone conversation, Swarek told Witt that he was in contact with Greg Galloway, who worked for Metropolitan Life Insurance Company (MetLife), and that he (Swarek) could obtain financing to purchase the property. DPI, however, rejected Swarek’s offers as too low.

¶ 6. Afterward, Witt sent Swarek a letter signed by both Witt and Derr, thanking him for his interest in purchasing the property. Attached to the letter was a short sales prospectus of the property.

¶ 7. Later that month, Swarek wrote Derr and Witt, saying he had sent a signed contract to Paul Pillat of Transactional Ventures, Inc. Swarek testified he sent the proposed contract through Pillat because Witt had directed him to Pillat. DPI had been involved with Pillat for the purpose of providing reports regarding the property, along with interested buyers.

¶8. On January 2, 2005, Pillat sent a letter to DPI with Swarek’s offer that provided for the purchase price of $7 million. DPI again rejected the offer.

¶ 9. On January 13, 2005, Derr, who did not speak English, sent a letter translated by Witt, indicating an interest in Swarek’s offer to lease the property before purchasing it, which would increase the total consideration. Swarek had been in telephone communications with Witt and there were discussions about entering into a lease agreement prior to an eventual sale. The January 13 letter contained a mention of DPI’s current tenant, James Hay, the principal of “JAPATAHA” (a general partnership), along with the statement, ‘We did not yet decide on a continuation of a lease with him.”

¶ 10. On January 18, 2005, Witt sent a letter to Swarek with a drafted lease contract attached to it. The lease contract proposed a right of first refusal for Swar-ek. Swarek wrote back, indicating he was interested in leasing the farm only in order to purchase it, and he did.not want a right of first refusal. Swarek made a number of proposals in the letter including again, a purchase offer of $7 million,

¶ 11. By January 20, 2005, DPI had offered Swarek an alternative proposal that allowed for a lease period of two years for $250,000 per year, with a final purchase price of the farm for $7.5 million. DPI also proposed $50,000 in earnest money, and the request that Swarek provide “reasonable security” for the payments.

¶ 12. The following day, Derr sent Swar-ek a letter stating that DPI had received a “more favourable offer” by a “serious potential purchaser” which DPI would like to negotiate. Derr sent a similar letter to Pillat the same day. Witt later testified there were no other serious potential buyers during this time.

¶ 13. On January 26, 2005, Derr sent a letter to Swarek informing him they were preparing contract drafts to be sent to Swarek, notwithstanding the other “competitive” offer.

¶ 14. On January 27, 2005, Swarek responded and proposed a three-year lease with a payment of the purchase price “on or before February 28, 2007,” which would be “after the three (3) year rental period.” The proposal was for three annual lease payments of $250,000 for a total of $750,000 within two years, and then to purchase the property on or before February 28, 2007 for $7.5 million. Swarek further offered, inter alia, to pay the property taxes for the years 2004, 2005, and 2006.

¶ 15. Subsequently, on January 30, 2005, DPI wrote to Swarek to clarify the “contradictory” terms. Witt testified that he telephoned Swarek to confirm the terms of Swarek’s offer, and Swarek affirmed that the terms were correct. Swarek had not yet received the January 30 letter, but Witt testified he read the letter to him over the phone.

¶ 16. On February 9, 2005, Swarek also offered immediately to prepay $498,000 to DPI’s bank account to resolve DPI’s concern about future payments being secured. As a result, Witt prepared a letter to Swarek, reviewed and signed by Derr, on February 10, 2005. The letter indicated that DPI “is ready and willing to accept entering into a Lease and Sale and Purchase Contract with you in compliance with your proposals by your fax from January 27, 2004 (5:48 p.m.)[.j” The February 10 letter contained the “present lease and purchase conditions” of Swarek’s proposal; that is, three lease payments totaling $750,000 within two years and the purchase price of $7.5 million on February 28, 2007 (plus an additional amount for taxes and insurance). The February 10 letter also indicated that “drafted detailed Lease Contract through December 31, 2007[,] and Purchase and Sale Contract including providing closing for February 28, 2007[,] are to be agreed upon and to be executed by March 1, 2005[,] or another date to be arranged between seller and purchaser[.]” Further, the February 10 letter indicated that $50,000 in earnest money was to be paid at the “execution of sale and purchase contract.”

¶ 17. The February 10 letter concluded with the following: “Drafted detailed Lease-and Purchase and Sale Contracts will be submitted to you by Monday, February 14, 2005, as already announced. For the execution of both these necessary contracts we should like to propose and provide a date beginning from February 28, 2005.”

¶ 18. Swarek had offered to come to Germany to execute the Lease and Purchase and Sale contracts, which Derr accepted in the February 10 letter. Swarek and his wife arrived in Dusseldorf, Germany, the evening of February 13, 2005. Swarek testified he called Witt while he was in Paris earlier that day to let him know he was coming to Germany. Swarek testified he was “anxious” to get a firm and binding offer signed so he could begin farming, as it was getting late in the season. Witt testified he was surprised at Swarek’s early arrival, but he met the Swareks and dined with them that evening, informing Swarek that, although the proposed purchase contract was not yet completed, the lease contract was finished.

¶ 19. The following day, February 14, 2005, Witt brought the Swareks to the offices of Wohnbau Derr. Witt testified that Swarek informed him that he needed a statement- signed by Witt and Derr to. facilitate the financing by MetLife. Swarek testified that MetLife needed a firm and binding offer. Swarek then handwrote a document. Witt dictated this document to his secretary, who typed the document in both German and English, hereinafter the “February 14 document.” Witt made modifications to the handwritten statement, which included deleting the words “option to” from the phrase “option to.sell.” The typewritten February 14. document incorporated the terms and conditions of the February 10 letter. Swarek then signed, the document.

¶20. Afterward, Swarek waited downstairs while Witt left to present the-document to Derr. Following a brief discussion of the document with Witt, Derr and Witt signed the document. The document was given back to Swarek and a copy was. made for DPI’s files.

¶ 21; Swarek and his wife then met and visited with Derr in his office for ten to twenty minutes, with other board directors present. Swarek testified that the issue of payment was never brought up, even though he had brought his checkbook with him on the trip, Wolfgang Terjung, one of Wohnbau Derr’s board of directors, who was present, testified there were conversations about meeting Swarek on the farm in Mississippi by the next week to discuss the current tenant, Jim Hay, and to prepare a smooth transition. Mrs. Swarek took a photo of Swarek handing Derr a one-dollar bill.

,¶,22. During Swarek’s visit in Germany, Witt gave Swarek the lease he had drafted and a. letter that identified a bank for the deposit of the $498;000, although the information for the bank account, was incorrect and had to be corrected by Witt. There was testimony, that Swarek wrote the new information onto the document. The parties did not execute the lease agreement in Germany. Immediately following the meeting with Derr and the other DPI directors, Witt to.ok the Swareks to the airport for their return flight to the United States. The Swareks arrived back in Mississippi by February 16,2005.

¶ 23. On February 15, 2005, DPI sent a letter to Swarek that Swarek later testified he did not receive until after the lawsuit had been filed, which gave Swarek the correct wiring instructions for the advance payment of $498,000. Also on February 15, Swarek sent a fax to DPI, in which Swarek stated there was an agreement for his son, Thomas Swarek, to be one of the “buyers and or lessors (sic) to the option .to purchase and lease.” According to DPI on appeal, Swarek used the word “option” to describe the status of the existing negotiations with DPI.

¶ 24. On February 16, 2005, Swarek telephoned Witt and told him the February 10 letter contained a mistake that had originated in Swarek’s offer. Swarek testified he had made-a typo, and he had intended to close the purchase of the DPI property by February 28, 2008, not February 28, 2007. Essentially, Swarek said he meant to pay only two lease-payments within two years, not three lease payments within two years. Swarek told Witt he intended to pay base lease payments totaling $500,000 .for a total consideration of $8 million instead of lease payments of $760,000 for a total consideration -of $8.25 million as stated in the February 14 document. Swarek threatened to withdraw his offer altogether if DPI refused to renegotiate the terms of the transaction and told Witt that DPI would be required to file suit for specific performance if DPI insisted upon the terms contained in the February 10 letter.

¶ 25. Swarek additionally wrote DPI on February 16, 2005, stating he was “sorry for this mistake on my part and will increase the earnest money towards the purchase by ($100,000.00) One Hundred Thousand Dollars and will increase the purchase price earnest amount by ($100,-000) One Hundred Thousand Dollars on March 1, 2006.” Swarek concluded in the letter that, “I will agree to you [sic] fax prior to my fax to you on January 27, 2005 ... in which you offer me the property for (2) years rental and a final price of ($7,500,000) 7.5 Million Dollars on February 28, 2007.”

¶26. On February 18, 2005, Derr sent Swarek- a letter that stated DPI -was “ready and willing to accept entering into a Lease and Sale and Purchase Contract with you in compliance with your submitted modified proposals.” The February 18 letter contained a new lease and purchase agreement that increased the initial earnest money to $100,000. It also required a “trustworthy guarantee” of the additional earnest money payment offered by Swar-ek. The last paragraph further provided that DPI’s “right of withdrawal from this foregoing agreement will be reserved until February 28, 2005, in the- -event of its exercise to the result, that the agreement from January 27, February 10 and 16, 2005[,] remains in full effect.” DPI provided Swarek with a proposed sale and purchase contract and a proposed lease agreement. Swarek refused to sign this February 18 agreement, because a provision contained in the February 14, 2005, instrument, saying that the contract was firm and binding and that it might be altered only in the form of a written agreement by both parties, had not carried over. And Swarek wanted nothing short of “firm and binding.” Swarek also testified that he did not understand what constituted a “trustworthy guarantee.”

¶ 27. On February 19, 2005, Witt arrived in Mississippi, and Terjung arrived the next day in accordance with the February 10 letter, which stated that Witt and Ter-jung would stay on- the farm in order to “prepare the delivery of possession of the lease property.”

¶ 28. Conversations between Swarek and Witt, and Witt and C.P. Clay, a friend of Swarek’s who was familiar with the property in dispute, occurred on February 20 and 21, 2005, which included conversations concerning DPI’s current tenant, Hay. The conversations eventually culminated in Swarek requesting DPI to choose among three (3) proposals, which included two new proposals by Swarek in addition to the proposals made by Swarek on February 16. Swarek did not include an offer to perform the terms contained in the February 14 document. Swarek also insisted for the first time that he should have the right to purchase Derr Plantation prior to February 28, 2007. This right would allow Swaiek to terminate his obligation to pay any lease payments and further reduce the consideration due to DPI to an amount less than that stipulated in the February 14 document and in the February 16 letter Swarek sent to DPI’.

¶ 29. Ultimately, negotiations broke down, and DPI decided to discontinue communications with Swarek. On February 22, 2005, Swarek’s attorney, Bill Bost, sent a letter to DPI’s Mississippi attorney, Bobby Bailess. The letter insisted that Swarek “remains ready, willing, and able to perform” under the terms'and conditions contained in the February 10, 2005, letter, as referred to in the February 14 document. Bailess replied on February 22, 2005, and gave permission for Swarek and/or MetLife to inspect the property. The next day, Bailess wrote to Swarek, saying that DPI did not consider an enforceable contract to exist between the parties.

¶ 30. On February 28, 2005, Bost sent a letter to Bailess, stating in part: “Derr is to deliver a sales agreement and lease agreement. The agreements previously furnished can be modified to correct the earnest money deposit and to otherwise make them comply with the February 10 agreement.”

¶ 31. On March 1, 2005, the Swareks filed a complaint and lis pendens notice against DPI and Derr in the chancery court, alleging breach of contract and seeking specific performance and compensatory and punitive damages in the amount of $6,675,000, After extensive pretrial motions and other delays, a ten-day trial was held on the merits, beginning in January 2013 and concluding on September 27, 2013. The chancery court heard extensive testimony from the parties and subsequently found that the February 14 document was executed when the parties had not agreed on all of the material provisions, and was not intended as a contract for the sale of the property; thus, it was incomplete and could not be given legal effect. Accordingly, the court found no binding and enforceable contract existed between the parties for the lease and purchase and sale of Derr Plantation to the Swareks and therefore denied the Swar-eks’ request for specific performance and damages.

¶32. This appeal followed, with the three following assignments of error raised by the Swareks, summarized here as follows: (1) the trial court erred as a matter of law in finding ambiguity about the specific date for signing the additional documents required by the contract; (2) the trial court erred as a matter of law when, upon finding ambiguity about the specific execution date for the lease and purchase documents, it then failed to (a) determíne a reasonable time for the parties to complete the preparation and signing of the those documents; and (b) order the parties to do so within a reasonable time; and (3) the trial court erred when, upon finding an ambiguity about the specific execution date for the two documents, it then relied upon trial testimony to find that the parties never had intended to enter into a binding contract, despite the documents’ clear and unambiguous language that it was “firm and binding” on the parties.

¶ 33. The Swareks ask that we reverse the chancery court’s judgment and direct the court to order specific performance of the “February 14 contract,” whereby DPI transfers Derr Plantation to the Swareks in exchange for (a) $8.25 million to DPI (which represents the total amount of the lease and purchase payments); or (b) in the alternative, if DPI is not entitled to payment of the amounts related to the lease payments since the lease term has expired and cannot be specifically enforced, then payment of $7.5 million to DPI within a reasonable time not to exceed 120 days from the entry of this Court’s mandate.

DISCUSSION

¶ 34. While specific performance is an appropriate remedy in matters relating to real property, it is not a matter of right in Mississippi, but is a matter of grace. Roberts v. Spence, 209 So.2d 623, 625 (Miss. 1968). An application for specific performance is left to the chancery court’s sound discretion, “controlled and regulated by established equitable principles.” Id. Moreover, “[s]uits for specific performance are not governed by the same principles as suits at law for damages or suits in equity to set aside executed contracts.” Pickett v. Boutwell, 240 Miss. 18, 125 So.2d 822, 823 (1961). In such suits, “a weaker case is sufficient to defeat the action.” Id.

¶ 35. At the outset, we agree with the chancery court that no sufficient meeting of the minds occurred between the parties as to the terms and conditions set forth in the February 10 letter. Thus, the February 14 document did not constitute a valid and enforceable contract. But, even if we were to conclude that it did constitute a valid contract, the facts attending this case indisputably show that Swarek repudiated it by the manifestations and declarations he made thereafter.

¶ 36. Again, on February 16, Swarek informed DPI that he had intended to pay only two, not three, lease payments within two years, which would have resulted in a total purchase price of $8 million for the property, not $8.25 million as set forth in the February 10 letter.

¶ 37. Swarek then told DPI that if it insisted on the terms contained in the February 10 letter, he would walk away from the deal, and DPI would have to sue him for “specific performance.”

¶ 38. Still willing to negotiate with Swar-ek, DPI sent another proposal to Swarek on February 18, agreeing to the new terms Swarek had expressed on February 16. But the February 18 proposal required Swarek to provide a “trustworthy guarantee” for the payment of additional earnest money Swarek offered to pay, due to what Swarek claimed was a “mistake” on his part with regard to the total number of lease payments and the final purchase price set forth in the February 10 letter. Swarek refused to sign the February 18 proposal because Swarek wanting “nothing short of firm and binding!,]” and Swarek did not understand what constituted a “trustworthy guarantee.”

¶ 39. Afterward, when Witt and Terjung arrived in Mississippi to “prepare the delivery of possession of the lease property!,]” Swarek proposed three new options for DPI, none of which included an offer to perform the terms contained in the February 10 letter, incorporated into the February 14 document.

¶ 40. DPI effectively walked away from the table at that point. And the Swareks then sued DPI in chancery court, claiming they were “ready and willing” to perform under the terms and conditions contained in the February 10 letter, which they maintain were made firm and binding by the February 14 document.

¶ 41. We agree with DPI that this case is somewhat similar to Gulf South Capital Corporation v. Brown, 183 So.2d 802 (Miss. 1966). There, the president of Gulf South had negotiated with the executor of an estate for the purchase of a motel owned by the estate. Id. at 803. The buyer and seller thought they had agreed on the terms of the purchase, and the buyer drafted and presented the seller a purchase contract, which the parties then executed. Id. The next day, the buyer sent the seller a check for the earnest-money deposit in the amount agreed upon. Id. At the bottom of the check, the buyer included a notation, which stated in part: “This deposit returnable in the- event good title cannot be conveyed to Gulf South ... as specified in [the] agreement!,] ... or if suitable agreement cannot be reached on eliminating Materials Lien recorded against property by James J. Curro.” Id. The seller considered the materials-lien provision to constitute a new condition; rejected it, and returned the check to the buyer. Id. at 804. The buyer then sued the seller in circuit court for breach of contract. Id. The circuit court-found that the purchase contract .was ambiguous and omitted important necessary provisions, and ruled in favor of the seller. Id.

¶42. This Court affirmed the circuit court on appeal. Declining to consider all the circuit court’s reasons for dismissal of the suit, the Brown Court concluded that the buyer “materially breached its contract, and in effect repudiated it, by tendering earnest money subject to an unacceptable, material condition!],]” i.e., the materials-lien provision. Id. Brown reasoned that, “[i[f the buyer has committed a material breach, or has by repudiation manifested an intention to commit such, the other party should be excused from the obligation to perform further.” Id. (citing 6 Williston, Contracts § 864 (3d ed. 1962); Restatement of Contracts § 275 (1932)). “The materiality of the breach is the decisive factor.” Id. “Repudiation of a material part of the contract excuses the -other party, although a breach may be material without such repudiation, and if so, should excuse the injured party.” Id. at 805 (citing .6 Williston, Contracts § 865 (3d ed. 1962)). “Thus the repudiation of his duty by one of the parties terminates the duty of the other, giving the latter the legal privilege of refusing to render the return performance.” Id.

¶ 43. That is essentially what occurred here..Based on Swarek’s communications with DPI on February 16, and subsequent thereto,-there was a substantial, material variance' between DPI’s understanding of the terms set forth in the February 10 letter and the terms Swarek said he had intended. These terms concerned the duration of the lease and the total purchase price for the property, and were no doubt material. Swarek having informed DPI he would not perform according to the terms contained in the February 10 letter, DPI was excused from any return performance obligation(s) it may have had under thosé terms.

¶-44. On appeal, the Swareks rely on Prestenbach v. Collins, 159 So.3d 531 (Miss. 2014), and Creely v. Hosemann, 910 So.2d 512 (Miss. 2005), for their arguments) contending that the chancery court erred in finding ambiguity about the specific execution date for the lease and purchase documents. Those cases, however, are inapplicable here, as they involved the validity and enforceability of option contracts. That may have been what the Swar-eks and DPI were attempting to enter into eventually at the closing scheduled for February 28 through March 1, 2005, in this matter. But the February 14 document did not constitute this type of contract.

CONCLUSION

¶45. For the above stated reasons, we affirm the chancery court’s decision to deny the Swareks’ request for specific performance.

¶ 46. AFFIRMED.

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

      . Swarek’s son was not a party to any of the negotiations and had no contact with DPI at any time.

      . DPI commenced its farming operations in Mississippi in 1978.

      .Witt, who speaks some English, was responsible for finding potential buyers for Den-Plantation.

      . In 2010, the Swareks dismissed their claims with prejudice against Derr in his individual capacity.


source: Caselaw Access Project

author: COLEMAN, JUSTICE,

license: Public Domain

text:
    ESTATE OF Katherine M. LYONS, Deceased: Anthony Lobred v., Larry LYONS
    NO. 2016-IA-00133-SCT
    Supreme Court of Mississippi.
    04/06/2017

      WARREN COUNTY CHANCERY COURT, VICKI R. BARNES, J.
    ATTORNEY FOR APPELLANT: DAVID M. SESSUMS
    ATTORNEY FOR APPELLEE: HENRY DEAN ANDREWS, JR.
    BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.
   COLEMAN, JUSTICE,

FOR THE COURT:

¶1. The instant interlocutory appeal arises, from a will contest; between the testator’s brother, Larry Lyons, and her nephew, Anthony Lobred. Larry filed a motion to strike the deposition testimony of Dr. Lara Clement, a treating physician of the testator, due to Lobred’s counsel’s alleged ex parte communication with Dr. Clement prior to her deposition. The trial court ordered that any testimony of Dr. Clement that was not discernable from the testator’s medical records would be inadmissible at trial. Lobred sought permission to file an interlocutory appeal and the Court granted Lobred’s petition. We hold that the communication between Dr. Clement "and Lobred’s attorney was acceptable ex parte communication; accordingly, we reverse and remand.

FACTUAL BACKGROUND

¶ 2. On September 23, 2005, the testator, Katherine M. Lyons, executed a document purporting to be her last will and testar ment (“2005 will”). The -2005 will designated her nephew, Lobred, as executor and provided that all of Katherine’s real and personal property would be devised to Lo-bred. The 2005 will also provided that, hi the event Lobred predeceased Katherine, the sole beneficiary would be her nephew, Kenneth Lyons.

¶ 3. On July 17, 2012, Katherine executed a document purporting to be her last will and testament (“2012 will”). The 2012 will designated Katherine’s brother, Larry Lyons, as executor. The 2012 will provided that all of Katherine’s real and personal property would be devised to Larry’s son, Kenneth Lyons, while reserving a life estate for her residence for her brother, John Lyons. Upon John Lyons’s death, the residence would revert to Kenneth Lyons.

¶ 4. On March 29, 2014, Katherine passed away at the age of eighty-three. Katherine was not married and had no living children at the time of her death. Katherine’s death certificate identified her immediate cause of death as cardiopulmonary arrest due to or as a consequence of Alzheimer’s Disease. Larry disputed that Katherine died from complications associated with Alzheimer’s Disease and further disputed that Katherine had suffered from Alzheimer’s from 2012 until her death.

¶ 5. On April 22, 2014, Lobred filed a petition to probate the 2005 will as muniment of title to real property in Warren County. In the petition, Lobred claimed that Katherine had conveyed to him certain real property in Warren County and had reserved a life estate for herself. Lo-bred claimed that because Katherine’s personal estate did not exceed the sum of $10,000, no reason existed to have an administration of the estate or to appoint an executor. The trial court entered an order probating the 2005 will as muniment of title to real property in Warren County. On July 18, 2014, Larry filed a petition to probate the 2012 will in common form. The trial court entered an order admitting the 2012 will to probate and appointing Larry as executor.

¶ 6. The trial court consolidated the two separate cases. On November 4, 2014, Lo-bred filed a petition contesting the validity of the 2012 will. Lobred argued that Katherine had lacked testamentary capacity at the time she had executed the 2012 will. Lobred also argued that the will was invalid because it was the product of undue influence from an individual or individuals having a fiduciary relationship with Katherine.

¶ 7. On November 6, 2014, Larry filed a petition contesting the validity of the 2005 will as muniment of title to real property. Larry argued that the 2012 will revoked all wills and codicils previously made. Larry requested that the trial court declare the 2005 will void as a muniment of title. Larry filed a response to Lobred’s petition contesting the 2012 will. Larry disputed Lo-bred’s claim that Katherine had lacked testamentary capacity at the time she had executed the 2012 will and further disputed that the 2012 will was a product of undue influence.

¶8. During discovery, Lobred served Dr. Clement with a subpoena duces tecum requesting Katherine’s medical records. Katherine’s medical records were provided to both Larry and Lobred. Dr. Clement, a family medicine physician, saw Katherine as a patient on fourteen occasions from 2001 to 2006. Dr. Clement saw Katherine as a patient on five occasions from January 31, 2011, to May 17,2012. Dr. Clement last saw Katherine as a patient on May 17, 2012. On November 6, 2015, Lobred filed a notice of deposition scheduling Dr. Clement’s deposition to be held at David M. Sessums’s law office on December 10, 2015.

¶9. On December 10, 2015, Larry’s counsel, Dean Andrews Jr., arrived at Ses-sums’s office and waited in the deposition room. Lobred’s counsel, Sessums, entered the room with Dr. Clement. Andrews asked Sessums if he had been discussing Katherine’s medical records with Dr. Clement; Sessums replied affirmatively.

¶ 10. Dr. Clement’s deposition is not in the record, but the substance of Dr. Clement’s deposition testimony is not in dispute. According to Lobred’s petition for permission to appeal, Dr. Clement testified that Katherine had been competent to execute a valid will in 2005, but had been incompetent to execute a power of attorney in favor of Larry on May 8, 2012, and also incompetent to execute a valid will on July 17, 2012. Larry claimed that Dr. Clement testified that she had spoken with Sessums in preparation for her deposition. Larry also claimed that Dr. Clement testified that no one had authorized her to speak with anyone about Katherine’s medical records and that she was familiar with privacy laws.

¶ 11. On January 8, 2015, Larry filed a motion to strike the testimony of Dr. Clement. Larry argued that Dr. Clement’s testimony should be excluded due to unauthorized ex parte communication between Dr. Clement and Lobred’s counsel. Larry sought to strike all of Dr. Clement’s testimony and did not limit the motion to specific testimony. Larry also claimed he had discovered that Sessums’s law firm had represented Dr. Clement in an unrelated medical malpractice case. Larry argued that the firm’s representation or former representation of Dr. Clement “add[ed] to the inappropriateness of the ex parte communication.”

¶ 12. Lobred filed a response to Larry’s motion to strike. Lobred admitted to speaking with Dr. Clement outside the presence of Larry’s counsel and without his authorization. Specifically, Lobred admitted:

It is admitted that Dr. Lara Clement was the treating physician of Katherine M. Lyons and that David M. Sessums noticed the deposition of Dr. Lara Clement and conducted such deposition on December 10, 2015. It is further specifically admitted that David M. Sessums personally and in great detail spoke with Dr. Lara Clement prior to the deposition regarding the condition of Katherine M. Lyons, in detail, all without any “authorization” from Larry Lyons, the person that took advantage of Katherine M. Lyons by exercising undue influence over her at a time when Katherine M. Lyons lacked the mental capacity to execute a valid last will and testament.

¶ 13. Lobred argued that Larry’s attempt to strike the testimony of Dr. Clement was an “egregious attempt to hide his own wrongful conduct in [the] matter.” Lobred did not contest Larry’s allegation that Sessums’s firm represents or represented Dr. Clement. On January 20, 2016, the trial court held a hearing on Larry’s motion to strike. The trial court entered an order with the following findings:

The parties agreed that there was ex parte communications between [Lo-bred’s] attorney and Dr. Lara Clement prior to the commencement of Dr. Lara Clement’s deposition. [Lobred] did not refute that his attorney’s law firm represents or represented Dr. Lara Clement. The parties have acknowledged that the medical privilege is not an issue as the medical records of Katherine M. Lyons, the decedent, have been provided to both parties.

¶ 14. The trial court ordered that “any testimony of Dr. Lara Clement that is not discernible from Katherine M. Lyons’[s] medical records is hereby inadmissible.”

¶ 15. Larry filed a motion for reconsideration and clarification. Lobred also filed a motion for reconsideration and a response to Larry’s motion to reconsider. On January 27, 2016, the trial court entered a “judgment” on the motions for reconsideration and clarification. The trial court denied both motions for reconsideration. However, the trial court granted Larry’s motion for the trial court “to clarify its [o]rder as, to .the parameters of any admissible testimony of Dr. Clement[,]” The trial court directed'the parties to schedule a hearing for the parties to provide “sufficient details to clarify its order regarding Dr. Lara Clements admissible testimony.”

¶ 16. The hearing was never scheduled and did not occur. Instead, on January 29, 2016, Lobred filed a petition for permission to appeal under Rule 5 of the Mississippi Rules of Appellate Procedure. The Court ordered Larry to file a response “addressing whether the rule prohibiting ex parte communication with a treating physician applies in an estate matter.” Larry filed a response in compliance with the Court’s order. On February 17, 2016, the Court granted Lobred’s petition for permission to appeal.

ANALYSIS

Whether the trial court erred by ordering that any testimony of the testator’s treating physician that was not discernable from the testator’s medical records was inadmissible due to ex parte communication between counsel for one party in a will contest and the treating physician.

¶ 17. Although the facts surrounding Katherine’s testamentary capacity and Larry’s alleged undue influence are hotly disputed, the facts pertinent to the narrow issue before the Court on interlocutory appeal are not in dispute. It is undisputed that Lobred’s counsel communicated with Dr: Clement regarding Katherine’s medical condition prior to Dr'. Clement’s deposition. The specific issue before the Court today is whether the testimony of the testator’s treating physician should be excluded based on contact between the treating physician and a party without the opposing party’s consent in a will contest wherein both parties are personal representatives of the deceased.

¶ 18. A panel of the Court ordered Larry to file a response to Lobred’s petition for permission to appeal addressing “whether the rule prohibiting ex parte communication with a treating physician applies in an estate matter.” The Court has held that the rule prohibiting ex parte communications under Mississippi Rule of Evidence 503(f) applies in the context of personal injury and medical malpractice cases. Scott v. Flynt, 704 So.2d 998, 1000-01 (Miss. 1996). The comment to Rule 503 states that the “primary impact of subdivision (f) will be in personal injury actions, although the exception by-its terms is hot so limited.” According to the comment, the ex parte, rule contained in Rule 503(f) could apply in estate matters. Thus, the question initially framed by a panel of the Court may be answered in the affirmative. However, the inquiry does not end here because the Court has yet to address how or if the rule prohibiting ex parte communications would apply in the context of a will contest where both parties can claim to be personal representatives of the deceased.

¶ 19. At the time of -the trial court’s order on Larry’s" motion to strike Dr. Clement’s testimony, Rule 503(f) provided:

(f) Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.

Miss. R. Evid. 503(f) (2015). Amended Rule 603(f) now provides:

© Waiver by Pleadings; Ex Parte, Contact. A party whose pleadings place in issue any aspect of that party’s physical, mental,- or emotional condition thereby— and to that extent only—waives the privilege. The exception in this subdivision (f) does not authorize ex parte contact by an opposing party.

Miss. R. Evid. 503(f) (2016).

¶ 20. In Scott, the trial court ordered the plaintiff in a medical-malpractice case to execute an unconditional medical waiver and permit ex parte conferences by the defendants with any medical provider of the plaintiff. Scott, 704 So.2d at 999. On interlocutory appeal from the trial court’s order, the Scott Court , addressed “two-interrelated questions of law[,]” which were framed- as “(1) the scope of the medical waiver as contemplated by Mississippi Rule of Evidence 503 and (2) whether or not ex parte contacts with medical providers are permissible under the rules of discovery in the Mississippi Rules of Civil Procedure.” Id. at 1000.

¶ 21. The -Scott'Court recognized that a “significant argument about ex parte interviews revolves around who is the holder of the privilege." Id. at 1004. Before answering the question of how or if the ex parte rule would apply in the context of a will contest, the Court must determine who holds the medical.privilege of the testator in a will contest. One of the two permitted methods stated by the Scott Court for obtaining relevant medical information ex parte from a treating physician is through “voluntary consensual disclosure .by the patient who is the holder of the privilege.” Id.-at 1007. Here, the patient is deceased, so- consent would have to be obtained from whoever holds the privilege of the deceased. We hold that in the instant case both parties were personal representatives of the deceased and, therefore, under either the rule or the statute, no prohibited ex . parte contact occurred. Because the result is the same whether we employ the rule or the statute, we do not today address any argument or disseminate any holding addressing which governs over the other.

¶ 22. Mississippi Code Section 13—1— 21(1) provides:

(1) All commuriications made to a physician, osteopath;' dentist, hospital, nurse; pharmacist, podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such party shall not be required to disclose the same in any legal proceeding except at the instance of the patient or, in case of the death of the patient, at the instance of his personal representative or legal heirs in case there be no personal representative,' or except, if the validity of the' will of the decedent is in question,- at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will

(Emphasis added.)

¶ 23. Under Section 13-1-21(1), “the personal representative or any of the legal heirs or. any contestant or proponent of the will”- may waive the medical privilege. However, Rule 503(c).identifies the.“personal representative” only as an individual who may waive the general medical privilege of a deceased patient. Rule 503(c) states:

(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the patient.

Miss. R. Evid. 503(c).

¶ 24. Under Rule 503(c), a deceased patient’s “personal representative” may claim the medical privilege. Black’s Law Dictionary defines a “personal representative” as: “Someone who manages the legal affairs of another because of incapacity or death, such as the executor of an estate. Technically, an executor is a personal representative named in a will, while an administrator is a personal representative not named in a will.” Personal representative, Black’s Law Dictionary (10th ed. 2014).

¶ 25. Katherine unequivocally stated in her 2005 will: “I hereby nominate, constitute, and appoint my nephew, Anthony Lobred, Executor of this my Last Will and Testament and I authorize and empower my said Executor to do any and all things which in his opinion are necessary to complete the administration and settlement of my estate, including full right, power and authority, without the necessity of obtaining an order from any Court and upon such terms and conditions as my said Executor shall deem best for the settlement of my estate, to bargain, sell at public or private sale[,] convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate.” Here, Lobred carried out his duty as Katherine’s personal representative by probating her 2005 will as muniment of title. Katherine’s 2012 will contained a similar provision designating Larry as executor. As a result, both Lo-bred and Larry hold the general medical privilege as Katherine’s “personal representative” under the plain language of Rule 503(b).

¶26. Lobred argues that there is no conflict because Rule 503 is silent regarding will contests, whereas Section 13—1— 21(1) specifically addresses the medical privilege in the context of will contests and provides rights not otherwise provided for by the rules of evidence. While we agree with the result urged by Lobred, we disagree that the result stems only from the combination of the statute and the silence of the rule. Rather, because Rule 503 provides that the personal representative may claim the privilege on behalf of a deceased person, and in Scott we held that the party who may claim the privilege may waive the privilege, it is not the silence of Rule 503 but its content that undergirds our holding.

¶27. Section 13-1-21(1), on the other hand, specifically addresses waiver of the medical privilege in the context of a will contest. Under both Rule 503 and Section 13-1-21(1),- the medical privilege belongs to both Lyons and Lobred. Under Section 13-1-21(1), the medical privilege may be waived by the personal representative, any legal heir, or any proponent or contestant of a will. Thus, Section 13-1-21(1) authorizes Lobred to waive the entire medical privilege as a personal representative and contestant of the 2012 will. Because Rule 503(c) and Section 13-1-21(1) both authorize Lobred to waive the entire privilege, the ex parte rule of Rule 503(f) does not operate to bar his attorney from speaking alone with the physician witness.

CONCLUSION

¶ 28. Under either Rule 503(c) or Section 13-1-21(1), Lobred was authorized to waive Katherine’s medical privilege. Lo-bred’s counsel’s communications with Dr. Clement were not prohibited when there was no privilege left for the ex parte rule to preserve. Because no prohibited ex parte contact occurred, we reverse the trial court’s order and remand with instructions that Dr. Clement’s testimony remains admissible.

¶ 29. REVERSED AND REMANDED.

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

      . Mississippi Rule of Evidence 503 has been amended since the Court granted interlocutory appeal. The amendment became effective July 1, 2016, just before the parties filed their briefs with the Court. The comment to Rule 503 states; “The language of Rule 503 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. .. These changes are intended to be stylistic only, There is no intent to change any result in any ruling on evidence admissibility.” The amendments do not have any impact on the case sub judice.

      . Rule 503(c) has been amended for stylistic purposes:
      (c) Who may Claim the Privilege.
      (1) The privilege may be claimed by:
      (A) the patient;
      (B) the patient’s guardian or conservator; or
      (C)a deceased patient's personal representative.
      (2) The physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege, but only on the patient’s behalf.


text:
    In the Matter of the ENLARGEMENT AND EXTENSION OF the MUNICIPAL BOUNDARIES OF the TOWN OF TERRY, Mississippi: Greg Wilson, David McGuffee, Joyce Wallace, Kevin Bryant and Arthur Harvey v. TOWN OF TERRY, Mississippi
    NO. 2015-AN-01611-SCT
    Supreme Court of Mississippi.
    04/06/2017

      ATTORNEYS FOR APPELLANTS: JOHN PRESTON SCANLON, JERRY L. MILLS '
    ATTORNEY FOR APPELLEE: RAJI-TA IYER MOSS
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. The Town of Terry sought to annex five territories adjacent to the existing Town—Territory 1 to the north, Territory 2 to the west, Territory 3 to the east, Territory 4 to the northeast, and Territory 5 to the south. The Chancery Court of Hinds County determined such an extensive annexation was unreasonable. However, the chancellor partially granted the Town’s annexation request, finding their request for Territories 2 and 3 was reasonable. Some of the objectors appealed. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In May 2012, the Town‘of Terry passed an annexation ordinance seeking to enlarge its corporate boundaries by adding five tracts of land outside the Town in unincorporated Hinds County. As a result, the Town filed a petition with the Hinds County Chancery Court'seeking approval, ratification, and confirmation of the proposed annexation. The Town served the cities of Byram and Florence with process and published notice in The Clarion-Ledger.

¶ 3. Neither city filed objections or answers, to the Town’s petition. Five objectors—Greg Wilson, David McGuffee, Joyce Wallace, Kevin Bryant, and Arthur Harvey—answered and objected to the petition through joint counsel. Following a trial, the chancellor granted the Town’s petition in part. The chancellor found the annexation of Territories 1, 4, and 5 to be unreasonable due to the Town’s inability to bear the financial burden of such a large-scale annexation, coupled with its lack of planning regarding the expansion of municipal services into all five proposed areas. However, following an analysis of the twelve indicia of reasonableness, the chancellor found '& limited annexation of Territories 2 and 3 was reasonable. The Objectors appealed.

ISSUE

¶ 4. The sole issue on appeal is whether the chancellor’s partial grant of the Town’s annexation petition was reasonable and supported by substantial, credible evidence.

ANALYSIS

¶ 5. “The role of the judiciary in annexations is limited to one question: whether the annexation is reasonable.” Enlargement and Extension of Mun. Boundaries of City of Madison v. City of Madison, 650 So.2d 490, 494 (Miss. 1995). This Court will not reverse a chancellor’s finding of reasonableness unless that finding is manifestly wrong and/or not supported by substantial arid' credible evidence. Extension of Boundaries of City of Tupelo v. City of Tupelo, 94 So.3d 256, 266 (Miss. 2012). To determine reasonableness, this Court has promulgated the following twelve indicia:

(1) the municipality’s need to expand, (2) whether the area sought to be annexed is reasonably within a path of growth of the city, (3) potential health hazards from sewage and waste disposal in the annexed areas, (4) the municipality’s financial ability to make the improvements and furnish municipal services promised, (5) need for zoning and overall planning in the area, (6) need for municipal services in the area sought to be annexed, (7) whether there are natural barriers between the city and the proposed annexation area, (8) past performance and time element involved in the city’s provision of services to its present residents, (9) economic or other impact of the annexation upon those who live in .or own property in the proposed annexation area, (10) impact of the annexation upon the voting strength of protected minority groups, (11) whether the property owners and other inhabitants of the areas sought to be annexed have in the past, and in the foreseeable future unless annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy economic and social benefits of the municipality without paying their fair share of taxes, and (12) any other factors that may suggest reasonableness.

Id. at 266-67. Rather than being separate, independent tests, these indicia must be considered collectively to determine whether, under the totality of the circumstances, annexation was reasonable. Id. at 266.

¶ 6. According to the 2000 census, the Town had a population of 664. By 2010, the census reported the Town’s population as 1,063. During the trial in 2014, the mayor approximated the population at 1,200. As noted by the chancellor, the Town’s theri-mayor, Roderick Nicholson, testified to spillover' development in both the proposed annexation areas as well as within the Town. Two subdivisions of acreage properties had been developed in Territory 2 and low-density residential properties had developed in Territory 3. Both territories contained access points to Interstate 55, which intersects the Town. In the years preceding this annexation, a Chevrolet dealership had relocated from Crystal Springs to Terry and another merchant had established a “super store” in the Town. A new hardware store was also expected to open in March, the month after trial. Within the Town, two subdivisions had been developed. The Town had built a new city hall and had refurbished the old city hall into a combined public-works building and two-bay fire station.

¶7. In addition to two sewer projects, the Town had completed a comprehensive water improvement project, which included a new well and a refurbished water tower. This project resulted in a decrease in the number of Town residents using personal wells from approximately twenty-five percent to one percent. The Town currently furnishes Territory 2 with municipal water and Territory 3 with municipal sewer. Municipal sewer services were extended into Territory 3 to ameliorate hazards posed by failing septic tanks in the area. Raw sewage was spilling into backyards and down road ditches. The Board of Health assisted the Town in acquiring funding for the sewer project in Territory 3. The mayor also testified of instances in which homeowners with septic tanks were extending their runoff pipes directly into a creek rather than onto their property where sewage could be filtered naturally before entering the groundwater. This influx of raw sewage directly into the water supply created both environmental and health concerns for the Town and surrounding areas. If annexed, the Town proposes to extend municipal sewer services to Territory 2. Annexation would also provide the proposed annexation areas (PAAs) with twice-weekly garbage collection as opposed to the weekly service residents in those areas currently are receiving. Territories 2 and 3 are immediately adjacent to the current Town limits and are connected by in-use public roads and thoroughfares.

¶ 8. While the mayor testified the Town had vacant land available for development, he was unable to tell the court how much vacant land was available, suggesting that the question would be better directed to William Peacock. Peacock testified for the Town as an expert in rural and urban planning and development, but he too was unable to quantify the vacant land available to the Town. While Peacock testified there was no unmet need for zoning the PAAs, he stressed the convenience that would result from residents being able to attend hearings in Terry rather than in Raymond. Both the mayor and Peacock testified that they knew of no zoning needs in the PAAs that were not being met currently by Hinds County. However, the Hinds County zoning ordinances are considerably broad. The chancellor found that, as the PAAs are beginning to experience spillover development, the areas could benefit from the Town's more specific regulations. As the mayor put it, these ordinances would help “keep the peace” with regard to the highest and best use of a parcel of property because “hodgepodge” development can have an adverse effect on property values.

¶ 9. The mayor testified that the Town’s projected budget for fiscal year 2014 was $1,057,050 and that the Town has consistently stayed within budget. The Town’s account balance as of February 2014 was $214,283.76. According to the mayor, the monthly account balance ranged from $175,000 to $300,000, which was adequate funding for the Town to operate. The Town’s yearly revenue for 2012 (the most recent annual financial statement available at the time of trial) was $1,097,925. As of the date of trial, the Town had the following debts: USDA loan for the fire station/public works building at $1,900 per month; loan for water and sewer projects at $2,700 per month; bill for repairing water tank at $753 per month. The mayor testified that the Town has not defaulted on any of its long-term debt obligations during his tenure as mayor. In addition, the Town expects to receive increased sales tax revenue from the “super store” that opened at the end of September 2013.

¶ 10. Robert Lunardini testified for the Town as an expert in civil engineering and discussed the projected expansion of municipal sewer services into the PAAs. The projected cost of providing services to Territory 2 was $1,845,000. The projected cost for Territory 3 was $463,000. The price differential is due to the fact that municipal sewer services are already provided to much of Territory 3. Lunardini then discussed the avenues available to the Town to finance this undertaking. The Town’s past two sewer projects as well as the water system expansion were partially paid for through a Community Development Block Grant, which provided fifty-fifty matching funds. The Town would again apply for such a grant to fund these projects. Additionally, the Town qualifies for United States Department of Agriculture Rural Development Grants which provide up to seventy-five percent funding, but which typically provide forty to fifty percent. The Town also has access to cap loan funding, but it has not had to resort to cap loan funding in the past.

¶ 11. Lunardini testified that the Town would probably have to increase its sewer rate by about $17.28 per customer to account for the proposed expansion of utilities. This increase would be within the average rate of services in the area and would likely be imposed on current customers regardless of the result of the annexation. According to Lunardini, most cities in the area either have increased or will soon increase their rates due to the City of Jackson’s expansion of its own sewage treatment facility.

¶ 12. Territory 2 is approximately 640 acres, with an estimated population of 281; Territory 3 is approximately 570 acres, with an estimated population of 455. The Town’s current waste water treatment facility is operating at roughly fifty percent capacity, so it can accommodate the additional populations of these two areas.

¶ 13. The Town of Terry and the PAAs are served by a volunteer fire department. At trial, the Town had just completed a new, two-bay fire station and was in the process of acquiring equipment and a new fire truck to establish a municipal fire department. As a result of building the new fire station, the Town’s fire insurance rating had improved from nine to eight. Because the station is centrally located, the improved insurance rating can be extended to a three-mile radius, which includes Territories 2 and 3.

' ¶ 14. The Town currently has four full-time police officers and one part-time police officer. The Town and the Hinds County Sheriffs Department have a reciprocity agreement so that the Town often responds to calls outside the Town limits in the PAAs. The mayor also testified that the Town would consider hiring additional officers if needed and financially feasible.

¶ 15. The chancellor found no evidence of natural barriers that would preclude the Town from providing services to the PAAs as outlined in the annexation ordinance.

¶ 16. Regarding past performance, the Town’s most recent annexation was in 2009. All Town residents benefitted from twice-weekly garbage collection. As of the date of trial, Lunardini testified that the Town had extended municipal sewer to ninety-eight percent of the Town’s residents. The Town upgraded its water system and improved its fire insurance rating. Other than repaving the Town’s main thoroughfare, the mayor testified that the Town had not improved any other roadways., He did, however, anticipate “a total reconstruction” of Old Highway 51 in the summer of 2014. This project would be completed with approximately eighty percent state aid funding. The Town had not developed any new storm- drainage facilities but anticipated those improvements to be included in a future project. Nor had the Town installed any new curbs, gutters, streetlights, or sidewalks. The mayor pointed out that analysis with Town engineers and local energy providers indicated that those improvements were not necessary.

¶ 17. The learned chancellor considered all of the evidence presented and found that “the Town provided proof that its past performance, while not perfect, was competent.” The chancellor found that, if annexed, Territories 2 and 3 would. enjoy comprehensive planning, economic development, housing and community development, code enforcement, and zoning and subdivision , regulations. Additionally, the areas would benefit from municipal-level police protection and twice-weekly garbage collection, The areas would continue to be served by the current volunteer fire department, while the Town moves forward with its plan to outfit its new fire station and to develop a municipal fire department. Finally, the Town would extend municipal sewer services to Territory 2 and would expand its existing municipal sewer service m Territory 3 as soon as possible and financially feasible. The chancellor also considered the fact that the Town has retained the Central Mississippi Planning and Development District to develop a comprehensive plan to expand'its borders as favoring annexation. '

¶ 18, Finally, the chancellor balanced the Town’s annexation request against the Objectors’ concerns. Objectors testified at trial that they had no desire to be annexed, stating they considered their current level of services to be adequate and stressing a desire to continue living a rural lifestyle. In a detailed judgment, considering all twelve indicia o'f reasonableness, the chancellor limited the Town’s annexation to Territories 2 and 3 only, expressly finding annexation of Territories 1, 4, and 5 to be unreasonable due to the Town’s inability to sustain such a massive annexation. We find the chancellor’s decision was reasonable and supported by substantial, credible evidence.

CONCLUSION

¶ 19. The chancery court’s findings were based on substantial, credible evidence, were not manifestly wrong, and were well within the chancery court’s discretion. We therefore affirm the decision of the Chancery Court of Hinds County.

¶ 20, AFFIRMED.

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

      , We refer to these five individuals collectively as "the Objectors.” However, only two of the Objectors—Wallace and Wilson—live in the territories awarded to the Town for annexation and subject to this appeal.

      . The Town did not cross-appeal the 'chancellor’s denial of Territories 1, 4, and 5.

      . Section 21-1-33 provides that, before approving an annexation, the chancellor must find from the evidence that it "is reasonable and is required by the public convenience and necessity.” Miss. Code Ann. § 21-1-33 (Rev. 2015), Given that the Court,must consider reasonableness in light of the concerns of both the municipality and the landowners', "a determination of reasonableness necessarily encompasses an analysis of the public neces"sity and convenience of an annexation.” City of D’Iberville v. City of Biloxi, 109 So.3d 529, 537 n.1 (Miss. 2013).

      . The mayor testified that the Town generally receives sales tax revenue two months after it is collected, so the Town had realized only a few months of revenue as of the date of trial.

      . The lower the income of the population, the more likely the Town is to qualify for these grants. The population in Territory 3 is low-to-moderate income.

      .While the Town treats its own sewage, many cities have their sewage treated by Jackson’s facilities, so Jackson passed the expense of expansion on to all of its customers.

      . A comprehensive plan was drafted, but the Town is awaiting the outcome of this annexation matter before adopting an updated plan to ensure that all areas within the Town are included in its updated comprehensive plan. As part of those efforts, the Town retained a civil engineer, Lunardini, to evaluate the feasibility, cost, and manner of providing municipal services to the PAAs.


author: RANDOLPH, PRESIDING JUSTICE, COLEMAN, JUSTICE,

text:
    Tasha DILLON v. David MYERS
    NO. 2015-EC-01677-SCT
    Supreme Court of Mississippi.
    04/06/2017
    PIKE COUNTY CIRCUIT COURT, HON. JAMES D. BELL, Judge
    ATTORNEYS FOR APPELLANT: PIETER JOHN TEEUWISSEN, ANTHONY RENARD SIMON
    .ATTORNEYS FOR APPELLEE: BRANDON CURRIE JONES, DAVID WAYNE BARIA .
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. Tasha Dillon contested the result's of the August 4, 2015, Democratic primary for Mississippi House of Representatives (“House”) District 98. The Democratic primary’s purpose was to determine the party’s candidate or nominee in the November general election. The Pike County Circuit Cqurt dismissed the case for lack of subject-matter jurisdiction. Dillon appealed. As the circuit court erred in finding it lacked jurisdiction, we reverse and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Tasha Dillon and David Myers were candidates in the Democratic primary for House District 98, held in Walthall and Pike Counties. The Pike County Election Commission (“PCEC”) certified Myers as the winner by a vote of 2,003 to 1,859. On August 24, Dillon filed a petition of contest with the Mississippi Democratic Executive Committee (“MDEC”) and filed an amended petition on September 1. Two days later, Dillon petitioned the Pike County Circuit Court for judicial review, as provided in Mississippi Code Section 23-15-927.

¶ 3. In the circuit-court proceeding, the Pike County Board of Election Commissioners and the Pike County Circuit Clerk (“Election Officials”) moved to intervene. The Election Officials moved to dismiss for lack of subject-matter jurisdiction. Myers filed a separate motion to dismiss for lack of subject-matter jurisdiction. Following a hearing on the motions, the Pike County Circuit Court dismissed the contest for lack of subject-matter jurisdiction, reasoning that Article 4, Section 38 of the Mississippi Constitution and Section 23-15-955 of the Mississippi Code controlled, but acknowledging the existence of conflicting caselaw on the issue. Dillon appealed.

ISSUES

¶ 4. Dillon raises two issues. on appeal, which have been restated for clarity:

I. Whether the trial court erred in dismissing for lack of subject-matter jurisdiction.
II. Whether the trial court erred in allowing the Election Officials to intervene.

ANALYSIS

I. Whether the trial court erred in dismissing for lack of subject-matter jurisdiction.

¶ 5. This Court reviews questions of law, including jurisdictional questions, de novo. McDaniel v. Cochran, 158 So.3d 992, 995 (Miss. 2014); McCain Builders, Inc. v. Rescue Rooter, LLC, 797 So.2d 952, 954 (Miss. 2001).

¶ 6. Dillon argues the circuit court had jurisdiction pursuant to Mississippi Code Section 23-15-927. Myers argues the House had exclusive jurisdiction pursuant to Section 38 of the Mississippi Constitution. Caselaw arguably supports both positions.

¶ 7. In the 2003 Republican Primary for House District 56, Jep Barbour was certified the winner over his opponent, Phillip Gunn. Barbour v. Gunn, 890 So.2d 843, 844 (Miss. 2004). Gunn filed a contest-with the State Republican Executive Committee. Id. When the executive committee failed to act promptly, Gunn sought judicial review. Id. The Circuit Court of Hinds County ordered a new election in two precincts. Id. Barbour appealed, arguing the circuit court lacked jurisdiction because Gunn had not given the executive committee time to act. Id. at 846. This Court held

that the trial court properly found that it had jurisdiction to proceed in this matter. Miss. Code Ann. § 23-15-927 plainly states that an election “contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred,” if the “executive committee having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and'the law.”

Id. at 847. Barbour supports Dillon’s argument.

¶ 8. Conversely, Myers argues the jurisdictional exclusivity of Section 38 of the Mississippi Constitution controls and was neither raised nor argued by either Barbour or Gunn. Indeed, this Court previously has held that Section 38 applies to primary election contests for the Mississippi -Legislature (albeit without addressing Section 247 of the Constitution, which specifically addresses party primary elections). See Foster v. Harden, 536 So.2d 905 (Miss. 1988); Henry v. Henderson, 697 So.2d 447 (Miss. 1997).

¶ 9. In Foster, two candidates were certified for a runoff election in the Democratic primary for Senate District 28. Foster, 536 So.2d at 906. Poster was not certified and filed-a petition with the executive committee challenging the qualifications of the candidates certified to run in the primary runoff. Id. When the committee denied her petition, Foster sought judicial review. Id. Harden filed a motion to dismiss for lack of subject-matter jurisdiction pursuant to Section 38 of the Mississippi Constitution. Id. When the trial court dismissed, Foster appealed. Id. This Court found Section 38 “provides in unambiguous language that each house of the legislature ‘shall judge of the qualifications, return and election of its own members.’” Id. The Court held Section 38 vests exclusive jurisdiction in the Legislature, and thus the Judiciary was without authority to hear the case. Id. at 907.

¶ 10. The Foster dissent, however, charged the Court with “dep[a]rt[ing] from precedent barely a year old and from a premise fundamental in our law,” opining that the Court previously had held that, in an primary election, “residency qualifications of a candidate are proper. subject matter for a special tribunal in an election contest, hearing.” Id. at 907-08 (Zuccaro, J., dissenting) (citing Gadd v. Thompson, 517 So.2d 576 (Miss. 1987)). Indeed, Gadd affirmed judicial review of a candidate’s qualifications following the Democratic primary election for House District 13. Gadd, 517 So.2d at 577-79.

¶ 11. While Foster involved a qualification issue following a primary election, jurisdiction of a primary election contest was addressed., .in Henry. Henry, and Henderson were candidates in the Democratic primary for House District 26. Henry, 697 So.2d at 448. Henry challenged the election, first .through the executive committee and then through the circuit court. Id, The circuit court granted Henderson’s motion to dismiss for lack of jurisdiction based on Foster and Section 38 of the Mississippi Constitution. Id. On appeal, Henry argued that Section 38 applied only to qualifications and competence of legislators and not. to election contests; therefore Foster should not apply. Id. at 450. The Court rejected this argument. Id. at 451 (“The Constitution gives authority to each house to judge the return and election of its own members. Return and election includes the proper number of votes cast for each candidate. Therefore, "as in Foster, the lower court would be without jurisdiction.”),

¶ 12. We are tasked today with reconciling these competing lines of cases with our Constitution, We thus turn our attention first to the supreme law of this State, the Mississippi Constitution of 1890, comparing Section 38 (“Each house shall elect its own officers, and shall judge of the qualifications, return and election of its own members.”) and Section 247 (“The Legislature shall enact laws to secure fairness in party primary elections, conventions, or other methods of naming party, candidates.”). These sections were adopted at the same time. In exercise of the Constitutional mandate of Section 247, the -Legislature subsequently enacted Section 23-15-927, providing for judicial review of primary election contests. The Legislature likewise codified its authority to decide contests involving its own members, but only following a general or special election. See Miss. Code Ann. § 23-15-955. Notably, Section 23-15-955 requires challenges to, legislative seats to be filed thirty days after a general election or ten days after a special election. Conspicuously absent from that code section is any mention of primary elections, which the Legislature separately addressed in Section 23-15-927. We find the absence of any reference to a primary election in Section.23-15-955 and the specific reference to, general/specific elections in Section 23-15-955, along with the specific inclusion, of primary election contests in Section 23-15-927, evinces the Legislature’s recognition of the distinction we declare today. The election at issue sub judice specifically concerns a party primary election, which brings this, case squarely within the purview of the more specific Section 247—wherein the people directed the Legislature to enact laws to secure fairness,in party-primary elections. The adoption of Sections 23-15-955 and 23-15-927 is clear support for the distinction and validates our holdings prior to Henry and Foster.

¶ 13. The Henry and Foster Courts failed to address the interplay between Sections 38 and 247. Prevailing in a primary election creates no right to demand of the Legislature a seat. Prevailing in a primary election creates no right to challenge another who has. taken a seat. A primary election does not transform a candidate or nominee of a party into a member of the House or Senate. Prevailing in a primary merely makes one the official party candidate or nominee certified to run in the general election. Members of the Legislature are elected in general (or special) elections, not primaries; hence the Constitution granted the Legislature the right to hear legislative election contests following a general (or special) election.

¶ 14. The primary election at issue in this case did not result in any person securing the right to claim the office as a member of the House of Representatives, District 98. The primary election at issue in this case did not result in any person becoming a member of the Legislature. It was not a general election. The primary election determined only the Democratic nominee for the general election. Only the subsequent general election could result in one acquiring the right to become a member of the Legislature. The dissent conflates the principles governing general elections with those governing primaries. We agree that Section 38 places judging the election of members of the Legislature in the Legislature’s bailiwick, but legislative members are elected in general (or special) elections.

¶ 15. In order to restore harmony to our Constitution and election laws, we reaffirm the Legislature’s exclusive jurisdiction, pursuant to Section 38 of the Mississippi Constitution, to hear election contests involving a seat in the Mississippi Legislature following a general or special election. However, the jurisdiction bestowed on the Legislature by Section 38 does not apply to a 'primary election for a legislative office, for the same Constitution, in Section 247, requires the Legislature to enact laws to secure fairness in primary elections. Pursuant to that mandate, the Legislature first granted the parties’ executive- committees jurisdiction to resolve primary election contests. -If a contestant is dissatisfied with the timeliness or final decision of the executive committee, the Legislature endowed the judicial branch with full jurisdiction to review all primary election contests. Thus, the circuit court erred in finding it lacked subject-matter jurisdiction in the case sub ju-dice.

¶ 16. As this opinion reveals, resolution of this issue has a checkered past. The prior opinions failed to address Section 247 of our Constitution, vis a vis Section 38. In so doing, we have denied citizens, like Dillon, the right to contest a primary election, codified by the Legislature as directed by the Constitution. Thus the holdings in Foster and Henry have had a “substantial adverse or significantly harmful effect upon the people.” State ex rel. Moore v. Molpus, 578 So.2d 624, 635 (Miss. 1991). To the extent any of our prior cases are contradictory to this opinion, they are expressly overruled.

II. Whether the trial court erred in allowing the Election Officials to intervene.

¶ 17. Section 23-15-931 governs procedures for judicial review of an election contest.

[T]he circuit clerk shall issue subpoenas for witnesses .. .• and he shall also issue a summons to each of the five (5) election commissioners of the county ... requiring them to attend the hearing, throughout which the commissioners shall sit with the judge as advisors or assistants in the trial and determination of the facts, and as assistants in counts, calculations and inspections, and in seeing to it that ballots, papers, documents, books and the like are diligently secured against misplacement, alteration, concealment or loss both in the sessions and during recesses or adjournments. The judge is, however, the controlling judge both of the facts and the law, and has all the power in every respect of a circuit judge in tertntime. The tribunal shall be attended by the sheriff, and clerk, each with sufficient deputies,, and by a court reporter.... The special tribunal, after the contest or complaint has been fully heard anew, shall make a finding dictated to the reporter covering all controverted material issues of fact, together with any dissents of any commissioner, and thereupon, the trial judge shall enter the judgment which the county executive Committee should have entered, of which the election commissioners shall take judicial notice, or if the matter be one'within the jurisdiction of the State Executive Committee, the judgment shall be certified and promptly forwarded to the Secretary of the State Executive Committee, and, in the absence of an appeal, it shall be the duty of the State Executive Committee forthwith to reassemble and revise any decision theretofore made by it so as to conform to the judicial judgment^]

Miss. Code Ann. §. 23-15-931 (Rev. 2015).

¶ 18. Dillon argues that because the Election Officials, have statutorily prescribed duties, intervention was improper. The Election Officials counter that the Rules of Civil Procedure permit intervention by anyone “when an applicant’s claim or defense and the main action have a question of law or fact in common.” M.R.C.P. 24(b)(2). Because Dillon alleges numerous election-code violations by the Election Officials, they argue their claims and defenses and-Dillon’s main action have a question of law or fact in common.

¶ 19. Rule 24 notwithstanding, Rule 81 provides that the Rules of Civil Procedure “are subject to limited applicability” in actions “generally governed by statutory procedures,” including “proceedings pertaining to election contests.” M.R.C.P. 81(a)(4). Section 28-15-931 prescribes duties for the circuit clerk and the election commissioners during judicial review of an election contest. The circuit clerk is a mandatory participant, as are the election commissioners, who serve as advisors and assistants to the trial judge. Therefore, it was error to allow the Election Officials to intervene as parties when the statute mandates contrary duties.

CONCLUSION

¶ 20. When Section 38 and Section 247 of the Mississippi Constitution are read together, the Constitution vests the Legislature with exclusive jurisdiction to hear legislative election contests following general (or special) elections. But that jurisdiction does not extend to primary election contests. In exercising the mandate of Section 247 to enact laws to secure fairness in party primaries, the Legislature' granted the Judiciary jurisdiction to hear all primary election contests. Therefore, the circuit court erred in dismissing this case for lack of subject-matter jurisdiction. Also, because intervention is inconsistent with the Election Officials’ statutory duties during judicial review of an election contest, permitting their intervention was error. The judgment of the Pike County Circuit Court is reversed and the case is remanded for further proceedings consistent with this opinion!

¶ 21. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

COLEMAN, JUSTICE,

DISSENTING:

¶ 22.1 wholly agree with the majority in one respect. “We are tasked today with reconciling [these] competing lines of cases with our Constitution.” (Maj. Op. at 1112). However, because I am of the opinion that Section 38 mandates by its, language that disputes regarding election to either house of our Legislature, no matter when they may arise during the elective process, be decided in the appropriate house, I respectfully dissent.

¶ 23. Article 4, Section 38 of the Mississippi Constitution of 1890 provides, “Each house shall elect its own officers, and shall judge of the qualifications, return and election of its own members.” In twelve of its twenty words lies the answer to today’s case. “Each house ... shall judge ... the ... return and election of its own members.”

¶24. The majority holds that the broad-' er Section 247, which by its. -terms applies to all party elections, conventions, and methods of naming party candidates governs, but I believe it does so in the first place based upon a misinterpretation of the words “of its own members” in Section 38 and, in the second place, in disregard of the principle of construction that directs us to give effect to a narrow provision of law over a broader one, and, in the third instance, in violation of the doctrine of store decisis.

¶25. The majority writes, “A primary election does not transform a candidate or nominee of a party into a member of the House or Senate.” (Maj. Op. at ¶ 13). The majority reasons that, because winning a party primary makes a candidate the candidate only for a party, or, if one will, a candidate at a higher level, it takes the candidate outside of the parameters- of Section 247. I do not discern within the-text of our Constitution the line drawn by the majority between the primary and the general election for purposes of electing members of the Legislature'. The whole process is part of electing members of the' Legislature, and Section 38' explicitly places judging the election of members of the Legislature in the Legislature’s bailiwick. In light of the straightforward wording of -Section 38, there exists no real' difference between the different stages of the election process, and I fear that the majority today adds words to the Constitution to reach its result.

¶ 26. By the above-quoted language and the language that follows it, the majority suggests that 'Section 38 limits itself to contests' wherein an incumbent member is a party to the contest.'However, Section 38 applies to both the return and the election of its own members. If Section 38 applied only to the return of its members, I would agree with the majority, but the drafters’ inclusion of the words “and election” significantly broadens its Impact.

¶27. I further basé my differeneé of opinion with the majority on the principle of construction that “[t]o the extent that two constitutional or statutory provisions overlap or conflict, specific provisions control over general provisions.” Harrison v. State, 800 So.2d 1134, 1137 (¶ 14) (Miss. 2001) (citing Yarbrough v. Camphor, 645 So.2d 867, 872 (Miss. 1994) (citing McCrory v. State, 210 So.2d 877, 877-78 (Miss. 1968); Lenoir v. Madison County, 641 So.2d 1124, 1128 (Miss. 1994))). Section 38 applies only to legislative elections, but Section 247 applies to all party elections, conventions, and other .methods for electing party candidates for any and every elected office in the state in which candidates run with party affiliation. As the narrower provision, Section 38 controls.

¶ 28. Pursuant to the foregoing reasoning, I would hold that the cases rejected by the majority including Foster v. Harden, 536 So.2d 905, 907 (Miss. 1988), and Henry v, Henderson, 697 So.2d 447 (Miss. 1997), were correctly decided and provide the correct guidance for all legislative election contests. In Foster, which involved a contest that occurred at the , primary level, the Court wrote, “Section 38 vests competence of Harden’s qualifications for office—including whether she meets the residency qualifications—in the Senate.. Accordingly,, there is no authority in the judiciary to hear this case. The court below correctly dismissed for lack of subject matter jurisdiction.” Harden, 536 So.2d at 907. The Harden Court also wrote as follows:

Section 38 of the Constitution provides in unambiguous language that each house of the legislature “shall judge of the qualifications, return and election of its own members.” The almost universal constitutional doctrine in the United States , and the several states which have constitutions containing this or similar provisions is that: .
Each legislative body is the sole judge of the elections, returns, and qualifications of its own members, and its action in admitting or expelling a member, is not reviewable in the courts. Furthermore, a statute which requires a court to inquire into the commission of corrupt practices in the election of a member of the legislature is not constitutional.
16 C.J.S., Constitutional Law § 201 (1984).

Harden, 536 So.2d at 906. The Harden Court continued,

The point is advanced that whether Harden meets the residency requirement of Section 42 is a question of law, compe-fence of which is necessarily" committed to the judiciary. We are not concerned with the nature of the substantive .question presented but with locating the legal power to decide it. That we have before us a question of law cannot be doubted for Section 42 is a rule of law. Still, it does not follow that the question may be considered only in the courts. Judicial competence may not extend to questions of law, decision of which is constitutionally placed somewhere else, for “there is no natural law of separation of powers. Rather, the powers of government are separate only insofar as the Constitution makes them separate.” Dye v. State, ex rel. Hale, 507 So.2d 332, 346 (Miss. 1987).
Section 38 vests competence of Harden’s qualifications for office—including whether she meets the residency qualifications—in the Senate. Accordingly, there is no authority in the judiciary to hear this case. The court below correctly dismissed for lack of subject matter jurisdiction.

Harden, 536 So.2d at 906-907.

¶29. Indeed, as the majority acknowledges, in Barbour v. Gunn, 890 So.2d 843 (Miss. 2004), Section 38 was neither raised nor argued. (Maj. Op. at ¶ 8). Therefore, as a third and final ground for my disagreement with the majority, in addition to the language of Section 38 and the principle of applying specific provisions over general ones, I rely on the principle of stare deci-sis and close by pointing out that the Foster and Henry Courts already have provided the result the Court should be following in the case sub judice. The issue before us already has been decided, and the majority identifies no compelling reason to stray from our earlier pronouncements on the matter.

      . Dillon alleged numerous election-code violations by the Pike County Election Commission, the circuit clerk, and her opponent, David Myers. The allegations included improper election-day activities, improperly programmed voting machines, insufficient equipment, confusion of. ballots in. split precincts, and mishandling of both absentee and affidavit ballots.

      . Section 23-15-927 provides, in pertinent part:
      When and after any contest has been filed with the ... State Executive Committee, and the executive committee having jurisdiction fails to promptly meet ... the contestant shall have the right forthwith to file in the circuit court of the county in which the irregularities are charged to have occurred ... a sworn copy of his protest or complaint, together with a sworn petition, setting forth with particularity how the executive committee has wrongfully failed to act or to fully and promptly investigate ... with a prayer for a judicial review thereof.
      A petition for judicial review must be filed within ten (10) days after any contest or complaint has been filed with an executive committee.
      Miss. Code Ann. § 23-15-927 (Rev. 2015).

      . Miss. Const. art. 4, § 38 ("Each house shall ... judge of the qualifications, return and election of its own members.”). This provision of the Mississippi Constitution has been codified as follows:
      Except as otherwise provided by Section 23-15-961, the person contesting the seat of any member of the Senate or House of Representatives shall comply with the provisions of this section. Section 38, Missis-

        sippi Constitution of 1890, provides that each house of the Mississippi State Legislature shall judge the qualifications, return and election of its membership. Pursuant to that authority, the House of Representatives shall have exclusive jurisdiction over an election contest regarding the seat of any member of the House of Representatives, and the Senate shall have exclusive jurisdiction over an election contest regarding the seat of any member of the Senate. An election contest regarding the seat of a member of the House of Representatives or the Senate shall be filed with the Clerk of the House or the Secretary of the Senate, as the case may be, within thirty (30) days after a regular general election or ten (10) days after a special election to fill a vacancy. The legislative resolution of the election contest shall be conducted in accordance with procedures and precedents established by the House of Representatives or the Senate, as the case may be.
      Miss. Code Ann. § 23-15-955 (Rev. 2015). Section 23-15-961 provides for judicial review of one challenging the qualifications of a party in a primary election. See Miss. Code Ann. § 23-15-961 (Rev. 2015).

      . Miss. Const. art. 4, § 38,

      . Miss. Const. art. 12, § 247,

      . We are asked today to determine whether a circuit court has subject-matter jurisdiction to hear a particular case, which requires an analysis of our Constitution and election statutes. Although neither party directs-this Court to Section 247, an analysis of that section is necessary, for the statute at issue was -breathed into existence .by the authority of that section.

      . Further validation is found in the adoption of internal House Rule 104(B). See n,9 infra,

      . Even in an uncontested general election, a candidate may be removed from consideration by death, resignation, withdrawal, or other reason. See Miss. Code Ann. §§ 23-15-363; 23-15-365 (Rev, 2015).

      . Not only did the Legislature enact statutes governing primary election contests, pursuant to Section 247, we take judicial notice of the adoption of House Rule 104B ("The procedure for handling the Contest of the election, other than a primary election, of a member of the Mississippi House of Representatives shall be as follows:. (1) Anyone desiring to contest the election, other than a primary election ...,”) as evidence of the Legislature's intent to commit review of primary election contests to the Judiciary, While the dissent does not discern the line drawn between primary and general elections (see Dis, Op. at ¶ 25), the line was drawn by the drafters of our Constitution, not by us.

      . Miss. Code Ann. §§ 23-15-927 (providing for judicial review of party primary elections); 23-15-961 (providing for judicial review of challenges to candidate qualifications in a primary election).

      . See, e.g., Foster v. Harden, 536 So.2d 905 (Miss. 1988); Henry v. Henderson, 697 So.2d 447 (Miss. 1997).

      . "One accepted ground for judicial overruling of a demonstrably erroneous prior constitutional interpretation is that, across the years, it has produced great and sustained harm; ... if it: is clearly ..hurtful.” Molpus, 578 So.2d at 635.