author: CHANDLER, Justice,

text:
    Dudley KEENE, individually and on behalf of Brookhaven Academy and Shareholders of Brookhaven Academy v. BROOKHAVEN ACADEMY, INC., Brookhaven Academy Educational Foundation, Inc., Jeff Gatlin, Ken Powell, Phil McGee, and Dean Snider.
    No. 2008-CA-01381-SCT.
    Supreme Court of Mississippi.
    March 4, 2010.

      Durwood Earnest McGuffee, Jr., Madison, attorney for appellant.
    Frank Chandler Breese, III, Jackson, Dudley F. Lampton, Hazlehurst, Cecil Maison Heidelberg, Ridgeland, attorneys for appellee.
    Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court.

¶ 1. This case involves whether the acts of a for-profit corporation were properly ratified and proper procedures were followed in the formation and transfer of responsibilities to a nonprofit organization. Dudley Keene, a shareholder in Brookha-ven Academy, Inc., (the Academy) filed suit against the Academy and Brookhaven Academy Educational Foundation, Inc., (the Foundation) in the Chancery Court of Lincoln County, Mississippi. Keene claimed that the Academy failed to follow corporate bylaws and its articles of incorporation when the Academy set up and transferred the use of assets to the Foundation, a nonprofit corporation. Keene requested a declaratory judgment and sought injunctive relief.

¶ 2. The Academy and the Foundation filed an answer and affirmative defenses. They also filed a motion to dismiss, claiming that Keene lacked standing because his claims were derivative in nature and Keene filed in his individual capacity. The trial court granted the motion in part and denied the motion in part. The motion to dismiss was granted with respect to the alleged causes of action concerning the Academy’s Board of Directors (Academy Board) which were derivative in nature. The motion to dismiss was denied as to Keene’s causes of action in which he sought to enjoin the Academy’s and the Foundation’s corporate acts that were outside of the corporate charter. Later, the Academy and the Foundation filed a motion for partial summary judgment claiming without conceding that the shareholders had ratified the Academy Board’s actions and Keene lacked standing to sue the Foundation, pursuant to Mississippi Code Section 79-4-3.04. Keene was not a member of the Foundation and not an authorized person to sue pursuant to the statute.

¶ 3. While the chancery-court case progressed, Keene filed a complaint in the Circuit Court of Lincoln County styled: Dudley Keene on behalf of Brookhaven Academy & Shareholders of Brookhaven Academy v. Brookhaven Academy, Inc., Brookhaven Academy Educational Foundation Inc., Jeff Gatlin, Ken Powell, Phil McGee, and John Does 1-11. The circuit-court complaint was derivative in nature and asserted essentially the same claims as the chancery-court matter. The defendants in the circuit-court ease filed a motion to dismiss, or in the alternative, to transfer to chancery court. The circuit-court defendants argued in the motion to dismiss that Keene did not meet the demand requirements for a derivative action pursuant to Section 79-4-42. Alternatively, the circuit-court defendants argued that the circuit-court complaint was based on the same facts and asked for the same basic relief as the chancery suit. Likewise, the Academy and the Foundation filed a motion for continuance, or in the alternative, a request that the circuit-court case be transferred to the chancery court. The circuit court denied the defendants’ motion to dismiss; however, it granted a transfer of the circuit court case to the chancery court.

¶4. After the circuit-court case was transferred to the chancery court, the trial court granted all the defendants’ motions for summary judgment and dismissed the action. The chancellor found that: (1) the Academy was not a special-purpose corporation; (2) the acts by the Academy were voidable, not void; (3) the shareholders had received adequate notice of the purpose of the December 15, 2005, shareholders’ meeting; and (4) the shareholders properly had ratified the actions of the Academy at the meeting. Keene appeals from this decision. This Court finds no error; therefore, the judgment of the Chancery Court of Lincoln County is affirmed.

DISCUSSION

¶ 5. The standard of review for a grant of summary judgment is de novo. Guidant Mut. Ins. Co. v. Indem. Ins. Co. of N. Am., 13 So.3d 1270, 1275 (Miss.2009). The moving party is granted summary judgment by the trial court provided that “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c). Summary judgment is granted with abundant caution, and it must be granted where the nonmov-ing party “failed ‘to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Mabus v. St. James Episcopal Church, 13 So.3d 260, 263 (Miss.2009) (quoting Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 180 (Miss.2007)).

A. Ratification

¶ 6. Keene argues that the trial court erred by finding that the shareholders properly ratified the actions of the Academy Board. Keene contends that: (1) the Foundation’s vote of 805 of its shares in the Academy legally could not be made because the Foundation is a subsidiary of the Academy, and (2) the shareholders were coerced into transferring their shares in the Academy to the Foundation.

¶ 7. The shareholders ratified: (1) forming a solely owned subsidiary, (2) the June 2004 lease of property from the Academy to the Foundation, and (3) the transfer of educational activities from the Academy to the Foundation. The minutes of the reconvened December 21, 2005, special meeting in lieu of the 2005 annual meeting of stockholders of the Academy reflected the vote results, in part, as follows:

Issue 4. To ratify the Corporation’s actions, on or about November 28, 2000, in forming a solely owned 501(c)(3) non-profit corporation, Brookhaven Academy Educational Foundation, Inc.

The minutes reflected that the total shares represented were 1,108, of which 942 voted in favor, none voted against, and 166 abstained. This issue was ratified by the shareholders.

Issue 5. To ratify that certain lease dated June 1, 2004, entered into between Brookhaven Academy, Inc., and Brookhaven Academy Educational Foundation, Inc., wherein the corporation leased all of its real property comprising Brookhaven Academy, including the buildings, improvements and fixtures thereon, to Brookhaven Academy Educational Foundation, Inc.

The minutes reflected that the total shares represented were 1,108, of which 942 voted in favor, none voted against, and 166 abstained. This issue was ratified by the shareholders.

Issue 6. To ratify the actions of the Brookhaven Academy, Inc. officers, directors and employees regarding the transfer of educational activities, formerly conducted by Brookhaven Academy, Inc. to Brookhaven Educational Foundation, Inc.

The minutes reflect that the total shares represented were 1,108, of which 940 voted in favor, two voted against, and 166 abstained. This issue was ratified by the shareholders.

¶ 8. Mississippi courts have permitted shareholders to ratify past actions of corporations. In Jowett v. Scruggs, 901 So.2d 638, 644 (Miss.Ct.App.2004), the Court of Appeals determined that the shareholders’ act of ratifying the actions of a corporate president eliminated any defect in the president’s actions.

1. Subsidiary

¶ 9. Keene asserts that the Foundation is a subsidiary of the Academy, and under fundamental corporate law, the Foundation cannot vote its 805 shares in the Academy, the parent company. He cites a number of cases from other jurisdictions noting that Mississippi has little caselaw on this issue. Keene cites Italo Petroleum Corporation of America v. Producers Oil Corporation of America, 174 A. 276, 281 (Del.Chan.1934), an election-of-directors case, for his position that a wholly owned subsidiary should not be permitted to vote its shares in favor of a parent company.

¶ 10. Keene cites Section 79 — 4—6.31 concerning a corporation’s acquisition of its own shares which states:

(a) A corporation may acquire its own shares, and shares so acquired constitute authorized but unissued shares.
(b) If the articles of incorporation prohibit the reissue of the acquired shares, the number of authorized shares is reduced by the number of shares acquired.

Miss.Code Ann. § 79-4-6.31 (Rev.2009).

¶ 11. Keene’s argument fails for a number of reasons. First, Section 79-4-6.31 is inapplicable to the facts in this case, as the Academy did not acquire its own shares. Here, individual shareholders chose to transfer their stock in the Academy to the Foundation. The Foundation did not have “shares” of its own; rather it provided memberships in the Foundation. The Academy is not a member of the Foundation. Second, there is no allegation that the directors of the Academy and the directors of the Foundation were the same. Third, the shareholders ratified the Foundation as a solely owned corporation, not a subsidiary of the Academy. Accordingly, this issue is without merit.

2. Coercion

¶ 12. Keene argues that the Foundation obtained 805 Academy shares by unlawful coercion. In his argument, Keene cites Ivanhoe Partners v. Newmont Mining Corporation, 533 A.2d 585, 605 (Del.Chan.1987) for the proposition that coercion amounts to a wrongful action by a party to induce a shareholder to sell his stock for “reasons unrelated to the economic merits of the sale” such as “a tender offer structured so as to afford shareholders no practical choice but to tender for an unfair price.” Ivanhoe, 533 A.2d at 605. Keene argues that a shareholder had little incentive to keep the Academy shares when that shareholder was being coerced into paying $750 to keep the shares.

¶ 13. In an undated letter from the Academy Board to Academy patrons concerning 2004 school registration, the Academy notified patrons of the stock-option transfer. The letter stated, in part:

Enclosed you will find our new registration forms and membership information. According to the guidelines set forth, anyone who wishes to exchange their stock certificates for membership in the new foundation may do so at no charge. However, new families, or those currently enrolled families who do not wish to exchange their stock for a membership, will be required to purchase a membership at a cost of $750.00 before enrolling their children.

Part of the registration process included an application for the Foundation. The application stated, in part:

I understand that no membership certificate will be issued until the following conditions are met:
—I pay the non-refundabie and nontransferable membership fee of $750.00, or I transfer two shares of capital stock of Brookhaven Academy, Inc. to Brookhaven Academy Educational Foundation, Inc.
—I am approved as a member by the Board of Trustees of the Foundation.

Each family had to have a minimum of.two shares to enroll its child in the Academy. With the advent of the new Foundation, the requirement to be a member in the nonprofit corporation was to pay $750 or transfer two shares of Academy stock to the Foundation in exchange for Foundation membership. The Foundation obtained 805 shares of transferred Academy stock.

¶ 14. Keene’s argument is without merit. The school enrollment and Foundation membership requirements provided Academy shareholders the option either to retain their Academy stock or pay $750 for membership in the nonprofit Foundation. No shareholder was forced to surrender his or her Academy stock. Indeed, Keene chose to retain his Academy shares, even though he had no children in the Academy at the time. Nonetheless, shareholders had a choice, and both Keene and the defendants are in agreement that the Academy never reported a profit. We find that the enrollment requirements did not amount to coercion. Shareholders had an option either to transfer two Academy shares or pay $750 for school enrollment in exchange for membership in the Foundation.

B. Type of Corporation (General Purpose or Special Purpose)

¶ 15. Keene argues that the trial court erred by finding that the Academy is a general-purpose corporation. He contends that the Academy is a specific-purpose corporation set up for the purpose of conducting a school business. The Academy’s articles of incorporation state, in part:

THIRD: the specific purpose or purposes for which the corporation is organized stated in general terms are:
(1) To organize, own and operate primary schools, secondary schools and/or colleges and other educational institutions for the education of youth.
(2) To fix the curricula for such schools, colleges and other such institutions and the standards and qualification of admission of pupils and students and for their retention in such schools, colleges and other such institutions and to reject any applicant for admission or to expel any person so enrolled and attending for any cause whatsoever.
(3) To select and employ such principals, teachers, professors, instructors and other employees as the corporation may deem necessary and advisable and to deny or terminate such employment at the will of the corporation.
(4) To prescribe, charge and collect such fees as the corporation may find necessary and proper to be collected from pupils and students and to vary such charges in any or all individual instances as may be determined by the corporation so that it shall not be necessary for all the pupils or students in the same grade or classes to pay the same or identical fees or tuition, but such fees or tuition as may be charge in each case and each instance to be solely within the discretion of the corporation.
(5) To have and to exercise all powers conferred by the laws of the State of Mississippi upon corporations.
(6) To purchase, own, lease, hire, or otherwise acquire real and personal property, improved and unimproved, or every kind and description, and to sell, dispose of, lease, convey, encumber and mortgage said property, or any part thereof. To acquire, hold, lease, manage, operate, develop, control, build, erect, maintain for the purposes of said corporation, construct, reconstruct or purchase, either directly or through ownership of stock in any corporation, any lands, buildings, offices, stores, warehouses, plants, machinery, rights, easements, privileges, franchises and licenses, and to sell, lease, hire or otherwise dispose of lands, buildings or other property of the corporation, or any part thereof.
(7) To do all and everything necessary and proper for the accomplishment of the objects herein enumerated or necessary or incidental to the benefit of the corporation.

¶ 16. In reaching its decision, the trial court determined at the hearing for summary judgment that the Academy is a general-purpose corporation. The trial court determined that the formation of the Foundation was in line with the purpose of the Academy’s articles of incorporation. Further, the trial court noted the language in subsection six, in particular the language that pertained to the Academy’s ability to sell, lease, hire, and to dispose of land, buildings, or other property belonging to the corporation.

¶ 17. The trial court did not err by finding that the Academy is a general-purpose corporation. While one of the enumerated corporate purposes for the Academy is for the organization and operation of schools, it has many others, including “(5) To have and to exercise all powers conferred by the laws of the State of Mississippi upon corporations,” and section six, concerning the sale, lease, acquisition and disposal of real and personal property, among other powers. Keene cites Tallahatchie Valley Electric Power Association (TVEPA) v. Mississippi Propane Gas Association, Inc., 812 So.2d 912, 919 (Miss.2002) and Blue Cross and Blue Shield v. Protective Life Insurance Company, 527 So.2d 125, 127-28 (Ala.Civ.App.1987) for authority. Decisions from other jurisdictions are merely informative and not binding authority on this Court. Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 7 (Miss.2007); Cucos, Inc. v. McDaniel, 938 So.2d 238, 241 (Miss.2006); Griffith v. Gulf Refining Co., 215 Miss. 15, 61 So.2d 306, 307 (1952). “While the Court may utilize these decisions as persuasive authority if it finds them well-reasoned, the decisions are not binding, and this Court is at perfect liberty to disregard them.” Paz, 949 So.2d at 7.

¶ 18. Tallahatchie Valley is distinguishable from Keene’s case because it involved compliance with statutory laws for regulating rural electric power companies. In Tallahatchie Valley, this Court determined whether Mississippi’s Electric Power Association Law prohibited TVEPA, a rural electrical power company, from acquiring a controlling interest in an entity that did not provide electricity. Tallahatchie Valley, 812 So.2d at 914-15. See also Miss.Code. Ann. § 77-5-201 to 255 (Rev.2009). TVEPA’s board of directors invested in a propane gas business. Id. at 915. However, both the statutory Act and TVEPA’s charter confined it to using electrical energy. Id. at 918. This Court found that the Act expressed a clear legislative intent that limited a corporation under the Act to acquisition of electrical energy. Id. This Court held that “TVEPA’s corporate purpose is limited to and cannot exceed the powers granted by the statutory scheme pursuant to which it was created.” Id.

¶ 19. Keene also cites Blue Cross for the proposition that a specific-purpose corporation has only those powers necessary to effect its corporate purpose. Blue Cross, 527 So.2d at 127-28. As noted above, rulings from other jurisdictions are nonbinding on the courts of Mississippi. Paz, 949 So.2d at 7. In Blue Cross, the corporation sought to acquire a life insur-anee company and to market life insurance. Id. at 126. The Court of Appeals of Alabama determined that Blue Cross was “purely a statutory creature” whose powers were derived from the Alabama Code. Id. The Alabama court also determined that Blue Cross was a specific-purpose corporation limited to maintaining a healthcare service plan, and marketing life insurance was prohibited. Id. at 128. Like Tallahatchie Valley, Blue Cross is distinguishable from Keene’s case because it was governed by specific statutes created for regulating a specific industry. Accordingly, this issue is without merit.

C. Void or Voidable Acts

¶20. Keene argues that the trial court erred by finding that the acts of the Academy Board were voidable and not void. He contends that the Academy Board’s actions were ultra vires or outside of its corporate powers. Most of Keene’s argument is based on his position that the Academy is a special-purpose corporation and, as such, was prohibited from: (1) forming the Foundation; (2) becoming a “holding company” in essence; and (3) transferring Academy assets via a lease to the Foundation.

¶ 21. This Court has held that the term “ ‘ultra vires’ has been used to refer to acts which the corporation’s charter does not authorize.” Bryant Constr. Co. v. Cook Constr. Co., Inc., 518 So.2d 625, 629 (Miss.1987). Ultra vires also signifies an act that exceeds the powers of the corporation as defined by law. Id. In Burnett’s Lumber & Supply Co. v. Commercial Credit Corporation, 211 Miss. 53, 59, 51 So.2d 54, 57 (1951), this Court held that “[a]n act of a corporation relating to the subjects within its powers though it should exceed those powers is not void.” This Court further held that “[i]t is true that the act of a corporation entirely foreign to the purposes for which it was created is void from want of power.” Id.

¶ 22. Keene’s underlying contention that the Academy Board’s actions were ultra vires in nature and, thus void and not voidable, hinges on his position that the Academy is a special-purpose corporation. As addressed in Issue B, the trial court did not err by finding that the Academy was a general-purpose corporation based on the enumerated corporate purposes contained in the articles of incorporation. The articles of incorporation, as previously mentioned, also conferred on the Academy the powers to lease and hold real and personal property. Additionally, section five and seven of the articles of incorporation generally provided that the Academy had “all powers conferred by the” corporate laws of Mississippi, and “[t]o do all and everything necessary and proper for the accomplishment of the objects herein enumerated.” Therefore, Keene’s contention that Academy Board’s actions were ultra vires in nature in forming the Foundation, being a “holding company,” and in transferring assets via a lease, are without merit, because the actions were within the confines of the power conferred on the Academy. Additionally, the shareholders ratified the actions of the Academy Board in forming the nonprofit Foundation, transferring the educational activities, and entering into a lease with the Foundation. Indeed, in his deposition, Keene stated that he had no problem with the formation of the nonprofit corporation to obtain tax-exempt status; he objected only to not having a vote on the issue. Further, Keene chose not to attend or vote at the meeting which ratified the Academy Board’s actions. The trial court did not err in finding that the Academy was a general-purpose corporation. Consequently, none of the Academy Board’s actions were ultra vires in nature, and this issue is without merit.

D. Notice

¶ 23. Keene argues that the trial court erred by finding that the shareholders had adequate notice for the December 2005 special shareholders meeting. He therefore argues that because the notice was not adequate, the ratification vote was ineffective due to the failure to inform the shareholders fully on the issues.

¶ 24. The Academy gave the shareholders notice of a December 2005 special meeting in lieu of an annual stockholders meeting. The notice provided the location, time, date, and purpose of the shareholders meeting. See Miss.Code Ann. § 79-4-7.05(a) and (c) (Rev.2009). Some of the enumerated reasons or purposes for the meeting were as follows:

D. To ratify the Corporation’s actions, on or about November 28, 2000, in forming a solely owned 501(c)(3) non-profit corporation, Brookhaven Academy Educational Foundation, Inc.
5. To ratify that certain lease dated June 1, 2004, entered into between Brookhaven Academy, Inc., and Brookhaven Academy Educational Foundation, Inc., wherein the Corporation leased all of its real property to Brookhaven Academy Educational Foundation, Inc.
6. To ratify the actions of the Brookha-ven Academy, Inc.’s officers, directors and employees regarding the transfer of educational activities, formerly conducted by Brookhaven Academy, Inc., to Brookhaven Academy Educational Foundation, Inc.

¶ 25. The notice also contained a proxy vote listing the issues to be voted at the meeting. Mississippi Code Section 79-4-7.05 provides the notice requirements for a special shareholder meeting. Keene argues that the shareholders were not provided adequate notice concerning the purpose of the special meeting. In regard to the purpose of a special meeting, Section 79-4-7.05(c) provides that “[n]otice of a special meeting must include a description of the purpose or purposes for which the meeting is called.” Miss.Code Ann. § 79-4-7.05(c) (Rev.2009). We find that the trial court did not err by finding that the Academy provided adequate notice to the shareholders. The notice, as previously discussed, provided each shareholder more than a mere description of the purpose, pursuant to the statute. In addition, an attached proxy vote sheet setting forth the voting issues referenced the discussion of the issues in the December 15, 2005, minutes. Also, the wording of the issues provided additional clarification for the shareholders. Indeed, the shareholders voted to ratify the formation of the Foundation, the lease, and the transfer of educational activities. Further, the Academy complied with the notice requirements pursuant to Section 79-4-7.05. Therefore, this issue is without merit.

CONCLUSION

¶ 26. For the above reasons, the judgment of the Lincoln County Chancery Court is affirmed.

¶ 27. AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR.

      . Keene filed an amended complaint on February 15, 2007, after the case was transferred to the circuit court.

      . The trial court dismissed the Academy, the Foundation, Jeff Gatlin, Ken Powell, Phil McGee, and Dean Snider.

      . At the reconvened December 21, 2005, meeting, the shareholders ratified the Foundation as a solely owned 501(c)(3) nonprofit corporation, and the notice identified the Foundation as being solely owned. However, prior to that time, the Academy, even in its answers, had identified the Foundation as a "subsidiary.” There is no indication in the corporate documents, including those from the Mississippi State Corporation Commission, federal forms, or other documents, that identify the Foundation as either a solely owned corporation or a subsidiary corporation.


source: Caselaw Access Project

author: CARLSON, Presiding Justice, KITCHENS, Justice, CHANDLER, Justice,

license: Public Domain

text:
    COVINGTON COUNTY SCHOOL DISTRICT v. Lutricia MAGEE, Individually and on Behalf of the Wrongful Death Beneficiaries of Lonnie C. Magee, Jr., Deceased, and all Others who are Entitled to Recover Under the Wrongful Death and Survival Statute.
    No. 2008-IA-01207-SCT.
    Supreme Court of Mississippi.
    Jan. 28, 2010.
    Rehearing Denied March 18, 2010.

      William Buckley Stewart, Sr., Robert P. Thompson, Ridgeland, Attorneys for Appellant.
    Gerald Patrick Collier, Attorney for Ap-pellee.
    Before CARLSON, P.J., DICKINSON and PIERCE, JJ.
   CARLSON, Presiding Justice,

for the Court.

¶ 1. Lutricia Magee, individually and on behalf of the wrongful-death beneficiaries of Lonnie C. Magee, Jr., deceased, and all others who are entitled to recover under the wrongful-death statute, filed suit against the Covington County School District, alleging negligence and res ipsa lo-quitur. The Covington County School District filed its Motion for Summary Judgment, which the Covington County Circuit Court granted in part and denied in part. Finding that the circuit court erred by failing to grant the District’s motion for summary judgment in, loto, we reverse the circuit court’s order and render judgment here in favor of the Coving-ton County School District.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On August 8, 2007, Lonnie C. Ma-gee, Jr. (Lonnie), age seventeen, was a student at Mount Olive Attendance Center and a member of the school’s football team. During the course of football practice on an admittedly hot August day, Lonnie collapsed. Emergency medical personnel arrived to find Lonnie unresponsive. CPR and all other lifesaving efforts ultimately failed, and Lonnie was pronounced dead at the Covington County Hospital in Collins, Mississippi. Heat stroke allegedly was the cause of Lonnie’s death.

¶ 3. On February 25, 2008, Lutrieia Ma-gee (Magee), individually and on behalf of the wrongful-death beneficiaries of Lonnie C. Magee, Jr., deceased, and all others who are entitled to recover under the wrongful-death statute, filed her First Amended Complaint in the Circuit Court of Covington County, asserting claims of negligence and • res ipsa loquitur. The Covington County School District (the District) subsequently filed its Answer and Defenses on March 20, 2008, and its Motion for Summary Judgment on May 14, 2008. Magee filed her response, and the District filed its rebuttal. On June 20, 2008, a hearing was held on the motion for summary judgment, Judge Robert G. Evans presiding. Judge Evans ruled: “I believe there does exist genuine issues of material fact. And over-simplifying the questions intentionally, I’ll put it into one and say the question is whether the school district provided a safe environment.” The trial court subsequently entered an Order, stating “that genuine issues of material fact exists [sic ] and the Defendant’s Motion for Summary Judgment is denied, but granted, in part, as to Plaintiffs claim of Res Ipsa Loquitur.” As a result, the District filed its Petition for Permission to Appeal Interlocutory Order and for Stay of Trial Court Proceedings, asserting the trial court erred in denying, in part, its motion for summary judgment. This Court granted the District’s petition for interlocutory appeal.

DISCUSSION

¶ 4. The District couches the issue before the Court in these terms:

Whether the claims of the [plaintiff] against the [District] are based upon the District’s exercise or performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion be abused, thereby entitling the District to immunity from the [p]laintiff s claims pursuant to [the Mississippi Tort Claims Act],

On the other hand, Magee couches the issue(s) before the Court as follows:

Whether the claims of the [plaintiff] against the [District] are based upon the District’s exercise of ordinary care in reliance upon, or the execution or performance of or the failure to exercise or perform a statute, ordinance, or regulation?
Whether [the District] has a statutory duty to provide a safe environment for its students and to minimize risks to its students and whether this duty applies to decisions and/or conduct related to allowing football practice to be conducted in dangerously hot and humid temperatures?

We thus combine and rephrase these issues into one issue for the sake of today’s discussion.

WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT, IN TOTO, THE DISTRICT’S MOTION FOR SUMMARY JUDGMENT.

¶ 5. This Court’s well-established standard of review for a trial court’s grant or denial of summary judgment is de novo. Waggoner v. Williamson, 8 So.3d 147, 152 (Miss.2009) (citing One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007); Hubbard v. Wansley, 954 So.2d 951, 956 (Miss.2007)). Summary judgment is appropriate where “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.” Miss. R. Civ. P. 56(c). “The moving party has the burden of demonstrating that no genuine issue of material fact(s) exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Waggoner, 8 So.3d at 152-53 (citations omitted). Further, “[pjartial summary judgment is also permissible under our rules, utilizing the same criteria for a grant or denial of a summary judgment and the same standard of review on appeal.” Id. at 153 (citations omitted). See Miss. R. Civ. P. 56(d).

¶ 6. The District argues that its alleged acts or omissions were not ministerial, but discretionary in nature, thereby entitling the District to immunity (exemption from liability) pursuant to Mississippi Code Section ll-46-9(l)(d). Magee, however, contends that the District failed to perform its statutory duty to provide a safe environment for its students; therefore, Mississippi Code Section ll-A6-9(l)(b) is triggered, and it is an issue of fact as to whether the District exercised ordinary care. See Miss.Code Ann. §§ ll^L6-9(l)(d), (b) (Rev. 2002).

¶ 7. The District constitutes a “governmental entity” and a “political subdivision” pursuant to the Mississippi Tort Claims Act (MTCA). Miss.Code Ann. § 11-46-1 (Rev.2002). The MTCA provides the exclusive remedy against a governmental entity or its employee for the act or omission which gave rise to the suit. Miss.Code Ann. § 11-46-7(1) (Rev.2002). The intent of the MTCA is to provide immunity from suit to the state and its political subdivisions; however, the MTCA waives immunity for claims for money damages arising out of the torts of government entities and employees while acting within the course and scope of their employment to the extent set forth in the MTCA. Miss.Code Ann. §§ 11-46-3(1), 11-46-5(1) (Rev.2002). This waiver of immunity is subject to exemptions. Miss.Code Ann. § 11-46-9 (Rev.2002). Mississippi Code Annotated Section 11-46-9 states, in pertinent part:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

Mis? Code Ann. §§ ll-46-9(l)(b), (d) (Rev. 2002).

¶ 8. The District submits that its alleged conduct constitutes discretionary behavior, whereas Magee argues that a school district’s statutory duty to provide a safe environment has been positively imposed by law, thus its actions and duties are ministerial. “A duty is discretionary if it requires the official to use her own judgment and discretion in the performance thereof.” Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1048 (Miss.2002) (citations omitted). On the other hand, “an act is ministerial ‘(if) the duty is one which has been positively imposed by law and its performance required at a time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.’ ” Id. (quoting L.W. v. McComb Separate Mum. Sch. Dist., 754 So.2d 1136, 1141 (Miss.1999)). If the District’s conduct is deemed ministerial, it is then protected from liability only if ordinary care is exercised in performing or failing to perform the statutory duty or regulation. Id. (quoting Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1240 (Miss.1999)).

¶ 9. Magee argues that the District failed to exercise ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation. See Miss.Code Ann. § ll-46-9(l)(b) (Rev. 2002). Magee relies on Mississippi Code Section 37-9-69 as well as this Court’s mandate that school personnel are required to use ordinary care in administering public schools, and “[sjchools have the responsibility to use ordinary care to provide a safe school environment.” L.W., 754 So.2d at 1142-43 (citations omitted). See also Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911, 915 (Miss.2001); Henderson ex rel. Henderson v. Simpson County Pub. Sch. Dist., 847 So.2d 856, 857 (Miss.2003). Magee’s reliance, however, is misplaced. Section 37-9-69 states:

It shall be the duty of each superintendent, principal and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. Such superintendents, principals and teachers shall hold the pupils to strict account for disorderly condtict at school, on the way to and from school, on the playgrounds, and during recess.

Miss.Code Ann. § 37-9-69 (Rev.2007) (emphasis added).

¶ 10. This Court has applied this statute only in a limited context, mainly in cases concerning the disorderly conduct of students, or intentional acts on the part of individuals, and has never applied it to the timing or oversight of football practice. In reference to Section 37-9-69, this Court stated that “[tjhis statute mandates that school personnel maintain appropriate control and discipline of students while the children are in their care.” L.W., 754 So.2d at 1142. L.W. involved a student assault on another student. Id. at 1142-43. See also Henderson, 847 So.2d at 857-58 (student taunted and assaulted by another student); Lang, 764 So.2d at 1240-41 (fighting students caused injury to innocent student). Consistent with our case-law intei'preting this statute, and based on the facts and circumstances before us as revealed in the record, Mississippi Code Section 37-9-69 does not impose a statutory duty on the District in today’s case.

¶ 11. Before moving on, we note that Magee asserts that the District has admitted the applicability of Section 37-9-69 in response to her (Magee’s) requests for admission propounded during discovery. We disagree. In Request For Admission No. 12, Magee requested the District to admit that it had “a statutory duty to provide a safe environment for its students,” and the District admitted this fact. However, in Request For Admission No. 17, Magee requested the District to admit that it had “a statutory duty to use ordinary care in administering public schools and to take ordinary and reasonable steps to minimize risks for its students.” In its response to this request for admission, the District stated:

Responding to Request No. 17, Defendant admits only that from Miss.Code Ann. § 37-9-69, the Courts of this state have fashioned a ministerial duty to maintain a safe environment for the students that has been applied by the Courts in a limited context....

(Emphasis in original). We have stated that Mississippi Rule of Civil Procedure 36 “is to be enforced according to its terms.” Educ. Placement Sers. v. Wilson, 487 So.2d 1316, 1318 (Miss.1986) (citations omitted). However, this Court likewise has stated that “[w]hile Rule 36 is to be applied as written, it is not intended to be applied in Draconian fashion.” DeBlanc v. Stancil, 814 So.2d 796, 801 (Miss.2002). The District states that, while it was duty-bound to respond truthfully to Request For Admission No. 12, couched in general language, this admission cannot be viewed in a vacuum, but instead must be read together with its Response to Request For Admission No. 17. Consistent with De-Blanc, we agree. Id. The District, while acknowledging the existence of the provisions of Section 37-9-69 and our caselaw interpreting this statute, likewise qualified its admission that the mandatory duty placed upon public schools and their employees by statute has been applied by this Court in a limited context. Thus, in the end, the District’s responses to certain requests for admissions are of no moment concerning this Court’s determination as a matter of law on the issue of whether Section 37-9-69 is applicable to today’s case.

¶ 12. Magee also argues that Mississippi Code Section 37-9-14 gives rise to a statutory duty based on the facts of this case. This argument is simply without merit. Section 37-9-14 sets forth the responsibilities and powers of the superintendent, and in no way does this statute imply any duties pertaining to the oversight of athletic practices. See Miss.Code Ann. § 37-9-14 (Rev.2007).

¶ 13. The District asserts, based on both Prince v. Louisville Municipal School District, 741 So.2d 207 (Miss.1999), and Harris v. McCray, 867 So.2d 188 (Miss.2003), that the District’s alleged conduct was discretionary, and summary judgment should have been granted pursuant to Mississippi Code Section 11—46—9(1)(d). In Prince and Hams, this Court deemed the coaching responsibilities of coordinating and supervising practice to be discretionary acts. See Prince 741 So.2d at 212 (affirmed trial court’s grant of summary judgment based on qualified immunity); Harris, 867 So.2d at 192-93 (“trial court did not err in its determination that the School District and Coach McCray were exempted from liability”). This Court stated in Harris:

We must balance the serious negative repercussions which could result for all extra-curricular school activities if the discretionary decisions of coaches are not exempt from liability pursuant to Miss.Code Ann. § 11 — 46—9(l)(d) with the need for providing a well-rounded education. There is nothing in the record to imply that Coach McCray’s actions as a football coach on August 21, 1995, violated any statute, ordinance, or regulation.

Harris, 867 So.2d at 192. Likewise, in today’s case, nothing in the record indicates that the District and/or the football coaches (or any District employee or staff member) violated any statute, ordinance, or regulation concerning conducting football practice, and the conduct at issue constitutes discretionary behavior.

¶ 14. Further, Magee contends that, even if the acts or omissions of the District are discretionary, they still do not invoke the protection of social, economic, or political policy. This Court adopted the public-policy-function test and stated “only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999). Certainly the discretionary acts at issue are grounded in public policy. In the Harris case, discussed supra, this Court reasoned:

Who knew the football players of the 1995 Jefferson County High School football team better than Coach McCray? He knew what players would complain only when hurt and what players would complain at a drop of a hat simply to be able to take a break from football practice on a hot August day. Coaches have to know what motivates their players and what does not. Coaches know that in order to discipline football players, each one is a different human being— one player may be disciplined by a mere stern look from the coach, while a military-style drill sergeant chewing out will not faze another player. Coaches will know their players well enough to know who may holler “wolf’ and who will not. When Victor Harris complained of feeling weak and needing a water break, Coach McCray told Harris he was “faking it.” Unfortunately, he was not. Harris's injuries and resulting damages are not to be treated flippantly. However, we cannot fast-forward past the facts of this case and the applicable law just to arbitrarily impose liability in an attempt to right a perceived wrong.
While the facts of Victor Harris’s case are no doubt tragic, we must realize the consequences of our decision today were we to find Coach McCray and the school district liable on the facts of this case. High school football coaches around the state would lose them ability to control their football teams. Discipline of a football team would become non-existent. If a coach refused a player’s request to have a water break — to see a trainer — to not have to run any more wind-sprints — to not have to do any more one-on-one blocking/tackling drills, because of that player’s complaint of “feeling weak” or “not feeling good” or simply “not feeling like it,” that coach would be very much aware of the fact that he/she would be running the risk of being successfully sued along with other school officials and the school district, should that player later suffer physi-eal/medical problems related to the coach’s failure to cow to the player’s every whim and wish. On the other hand, if the coach, in fear of a successful lawsuit, should cow to the player’s every
whim, wish and demand, then the coach would lose the respect of the players, and discipline and morale would be lost.

Harris, 867 So.2d at 192-93. The District’s discretionary decision to allow coaches the ability to set and conduct practices is rooted in policy — coaches know their players and must be able to control their teams.

¶ 15. Although this Court is once again faced with a devastating and tragic situation because of the untimely death of a high-school student, we are constrained to find that the applicable provisions of the MTCA “operated to shield [the District and its coaches and employees] from any liability.” Harris, 867 So.2d at 193. The exemption from liability found in Mississippi Code Section 11-46-9(1)(d) is applicable to today’s case. As a result, the trial court’s denial, in part, of the District’s motion for summary judgment must be reversed.

CONCLUSION

¶ 16. For the reasons stated, the Cov-ington County Circuit Court’s denial, in part, of the District’s motion for summary judgment is reversed, and judgment is rendered here, in toto, in favor of the Covington County School District, thus granting summary judgment in full.

¶ 17. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ, CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

KITCHENS, Justice,

Dissenting:

¶ 18. I agree with the majority and this Court’s precedent that, as it stands, coordinating and supervising high school football practice are discretionary acts within the meaning of Mississippi Code Section 11—46—9(1)(d). Prince v. Louisville Mun. Sell. Dist., 741 So.2d 207 (Miss.1999); Harris v. McCray, 867 So.2d 188 (Miss.2003). However, I respectfully dissent from the majority opinion’s conclusion that the discretionary acts at issue in the present case were grounded in social, economic, or political policy, which would have to have been the case in order for statutory immunity to apply.

¶ 19. It is well-settled that Mississippi Code Section 11—46—9(1)(d) does not bestow immunity for all discretionary governmental acts. See, e.g., Jones v. Miss. Dep’t of Transp., 744 So.2d 256 (Miss.1999); Stewart v. City of Jackson, 804 So.2d 1041 (Miss.2002); Harris v. McCray, 867 So.2d 188 (Miss.2003); Miss.Code Ann. § 11-46-9(1)(d) (Rev.2002). “[O]nly those functions which by ñatee are policy decisions, whether made at the operational or planning level, are protected.” Stewart, 804 So.2d at 1048 (quoting Jones, 744 So.2d at 260). Therefore, it must be determined “whether the [discretionary conduct] involved social, economic or political policy” before a discretionary act qualifies for immunity pursuant to Section 11-46-9. Stewart, 804 So.2d at 1047 (quoting Jones, 744 So.2d at 260); Miss.Code Ann. § 11-46-9 (Rev.2002).

¶ 20. In this case, in order to decide whether qualified immunity pursuant to Section 11-46-9 applies to the school district and its coaches, it must be determined whether the discretionary acts or omissions which led to the tragic death of Lonnie Magee were grounded in social, economic, or political policy. Jones, 744 So.2d at 261.

¶ 21. Stewart v. City of Jackson, 804 So.2d 1041 (Miss.2002), is helpful in making such a determination. The plaintiff in Stewart alleged that she fell and was injured when a bus driver employed by the City of Jackson failed to assist her into an adult day-care center. Id. at 1047-48. The plaintiff contended that, although the defendant bus driver was acting with discretion when she decided not to assist the plaintiff into the adult day-care center, the acts or omissions of the City of Jackson and the bus driver were not policy-based, and that, therefore, the City of Jackson was not immune pursuant to Section 11-46-9. Id. at 1048.

¶ 22. This Court agreed with the plaintiff, noting that it “must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.” Id. (quoting Gale v. Thomas, 759 So.2d 1150, 1162 (Miss.1999)). The Court held that, because the acts or omissions of the city’s bus driver did not involve real policy decisions implicating governmental functions, the Mississippi Tort Claims Act did not afford immunity protection to the City of Jackson. Id.

¶ 23. Here, it cannot be determined whether the defendant’s discretionary acts were rooted in policy, because the record does not contain sufficient information. Given that this case is before us by way of interlocutory appeal from a partial denial of summary judgment, the plaintiff has not had sufficient opportunity to discover exactly what acts or omissions, if any, caused or contributed to the sudden demise of Lonnie Magee. The record is incomplete, as neither the plaintiff nor this Court knows what the coaches did or did not do on the day of Lonnie’s death.

¶ 24. This Court cannot rule out that some discretionary conduct by some athletic coaches may be comparable to that of the bus driver in Stewart: neither rooted in social, economic, nor political policy nor contemplated by the Legislature when it enacted the MTCA. Given this Court’s precedent and the limited record before us, I am unable to determine whether the relevant acts or omissions of the school district and the coaches of Mount Olive Attendance Center were rooted in social, economic, or political policy. I would hold that the trial judge did not err in denying the school district’s summary judgment motion, and I would remand the case for further proceedings.

GRAVES, P.J., Joins this Opinion.

CHANDLER, Justice,

Dissenting:

¶ 25. I respectfully dissent. Because I believe the trial court properly denied summary judgment at this stage of the litigation, I would affirm the trial court.

I.

¶ 26. Mississippi Code Section 11-46-9 provides that a state governmental entity and its employees shall not be liable for any claim while acting within the course and scope of their employment and duties. Miss.Code Ann. § 11-46-9(1) (Rev.2002). The statute provides for immunity, in part, for a claim “[ajrising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation.” Miss. Code Ann. § 11—46—9(1)(b) (Rev.2002). As the majority correctly holds, a governmental entity and its employees have immunity, provided that ordinary care is used when performing a duty under a statute, ordinance, or regulation. Harris v. McCray, 867 So.2d 188, 189 (Miss.2003); Miss.Code Ann. § 11—46—9(1)(b) (Rev.2002). Section 11-46-9(1)(d) provides immunity for discretionary acts performed within the course and scope of employment. The immunity is “[bjased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” Miss.Code Ann. § 11 — 46—9(l)(d) (Rev.2002).

¶ 27. This Court has distinguished what constitutes ministerial and discretionary acts. A ministerial act is a duty that “has been £>ositively imposed by law and its performance required at a time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” Dancy v. East Miss. State Hosp., 944 So.2d 10, 16 (Miss.2006) (quoting L.W. v. McComb Separate Mun. Sell. Dist., 754 So.2d 1136, 1141 (Miss.1999)). On the other hand, “[a] duty is discretionary if it requires the official to use her own judgment and discretion in the performance thereof.” Id. (quoting T.M. v. Noblitt, 650 So.2d 1340, 1343 (Miss.1995)).

If 28. In order to determine whether the conduct at issue is discretionary in nature, this Court has imparted a two-prong test. The two-prong test to determine whether the governmental conduct is discretionary is: (1) does the conduct involve an element of choice or judgment on the part of the entity or employee; and if so, (2) does the choice or judgment involve social, economic, or political policy. Dancy, 944 So.2d at 16; Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.2001).

II.

¶ 29. Magee claims, in part, that the District had a duty to provide a safe environment for its students pursuant to Mississippi Code Sections 37-9-69 and 11-46-9(l)(b). The majority opined that “[s]ection 37-9-14 sets forth the responsibilities and powers of the superintendent, and in no way does this statute infer any duties pertaining to the oversight of athletic practices.”

¶ 30. Section 37-9-69 provides:

It shall be the duty of each superintendent, principal and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and, regulations prescribed for the operation of schools. Such superintendents, principals and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.

Miss.Code Ann. § 37-9-69 (Rev.2007) (emphasis added). While the statute does not explicitly define the duties of a superintendent, principal, or teacher to oversee athletic practices, the statute does provide that they must “enforce the statutes, rules and regulations prescribed for the operation of schools.”' Miss.Code Ann. § 37-9-69.

¶ 31. The Court of Appeals in Dotts v. Pat Harrison Waterway District, 933 So.2d 322, 324 (Miss.Ct.App.2006), held that an employee’s duties are deemed ministerial if local agency rules impose specific guides to be followed. In Dotts, the mother of a deceased boy brought a wrongful-death action against the Pat Harrison Waterway District (PHWD) pursuant to the Mississippi Torts 'Claim Act (MTCA) after his drowning death at Dunn’s Falls. Id. at 324. The Court of Appeals upheld the trial court’s finding that PHWD had no statutory obligation for the operation of its swimming facility because Mississippi had no statute in place. Id. at 326. However, the trial court did not end its analysis at this juncture.

¶ 32. In Dotts, the trial court also considered PHWD’s actions in regard to the operation of its facility. Dotts, 933 So.2d at 326. “[T]he trial court found that PHWD had discretion in maldng judgments regarding the exercise of its powers and functions in operating” the swimming facility. Id. PHWD had a written, swimming policy in place. Id. at 326-27. In its analysis of whether the activity was discretionary in nature, the Court of Appeals summarized the trial court’s decision by stating:

The park manager of Dunn’s Falls at the time of Holly’s accident was Raford Williams. He was the only employee on duty that day. Although the trial court found that the PHWD was utilizing a discretionary function, the court held that Williams did not have any discretion regarding the operation of Dunn’s Falls. Because of PIIWD’s policy, Williams’ actions ivere ministerial. Therefore, any evidence of Williams’knowledge that the back buoy line was missing or knowledge that the swimming area’s configuration had changed would be violations of the policies of PHWD that would trigger liability under the MTCA.

Id. at 327 (emphasis added).

¶ 33. The Court of Appeals also upheld the trial judge’s finding of fact concerning conflicting evidence. Id. at 327. In other words, the Court of Appeals upheld the trial court’s determination that while PHWD had discretion in adopting its policy concerning rules for public swimming areas, its employee had no discretion, and the employee’s conduct in implementing the policy was ministerial in nature. Id. Further, any knowledge the employee had that any activity or circumstances was contrary to the policy would have been a violation of the policy that would have exposed PHWD to liability pursuant to the MTCA. Id. In Dotts, the employee overseeing the swimming facility died prior to taking a deposition, therefore, the trial court determined that the issue of whether the employee had actual knowledge of the swimming conditions could not be determined and PHWD was not liable in that case. Id. As noted, above, the Court of Appeals upheld the trial court’s decision. Id.

¶ 34. Here, the discovery conducted was incomplete. Further, discovery is required in this case to allow the parties time to complete depositions at a minimum. This case is distinguishable from Harris and Prince v. Louisville Municipal School District, 741 So.2d 207 (Miss.1999), because the issue of whether a statute, regulation, or rule was violated was not considered by the Court in either of those cases. At best, the record reveals a copy of the Mississippi High School Activities Association, Inc. (MHSAA) handbook, which pertains to the regulations of high school sporting activity. Indeed, this Court has recognized the MHSAA handbook as being a handbook that “regulates and provides guidelines for the schools to follow.” Pearl Pub. Sell. Dist. v. Groner, 784 So.2d 911, 915 (Miss.2001).

¶ 35. Further, the parties have not had an opportunity to determine, for instance, whether the Covington County School District has a county operational policy similar to the written, operational policy in place in Dotts and whether it has operational procedures for athletics. Provided the District had a written, operational policy in place, the superintendent, principal, and teachers, including coaches, had a duty to enforce any rule or regulation pertaining to the operation of the schools in the district. See Miss.Code Ann. § 37-9-69 (Rev.2007). These rules and regulations often are in the form of a school district’s operational policy.

¶ 36. Unlike Dotts, however, Mississippi has a statute for school personnel, Section 37-9-69, which states in part that “[i]t shall be the duty of each superintendent, principal and teacher in the public schools of this state ... to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. ” Miss.Code Ann. § 37-9-69 (Rev.2007). The trial court recognized that total summary judgment in favor of the District was premature given the early stage of the case. Upholding the trial court’s decision allows the parties an opportunity to discover whether the District had any county operational policy in place, what the policy stated in regard to athletics, and whether the procedures were followed. Further, it provides an opportunity to depose appropriate personnel.

¶ 37. This case has implications of both ministerial and discretionary functions. See Dotts, 933 So.2d at 326-27. Provided the District had a county operational policy, the District, similar to the PHWD, would have used discretion in making the policy. Id. at 327. A school district’s operational policy, which is promulgated in accordance with the board’s authority found in Section 37-9-67, would have to be reviewed to determine whether the employees, such as the superintendent, principal, teachers, and coaches, were implementing and following it on the date of this tragic incident. Id. at 327. Consequently, the issue of whether the personnel had only a ministerial function and either followed the policy or knowingly disregarded the policy also would have to be determined through depositions and other discovery. Id. Because of this, the trial court correctly determined that summary judgment on all issues was premature. Discovery is critical to determine whether the District had information such as an operational policy, what the policy terms stated, and whether personnel followed the policy or knowingly disregarded the policy.

III.

¶ 38. For the above reasons, I dissent with the majority’s opinion today.

      . The original complaint is not part of the record before this Court.

      . The trial court's grant of sumriiary judgment as to the res ipsa loquitur claim is not before this Court.

      . In its arguments before the trial court, the District, through counsel, stated that "[Ma-gee's counsel]'s asked us to admit in a vacuum admission or denial concerning general duties governed by Mississippi law. We don’t deny that there is a duty to take care of these students, Your Honor. That would be foolish for us to sit here and suggest otherwise. What we’re saying is, these specific allegations that they are alleged [sic ] invoke discretionary acts as stated in die Harris and in the Prince case. The [supreme] court has spoken on this."

      . As we stated in Planis, "[w]hile admittedly involving application of ‘pre-Pruett ’ common law concerning whether the act involved was a discretionary or ministerial function, our decision in Prince is enlightening.” Harris, 867 So.2d at 191. See Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982).

      . Both Harris and Prince involved injury to a student during a school athletics program.


author: ISHEE, J.,

text:
    Rodarius Bernard STEWART a/k/a Robarius Stewart, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-KA-01528-COA.
    Court of Appeals of Mississippi.
    July 1, 2008.
    Rehearing Denied Nov. 17, 2009.
    Certiorari Denied March 4, 2010.

      John R. White, Iuka, Imhotep Alkebu-Lan, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, Charles W. Maris, attorneys for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. In August 2006, Rodarius Bonard Stewart was tried and convicted of murder in the Circuit Court of Alcorn County and sentenced to life in prison. Prior to trial, Stewart made two motions for a change of venue, both of which were denied. Stewart is now appealing his conviction, asserting (1) that the circuit court improperly denied his second motion for a change of venue; (2) that the prosecutor asked improper questions while cross-examining Stewart; and (3) that the prosecutor made improper racially-based comments to the jury during his closing arguments. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2004, Stewart and several friends arrived at a late-night party in Corinth. An altercation between Stewart, his friends, and some people already attending the party ensued, resulting in Stewart and his friends leaving the party. As they were driving away, Stewart shot wildly out of the car window, hitting and killing Tyler Grant Hamlin.

¶ 3. Stewart was indicted for murder in September 2004. In January 2005, he filed a motion for a change of venue. That motion was denied in June 2005, but the circuit court granted an extension for the filing of motions in the case until August 1, 2005. Stewart filed a second motion for a change of venue on July 27, 2005, and that motion was denied as well.

¶ 4. In support of his second motion for change of venue, Stewart submitted two signed letters from local citizens stating that they did not believe that Stewart could receive a fair trial in the county because of the prejudicial press coverage and general community sentiment surrounding the case. In producing the letters, Stewart sought to establish a presumption that a change of venue was necessary. The circuit court first determined that the letters had not been submitted in a form sufficient to give rise to a legal presumption that a change of venue was, in fact, necessary. The court, however, proceeded to address the merits of the motion as if Stewart had successfully established the presumption in favor of a change of venue.

¶ 5. The circuit court first determined that the circumstances of Stewart’s case did not meet any of the legal requirements that give rise to an irrebuttable presumption in this state that a change of venue is required. Furthermore, after hearing evidence on the motion from witnesses for both the prosecution and defense, the court also determined that conditions within the surrounding area were such that a fair and impartial jury could be selected and that Stewart could receive a fair trial within Alcorn County. A venire pool was drawn up, and a jury was selected over the course of two days in August 2006. Stewart was subsequently convicted of depraved-heart murder, and it is from this conviction that he now appeals.

DISCUSSION

(1) The circuit court properly denied Stewart’s motion for a change of venue.

¶ 6. Stewart argues that the circuit court improperly denied his second motion for a change of venue; and therefore, he is entitled to a new trial. We review denials of motions for change of venue for abuse of discretion. Adams v. State, 944 So.2d 86, 89(¶ 17) (Miss.Ct.App.2006) (citing Grayson v. State, 806 So.2d 241, 250(¶ 20) (Miss.2001)). “Granting of a change of venue is a matter so largely in the sound discretion of the trial court that a judgment of conviction will not be reversed on appeal on the ground that a change of venue was refused, unless it clearly appears that the trial court abused its discretion.” Id. (citing Gray v. State, 728 So.2d 36, 65 (¶ 143) (Miss.1998)). In reviewing whether the trial court abused its discretion in denying a change of venue “we look to the completed trial, particularly including the voir dire examination of prospective jurors, to determine whether the accused received a fair trial.” Lutes v. State, 517 So.2d 541, 546 (Miss.1987) (quoting Winters v. State, 473 So.2d 452, 457 (Miss.1985)).

¶ 7. Under Mississippi law, upon a proper application for a change of venue a presumption arises that an impartial jury cannot be obtained. Evans v. State, 725 So.2d 613, 647(¶ 99) (Miss.1997). A proper application for change of venue is made by making a motion supported by the affidavits of two or more witnesses in conformance with the requirements of Mississippi Code Annotated section 99-15-35. Lutes, 517 So.2d at 545. Furthermore, our supreme court has identified several factors that, when present, make the presumption for a change of venue irrebuttable. These are:

(1) Capital cases based on considerations of a heightened standard of review;
(2) Crowds threatening violence toward the accused;
(3) An inordinate amount of media coverage, particularly in cases of
(a) serious crimes against influential families;
(b) serious crimes against public officials;
(c) serial crimes;
(d) crimes committed by a black defendant upon a white victim;
(e) where there is inexperienced trial counsel.

White v. State, 495 So.2d 1346, 1349 (Miss.1986).

¶ 8. In this case, Stewart never properly applied for a change of venue; and therefore, he never successfully raised a presumption that a change of venue was necessary. The record and the opinion of the circuit court denying the second motion for a change of venue reflect that Stewart only submitted one affidavit in the proper form, even after being granted additional time to do so. Notwithstanding this failure, however, the circuit court addressed the merits of Stewart’s motion for change of venue as if he had successfully established the presumption that a change of venue was necessary.

¶ 9. The circuit court noted that none of the elements set forth in White, which would make the presumption in favor of a change of venue irrebuttable, had been met. Stewart’s case was not a capital case on consideration for a heightened standard of review. After hearing evidence from a wide variety of witnesses for both the prosecution and defense, the circuit court concluded that there was no evidence of crowds or even of any one person threatening violence toward Stewart and that just one article about his case had been printed in the local paper up to that point in time. The circuit court found no reason why Stewart could not receive a fair trial within Alcorn County, so the court denied Stewart’s second motion for a change of venue.

¶ 10. Stewart, however, points to the voir dire examination of several jurors by the circuit court to support his argument that a change of venue was necessary. Specifically, he argues that the fact that several jurors knew the victim or members of his family, along with the fact that one juror in particular may have stated that his knowledge of the victim’s family might influence his judgment, necessitated a change of venue after the completion of voir dire. However, Stewart had “ample opportunity to question members of the venire [panel] and to use both his peremptory challenges and challenges for cause.” Conner v. State, 971 So.2d 630, 635(¶ 14) (Miss.Ct.App.2007).

¶ 11. Indeed, Stewart did strike or attempt to strike many members of the veni-re panel that had some relationship to the victim, using either peremptory challenges or challenges for cause, but he failed to challenge the selection of the jurors he now complains of on appeal. Stewart also made no attempt to request additional challenges from the circuit court. The final jury was composed of some people who had a relationship with or knew members of the victim’s family, some that had a relationship with or knew members of Stewart’s family, and some who had no relationship with either the victim’s or Stewart’s family. We are mindful that “[t]he Constitution of this state ... only requires that an accused get a fair trial, not a perfect one.” Lutes, 517 So.2d at 546 (citing Sand v. State, 467 So.2d 907 (Miss.1985); Bell v. State, 443 So.2d 16 (Miss.1983); Palmer v. State, 427 So.2d 111 (Miss.1983); Shaw v. State, 378 So.2d 631 (Miss.1979)). Under the stated facts, we cannot say that Stewart’s right to a fan* trial was fundamentally compromised or that the circuit court abused its discretion in failing to grant Stewart’s motion for a change of venue. Accordingly, we find his argument on this issue to be without merit.

(2) The prosecutor did not make improper comments during his examination of Stewart.

¶ 12. Stewart contends that the prosecutor made improper comments during his examination of Stewart by suggesting that the prosecutor, if faced with a similar circumstance as Stewart faced shortly after the commission of his crime, would have sought the help of the police. However, Stewart cites no authority to support this proposition. The supi'eme court has repeatedly held “that it is the duty of an appellant to provide authority and support of an assignment.” Williams v. State, 708 So.2d 1358, 1361(¶ 12) (Miss.1998) (quoting Hoops v. State, 681 So.2d 521, 526 (Miss.1996); Kelly v. State, 553 So.2d 517, 521 (Miss.1989)). It is well settled that this Court “is under no duty to consider assignments of error when no authority is cited.” Id. (quoting Hoops, 681 So.2d at 526; Hewlett v. State, 607 So.2d 1097, 1106 (Miss.1992)). Furthermore, even if this issue was supported by some authority, we would still be compelled to find it lacking in merit. After the objection by defense counsel, the trial judge struck the prosecutor’s comments from the record and instructed the jury to disregard them. This Court has stated that:

It is presumed that the jury follows the instructions of the trial court. We have repeatedly held that where the trial court sustains an objection to the inadmissible testimony of a witness and instructs the jury to disregard the same, prejudicial error does not result from that improper testimony.

Knight v. State, 854 So.2d 17, 20(¶ 7) (Miss.Ct.App.2003) (quoting Baldwin v. State, 784 So.2d 148, 157(¶ 31) (Miss.2001)). Accordingly, we find Stewart’s argument on this issue to be meritless.

(3) The prosecutor did not send an impermissible racial message to the jury.

¶ 13. Stewart asserts that the prosecutor sent an impermissible racial message to the jury in his closing argument. Stewart correctly notes that “[t]he race question and all of its vexations and perplexities should be dropped at the outer door of all courts of justice ... [and that] under no circumstances should the court permit the officers of the state to say or do anything which might in the remotest degree prejudice the jury against the defendant on account of race or color or social standing.” Tate v. State, 784 So.2d 208, 215(¶ 33) (Miss.2001) (citation omitted). It is also true that the prosecutor made comments that referenced race during his closing argument, stating:

This case has everything to do with race. This case has nothing to do with race. It has everything to do with race in that a black man is accused of killing a white man. It has nothing to do with race because justice is blind. The killer is the defendant. The deceased is the victim. It has everything to do with race because obviously from the groups that were involved, prejudices and stereotypes and fears that they have of each other [sic]. But it has nothing to do with race because you are white and black. You’re male and female. You’re young and older. And you looking at what happened out there, the facts that occurred, is where justice is made.

However, the prosecutor’s statements make clear that, far from attempting to prejudice the jury against Stewart based on his race, he was actually attempting to focus the jury’s attention on the fact that them duty was to examine the facts, regardless of the race of the accused and the victim, and return a verdict based solely on those facts. Accordingly, we find this issue to be without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J., AND IRVING, J., CONCUR IN RESULT ONLY.

      . In this context, the language "heightened standard of review” refers to death penalty cases. See King v. State, 784 So.2d 884, 886(¶ 5) (Miss.2001).