author: BARNES, J.,

text:
    Michael STEVENS, Appellant v. Derrick WADE, Personally, and as an Employee of Wesley House Community Center, Inc., Andy Hodges, Personally, and as an Employee of Wesley House Community Center, Inc., Ginger Grissom Stevens, Personally, and as Director of Wesley House Community Center, Inc., Wesley House Community Center, Inc., National Board of Global Ministries of the United Methodist Church and Board of Directors of Wesley House Community Center, Inc., Appellees
    NO. 2015-CA-01309-COA
    Court of Appeals of Mississippi.
    03/21/2017

      ATTORNEY FOR APPELLANT: GLENN S. SWARTZFAGER
    ATTORNEYS FOR APPELLEES: WADE G. MANOR, JAMES LEROY BANKS IV, WILLIAM E. READY JR., HENRY P. PATE III
   EN BANC.

BARNES, J.,

FOR THE COURT:

¶ 1. This case stems from the dismissal of Michael Stevens’s malicious-prosecution case after his nearly two-year delay in answering discovery. Stevens appeals -the judgment of the Circuit Court of Lauder-dale County, which denied his motion for relief from a judgment of dismissal. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶2. On July 8, 2013, Stevens filed a complaint in the Lauderdale County Circuit Court against Wesley House Community Center (Wesley House); Derrick Wade and Andy Hodges, personally and as employees of Wesley House; and Ginger Grissom Stevens (Ginger), personally and as director of Wesley House; the Board of Directors of Wesley House (Board); and the National Board of Global Ministries of the United Methodist Church (Global Ministries Board). Stevens alleged malicious prosecution, abuse of process, and both intentional and negligent infliction of emotional distress, seeking unspecified compensatory damages and $1,000,000 in punitive damages.

¶ 3. The Defendants subsequently answered, and on March 13, 2014, discovery was propounded, with Ginger’s filing a first request for interrogatories and production of documents on Stevens. Nearly three months later, on June 2, 2014, Ginger sent a letter via email to Stevens’s counsel, D. Andrew Hassin, requesting a response to the discovery. On July 14, 2014, Stevens personally filed a letter stating he had been unable to reach his attorney for several weeks. Stevens noted that Hassin was no longer located in the office where Stevens had hired him, and was told Hassin had been hospitalized. In the letter, Stevens informed the court he was in the process of hiring a new attorney, but the record indicates he never did.

¶ 4. On August 15, 2014, Ginger’s counsel, Wade Manor, sent a letter to Hassin via email demanding discovery responses by August 20, 2014, or a motion to compel would be filed. After no response from either Hassin or Stevens,- Ginger filed a motion to compel discovery responses on September 19,2014.

¶ 5. A hearing on the motion to compel was noticed on Stevens for November 18, 2014, via regular mail; however, neither Stevens nor Hassin attended. The circuit court therefore issued an order stating Stevens had until December- 5, 2014, to provide discovery responses. The order was sent via regular mail and email to Hassin. On December 22, 2014, after no response from Stevens or Hassin, and no other communication between the parties, Ginger filed a motion to dismiss, which was granted as to all Defendants by the circuit court on January 26, 2015.

¶6. Hassin claimed he learned of the case’s January 2015 dismissal with prejudice via an email from Manor’s office on April 20, 2015. Hassin waited another two weeks before filing a motion for relief from judgment on May 7, 2015. He explained that the reason for the delay in discovery responses was “a simple mistake”—that in October 2014, Hassin- relocated his office from Jackson to Ridgeland, Mississippi. He noted the address change was updated on the Mississippi Bar’s website; however, Hassin’s . email address did ■ not change.

¶ 7. On June 10, 2015, a hearing on the motion for relief from judgment was held, but the attorney for Appellees Wade, Hodges, Ginger, and the Global Ministries Board (Wade Manor), was absent, and the attorney for Wesley House and its Board (William Ready), objected to the hearing as he had not been notified of it. Accordingly, the circuit court continued the hearing until July 1, 2015; so proper notice could be given to both Manor and Ready.

¶ 8. At the July 1, 2015 hearing, where Manor and Ready were present, the circuit judge thoroughly questioned Hassin about his failure to respond to the order compelling discovery, and both his and his client’s failure to prosecute the lawsuit. Hassin stated that he had been unable to communicate because he had been hospitalized three times for drug treatment from June through September 2014, for several weeks each time; therefore, his neglect of the case was not willful. Further, Hassin claimed that he had not received notice of any of the proceedings of the case because of his office’s relocation around the time of his drug treatment, but he admitted that he failed to provide the court or opposing counsel his new address. Hassin took responsibility for the lack of communication, but stated his client was unaware of the situation and should not be penalized. However, the circuit judge noted that Stevens knew he could not communicate with his attorney back in July 2014, because Stevens filed a letter with the court stating such. At the hearing, Hassin also gave the Appellees his client’s answers to interrogatories, but did not respond to the request for production of documents.

¶ 9. The circuit court rejected Hassin’s arguments for relief from dismissal, and denied the motion. Stevens timely appealed the order of dismissal.

STANDARD OF REVIEW

¶ 10. This Court applies the limited standard of review of abuse of discretion when examining the grant or denial of a Rule 60(b) motion. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984) (citation omitted).

ANALYSIS

¶ 11. Stevens focuses his appellate arguments entirely on the circuit court’s dismissal of his case under Mississippi Rule of Civil Procedure 37(b) for failure to respond to written discovery in a timely fashion, and to a lesser extent failure to prosecute the case. However, Stevens focus is misplaced, as he did not appeal the judgment of dismissal, but the order denying relief from judgment under Rule 60(b). The appeal from a denial of a Rule 60(b) motion “brings up for review only the order of denial itself and not the underlying judgment.” Melton v. Smith’s Pecans Inc., 65 So.3d 853, 858 (¶ 18) (Miss. Ct. App. 2011) (quoting Overbey v. Murray, 569 So.2d 303, 305 (Miss. 1990)). Accordingly, we primarily address the order denying relief and not the merits of the dismissal.

¶ 12. Rule 60(b)(2) provides relief from judgments obtained through accident or mistake. The rule “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, and that neither ignorance nor carelessness on the part of an attorney will provide grounds for relief.” Stringfellow, 451 So.2d at 221 (citation omitted). “[A] balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation.” Id. The movant “must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough.” Id.

¶ 13. In its order, the trial court denied Stevens’s motion for Rule 60(b) relief, finding the ease’s initial dismissal was proper due to repeated failures to comply with discovery requests, repeated disregard for procedural directives of the court, and in general want of prosecution. Aggravating factors considered for whether dismissal was appropriate were willfulness or bad faith; the use of less drastic sanctions for deterrence; the extent to which Stevens, as distinguished from his counsel, was personally responsible for the delay; and the degree of actual prejudice to the Defendants. Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th Cir. 1985); Stacy v. Johnson, 25 So.3d 365, 368 (¶11) (Miss. Ct. App. 2009) (citation omitted). In its order of dismissal, the circuit court stated:

From July of 2013 to May of 2015, the record is void of any actions taken by Mr. Hassin to diligently pursue the cause of action. Plaintiff, who was aware of Mr. Hassin’s failure to pursue the cause of action, also failed to communicate with the Court or opposing counsel following his July 2014 letter in which he stated he was attempting to obtain new counsel. This total lack of communication caused the action to continue for two years without any actual progress. To allow the Plaintiff to move forward with litigation at this point would result in prejudice to the Defendants, as they believed the case was concluded months ago and material witnesses may no longer be available to testify to an event that occurred more than two years ago.
Plaintiff, who is asking for one million dollars in damages from Defendants, has a responsibility to tend to his case and the Court has a responsibility to handle the docket. At some point, deadlines must be enforced because otherwise the Court is unable to manage the docket.

¶ 14. Here, neither the counsel’s nor the client’s lack of action, through either accident or mistake, is excusable due to an “exceptional circumstance” that would allow relief from the judgment of dismissal. Most of the delays in the case Hassin attributes to the relocation of his office and his being hospitalized for the treatment of drug addiction for several months. He claims his client has no responsibility for the delays. Yet, the record shows both Stevens and Hassin had opportunities to engage in the case’s litigation, but did not.

¶ 15. The record shows that both Stevens and Hassin failed to cooperate with the Appellees’ attempts to conduct discovery. When Stevens failed to respond within thirty days to Ginger’s first request for interrogatories and request for production of documents, two letters were sent to Hassin via email inquiring on its status, on June 2, 2014, and August 15, 2014. Hassin never responded to the correspondence. When Ginger filed the motion to compel discovery, Hassin undisputedly received it but never filed a response. Neither Stevens nor Hassin appeared at the November 18 hearing, yet the notice was sent to Hassin via regular mail. However, because he did not change his address with the court, it was sent to his old address. While Hassin’s physical address changed, his email address did not, and the order compelling discovery responses by December 5, 2014, was emailed to Hassin on November 19, 2014. Apparently, however, Hassin was not checking his email, because there was no response to the discovery by this date. Hassin was not hospitalized during the November-to-December time frame.

¶ 16. At the hearing in July 2015, Hassin admitted he had no record of notifying Appellees’ counsel of his office relocation. Further, he never sent a notice of relocation to the circuit court. Stevens apparently found out about the move due to his letter to the circuit court in July 2014, but he never hired a new attorney or answered discovery, as he said he would. At the hearing, Hassin, still Stevens’s attorney, finally provided the sworn answers to the interrogatories, but it was almost six months after the case’s dismissal and almost two months after the filing of the motion for relief. He, however, made no response to the request for production of documents.

¶ 17. The Appellees cite to Palmer v. Grand Casinos of Mississippi Inc., 744 So.2d 745 (Miss. 1999), as a similar situation, and we agree. In Palmer, the plaintiffs attorney had several severe medical problems, and thus failed to answer discovery, respond to notices of depositions, or appear at a hearing on the defendant’s motion to dismiss. Id. at 745 (¶ 1). The case was dismissed, and the trial court denied a motion for relief under Rule 60(b). Id. at (¶2). The Mississippi Supreme Court acknowledged it had no authority to address the merits of the order of dismissal, but found errors and omissions of plaintiffs counsel due to health issues did not rise to the level of “exceptional circumstances.” Id. at 745-46 (¶¶ 2, 6). The supreme court affirmed the denial of relief under Rule 60(b)(2). Id. at 747 (¶ 8).

¶ 18. Likewise, Stevens failed to show adequate grounds for relief under Rule 60(b)(2). Hassin’s hospitalization for drug treatment does not rise to an extraordinary circumstance as he had numerous later opportunities to respond to correspondence. Additionally, Stevens could have pursued hiring another attorney, but failed to do so. Therefore, the circuit court properly exercised its discretion in denying the motion for relief from judgment. We affirm.

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

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

      . The malicious-prosecution claim stemmed from an assault charge where Stevens allegedly charged at Wade and Hodges with a chain saw. Stevens was found guilty in municipal court; however, the case was appealed to county court, where it was dismissed.

      . However, Hassin stated -that he sent Manor an email on January 27, 2015, asking to speak about the case, which was coincidentally one day after the order of dismissal was entered. Manor responded stating that he had just left Hassin a voice-mail message, and to feel free to call him back. Hassin stated he playe.d “phone tag” but never made contact with Manor.

      .While not cited, Stevens's motion for relief from judgment was pursuant to Mississippi Rule of Civil Procedure 60(b)(2), for accident or mistake.

      . Hassin testified he was hospitalized from June 2 through 17, 2014, July 2 through 17, 2014, and August 21 through September 23, 2014.

      . Rule 60(b) provides, in part:
      (b) Mistakes; Inadvertence; Newly Discovered
      Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
      (1) fraud, misrepresentation, or other misconduct of an adverse party;
      (2) accident or mistake;

        (3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
      (4) the judgment is void;
      (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
      (6)any other reason justifying relief from the judgment.


source: Caselaw Access Project

author: WILSON, J., FOR THE COURT:

license: Public Domain

text:
    Richard ROSEBUR and Jamie Rosebur, Appellants v. STATE of Mississippi, Appellee
    NO. 2016-KA-00260-COA
    Court of Appeals of Mississippi.
    04/04/2017
    ATTORNEY FOR APPELLANTS: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE M. McMILLIN

      ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN McCLINTON
    BEFORE GRIFFIS, P.J., ISHEE, WILSON, AND GREENLEE, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Brothers Richard and Jamie Rose-bur were convicted of shooting into a dwelling, for which they were each sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years of post-release supervision. They were also each sentenced to five years in MDOC custody pursuant to Mississippi Code Annotated section 97-37-37 (Rev. 2014) for using a firearm during the commission of the crime. The circuit court’s sentencing orders provided that this additional five-year sentence would not be reduced or suspended but would run concurrently to the Roseburs’ sentences for shooting into a dwelling. The Roseburs raise only one issue in their consolidated appeals: whether imposition of an additional punishment pursuant to the “firearm enhancement” violates the Double Jeopardy Clause of the State or Federal Constitution. This Court previously rejected the same argument, and the Mississippi Supreme Court subsequently adopted our analysis and reached the same conclusion. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 5, 2012, Richard, Jamie, and James Jiles were indicted in a single indictment in Coahoma County for shooting into a dwelling, Miss. Code Ann. § 97-37-29 (Rev. 2014), with a sentencing enhancement for using a firearm during the commission of the crime, Miss. Code Ann. § 97-37-37. The defendants waived arraignment on December 11, 2012, and trial was set for February 25, 2013.

¶ 3. On January 17, 2013, Richard’s court-appointed attorney requested a continuance because he already had another trial scheduled for the same day. Richard also filed a motion to suppress evidence and a motion to “sever his case from the remaining Defendants in this indictment, and grant him a separate ... trial.” On February 20, 2013, the court entered an order to continue “the trial of Defendant Richard Rosebur to a new date.”

¶ 4. There was no action in the case for the next eleven months. On January 22, 2014, Jamie’s attorney filed a motion to dismiss the indictment against him based on alleged violations of his constitutional and statutory rights to a speedy trial. Nothing in the record indicates that Jamie ever noticed this motion for a hearing or that the court ever ruled on it.

¶ 5. On July 31, 2014, Richard’s attorney filed a “Joint Motion for Continuance.” The motion stated that trial was set for August 4, 2014, but “the State and all Defendants” had agreed that a continuance was “necessary due to ... pending pre-trial motions.” The motion was signed only by Richard’s attorney. The court granted the motion the same day. The court’s order referenced only “[t]he trial of Richard Rosebur.” The order stated that trial in the case was continued “to a new date after the resolution of all pre-trial motions.” Richard’s attorney signed the order as “Approved.” The order states that counsel for the State, Jamie, and Jiles “Approved as to Form,” with their approval shown by typed 7s/” signatures. The same day, the court also entered an order setting all pretrial motions for a hearing on August 27, 2014. There is nothing in the record to indicate whether that hearing was held.

¶ 6. The docket sheet indicates that, at some point, the charges against Jiles were severed from the charges against the Roseburs. Jiles’s jury trial was held on January 20-21, 2015, and he was convicted and sentenced.

¶ 7. On April 16, 2015, Richard’s attorney filed a motion for a continuance. The motion stated that trial was set to begin on May 11, 2015, but that Richard’s attorney had a case set for oral argument in the United States Court of Appeals for the Fifth Circuit on May 12, 2015. Based on this conflict, Richard asked the court to continue the trial. The caption and text of the motion reference only Richard’s case, but the motion was served on Jamie’s attorney. On April 23, 2015, the court entered an order continuing “the trial of Defendant Richard Rosebur ... to a new date.” The order was prepared, submitted, and signed by Richard’s attorney.

¶ 8. On August 3, 2015, Richard’s attorney filed another motion for a continuance. The motion stated that trial was set to begin on August 10, 2015, but that counsel had “a scheduling conflict with a prior engagement in Nashville.” The motion represented that the State did not object to a continuance; however, the motion did not mention Jamie, and the certificate of service does not reflect service on Jamie’s attorney. The same day, the court entered an order continuing “[t]he trial of Richard Rosebur” “to a new date in the next term of court.” The order noted that the State did not object to the continuance. Richard’s attorney signed and “Approved” the order, which also indicated that the State “Approved as to Form.” However, Jamie’s attorney did not sign the order, and the order makes no reference to Jamie’s case. On August 17, 2015, the court entered an order setting trial for January 25, 2016; however, at some point, trial apparently was continued again to February 1, 2016.

¶ 9. Richard and Jamie were tried on February 1 and 3, 2016. The evidence showed that around 8:30 p.m. on August 15, 2012, numerous shots were fired into an occupied home in the 500 block of McKinley Street in Clarksdale. Three residents of the home were inside at the time. Clarksdale police officers who were patrolling in the area were on the scene within approximately one minute. Officers encountered Jiles, Richard, and Jamie in the 600 block of McKinley Street. The three men were together walking away from the 500 block, and no one. else was in the immediate vicinity. Jiles was carrying a dock .40 caliber pistol, which he tossed after he saw the officers. Officers found two ,40 caliber magazines near the gun, one empty .40 caliber magazine in Jiles’s pocket, and one loaded .40 caliber magazine on the ground at Jiles’s feet. Officers searched Jamie and found a sock containing eight loose .380 caliber bullets. Officers searched Richard and found a loaded magazine for a Hi-Point .40 caliber pistol. Officers then searched the area for additional guns and found a .380 caliber pistol and a Hi-Point .40 caliber pistol behind a garbage can at the house next door.

¶ 10. Officers collected gunshot residue kits for Jiles, Richard, and Jamie, and all three tested positive for gunshot residue on the palms and/or backs of their hands. Officers also collected thirty-eight cartridge cases in front of the home that was feed into. A forensic scientist from the Mississippi Crime Laboratory testified that all thirty-eight cartridge cases were fired from one of the three guns found at the scene. There were approximately twenty bullet holes in the home itself. The jury found both Richard and Jamie guilty of shooting into a dwelling with a pistol. On appeal, neither Richard nor Jamie challenges the weight or sufficiency of evidence against them. Nor do they allege that any reversible error was committed prior to or during their trial.

1111. The court entered judgments of conviction and sentenced Richard and Jamie each to ten years in MDOC custody for shooting into a dwelling, with five years suspended and five years of post-release supervision. The court also sentenced each to five years in MDOC custody pursuant to Mississippi Code Annotated section 97-37-37 for using a firearm during the commission of the crime, said five-year enhancement not to be reduced or suspended but to be served concurrently with the primary sentence for shooting into a dwelling.

¶ 12. Richard and Jamie filed motions for judgment notwithstanding the verdict or a new trial, which were denied. They then filed notices of appeal, and their appeals were later consolidated. Counsel from the Indigent Appeals Division of the Office of the State Public Defender raises a single issue on behalf of both: whether the imposition of an additional punishment for using a firearm during the commission of the crime violates the Double Jeopardy Clause of the State Constitution or Federal Constitution.

ANALYSIS

I. Speedy Trial

¶ 13. Although the issue is not raised on appeal, we feel compelled to comment briefly on the thirty-eight month delay between the Roseburs’ indictment and trial. Jamie raised the issue in the trial court in a motion to dismiss the indictment, but that appears to have been the first and only time he mentioned it, and he never obtained a ruling on his motion. Jamie waived his statutory right to a speedy trial, Miss. Code Ann. § 99-17-1 (Rev. 2015), because he did not raise the issue within 270 days of the date on which he waived arraignment. See, e.g., Whitaker v. State, 114 So.3d 725, 730 (¶ 18) (Miss. Ct. App. 2012). In addition, ordinarily, “the burden is on the movant to obtain a ruling on a pre-trial motion, and failure to do so constitutes a procedural bar.” Ross v. State, 954 So.2d 968, 992 (¶41) (Miss. 2007). However, after a series of inconsistent decisions, our Supreme Court has held that the failure to obtain a ruling on a speedy trial motion is not a procedural bar. See Rowsey v. State, 188 So.3d 486, 494 (¶¶ 22-23) (Miss. 2015). Even so, all of the continuances in this case were requested by Richard, and none were caused by the State. Jamie never requested that his case be severed, and he did not object to any of the continuances. Therefore, the continuances are chargeable to both Jamie and Richard. See Harris v. State, 174 So.3d 314, 319 (¶¶ 23-24) (Miss. Ct. App. 2015). Moreover, there is no evidence that Jamie was prejudiced by the delay in his trial. Thus, nothing in the record indicates that the delay violated Jamie’s right to a speedy trial. The absence of a violation is even clearer as to Richard, who requested every continuance and never demanded a speedy trial or otherwise raised the issue.

II. Double Jeopardy

¶ 14. Neither Richard nor Jamie raised a double jeopardy objection to the firearm enhancement at any point during the proceedings in the circuit court. However, the protection against double jeopardy is a fundamental right that may be raised for the first time on appeal or even years after the defendant’s conviction is final. Rowland v. State, 42 So.3d 503, 508 (¶¶ 14-15) (Miss. 2010); Graves v. State, 969 So.2d 845, 846-47 (¶ 6) (Miss. 2007). Accordingly, the issue is not waived.

¶ 15. The Roseburs argue that the firearm enhancement violates the protection against double jeopardy because it is impossible to shoot a gun into a dwelling without also using and displaying the same gun. However, the Roseburs candidly acknowledge that this Court has rejected the same basic argument on several occasions. When “a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct[,j ... the prosecutor may seek and the trial court ... may impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Applying this principle, this Court has held that by enacting the firearm enhancement, the Legislature intended to authorize cumulative punishment. See Wansley v. State, 114 So.3d 793, 797 (¶¶ 14-16) (Miss. Ct. App. 2013); accord, e.g., Gunn v. State, 174 So.3d 848, 865-66 (¶¶ 62-64) (Miss. Ct. App. 2014); Lewis v. State, 112 So.3d 1092, 1096-97 (¶¶ 14-15) (Miss. Ct. App. 2013).

¶ 16. The Roseburs contend that our cases on this issue were wrongly decided, and they ask us to reconsider our precedent. However, we cannot do so because our Supreme Court has now adopted the reasoning of those opinions. In Taylor v. State, 137 So.3d 283 (Miss. 2014), the Supreme Court stated: “The Court of Appeals was correct in this analysis. The Legislature intended for these two punishments to apply to the same offenseQ] therefore there is no double-jeopardy concern.” Id. at 288 (¶ 17) (citing Mayers v. State, 42 So.3d 33 (Miss. Ct. App. 2010); Wansley, 114 So.3d 793). While we can reconsider our own precedent, “we ... do not have the authority to overrule a decision of our [S]upreme [C]ourt.” Miles v. State, 864 So.2d 963, 965-66 (¶ 8) (Miss. Ct. App. 2003). “This Court, sitting as an intermediate appellate court, is obligated to follow precedent established by the Mississippi Supreme Court.” Kennedy v. State, 766 So.2d 64, 65 (¶ 3) (Miss. Ct. App. 2000). Accordingly, the Roseburs’ double jeopardy claim is without merit, and their sentences must be affirmed.

CONCLUSION

¶ 17. For the foregoing reasons, the Roseburs’ convictions and sentences are affirmed.

¶ 18. THE JUDGMENTS OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF SHOOTING INTO A DWELLING, AND SENTENCE OF TEN YEARS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION; AND SENTENCE OF FIVE YEARS FOR A FIREARM ENHANCEMENT, SUCH ADDITIONAL FIVE-YEAR SENTENCE NOT TO BE REDUCED OR SUSPENDED BUT TO RUN CONCURRENTLY TO THE SENTENCE FOR SHOOTING INTO A DWELLING, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

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

      . The enhancement applicable to the Rose-burs provides:
      Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any person who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended.
      Miss. Code Ann. § 97-37-37(1) (emphasis added).


author: GRIFFIS, P.J., FOR THE COURT:

text:
    Rita BRADLEY, Appellant v. John Donald MOTES, Appellee
    NO. 2015-CA-00465-COA
    Court of Appeals of Mississippi.
    04/04/2017

      ATTORNEY FOR APPELLANT: BRANDON LARUE BROOKS
    ATTORNEY FOR APPELLEE: ALEXANDER IGNATIEV
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Rita Bradley appeals the chancellor’s modification of custody. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Rita Bradley and John Donald Motes were divorced in Hamilton County, Tennessee, on February 9, 2009. Rita was awarded primary custody of their two minor children, JHM and LHM. Both Rita and John are now remarried. Rita currently resides in Petal, Mississippi, and John resides in Pelham, Alabama.

¶ 3. On August 11, 2009, John filed a complaint in the Chancery Court of Forrest County, Mississippi, and requested a modification of custody of the two minor children, as well as other relief. During a hearing on May 1, 2012, the parties agreed that John’s request for modification of custody would be held in abeyance and custody of both minor children would remain with Rita until such time as John renewed his request. A judgment was subsequently entered April 8, 2013.

¶ 4. On September 23, 2013, John filed a petition to modify child custody based on various grounds. A two-day trial was heard by the original chancellor on May 15, 2014, and June 4, 2014. On June 4, 2014, after she had spoken with the minor children, the chancellor advised the parties about a comment JHM had made and asked if they wanted her to recuse. Rita advised that she wanted the chancellor to recuse. As a result, the chancellor stated she would re-cuse.

¶ 5. On June 5, 2014, the chancellor entered a temporary order modifying custody. The chancellor awarded primary custody of LHM to John for the remainder of the summer. Primary custody of JHM remained with Rita. Thereafter, on July 11, 2014, the chancellor entered an order of recusal, and the case was reassigned.

¶ 6. On July 31, 2014, the newly assigned chancellor entered a temporary order, which revised the earlier temporary order entered by the original chancellor. The newly assigned chancellor declined to modify custody of LHM on a temporary basis and found that the judgment entered on April 8, 2013, would remain in effect until trial.

¶ 7. The trial was held on September 3, 2014. At that time, JHM was fifteen years old, and LHM was fourteen years old. The parties stipulated that JHM elected to live with Rita, and LHM elected to live with John. In his petition to modify child custody, John sought custody of both JHM and LHM. However, at trial, John advised that he was seeking modification of custody of LHM only.

¶ 8. By judgment entered September 11, 2014, the chancellor found that John’s allegations for modification of custody were meritless, but ultimately determined “that the ongoing medical and emotionfel] problems both children [were] going through [was] a material change in circumstances that adversely affect[ed] the minor children and it [was] in their best interest that custody be changed.” The chancellor modified custody and awarded physical custody of LHM to John. Physical custody of JHM remained with Rita.

¶ 9. Rita subsequently filed a motion to set aside or reconsider the judgment, which was denied by the chancellor on February 12, 2015. The chancellor did, however, set a visitation schedule, which allowed JHM and LHM to see each other every weekend.

¶ 10. Rita now appeals and argues: (1) the original chancellor erred in modifying custody after recusal, (2) the separation of the minor children is not in their best interests, (3) the extensive litigation, which adversely affected the children, was caused by John, and (4) the chancellor erred in performing an Albright analysis.

STANDARD OF REVIEW

¶ 11. “[We] will not disturb the factual findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard.” Campbell v. Watts, 192 So.3d 317, 318 (¶ 5) (Miss. Ct. App. 2015). “Questions of law are reviewed de novo.” Id.

ANALYSIS

I. Recusal

¶ 12. Rita first argues the original chancellor erred in modifying custody after she announced that she would recuse. We find this issue is moot since the temporary order entered by the original chancellor was subsequently revised by the newly assigned chancellor.

II. Modification of Custody / Separation of Siblings

¶ 13. Rita next argues that the separation of JHM and LHM is not in their best interests. In other words, Rita argues the chancellor erred in modifying custody.

¶ 14. A modification of custody is warranted when the moving parent shows “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Id. at (¶6). “The chancellor must consider the totality of the circumstances when determining whether such a material change in circumstances has occurred.” Id. at 319 (¶ 6). “The concept [of a material change in circumstances adversely affecting the child] is intended to encompass its broadest possible meaning in order to protect children,” including changes that negatively impact the child’s “mental and emotional well-being.” Marter v. Marter, 914 So.2d 743, 748 (¶ 14) (Miss. Ct. App. 2005).

¶ 15. “After finding an adverse material change, ‘the next step is to apply the Albright factors to determine whether modification is in the child’s best interest.’” Campbell, 192 So.3d at 319 (¶ 6) (quoting White v. White, 26 So.3d 342, 351 (¶ 28) (Miss. 2010)). Although “[we have] never adopted any per se rule to the effect that children should not be separated ... in the absence of some unusual and compelling circumstance dictating otherwise, it is not in the best interest of children to be separated.” Sellers v. Sellers, 638 So.2d 481, 484 (Miss. 1994).

¶ 16. The chancellor relied heavily on medical records introduced at trial as Exhibit 12. The medical records show JHM has significant behavioral issues, with diagnoses of attention deficit hyperactivity disorder, bipolar disorder, and oppositional defiant disorder. The medical records further show that on at least one occasion, JHM became very aggressive toward LHM and Rita. In March 2013, JHM was suspended from school and was ultimately enrolled in an alternative school beginning in January 2014.

¶ 17. With regard to LHM, the medical records show that in April 2014, LHM expressed a desire to go live with John. The medical records further show that in early May 2014, LHM was “having excessive emotional and behavioral issues after transitioning back from his father’s house.” LHM was diagnosed with adjustment disorder with mixed emotional features, which, according to his counselor, “began due to the family situation between his mother and father.” Thereafter, the medical records note that in July 2014, LHM was “having a good summer with his father.”

¶ 18. In addition to the medical records, Rita testified that LHM showed signs of depression as a result of “[his] transitioning back and forth between us” and “the things that JHM went through.” Notably, both Rita and John testified that LHM does not like confrontation. Rita stated LHM likes everything to be smooth and acknowledged that things are not always smooth, especially if JHM is involved. Although Rita testified that LHM prefers John’s house because he has “unlimited electronic time,” John testified that LHM prefers his house because it is peaceful.

¶ 19. Rita asserts JHM and LHM “have a very strong relationship as brothers” and “keeping them separated would most certainly have an adverse impact on the relationship between siblings.” While we acknowledge a strong preference for keeping siblings together, nothing in the testimony or medical records suggests that the separation would adversely affect the relationship between JHM and LHM. At no time during the five years of counseling did JHM advise his counselor that he would be upset if he and LHM were separated. Instead, JHM advised his counselor on numerous occasions that he simply wanted the custody dispute between his parents to be over.

¶ 20. Additionally, while LHM lived with John over the summer, JHM had the opportunity to visit “at [JHM’s] election.” However, JHM visited only twice. Rita acknowledged that JHM did not spend every weekend he was supposed to with John over the summer since “LHM doesn’t like the bickering and arguing that continuously takes place while JHM is there with his dad.” Thus, it appears that while JHM and LHM enjoy their time together, they are content with the separation.

¶ 21. We find the chancellor’s finding of an adverse material change is supported by substantial evidence. Although the chancellor did not specifically cite any unusual or compelling circumstances in support of her decision to separate the siblings, she conducted an Albright analysis and based her decision on the medical records and the trial testimony. Moreover, the visitation schedule allows the boys to see each other every weekend, and encourages “any and all other visitation as mutually agreed upon.”

¶ 22. Based on our review of the record, we cannot say the chancellor was manifestly wrong or clearly erroneous. Accordingly, we affirm.

III. Extensive Litigation

¶ 23. Rita further argues the extensive litigation, which adversely affected the children, was caused by John. Rita asserts “the court’s concern about the repeated and long-lasting litigation between the parties and its effect on the boys should not be held against Rita as she has not been the one repeatedly initiating the proceedings to bring this about.”

¶24. A review of the record clearly shows both parties contributed to the extensive litigation. Thus, we find this issue is meritless.

TV. Albright Analysis

¶25. Rita last argues the chancellor erred in performing an Albright analysis since “[n]o evidence whatsoever was presented” of an adverse material change. However, we have determined that the chancellor’s finding of an adverse material change was supported by substantial evidence. As a result, it was proper for the chancellor to perform an Albright analysis to determine whether modification was in the best interests of the children. Campbell, 192 So.3d at 319 (¶ 6). The chancellor considered the Albright factors and determined that it was in LHM’s best interest to live with John and for JHM to remain with Rita.

¶ 26. We find the chancellor’s Albright analysis was proper and supported by substantial evidence. Moreover, we find the chancellor’s decision to modify custody of LHM was not clearly erroneous or manifestly wrong. We therefore affirm.

¶ 27. THE JUDGMENT OP THE FORREST COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . For privacy purposes, we have used initials for the names of the minor children.

        . John clarified that although he would like custody of both LHM and JHM, JHM has stated that he wants to live with his mother. When asked why he was no longer pursuing custody of JHM, John explained as follows, “I just want him to be happy. If he’s going to be happier [with Rita] than he is [with me] and he’s going to be more well adjusted than forcing him to be somewhere, then I'm all for it.”

      . Albright v. Albright, 437 So.2d 1003 (Miss. 1983).

      . The court record indicates LHM elected to live with his father as early as 2011.

      . During the hearing on the motion to reconsider, the chancellor stated as follows:
      I don’t enjoy splitting children. But I cannot hold one child back. I feel like that in the long run, it is in the best interest of the children to do this .... I went by what was in the records. Y’all talked about how they were totally different children, and that was part of the struggle with it. One child has been in alternative school; whereas, the other one was in regular school. These cases are so difficult, and the Court has broad discretion. I looked at the Albright factors. I weighed both kids together ... But I have tried to do absolutely what I believe to be in both of these boys['] best interest ...


author: GRIFFIS, P.J.,

text:
    Justin JOHNSTON, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00282-COA
    Court of Appeals of Mississippi.
    04/04/2017
    JUSTIN JOHNSTON (PRO SE)
    OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, JASON L. DAVIS, JACKSON, MISSISSIPPI, ATTORNEYS FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Justin Johnston appeals the circuit court’s dismissal of his petition for a reclassification hearing. We find no error and affirm.

FACTS

¶ 2. Johnston was indicted in the Circuit Court of Rankin County, Mississippi, on the charge of Count I, sexual battery, and Count II, statutory rape. On March 24, 2008, Johnston entered a plea of guilty to Count II, statutory rape, and was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections, with fifteen years suspended, followed by five years of supervised probation.

¶ 3. On January 21, 2016, Johnston filed a pro se “petition for re-classification hearing” and requested that his statutory-rape charge be reclassified as a nonviolent offense. Johnston further filed a pro se “motion” wherein he requested parole consideration.

¶4. On January 26, 2016, the circuit court found it was without authority to reclassify Johnston as nonviolent and declined to recommend to the Mississippi Parole Board that Johnston be paroled. Thus, the circuit court dismissed the petition for a reclassification hearing and denied the motion for parole consideration. Additionally, the circuit court granted Johnston leave to proceed in forma pau-peris.

¶5. Johnston now appeals and argues the circuit court erred in failing to grant reclassification.

STANDARD OF REVIEW

¶ 6. In reviewing a circuit court’s dismissal of a post-conviction-relief petition, our standard of review is well established. King v. State, 47 So.3d 746, 747 (¶ 7) (Miss. Ct. App. 2010). We “will not disturb the [circuit] court’s factual findings unless they are found to be clearly erroneous.” Id. “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

ANALYSIS

¶ 7. Johnston does not contest his conviction or sentence. Instead, Johnston asserts the circuit court erred in failing to reclassify his statutory-rape charge from a violent offense to a nonviolent offense. In support thereof, Johnston relies on House Bill 585 (2014 Miss. Laws ch. 457).

¶ 8. House Bill 585 created Mississippi Code Annotated section 97-3-2 (Rev. 2014) to define crimes of violence, and amended Mississippi Code Annotated section 47-7-3 (Rev. 2015) to revise parole eligibility. Pursuant to section 97-3-2(l)(q), statutory rape as provided in Mississippi Code Annotated section 97-3-65(1) (Rev. 2014) is classified as a crime of violence, “but this classification is rebuttable on hearing by a judge[.]” Miss. Code Ann. § 97-3-2(l)(q). Under section 47-7-3(l)(g)(iii), any offender who has not committed a crime of violence under section 97-3-2 and has served twenty-five percent or more of his sentence may be paroled by the parole board if the sentencing judge authorizes the offender to be eligible for parole consideration. Johnston seeks to reclassify his statutory-rape charge from a violent offense to a nonviolent offense in order to qualify for parole consideration under section 47-7-3(l)(g)(iii).

¶ 9. House Bill 585 did not take effect until July 1, 2014. Thus, neither section 97-3-2 nor section 47-7-3, as amended, applied at the time Johnston pleaded guilty in 2008. Johnston has provided no authority to suggest that the relief he requests pursuant to section 97-3-2 applies retroactively. Thus, the circuit court did not err in dismissing Johnston’s petition for a reclassification hearing.

¶ 10. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . An order of nolle prosequi without prejudice was entered as to Count I, sexual battery.

      . Johnston does not appeal the circuit court’s denial of his motion for parole consideration. He appeals only the dismissal of his petition for a reclassification hearing.

      . Johnston plead guilty to statutory rape in violation of Mississippi Code Annotated section 97-3-65(l)(b) (Supp. 2008).


author: ISHEE, J., for the Court: JAMES, J., FAIR, J.,

text:
    Cynthia KULJIS, Appellant v. WINN-DIXIE MONTGOMERY, LLC, Appellee.
    No. 2015-CA-00256-COA.
    Court of Appeals of Mississippi.
    March 29, 2016.
    Rehearing Denied Aug. 23, 2016.

      James Kenneth Wetzel, Gamer James Wetzel, Gulfport, attorneys for appellant.
    David W. Stewart, Biloxi, Brian Christopher Whitman, attorneys for appellee.
    Before IRVING, P.J., BARNES and ISHEE, JJ.
   ISHEE, J., for the Court:

¶ 1. On July 27, 2013, Cynthia Kuljis fell while visiting a Winn Dixie Montgomery LLC store in D’Iberville, Mississippi. She filed a complaint for discovery in the Harrison County Chancery Court on June 4, 2014. Winn Dixie filed a motion to dismiss the complaint, which was granted by the chancery court. Aggrieved, Kuljis appeals. Finding no error, we affirm.

FACTS

¶ 2. The facts are not disputed in this case. While Kuljis was a patron at a Winn Dixie store on July 27, 2013, she tripped over a piece of protruding rubber, which was intended to hold down the carpet. Kuljis claims that she suffered permanent injuries as a result of the fall.

¶ 3. On June 4, 2014, Kuljis filed a complaint for discovery in the chancery court. In the complaint for discovery, Kuljis requested that Winn Dixie produce incident reports, photographs, video surveillance, investigation reports, work orders, witness statements of the incident in question, and all other information that may have been in its possession pursuant to Mississippi Rule of Civil Procedure 34. Winn Dixie filed a motion to dismiss, which was granted by the chancery court. Kuljis then filed the instant appeal asking this Court to reverse the chancery court’s ruling and remand it for further proceedings.

STANDARD OF REVIEW

¶ 4. When reviewing a chancery court’s decision to deny a motion to dismiss, this Court employs a de novo standard of review. Benson v. Neshoba Cty. Sch. Dist., 102 So.3d 1190, 1192 (¶ 8) (Miss.Ct.App.2012) (citation omitted). “Additionally, a determination of whether a chancery court has jurisdiction also receives a de novo review.” Id. (citation omitted).

DISCUSSION

¶ 5. Kuljis argues that the chancery court erred in granting Winn Dixie’s motion to dismiss. Kuljis asserts that the bill of discovery was properly filed in the chancery court in order to further a reasonable investigation prior to filing a lawsuit against Winn Dixie. Winn Dixie, on the other hand, claims that this is a personal-injury matter, which is beyond the scope of the chancery court’s jurisdiction.

¶ 6. Generally, “circuit courts are courts of law, and chancery courts are courts of equity.” Mark S. Bounds Realty Partners, Inc. v. Lawrence, 34 So.3d 1224, 1229 (¶ 14) (Miss.Ct.App.2010). “[Wjhile circuit courts have general jurisdiction, chancery courts are courts of limited jurisdiction.” Id. (citing IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 112 (¶ 72) (Miss.1998)). The Mississippi Constitution confers full jurisdiction to the chancery court in the following matters:

(а) All matters in equity; (b) Divorce and alimony; (c) Matters testamentary and of administration; (d) Minor’s business; (e) Cases of idiocy, lunacy, and persons of unsound mind; (f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.

Miss. Const. art. 6, § 159.

¶ 7. Upon determining whether a chancery court has jurisdiction, the Mississippi Supreme Court has “consistently advised our trial courts that one must look at the substance, and not the form, of a claim to determine whether the claim is legal or equitable.” Copiah Med. Assocs. v. Miss. Baptist Health Sys., 898 So.2d 656, 661 (¶ 16) (Miss.2005) (citations omitted). The supreme court has held that “if some doubt exists as to whether a complaint is legal or equitable in nature, that case is better tried in circuit court.” Burnette v. Hartford Underwriters Ins., 770 So.2d 948, 952 (¶ 14) (Miss.2000) (citation omitted). In fact, “it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.” Id. (citation omitted).

¶ 8. The chancery court agreed that it is not precluded from granting substantive relief through a complaint for discovery. However, the chancery court held that in order to do so, Kuljis was required to prove that the information she was seeking could not be obtained by other methods and it was “not within the reasonable reach of [Kuljis] to obtain the information without the aid of the discovery demanded.” (citing V.A. Griffith, Mississippi Chancery Practice § 429, at 424 (2d ed.1950)).

¶ 9. Upon reviewing the arguments of both parties, we find that the chancery court was correct in dismissing Kuljis’s complaint for discovery. This is a negligence claim that should have been brought in the circuit court instead of the chancery court. Accordingly, we affirm the ruling of the chancery court.

1Í10. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING, P.J., BARNES, CARLTON AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. FAIR, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., GRIFFIS, P.J., AND GREENLEE, J.; JAMES, J., JOINS IN PART.

JAMES, J.,

concurring in part and dissenting in part:

¶ 11. I agree with the majority’s opinion that Kuljis’s complaint appears to be a negligence claim that should have been brought in circuit court instead of chancery court. However, I agree with the dissent’s opinion that a Bill/Complaint for Discovery remains a viable cause of action within the jurisdiction of the chancery court. As a result, I would find that the more proper course would have been for the chancery court to transfer the case to circuit court rather than dismissing the case. Upon transfer, Kuljis would then proceed under Mississippi Code Annotated section 11-1-39 (Rev.2014) by filing a reformed complaint in circuit court, and the case would proceed as if it had originally begun in circuit court.

¶ 12. Article 6, Section 162 of the Mississippi Constitution provides that “[a]ll causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court.” The Mississippi Supreme Court has held that “[i]f any doubts were to arise as to the jurisdiction of the chancery court, those doubts should be decided in favor of transfer to circuit court for a trial by jury.” U.S. Fid. & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So.2d 38, 45 (¶ 19) (Miss.2002) (citing S. Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1089-90 (¶ 3) (Miss.1999)). When the chancery court determined that this case was a negligence claim that should have been filed in circuit court, it should have transferred the case to circuit court rather than dismissing the case. For these reasons, I would remand to the chancery court with instructions to transfer the case to circuit court.

FAIR, J.,

dissenting:

¶ 13. In 1981 the Mississippi Rules of Civil Procedure were adopted by the Supreme Court of Mississippi, to become effective on January 1,1982.

¶ 14. Seven years later in State Oil & Gas Board v. McGowan, 542 So.2d 244 (Miss.1989), the supreme court was presented with the question of whether or not the Rules abolished the common law right to a “Bill of Discovery in Chancery.”

¶ 15. McGowan involved an administrative agency, which was found not to be subject to the Mississippi Rules of Civil Procedure, nor did it provide for discovery in its own rules. The supreme court found that, at least in such context, the common law Bill/Complaint for Discovery proceeding in chancery court was still available. It stated:

The bill of discovery is one of the ancient bills used in equity practice. Griffith, Mississippi Chancery Practice, 1925, § 427 p. 422. The Board argues that the bill is no longer available as a discovery devise in Mississippi practice as it was abolished or rendered obsolete by the Mississippi Rules of Civil Procedure effective January 1, 1982. This Court disagrees with this premise.
Griffith, supra, addresses the Bill of Discovery:
But there is a distinct bill in chancery known, strictly speaking, as the bill of discovery, by the use of which disclosure may be required of material facts exclusively within the knowledge or possession of the defendant and which without such discovery no full and adequate proof of them could be made. It had its origin out of the common law rule that no party in interest was a competent witness in any case; and it began at an early date to be allowed in the court of chancery in order to relieve against what otherwise would have resulted in a denial of justice when it happened that the facts or the documents establishing a right or materially aiding therein rested in the exclusive possession or control of the opposite party; and, originally its office was simply to aid a pending suit at law or one about to be brought, and the chancery part of the proceedings were usually deemed as concluded upon the coming in of the full answer making the disclosures or producing the documents sought, In other words, the obtaining of the discovery was the sole object and end of the bill, no relief other than the discovery being prayed. It was therefore purely ancillary to a trial in some other case and ordinarily in some other forum.

Id. at pp. 422, 423.

Rule 82(a), M.R.C.P. makes clear that nothing in the rules alters the jurisdiction of any court, nor is the power of any court to grant substantive relief changed from what it was before the rules.
It is true that the nomenclature of the legal practice was changed by the abolition of the names of the old writs and procedural names. M.R.C.P. Rule 2. See Dye v. State Ex Rel. Hale, 507 So.2d 332, 337 n. 4 (Miss.1987). As such, the terminology of a “Bill of Discovery” has been rendered obsolete, and procedurally it is referred to as a “complaint.” However, the adoption of the rules affected procedure, not substance. The power and authority of the Chancery Court to grant the substantive relief of “discovery ” remains viable and available although it has been broadened and simplified by M.R.C.P. 26-37. The need for this substantive remedy is evident by this lawsuit.

¶ 16. In Leaf River Forest Products, Inc. v. Deakle, 661 So.2d 188 (Miss.1995), the court relied heavily on McGowan, including the quotations above, in holding that the jurisdiction of a chancellor to grant a “Bill of Peace” also survived enactment of the Rules of Civil Procedure.

¶ 17. The more recent case of Moore v. Bell Chevrolet-Pontiac-Buick-GMC, LLC, 864 So.2d 939 (Miss.2004), similarly dealt with a case involving discovery of information in the hands of an administrative agency, quoting McGowan with approval.

¶ 18. In the case before us, the chancellor dismissed a complaint for discovery on the basis that the information sought applied to a “slip and fall” tort action, more properly vested in the circuit court than in chancery. Kuljis asserts that the filing of a slip and fall tort suit to seek discovery, the allegation of which may or may not be supported by evidence such as video surveillance records and employee reports which Winn Dixie will not disclose, will expose him and his attorney to unnecessary costs and the possibility of a suit against them for wrongfully filing such a suit.

¶ 19. In this case we are directly presented with the issue of whether or not the jurisdiction of a pure discovery action, formerly called a “Bill of Discovery” and now a “Complaint for Discovery,” remains a viable cause of action within the jurisdiction of the chancery court, whether or not a plaintiff seeks records of an administrative agency or records of a possible tort-feasor.

¶ 20. I would hold that McGowan controls. An action for discovery alone remains viable for those who seek to determine whether or not they have a meritorious cause of action through a time-tested procedure and not one requiring accusations without foundation, motions and hearings, pretrial orders, and scheduling disputes. Therefore, I respectfully dissent.

LEE, C.J., GRIFFIS, P.J., AND GREENLEE, J., JOIN THIS OPINION. JAMES, J., JOINS THIS OPINION IN PART.


author: WISE, Justice. MURDOCK, Justice

text:
    Ex parte Maxwell UHAKHEME. (In re Anniston HMA, LLC, d/b/a Stringfellow Memorial Hospital v. Maxwell Uhakheme).
    1141867.
    Supreme Court of Alabama.
    June 24, 2016.
    Sandra B. Reiss of The Reiss Firm LLC, Birmingham; and Steven M. Stastny of Stastny Law Firm LLC, Birmingham, for petitioner.
    Carey B. McRae, Marc James Ayers, Jennifer H. Clark, and Anna M. Manasco of Bradley Arant Boult Cummings LLP, Birmingham, for respondent.
   WISE, Justice.

PETITION DENIED; NO OPINION.

STUART, BOLIN, PARKER, SHAW, MAIN, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I concur in the denial of the petition for the writ of mandamus. I write to explain that my concurrence does not communicate any opinion as to the merits of the issues raised in the petition regarding the trial court’s order dismissing Maxwell Uhakheme’s counterclaim alleging breach of contract. I concur in the denial of the petition because appellate review of an order granting a motion to dismiss a claim (or granting a motion for a summary judgment, as occurred here, given the fact that the trial court considered materials outside the pleadings, see Rule 56(c)(3), Ala. R. Civ. P.) is not by way of a petition for a writ of mandamus but by an appeal governed by the strictures of Rule 54(b), Ala. R. Civ. P.

In this case, the strictures of Rule 54(b) have not been satisfied. Other claims and counterclaims remain pending, and the trial court has not certified its order as final (and I doubt it could properly do so given the intertwined nature of the dismissed claim and the remaining claims of the plaintiff and the counterclaims of Uhak-heme). And, of course, unless and until the trial court were to adjudicate those other claims or to certify the order at issue as final, the order is subject to being altered or vacated by the trial court itself under the terms of Rule 54(b).

In short, appellate review is not available in a circumstance such as this. Were this Court to begin granting mandamus review of such orders, we would effectively nullify Rule 54(b), circumventing the conditions for such review prescribed by that rule, tempting trial courts to postpone consideration of remaining claims until an interlocutory appellate ruling is obtained, and requiring the expenditure of limited appellate resources on an untold number of petitions seeking piecemeal review.