author: ISHEE, JUSTICE, FOR THE COURT:

text:
    Michael KANSLER and Vickie Kansler v. MISSISSIPPI DEPARTMENT OF REVENUE
    NO. 2017-CA-01295-SCT
    Supreme Court of Mississippi.
    November 29, 2018 Rehearing Denied February 28, 2019
    ATTORNEYS FOR APPELLANTS: JOHN FLOYD FLETCHER, ADAM STONE, Jackson, KAYTIE MICHELLE PICKETT
    ATTORNEYS FOR APPELLEE: JON FRANCIS CARMER, JR., BRIDGETTE TRENETTE THOMAS
    BEFORE WALLER, C.J., MAXWELL AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. Michael and Vickie Kansler moved to Mississippi from New York for Michael's job and, over the following years, exercised stock options stemming from that employment. The Kanslers took the position that the stock options' income was taxable only in Mississippi, which reduced their tax burden significantly. New York saw things differently and found a substantial portion of the income taxable by it. This liability to another state would have entitled the Kanslers to a credit on their Mississippi taxes worth more than $250,000-but by the time the New York audit was finished, our statute of limitations barred the Kanslers from amending their Mississippi returns. They now argue our statute of limitations unconstitutionally discriminates against interstate commerce.

¶ 2. Mississippi's treatment of the statute of limitations for amending tax returns is unremarkable and appears to be shared with many other states. The Kanslers' dormant Commerce Clause argument, on the other hand, is novel. And it depends on an unprecedented and erroneous attempt to apply the "internal consistency test," intended to evaluate the apportionment of taxes, to the collateral effects of a statute of limitations. We hold that the challenge is instead governed by the discrimination/ Pike balancing test employed by the United States Supreme Court in Bendix Autolite Corp. v. Midwesco Enterprises Inc. , 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988), the only United States Supreme Court case to scrutinize a statute of limitations under the dormant Commerce Clause. While Bendix and its ilk offer little guidance-Justice Scalia famously compared the Pike balancing test to trying to decide "whether a particular line is longer than a particular rock is heavy" -the Kanslers' challenge fails because our statute of limitations is facially nondiscriminatory and has only an incidental effect on interstate commerce, one that is justified by the practical difficulties of tax administration and the State's interest in finality. The Kanslers bear the burden of proving otherwise, so any uncertainty must be resolved against their challenge. We affirm the Mississippi Department of Revenue's decision to refuse the refund request.

FACTS AND PROCEDURAL HISTORY

¶ 3. This case comes up on summary judgment. The facts are not disputed, and the following facts are drawn from the facts stipulated in the chancery court.

¶ 4. Michael Kansler worked for Entergy in New York, and he received stock options as part of his compensation. The Kanslers lived in New York until they were relocated to Mississippi in May 2007. During 2008 and 2009, Michael was still employed by Entergy in Mississippi. The Kanslers timely filed their Mississippi tax returns for the 2008 and 2009 tax years and paid taxes on their worldwide income, as required by Mississippi law. Some of that income derived from Michael's stock options. The stock options had been granted over several years before the Kanslers moved to Mississippi. The options vested over multiple years, including after the Kanslers moved to Mississippi.

¶ 5. In 2012, New York began an audit of the Kanslers' taxes related to the exercise of stock options in 2008, 2009, and 2010. On December 29, 2014, New York completed the audit and assessed the Kanslers additional tax and interest. The Kanslers paid the assessment on December 31, 2014. In January 2015, the Kanslers filed amended Mississippi tax returns and requested a refund of $257,140 based on the credit allowed for income taxes paid to other states. The Mississippi Department of Revenue denied the refund request because it was outside of the three-year limitations period. The Kanslers appealed to the Department's Board of Review and then to the Mississippi Board of Tax Appeals, both of which affirmed the Department's decision. The Kanslers challenged the constitutionality of the limitations period in both appeals, but each body affirmed the Department's decision based on the text of the statute without considering its constitutionality. The Kanslers then appealed to the Chancery Court of the First Judicial District of Hinds County, arguing that the limitations period under Section 27-7-313 violates the Commerce, Due Process, and Equal Protection Clauses of the United States Constitution, and that the Department's actions were arbitrary, capricious, and beyond its statutory authority. Both parties filed motions for summary judgment. The chancellor granted the Department's motion and denied the Kanslers' motion, finding that the refund limitations period does not violate the United States Constitution. The Kanslers appeal from that judgment.

STANDARD OF REVIEW

¶ 6. This Court reviews a chancellor's grant or denial of summary judgment de novo. Miss. Dep't of Revenue v. AT & T Corp. , 202 So.3d 1207, 1213 (Miss. 2016). Summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c).

¶ 7. We also apply a de novo standard of review when deciding the constitutionality of a state statute. Commonwealth Brands, Inc. v. Morgan , 110 So.3d 752, 758 (Miss. 2013) (citing Johnson v. Sysco Food Servs. , 86 So.3d 242, 243 (Miss. 2012) ). Statutes "come before us clothed with a heavy presumption of constitutional validity." Ex rel. T.L.C. , 566 So.2d 691, 696 (Miss. 1990), overruled on other grounds by In re J.T. , 188 So. 3d 1192 (Miss. 2016) ). "The party challenging the constitutionality of a statute is burdened with carrying his case beyond all reasonable doubt before this Court has authority to hold the statute, in whole or in part, of no force or effect." Id. (citations omitted).

¶ 8. Also potentially relevant is Mississippi Code Section 27-77-7(5) (Rev. 2017), which provides in relevant part,

At trial of any action brought under this section, the chancery court shall give no deference to the decision of the Board of Tax Appeals, the Board of Review or the Department of Revenue, but shall give deference to the department's interpretation and application of the statutes as reflected in duly enacted regulations and other officially adopted publications. The chancery court shall try the case de novo and conduct a full evidentiary judicial hearing on all factual and legal issues raised by the taxpayer which address the substantive or procedural propriety of the actions of the Department of Revenue being appealed.

But this provision has not been not cited by the Department of Revenue in its brief, nor has the Department cited any "duly enacted regulations" or "other officially adopted publications" relevant to our analysis.

DISCUSSION

I. Dormant Commerce Clause

¶ 9. The Kanslers argue Mississippi's three-year statute of limitations for amending a taxpayer's return impermissibly burdens interstate commerce because it does not give taxpayers enough time to amend a Mississippi tax return after an audit by another state, which can take far longer than three years. They contend that this violates the negative or dormant aspect of the Commerce Clause of the United States Constitution because in-state taxpayers do not suffer the same difficulty.

A. The Dormant Commerce Clause

¶ 10. The Constitution gives Congress the authority to regulate interstate commerce. U.S. Const. art. I, § 8, cl. 3. But "[a]lthough the Clause is framed as a positive grant of power to Congress, [the United States Supreme Court has] consistently held [it] to contain a further, negative command, known as the dormant Commerce Clause." Maryland v. Wynne , --- U.S. ----, 135 S.Ct. 1787, 1794, 191 L.Ed.2d 813 (2015). The dormant aspect of the Commerce Clause "prohibits economic protectionism-that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." Fulton Corp. v. Faulkner , 516 U.S. 325, 330, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996). Absent congressional approval, a state may not discriminate against or impose excessive burdens upon interstate commerce. Wynne , 135 S.Ct. at 1794. "In the absence of conflicting federal legislation the States retain authority under their general police powers to regulate matters of 'legitimate local concern,' even though interstate commerce may be affected." Lewis v. BT Inv. Managers, Inc. , 447 U.S. 27, 36, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980).

¶ 11. State laws that discriminate against interstate commerce "face a virtually per se rule of invalidity." Granholm v. Heald , 544 U.S. 460, 476, 125 S.Ct. 1885, 161 L.Ed.2d 796 (2005). But when a state law "regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits"; this is the Pike balancing test. Pike v. Bruce Church, Inc. , 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). "[T]hese two principles guide the courts in adjudicating cases challenging state laws under the Commerce Clause," but they are, as the Supreme Court recently put it, "subject to exceptions and variations." South Dakota v. Wayfair, Inc. , --- U.S. ----, 138 S.Ct. 2080, 2091, 201 L.Ed.2d 403 (2018). Others have been less charitable, saying the dormant Commere Clause jurisprudence remains a "quagmire" that offers "little in the way of precise guides to the States in the exercise of their indispensable power of taxation." DIRECTV v. Utah State Tax Comm'n , 364 P.3d 1036, 1049 (Utah 2015) (quoting Nw. States Portland Cement Co. v. Minnesota , 358 U.S. 450, 458, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959) ).

B. The Mississippi Statutes at Issue

¶ 12. Mississippi taxes the worldwide income of its residents. See Miss. Code Ann. § 27-7-5 (Rev. 2017). To avoid double taxation, Mississippi offers a credit for income taxes paid to other states. See Miss. Code Ann. § 27-7-77 (Rev. 2017). This credit, however, is limited to how much Mississippi would have taxed the income. Miss. Code Ann. § 27-7-77(2)(c) (Rev. 2017). Since New York has a higher income tax rate, the Mississippi credit would have been less than the tax assessed by New York. Or, put another way, claiming the income as earned in Mississippi would have reduced the Kanslers' total tax burden-if New York had gone along with it.

¶ 13. While the facts are not fully developed in the record, the Kanslers appear to have contested their New York tax liability; they assert that their final New York liability was "substantially less" than that state originally sought. The tax returns at issue were for tax years 2008 and 2009. The New York audit was completed in late 2014. The Kanslers tried to amend their Mississippi tax returns in January 2015, but by then the statute of limitations had run.

¶ 14. Mississippi Code Section 27-7-313 (Rev. 2017) provides,

No refund shall be granted under this article or under the provisions of Article 1 of this chapter unless a claim for the refund is made within three (3) years from the date the return is due, or within three (3) years from the final day of an extension period previously granted by the commissioner pursuant to the provisions of Section 27-7-50; however, the restrictions imposed by this section do not apply to those refund requests or claims made in compliance with Section 27-7-49.

Mississippi Code Section 27-7-49 (Supp. 2008) further provided, in relevant part and at the relevant time,

(1) Returns shall be examined by the commissioner or his duly authorized agents within three (3) years from the due date or the date the return was filed, whichever is later, and no determination of a tax overpayment or deficiency shall be made by the commissioner, and no suit shall be filed with respect to income within the period covered by such return, after the expiration of said three-year period, except as hereinafter provided.
(2) When an examination of a return made under this article has been commenced, and the taxpayer notified thereof ... within the three-year examination period provided in subsection (1) of this section, the determination of the correct tax liability may be made by the commissioner after the expiration of said three-year examination period, provided that said determination shall be made with reasonable promptness and diligence.
(3) Where the reported taxable income of a taxpayer has been increased or decreased by the Internal Revenue Service, the three-year examination period provided in subsection (1) of this section shall not be applicable, insofar as the Mississippi income tax liability is affected by the specific changes made by said Internal Revenue Service. However, no additional assessment or no refund shall be made under the provisions of this article after three (3) years from the date the Internal Revenue Service disposes of the tax liability in question.
(4) The three-year examination period provided in subsection (1) of this section shall not be applicable in the case of a false or fraudulent return with intent to evade tax.
(5) A taxpayer may apply to the commissioner for revision of any return filed under this article at any time within three (3) years from the due date, or if an extension of time to file was granted, three (3) years from the date the return was filed. If the return is not filed by the time authorized by the extension, then the three (3) years begin to run from the final day of the extension period.

¶ 15. In summary, the taxpayer has three years from the due date of her return to apply for a revision. See Miss. Code Ann. § 27-7-49(5) (Supp. 2008). The other four subsections appear to extend the limitations period only for a revision at the behest of the Department of Revenue, but the Kanslers assert (and the Department does not appear to disagree) that the Department will give the taxpayer the benefit of previously unclaimed credits or reductions in tax liability if they are found during the course of its audit.

C. Complete Auto and The Kanslers' Argument

¶ 16. Before determining whether Mississippi's refund limitations period burdens interstate commerce, we must decide how to characterize what has happened to the Kanslers. The Kanslers urge us to judge the Mississippi statute of limitations under one of those "exceptions and variations" alluded to by the Supreme Court in Wayfair , the Complete Auto test. See Wayfair , 138 S.Ct. at 2091. Under the Complete Auto test, to avoid violating the dormant Commerce Clause, "a tax must: (1) be imposed on an activity with a substantial nexus with the taxing state; (2) be fairly apportioned, based on the activity within the taxing state; (3) not discriminate against interstate commerce; and (4) be fairly related to services provided by the taxing state." Commonwealth Brands, Inc. v. Morgan , 110 So.3d 752, 758 (Miss. 2013) (citing Complete Auto Transit Inc. v. Brady , 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977) ).

¶ 17. But the Complete Auto test is specifically intended for evaluating the constitutionality of taxes, not state regulations in general. See Complete Auto , 430 U.S. at 274, 97 S.Ct. 1076 (addressing "the perennial problem of the validity of a state tax ...."). In Mississippi Department of Revenue v. AT & T Corp. , 202 So.3d 1207, 1216 (2016), this Court agreed that "[t]he United States Supreme Court has applied Complete Auto to invalidate a wide range of state tax credits, deductions and exemptions," but we are not aware of any decisions applying the test to a statute of limitations, even when it is related to taxes. Nor do the Kanslers offer any such authority.

¶ 18. In Direct Marketing Association v. Brohl , 814 F.3d 1129 (10th Cir. 2016), the United States Court of Appeals for the Tenth Circuit rejected a challenge to a Colorado law that imposed notice and reporting requirements on out-of-state retailers. The reporting requirements were intended to facilitate Colorado's collection of use taxes from its own residents who were avoiding sales taxes by buying goods online from retailers without a physical presence in the state. See id. at 1133. The challenge to the law was based on Quill Corp. v. North Dakota , 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992), overruled by Wayfair , 138 S.Ct. at 2099. Quill had held that prior decisions prohibiting states from compelling out-of-state retailers to collect sales taxes were still good law under the Complete Auto test. See Quill , 504 U.S. at 311, 112 S.Ct. 1904. The Tenth Circuit ultimately concluded that the " Complete Auto [test] does not apply ... because this case involves a reporting requirement and not a tax." Brohl , 814 F.3d at 1133.

¶ 19. Similarly, in Xcaliber International Ltd., LLC v. Ieyoub , 377 F.Supp.2d 567, 569-70 (E.D. L.A. 2005), vacated on other grounds sub nom. Xcaliber International Ltd., LLC v. Foti , 442 F.3d 233 (5th Cir. 2006), the United States District Court for the Eastern District of Louisiana considered a statute requiring tobacco companies not participating in the 1998 settlement to put a small amount of money in escrow for each of their cigarettes sold in Louisiana. The manufacturers alleged this violated the dormant Commerce Clause under the Complete Auto test, but the district court disagreed:

Plaintiffs argue that their Commerce Clause claim should be judged by the standards announced in cases such as Quill Corp. v. North Dakota , 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992) and Complete Auto Transit v. Brady , 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). These cases, however, involved the "limits" the Commerce Clause placed "on the taxing powers of the States." Quill , 504 U.S. at 305, 112 S.Ct. 1904. The amended escrow statute does not impose a tax on tobacco manufacturers, rather an escrow payment which may be accessed by the state only if it obtains a judgment against or enters into settlement with the manufacturer. Because the amended escrow statute is not a tax or other "revenue-raising measure designed to line the State's coffers," the test utilized by the Quill / Complete Auto Transit line of cases does not apply. Star Scientific, Inc. v. Carter , 2001 WL 1112673, at *9 (S.D. Ind. Aug. 20, 2001) ; see also American Target Advertising, Inc. v. Giani , 199 F.3d 1241, 1254-55 (10th Cir.) (holding that because Quill and related cases "concern the levy of taxes upon out-of-state entities," they govern only the analysis of tax burdens) (emphasis in original), cert. denied , 531 U.S. 811, 121 S.Ct. 34, 148 L.Ed.2d 14 (2000) ; Ferndale Lab., Inc. v. Cavendish , 79 F.3d 488, 494 (6th Cir.1996) (holding that because "virtually every precedent relied upon by the Court in deciding Quill was concerned with attempts by states to tax interstate commerce," Quill applies only if a state attempts to tax interstate transactions).

Xcaliber , 377 F.Supp.2d at 578.

¶ 20. This Court has applied the Complete Auto test in six reported decisions, each time addressing a tax. See Miss. Dep't of Revenue v. AT & T Corp. , 202 So.3d 1207, 1216-18 (Miss. 2016) (tax exemption for certain dividends); Morgan , 110 So.3d at 758 (tax on cigarettes sold by tobacco companies not participating in settlement); Miss. State. Tax Comm'n v. Murphy Oil USA , 933 So.2d 285, 293 (Miss. 2006) (franchise tax); Thomas Truck Lease Inc. v. Lee County , 768 So.2d 870, 876 (Miss. 1999) (ad valorem tax); Weeks Dredging & Contracting, Inc. v. Miss. State Tax Comm'n , 521 So.2d 884, 889 (Miss. 1988) (Alabama sales tax); Marx v. Truck Renting and Leasing Ass'n, Inc. , 520 So.2d 1333, 1341 (Miss. 1987) (sales tax), overruled on other grounds by Morgan , 110 So.3d at 761-62.

¶ 21. Ultimately, it makes little difference whether we formally employ the Complete Auto test. Two of its prongs are not invoked in this case, one is essentially the traditional discrimination/ Pike balancing test, and the last-apportionment-is erroneously applied by the Kanslers. As noted above, under Complete Auto , "a tax must: (1) be imposed on an activity with a substantial nexus with the taxing state; (2) be fairly apportioned, based on the activity within the taxing state; (3) not discriminate against interstate commerce; and (4) be fairly related to services provided by the taxing state." Morgan , 110 So.3d 752, 758 (Miss. 2013).

¶ 22. The Kanslers do not contest that our statute passes under prongs one (substantial nexus) and four (fairly related to services provided by the taxing state). Notably these two prongs left unchallenged have actually been applied to analyze collateral burdens similar to those alleged in today's case. In South Dakota v. Wayfair Inc. , --- U.S. ----, 138 S.Ct. 2080, 2091, 201 L.Ed.2d 403 (2018), and Quill Corp. v. North Dakota , 504 U.S. 298, 313, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992) (overruled by Wayfair ), the United States Supreme Court considered whether requiring collection of sales taxes by mail-order retailers placed an undue burden on interstate commerce. The Supreme Court weighed whether a physical presence in the taxing state was needed to justify the burden on the retailers of complying with that state's tax schemes, or whether mail-order retailers would be unduly burdened by having to comply with fifty states worth of sales tax schemes. See Wayfair , 138 S.Ct. at 2093. A major concern was compliance costs, which must include some cost associated with inevitable errors in administering the tax. See id. Presumably out-of-state retailers would commit more errors-errors that cost them money-than in-state retailers. This is essentially what the Kanslers complain, that our statute of limitations exposes people who engage in interstate commerce to a greater risk of suffering for tax mistakes. But instead of holding that any degree of de facto discrimination against interstate commerce invalidated the tax (like the Kanslers ask us to do), the United States Supreme Court employed a balancing test. It observed first that "interstate commerce may be required to pay its fair share of state taxes." Wayfair , 138 S.Ct. at 2091 (quoting D.H. Holmes Co. v. McNamara , 486 U.S. 24, 31, 108 S.Ct. 1619, 100 L.Ed.2d 21 (1988) ). The relevant question was whether the challenged law created an undue burden on interstate commerce. See Wayfair , 138 S.Ct. at 2091 (emphasis added). This is similar to, if not essentially the same as, the Pike balancing test. See id. ; see also Pike v. Bruce Church Inc. , 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).

¶ 23. The second Complete Auto prong is apportionment, which requires considering the internal consistency of the statute, although the internal consistency test has also sometimes been said to apply to the final Complete Auto prong, discrimination, as well.

¶ 24. As this Court recently explained in AT & T ,

"Internal consistency is preserved when the imposition of a tax identical to the one in question by every other State would add no burden to interstate commerce that intrastate commerce would not also bear." [ Okla. Tax Comm'n v. Jefferson Lines , 514 U.S. 175, 185, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995) ]. The test "simply looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage as compared with intrastate commerce." Id. "A failure of internal consistency shows as a matter of law that a State is attempting to take more than its fair share of taxes from the interstate transaction, since allowing such tax in one State would place interstate commerce at the mercy of those remaining States that might impose an identical tax." Id.

AT & T , 202 So.3d at 1219. The internal consistency test

allows courts to distinguish between (1) tax schemes that inherently discriminate against interstate commerce without regard to the tax policies of other States, and (2) tax schemes that create disparate incentives to engage in interstate commerce (and sometimes result in double taxation) only as a result of the interaction of two different but nondiscriminatory and internally consistent schemes.

Id. (quoting Maryland v. Wynne , --- U.S. ----, 135 S.Ct. 1787, 1802, 191 L.Ed.2d 813 (2015) ).

¶ 25. The Kanslers contend that our statute fails the internal consistency test because taxpayers with income from other states will suffer more from our statute of limitations than taxpayers whose income is derived solely from Mississippi. The Kanslers apparently prefer the internal consistency test because, unlike the other Complete Auto prongs or the traditional discrimination/balancing test, it makes no allowance for balancing the state's interest against the impact on interstate commerce.

¶ 26. The problem with this argument is that the internal consistency test employs a hard-line rule rather than a balancing test because of the limited question it is supposed to address-whether double taxation results from the intrinsic unfairness of a state's tax structure (generally disallowed) or the interaction with other states' tax structures (allowed). The reviewing court is supposed to "look[ ] to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage." Jefferson Lines , 514 U.S. at 185, 115 S.Ct. 1331. The test is theoretical; it "asks nothing about the degree of economic reality reflected by the tax." Id.

¶ 27. The Kanslers have cited no instance where a Court found a tax scheme failed the internal consistency test because of practical or collateral issues like a statute of limitations, nor are we aware of any. As noted above and below, compliance difficulties have been addressed under other Complete Auto prongs. If the internal consistency test were to be applied as the Kanslers argue, no tax on interstate commerce-which is necessarily more complicated than purely intrastate taxes and thus inevitably subject to more errors and associated costs-could survive the test.

D. The Discrimination/Balancing Test

¶ 28. The remaining Complete Auto prong is that the tax does not discriminate against interstate commerce. The United States Supreme Court has also articulated this question as the preliminary step in a traditional, non- Complete Auto -specific dormant Commerce Clause analysis. See Bendix Autolite Corp. v. Midwesco Enterprises Inc. , 486 U.S. 888, 891, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988). In Bendix , the Supreme Court addressed a challenge to an Ohio statute that tolled the limitations period when a defendant was out of state. See id. at 899, 108 S.Ct. 2218. For foreign corporations, the effect of this statute was to require the defendant to "appoint an agent for service of process, which operates as consent to the general jurisdiction of the Ohio courts." Id. The Supreme Court held that it "may" have found the statute facially discriminatory against interstate commerce, but it would proceed to the Pike balancing test "to demonstrate that its legitimate sphere of regulation is not much advanced by the statute while interstate commerce is subject to substantial restraints." Id. at 891, 108 S.Ct. 2218. The Court observed that "statute of limitations defenses are not a fundamental right," but they are "an integral part of the legal system," and a state "may not withdraw such defenses on conditions repugnant to the Commerce Clause." Id. at 893, 108 S.Ct. 2218 (citations omitted). "The State may not condition the exercise of the defense on the waiver or relinquishment of rights that the foreign corporation would otherwise retain." Id. The state could not justify the rule because the defendant in that case was subject to service of process under Ohio's long-arm statute, and, thus, the tolling provision failed under the Pike balancing test. See id. at 894, 108 S.Ct. 2218. Bendix is not on all fours with today's case because the challenged statute there categorically affected out-of-state businesses, but it is instructive as to applying the discrimination/balancing test approach to a challenge to a statute of limitations.

¶ 29. If we apply the discrimination/balancing test, the first step is to ask whether the law at issue discriminates against interstate commerce; such laws "face a virtually per se rule of invalidity." Granholm v. Heald , 544 U.S. 460, 476, 125 S.Ct. 1885, 161 L.Ed.2d 796 (2005). Discriminatory in this context is usually equated to "economic protectionism" favoring in-state interests. See Bacchus Imports, Ltd. v. Dias , 468 U.S. 263, 270, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984). If the state law does not discriminate against interstate commerce, if it instead "regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church Inc. , 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).

¶ 30. Crucially, the Kanslers bear the burden of proof to show both that the statute discriminates against interstate commerce and, if it does not, to show that the burden imposed on commerce is clearly excessive in relation to the putative local benefits. See Hughes v. Oklahoma , 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979) (challengers bear burden of proving discrimination against interstate commerce); Nat'l Ass'n of Optometrists & Opticians LensCrafters, Inc. v. Brown , 567 F.3d 521, 528 (9th Cir. 2009) (challengers bear burden of proving clearly excessive burden on interstate commerce).

¶ 31. Our statute of limitations for tax returns is not discriminatory on its face. The statute and its various tolling provisions make no distinction between in-state and out-of-state taxpayers or between interstate and intrastate commerce. See Miss. Code Ann. § 27-7-49 (Supp. 2008) ; Miss. Code Ann. § 27-7-313 (Rev. 2017).

¶ 32. The statute of limitations might also be found to be discriminatory if it had a discriminatory/protectionist purpose or effect. See Bacchus Imports , 468 U.S. at 270, 104 S.Ct. 3049. As to a discriminatory or protectionist purpose (this would usually be of the legislature in passing the law), the Kanslers have produced no evidence on that point, and since they bear the burden of proof, the analysis ends there. For a discriminatory or protectionist effect, the Kanslers rely on the internal consistency test, which, as we have already explained above, they misapply.

¶ 33. Since our statute of limitations is not obviously discriminatory against interstate commerce, we turn to the Pike balancing test; we ask whether the statute "regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental." Pike , 397 U.S. at 142, 90 S.Ct. 844. If so, "it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Id. This is the test Justice Scalia compared to trying to decide "whether a particular line is longer than a particular rock is heavy." See Bendix , 486 U.S. at 897, 108 S.Ct. 2218 (Scalia, J., concurring).

¶ 34. As discussed above, our statute of limitations does not discriminate against interstate commerce on its face. The Kanslers' assertion that it burdens interstate commerce, to an extent, has some merit. We acknowledge that it may be difficult for a taxpayer to determine how to apportion his income when it is arguably earned in multiple states. But it is inevitable that it will be more difficult to comply with taxes on interstate commerce. And it has not been developed in the record how severe or pervasive this particular issue is, nor is there any real evidence in the record regarding the countervailing interests of finality and ease of administration that are advanced by the Department of Revenue. Thus, this issue comes down to the burden of proof, which is on the Kanslers. See Brown , 567 F.3d at 528. They have failed to show that our statute of limitations' burden on interstate commerce is "clearly excessive in relation to the putative local benefits." See Pike , 397 U.S. at 142, 90 S.Ct. 844.

¶ 35. It is also worth noting Nissan Motor Corp. v. Commissioner of Revenue , 407 Mass. 153, 552 N.E.2d 84, 88-89 (1990), the only case of which we are aware that addressed a constitutional challenge similar to the one made here. The Massachusetts Supreme Court denied the challenge, holding,

If the corporate excise tax formula ... is constitutionally valid under the commerce clause, as Nissan does not dispute, then the mere fact that an error may occur in the Commonwealth's computation of it, and that the taxpayer then has the time set out in [the statute] to seek an abatement does not render the scheme unconstitutional. The purpose of the commerce clause is to protect interstate commerce from discrimination or regulation by the States or from action, such as a tax, which imposes a direct and immediate burden on such commerce. Commissioner of Corps. & Taxation v. Ford Motor Co. , [308 Mass. 558, 33 N.E.2d 318 (Mass. 1941) ]. Both the ... tax itself and the abatement remedy apply to domestic and foreign corporations engaged in interstate commerce alike. Nissan's assertion that local businesses do not face the "risk" interstate businesses do, of paying tax twice to two different States by the Commonwealth's erroneous application of [the tax], ignores the fact that a taxpayer like Nissan is charged with knowledge of the tax laws wherever it does business, see Atkins v. Parker , 472 U.S. 115, 130, 105 S.Ct. 2520, 2530, 86 L.Ed.2d 81 (1985) ; Wilkinson v. New England Tel. & Tel. Co. , 327 Mass. 132, 97 N.E.2d 413 (1951), and has several years, under [the statute of limitations] to seek the remedy of abatement if a tax is incorrectly assessed. Local businesses, too, are in peril of erroneous tax assessment, and are limited to the [same] deadlines, which Nissan has not challenged as unreasonable.
The fact that Nissan stands today in the unfortunate position of having paid tax on the same income twice to two different States is not the fault of either Massachusetts or New York. Engaging in "interstate commerce" is no talisman freeing Nissan from meeting reasonable deadlines set by the Legislature for bringing a complaint against assessment of a corporate excise tax in Massachusetts. George S. Carrington Co. v. State Tax Comm'n , [375 Mass. 549, 377 N.E.2d 950 (Mass. 1978) ]. The commerce clause does not grant immunity to foreign corporations from such State taxation that does not directly oppress interstate commerce. Commissioner of Corps. & Taxation v. Ford Motor Co. , supra 308 Mass. at 570, 33 N.E.2d 318.

Nissan Motor Corp. , 552 N.E.2d at 88-89. The Massachusetts court further noted the value of statutes of limitation for taxes,

It should be noted that in the tax context, statutory time limits have special significance. A tax system without a final point at which accounts are declared settled-under which both taxpayer and government stand forever on guard, receipts and other facts proving valuation and conduct of business, forever at the ready-"would be all but intolerable, at least Congress has regarded it as ill-advised," the United States Supreme Court has observed. Rothensies v. Electric Storage Battery Co. , 329 U.S. 296, 301, 67 S.Ct. 271, 273, 91 L.Ed. 296 (1946). "[A] statute of limitation is an almost indispensable element of fairness as well as of practical administration of an income tax policy." Id.

Nissan Motor Corp. , 552 N.E.2d at 89. The court concluded by noting that "it is not the task of the courts to 'adjust' the time limits of tax statutes where their application would appear unjust or inequitable" because "[s]tatutes of limitation are by definition arbitrary and their operation does not discriminate between the just and the unjust claim." Id. at 89-90 (citations omitted).

¶ 36. Finally, we echo the Utah Supreme Court's caution against novel Commerce Clause arguments. That court explained,

Many decades ago the Supreme Court described its dormant Commerce Clause caselaw as a "quagmire." Nw. States Portland Cement Co. v. Minnesota , 358 U.S. 450, 458, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959). Not much has changed in the interim, except perhaps to add more "room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation." Id. at 457, 79 S.Ct. 357. Yet we must of course decide the cases that come before us, mindful of our role as a lower court to follow controlling precedent from the U.S. Supreme Court.
In so doing, we are reluctant to extend dormant Commerce Clause precedent in new directions not yet endorsed by that court. The high court's precedents in this area seem rooted more in "case-by-case analysis" than in any clear, overarching theory. See W. Lynn Creamery, Inc. v. Healy , 512 U.S. 186, 201, 114 S.Ct. 2205, 129 L.Ed.2d 157 (1994). In a field like this one, it is more difficult than usual for a lower court to anticipate expansions of the law into new territory, as any decision to do so seems more like common-law decision-making than constitutional interpretation. The principle of dormant commerce, after all, is not rooted in a clause, but in a negative implication of one; so there is a dearth of any textual or historical foundation for a court to look to.
Our hesitance to extend the law of dormant commerce is reinforced by a practical problem: The extension advocated [here] would open a can of worms.

DIRECTV v. Utah State Tax Comm'n , 364 P.3d 1036, 1049 (Utah 2015).

E. Conclusion

¶ 37. In summary, we reject the Kanslers' novel attempt to apply the internal consistency test to a statute of limitations. Instead, we analyze the challenge under the traditional discrimination/ Pike balancing test, and we find that the discrimination alleged by the Kanslers is "incidental" to Mississippi's otherwise nondiscriminatory statute of limitations. It therefore must "be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike , 397 U.S. at 142, 90 S.Ct. 844. We cannot say that is the case based on the record before us.

II. Due Process

¶ 38. Finally, the Kanslers contend the three-year limitations period for filing amended returns violates their due process rights. This second issue receives only cursory treatment in their brief; all told, it cites a single case and occupies less than a single full page of argument. The Kanslers cite Marx v. Broom , 632 So.2d 1315, 1320 (Miss. 1994), where this Court held that a statute which "stripp[ed] ... federal retirees of the right to file for a refund [for an illegally collected tax] ... without providing them any means of protecting those rights ... violated [their] Fourteenth Amendment right to due process."

¶ 39. Marx is inapposite, first, because the tax here was not illegally collected by the State; it was voluntarily paid by the Kanslers. Nor does the statute of limitations here categorically deny the Kanslers' eligibility for the tax credit; they could have asked for it in their original tax return, and after that they had three years to amend their returns. It may not have been as long as the Kanslers would have liked, but the statute of limitations did not violate their right to due process under Marx .

¶ 40. It is presumed that the trial court's judgment is correct, and the Kanslers, as the appellants, are required to show otherwise. See Birkhead v. State , 57 So.3d 1223, 1231 (Miss. 2011). This Court is under no obligation to consider this issue beyond the arguments presented, and we decline to do so.

CONCLUSION

¶ 41. We affirm the chancery court's grant of summary judgment to the Mississippi Department of Revenue.

¶ 42. AFFIRMED.

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

      The Kanslers point out in their brief that at least two states have statutes permitting amendment on the taxpayer's initiative in response to a sister state's audit-Massachusetts and Oregon. The statutes of our neighboring states appear to be consistent with ours and lack any obvious exception for refunds sought as a result of sister-state audits. See Ala. Code § 40-2A-7(c)(2)(a) (2018) (petition for refund must be filed "within ... three years from the date that the return was filed, or ... two years from the date of payment of the tax"); Ark. Code Ann. § 26-18-306(i)(1)(a) (2018) (tax refund claim "shall be filed by the taxpayer within three (3) years from the time the return was filed or two (2) years from the time the tax was paid, whichever of the periods expires later"); La. Stat. Ann. § 47:1623(A) (2015) (taxpayer must seek refund either three years from December 31 the tax became due or within a year the tax was paid); Tenn. Code Ann. § 67-1-1802(a)(1)(A) (2011) (tax refund claim must be filed within "three (3) years from December 31 of the year in which the payment was made").

      Pike v. Bruce Church Inc. , 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).

      See Bendix , 486 U.S. at 897, 108 S.Ct. 2218 (Scalia, J., concurring).

      Miss. Code Ann. § 27-7-77 (Rev. 2017).

      Miss. Code Ann. § 27-7-313 (Rev. 2017).

      Section 27-7-49 was amended in 2013 to limit the time for a Mississippi audit to one year after the original three-year examination period. See 2013 Miss. Laws ch. 470 (H.B. 892), § 1, eff. Jan. 1 2013. It does not appear that this affects the issues at hand.

      See Armco Inc. v. Hardesty , 467 U.S. 638, 644, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984). External consistency is also potentially an issue under the apportionment prong, but it is not contested by the Kanslers. "External consistency looks ... to the economic justification for the State's claim upon the value taxed, to discover whether a State's tax reaches beyond that portion of value that is fairly attributable to economic activity within the taxing State." AT & T , 202 So.3d at 1219 (quoting Okla. Tax Comm'n v. Jefferson Lines , 514 U.S. 175, 185, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995) ).


source: Caselaw Access Project

author: COLEMAN, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    T. Mark SLEDGE v. GRENFELL SLEDGE AND STEVENS, PLLC d/b/a Grenfell & Stevens, PLLC, James B. Grenfell and John Hunter Stevens, Individually
    NO. 2017-CA-00978-SCT
    Supreme Court of Mississippi.
    December 13, 2018 Rehearing Denied February 28, 2019
    ATTORNEYS FOR APPELLANT: T. JACKSON LYONSMARC E. BRAND, Jackson
    ATTORNEY FOR APPELLEES: STEVEN H. FUNDERBURG, Jackson
    BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. Upon the withdrawal of T. Mark Sledge from the law firm Grenfell Sledge and Stevens, PLLC, an issue arose regarding the fee distribution for several of the firm's and Sledge's cases, more specifically, the interpretation of the firm's partnership agreements and related documents. Sledge filed suit against his former firm and its individual members. Following a hearing, the Hinds County Chancery Court granted the motion for summary judgment filed by Grenfell Sledge and Stevens, PLLC, and its individual members and also a declaratory judgment in their favor. Sledge challenges the chancery court's rulings; however, we are unpersuaded by his arguments on appeal and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 3, 2014, James Grenfell, T. Mark Sledge, and John H. Stevens executed a "Supplement to Partnership Agreement For Grenfell, Sledge & Stevens" (Supplement Agreement) to address the division of fees in general and, more specifically, the division of fees and firm property in the event of death, disability, retirement, withdrawal of firm members, and/or dissolution of the firm. The Supplement Agreement became effective on January 1, 2014, although it was not executed until April 3, 2014.

¶ 3. According to the Supplement Agreement's section providing for the division of fees, Grenfell Sledge and Stevens, PLLC, agreed that,

Beginning January 1, 2014, cases signed up after that date, not related to joint firm advertisement, the said partner that obtained case or fee generated therefrom will be entitled to fifty percent ... of the fee as compensation from the case, from the total fee to the firm, with the remaining fifty percent ... to be divided per the prior partnership agreement [or one-third] each after the payment of overhead and expenses. We recognize that on these individual cases the partner who has the case is responsible for fifty percent ... of the case specific expenses until settlement. The remaining fifty percent ... expenses will be paid from the general partnership fund.... The Agreement set forth above will take place in the year 2014 and in the year 2015 the partner obtaining the case or generating the fee will be entitled to sixty percent ... of the fee and be responsible for sixty percent ... of the expenses on each case under the same terms as set forth above. In 2016, the generating partner's percentage will increase to seventy percent ... of the fees and expenses as set forth above. In 2017, the generating partner's percentage will increase to eighty percent ... as set forth above. In 2018, the generating partner's percentage will increase to ninety percent ... as set forth above. In 2019 and in subsequent years, the generating partner will be entitled to one hundred percent ... of the fees they generated and will be responsible for one hundred percent ... of the expenses on each case.

Additionally, each member was required to pay one-third of the expenses for operation of the common office-operation expenses.

¶ 4. The Supplement Agreement also contained a provision for how fees would be handled in the event of the death, disability, retirement, or withdrawal of a member. According to the provision,

Should a member of this partnership retire, withdraw, die or become permanently unable to practice law, fees from cases that he leaves with the firm will be handled by the remaining partner(s) and he or his estate or representative will receive one-half ... of any fees from cases resolved in the first six ... months following his departure or one-third ... of the fees generated from cases remaining with the firm thereafter. Said ... withdrawn ... partner will receive compensation only on his cases or on cases obtained through advertising and referred to other law firms as addressed below....
Cases that were advertised for and referred to other attorneys ... will continue to be divided one-third ..., one-third ..., one-third ..., whenever resolved, unless the referred case results in substantial work for the remaining partner(s).... Where advertisement is ongoing at the time of ... withdrawal, the departing partner will be entitled to fees from, and only from, cases that are signed up prior to his ... withdrawal.
Fees from cases obtain[ed] through joint firm advertisement ... will continue to be divided equally between the partners....

Last, but also important, the Supplement Agreement stated, "Any dispute or decision related to this agreement or partnership shall be settled by a majority vote of the partners."

¶ 5. Then, on April 30, 2014, Grenfell, Sledge, and Stevens amended the Supplement Agreement because it "did not address each partner[']s case inventory of individual existing cases in the office before January 2014[.]" The Amended Supplement Agreement explained, "From this day forward each partner will receive [fifty] percent of the fees brought into the firm of any case considered an individual case that was signed up before [January] 2014. The remaining [fifty] percent will be divided [twenty-five] percent to each of the other [two] partners."

¶ 6. The group operated as such until Sledge provided notice to the others that he was withdrawing from the firm effective August 4, 2015. According to Sledge, he was "forced" to withdraw from the firm "[d]ue to the intentional actions of members Grenfell and Stevens, including harassment, false accusations, breach of good faith and fair dealings and threats of litigation directed toward Sledge[.]"

¶ 7. Following an unsuccessful mediation attempt on August 21, 2015, Grenfell and Stevens, as the remaining members of the firm, executed a "Joint Resolution of Grenfell, Sledge & Stevens, PLLC" (Joint Resolution), addressing Sledge's withdrawal from the firm. According to the Joint Resolution, "Sledge has ... taken the position that he had withdrawn from the Firm, that he is taking all of his caseload with him and that the Firm is not entitled to fees from these cases, regardless of firm resources used on said cases." However, "[t]he Firm's position is that it was never the intent of the parties to allow a partner to withdraw from the Firm and take all of his cases with him, without owing fees to the Firm, and that the Supplement Agreement is clear." The Joint Resolution referred back to the Supplement Agreement's language that any dispute related to the Supplement Agreement is to be settled by a majority vote of the members. Then, the Joint Resolution contained the following language:

[T]he majority of the partners/members hereby resolve the dispute as follows:
As discussed and promoted by all three ... members in mediation, we will agree to allow Mark Sledge to retain 100% of any fees on all cases in his caseload as of August 4, 2015, subject to reimbursement of any expenses incurred by the Firm before August 4, 2015, to the Firm and excepting specific cases as follows: 1. the O'Quinn case, 2) the Firm BP case and 3) the Burkes Case ....
As a compromise and what the majority partners believe to be a reasonable resolution to the dispute each individual attorney will keep any fees generated from his caseload after August 4, 2015, and any fees from the three ... disputed cases (O'Quinn, Firm BP and Burkes) will be divided equally (with James Grenfell, Mark Sledge and John Stevens each receiving 1/3) upon resolution.

Lastly, the Joint Resolution provided,

The majority of the members acknowledge and agree that the offered compromise is made in an attempt to resolve this matter .... However, if the terms of this proposal are not accepted, then the Firm and Grenfell and Stevens, individually, will rely on the terms of the Partnership Agreement as written and as voted on by the majority of the partners, and enforce this Agreement and Resolution as necessary.

Sledge did not agree with or sign the Joint Resolution.

¶ 8. Sledge sued the firm and its remaining members, Grenfell and Stevens. In his complaint, Sledge sought a declaratory judgment "to declare the rights, duties, obligations and legal status of the party under the [firm's operating] agreements ... and to declare Sledge's entitlement to the assets retained by the [firm] which were legally owed to him." Moreover, Sledge requested an accounting of fees from the cases existing at the time of his withdrawal from the firm, an accounting of all the trust funds held by the firm at the time of his withdrawal, an accounting of all expenses incurred on cases existing at the time of his withdrawal, and an accounting "for all sums due pursuant to the partnership [a]greement ... that are being unlawfully held by the Defendants." Sledge also requested equitable and injunctive relief, more specifically, "a money [j]udgment for draws not paid and Sledge's share of the proceeds from the aforesaid cases settled before August 4, 2015 but paid after said date." Sledge requested that the trial court "order and enjoin" the firm to list office property at a "reasonable selling price" as opposed to the 12.5 percent above appraisal that was the current list price at that time. Last, Sledge claimed that the "Defendants have ... breached the terms of the [firm's] agreements by withholding moneys belonging to Sledge[, entitling him] to a judgment for such fees due him under the [firm a]greements."

¶ 9. Both parties presented motions for summary judgment to the trial court, and both parties agreed that the case was ripe for resolution through a declaratory judgment. The trial court found in favor of the firm and granted the firm's motion for summary judgment as to Sledge's request for an accounting, for equitable and injunctive relief, and for breach of contract. According to the trial court's declaratory judgment, the parties incorporated a dispute-resolution provision into the Supplement Agreement by using the language that said any dispute or decision related to the agreement or partnership "shall be settled by a majority vote of the partners." Therefore, the trial court rejected Sledge's position that the Joint Resolution was a settlement offer and concluded that Sledge was bound by the Joint Resolution that was executed by Grenfell and Stevens consistent with the dispute-resolution provision outlined in the Supplement Agreement. The trial court found "that the joint resolution allow[ed Sledge] to retain [one hundred percent] of fees on cases contained in plaintiff's individual caseload as of August 4, 2015, subject to reimbursement of any expenses incurred by [the firm] incurred before August 4, 2015 and excepting the specific cases of (1) O'Quinn ; (2) the BP claim of Grenfell, Sledge and Stevens, PLLC; and (3) Burkes [.]" Further, "any fees from the three cases identified and discussed in the joint resolution ... will be divided equally between James Grenfell, Mark Sledge and John Stevens." Any fees from cases that were advertised for prior to Sledge's withdrawal would also be divided equally among the men, because such an arrangement "is fair, equitable and required by the contract and the [Joint Resolution.]"

¶ 10. Sledge filed a motion for reconsideration or, in the alternative, clarification. The trial court was unpersuaded by Sledge's arguments and entered its order and final judgment on June 19, 2017, reaffirming its previous findings and holdings. Additionally, because the firm had an outstanding counterclaim that was not decided, the trial court entered a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b), primarily based on the firm's position that its counterclaim should be stayed pending appeal because, according to the firm, the counterclaim had been filed "out of an abundance of caution and to protect [the firm's] rights should dispositive motions be denied and this ligation continue."

¶ 11. Sledge did perfect his appeal. On appeal, Sledge raises the following issues:

I. Did the chancellor err as a matter of law in dismissing Sledge's original complaint for an accounting of the various cases, expenses, and income generated by the three members of the firm in accord with its operating agreement?
II. Did the chancellor err as a matter of law by failing to apply basic contract law to the express terms of the parties' operating agreement governing their limited liability company?
III. Having rendered judgment denying Sledge's claims, did the chancellor err as a matter of law in failing to apply the express terms of Mississippi's Limited Liability Company Act to the operating agreement?

STANDARD OF REVIEW

¶ 12. The Court reviews a trial court's decision to grant or deny summary judgment using the de novo standard.

In re Guardianship of Duckett , 991 So.2d 1165, 1173 (¶ 15) (Miss. 2008). Similarly, "while the decision to grant [declaratory judgment] relief is discretionary, the judgment's conclusions of law are reviewed de novo on appeal." Tellus Operating Grp., LLC v. Texas Petroleum Inv. Co. , 105 So.3d 274, 282-83 (¶ 31) (Miss. 2012).

ANALYSIS

I. Original Complaint

¶ 13. After Sledge filed his original complaint, the firm filed a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 12(b)(6) for failure to state a claim. The trial court granted the firm's motion and dismissed Sledge's complaint without prejudice. Further, the trial court, pursuant to " Rule 12(b)(6) and [Mississippi Rule of Civil Procedure] 15(a), [found] that 'justice so requires' that leave to amend shall be, and is hereby granted to Plaintiff to file an Amended Complaint within thirty days from the date of entry of this Order ." (Emphasis in original.) Sledge did file an amended complaint, which the parties litigated and is now the subject of the present appeal. However, in his first issue on appeal, Sledge argues that the trial court erred in dismissing his original complaint that had contained a request for an accounting when all of the elements to grant the requested accounting had been present. Sledge specifically notes in his reply brief that his issue is with the dismissal of the original complaint. "[N]one of what Grenfell says has anything to do with whether the original complaint was correctly dismissed.... Sledge believes the original complaint should be reinstated by reversing the chancellor's order."

¶ 14. The instant issue has not been squarely presented to the Court in the past; however, we hold that the trial court's dismissal of Sledge's original complaint is not subject to review on appeal. First, Sledge filed an amended complaint that contained an identical request for an accounting and proceeded to litigate fully the amended complaint. He never attempted to file a Mississippi Rule of Civil Procedure 60(b) motion, an interlocutory appeal, or a direct appeal from the dismissal. Once the trial court entered the order dismissing the complaint with leave to amend, Sledge simply acquiesced and filed an amended complaint.

¶ 15. More importantly, in King v. Dogan , 31 F.3d 344, 346 (5th Cir. 1994) (per curiam), the United States Court of Appeals for the Fifth Circuit explained that "[a]n amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading." Further, Wright and Miller supports the Fifth Circuit's position: "[a] pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case ...." 6 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1476 (3d ed. 2018). Thus, Sledge's filing of the amended complaint, which contains no adoption or incorporation of the original complaint, superseded his original complaint and rendered his original complaint of no effect.

¶ 16. Since Sledge filed an amended complaint and since his original complaint was superseded by his amended complaint, the issue is moot because nothing exists for the Court to reinstate should the trial court have erroneously dismissed the complaint. "Cases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot." Fails v. Jefferson Davis Cty. Pub. Sch. Bd. , 95 So.3d 1223, 1225 (¶ 13) (Miss. 2012).

II. The Firm's Agreements

¶ 17. As one of the attorneys stated at the hearing, "It is rare that parties that have a contract dispute agree that it is a valid and enforceable, unambiguous document.... It is a little unusual that you have got lawyers on both sides reading the same language and coming up to polar opposites of the effect of it." The dispute-resolution provision is one sentence: "Any dispute or decision related to this agreement or partnership shall be settled by a majority vote of the partners." Sledge argues that the dispute-resolution provision is inapplicable because he was no longer a partner or member of the firm, so he is not subject to any decision made following his withdrawal, such as the Joint Resolution. Quite opposite is the firm's position that Sledge remains subject to the dispute-resolution provision, because the dispute is related to the Supplement Agreement's withdrawal-of a-member provision. For the reasons below, we agree with the trial court's adherence to the firm's position.

¶ 18. First, Sledge argues that the trial court erred by failing to apply contract law and the Revised Mississippi Limited Liability Company Act. Primarily, Sledge takes issue with the trial court's reliance on the dispute-resolution provision of the Supplement Agreement as the basis for the finding that the Joint Resolution applied to Sledge after his withdrawal.

¶ 19. As part of the Revised Mississippi Limited Liability Company Act, Mississippi Code Section 79-29-303 (Rev. 2011) provides,

A member may withdraw from a limited liability company ... upon the written consent of all the members.... Except as otherwise provided by the ... written operating agreement, a member who has withdrawn from or been expelled from a limited liability company ceases to be a member of the limited liability company and ceases to have any governance rights.

Additionally, in Mississippi Code Section 79-29-105(bb) (Rev. 2011), the Legislature defined "withdraw" or "withdrawal" as "any voluntary act by which, pursuant to the ... written operating agreement, a member ceases to be a member of the limited liability company and ceases to have any governance rights." The Legislature defined "governance rights" as

all of a member's rights as a member in the limited liability company other than financial rights ... including without limitation: (i) the rights to participate in the management of the limited liability company; ... (iii) the right to vote for or consent to matters requiring the vote of or consent of the members, as specified in this chapter or in the certificate of formation or operating agreement[.]

Miss. Code Ann. § 79-29-105(k) (Rev. 2011).

¶ 20. Sledge's argument is that upon his withdrawal from the firm, he was "legally incapable of participating in any decisions relating to the Firm" at the time the Joint Resolution was signed; likewise, he was not bound by any decision made by the firm after his withdrawal due to his lack of governance rights pursuant to the above statutes. According to Sledge, the dispute-resolution provision, which states that "[a]ny dispute or decision related to this agreement or partnership shall be settled by a majority vote of the partners" unambiguously "contemplates that at the time an issue is resolved or a decision made, only members of the Firm[, of which a withdrawn member is not,] vote."

¶ 21. On the other hand, the firm argues that the trial court's decision was correct because, under contract law and the Revised Mississippi Limited Liability Company Act, the Supplement Agreement's dispute-resolution provision still applies to the instant case. First, the firm cites the portions of the Revised Mississippi Limited Liability Company Act allowing companies to provide exceptions to the statutes through the operating agreements. As quoted above, Section 79-29-303 provides, "Except as otherwise provided by the ... written operating agreement, a member who has withdrawn from or been expelled from a limited liability company ceases to be a member of the limited liability company and ceases to have any governance rights." The firm contends that the dispute-resolution provision in the Supplement Agreement is one such exception.

¶ 22. In regard to the Revised Mississippi Liability Company Act arguments, we are persuaded by the firm's argument and the reasoning of the trial court. During the hearing on Sledge's motion for reconsideration or clarification, the trial court explained that it believed Section 79-29-303 was "somewhat subsumed" by the dispute-resolution provision,

which the [trial c]ourt has previously ruled to be binding and enforceable and specifically with regard to the fact that the fee division remains in dispute. The [trial c]ourt reads the statute [ ( Section 79-29-303 ) ] to hold that the parties can make exceptions either in the certificate of formation or in their operating agreement, and the [trial c]ourt has previously found that this, essentially, is what has occurred....

Although Sledge's withdrawal from the firm did sever his governance rights pursuant to Section 79-29-303, Sledge continued to have governance rights as outlined in and permitted by the dispute-resolution provision, which include his participation in a majority vote on "any dispute or decision related to this agreement." The instant scenario falls squarely within Section 79-29-303 as an exception, and the dispute-resolution provision is enforceable against Sledge. Because Sledge is subject to the dispute-resolution provision, the resulting Joint Resolution is also binding.

¶ 23. Sledge's argument under contract law is similar. He argues that the dispute-resolution provision does not apply to disputes between members and non-members, which he was upon his withdrawal. He relies on cases involving the application and enforcement of an arbitration provision in a contract for a two-step analysis used "in reviewing claims relating to contractual dispute resolution devices." The first step is "whether there is a valid arbitration agreement[ ]" or as Sledge reframes it, "does an alternative dispute resolution provision exist in the agreement[?]" Sanderson Farms, Inc. v. Gatlin , 848 So.2d 828, 834 (¶ 15) (Miss. 2003). The second is "whether the parties' dispute is within the scope of the arbitration agreement[,]" or as reframed by Sledge, "are there contract law principles external to the language of the dispute provision that would vitiate the agreement[?]" Id. Sledge maintains that the first step is met because the Supplement Agreement contains a dispute-resolution provision and the dispute in the instant case falls within the parameters of the provision, in part. Sledge argues that the dispute-resolution provision may apply to the dispute, but that the dispute-resolution provision still does not apply in the instant case because the provision "expressly does not apply to anyone who is not a member. Only disputes within the membership of the LLC are governed by the Operating Agreement." Sledge further argues that as a non-member, he could not be bound by the dispute-resolution provision, so the resulting Joint Resolution was merely an "offer in compromise" that he refused.

¶ 24. As the Court has explained, "we must determine whether the contract is ambiguous, and if it is not, then it must be enforced as written. In making that determination, the Court must review the express wording of the contract as a whole." Epperson v. SOUTHBank , 93 So.3d 10, 16 (¶ 17) (Miss. 2012) (internal citations omitted). In the instant case, the parties both submit that the contract is unambiguous, but they disagree about a particular provision. "The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law." Id. at 16-17 (¶ 18) (quoting Delta Pride Catfish, Inc. v. Home Ins. Co. , 697 So.2d 400, 404 (Miss. 1997) ). "If the contract is unambiguous, 'the intention of the contracting parties should be gleaned solely from the wording of the contract' and parole evidence should not be considered." Id. at 16 (¶ 17) (quoting Turner v. Terry , 799 So.2d 25, 32 (¶ 16) (Miss. 2001) ).

¶ 25. Sledge claims that the dispute-resolution provision does not apply to a non-member; however, the Supplement Agreement, which contains the dispute-resolution provision, specifically and almost solely addresses the withdrawal of a member and the division of fees and property upon withdrawal. It does not follow that the parties would use the language "[a]ny dispute or decision related to this agreement or partnership" were the dispute-resolution provision not to apply to a withdrawn member whose withdrawal is covered in the Supplement Agreement. Thus, based on the wording of the contract, the parties intended for the dispute-resolution provision to be applicable in a case precisely like the instant one.

CONCLUSION

¶ 26. We affirm the trial court's judgments in favor of Grenfell Sledge and Stevens, PLLC, and the individual defendants. Sledge's argument that he was not bound by the Supplement Agreement's dispute-resolution provision is not supported by the Revised Mississippi Limited Liability Company Act or contract law; therefore, Sledge is bound by the terms of the Supplement Agreement's dispute-resolution provision and the resulting Joint Resolution.

¶ 27. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., KING, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., NOT PARTICIPATING.

      Although titled as a supplement, the document indicated that any prior agreement was either oral or lost.

      After the firm and Grenfell filed a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted, the trial court dismissed Sledge's first complaint, allowing him leave to amend his complaint. Sledge filed an amended complaint.

      Sledge did file a Memorandum of Law in Opposition to Defendant's Motion to Dismiss, and in the Memorandum, he specifically argued that a complaint for an accounting is a cause of action in itself.

      Not until after the trial court had ruled and the case was before the trial court on reconsideration did Sledge argue that any of the provisions of the Mississippi Limited Liability Company Act applied. The firm objected. Whether the trial court sustained or overruled the firm's objections to the new arguments is unclear, although it is clear that the new arguments were considered by the trial court.


text:
    Reginald Desmond WALLACE v. STATE of Mississippi
    2016-CT-01647-COA
    Supreme Court of Mississippi.
    Filed: November 13, 2018 Closed: February 14, 2019
    Certiorari - Denied.


text:
    Quendarius Berjuan ROBINSON v. STATE of Mississippi
    2016-CT-01723-COA
    Supreme Court of Mississippi.
    Filed: December 3, 2018 Closed: February 28, 2019
    Certiorari - Denied.


text:
    Herman JACKSON, Jr. v. STATE of Mississippi
    2015-CT-01240-COA
    Supreme Court of Mississippi.
    Filed: November 7, 2018 Closed: February 14, 2019
    Certiorari - Denied.


text:
    La'Darrian MCCRAY v. STATE of Mississippi
    2016-CT-01592-COA
    Supreme Court of Mississippi.
    Filed: November 20, 2018 Closed: February 14, 2019
    Certiorari - Denied.


text:
    Christopher WISE v. STATE of Mississippi
    2017-CT-00349-COA
    Supreme Court of Mississippi.
    Filed: November 27, 2018 Closed: February 14, 2019
    Certiorari - Denied.


text:
    Kenneth Brian WEAVER v. STATE of Mississippi
    2017-CT-00255-COA
    Supreme Court of Mississippi.
    Filed: December 14, 2018 Closed: February 28, 2019
    Certiorari - Denied.


text:
    Samuel Terrail YOUNG, Jr. v. STATE of Mississippi
    2017-CT-00832-COA
    Supreme Court of Mississippi.
    Filed: December 11, 2018 Closed: February 21, 2019
    Certiorari - Denied.


text:
    Ernest T. JONES v. MISSISSIPPI INSTITUTIONS OF HIGHER LEARNING
    2016-CT-01050-COA
    Supreme Court of Mississippi.
    Filed: December 4, 2018 Closed: February 14, 2019
    Certiorari - Denied.


text:
    John F. WARE v. STATE of Mississippi
    2017-CT-00853-COA
    Supreme Court of Mississippi.
    Filed: December 18, 2018 Closed: February 14, 2019
    Certiorari - Denied.


text:
    James C. GRAHAM v. STATE of Mississippi
    2017-CT-00336-COA
    Supreme Court of Mississippi.
    Filed: December 18, 2018 Closed: February 21, 2019
    Certiorari - Denied.


text:
    Ladale Airosteve HOLLOWAY v. STATE of Mississippi
    2017-CT-01455-COA
    Supreme Court of Mississippi.
    Filed: January 11, 2019 Closed: February 21, 2019
    Certiorari - Dismissed.
    Mandate, Stay or Recall - Dismissed as Moot.


text:
    Camara JOHNSON v. STATE of Mississippi
    2017-CT-00313-COA
    Supreme Court of Mississippi.
    Filed: January 18, 2019 Closed: February 14, 2019
    Certiorari - Denied.


text:
    Elias GUNN v. STATE of Mississippi
    2017-CT-00753-COA
    Supreme Court of Mississippi.
    Filed: January 22, 2019 Closed: February 14, 2019
    Certiorari - Dismissed.


author: LEE, C.J., FOR THE COURT:

text:
    Christopher WISE a/k/a Christopher Dontarius Wise a/k/a Christopher D. Wise, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00349-COA
    Court of Appeals of Mississippi.
    July 24, 2018 Rehearing Denied October 30, 2018
    ATTORNEY FOR APPELLANT: JEFFERY KENDRICK HARNESS, NATCHEZ
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

PROCEDURAL HISTORY

¶ 1. On June 26, 2015, Christopher Wise was indicted for the murder of Jerrell Brown. A jury in the Hinds County Circuit Court, First Judicial District, convicted Wise of manslaughter. Wise was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. He now appeals, asserting the following issues: (1) the State committed a discovery violation; (2) the trial court erred in denying his motion for speedy trial; (3) the trial court erred in denying his motion for a directed verdict; (4) the trial court erred in denying his jury instruction; and (5) the evidence was insufficient to convict him of manslaughter. Finding no error, we affirm.

FACTS

¶ 2. On the night of January 25, 2015, in Jackson, Mississippi, Marcus Ware testified that he received a call from Brown asking to buy drugs. Ware told Brown to come to his apartment and purchase the drugs from Wise. Brown came to the apartment, bought ecstasy pills and marijuana from Wise, and then left the apartment. Later, Brown called Ware complaining that the pills were not effective. Ware said that Brown indicated he was coming back to Ware's apartment. Ware stated that Wise waited on Brown, but left when Brown failed to show. Shortly after, Wise called Ware and told him that he had shot Brown. According to Ware, Wise implied that Brown had tried to rob him. Wise then told Ware, "You ain't seen nothing. You don't know nothing."

¶ 3. Benard Vaughn, Brown's cousin, testified that he and Brown were with friends who wanted ecstasy. Brown then called Ware and asked for help in purchasing ecstasy and marijuana. Ware told them to come to his apartment and buy the drugs from Wise. Later at Ware's apartment, Brown purchased $100 worth of ecstasy pills and marijuana from Wise. According to both Vaughn and Wise, Brown pulled a large amount of cash from his pocket in order to pay for the drugs. Vaughn stated that he and Brown left to share the drugs with friends at a nearby apartment.

¶ 4. After several hours, Vaughn went to wait for Brown in Brown's car. While waiting in the passenger seat, Vaughn fell asleep. He was roused by Brown, who told Vaughn that they were leaving. Vaughn fell back asleep and remained asleep until a police officer woke him and informed him that Brown had been shot. Vaughn then saw Brown's body slumped over in the driver's seat of the car. Vaughn testified that he knew Brown had called Ware complaining that the pills Wise had sold him were not effective. Vaughn also stated that Brown was not carrying his weapon that night.

¶ 5. Alvin McDaniel, a patrolman with the Jackson Police Department (JPD), responded to the scene. McDaniel saw a white car with the driver's side door ajar. A deceased male, later determined to be Brown, was slumped over in the driver's seat with one leg partially protruding from the car. McDaniel noticed another male in the passenger's side seat who was sleeping. McDaniel also found a holstered gun on the driver's side floorboard.

¶ 6. Detective Ella Thomas with JPD testified that she investigated Brown's murder. Detective Thomas noted that Brown's car had blood on the outside and inside of the driver's side door. Brown's holstered gun was found on the floorboard under his legs. Three shell casings from a .9 mm handgun were found at the scene.

¶ 7. After locating Wise several months later, Detective Thomas interviewed him. Wise told her that Brown had threatened him with a gun, but that he was able to grab his gun and shoot at Brown over his left shoulder. Wise said Brown then ran away.

¶ 8. Robert Watts, a crime scene investigator with JPD, testified that he recovered three spent shell casings from the scene and that the location of the shell casings indicated the shooter was moving. Watts testified that "[t]he shooter started in the parking lot, moved towards the sidewalk and then to the rear of the vehicle as they were firing."

¶ 9. The forensic pathologist for the State testified that Brown died from two gunshot wounds to his back. Both shots entered Brown's back-one exited his left chest area and the other through the top right of his shoulder. The pathologist opined that the gun was fired from more than a few feet away.

¶ 10. Wise testified in his own defense. He stated that when he left Ware's apartment, Brown was waiting for him and acting aggressively. He testified that Brown placed his gun on the back of Wise's head and told Wise to be still. Wise then grabbed his gun from his car and fired shots over his left shoulder. Wise stated he "fired an initial burst of shots over my left shoulder." At that point, Brown began to run, but Wise continued to fire his gun. Wise never saw Brown's gun.

DISCUSSION

I. Discovery Violation

¶ 11. In his first issue on appeal, Wise argues that the State committed a discovery violation by failing to disclose "vital pieces of discovery until the eve of trial." During a pretrial hearing on September 9, 2015, Wise's trial counsel, Jeffrey Harness, indicated he had filed a motion for supplemental discovery, requesting the following: a report from the National Crime Information Center (NCIC) regarding Brown's criminal history; audio statements; written statements; Brown's phone records; crime-scene photos; and the autopsy report on Brown. At another hearing on November 2, 2016, Harness indicated he had not received the requested information.

¶ 12. At some point, the State sent Harness a letter to contact the district attorney's office in order to set a time to view the physical evidence. During a pretrial hearing on February 3, 2017, Harness stated that he had not been able to obtain copies of the crime-scene photos and he had not received an NCIC report on Brown. The trial court ordered the State to email Harness digital copies of the crime-scene photos as soon as possible.

The trial court denied Harness's request for Brown's criminal history.

¶ 13. On February 7, 2017, prior to trial, Harness stated that he had received the requested crime-scene photos. The trial court then asked if Harness had any other discovery matters to discuss. Harness replied that he did not.

¶ 14. Although Wise's brief is unclear as to the specific evidence the State failed to disclose, the record transcripts would indicate that Wise means the crime-scene photos. However, Wise cites to Uniform Circuit and County Court Rule 9.04(A)(2) for support. URCCC 9.04(A)(2) requires the State to produce copies "of any written or recorded statement of the defendant and the substance of any oral statement made by the defendant." The record indicates that Wise did receive these items at some point between the first hearing on September 9, 2015, and the third hearing on February 3, 2017.

¶ 15. Although Wise did receive the crime-scene photos right before trial, he did not seek a continuance or a mistrial on any purported discovery violations. "The failure to request a continuance constitutes a waiver of the discovery violation." Sims v. State , 928 So.2d 984, 988 (¶ 19) (Miss. Ct. App. 2006). This issue is without merit.

II. Speedy Trial

¶ 16. Wise argues that the trial court erred in denying his motions to dismiss for lack of a speedy trial. "The Sixth Amendment to the United States Constitution provides an accused the right to a 'speedy and public trial.' " Johnson v. State , 68 So.3d 1239, 1241 (¶ 6) (Miss. 2011) (citing U.S. Const. amend. VI ). The United States Supreme Court has developed a balancing test to determine whether a defendant's constitutional right to a speedy trial has been violated. Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors to be considered together and balanced are: (1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. Id. at 530-32, 92 S.Ct. 2182 ; Stark v. State , 911 So.2d 447, 450 (¶ 7) (Miss. 2005).

A. Length of the Delay

¶ 17. Under Barker , "[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker , 407 U.S. at 530, 92 S.Ct. 2182. In Mississippi, any delay from the date of arrest, indictment, or information until trial exceeding eight months is presumptively prejudicial. Stark , 911 So.2d at 449-50 (¶ 7) (citing Smith v. State , 550 So.2d 406, 408 (Miss. 1989) ). The exact date of Wise's arrest is unclear-sometime in April 2015-but he was indicted on June 26, 2015, and his trial finally began on February 7, 2017. Since the delay exceeds eight months, it is presumptively prejudicial, and the cause of the delay must be analyzed under the remaining Barker factors.

B. Reason for the Delay

¶ 18. "Once a delay is found to be presumptively prejudicial, the burden of proof shifts to the State to show cause for the delay." Id. at 450 (¶ 11). The appellate court must determine whether the delay should be charged to the State or the defendant. Id. Since the burden is on the State to provide a defendant with a speedy trial, this factor is weighed against the State unless it can show either that the delay was caused by the defendant or that the delay was for a good cause. Id. ; Wiley v. State , 582 So.2d 1008, 1012 (Miss. 1991).

¶ 19. Between December 9, 2015, and December 19, 2016, the trial court granted five continuances all due to a crowded docket. The trial court noted that neither the State nor Wise requested these continuances. The trial court further stated that "this Court serves as a trial court for the largest county in the State. This Court takes judicial notice that it has a heavy criminal trial calendar." "It is well settled that delays caused by overcrowded dockets are weighed against the State, although not heavily." Johnson v. State , 69 So.3d 10, 14 (¶ 14) (Miss. Ct. App. 2010). We weigh this factor slightly against the State.

C. Timely Assertion of the Right to a Speedy Trial

¶ 20. On June 10, 2016, almost one year after his indictment, Wise filed a pro se motion to dismiss for lack of a speedy trial. On August 30, 2016, Harness filed a motion to dismiss for lack of a speedy trial. Our supreme court "has established that asserting the right to a speedy trial and filing for dismissal for violating that same right are not one and the same." Franklin v. State , 136 So.3d 1021, 1034 (¶ 51) (Miss. 2014). The record does not support that Wise actually asserted his right to a speedy trial, because Wise was demanding dismissal rather than demanding an actual trial. Thus, we find this factor slightly favors the State. Id. at 1036 (¶ 55).

D. Prejudice to Wise

¶ 21. The supreme court has identified three main considerations in determining whether the defendant has been prejudiced by a lengthy delay: "(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired." Jefferson v. State , 818 So.2d 1099, 1108 (¶ 21) (Miss. 2002) (internal quotation marks omitted). "Generally, proof of prejudice entails the loss of evidence, death of witnesses, or staleness of an investigation." Sharp v. State , 786 So.2d 372, 381 (¶ 19) (Miss. 2001).

¶ 22. Wise claims he was prejudiced for two reasons: (1) he could not complete his education while trial was pending, and (2) many witnesses were unavailable at trial. In regard to Wise's continued incarceration, our supreme court has held that "incarceration alone does not constitute prejudice." Jenkins v. State , 947 So.2d 270, 277 (¶ 21) (Miss. 2006). And our case law "does not recognize as prejudice the negative emotional, social, and economic impacts that accompany incarceration." Id. In regard to the unavailability of witnesses, Wise fails to specify which witnesses he claims were unavailable for trial and the substance of their testimony.

¶ 23. In conclusion, our supreme court has stated "that where the delay is neither intentional nor egregiously protracted, and there is an absence of actual prejudice to the defense, the balance is struck in favor of rejecting a speedy trial claim." Johnson , 68 So.3d at 1246 (¶ 22). Upon review, we cannot find that Wise was denied his constitutional right to a speedy trial.

III. Directed Verdict

¶ 24. Wise argues that the trial court should have granted his motion for a directed verdict for two reasons. First, Wise claims that the State failed to prove every element in the indictment. Second, Wise contends that the Weathersby rule applied.

A. Indictment

¶ 25. Wise contends the State failed to prove every element in the indictment; thus, the trial court erred by not granting his motion for a directed verdict at the close of the State's evidence. The indictment charging Wise stated that he did:

willfully, unlawfully, and feloniously kill Jerrell Brown, a human being, without authority of law, with deliberate design to effect the death of said person or of any human being, by shooting the said Jerrell Brown in the chest with a [.9 mm] firearm in violation of Section 97-3-19(1)(a) (1972), as amended, contrary to the form of the statute ....

(Emphasis added). Wise claims the State failed to prove that Brown was shot in the chest. Instead, the evidence showed that Brown was shot twice in the back, with two exit wounds on his chest. Regardless of any discrepancy, the cause of death is not an element in deliberate-design murder. See Miss. Code Ann. § 99-7-37(1) (Rev. 2015) ("In an indictment for homicide it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused ...."). Thus, we find no error by the trial court in denying Wise's motion for a directed verdict.

B. Weathersby Rule

¶ 26. According to Weathersby , "where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness ..., or by the physical facts or by the facts of common knowledge." Weathersby v. State , 165 Miss. 207, 209, 147 So. 481, 482 (1933). Moreover, the defendant's version "must be reasonable and credible before he is entitled to an acquittal under the rule." Blanks v. State , 547 So.2d 29, 33 (Miss. 1989).

¶ 27. Wise claims that the State failed to produce any witnesses to rebut his claim that he killed Brown in self-defense. While the State did not have any eyewitnesses to the shooting, the State did present physical evidence that contradicted Wise's version of events. The forensic pathologist noted that Brown was shot twice in the back from a distant or intermediate range. The crime-scene investigators noted that the placement of the three recovered shell casings indicated Wise was moving while shooting Brown. And there was testimony that Brown's gun was holstered and laying on the floorboard of Brown's car under his legs, indicating that Brown had not pointed his gun at Wise. After the shooting, Wise called Ware and instructed him to stay quiet, fled the area, and later called a tip hotline to get information related to the investigation. Taking Wise's testimony together with the physical evidence and the fact that Wise left the area, we cannot find the trial court erred in denying Wise's motion for a directed verdict. This issue is without merit.

IV. Jury Instruction

¶ 28. Wise argues that the trial court erred in denying his proposed Weathersby jury instruction. Wise's proposed defense instruction thirteen stated that "[t]he Court instructs the jury that where the defendant or the defendant's witness are the only eyewitnesses to the homicide, their version if reasonable, must be accepted as true." Having found no error by the trial court in denying Wise's motion for directed verdict based on Weathersby , we likewise find no error by the trial court in denying this particular jury instruction. Furthermore, "the Weathersby [r]ule is not the proper subject of an instruction to the jury."

Green v. State , 631 So.2d 167, 175 (Miss. 1994). This issue is without merit.

V. Insufficient Evidence

¶ 29. In his final issue, Wise argues that the evidence was insufficient to support his manslaughter conviction. In reviewing the sufficiency of the evidence, "the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed ...." Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (internal quotation mark omitted) (abrogated on other grounds by Little v. State , 233 So.3d 288 (Miss. 2017) ). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. Furthermore, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State , 866 So.2d 1107, 1112 (¶ 17) (Miss. Ct. App. 2003).

¶ 30. Again, Wise argues that the State failed to provide evidence to contradict his theory of self-defense. The jury was instructed on deliberate-design murder, culpable-negligence manslaughter, and self-defense. The statutory elements of culpable-negligence manslaughter are "an unlawful killing by the culpable negligence of another." Ramage v. State , 914 So.2d 274, 276 (¶ 5) (Miss. Ct. App. 2005) (citing Miss. Code Ann. § 97-3-47 (Rev. 2014) ). A jury instruction was also given defining culpable negligence as "such gross negligence as to evince a wanton or reckless disregard for the safety of human life, or such an indifference to the consequences of an act under the surrounding circumstances as to render such conduct tantamount to willfulness." According to Wise's testimony, he fired an "initial burst" of shots over his left shoulder then continued to fire at Brown when Brown ran away. Such actions have been deemed sufficient to support a culpable-negligence manslaughter conviction. See Tait v. State , 669 So.2d 85, 90 (Miss. 1996) ; Jernigan v. State , 305 So.2d 353, 354 (Miss. 1974) ; Harried v. State , 773 So.2d 966, 969 (¶¶ 7-8) (Miss. Ct. App. 2000) ; Towner v. State , 726 So.2d 251, 254-55 (¶ 8) (Miss. Ct. App. 1998). This issue is without merit.

¶ 31. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      We note that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. But because the former rules were still in effect during Wise's trial, Rule 9.04 applies to Wise's case.