author: LEE, C.J., CARLTON, J.,

text:
    MISSISSIPPI DEPARTMENT OF AUDIT, Stacey Pickering, Jim Hood, Chris Lott, David Huggins, Melissa C. Patterson, Joseph A. Runnels, Jr., Sandra R. Chesnut and Harold E. Pizzetta, III, Appellants. v. GULF PUBLISHING COMPANY, INC., Appellee. Melissa C. Patterson, Stacey Pickering, Individually, David Huggins, Individually, Chris Lott, individually, Mississippi Department of Audit, Stacey Pickering in his Official Capacity as State Auditor for the State of Mississippi, Harold E. Pizzetta, III, Mississippi Department of Marine Resources, Joseph A. Runnels, Jr., Sandra R. Chesnut and Jim Hood, Appellants, v. Gulf Publishing Company, Inc., Appellee.
    Nos. 2013-SA-02002-COA, 2014-SA-00894-COA.
    Court of Appeals of Mississippi.
    March 29, 2016.
    Rehearing Denied Aug. 23, 2016.

      Margaret P. -Ellis, Arthur ,F. Jernigan, Jr., John G. Corlew, Robert V. Greenlee, Alan M. Purdie, John T. Kitchens, Thomas Eugene Whitfield Jr., Dion Jeffery Shan-ley, Samuel L. Anderson, Roy M. Tipton, Judy T. Martin, attorneys for appellant.
    Henry Laird, attorney for appellee.
   FACTS AND PROCEDURAL HISTORY

LEE, C.J.,

for the Court:

I. Initial Lawsuit

¶ 1. In 2012, the Department of Marine Resources (DMR) was being investigated by a joint federal" and state task force for misappropriation of funds. On November 14, 2012, the Sun Herald newspaper submitted a written request to obtain DMR records, in accordance with section 25-61-5 of the Mississippi Public Records Act of 1983 (MPRA). Miss.Code Ann. § 25-61-5 (Supp.2015). DMR signaled its willingness to comply with the request, but the Sun Herald did not want to pay the associated costs. ' The Sun Herald submitted a second written request on December 27, 2012, for additional records. But during the period that DMR had to comply with this second request, the ' Harrison County-grand jury subpoenaed those -same records, as well as the records covered by the November 14 request.

¶ 2. The subpoena, which was issued by the Auditor, required DMR’s records “to be ‘retained in-place,’” to “be accessible upon demand by agents of [the Auditor],” and to “be released to no entity other than [the Auditor].” (Emphasis added). It also stated: “This subpoena ... may be satisfied by mailing or delivering a certified copy of said records[.]” Because the subpoena prohibited DMR from releasing its records to the Sun Herald, DMR informed the Sun Herald in writing that it could no longer comply with the public-records requests.

¶3. On January 15, 2013, the Auditor took possession of the records pursuant to the subpoena. Almost all of the records had electronic copies. But a few records only existed as uncopied and unscanned originals.

¶ 4. The next day, on January 16, 2013, Gulf Publishing (GP), the publisher of the Sun Herald, sued DMR in Harrison County Chancery Court to compel production of the records. While service of a state entity like DMR must be .upon the Attorney General, GP did not serve Attorney General Jim Hood, but instead DMR’s director.

II. Protective Order

¶ 5. A week later, special assistant attorneys general assigned to both DMR and the Auditor' worked together to submit a protective order to the Harrison County Circuit Court. The circuit court judge found “the ... subpoena ... prohibited DMR] from complying with the [MPRA].” Therefore the circuit court judge modified the subpoena to permit DMR to release to GP public records in its possession, even if those records were also subject to the subpoena, ■ One day later, DMR downloaded 22, 216 records to a DVD + R and handed it over to GP. The only records that were not released to GP were the uncopied and unscanned originals in the Auditor’s possession.

III. First Hearing

¶6. On April 23, 2013, the chancery court heard GP’s claim. GP was still seeking the records, for which no electronic copy was available. DMR moved to dismiss, claiming GP failed to prove that DMR wrongfully denied the requests. The chancellor stated that she could “not force DMR to turn over records that they no longer possess or have access to[.]” Thus, the chancellor deemed the Auditor a “necessary party since they are the ones in physical custody and possession of all the documents that [GP]' now seeks.” The chancellor ended the hearing by giving GP permission to join the Auditor as a necessary party.

IV, Second Lawsuit

¶ 7. GP did not file its motion to amend its first complaint until four months later, on August 16, 2013. _ On August 26, 201?, GP also filed an entirely new, separate lawsuit, naming DMR and the Auditor as defendants, which was properly served on the Attorney General. The motion to amend was granted on September 10, 2013. The two lawsuits were later consolidated.

. ¶ 8. DMR answered the second complaint by asserting that it had not wrongfully denied GP’s requests, and that GP’s claim had already been litigated in the first lawsuit. As part of its answer, the Auditor asserted the records in its possession were exempt under the MPRA’s “investigative report” exemption. See Miss.Code Ann. § ¿5—61—3(f) (Supp.2016).

V. Second Hearing

¶9. The chancellor heard GP’s second claim on October 30 and 31,2013.

¶ 10. During the hearing, the chancellor ordered the Auditor to bring the records to the courthouse. However, by the time the records arrived, the chancellor had ruled from the bench that the records did not fall under the investigative-report exemption. Thus, the chancellor allowed the documents to be taken from the courthouse, and ordered the Auditor to copy the records or put DMR in a position to comply with GP’s requests.

¶ 11. Though the chancellor would later rescind this statement, at the end of the hearing, the chancellor stated: “there has been no evidence presented to the [c]ourt that ... DMR has done anything other than attempt to comply with the records request, at least based upon the evidence the [c]ourt has been presented.” The chancellor reserved the right to add, alter, amend, and/or revise her bench ruling when reduced to writing.

VI.Federal Subpoena

¶ 12. Before the chancellor’s bench ruling was reduced to writing, the United States District Court for the Southern District of Mississippi issued a subpoena, commanding the Auditor’s lead investigator, David Huggins, to appear the next day, November 5, at 9 a.m., at the federal building in Jackson—and bring all the DMR records in the Auditor’s possession.

¶ 13. Around 2:40 p.m. on November 4, Investigator Huggins informed the Auditor’s attorney, Melissa Patterson, of the federal subpoena. And around 5 p.m., Patterson notified the chancellor. ' Subsequently, Patterson and GP’s attorney, Henry Laird, had a telephonic hearing with the chancellor. Laird suggested that Patterson seek a motion to quash or a protective order. But Patterson represented that she thought Investigator Huggins could, instead, appear before the grand jury and explain why he was unable to bring the records. The chancellor ended the hearing by ordering Patterson to produce the records to the chancery court, by 9 a.m. on November 5.

¶ 14. Shortly before midnight, the chancellor electronically filed an emergency order immediately seizing the records and ordering they be delivered to the chancery court so that they could be copied and Bates stamped before the Auditor complied with the federal subpoena.

¶ 15. The next morning, on November 5, Patterson contacted Investigator Chris Lott with the Auditor to arrange transportation of the records to the chancery court, but learned Investigator Huggins had decided to transport the records to Jackson. Patterson notified The chancellor, and another hearing was held that day in which the chancellor found the Auditor was in contempt of her October 31 bench ruling and the hours-old emergency order.

¶ 16. That same day, the state grand jury and federal grand jury indicted several individuals.

VII. Interlocutory Appeal

¶ 17. On November 6, 2013, the Attorney General’s Office submitted a motion to stay all further proceedings pending appeal. And on November 8, 2013, the Auditor submitted a combined motion to alter or amend the judgment, to vacate the November 4, 2013 order, and to stay all proceedings pending appeal. On December 3, the supreme court denied the Auditor’s petition for an interlocutory appeal and motion to stay trial-court proceedings pending appeal.

VIII. Contempt

¶ 18. On November 16, 2013, in an order for direction, the chancellor invited GP to file a motion for contempt because “the federal grand jury subpoena itself did not prevent or restrict the copying of the original records requested by the subpoena.” GP subsequently filed its motion for civil contempt and attorney’s fees against the Auditor. GP never alleged DMR or any other individuals were in contempt.

¶ 19. The civil contempt hearing started on December 4. At the beginning of the hearing, the Auditor moved for the chancellor to recuse herself, as she had already found the Auditor to be in contempt and, thus, reasonably would be perceived as already having bias in this matter. The chancellor stated the Auditor waived the issue and denied the motion.

¶ 20. To make its case for contempt, GP first called the Mississippi State Auditor, Stacey Pickering. Pickering testified that his office had to decide between either not complying with the federal subpoena or not complying with the chancery court’s order. And his office chose to comply with the federal subpoena.

¶21. Investigator Huggins was then called to testify about the events leading up to the delivery of the records to the federal grand jury, instead of the chancery court. According to Investigator Huggins, John Dowdy, the Assistant United States Attorney who was running the federal side of the DMR investigation, contacted him on November l. Dowdy asked Investigator Huggins to come by the federal building on November 4, causing Investigator Huggins to suspect that he might' be issued a subpoena. Already concerned abóut a federal subpoena, Investigator Huggins had spoken with Attorney General Hood, who advised, hypothetically, should a federal subpoena come down, Investigator Huggins should comply with it.

¶ 22. On November 4, Investigator Huggins went by the federal courthouse, and, as suspected, was issued a federal subpoena. Investigator Huggins initially thought he could comply with both the chancery court’s ruling and the federal subpoena. He had the records sealed, and hoped that it would be enough to appear before the grand jury the next day and explain why he did not bring the records.

¶ 23. Unbeknownst to Patterson, around 6 p.m., on November 4, Investigator Huggins decided that he had to show up at the federal grand jury—or face federal penalties. This decision was based on his conversation with Attorney General Hood as well as a conversation with Dowdy. Investigator Huggins told Dowdy his plan to try to comply with both the chancery court’s ruling and the federal subpoena, but Dowdy advised Investigator Huggins to comply with the subpoena. Investigator Huggins then directed Investigator Lott to transport the records to Jackson.,

¶ 24. The contempt hearing ended with the Auditor informing the chancery court that necessary steps were being taken to release the records from the federal court.

IX. Motion to Release

¶ 25, On December 5, 2013, the Auditor filed a motion with the district court seeking permission to release the records to GP. On December 20, the district court ruled the records were not subject to federal grand-jury secrecy and, therefore, could be released. See United States v. Walker, No. 1:13-CR-89-KS-MTP, 2013 WL 6805121, at *7 (S.D.Miss. Dec. 20, 2013).

¶ 26. Almost one year after its written request, GP obtained the records.

X. Final Order

¶27. On May 27, 2014, the chancellor entered a sixty-seven page omnibus final order. Ultimately, the chancellor concluded:

(1) GP’s requests were not subject to any exemptions;
(2) GP’s requests were not subject to grand-jury secrecy;
(3) Any unadjudicated, posttrial motions were denied;
(4) DMR acted in bad faith, asserting defenses for the purpose of delay in violation of the Mississippi Litigation Accountability Act (MLAÁ);
(5) DMR willfully and wrongfully denied GP’s requests;
(6) The Auditor also acted in bad faith and willfully and wrongfully .denied GP’s requests;
(7) The Auditor was in civil contempt from November 4, 2013, until it purged itself on December 6, 2013. Therefore, the Auditor was liable for attorney’s fees and expenses resulting from the contempt;
(8) GP was awarded attorney’s fees under the MPRA (Miss.Code Ann. § 25-61-15 (Supp.2015)), the MLAA (Miss. Code Ann. § 11-55-5 (Rev.2012)), and relevant caselaw for contempt and monetary sanctions for bad faith;
(9) DMR and the Auditor were jointly and severally liable for $36,783.50 in attorney’s fees and $1,249.95 in expenses; and
(10) The following individuals were fined $100 each “pursuant to 25-61-15 ... for their participation in the willful and wrongful denial of [GP’s] public record requests”:
State Auditor Stacey Pickering
Attorney General Jim Hood
Lead Investigator David Huggins
Investigator Chris Lott
Special Assistant Attorney General Melissa Patterson
Special Assistant Attorney General Joseph Runnels
Special Assistant Attorney General ■ Sandra Chesnut
Special Assistant Attorney General Harold Pizzetta

STANDARDS OF REVIEW

¶28. “This Court, employs a limited standard of review when reviewing a chancellor’s findings of fact. We will not disturb the findings of the chancellor unless he was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Questions of law are reviewed de novo.” Harrison Cty. Dev. Comm’n v. Kinney, 920 So.2d 497, 502 (¶ 9) (Miss.Ct.App.2006) (internal citations omitted).

DISCUSSION

¶ 29. As a preliminary matter, we note that it has been asserted that because the records were subpoenaed, the circuit court was the proper place to seek redress for the release of the records. However, the MPRÁ vests jurisdiction of denial of a public-record request in the chancery court. Miss.Code Ann. § 25-61-13 (Supp. 2015).

I. DMR

¶ 30. We will address only those issues that have been “distinctly identified” by DMR. See M.R.A.P. 28(a)(3).

A. MPRA—Denial of Requests

¶31. DMR claims the chancellor erred in finding that it willfully and wrongfully denied GP’s public-record requests in violation of the MPRA.

¶ 32. Mississippi Code Annotated section 26-61-12 (Supp.2015) provides: “[W]hen in the possession of a law enforcement agency, investigative reports shall be exempt from the provisions of this chapter!;.]”

¶33. Mississippi Code Annotated section 25-61-3(f) defines investigative report as:

[R]ecords of a law enforcement agency ... and generally will include, but not be limited to, the following matters ...:
(i) Records that are compiled in the process of detecting and investigating any unlawful activity or alleged unlawful activity, the disclosure of which would harm the investigation
(ii) Records that would reveal the identity of informants and/or witnesses;
(iii) Records that would prematurely release information that would impede the public body’s enforcement, investigative or detection efforts;
(iv) Records that would disclose investigatory techniques and/or results of investigative techniques;
(v) Records that would deprive a person of a right to a fair trial or an impartial adjudication;
(vi) Records that would endanger the life or safety of a public official or law enforcement personnel, or confidential informants or witnesses;
(vii) Records pertaining to quality control or PEER review activities; or
(viii) Records that would impede or jeopardize a prosecutor’s ability to prosecute the alleged offense.

¶34. The Auditor was a law-enforcement agency. However, the chancellor stated that the investigative-report exemption did not apply because the records were not in the Auditor’s possession when DMR denied GP’s requests. • Although advisory, in March 2010, “[t]he Mississippi Ethics Commission [adopted] ... model rules to provide information to record re-questors and state and local agencies about ‘best practices’ for complying with the [MPRA].’-’ Model Rule 4.4(4)(a) provides: “A public body is only required to provide access to public records it has in its possession or over which it has control” (Emphasis added). After DMR received the state grand-jury subpoena, it timely informed GP that it could no longer comply with GP’s requests. The chancellor acknowledged that the subpoena “prohibited the release of the DMR records to anyone, even prior to the return date,” except for the Auditor. Although the Auditor did not take physical possession of the records until after the time period prescribed by section' 25-61-5(l)(a), the Auditor became the custodian—and was in constructive possession—of DMR’s records as soon as the subpoena was served on DMR.

¶35. The chancellor also stated that because the records were not the Auditor’s records, they were not investigative reports. See Miss.Code Ann. § 25—61—3(f) (“ ‘Investigative report’ means records of a law enforcement agency[.]”). , However, the Mississippi Ethics Commission stated in Public Records Opinion No. R-13-017:

[T]he term “public records” under the [MPRA] includes records obtained from a third party and possessed or retained by a law enforcement agency in the course of investigation of criminal matters under the agency’s jurisdiction. While those records may not belong to the law enforcement agency, those records, while in possession of the, law enforcement agency, are subject to. the [MPRA],

¶ 36. The records sought by GP were investigative reports that fall within the enumerated examples listed in section 25-61—3(f). Investigator Lott testified that the records would disclose the identity of witnesses and impede the ongoing DMR investigation. Investigator Lott also testified that he “used everything that’s listed in [the] subpoena as part of the investigation.” Accordingly, the chancellor erred in finding DMR violated the MPRA when it denied GPs requests and when it found the investigative-report exemption did not apply. Therefore, we reverse and render the judgment against DMR for violation of the MPRA.

B. MLAA

¶ 37. DMR claims the chancellor erred in finding that it violated the MLAA and was liable for resulting attorney’s fees, costs, and expenses.

¶38. Mississippi Code Annotated section 11-55-5(1) provides:

[I]f the court—on its own motion or the motion of any party—“finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct,” then “the court shall award as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs.”

Waldrup v. Eads, 180 So.3d 820, 829 (¶ 43) (Miss.Ct.App.2015) (quoting Miss.Code Ann. § 11-55-5(1)).

¶39. The chancellor faulted DMR for failing to properly keep its records and cited to Mississippi Code Annotated section 25-59-15 (Rev.2010) for support. Specifically, the chancellor stated that DMR was under an “affirmative duty to maintain a back up copy of the complete set of records it was charged to keep as a public body.” However, nothing in section 25-59-15 requires every public record to be backed up with paper or electronic copies.

¶ 40. The chancellor also faulted DMR for not joining the Auditor as a necessary party, which “interposed delay and unnecessarily expanded the litigation.” However, DMR was under no duty to join the Auditor as a necessary party. Therefore, we reverse and render the judgment against DMR for violation of the MLAA.

C. Recanted Rulings

¶ 41. DMR claims the chancellor erred in recanting her previous rulings that were in favor of DMR in order to render a judgment against DMR. Because we find that DMR did not violate the MPRA or the MLAA, we do not need to address this issue.

II. The Auditor

A. MPRA—Denial of Requests

¶ 42. The Auditor claims that the chancellor erred in finding it willfully and wrongfully denied GP’s requests in violation of the MPRA.

¶ 43. Because the investigative-report exemption applied, the chancellor erred in finding that the Auditor violated the .MPRA when it denied GP’s requests. Therefore, we reverse and render the judgment against the Auditor for violation of the MPRA.

B. Recusal

¶ 44. The Auditor also claims that the chancellor erred in denying its motion to recuse, which was filed on December 3, 2013—the day before the contempt hearing. The motion was based on the chancellor’s statements on November 5, 2013, finding the Auditor in contempt. However, the chancellor found that the Auditor waived its motion for recusal.' Specifically, the chancellor stated:

[T]o the extent that the motion is based upon any of the [c]ourt’s statement[s] of the in-chambers conference on November the 5th, that .., portion of the motion would be necessarily waived. The. [Auditor] has filed many motions with this [c]ourt since that date and has not sought recusal based upon that until now, so that would be untimely to the extent that it’s based on that transcript[.]

¶ 45. Uniform Chancery Court Rule 1.11 states in relevant part that a motion for recusal “shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted.” However, “[o]ver the years, this Court has been quick to point out that we will not allow a party to take his chances with a judge about whom he knows of grounds for recusal and then, after he loses, file his motion.” Wilbanks v. Gray, 795 So.2d 541, 547 (Miss.Ct.App.2001) (quoting Buchanan v. Buchanan, 587 So.2d 892, 897 (Miss.1991)). “Where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds and where that party does not move timely prior to trial, the point -will be deemed waived.” Id. (quoting Buchanan, 587 So.2d at 897).

¶ 46. Between November 5, 2013, and the filing of the motion to recuse, the Auditor filed a motion for leave to file pleadings under seal; a combined motion to alter or amend the judgment, to vacate the November 4- - 2013 order, and to stay all proceedings; a notice of appeal; a notice of intent to seek closure of the hearing; and a motion with respect to the closure of the hearing. Because there-was no adverse' ruling and because the motion for recusal was filed within the prescribed thirty days, the chancellor erred in finding that the Auditor waived its motion to recuse. We proceed to address the merits of this issue.

¶ 47. At the contempt hearing, the chancellor stated that the Auditor’s alleged contempt was civil; however, “[t]he often confused labels that a- trial judge uses in contempt charges do not control; the clarity or ambiguity of the contempt order as well as the procedures followed to enter the contempt sanctions are what govern.” Miss. Comm’n on Judicial Performance v. Byers, 757 So.2d 961, 971 (¶ 43) (Miss.2000). Criminal contempt is “designed to punish the contem-nor for disobedience of a court order.” In re Williamson, 838 So.2d 226, 237 (¶ 29) (Miss.2002). Unlike civil contempt, from which a person can purge himself by complying with the court order, criminal contempt punishes the past offenses and does not terminate upon the person’s complying with the order. Id. The content of the final order indicates the chancellor was punishing the Auditor for choosing to comply with the federal subpoena versus her bench ruling and protective order. Furthermore, although the chancellor stated that the release, of the records purged the Auditor of the contempt, the chancellor found that “the willful and contumacious contempt by the .., Auditor warranted] sanctions of court costs and reasonable attorney’s fees against the. ... Auditor.” The chancellor then ordered that the Auditor be “liable for reasonable attorney’s fees, eosts[,] and expenses resulting from [the] contempt.” Accordingly, we find the alleged contempt was criminal.

¶ 48. Moreover, the alleged contempt appears to be constructive. “[C]onstructive contempt involves actions which are committed outside the presence of the court.” Id. at (¶ 31). The allegations of contempt were committed outside the presence of the court; therefore, the alleged acts constituted constructive criminal contempt. See id. In cases of constructive criminal contempt,

[w]here the trial judge has substantial personal involvement in the prosecution, the accused contemnor must’ be tried by another judge. Examples of substantial personal involvement iñ the prosecution warranting recusal include cases where the trial judge acts as a one-man grand jury, where the trial judge is instrumen-' tal in the initiation of the constructive-contempt proceedings, and where the trial judge acts as prosecutor and judge.

In re McDonald, 98 So.3d 1040, 1044 (¶ 9) (Miss.2012) (quotation marks omitted). Because the chancellor.cited the contempt, she should have recused. See In re Smith, 926 So.2d 878, 888 (¶ 14) (Miss.2006) (finding the citing judge must recuse himself from conducting the constructive-contempt proceeding involving the charges). We would typically reverse the judgment of contempt and remand for a contempt hearing before another judge. See Williamson, 838 So.2d at 238 (¶ 34). However, we have already found that the Auditor was protected by the investigative-report exemption. Furthermore, the Auditor was faced with the choice of complying with the chancellor’s bench ruling and protective order or complying with the federal subpoena. Any noncompliance with the chancellor’s bench ruling or protective order was not willful or contemptuous. See R.K v. J.K., 946 So.2d 764, 778 (¶ 41) (Miss. 2007). Therefore we reverse and render the chancellor’s judgment of contempt.

III. Individuals

¶49, Pickering, Hood, Huggins, Lott, Patterson, Runnels, Chesnut, and Pizzetta claim the chancellor erréd in imposing a fine of $100 each under Mississippi Code Annotated section 25-61-15 for their “participation in the willful and wrongful denials of [GP’s] public records requests pursuant to the [MPRA].”

¶50. 'The Fourteenth Amendment to the United States Constitution and Section Fourteen of the Mississippi Constitution prohibit deprivation of property without due process of law. “Generally, due process requires notice and a meaningful opportunity to be heard.” Akins v. Miss. Dep’t of Revenue, 70 So.3d 204, 208 (¶ 12) (Miss.2011). Furthermore, the putative target of any claim in a civil lawsuit is always entitled to process, even if independent knowledge of the lawsuit exists. Sanghi v. Sanghi, 759 So.2d 1250, 1257 (¶ 33) (Miss.Ct.App.2000).

¶ 51. None of the individuals were named in either lawsuit in their individual capacity or given notice that they could potentially be fined. - By failing to provide the individuals with notice of the alleged MPRA violations and charges to be adjudicated against them, the chancellor violated their due-process rights. For this reason, the fines are void. See Adams v. Miss. State Oil & Gas Bd., 80 So.3d 869, 872 (¶ 15) (Miss.Ct.App.2012) (“A judgment is void only if the court that rendered it ... acted in a manner inconsistent with due process of law.”).

IY. Posttrial Motions

.¶ 52. DMR, Runnels, and Chesnut claim the chancellor erred in denying their motion to alter or amend the judgment. In their appellate brief, they stated that “[t]he motion raised the same manifest errors of law discussed in this brief.” Be- ■ cause we reverse and render, we do not need to address this issue.

¶ 53. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

IRVING AND GRIFFIS, P.JJ., FAIR, JAMES AND GREENLEE, JJ., CONCUR. CARLTON, J., CONCURS ÍN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. BARNES, ISHEE AND . WILSON, JJ., NOT PARTICIPATING,

CARLTON, J.,

concurring in part and . dissenting in part:

' 1154. I respectfully concur in part and dissent in part from the-majority’s opinion. I agree with the majority’s opinion that another judge needed to hear and determine the issue of contempt. However, I disagree with the majority’s determination that the DMR records in the Auditor’s possession were exempt from - disclosure under the MPRA as law-enforcement investigative records. I would reverse the chancellor’s judgement of contempt and remand this case for a contempt hearing before another judge.

■¶ 55., This case reflects that the disputed records are public records created, compiled, or retained by the DMR and that the Auditor’s office later obtained custody of the records from the DMR. See United States v. Walker, No. 1:13-CR-89-KS-MTP, 2013 WL 6805121, at *3 (S.D.Miss. Dec. 20, 2013) (finding by the federal district court that the records at issue constituted DMR public records). The records at issue were created, possessed, or retained by a public body, the DMR, in the course of its performance and function as a public body. Stated otherwise, the DMR records at issue were not created or compiled by the Auditor’s office for a law-enforcement purpose. Instead, the records were independently created by another source, the DMR, which is a public body, in the course of the DMR’s performance as a public body.

¶ 56. The DMR records at issue are not law-enforcement records that were compiled or created by or for a law-enforcement agency for the purpose of a criminal investigation. Mississippi Code Annotated section 25-61-12(2)(a) (Supp.2015) exempts only investigative reports when in the possession of a law-enforcement agency. The Auditor’s custody of the DMR public records at issue failed to convert those public-agency records to. investigative reports.

¶ 57. The MPRA, codified at Mississippi Code Annotated sections 25-61-1 to -17 (Rev.2010 & Supp.2015), provides the public with access to public records. The DMR public records at issue should have been disclosed since the records were not exempt as law-enforcement reports. As a result, I would reverse the chancellor’s judgment and remand this case for further proceedings. I agree with the majority’s finding that, if this matter were remanded, another judge should preside over the contempt hearing. I therefore respectfully concur in part and dissent in part from the majority’s opinion.

      . See Miss.Code Ann. § 25-61-5(l)(a) (“No public body shall adopt procedures which will authorize the public body to produce or deny production of a public record later than seven (7) working days from the date of the receipt of the request for the production of the record.”). The seven-day period was extended in this case due to the holidays,

      . There were actually two subpoenas—January 6, 2013, and January 9, 2013. The only difference is the amount of records increased in the second subpoena. Both subpoenas will be collectively referred to as "the subpoena.”

      . The reference to "the Auditor” is used in a general sense for the sake of convenience and refers collectively to the Mississippi Office of the State Auditor and the Mississippi State ' Auditor, Stacey Pickering.

      . .There were approximately three to four boxes worth of uncopied and unscanned originals scattered throughout approximately thirty-eight boxes and two filing cabinets—or sixty boxes total.

      . The order began with the chancellor stating she had granted DMR’s motion to dismiss .for failure to join the Auditor as a necessary party. But then the order also grants GP.’s motion to amend its complaint to add the Auditor as a defendant. Later, in her final judgment, the chancellor would refute she ever granted DMR’s motion to dismiss, ■

      . During the November 5 hearing, the chancellor stated:
      I have no choice at this time but to find that the Auditor by acting in cooperation with the federal prosecutor is in direct contempt of my ruling and my order of last week on October 31st, and certainly in direct contempt of my protective order which I issued ]ast night.

      The Auditor is in contempt of this [c]ourt by removing the records from this jurisdiction and from control of the [c]ourt which it has maintained since the beginning of this litigation.

      I am reserving a lot of matters ... except for my initial finding that the State Auditor is in direct contempt of this [c]ourt's orders.

      . Dowdy also attempted to contact the chancellor; however, the chancellor did not speak .with Dowdy or return his phone calls.

      , Effective July 1, 2014, this section was amended giving the Mississippi Ethics Corn-mission authority to compel access to public records.

      . We note that GP never submitted a public-record request to the Auditor. Once the Auditor had been brought in as a defendant, GP filed a request for production of documents. However, this is not a public-record request pursuant to MPRA. Nor should GP be able to use discovery to circumvent the very purpose of the lawsuit.

      . During this time, the Attorney General's Office also filed its motion to stay all further proceedings pending appeal.

      . The chancellor cited to an off-the-record conversation that took place between her and Attorney General Hood; an alleged conspiracy between the United States Attorney’s Office, the Attorney General’s Office, and the Auditor; the Auditor’s reliance upon the Attorney General’s advice to disregard the chancery court’s rulings; the Auditor’s failure to copy the records;- the Auditor’s failure to move for a protective order or file a motion to quash; and the Auditor’s-issuance of unnecessary state grand-jury subpoenas. •

      . GP filed a motion for costs and attorney’s fees on appeal. ‘‘This Court has generally awarded attorney’s fees on appeal in the amount of one-half of what was awarded in the lower court.” Lauro v. Lauro, 924 So.2d 584, 592 (¶ 33) (Miss.Ct.App.2006) (citing Monroe v. Monroe, 745 So.2d 249, 253 (¶ 17) (Miss. 1999)). Because we reverse the- chancellor’s award of costs and attorney's fees at trial, the motion for costs and attorney’s fees on appeal is'denied,

      . GP did not address this issue in its appellate brief. Furthermore, at oral argument, coxmsel for GP stated, ‘‘[GP] does not seek any relief against anybody except DMR and [the Auditor],’’

      . See Miss.Code Ann. § 25-61-3(a) (Supp, 2015) (defining a public body).

      . In Walker, the federal district court found that the DMR records at issue ,were not part of a matter that occurred before a grand jury and that the government failed to represent that the DMR records were or ever would be presented to a grand jury. Walker, 2013 WL 6805121, at *3. The federal district court also determined the records to be DMR public records. Id. The federal district court found that the DMR records would not reveal anything regarding the internal operations of the grand jury. Id. at *5. The district court authorized the release of the DMR records after finding that Federal Rule of Criminal Procedure 6(e) did not prevent disclosure since the records were not a matter that occurred before the grand jury and did not reveal internal operations of the grand jury. Id. at *6-7.

      . See Miss.Code Ann. § 25—61—3(b) (Supp. 2015) (defining public records).

      . Any record of a public body constitutes a public record, in accordance with Mississippi Code Annotated section 25-61-3 (Supp.2015), notwithstanding their retention outside the public body. See Miss. Att’y Gen. Op., 1998-0641, 1998 WL 958143, Hilliard (Dec. 11, 1998).

      . See Miss.Code Ann. § 25—61—3(0 (Supp. 2015); Miss.Code Ann. § 25-61-12 (Supp. 2015).

      . See also Miss.Code Ann. § 25-61-3(f) (defining investigative report).


source: Caselaw Access Project

author: KING, JUSTICE, FOR THE COURT: COLEMAN, JUSTICE, DISSENTING:

license: Public Domain

text:
    GRACELAND CARE CENTER OF NEW ALBANY, LLC, Advanced Healthcare Management, Inc., Karen Clayton, in Her Official Capacity as Administrator of Graceland Care Center of New Albany, W. Larry Overstreet and Sharon Windham v. Teresa HAMLET, ON BEHALF OF Jimmy KINARD, Deceased
    NO. 2015-IA-01829-SCT
    Supreme Court of Mississippi.
    August 25, 2017
    ANDY LOWRY THOMAS L. KIRKLAND, JR., ATTORNEYS FOR APPELLANTS.
    RICHARD SHANE McLAUGHLIN NICOLE H. McLAUGHLIN, ATTORNEYS FOR APPELLEE.
    EN BANC.
    ON MOTION FOR REHEARING
   KING, JUSTICE, FOR THE COURT:

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Teresa Hamlet filed a motion for an extension of time to serve process, prior to the expiration of the 120-day deadline provided by Mississippi Rule of Civil Procedure 4(h). The trial judge granted the motion and signed an order, yet the order was not filed with the circuit clerk until the day before the granted extension expired, well after the expiration of the original, 120-day deadline. Hamlet served process on three defendants during the extension. On the same day the order was filed, Hamlet filed a second motion for time, which the trial court also granted. While Hamlet served process on the remaining defendants within the second extension period, the order granting the second extension was not filed with the clerk until three months after it was signed by the judge.

¶ 3. The defendants filed a motion to dismiss Hamlet's complaint, arguing that the statute of limitations had run before the court's order granting additional time to serve process had been entered by the clerk of court. The defendants further argued that Hamlet's suit could not be revived by the untimely filed order. The trial court denied the defendants' motion to dismiss. Because Hamlet was the only party to the action, we find that the trial judge's order granting her motion for extension of time to serve process became effective once the order had been signed and had left the trial judge's control. Accordingly, we affirm the decision of the trial court. However, in cases where more than one party is involved, notice becomes essential. Therefore, in cases involving multiple parties, we adopt the holding of the majority of states that require the entry of an interlocutory order before it becomes effective.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 4. Jimmy Kinard died on September 23, 2012. On October 17, 2014, Teresa Hamlet, Kinard's sister, filed suit against Graceland Care Center of New Albany, LLC; Advanced Healthcare Management, Inc.; Karen Clayton, in her official capacity as administrator of Graceland Care Center of New Albany; W. Larry Overstreet; Sharon Windham; and John Does 1-10, jointly and individually (collectively referred to as "Graceland"). Hamlet alleged that Graceland's negligence was the proximate cause of Kinard's death.

¶ 5. The 120-day deadline to serve process as provided under Rule 4(h) of the Mississippi Rules of Civil Procedure would have expired on February 14, 2015. On February 13, 2015, Hamlet filed a Motion to Extend Time to Serve Process.

¶ 6. On February 23, 2015, the trial judge signed an order granting Hamlet sixty days from February 14, 2015, to serve process on the defendants. However, the order was not entered by the clerk of the court until April 14, 2015, one day prior to the expiration of the sixty-day extension.

¶ 7. Hamlet served three defendants on April 14, 2015. On that same day, Hamlet filed a Second Motion to Extend Time to Serve Process, arguing that, while her deadline to serve defendants "will run on or about April 15, 2015," process to defendants remained incomplete. On April 16, 2015, the trial judge signed the order granting Hamlet's second motion for extension of time to serve process, allowing Hamlet an additional sixty days from April 15, 2015, to serve process on the defendants. The circuit court clerk did not enter this order until July 14, 2015.

¶ 8. The following timeline illustrates the pertinent dates:

Sept. 23, 2012 Jimmy Kinard passed away (statute of limitations begins to run). July 25, 2014 Notice of claim sent to Graceland, tolling statute of limitations for sixty days per Miss. Code Ann. § 15-1-36. Sept. 23, 2014 Earliest date Hamlet could file suit under Section 15-1-36. Oct. 17, 2014 Complaint filed. 120-day period to serve process begins, expiring February 14, 2015. Feb. 13, 2015 Hamlet files motion for additional sixty days to serve process within the 120-day period. Feb. 23, 2015 Court grants Hamlet's motion for an additional sixty days to serve process from February 14 until April 15 ("first extension order"). Mar. 22, 2015 Graceland argues that the statute of limitations expires. Apr. 14, 2015 Clerk enters first extension order. Hamlet perfects service on Karen Clayton, Graceland Care Center, and W. Larry Overstreet. Hamlet files second motion for time. Apr. 15, 2015 Sixty-day period under the first extension order expires. Apr. 16, 2015 Court grants Hamlet's second motion for an additional sixty days to serve process from April 15 until June 15 ("second extension order"). Hamlet perfects service on Advanced Healthcare Management, Inc. May 15, 2015 Graceland files motion to dismiss. July 14, 2015 Clerk enters second extension order.

¶ 9. Graceland filed a Motion to Dismiss, contending that the statute of limitations had run before the April 14, 2015, order extending time was entered. Graceland argued that Hamlet failed to serve timely process within 120 days after filing her complaint, and therefore, the statute of limitations resumed after the 120 days. Initially, Graceland argued that Hamlet had failed to show "good cause" in her motion for extension, which would have satisfied Mississippi Rule of Civil Procedure 4(h). Graceland, however, acknowledged that Hamlet likely would contend that, where a motion for time is filed prior to the expiration of the 120 days, the standard of Mississippi Rule of Civil Procedure 6(b) applies. See Cross Creek Prods. v. Scafidi , 911 So.2d 958 (Miss. 2005).

¶ 10. Graceland's argument against applying Rule 6(b) was twofold. First, Graceland argued that Scafidi did not involve the statute-of-limitations tolling rule. Second, Graceland argued that Hamlet's failure to secure an order before the 120-day deadline expired made a showing of good cause necessary. Graceland noted that the Scafidi Court did not reveal when the trial court entered its order granting an extension of time to serve process. Because the 120-day deadline had expired without Hamlet securing a signed and filed order extending the time to serve process, it averred that there should be a requirement that Hamlet show good cause after the 120-day deadline expired.

¶ 11. In response, Hamlet argued that the Scafidi Court specifically held that motions for time filed during the 120-day deadline do not require a showing of good cause. Id. at 960 ("[T]his finding is specifically limited to those situations where the motion for additional time is filed before the deadline.") (emphasis added). Because she filed her motion for an extension of time to serve process within the 120-day deadline, Hamlet argued that a showing of good cause was not necessary.

¶ 12. The trial court held a hearing on the motion, at which Graceland argued that an order does not become effective until it is filed with the clerk and all parties are put on notice. Graceland admitted this was a case of first impression but likened an interlocutory order to a judgment not being effective until it is filed. Graceland argued that, while a statute of limitations could be extended by a court, it could not be resurrected. Graceland also contended that the mere filing of a motion for time did not toll the statute of limitations. Moments before the trial court's ruling, Graceland's counsel stated that "prejudice might be relevant to the issue [if] we are [sic] showing good cause[,] but we conceded that it's not. This is an issue of statute of limitations, Your Honor." Because the statute of limitations had run prior to the April 14, 2014, order being filed with the clerk, Graceland prayed that the court would dismiss the action.

¶ 13. Hamlet's attorney acknowledged that the signed order from the judge "may have spent longer in my office than it should have...." However, Hamlet argued that the law did not require a party to secure and file an order within the initial 120-day period in order to receive an extension. Hamlet stated that Graceland Care Center was served on April 14, 2015, the same day the order granting the extension was filed and within the extension allowed by the order. Also, Hamlet argued that no caselaw supported Graceland's assertion that the order was not effective until it was entered by the court.

¶ 14. After considering oral argument and documentary evidence, the trial court confirmed with the parties that "[t]he question of reasonableness, good cause shown is not an issue...." Neither party objected. The trial court next recognized that no caselaw on point would direct him to dismiss this case and that dismissals were not favored. As such, the trial court denied the motion.

¶ 15. Graceland timely filed this interlocutory appeal. On appeal, Graceland raises three issues. First, Graceland argues that an order is effective only upon filing with the clerk. Second, Graceland claims that a motion filed within the 120-day period under Rule 4(h) is insufficient to resurrect the statute of limitations where the order granting the motion is filed after the statute of limitations runs. Third, Graceland argues that this Court should reconsider and overrule Scafidi .

¶ 16. Hamlet raises two issues. First, Hamlet argues that an order extending time to serve process is effective upon the judge's signing. Second, Hamlet argues that this Court should not overrule Scafidi . For clarity, we will restate and combine the issues on appeal.

STANDARD OF REVIEW

¶ 17. "This Court uses a de novo standard of review when passing on questions of law including statute of limitations issues." Stephens v. Equitable Life Assurance Soc'y , 850 So.2d 78, 82 (Miss. 2003).

ANALYSIS

¶ 18. In this case of first impression, we are tasked with determining when an order becomes effective and ultimately grants the enlargement of time under Rules 4(h) and 6(b). Is it when it is announced and/or signed by the judge? Or is it when it is officially entered into the record by the court clerk?

¶ 19. Graceland argued that, in general, an order does not become effective until filed with the clerk and all parties are put on notice. The time for service of process in Mississippi is governed by Rule 4(h), which reads:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

M.R.C.P. 4(h) (emphasis added). Our courts, however, read Rule 4(h) in conjunction with Rule 6(b), which requires only "cause shown" for an enlargement of time when the motion is filed before the expiration of the 120-day period. Scafidi , 911 So.2d at 960 ; M.R.C.P. 6(b). Rule 6(b) reads:

When by these rules or by notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order ....

M.R.C.P. 6(b) (emphasis added).

¶ 20. The comment to Rule 79 of the Mississippi Rules of Civil Procedure reads:

Rule 79(a) specifies that the docket entries reflect the date on which entries are made in the general docket. Since several important time periods and deadlines are calculated from the date of the entry of judgments and orders , these entries must accurately reflect the actual date of the entries rather than another date, such as the date on which a judgment or order is signed by the judge .

M.R.C.P. 79 cmt. (emphasis added). The comment specifically states that the date which must be reflected on the docket must be the date the order was entered, not the date it was signed by the judge. However, this rule does not specify when the order becomes effective. While Rule 58 specifically reads that a "judgment shall be effective only when entered as provided in M.R.C.P. 79(a)," neither the rules nor this Court has addressed whether the same is true for an interlocutory order.

A. Judgments

¶ 21. Graceland argues the rule for interlocutory orders should be the same as the rule for judgments because an order that has been signed but has not been entered and made a matter of public record cannot be binding on the parties. It takes the position that, as a potential defendant, it was entitled to notice of the order which concerned additional time to serve named defendants.

¶ 22. Rule 54 defines "judgment" as "... a final decree and any order from which an appeal lies." M.R.C.P. 54. This rule does not apply to the orders granting Hamlet's motions for time, for those orders were not directly appealable. Judgments are markedly distinguishable from interlocutory orders. Judgments impact more than the rights of the parties. The entry and filing of a judgment is necessary to give third parties, such as creditors, lien holders, and other interested third parties, notice of the judgment in order to protect their rights. An interlocutory order, with limited exceptions, impacts only the parties. In the present case, at the time the first order allowing additional time was granted by the trial court, the only party was the plaintiff, Hamlet. Although this is an issue of first impression, we are able to look to other courts for guidance on this issue.

B. Other Courts

¶ 23. Overwhelmingly, our sister states that have discussed the issue have found that an interlocutory order is effective upon entry by the clerk on the court's docket. In Finley v. State , 281 Ark. 38, 39, 661 S.W.2d 358, 358 (1983), that Court held:

The critical act in such cases is when the order is entered not signed.
... Counsel must see that orders are entered on time; merely obtaining a signature on an order is not sufficient to extend the time. Counsel must anticipate problems of time and be prepared to do all acts necessary ... and it is no excuse or good cause that a judge, clerk, or reporter ... fails to file an order on time. It is not often the case an official refuses to perform a duty; invariably in such cases counsel expects the officials to do the work of counsel.
In this case it was the lawyer's duty to see that the order was entered, not the judge's.

Finley , 281 Ark. at 39, 661 S.W.2d at 358-59 (citations omitted). In Bowman v. Richland Memorial Hospital , 335 S.C. 88, 515 S.E.2d 259 (S.C. Ct. App. 1999), that Court held that "[a]n order is not final until it is written and entered by the clerk of court." Bowman , 335 S.C. at 91, 515 S.E.2d at 260 (citing First Union Nat'l Bank of South Carolina v. Hitman, Inc. , 306 S.C. 327, 411 S.E.2d 681 (S.C. Ct. App.1991), aff'd , 308 S.C. 421, 418 S.E.2d 545 (1992) ). "Until an order is written and entered by the clerk of court, the judge retains discretion to change his mind and amend his ruling accordingly." Bowman , 335 S.C. at 91, 515 S.E.2d at 260. That Court found that its:

holding [was] mandated by principles of fairness and equity. The parties to an action are not provided with notice of a judge's ruling at the time the judge signs an order. Rather, only after the order is filed with the clerk of court are the parties given notice of the order and provided with an opportunity to comply with the order.

Bowman , 335 S.C. at 92, 515 S.E.2d at 261.

¶ 24. Numerous other state courts have similarly held. See also In re Trust by Crawford , 20 Neb. App. 502, 510, 826 N.W.2d 284, 291 (2013) ; DeHaven v. Hall , 753 N.W.2d 429, 439 (S.D. 2008) (quoting S.D. Codified Laws § 15-6-58 (West 2017) ) ("An order 'becomes complete and effective when reduced to writing, signed by the court or judge, attested by the clerk, and filed in the clerk's office.' "); Simpson v. Simpson , 377 S.C. 519, 525, 660 S.E.2d 274, 277-78 (S.C. Ct. App. 2008) ; Hill v. State , 281 Ga. 795, 799, 642 S.E.2d 64 (2007) ; In re Guardianship of Hollins , 114 Ohio St. 3d 434, 439, 872 N.E.2d 1214, 1218-19 (2007) ; Batts v. Illinois Cent. R. Co. , 217 S.W.3d 881, 883 (Ky. Ct. App. 2007) ("Under typical circumstances, when a trial judge signs an order or judgment it has no effect until it is entered into the record by the clerk."); Rollins v. Rollins , 903 So.2d 828, 833 (Ala. Civ. App. 2004) ; Foley v. Fitzpatrick Container Co. , 267 A.D.2d 637, 638, 699 N.Y.S.2d 598, 599 (1999) ("[A]n order is effective on the date of entry thereof and not on the date a decision is signed...."); State v. Shaw , 4 S.W.3d 875, 878 (Tex. App. 1999) ; Abels v. Renfro Corp. , 126 N.C. App. 800, 803, 486 S.E.2d 735, 737-38 (1997) (quoting N.C. Gen. Stat. Ann. § 1A-1, Rule 58 (West 2017)); Matter of Scheib Trust , 457 N.W.2d 4, 10 (Iowa Ct. App. 1990) ; Rust v. Clark Cty. Sch. Dist. , 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987) ; Dalton v. Dalton , 412 So.2d 928, 929 (Fla. Dist. Ct. App. 1982) ("An order does not take effect until signed and filed...."); Lamb v. Superior Court In & For Maricopa Cty. , 127 Ariz. 400, 403, 621 P.2d 906, 910 (1980) ("[U]ntil the order is in writing, signed by the court and entered by the clerk of the court, it is not effective."); City of Darien v. Dublinski , 16 Ill. App. 3d 140, 144, 304 N.E.2d 769, 773 (1973) ; In re Montano's Estate , 38 N.M. 355, 33 P.2d 906, 907 (1934) ; Giroux v. Bockler , 98 Or. 398, 417, 194 P. 178, 184 (1921) ; Massachusetts Mut. Life Ins. Co. v. Taylor Implement & Vehicle Co. , 138 Tenn. 28, 195 S.W. 762, 765 (1917).

¶ 25. At least three states have held to the contrary. See Andrews v. Paramount Parks, Inc. , 48 Va. Cir. 232 (1999) ("An order is effective as of the date it is signed by the judge.); State v. Olsen , 540 N.W.2d 149, 150 (N.D. 1995) ("Absent a statute or rule to the contrary, a written order of the court is entered and effective when it is signed by the judge; filing of the order by the clerk is not a prerequisite."); Cuoio v. Koseris , 68 Idaho 483, 485, 200 P.2d 359, 360 (1948) ("A memorandum decision is not effective as an order until signed by the trial judge or entered in the minutes.") (emphasis added).

C. Mississippi's New Rule

¶ 26. Given the vast majority of cases and the logic attached to those rulings, we hold that orders are effective upon filing. Such a rule will "secure the just, speedy, and inexpensive determination of every action." M.R.C.P. 1. A party should be responsible for timely filing a motion, ensuring that the judge rules on the motion, and making certain that the resulting order is timely filed with the clerk.

¶ 27. However, we find an important distinction between ex parte orders and interlocutory orders in general. The same reasoning applied in the above-cited cases, which involved multiple parties, does not apply here. In this case, the only pertinent party to the motion and order was Hamlet. On February 13, 2015, when Hamlet filed her Motion to Extend Time to Serve Process, Graceland would not have been noticed had the order been filed because it was not yet a party to the action. Thus, the order was meaningless to anyone but the plaintiff and her counsel. A delay in docketing the order does not affect the trial court's decision to grant an extension of time to service process. Hamlet, as the only party to the action, should not be punished for not immediately filing the order. Hamlet timely obtained an extension to serve process and timely served process within that extension. Therefore, the statute of limitations remained tolled. Because Hamlet was the only party to the action, the trial judge's order granting her motion for extension of time to serve process became effective once the order had been signed and had left the trial judge's control.

¶ 28. Therefore, in cases involving ex parte motions, such as the present case, we find that the order becomes effective upon leaving the judge's control. Ex parte orders, though, are still required to be filed promptly into the record. However, in cases in which more than one party is involved and notice becomes essential, we find that an order becomes effective once it is entered officially into the record by the court clerk.

¶ 29. Of course, there are also certain other orders to which this general rule would not apply. For instance, temporary restraining orders and other emergency orders (such as domestic protection orders) are effective before filing with a clerk. See M.R.C.P. 65(b) ("[T]emporary restraining order ... shall be filed forthwith in the clerk's office and entered of record"). In addition, certain rulings of a trial judge that require immediate action, such as those under a judge's contempt powers, would not be subject to the general rule.

¶ 30. This rule in no way limits the ability of the trial judge, where otherwise allowed by law, to enter an order nunc pro tunc , make an order retroactive or have it relate back for enforcement purposes. The purpose of this rule is to effectuate notice to the parties and establish some finality as relates to the running of deadlines.

D. Scafidi

¶ 31. We see no need to overrule or distinguish Scafidi as Graceland asks this Court to do in its alternative argument. Hamlet timely filed her first motion for an extension and obtained a signed order before the statute of limitations ran in this case. While Scafidi did not involve a statute-of-limitations issue, we find that its holding applies here. Our rules and caselaw hold that a court, in its discretion, for cause shown, may enlarge the time period for service of process under Rule 4(h) prior to the expiration of the initial 120-day period. M.R.C.P. 6(b) ; Scafidi , 911 So.2d at 960-61. There is no requirement for "good cause shown" when the motion for extension is timely filed.

¶ 32. Further, we will not entertain Graceland's arguments on appeal that Hamlet failed to show cause or good cause. This court

ha[s] been consistent in holding that we need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review.

Alexander v. Daniel , 904 So.2d 172, 183 (Miss. 2005). It is clear from the record that Graceland's counsel framed the issue before the trial court as a legal question concerning the application of the statute of limitations. The argument in the motion to dismiss recognizes that good cause is not at issue under our holding in Scafidi . In addition, when asked by the trial court, Graceland's counsel responded that it would be correct to characterize the issue in the motion to dismiss as a statute-of-limitations issue. He further argued that "[t]his is an issue of statute of limitations." Also, neither party corrected the trial court when it stated that "good cause shown is not an issue." Thus, it is clear that the trial court did not rule on the issue of Hamlet's cause or good cause; as such, there is no factual finding for us to review under an abuse-of-discretion standard. See id. ; Collins v. Westbrook , 184 So.3d 922, 929 (Miss. 2016) (reviewing a trial court's good-cause determination under an abuse-of-discretion standard).

¶ 33. We see no reason to overrule or distinguish Scafidi as Graceland asks us. Scafidi remains good law today.

CONCLUSION

¶ 34. We find that, in general, interlocutory orders are effective upon entry of the order. However, because the instant case involved an ex parte order, this Court finds that the order became effective upon leaving the judge's possession. Therefore, we affirm the trial court's denial of Graceland's motion to dismiss.

¶ 35. AFFIRMED AND REMANDED.

KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BEAM, J. WALLER, C.J., RANDOLPH, P.J., AND ISHEE, J., NOT PARTICIPATING.

COLEMAN, JUSTICE, DISSENTING:

¶ 36. The majority miscasts the issue before the Court today as one of first impression. To the contrary, it has long been the law in Mississippi that, in order for orders and judgments to be effective, they must be entered or, as stated in our older cases, "appear on the minutes of the court." Evans v. State , 144 Miss. 1, 108 So. 725, 726 (1926). Accordingly, I must respectfully dissent.

¶ 37. The Evans Court wrote,

All the judgments and orders of the circuit courts can be evidenced alone by their minutes. It makes no difference how unimportant a judgment of a circuit court may be considered, it is of no validity or force whatever unless it appear upon the minutes of the court. The court can act in no other manner so far as its judgments are concerned. The principle is of universal application. There are no exceptions .... There must be a perpetual memorial of the judgments of circuit courts, not alone of their final judgments, but of all interlocutory judgments and orders affecting the rights of the parties, and that memorial is the minutes of the courts. There is no other place to go to ascertain what those judgments are.

Id. (emphasis added). "The rule in this State is that every decree is in the breast of the court until entered , and a decree has no validity until written out and signed by the chancellor." Orr v. Myers , 223 Miss. 856, 862, 79 So.2d 277, 278 (1955) (emphasis added).

¶ 38. The majority follows the law described above as long as more than one party has appeared in a lawsuit, but would except cases in which only the plaintiff has appeared. To reach its result, the majority engages in something akin to no-harm, no-foul reasoning. The majority's reasoning is flawed and fails to address other concerns. For example, defense attorneys, aware of the filing of a lawsuit against their clients, can monitor court filings to advise their clients and their insurers regarding the risks of the litigation. When the public record indicates that the time for service has passed, the attorney and potential defendant make risk assessments and strategic decisions accordingly. To allow them to be surprised by condoning behavior that keeps orders of the court secret cannot be considered fair. Today's holding allows plaintiffs in civil litigation and parties in ex parte proceedings intentionally to pocket orders to surprise other parties and the public for strategic advantage. I cannot concur in such a result. Our courts should exercise their considerable powers in the full view of the public eye - not in secret.

¶ 39. Because the law has long been that both orders and judgments must be entered to be effective, I would reverse the trial court's decision and render judgment in favor of the defendants.

BEAM, J., JOINS THIS OPINION.

      Because the issues before this Court are purely procedural in nature, it is not necessary to delve into the facts surrounding Kinard's death.

      Rule 4(h) states:
      If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.
      M.R.C.P. 4(h).

      Rule 6(b) provides that:
      [W]hen ... an act is required or allowed to be done at ... a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where failure to act was the result of excusable neglect ....
      M.R.C.P. 6(b).

      As discussed supra , Graceland would not have been notified by the clerk even if Hamlet had promptly filed the order. Further, Graceland was not prejudiced here as Hamlet sent Graceland a notice-of-intent letter under Section 15-1-36.

      It should be noted that a Rule 6(b) motion that is timely filed within the 120-day period under Rule 4(h) tolls the 120-day period until the trial court either grants or denies the motion. Rule 6(b) states: "the court for cause shown may at any time in its discretion ... order the period enlarged if request therefore is made before the expiration of the period originally proscribed." (Emphasis added.) Also, "[a] trial court has the authority and indeed a duty to maintain control of the docket and ensure the efficient disposal of court business." Venton v. Beckham , 845 So.2d 676, 684 (Miss. 2003) ; see also Moore v. Bailey , 46 So.3d 375, 380-81 (Miss. Ct. App. 2010). Within this duty, a trial court controls the dates that are available to a party. A party can file a motion within a deadline-and as long as the party does so the motion is timely, but a party cannot control the particular day on which the trial court will hear the motion. This situation is similar to the thirty-day period for an appeal not running until entry of the trial court's order disposing of outstanding post-trial motions. See M.R.A.P. 4(d) ("If any party files a timely motion ... the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding.").

      This is especially the case here, in a medical-malpractice suit, because Graceland was put on notice of the suit when Hamlet served her notice-of-intent letter on Graceland pursuant to Mississippi Code Section 15-1-36. Defendants involved in suits which require notice prior to filing the complaint are at an advantage as to notice and are aware of potential suits more than a traditional defendant. Thus, Graceland cannot claim surprise or prejudice regarding the present suit.

      We also reject Graceland's argument that Hamlet was required to show good cause once she had failed to obtain an order within the original 120-day period. We have recognized before that a party need only show cause under Rule 6(b) for an extension based on a motion that is timely filed within Rule 4(h)'s 120-day period-even where the motion is granted after the expiration of the 120-day period. See Johnson v. Thomas ex rel. Polatsidis , 982 So.2d 405, 413 (Miss. 2008) (affirming grant of extension for cause on the 123d day), overruled on other grounds by Fulgham v. Jackson , No. 2016-IA-00570-SCT, 234 So.3d 279, 283, 2017 WL 2692933, at *3 (Miss. June 22, 2017).