author: WILSON, J., FOR THE COURT:

text:
    Kaleigh Ann DARTEZ a/k/a Kaleigh Dartez, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01519-COA
    Court of Appeals of Mississippi.
    December 11, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, Jackson
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Kaleigh Dartez had a blood-alcohol concentration of at least .219 percent when she wrecked her car while traveling on Kiln-Delisle Road after 3 a.m. on November 14, 2014. Dartez's passenger, Zackary Whitfield, was killed in the wreck, and Dartez was indicted, convicted, and sentenced for aggravated DUI. On appeal, Dartez argues that (1) her indictment was defective because it did not allege a specific act of negligence, (2) the jury instructions were erroneous because they did not identify a specific act of negligence, (3) the jury instructions on negligence were erroneous and confusing, (4) the jury's guilty verdict was against the overwhelming weight of the evidence, and (5) she was entitled to an acquittal because her indictment mistakenly referenced the wrong subsection of the DUI statute.

¶ 2. Dartez's first two arguments fail in light of this Court's recent holding that under the aggravated DUI statute "[t]he State is not required to prove a specific act of negligence, only that the death was caused in a negligent manner." Friston v. State , 243 So.3d 198, 205 (¶ 34) (Miss. Ct. App. 2017), cert. denied , 246 So.3d 71 (Miss. 2018). In addition, we hold that the jury was fairly and adequately instructed, the jury's verdict was not against the overwhelming weight of the evidence, and Dartez's indictment clearly informed her of the nature of the charges. Accordingly, Dartez's conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 3. On November 14, 2014, around 4 a.m., Harrison County deputy sheriff Brandon Hendry was on his way home after his shift. As Hendry drove down Kiln-Delisle Road, he saw a man and a woman, later identified as Dartez, standing near a large delivery truck, which was stopped in the road with its hazard lights flashing. Hendry stopped and turned on his car's blue lights, which also activated the car's two video cameras. One camera records video in front of the car with audio from the officer's body microphone; the other camera records video and audio in the backseat of the car.

¶ 4. The man, a truck driver, told Hendry that he had come upon Dartez standing in the middle of the road, dazed and injured. Dartez's head was bleeding. Hendry also noticed that Dartez's speech was slurred, and "[s]he had an overwhelming odor of some sort of alcoholic or intoxicating beverage." Hendry did not see any signs of a car wreck. Indeed, he could not even see Dartez's car, but he inferred that there must have been a wreck nearby. Hendry asked Dartez whether anyone else was in the car with her, but Dartez said that she did not know. Dartez stated several times that her car was still at the bar and denied that she had been driving or in a wreck. Dartez asked to sit down in the back of Hendry's patrol car. Hendry allowed her to do so while he used a spotlight to search for a wrecked vehicle. Approximately 100 feet up the road, Hendry spotted a severely damaged Toyota Camry. The car was in tall, thick brush about fifty feet off the road.

¶ 5. With some difficulty, Hendry was able to crawl through the brush to the car. The car was on its side, and its windshield was broken. Zackary Whitfield's body was on the ground outside the car, and Hendry quickly determined that Whitfield was deceased. At that point, Hendry did not know who had been driving the car. However, he believed that the car belonged to Dartez because the personal items in it appeared to belong to a woman. He also noticed that "[t]he driver's seat was fairly close to the steering wheel."

¶ 6. Paramedics Robert Pino and Joseph Cutshall arrived and examined Dartez, who was still in the back of Hendry's patrol car. The patrol car's interior camera recorded their interactions with Dartez. The paramedics also testified at trial. To help assess what types of injuries Dartez might have sustained, they asked her where she had been in the car. Dartez told them that she had been driving. Dartez also had a large cut over her right eye and blood on her face. Dartez was able to answer questions about where and who she was, but she was unable to tell Pino what day it was. Dartez told them that she had been driving and that she had drunk six beers that night. A nurse at the hospital testified that Dartez smelled of alcohol and stated that she had been drinking prior to the wreck. Dartez's blood-alcohol concentration was .219 percent approximately three hours after the wreck when her blood was drawn at the hospital. Dartez tested negative for controlled substances.

¶ 7. Zack Berger testified that on November 13, 2014, he and Whitfield had dinner and then had drinks at two bars before meeting friends at Grog's Bar in Diamondhead. Whitfield had driven them there in his truck. Whitfield and Berger arrived at Grog's between 11:30 p.m. and midnight and stayed until around 3 a.m. When they started to leave, Whitfield initially said that he would drive Berger and another friend to his house in his truck. However, Whitfield then said that he was going to ride to his house with Dartez. Whitfield asked Berger to drive his truck, and Berger agreed. Berger did not actually see Whitfield or Dartez get into Dartez's car. Nor did Berger see who was driving Dartez's car. Berger drove away from Grog's before Dartez and Whitfield.

¶ 8. Jodi Taylor and Amber McCaffrey testified that they met Whitfield and Berger at Grog's Bar around midnight or 1 a.m. They had seen Dartez and a friend of hers at another bar earlier in the night, and Dartez and her friend arrived at Grog's shortly after they did. Taylor and McCaffrey were not drinking, but everyone else in the group was drinking beer. They all left the bar around 3 a.m. Taylor and McCaffrey were going to McCaffrey's house. The others were going to Whitfield's house. Taylor saw Dartez and Whitfield get into Dartez's car, with Dartez in the driver's seat and Whitfield in the passenger's seat. Taylor asked Dartez if she was "okay to drive," and Dartez said that she was. The sheriff's office obtained video of the parking lot at Grog's. The video was played at trial, and Taylor identified herself, Dartez, and Whitfield.

¶ 9. Sergeant Glenn Roe of the Harrison County Sheriff's Office testified, without objection, as an expert in accident reconstruction. Roe responded to the wreck, took pictures of the scene, and marked the location of evidence for collection. He also took measurements of the scene and diagramed it to scale. Specifically, Roe examined the location of the car and Whitfield's body, skid marks on the road, and tire tracks made once the car left the road. Roe testified that as the car entered a curve, it crossed the center line. The driver then overcorrected and lost control. The car left the road, traveled on the shoulder, hit a shallow ditch, and flipped before coming to rest on the driver's side. As the car flipped, Whitfield was ejected.

¶ 10. Roe also examined the vehicle itself, including the position of the seats, the seatbelts, and the deployed airbags. He noted that the passenger seat was reclined slightly and pushed further back, while the driver's seat was upright and closer to the steering wheel. The seatbelts were unlatched and in their usual positions. Roe could not say why the car had left its proper lane of travel. He acknowledged that the driver could have made a necessary evasive maneuver before losing control of the car. He testified that there were no known problems with the car, but he acknowledged that he had not checked the brakes or steering mechanisms. Although he did not check the locking mechanism on the driver's seat, he explained that based on the trajectory of the car, had the locking mechanism been broken, the seat would have been all the way back, not close to the steering wheel.

¶ 11. Other witnesses testified about blood and other fluid samples taken from the wreck and from Whitfield and Dartez. DNA from a bloodstain on the passenger airbag matched a sample taken from Whitfield. A general DNA swab from the driver's side airbag revealed the DNA of at least three people, and Dartez's DNA "could not be excluded" as being present. Whitfield was excluded from that sample.

¶ 12. After the State rested, Dartez called one witness, her godmother, Judy Maxwell. Maxwell testified that when she saw Dartez at the hospital, Dartez had a large bruise on her right shoulder. Dartez's counsel suggested that the location of the bruise indicated that Dartez had been in the passenger's seat when the wreck occurred. Dartez did not testify.

¶ 13. The court instructed the jury on two distinct counts of aggravated DUI. In Count I, Dartez was charged with driving while under the influence of intoxicating liquor and negligently causing Whitfield's death. See Miss. Code Ann. § 63-11-30(1)(a) & (5) (Rev. 2014). In Count II, Dartez was charged with driving while having a blood-alcohol concentration of .08 percent or more and negligently causing Whitfield's death. See Miss. Code Ann. § 63-11-30(1)(d) & (5) (Rev. 2014). The court further instructed that Count I and Count II were "merely two (2) different ways to address a single offense" and that, if the State met its burden of proof on either count, the jury should return a guilty verdict on only one count. The jury returned a guilty verdict as to Count II.

¶ 14. The court sentenced Dartez to serve twenty-five years in the custody of the Department of Corrections with twelve years suspended, thirteen years to serve, and five years of reporting probation. Dartez filed a motion for a judgment notwithstanding the verdict or a new trial, which the trial court denied, and a timely notice of appeal.

ANALYSIS

I. Indictment

¶ 15. Dartez argues that her indictment was defective because it did not allege a specific negligent act as an element of her aggravated DUI charges. The indictment alleged that Dartez drove "while under the influence of intoxicating liquor" (Count I) and with a blood-alcohol concentration of .08 percent or more (Count II). Both counts further alleged that Dartez "did ... in a negligent manner cause [Whitfield's] death." Dartez claims that the indictment's failure to allege a specific act of negligence deprived her of her constitutional right to notice of the "nature and cause of the accusation" against her. U.S. Const. amend. VI ; Miss. Const. art. 3, § 26.

¶ 16. "Issues concerning the sufficiency of an indictment are questions of law; thus, our standard of review is de novo." Koch v. State , 222 So.3d 1088, 1092 (¶ 13) (Miss. Ct. App. 2017), cert. denied , 222 So.3d 312 (Miss. 2017). "The purpose of an indictment is to satisfy the constitutional requirement that a 'defendant be informed of the nature and cause of the accusation.' " Taylor v. State , 94 So.3d 298, 305 (¶ 15) (Miss. Ct. App. 2011) (quoting U.S. Const. amend. VI ; citing Miss. Const. art. 3, § 26 ). "Therefore, in order for an indictment to be sufficient, it must contain the essential elements of the crime charged." Id. (quotation marks omitted).

¶ 17. "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." Quang Thanh Tran v. State , 962 So.2d 1237, 1241 (¶ 17) (Miss. 2007) (quotation marks omitted). "However, simply tracking the language of a statute will not always be sufficient." Id. at 1242 (¶ 18). In some cases, depending on the nature of the offense and the language of the statute, it may be necessary for the indictment to set out additional facts or circumstances. See id. at (¶¶ 17-18).

¶ 18. Dartez did not challenge the sufficiency of her indictment in the trial court. "While it is true that 'challenges to the substantive sufficiency of an indictment may not be waived and consequently may be raised for the first time on appeal,' this does not include all challenges to an indictment." Qasoon v. State , 232 So.3d 831, 834 (¶ 9) (Miss. Ct. App. 2017) (alteration omitted) (quoting Ross v. State , 954 So. 2d 968, 1015 (¶ 126) (Miss. 2007) ). "Nonjurisdictional defects in the indictment may not be attacked for the first time on appeal absent a showing of cause and actual prejudice." Id. Rather, all such objections should be raised in a motion to quash the indictment filed prior to trial. Miss. Code Ann. § 99-7-23 (Rev. 2015). Dartez argues her indictment failed to allege an essential element of the offense-a jurisdictional defect, see Qasoon , 232 So.3d at 834 (¶ 9) -because it failed to allege a specific negligent act.

¶ 19. In Taylor , this Court considered an indictment that, like the one in this case, charged the defendant with aggravated DUI but did not allege a specific negligent act. Taylor , 94 So.3d at 304-07 (¶¶ 13, 20 ). The Court stated that it was unnecessary to decide whether an indictment for aggravated DUI "is or is not required to allege a specific basis for an allegation of negligence." Id. at 307 (¶ 20). Instead, the Court held that the defendant had sufficient notice of the alleged negligence because she knew that the State would argue that she was driving on the wrong side of the road and speeding at the time of the wreck. Id.

¶ 20. We also addressed this issue in Koch , supra . As in Taylor , the Court held that the defendant received adequate notice of the negligence charged in the indictment. Koch , 222 So.3d at 1093 (¶ 17). We noted that the accident report and other materials provided in discovery clearly alleged that the defendant failed to maintain a proper lane and ran off the road. Id. Moreover, defense counsel indicated throughout trial that he had prepared a defense to meet that allegation. Id.

¶ 21. We hold that Dartez's challenge to her indictment is procedurally barred because she failed to raise the issue in the circuit court. "The elements of [aggravated DUI] are (1) operating a vehicle while under the influence of an intoxicating liquor, or operating a vehicle with [.08 percent] or more by weight volume of alcohol in the person's blood; and (2) causing the death of another in a negligent manner." Friston , 243 So.3d at 205 (¶ 34) (quoting Andino v. State , 125 So.3d 700, 703 (¶ 8) (Miss. Ct. App. 2013) ). The indictment in this case clearly alleged both of the essential elements of the offense. Therefore, the alleged defect is not "jurisdictional" in nature. Qasoon , 232 So.3d at 834 (¶ 9). Dartez argues that the indictment should have described the facts and circumstances of the offense in greater detail. However, that argument does not call into question the jurisdiction of the circuit court. Id.

¶ 22. Procedural bar notwithstanding, this issue is also without merit. We recently held in Friston that under the aggravated DUI statute "[t]he State is not required to prove a specific act of negligence, only that the death was caused in a negligent manner." Friston , 243 So.3d at 205 (¶ 34). If the State is not required to prove a specific act of negligence at trial, it necessarily follows that such specificity is not required in the indictment. The indictment in this case stated the essential elements of the offense. Therefore, Dartez's argument is without merit.

II. Jury Instructions

A. Elements Instructions

¶ 23. In an extension of her first argument, Dartez next contends that the jury instructions should have identified a specific act of negligence on her part that caused Whitfield's death. She argues that the elements instructions were inadequate because, consistent with her indictment, they only required the jury to find that (1) she drove her car while under the influence of intoxicating liquor or with a blood-alcohol concentration of .08 percent or more and (2) "did ... in a negligent manner cause [Whitfield's] death."

¶ 24. Dartez did not raise the issue at trial. Therefore, the issue is procedurally barred on appeal. Friston , 243 So.3d at 204 (¶ 29).

¶ 25. The issue is also without merit. As stated above, "[t]he State is not required to prove a specific act of negligence, only that the death was caused in a negligent manner." Id. at 205 (¶ 34). "Thus, contrary to [Dartez's] claim, the jury was not required to be instructed on a specific negligent act ... in order to convict [her] of the charge." Id. The State presented evidence that Dartez was negligent in maintaining her lane of travel, which caused her to lose control of her vehicle and, thereby, caused Whitfield's death. The jury was properly instructed and returned a guilty verdict that was supported by the evidence at trial.

B. Negligence Instruction

¶ 26. Dartez also argues that the trial court gave erroneous and confusing jury instructions regarding negligence. The primary jury instruction on negligence (S-3) read:

The Court instructs the Jury that Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like or similar circumstances. Negligence may consist either in doing something that a reasonable careful person would not do under like or similar circumstance or in failing to do something that a reasonable careful person would do under like or similar circumstances. Simple negligence is sufficient for a conviction of Driving Under the Influence Causing Death or Disfigurement.

The trial court also gave the following instruction (S-4):

The Court instructs the Jury that at all times a driver of a vehicle is required to maintain the easy and reasonable control of her vehicle.

Dartez argues that S-4 is a misstatement of the law and its inclusion confuses the instruction given in S-3 by presenting a different standard for negligence.

¶ 27. Dartez did not object to these instructions at trial. When Dartez's counsel was asked if he had any objection to S-4, he said, "I'm not sure-the only term I'm not sure about in there is where it says, it is required to maintain the easy and reasonable control of the vehicle. I'm not saying it's not right. I've just never heard it before." The State responded that the instruction had been approved in prior cases, citing Lepine v. State , 10 So.3d 927 (Miss. Ct. App. 2009), and Comby v. State , 901 So.2d 1282 (Miss. Ct. App. 2004). Dartez offered no further response. Because Dartez did not object to the instruction at trial, this issue is also procedurally barred on appeal. Lepine , 10 So.3d at 943-44 (¶ 48).

¶ 28. Moreover, the issue is without merit. In Lepine and Comby , this Court held that the same or similar instructions were not erroneous. Lepine , 10 So.3d at 944 (¶¶ 49-50) ; Comby , 901 So.2d at 1288 (¶¶ 14-15). In Lepine , we emphasized that the court also gave the jury an instruction on negligence similar to instruction S-3 given in this case. Lepine , 10 So.3d at 944 (¶ 50). We held that "the negligence instructions, when read as a whole, adequately instructed the jury on the standard of care applicable to [the defendant]." Id. We reach the same conclusion in this case.

III. Weight of the Evidence

¶ 29. Dartez next argues that the evidence of negligence on her part did not outweigh the possibility that the wreck had some other cause. She acknowledges that the State's expert opined that the driver lost control of the vehicle as a result of oversteering, but she argues that there was no evidence of the vehicle's speed. She also argues that the evidence did not exclude possible mechanical problems or an independent cause such as oncoming traffic or an animal in the road. She asserts that "[i]t was just as likely that the wreck resulted, not from negligence, but some other accidental cause." She further argues her motion for a new trial should have been granted because the verdict was against the weight of the evidence.

¶ 30. We review the trial judge's decision denying a new trial for an abuse of discretion. Little v. State , 233 So.3d 288, 292 (¶ 21) (Miss. 2017). "We do not reweigh evidence," "assess the witnesses' credibility," or "resolve conflicts between evidence." Id. at 289 (¶ 1). "Those decisions belong solely to the jury." Id. On appeal, we "view the evidence in the light most favorable to the verdict and disturb the verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id.

¶ 31. The verdict in this case is not contrary to the overwhelming weight of the evidence. Roe, the State's accident reconstruction expert, testified about his investigation and analysis of the wreck. He visited the site, photographed the scene, and marked significant points. He then used a device to take accurate, laser-guided measurements of the scene so that it could be accurately diagramed. Based on the evidence, Roe concluded that the driver of the car did not maintain the proper lane of travel. Roe further concluded that the driver overcorrected and lost control of the car as a result. The car then left the road, hit the ditch, and flipped. On cross-examination, Roe acknowledged that he could not say for certain why the driver failed to maintain her lane. He could only testify that she failed to do so. However, the State was not required to disprove every imaginable cause of the wreck. See Taylor , 94 So.3d at 315 (¶ 53) ; Dison v. State , 61 So.3d 975, 980 (¶ 17) (Miss. Ct. App. 2011). The State's burden was to prove beyond a reasonable doubt that Dartez's negligence was the cause of the wreck and Whitfield's death. There is no evidence to suggest that Dartez wrecked the car because of mechanical problems, oncoming traffic, or an animal in the road. The jury found that Dartez, driving with a blood-alcohol concentration nearly three times the legal limit, wrecked the car because she was negligent. There is no contrary evidence that overwhelms the jury's verdict. Therefore, the trial judge did not abuse her discretion by denying Dartez's motion for a new trial. Little , 233 So.3d at 292 (¶ 21).

IV. Sufficiency of the Evidence

¶ 32. Finally, Dartez argues that the evidence presented at trial was not sufficient to convict her under Count II of the indictment because the indictment referenced an inapplicable subsection of the DUI statute. At the time of Dartez's offense, Mississippi Code Annotated subsection 63-11-30(1)(c) made it unlawful to operate a motor vehicle while "under the influence of any drug or controlled substance." Subsection 63-11-30(1)(d) made it unlawful to operate a motor vehicle with a blood-alcohol concentration of .08 percent or more. Count II of Dartez's indictment clearly tracked the language of subsection (1)(d); however, the indictment mistakenly referenced subsection (1)(c). Dartez argues that because her indictment cited subsection (1)(c), the State was bound by that subsection. She further argues that because there was no evidence that she was under the influence of controlled substances, she was entitled to an acquittal on Count II.

¶ 33. "The purpose of the indictment is to serve notice of the charges against the defendant and the facts underlying such charges." Culp v. State , 933 So.2d 264, 277 (¶ 40) (Miss. 2005). "This does not require a citation to the specific statute, but merely enough facts so that the defendant is put on notice as to the statute that is alleged to have been violated." Id. When the defendant objects to her indictment for the first time on appeal, and her objection is that the indictment cited the wrong subsection of the relevant statute, "such incorrect citation will be treated as surplusage unless it is found prejudicial to the defendant." Id. The indictment clearly charged Dartez with aggravated DUI based on her blood-alcohol concentration, which was still nearly three times the legal limit three hours after the fatal wreck. Dartez had clear notice of the nature of the charges against her. Therefore, the "incorrect citation" was mere "surplusage." Id. This issue is also without merit.

CONCLUSION

¶ 34. There is no reversible error in Dartez's indictment or in the instructions given to the jury at trial. Furthermore, the jury's verdict finding Dartez guilty of aggravated DUI is not contrary to the overwhelming weight of the evidence. Accordingly, Dartez's conviction and sentence are AFFIRMED .

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      The error in the indictment is likely attributable to amendments enacted during the 2014 legislative session that took effect shortly before Dartez's offense. Until October 1, 2014, subsection (1)(c) was the subsection applicable to the facts of this case, i.e., "per se DUI" based on the driver's blood-alcohol concentration. However, effective October 1, 2014, the relevant language was moved to subsection (1)(d). See 2014 Miss. Laws Ch. 493 (H.B. 412), § 1.


source: Caselaw Access Project

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

license: Public Domain

text:
    MISSISSIPPI STATE PORT AUTHORITY AT GULFPORT, Appellant v. SOUTHERN INDUSTRIAL CONTRACTORS LLC, Appellee
    NO. 2017-CA-01393-COA
    Court of Appeals of Mississippi.
    December 18, 2018
    ATTORNEYS FOR APPELLANT: BEN HARRY STONE, GULFPORT, MICHAEL BRANT PETTIS
    ATTORNEYS FOR APPELLEE: CHRISTOPHER SOLOP, BRENDA TANNER REDFERN, JACKSON, JOHN T. ANDRISHOK, STEVEN B. LOEB
    BEFORE CARLTON, P.J., WILSON AND GREENLEE, JJ.
   CARLTON, P.J., FOR THE COURT:

¶ 1. This case involves a construction dispute between the Mississippi State Port Authority at Gulfport and Southern Industrial Contractors LLC (SIC). After the Port Authority terminated its contract with SIC, SIC filed a motion to compel arbitration, or alternatively, a one-count complaint for breach of contract, in the Circuit Court of the First Judicial District of Hinds County, Mississippi. The Port Authority moved to dismiss SIC's motion to compel arbitration, arguing that (1) the contract between the parties did not contain a binding arbitration agreement; (2) SIC had effectively asserted a tortious wrongful-termination claim and failed to comply with the Mississippi Tort Claims Act (MTCA) prior to filing that claim; and (3) venue is improper because the lawsuit should be heard in the First Judicial District of the Harrison County Circuit Court of Mississippi. The circuit court summarily granted SIC's motion to compel arbitration, and denied the Port Authority's motion to dismiss. The Port Authority appeals both orders.

¶ 2. We find that the contract between the parties does not contain a binding arbitration agreement, and we reverse and render the circuit court's order compelling arbitration for this reason. We further find that the MTCA does not apply to SIC's breach of contract claim, and, thus, we affirm the circuit court's denial of the Port Authority's motion to dismiss as to that issue. Finally, we find that venue is improper in the First Judicial District of Hinds County, Mississippi, and we, therefore, reverse and remand on this issue, with instructions to the circuit court that this lawsuit should be transferred to the First Judicial District of Harrison County, Mississippi, pursuant to Mississippi Code Annotated section 11-11-3 (Rev. 2004), which is Mississippi's general circuit-court venue statute.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. This dispute arises out of a public-works contract that was awarded by the Port Authority to SIC (the Contract) for a construction project known as West Pier Facilities, Project 305 (the Project). The Project is for the construction of a 1,300-foot-long by 226-foot-wide transit shed and two smaller buildings. The Port Authority and SIC executed the Contract on July 25, 2014.

¶ 4. During the course of construction, SIC encountered large underground debris fields in the same location where SIC was to drive the foundation pilings for the transit shed. The debris removal resulted in extra work for SIC, construction delays ensued, and disputes arose between the Port Authority and SIC regarding timing and payment for the additional work. Ultimately, the Port Authority terminated the Contract in a letter dated September 14, 2016, entitled "NOTICE OF MATERIAL BREACH OF CONTRACT ... AND NOTICE OF TERMINATION." In that letter, the Port Authority cited to paragraph 29 of the general conditions of the Contract and stated that in accordance with that provision, it was terminating the Contract for cause. The letter then provided the specific reasons for termination, with citations to specific Contract provisions.

¶ 5. On November 11, 2016, counsel for SIC sent an email to counsel for the Port Authority asking whether the Port Authority would be "willing to resolve all claims and contract disputes by arbitration in the event that the present efforts to negotiate a settlement fail." Counsel for the Port Authority responded that same day, sending an email in which he said that "[the Port Authority], as a state agency, cannot agree to arbitration." By letter dated November 15, 2016, SIC sent the Port Authority a "notice of intention to arbitrate ... the claims and contract disputes between SIC and the [Port Authority] arising out of the ... Project." In its notice, SIC specified that "[t]he nature of the dispute involves losses sustained by SIC as a result of the [Port Authority's] breach of its contractual obligations." SIC quantified each of its claims in its notice, including a line-item for "wrongful termination" in the amount of $10,000,000.

¶ 6. Two days later, SIC filed its motion to compel arbitration in the Hinds County Circuit Court, alleging that "[t]he [Port Authority] is ... liable for all losses sustained by SIC as a result of the [Port Authority's] breach of its contractual obligations," and asking the circuit court to enter an order compelling the Port Authority to engage in binding arbitration to resolve the matter. In support of its motion to compel arbitration, SIC relied upon Section 8 of Attachment 5 to the Contract (sometimes referred to as Section 8). Attachment No. 5 is titled "Mississippi Development Authority Special Provisions to be included in all Contracts between the Subrecipient and Contracted Parties and in ALL Contracts between Contracted Parties and their Subcontractors." Section 8 of Attachment 5 provides:

8. The Subrecipient [Port Authority] and the Contracted Party [SIC] agree to resolve all claims and contract disputes by negotiations, arbitration, litigation, or other means as provided in the Contract documents and state law, prior to submission of any related change order or Contract Amendment to MDA for review and approval, in order to obtain a grant eligibility or allowability determination.

¶ 7. Alternatively, SIC included in its motion to compel arbitration its complaint against the Port Authority. SIC asserted a single count, "COUNT I: BREACH OF CONTRACT," alleging that "[t]he [Port Authority's] actions and omissions constitute a breach of the contract between SIC and [the Port Authority] for which the [Port Authority] is liable to SIC." SIC further alleged that it is entitled to liquidated damages for an amount not less than $10,039,371.30, and "damages in the amount of $10,000,000 for its wrongful termination."

¶ 8. The Port Authority responded by filing a motion to dismiss in which it asserted that (1) there was not an enforceable agreement to arbitrate between the parties and that the Port Authority does not have the authority to agree to arbitrate under Mississippi law; (2) upon dismissal of the motion to compel arbitration, the circuit court should dismiss all alternative claims for relief which fall within the purview of the MTCA because SIC did not provide the required ninety-days' written notice under the MTCA prior to filing its tort claim for wrongful termination; and (3) venue is improper because the lawsuit should be heard in the Circuit Court of the First Judicial District of Harrison County, Mississippi.

¶ 9. After holding a hearing on the parties' motions, the circuit court, in separate, one-page orders, summarily granted SIC's motion to compel arbitration and denied the Port Authority's motion to dismiss.

¶ 10. The Port Authority appeals both orders, asserting three primary issues: (1) whether the parties agreed to binding arbitration; (2) whether the MTCA applies to SIC's wrongful termination-of-contract claim; and (3) whether venue is improper in the First Judicial District of Hinds County, Mississippi, requiring dismissal or transfer to the First Judicial District of Harrison County, Mississippi, pursuant to the applicable venue statute.

STANDARD OF REVIEW AND OTHER APPLICABLE STANDARDS

¶ 11. "A grant or denial of a motion to compel arbitration is reviewed de novo." Harrison Cty. Commercial Lot LLC v. H. Gordon Myrick Inc. , 107 So.3d 943, 949 (¶ 12) (Miss. 2013) ; Driver Pipeline Co. Inc. v. Williams Transp. LLC , 104 So.3d 845, 847 (¶ 5) (Miss. 2012). A de novo standard of review also applies when reviewing a trial court's denial of a motion to dismiss. Booneville Collision Repair Inc. v. City of Booneville , 152 So.3d 265, 269 (¶ 9) (Miss. 2014). Additionally, "[c]ontract interpretation is a question of law that is reviewed de novo." Driver Pipeline , 104 So.3d at 847 (¶ 5). Finally, regarding venue, the Mississippi Supreme Court has held that a trial court's ruling regarding venue will not be disturbed "unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case. But if the interpretation of a venue statute is at issue, this Court will review the trial court's [venue] decision de novo." Holmes v. McMillan , 21 So.3d 614, 617 (¶ 8) (Miss. 2009) (internal quotation mark omitted).

¶ 12. SIC, as the party seeking to invoke arbitration under Section 8 of Attachment 5 to the Contract, bears the burden of establishing that this provision creates a binding arbitration agreement. Wellness Inc. v. Pearl River Cty. Hosp. , 178 So.3d 1287, 1292 (¶ 14) (Miss. 2015). The courts apply a two-prong test in determining whether a motion to compel arbitration should be granted:

Under the first prong, the court should determine whether the parties have agreed to arbitrate the dispute .... In order to determine if the parties have agreed to arbitrate the dispute, two considerations are taken into account: (1) whether there is a valid arbitration agreement; and (2) whether the parties' dispute is within the scope of the arbitration agreement. If the court determines that the parties did in fact agree to arbitrate their dispute, the second prong is applied. The United States Supreme Court has instructed that the second prong is whether legal constraints external to the parties' agreement foreclosed arbitration of those claims.

Driver Pipeline , 104 So.3d at 849 (¶ 12) (citations and internal quotation marks omitted).

¶ 13. Although the Mississippi courts recognize the "liberal federal policy favoring arbitration," Qualcomm Inc. v. Am. Wireless License Grp. LLC , 980 So.2d 261, 268 (¶ 15) (Miss. 2007), the courts "will not construe arbitration agreements so broadly 'as to encompass claims and parties that were not intended by the original contract.' " Driver Pipeline , 104 So.3d at 850 (¶ 13) (quoting Smith ex rel. Smith v. Captain D's LLC , 963 So.2d 1116, 1119 (¶ 11) (Miss. 2007) ). This is so because "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Id.

DISCUSSION

I. Whether Section 8 of Attachment 5 to the Contract is a Binding Arbitration Agreement

¶ 14. As noted, the arbitration language at issue in this case is contained in Section 8 of Attachment 5 to the Contract, which provides as follows:

Attachment No. 5. Mississippi Development Authority Special Provisions to be included in all Contracts between the Subrecipient and Contracted Parties and in ALL Contracts between Contracted Parties and their Subcontractors.
....
8. The Subrecipient [Port Authority] and the Contracted Party [SIC] agree to resolve all claims and contract disputes by negotiations, arbitration, litigation, or other means as provided in the Contract documents and state law, prior to submission of any related change order or Contract Amendment to MDA for review and approval, in order to obtain a grant eligibility or allowability determination.

The Port Authority asserts that Section 8 is not a binding arbitration clause because, by its plain terms, the parties have not manifested their intent to make arbitration their sole remedy or to waive their rights to litigation.

¶ 15. In particular, the Port Authority argues that for an arbitration provision in a contract to be enforceable, that provision must make arbitration the only remedy. Brennan v. King , 139 F.3d 258, 265-67 (1st Cir. 1998) ; see Red Brick Partners-Brokerage LLC v. Staubach Co. , No. 4:08cv82-SPM-WCS, 2008 WL 2743689, at *4 (N.D. Fla. 2008) ("Inherent to the notion of agreeing to arbitrate ... disputes through to completion is that such procedures must be mandatory and exclusive."). Further, the Mississippi Supreme Court "traditionally has viewed arbitration agreements as tantamount to a settlement between the parties where the arbitration agreement would be the exclusive source of rights and liabilities of the parties." Robinson v. Henne , 115 So.3d 797, 802 (¶ 15) (Miss. 2013) (emphasis added) (internal quotation mark omitted); City of Hattiesburg v. Precision Constr. LLC , 192 So.3d 1089, 1096 (¶ 27) (Miss. Ct. App. 2016). Additionally, "when parties agree to binding arbitration, they waive their rights to litigate ...." Storm Reconstruction Servs. Inc. v. Kellogg Brown & Root Servs. Inc. , No. 1:06CV726-LG-JMR, 2007 WL 3124559, at *3 (S.D. Miss. Oct. 24, 2007) ; see also Qualcomm , 980 So.2d at 269 (¶ 15). Section 8 provides that the parties "agree to resolve all claims and contract disputes by negotiations, arbitration, litigation, or other means as provided in the Contract documents and state law ...." The Port Authority asserts that the parties did not agree to make arbitration their exclusive remedy under the plain wording of this provision, nor did they agree to waive their right to resolve their claims by litigation. In short, the Port Authority asserts that Section 8 of the Contract does not create a binding arbitration agreement between the parties.

¶ 16. SIC, on the other hand, asserts that Section 8 clearly and unambiguously provides that the parties "agree" to resolve their disputes by any of the means set forth in the provision, including arbitration, and SIC has chosen to arbitrate the dispute from the alternatives offered. SIC asserts that an arbitration provision need not be identified as an exclusive means of dispute resolution; rather, once a party elects arbitration, the other party cannot neutralize that choice by insisting on litigating in court. For this proposition, SIC relies upon cases that hold that clauses providing, for example, that the other party may elect to submit a dispute to binding arbitration, are binding notwithstanding use of the word "may."

¶ 17. We find that the plain language of Section 8 of Attachment 5 to the Contract shows that there was no agreement to arbitrate between the parties. Accordingly, we hold that the circuit court erred in granting SIC's motion to compel arbitration. The cases SIC relies upon in support of its argument that Section 8 is a binding arbitration agreement are distinguishable and do not support its argument on this issue. Unlike the provisions in the cases SIC cites, Section 8 does not use express, unconditional language providing either party with the unilateral right to submit a dispute to binding arbitration. Instead, it provides the parties with various dispute resolution options, none to the exclusion of the other.

¶ 18. Further, in the cases SIC relies upon, either (1) the parties had unequivocally agreed to arbitrate a set of claims in the contract; or (2) the contract contained detailed arbitration provisions-which provided, for example, for the selection of arbitrators, the location of arbitration, and the rules governing arbitration-which confirmed that the parties agreed to arbitrate their disputes. In contrast, Section 8 is part of Attachment 5 of the Contract, which sets forth the MDA's Standard Terms and Conditions, and basically serves to notify the parties that they were free to choose how to resolve their disputes by including a dispute resolution provision in the main Contract or by leaving the matter open to the options provided by state law. We find no legal basis for SIC's proposition that the open-ended language of Section 8 converts to a binding arbitration agreement simply because the parties left the matter of dispute resolution open to options provided under state law.

¶ 19. SIC also relies upon Harrison County Commercial Lot LLC v. H. Gordon Myrick Inc. , 107 So.3d 943 (Miss. 2013), for the proposition that arbitration need not be the exclusive dispute resolution mechanism in a contract in order for it to be enforceable. Id. at 950-51 (¶¶ 16-18). We also find that Myrick is distinguishable. In Myrick , the contract provided for two categories of claims-one category of claims was subject to arbitration, and the other category, "[c]laims relating to aesthetic effect," id. at 950 (¶ 16), could be litigated. The Mississippi Supreme Court held that the separate arbitration provisions "state[d] clearly that mediation is a condition precedent to arbitration, and arbitration is the sole method of dispute resolution for all claims, except those related to aesthetic effect." Id. at 951 (¶ 18). That is not the case with respect to the plain language of Section 8 in this case.

¶ 20. Finally, SIC argues that the lack of details regarding how arbitration is to be conducted should not be a consideration in determining whether Section 8 is a binding arbitration provision because the Mississippi Arbitration Act provides default rules governing the arbitration process. We acknowledge that the lack of details regarding how arbitration is to be conducted is not a dispositive factor, but it does lend additional support to our determination that the plain language of Section 8 does not convey the requisite intent to arbitrate which must be present in order to bind the parties to arbitration. Driver Pipeline , 104 So.3d at 850 (¶ 13) ("Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit."). In the words of the supreme court in Driver Pipeline , "[b]ased on what is before us, we find that the parties did not agree to submit to arbitration, and we will not require parties to arbitrate when they did not agree to do so." Id.

¶ 21. As addressed above, in determining whether a motion to compel arbitration should have been granted, we must first "determine if the parties have agreed to arbitrate the dispute, [which involves] two considerations [that] are taken into account: (1) whether there is a valid arbitration agreement and (2) whether the parties' dispute is within the scope of the arbitration agreement." Id. at 849 (¶ 12). In light of our finding that the plain language of the Contract reveals no agreement to arbitrate, our "analysis stops with the first consideration of [this] test, and we need not go any further." Id. at 850 (¶ 14). We reverse and render the circuit court's order granting SIC's motion to compel arbitration.

II. Whether SIC's Wrongful Termination Claim Falls Within the Purview of the MTCA

¶ 22. Having reversed the circuit court's order granting SIC's motion to compel arbitration, we next address the Port Authority's assertion that the circuit court's order denying its motion to dismiss should be reversed because SIC's wrongful termination claim in its complaint is covered by the MTCA. Because SIC did not provide the Port Authority with ninety days' written notice as required under the MTCA, see Mississippi Code Annotated section 11-46-11(1) (Rev. 2004), the Port Authority asserts that this claim should be dismissed.

¶ 23. The Port Authority bases its argument that SIC has asserted a tortious wrongful termination claim on one sentence from SIC's complaint alleging that "SIC is entitled to damages in the amount of $10,000,000 for its wrongful termination." Relying primarily upon Suddith v. The University of Southern Mississippi , 977 So.2d 1158 (Miss. Ct. App. 2007), the Port Authority argues that SIC's wrongful termination claim is a state law tort claim within the purview of the MTCA.

¶ 24. The Port Authority's reliance on Suddith is misplaced. In Suddith , the plaintiff brought numerous claims against the University and others, including federal claims, a breach of contract claim under the plaintiff's employment contract, and various state-law tort claims. 977 So.2d at 1165 (¶ 5). This Court addressed Suddith's breach of contract claim on the merits, affirming the trial court's grant of summary judgment in the defendants' favor based on its determination that the University and others "did not breach Suddith's contract by failing to act on his untimely grievance." Id. at 1177 (¶ 42).

¶ 25. This Court then held that Suddith's tort claims were governed by the MTCA, id. at (¶ 44), and analyzed those claims under the MTCA. In doing so, we specified that "Suddith's tort claims ... included negligence, tortious interference with Suddith's employment contract, intentional infliction of emotional distress, negligent infliction of emotional distress, outrage, promissory estoppel, equitable estoppel, and detrimental reliance." Id. at (¶ 43). Our review of SIC's complaint shows that SIC makes no such claims here, nor does SIC assert any claim based upon any implied covenants, such as an implied covenant of good faith and fair dealing. As such, we find that the Port Authority's assignment of error on this issue is without merit.

¶ 26. In particular, SIC's lawsuit does not reference negligence or any delictual acts on the part of the Port Authority. In its complaint, SIC alleges one count against the Port Authority, entitled "COUNT I: BREACH OF CONTRACT," which provides: "[t]he [Port Authority's] actions and omissions constitute a breach of the contract between SIC and [the Port Authority] for which the [Port Authority] is liable to SIC." Attached to SIC's complaint is SIC's notice of intention to arbitrate that, consistent with the allegations in SIC's lawsuit, provides that "[t]he nature of the dispute involves losses sustained by SIC as a result of the [Port Authority's] breach of its contractual obligations." SIC quantified each of its claims in its notice, including a line-item for "wrongful termination" in the amount of $10,000,000. Although SIC does not expressly cite the termination clause of the Contract, we find no indication in SIC's complaint, including the attached notice of intention to arbitrate, that SIC is seeking anything more than damages incurred as a result of the Port Authority's alleged wrongful breach of the Contract, including the termination provision. SIC is the master of its complaint and is entitled to control the type of claims asserted in its lawsuit. See, e.g. , Patton Med. of Gulf Coast Inc. v. Relle , No. 2017-CA-00122-COA, 2018 WL 1602518, at *12 n.8 (¶ 66) (Miss. Ct. App. Apr. 3, 2018).

¶ 27. In short, the MTCA is not implicated in this case. A contract exists between the parties, SIC has brought this action for breach of that specific contract and has not alleged any breach of some duty independent of the Contract. See, e.g. , Hazell Mach. Co. v. Shahan , 249 Miss. 301, 317, 161 So.2d 618, 623 (1964) ("Actions at law of a personal nature may be, in form, either ex contractu-that is, based upon contract-or ex delicto-based upon tort ... and a mere matter of contract cannot be converted into a tort .... In a general way, a tort is distinguished from a breach of contract in that the latter arises under an agreement of the parties, whereas the tort, ordinarily, is a violation of a duty fixed by law, independent of contract or the will of the parties...."); Clausell v. Bourque , 158 So.3d 384, 391 (¶ 23) (Miss. Ct. App. 2015) ("[T]he breach of a contract (whether described as negligent or not) is not actionable in tort under an ordinary negligence theory unless breaching the contract also breached a duty of care recognized by tort law.") (internal quotation marks omitted). We affirm the circuit court's order denying the Port Authority's motion to dismiss on this issue.

III. Whether Venue is Improper in the First Judicial District of Hinds County

¶ 28. Having determined that the parties did not agree to arbitrate this matter, and that SIC's breach of contract claim is not subject to the MTCA, we turn to the Port Authority's final assignment of error concerning the proper venue for this matter. The Port Authority asserts that venue is improper in the First Judicial District of Hinds County, and that the proper venue for this lawsuit is in the First Judicial District of Harrison County because the Port Authority resides in Harrison County, the events giving rise to the lawsuit occurred in Harrison County, and the Port Authority's principal and only place of business is in Harrison County. We find that pursuant to Mississippi's general venue statute, Mississippi Code Annotated section 11-11-3 (Rev. 2004), venue is proper in the First Judicial District of Harrison County.

¶ 29. Mississippi Rule of Civil Procedure 82(b) provides that venue shall be governed exclusively by statute. In this case, there is not a specific statute governing venue under the Port Authority's enabling legislation, the State Ports and Harbors Law ( Mississippi Code Annotated section 59-5-1 through section 59-5-69 (Rev. 2013), nor is there any other specific statutory provision governing venue in this matter. As such, venue for SIC's breach of contract claim is governed by the general venue statute for circuit courts, section 11-11-3, which provides, in relevant part, as follows:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

Miss. Code Ann. § 11-11-3(1)(a)(i) (Rev. 2004).

¶ 30. SIC does not dispute that the Port Authority's "principal place of business" is in Harrison County, nor does it provide any record citation, argument, or authority that a "substantial event" giving rise to its breach of contract claim occurred anywhere other than in Harrison County. SIC, however, asserts that venue is proper in Hinds County because the Port Authority is an "agency of the state", see Miss. Code Ann. § 59-5-21 (Rev. 2013), and that both the Mississippi Supreme Court and this Court have recognized that a state agency "resides" in Hinds County for venue purposes. See Moore v. Bell Chevrolet-Pontiac-Buick-GMC LLC , 864 So.2d 939, 944-45 (¶¶ 22-23) (Miss. 2004) ; Office of Governor Div. of Medicaid v. Johnson , 950 So.2d 1033, 1035 (¶ 5) (Miss. Ct. App. 2006).

¶ 31. In Moore , the Mississippi Supreme Court relied upon Mississippi Code Annotated section 11-45-1 (Rev. 2012) in determining that Hinds County was the proper venue for a discovery lawsuit brought by the Mississippi Automobile Dealers against the attorney general in his official capacity. 864 So.2d at 944-45 (¶¶ 22-23). In addressing where the Attorney General's Office "resides" for purposes of determining venue under the general chancery court venue statute, the supreme court looked to the portion of section 11-45-1 italicized below, which addresses where lawsuits against the state may be brought, as follows:

Any person having a claim against the State of Mississippi, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant on the treasurer in payment of such claim, may, where it is not otherwise provided, bring suit therefor against the state, in the court having jurisdiction of the subject matter which holds its sessions at the seat of government ....

Miss. Code Ann. § 11-45-1 (emphasis added). The supreme court further observed that Article 4, Section 101 of the Mississippi Constitution provides that "[t]he seat of government of the state shall be at the city of Jackson." See Moore , 864 So.2d at 945 (¶ 23). From this, the supreme court held that "[c]learly, the proper county in which to have sued the Attorney General's Office, which is a state agency, is the county in which the seat of government is located." Id. Citing Moore for this proposition, this Court, in Johnson , held that proper venue under section 11-5-1 belonged in Hinds County for a plaintiff's appeal from the Division of Medicaid's denial of nursing home benefits. Johnson , 950 So.2d at 1035 (¶ 5).

¶ 32. We find that Moore and Johnson are distinguishable and do not apply here for several reasons, and we hold that for purposes of determining venue under section 11-11-3 in this case, the Port Authority "resides" in the First Judicial District of Harrison County, Mississippi. We first observe that the agencies in Moore and Johnson had their principal places of business in Hinds County (the Office of the Attorney General and the Mississippi Division of Medicaid, respectively), so there was no factual basis to challenge where those agencies "reside" for venue purposes. Further, the Mississippi Supreme Court's recent decision in Purdue Pharma L.P. v. State , 256 So.3d 1 (Miss. Oct. 18, 2018), shows that the "location" of a state agency is the relevant consideration. In Purdue Pharma , the Mississippi Supreme Court applied section 11-11-3(1)(b), which places venue in a civil action against a nonresident "in the county where the plaintiff resides or is domiciled." Id. at 6 (¶ 17). The supreme court held that venue in Hinds County was appropriate because that is where "the State's Medicaid agency is located ... along with most state agencies." Id. at 7 (¶ 18).

¶ 33. In this case the Port Authority's offices, operations, employees, and commissioners are located in Harrison County. Specifically, the Port Authority was created as a separate governmental entity with the express right to sue and be sued in its own name, and is charged with the oversight of the Port of Gulfport. See Miss. Code Ann. §§ 59-5-21, 59-5-37 (Rev. 2013). The record and applicable statutory law reflect that the Port Authority's principal office, and all Port facilities, are entirely situated in the City of Gulfport, Harrison County, Mississippi, see Miss. Code Ann. § 59-5-37(3)(a) (referencing the Port Authority's operations and facilities "at the State Port at Gulfport, Mississippi"), and all members of the Port Authority Board of Commissioners are required to be residents of Harrison County. See Miss. Code Ann. § 59-5-21.

¶ 34. We find no Mississippi case in which a state agency under these circumstances has been deemed to reside in Hinds County for venue purposes. Further, decisions in our sister states support the proposition that the Port Authority both "resides" and has its "principal place of business" in Harrison County. See Ala. Youth Servs. Bd. v. Ellis , 350 So.2d 405, 408 (1977) (recognizing that "[a] governmental body is generally regarded as having its residence for purposes of venue in the county where its principal place of business is located, or in the place where its domicile is fixed by law." (quoting 92A C.J.S. Venue § 115) (1977) ); see also Dickinson v. Fla. Nat'l Org. for Women Inc. , 763 So.2d 1245, 1247 (Fla. Dist. Ct. App. 2000) ("Pursuant to section 47.011 Florida Statutes (1999), actions shall only be brought in the county where the defendant resides. In the case of state agencies, the county of 'residence' is where the agency's headquarters are located.").

¶ 35. Also distinguishing the Port Authority from the defendant agencies in Moore and Johnson is that although the Port Authority is deemed a state agency under section 59-5-21, it possesses very unique legislative characteristics under its enabling legislation. We find it particularly relevant that the Port Authority is defined as a "governing authority," rather than an "agency" under the state public purchasing laws, as follows:

The State Port Authority shall be considered to be a "governing authority" under the state public purchasing laws as that term is defined in Section 31-7-1 and used in Sections 31-7-1 through 31-7-73, and shall not be subject to the jurisdiction of the Department of Finance and Administration, the Public Procurement Review Board or the Bureau of Building, Grounds and Real Property Management....

Miss. Code Ann. § 59-5-37(2)(b) (Rev. 2013). Compare Miss. Code Ann. § 31-7-1(a) (Supp. 2016) (defining "agency" under the state public purchasing laws, and specifically excepting the Mississippi State Port Authority), with Miss. Code Ann. § 31-7-1(b) (Supp. 2016) (defining "governing authority" under the state public purchasing laws and specifically including the Mississippi State Port Authority). The Contract the Port Authority entered with SIC arose from the Port Authority's procurement of a contractor for the Project, and we find no authority suggesting that a "governing authority," having no connection at all to Hinds County, is generally subject to venue in Hinds County in this context.

¶ 36. Moore and Johnson also lack precedential value in the case at hand because, as noted above, the supreme court in Moore made its venue determination looking only at the portion of section 11-45-1 addressing where lawsuits against the state may be brought, i.e., "in the court having jurisdiction of the subject matter which holds its sessions at the seat of government." See Moore , 864 So.2d at 944-45 (¶¶ 22-23). The supreme court, however, did not address the first portion of section 11-45-1, which, by its plain terms, limits application of this statute to those cases in which demand is first made on the state auditor and he has refused to pay, i.e., "[a]ny person having a claim against the State of Mississippi, after demand made of the auditor of public accounts therefor, and his refusal to issue a warrant on the treasurer in payment of such claim may, where it is not otherwise provided, bring suit therefor against the state in the court having jurisdiction of the subject matter which holds its sessions at the seat of government ...." Miss. Code Ann. § 11-45-1 (emphasis added).

¶ 37. This is relevant because in Mississippi State Building Commission v. S & S Moving Inc. , 475 So.2d 159 (Miss. 1985), the Mississippi Supreme Court did address the first portion of section 11-45-1 in the context of a breach of contract claim against the state building commission, and held that section 11-45-1 did not apply. Id. at 162. The supreme court rejected the building commission's argument that S & S's breach of contract action against it should have been dismissed because it did not first follow the presentment procedures under section 11-45-1. Id. In making this determination, the supreme court held that section 11-45-1 applies only in cases where the state auditor has authority over the claim at issue, and does not apply to "a claim for damages for breach of contract." Id.

¶ 38. We acknowledge that the supreme court in S & S Moving did not address the portion of section 11-45-1 that addresses where lawsuits against the State may be brought, as it had no reason to do so. Here, however, this issue is before us. We find no basis for applying the venue aspect of section 11-45-1 when the Mississippi Supreme Court has squarely held that this statute does not apply to cases in which the state auditor does not have authority over the claim at issue-like SIC's breach of contract claim in this case. S & S Moving Inc. , 475 So.2d at 162. For this additional reason, we find that the Moore decision, which did not address the first portion of section 11-45-1, does not support SIC's assertion that Hinds County is the proper venue in this breach of contract lawsuit against the Port Authority. We further find that Johnson does not support SIC's argument, as this Court relied on Moore in Johnson for the general proposition that venue is proper for a state agency in Hinds County, but, like the Moore court, did not address the applicability of section 11-45-1 to the particular case before it. Johnson , 950 So.2d at 1035 (¶ 5).

¶ 39. Finally, as recognized in a respected Mississippi treatise, "venue rules operate to locate where within the state court system a civil action might be conveniently and fairly tried." 1 Jeffrey Jackson, Donald Campbell & Justin Matheny, MISSISSIPPI CIVIL PROCEDURE-MISSISSIPPI PRACTICE SERIES , § 3:1 at 252 (2018 ed.); see Van Slyke , 510 So.2d at 492 ("[I]t is the uniform policy of judicial procedure in our state to bring all litigation in personam to the home of the defendant, and the [venue] statute must be construed in the light of that policy."). We find that this policy can only be served by locating venue for this case in Harrison County, where the Project, and the Port Authority's offices, operations, employees, and commissioners are located. Indeed, SIC, a foreign corporation, offers no factual basis for locating venue in Hinds County, Mississippi, but relies solely upon its legal argument that the Port Authority "resides" in Hinds County, an argument we reject above.

¶ 40. In sum, based upon our review of the record, and the applicable statutes, case law, and other authorities, we find that for venue purposes, the Port Authority "resides" in the First Judicial District of Harrison County. Accordingly, we reverse the circuit court's decision denying the Port Authority's motion to dismiss on this issue, and remand this case to the circuit court for entry of an order transferring this case to Harrison County Circuit Court, First Judicial District. See Fluker v. State , 200 So.3d 1148, 1149 (¶ 3) (Miss. Ct. App. 2016) ("[I]mproper venue is a reason to transfer a case, not to dismiss it.").

¶ 41. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; AND REVERSED AND REMANDED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      The Project is one of many projects that are part of a massive, on-going Port of Gulfport Restoration Program that is being funded by a Community Development Block Grant (CDBG) Sub-grant Agreement between the Mississippi Development Authority (MDA) and the Port Authority. The MDA is responsible for administering Hurricane Katrina disaster-recovery programs that are funded by CDBG funds and overseen by the United States Department of Housing and Urban Development (HUD). Recipients of CDBG funds must comply with an array of federal rules and regulations when using CDBG funds on any given project.

      As noted in the Port Authority's principal brief, the Contract has not been included in the record in its entirety because the general conditions, supplemental conditions, specifications, and contract drawings comprise over 1,150 pages. The parties have included in the record the Contract excerpts that they believe are relevant to this appeal.

      Before the circuit court, the Port Authority also argued that the parties had engaged in negotiations to the exclusion of arbitration, and that the Port Authority is entitled to discretionary-function immunity under Mississippi Code Annotated section 11-46-9 (Rev. 2004) of the MTCA. The Port Authority does not raise these issues on appeal.

      See, e.g. , Benihana of Tokyo LLC v. Benihana Inc. , 73 F.Supp.3d 238, 244 (S.D.N.Y. 2014) ("[E]ither party by written notice to the other party may elect to submit the dispute to binding arbitration in accordance with the foregoing procedure."); Hanover Ins. Co. v. Kiva Lodge Condo. Owners' Ass'n Inc. , 221 So.3d 446, 448-49 (Ala. 2016) ("Any Claim arising out of or related to the Contract ... may at the election of either party ... be subject to arbitration."); Celtic Life Ins. Co. v. McLendon , 814 So.2d 222, 224 (Ala. 2001) ("Controversies or disputes arising out of, in connection with, or relating to this certificate which cannot be resolved to the satisfaction of both parties, may be resolved by arbitration ...."); Chiarella v. Vetta Sports Inc. , 1994 WL 557114, at *3 (S.D.N.Y. 1994) ("[E]ither party may submit the dispute to the American Arbitration Association ... in New York City for resolution ....").

      See, e.g. , Benihana of Tokyo , 73 F.Supp.3d at 244 ; Chiarella , 1994 WL 557114, at **2-3.

      See, e.g. , Hanover Ins. Co. , 221 So.3d at 456 (arbitration provision provided that arbitration was to be "in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association ... unless the parties mutually agree otherwise."); Celtic Life Ins. Co. , 814 So.2d at 224-225 ("These latter clauses resolve any ambiguity created by the use of the word 'may' and make it clear that arbitration is not 'optional.' "); Benihana of Tokyo , 73 F.Supp.3d at 244 (Arbitration to be settled by "the [AAA] in the City of New York" by an "arbitration panel [ ]consist[ing] of three (3) members, one (1) of whom shall be chosen by Licensor, and one (1) by Licensee and the other by the two (2) so chosen."); Chiarella , 1994 WL 557114, at *2 ("[E]ither party may submit the dispute to the [ ]AAA[ ] in New York City for resolution before a single arbitrator chosen by the AAA.").

      The separate arbitration provisions provided, in relevant part:
      4.6.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived ... shall ... be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5.
      4.6.2 Claims not resolved by mediation shall be decided by arbitration.
      Myrick , 107 So.3d at 950 (¶ 16).

      See, e.g. , Miss. Code Ann. § 11-15-109 (Rev. 2004) (providing for the appointment of arbitrators); Miss. Code Ann. § 11-15-113 (Rev. 2004) (governing the hearing process); Miss. Code Ann. § 11-15-117 (Rev. 2004) (addressing subpoenas and discovery).

      Questions concerning application of the MTCA are subject to a de novo standard of review. Kelley LLC v. Corinth Pub. Utils. Comm'n , 200 So.3d 1107, 1112-13 (¶ 14) (Miss. Ct. App. 2016).

      For the reasons addressed below, we find that Mississippi Code Annotated section 11-45-1 (Rev. 2012), which governs venue for certain actions against the State of Mississippi, does not apply to SIC's breach of contract lawsuit against the Port Authority.

      SIC also cites Gaskin v. Commonwealth of Pennsylvania , No. 94-4048, 1995 WL 154801 (E.D. Pa. Mar. 30, 1995), for the proposition that "[f]or venue purposes, the residence of a state agency or state official is the state [capital], even when branch offices of the state agency are maintained in other parts of the state." Id. at *1. This case is not binding authority, nor do we find it persuasive. The Port Authority's only location is in Harrison County. It has no branch offices. Further, even the Eastern District of Pennsylvania has recognized that for venue purposes, a state official only "resides" in the state capital if the official has "statewide jurisdiction," and otherwise the residence of a state official is where he performs his official duties. See Tirado v. Stepanik , No. 95-1103, 1997 WL 337141, at *1-2 (E.D. Pa. 1997). Here the record and the applicable statutes reflect that the official business of the Port Authority takes place in Harrison County.

      Mississippi Code Annotated section 11-5-1 (Rev. 2002) provides, in relevant part, that "all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found...."

      As noted, in Moore v. Bell Chevrolet-Pontiac-Buick-GMC LLC , 864 So.2d 939 (Miss. 2004), the attorney general was sued in his official capacity, and we take judicial notice that the Office of the Attorney General is located in Jackson, Mississippi.
      Similarly, the defendant in the Office of the Governor Division of Medicaid v. Johnson , 950 So.2d 1033 (Miss. Ct. App. 2006), the Mississippi Division of Medicaid, is located in Jackson, Mississippi. In Johnson , the plaintiff appealed Medicaid's denial of his nursing home benefits in the Chancery Court of Walthall County. 950 So.2d at 1034. In addressing the venue issue, this Court specifically acknowledged that "it was undisputed that Medicaid does not have an office in Walthall County," and ultimately determined that venue was proper in Hinds County Chancery Court. Id. at 1035.
      Additionally, in Board of Trustees of State Institutions of Higher Learning v. Van Slyke , 510 So.2d 490 (Miss. 1987), a case also cited by SIC, the supreme court held that the chancery court erred in refusing to transfer this lawsuit against the Board of Trustees to the First Judicial District of Hinds County, specifically acknowledging that "all parties agree, and it is a matter of common knowledge, that the 'public body' subject to this action is located in Hinds County." Id. at 492-93. The supreme court refused to subject the Board of Trustees to suit in any county where it conducted business, which would require it to defend actions in all eighty-two countries. Id. at 493. These circumstances are not present in this case.

      This same proposition is now found in 92A C.J.S. Venue § 101 (2010).


author: BARNES, J., FOR THE COURT:

text:
    Edmond L. LINDSEY, Appellant v. FORD MOTOR COMPANY and Country Ford, Appellees
    NO. 2017-CP-00751-COA
    Court of Appeals of Mississippi.
    December 18, 2018 Rehearing Denied April 30, 2019
    ATTORNEY FOR APPELLANT: EDMOND L. LINDSEY (PRO SE)
    ATTORNEYS FOR APPELLEES: D. STERLING KIDD, JACKSON, WILLIAM ALBERT BROWN, HERNANDO, WILLIAM TYLER SCOTT
    BEFORE GRIFFIS, P.J., BARNES AND WILSON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Edmond Lindsey sued Ford Motor Company and Country Ford, alleging that he was sold a defective vehicle and was entitled to a full refund of the purchase price. Lindsey failed to provide support for his claim, and the circuit court granted summary judgment to the defendants. Finding summary judgment was appropriately granted, we affirm.

FACTS

¶ 2. According to Lindsey's pro se complaint filed on August 13, 2012, in the DeSoto County Circuit Court, he went to Country Ford in Southaven, Mississippi, on April 4, 2012, to purchase a red 2012 Ford Focus hatchback. Country Ford did not have one in stock; so the salesperson offered to order one. The salesperson then offered to let Lindsey test drive a similar model, a white 2012 Ford Focus, that he found "in the shop." After the test drive, Lindsey's wife expressed interest in the white Ford Focus and asked, "[W]hat's wrong with this car?" Lindsey asserts that the salesperson did not respond to her question but offered them the vehicle for $1,000 less than the red Focus, and Lindsey purchased it.

¶ 3. Lindsey alleged that he returned to Country Ford approximately two weeks later on April 19, 2012, and complained to a service technician that the vehicle was "jerking, coasting, stalling, rolling backwards after stopping and taking off again" and that "[a]pplication of the brakes periodically influence[d] the direction of the car." According to Lindsey, the technician responded, "[T]here is nothing wrong with the car[;] they all do that." Lindsey claimed that a sales manager stated he was going to drive the car, but he declined to do so after speaking with the service technician. The sales manager, Terry Pierce, disputed this claim, stating through an affidavit that Lindsey refused to accompany him on the test drive and left the dealership. Lindsey stated that before leaving the dealership, he asked for his money back, but the sales manager refused. Lindsey alleged that he later discovered that the vehicle, which had been represented as new, had been previously titled in Mississippi. In his complaint, Lindsey alleged breach of warranty, and he sought a full refund of the vehicle's purchase price plus damages and court costs.

¶ 4. Discovery proceeded, and various motions were filed intermittently during the next four years. At one point, in May 2016, the circuit clerk moved for dismissal of the case for failure to prosecute. On December 29, 2016, Ford Motor Company moved for summary judgment. After a hearing, its motion was granted. On April 27, 2017, Country Ford moved for summary judgment. The next day, Lindsey moved to amend his complaint to add additional claims against Country Ford. He also filed motions to compel additional discovery and for the recusal of the circuit court judge. All of Lindsey's motions were denied. After a hearing, the circuit court granted Country Ford's motion for summary judgment. Lindsey's motion for reconsideration of the orders granting summary judgment was denied. Lindsey appeals.

STANDARD OF REVIEW

¶ 5. Summary judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party, "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) ; Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88 (¶ 9) (Miss. 2013). To rebut a motion for summary judgment, the nonmovant may not "rest upon the mere allegations or denials of his pleadings ...." M.R.C.P. 56(e). Rather, the nonmovant must respond "by affidavit or as otherwise provided in [ Rule 56 ]," and he "must set forth specific facts showing that there is a genuine issue for trial." Karpinsky , 109 So.3d at 88 (¶ 10). We review the grant of summary judgment de novo. Id. at (¶ 9).

¶ 6. Rulings on motions for leave to amend a complaint and discovery-related motions are reviewed for abuse of discretion. Elliott v. AmeriGas Propane L.P. , 249 So.3d 389, 398 (¶ 38) (Miss. 2018).

DISCUSSION

I. Express Warranty

¶ 7. Lindsey argues that Ford Motor Company and Country Ford breached the terms of the vehicle's express warranty because the vehicle's transmission was defective.

¶ 8. The express warranty, as explained by Ford Motor Company, was a "repair or replace warranty." It stated that Ford would repair or replace parts that malfunction or fail due to manufacturing defects. Thomas Messerly and Christopher Groh, field-service engineers for Ford Motor Company, inspected the vehicle in March 2014. The inspection report states, "Test drove vehicle with customer on a route of his choosing to demonstrate concerns." Messerly, who had been employed with Ford for approximately twenty-three years, provided an affidavit stating that "[d]uring the test drive, no transmission concerns or issues occurred. The transmission and braking functioned properly as designed and as expected.... The concerns identified by Plaintiff are described as a normal characteristic in the PowerShift 6-Speed Transmission Operating Characteristics." Ford Motor Company submitted documentation that the vehicle was engineered with a six-speed transmission designed to "drive, sound, and feel like a manual transmission but without the driver interaction" for better fuel economy. Lindsey does not challenge Messerly's qualifications to make these findings, and he presented no evidence in rebuttal as required by Rule 56(e).

¶ 9. Because Lindsey presented no evidence that the vehicle had manufacturing defects or that his complaints were not part of the normal function of the vehicle, summary judgment was appropriately granted on his express-warranty claim.

II. Opportunity to Repair

¶ 10. Even if the vehicle were proved defective, Lindsey's claims still fail because he has not given Ford Motor Company or Country Ford an opportunity to repair the vehicle. The only remedy Lindsey seeks is a refund of the vehicle's purchase price. However, before a buyer is entitled to a refund of a vehicle's purchase price, the manufacturer must be given a reasonable opportunity to cure the alleged defect. Miss. Code Ann. § 63-17-159(1) (Rev. 2013); Mercury Marine v. Clear River Const. Co., 839 So.2d 508, 512 (¶ 13) (Miss. 2003).

¶ 11. Section 63-17-159(1) states:

If the manufacturer or its agent cannot conform the motor vehicle to any applicable express warranty by repairing or correcting any default or condition which impairs the use, market value, or safety of the motor vehicle to the consumer after a reasonable number of attempts , the manufacturer shall give the consumer the option of having the manufacturer either replace the motor vehicle with a comparable motor vehicle acceptable to the consumer, or take title of the vehicle from the consumer and refund to the consumer the full purchase price, including all reasonably incurred collateral charges, less a reasonable allowance for the consumer's use of the vehicle.

(Emphasis added). A "reasonable number of attempts" is presumed to have occurred if the vehicle has been subject to repairs three or more times within a year of purchase of the vehicle or if the vehicle is out of service by reason of repair for a total of fifteen or more working days within the first year after purchase. Miss. Code Ann. § 63-17-159(3)(a)-(b). Further, it is an affirmative defense under this section that "[a]n alleged nonconformity does not impair the use, market value or safety of the motor vehicle ...." Miss. Code Ann. § 63-17-159(2)(a).

¶ 12. It is undisputed that neither Ford Motor Company nor Country Ford were given at least three attempts to repair the alleged defects. Further, there was no allegation that the alleged defects impaired the use or market value of the vehicle or put the vehicle out of service for fifteen or more days. Although Lindsey said he felt unsafe in the vehicle, there was no evidence that the issues complained of actually affected the vehicle's safety.

¶ 13. In Fitzner Pontiac-Buick-Cadillac Inc. v. Smith , 523 So.2d 324 (Miss. 1988), the plaintiff sought a refund of the purchase price of a vehicle from a car dealership after the vehicle began to experience transmission and other mechanical problems. The Mississippi Supreme Court found that the plaintiff was not entitled to a refund because he failed to give the seller an opportunity to cure the defects; rather, the only remedy the buyer was willing to accept was a refund of the purchase price. Id. at 328.

¶ 14. Lindsey did provide the vehicle for inspection at Ford Motor Company's request. Lindsey asked that the inspection be done at a location other than Country Ford, and Ford Motor Company complied and held the inspection at Dobbs Ford in Memphis, Tennessee. The inspection occurred on March 4, 2014, and took less than two hours. It was completed by service engineers Messerly and Groh. They found that the vehicle operated normally.

¶ 15. At Lindsey's deposition in February 2013, he testified that he had recently taken the vehicle to a Ford dealership for an oil change. When he complained that the vehicle was not functioning properly, the dealership performed a recalibration as part of a normal update. Lindsey could not say whether the recalibration had resolved the issues. Country Ford's sales manager, Terry Pierce, stated in his affidavit that "Country Ford was willing and able to diagnose any mechanical issues had Lindsey allowed Country Ford to do so." Pierce stated he asked Lindsey to accompany him on a test drive of the vehicle on April 19, 2012, but Lindsey refused and left in the vehicle. And Ford Motor Company offered prior to and at Lindsey's deposition to attempt to repair the vehicle to resolve any remaining issues. Lindsey did not accept the offers. This issue is without merit.

III. Fraud or Misrepresentation

¶ 16. Lindsey asserts that issues with the vehicle were intentionally withheld or misrepresented at the time of purchase, despite his wife specifically asking, "[W]hat's wrong with this car?" "The duty to disclose is based upon a theory of fraud that recognizes that the failure of a party to a business transaction to speak may amount to the suppression of a material fact which should have been disclosed and is, in effect, fraud." Holman v. Howard Wilson Chrysler Jeep Inc. , 972 So.2d 564, 568 (¶ 9) (Miss. 2008).

1. Vehicle Allegedly Misrepresented as New

¶ 17. Lindsey argues that Country Ford represented the vehicle as new, but it was actually used as evidenced by the lack of a "Monroney sticker" and door-well sticker. He also argues the date of delivery of the vehicle was falsified. "Representing that goods are original or new if they are reconditioned, reclaimed, used, or secondhand" is a violation of Mississippi's Consumer Protection Act. Miss. Code Ann. § 75-24-5(2)(f) (Rev. 2016).

¶ 18. At Lindsey's request, Ford Motor Company provided documentation that the vehicle was shipped directly from Ford Motor Company to Country Ford. The documentation listed the truck driver's name who delivered the vehicle and the truck and trailer numbers. Lindsey's name is the only name that appears on the bill of sale. The title Lindsey received for the vehicle showed the previous owner as "MSO," or manufacturer's statement of origin. Country Ford sales manager Terry Pierce and salesman Aaron Williams stated through affidavits that the vehicle was new when Lindsey purchased it. Lindsey has presented no proof that the documentation is incorrect.

¶ 19. Further, Lindsey's claim that the delivery date of the vehicle was falsified was explained by an Autonation Ford employee. The documentation provided by Ford Motor Company states that manufacturing was completed on February 12, 2012, and the vehicle was delivered to Country Ford on February 15, 2012. When the vehicle was serviced at Autonation in March 2014, Lindsey was given a service invoice that stated, "DEL. DATE[:] 02JAN12 DD." Lindsey claims that this shows the vehicle was previously sold on January 2, 2012, prior to being delivered to Country Ford on February 15, 2012. Autonation's service manager Ed Stock submitted an affidavit stating that when it services a vehicle purchased at another dealership, Autonation does not know the date of delivery. For these vehicles, it used a default date of January 2, 2012, on the invoice. Lindsey has not submitted any proof to rebut Stock's statement that the January 2, 2012 date was arbitrary and did not indicate that delivery of the vehicle actually occurred on that date.

¶ 20. Lindsey also claims that a door-well sticker was not on the vehicle when he purchased it but that a falsified sticker was placed in the door well prior to his picking up the vehicle at Autonation. There is no support for this assertion. Pierce testified at his deposition that a manufacturer's sticker was in the door well, and a photograph of the sticker was presented as an exhibit. The sticker reads, "MFD. BY FORD MOTOR CO.[;] DATE: 02/12."

¶ 21. Lindsey also argues that the vehicle was no longer new because it had been test driven. He argues that because the vehicle had been test driven, it was a demonstrator or loaner vehicle, and it was fraud for Country Ford to represent the vehicle as new. A "[n]ew motor vehicle" is "a motor vehicle which has not been previously sold to any person except a distributor or wholesaler or motor vehicle dealer for resale." Miss. Code Ann. § 63-17-55(d) (Rev. 2012). Ford Motor Company submitted the affidavit of Chuck Nelms, the executive director of the Mississippi Motor Vehicle Commission, stating that a vehicle is not considered used by virtue of its being test driven. Also, Pierce stated that the vehicle had not been used for demonstration purposes prior to Lindsey's purchase. Lindsey has presented no evidence to the contrary.

¶ 22. Lindsey also states that he financed the vehicle as new, but the credit union that processed the loan required that he redo the paperwork for the loan because the credit union learned that the vehicle was used. But this is unclear from Lindsey's deposition testimony. He states the credit union or underwriter received "papers ... from Country [Ford saying] it was used." Lindsey admits he "never did see the paper." When asked about his understanding of why the loan paperwork needed to be redone, Lindsey stated, "Well, the car wasn't valued at what it was, and what they wanted me to know was if something happened to this car, the way it was written up, I couldn't get full coverage for that car." No documentation or affidavits have been submitted in support of Lindsey's claim that any paperwork showed the vehicle was used. This argument is without merit.

2. Vehicle Allegedly Previously Wrecked

¶ 23. Second, Lindsey alleges that the vehicle was previously wrecked before he purchased it. He states that he saw blood inside the vehicle and dust between the front door and fender on the passenger side, and that it was not explained to him why the vehicle was "in the shop" on April 4, 2012, the day Lindsey purchased it. However, Country Ford presented evidence that the vehicle was in the shop for pre-delivery inspection on April 4, 2012. Again, all the evidence presented showed that the vehicle was new when purchased by Lindsey. Lindsey has provided no proof to support his allegations to the contrary, and he has provided no evidence of the alleged wreck or blood in the vehicle. This issue is without merit.

3. Odometer Allegedly Incorrect

¶ 24. Finally, Lindsey asserts the vehicle's odometer was not recording mileage. Lindsey stated that when he began his test drive of the vehicle, the odometer read twenty miles. He stated that he and his wife test drove the vehicle for approximately twenty-eight miles, but the odometer still read twenty miles. Despite alleging that he knew this, Lindsey nonetheless purchased the vehicle. Lindsey has presented no evidence that the odometer was incorrect other than his own affidavit. Further, Lindsey's wife signed a statement certifying that the odometer correctly read twenty miles at the time of purchase. The odometer was checked during Lindsey's deposition, and it read 7,598 miles. Because no evidence has been presented of any misrepresentation or that the odometer was not working, and any malfunction was known to Lindsey before he purchased the vehicle, this issue is without merit.

IV. Motions to Amend the Complaint and for Additional Discovery

¶ 25. Decisions to grant or deny "motions for leave to amend complaints are left to the sound discretion of the trial court." Elliott , 249 So.3d at 398 (¶ 38). Likewise, rulings on discovery-related motions are reviewed for an abuse of discretion. Stanley v. Scott Petroleum Corp. , 184 So.3d 940, 942 (¶ 5) (Miss. 2016).

¶ 26. Lindsey moved to amend his complaint on April 28, 2017, one day after Country Ford moved for summary judgment and approximately two weeks after the hearing on Ford Motor Company's summary-judgment motion. He also sought to compel additional discovery. At that point, the case had been pending for nearly five years. When the circuit judge asked why he had not attempted to amend the complaint sooner, he cited "personal problems," such as a back injury he suffered in 2015 and his wife's medical issues. Mrs. Lindsey submitted an affidavit stating that she had medical issues from October 2015 through January 2016. Regardless, this does not explain the delay from 2012 to 2017.

¶ 27. Further, it is unclear how Lindsey's case would benefit from an amendment to the complaint or additional discovery. Lindsey did not submit a proposed amended complaint, and he only stated the amended complaint would be more specific than the original complaint because "when [he] researched, [he] found out things that [he] didn't have in there ...." Further, Lindsey does not state what additional discovery he seeks other than what has already been provided. We cannot find the circuit court abused its discretion in denying Lindsey's motion for leave to amend the complaint or for additional discovery.

¶ 28. The circuit court's grant of summary judgment in favor of Ford Motor Company and Country Ford is affirmed.

¶ 29. AFFIRMED.

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

      Lindsey also alleged that "[t]he rear windshield wiper[ ] comes on at time[s] on its own ...." The circuit court questioned Lindsey about this claim at the summary-judgment hearing, asking, "Did you allege that your windshield wipers were coming on?" Lindsey responded, "No. ... I don't know where you go[t] that from." He also alleged in the complaint that County Ford failed to program the satellite radio, GPS, and Emergency Service Radio Systems. These claims were not pursued and have been waived. See Holman v. Howard Wilson Chrysler Jeep Inc. , 972 So.2d 564, 566 n.1 (Miss. 2008).

      On September 28, 2012, Lindsey filed a motion for leave to amend his complaint, and he filed an amended complaint alleging additional claims under the Tennessee Consumer Protection Act, as well as mental and emotional distress. Lindsey was not granted leave to amend his complaint; thus, we do not address these additional claims.

      Although the inspection took less than two hours, Lindsey's vehicle remained at Dobbs Ford for the next nine days. Lindsey stated that after Groh test drove the vehicle with Lindsey, Lindsey was asked to leave his keys in the vehicle and wait inside. Groh, Messerly, Country Ford's attorney, and Ford Motor Company's attorney then took the vehicle for another drive. This upset Lindsey, and he left. He picked up the vehicle on March 13, 2014.

      Automobile manufacturers are required by federal statute to affix a sticker, referred to as a "Monroney sticker," to every new vehicle's windshield or side window before the vehicle is delivered to a dealer. In re Nissan Antitrust Litig. , 577 F.2d 910, 916-17 (5th Cir. 1978) (citing 15 U.S.C. § 1231, et seq. (The Monroney Act) ). The sticker must list, among other information, "(a) the make, model, and serial or identification number or numbers; (b) the final assembly point; [and] (c) the name, and the location of the place of business, of the dealer to whom it is to be delivered ...." 15 U.S.C. § 1232. While a manufacturer can be fined for failure to comply with 15 U.S.C. § 1232, this section does not create a private right of action. Reiff v. Don Rosen Cadillac-BMW Inc. , 501 F.Supp. 77, 80 (E.D. Pa. 1980).

      Lindsey also argues for the first time on appeal that the vehicle was allegedly used because there was no owner's manual in the vehicle or warranty guide provided. We do not consider this argument because "issues not presented to the trial judge are procedurally barred from being raised for the first time on appeal." Ridgway Lane & Assocs. Inc. v. Watson , 189 So.3d 626, 631 n.4 (Miss. 2016) (internal quotation mark omitted).