author: BEAM, JUSTICE, FOR THE COURT:

text:
    STATE of Mississippi v. WALGREEN CO., and Super D Drugs Acquisition Co. d/b/a Walgreens # 15737
    State of Mississippi v. CVS Health Corporation, CVS Pharmacy 00047, CVS Pharmacy 01119, CVS Pharmacy 02038, CVS Pharmacy 03124, CVS Pharmacy 03426, CVS Pharmacy 04376, CVS Pharmacy 04519, CVS Pharmacy 04536, CVS Pharmacy 04782, CVS Pharmacy 04883, CVS Pharmacy 04966, CVS Pharmacy 04993, CVS Pharmacy 04997, CVS PHarmacy 05277, CVS Pharmacy 05573, CVS Pharmacy 05604, CVS Pharmacy 05739, CVS Pharmacy 05740, CVS Pharmacy 05744, CVS Pharmacy 05745, CVS Pharmacy 05746, CVS Pharmacy 05756, CVS Pharmacy 05777, CVS Pharmacy 05801, CVS Pharmacy 05808, CVS Pharmacy 05825, CVS Pharmacy 05835, CVS Pharmacy 05842, CVS Pharmacy 05846, CVS Pharmacy 05850, CVS Pharmacy 05865, CVS Pharmacy 05870, CVS Pharmacy 05876, CVS Pharmacy 05878, CVS Pharmacy 05883, CVS Pharmacy 05900, CVS Pharmacy 05908, CVS Pharmacy 05923, CVS Pharmacy 05925, CVS Pharmacy 05933, CVS Pharmacy 06031, CVS Pharmacy 06396, CVS Pharmacy 07065, CVS Pharmacy 07963, CVS Pharmacy 08273, CVS Pharmacy 08310, CVS Pharmacy 08311, CVS Pharmacy 08491, CVS Pharmacy 08954, CVS Pharmacy 08955, CVS Pharmacy 08992, CVS Pharmacy 08993, CVS Pharmacy 08994, CVS Pharmacy 10020, CVS Pharmacy 10400, CVS Pharmacy 10755, CVS 5168 MS LLC, CVS 7070 MS LLC, CVS 8956 MS LLC, CVS Orlando Florida Distribution, LLC, CVS/Pharmacy #16230 dba, CVS/Pharmacy #17038 dba, CVS/Pharmacy #17144 dba, CVS/Pharmacy # 17498 dba, CVS/Pharmacy #17532 dba, CVS RX Services, Inc., CVS TN Distribution, LLC and CVS Pharmacy, LLC
    State of Mississippi v. Fred's Inc., Fred's Stores of Tennessee, Inc., and Fred's Pharmacy of Quitman, LLC
    NO. 2017-IA-00535-SCT CONSOLIDATED WITH NO. 2017-IA-00536-SCT CONSOLIDATED WITH NO. 2017-IA-00539-SCT
    Supreme Court of Mississippi.
    August 9, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY: GEORGE W. NEVILLE, JACQUELINE H. RAY, JACKSON, DONALD L. KILGORE, PHILADELPHIA, D. RONALD MUSGROVE, MICHAEL SHELTON SMITH, II, JACKSON, WILSON DANIEL "DEE" MILES, III, H. CLAY BARNETT, ALLISON DOUILLARD HAWTHORNE, JESSE MITCHELL, III, RIDGELAND
    ATTORNEYS FOR APPELLEES: DAVID F. MARON, BARRY K. COCKRELL, BRADLEY CLAYTON MOODY, JACKSON, SAMUEL DEUCALION GREGORY
    ATTORNEYS FOR APPELLEES: J. CAL MAYO, SARAH KATHERINE EMBRY, ENU MAINIGI, CRAIG D. SINGER, ASHLEY W. HARDIN
    ATTORNEYS FOR APPELLEES: JEFFREY SCOTT NEWTON, ROBERT F. WALKER, D. STERLING KIDD, JACKSON
    EN BANC
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. This matter stems from a lawsuit filed by the State of Mississippi against the defendant pharmacies. The State alleges deceptive trade practices and fraudulent reporting of inflated "usual and customary" prices in the defendant's reimbursement requests to the Mississippi Department of Medicaid. The State argues that Walgreens, CVS, and Fred's pharmacies purposefully misrepresented these prices to obtain higher prescription drug reimbursements from the State of Mississippi. Finding that the circuit court was better equipped to preside over this action, Chancellor Lundy of the DeSoto County Chancery Court transferred the matter to the DeSoto County Circuit Court in response to the defendants' request. Aggrieved, the State timely filed its interlocutory appeal disputing the chancellor's decision to transfer the cause.

¶ 2. After a thorough review of the parties' positions, this Court finds that the chancery court properly could have retained the action, but that the chancellor correctly used his discretion to transfer the case, allowing the issues to proceed in front of a circuit-court jury. As a result, we affirm the chancellor's decision.

FACTS AND PROCEDURAL HISTORY

I. Underlying Action

¶ 3. The State filed suit against Walgreens, CVS, and Fred's pharmacies on September 30, 2016. Through its complaint, the State detailed the complexities of Mississippi's Medicaid reimbursement program which led to the Legislature's creation of the Department of Medicaid (DOM). As the State explains, the Department was created to administer the Mississippi Medicaid program and to pay for the prescription drugs of individuals covered under the plan. Rather than reimbursing Medicaid recipients for eligible prescriptions directly, those recipients fill their medications with a pharmacy of their choice, and the dispensing pharmacies later request reimbursement from DOM.

¶ 4. Upon receipt of a pharmacy's request for reimbursement, DOM applies one of four statutory and federally approved reimbursement formulas to determine how the State will reimburse the provider for the Medicaid participant's prescription. The formulas include separate price indices from which the State may calculate its reimbursement. From those indices, DOM selects the lowest price or rate to determine the reimbursement amount to remit.

¶ 5. The State's complaint against the pharmacies concerns only one of the indices: the "usual and customary charge" (UC). This rate identifies the amount which providers-including the retail pharmacies at issue-are required to report. The Mississippi Division of Medicaid Provider Billing Handbook defines the UC price as "the amount charged by the provider for the same service when provided to private-pay patients." The Mississippi Division of Medicaid refers to this as the "charge to non-medicaid patients" and previously has explained that this is the same as the price charged to a cash-paying customer.

¶ 6. Neither party disputes that the defendants-as retail pharmacies dispensing drugs to Medicaid customers-have entered into Medicaid Provider Agreements with the Mississippi Division of Medicaid. The State argues that, through these agreements, the defendants have agreed to comply with all state and federal Medicaid laws, including the conditions outlined for drug-claims payments. Because the pharmacies were aware of the State's definition of UC and voluntarily have entered into these provider agreements, the State claims that the pharmacies are bound by Mississippi Division of Medicaid's UC definition as well as the price reporting requirements implemented by the State.

¶ 7. Although the pharmacies are both aware of and bound to the UC price-reporting requirement, the State asserts that the defendants do not report their discount drug program prices as their UC prices. Rather, the pharmacies report the full price they might charge, before applying their program's discount. Because the discounted price is the amount charged to "non-Medicaid" or "cash paying" patients, the State argues that the pharmacies should report these lower, discounted amounts as their UC prices for the drugs on the discount drug list. Instead, the defendants have continued to report much higher UC prices than their everyday discounted prices, causing Mississippi Medicaid to reimburse the pharmacies at a much higher rate.

¶ 8. The State claims that by disregarding the everyday, discounted prices regularly charged to private-pay, non-Medicaid patients, the defendants have continued to submit false UC prices, amounting to fraudulent claims for reimbursement, causing the State to remit excessive Medicaid payments to the pharmacies. The State argues that by knowingly and willingly submitting these inaccurate prices, and then fraudulently concealing the true UC prices for the drugs, the defendants violated the Mississippi Medicaid Fraud Act ( Mississippi Code Section 43-13-201, et seq. ), causing the State to suffer actual damages.

¶ 9. Further, the State argues these same actions constitute unfair and deceptive practices in violation of the State's Consumer Protection Act ( Mississippi Code Section 75-24-1, et seq. ). Because the defendants knew or should have known that the State would rely on their misrepresentation of the UC prices, their deceptive practices caused the State to suffer actual damages in the form of gross overpayments for prescription drugs. The State requests relief from this burden under Mississippi Code Sections 75-24-9 and 75-24-11, praying for restitution, civil penalties, and injunctive relief.

¶ 10. Citing the defendants' misrepresentations and the damage caused by their inflation of their UC prices, the State also presents claims of fraud and unjust enrichment. As a result, the State requests restitution under both claims.

¶ 11. Of note is the State's prayer for relief, which has become the impetus for the jurisdictional arguments on appeal. The State requested that the chancery court grant the following relief against the defendants:

(1) an order enjoining the Defendants from continuing the fraudulent, deceptive and/or unfair acts or practices complained of herein, and requiring correcting measures;
(2) an award of compensatory damages to the State in such amount as is proved at trial;
(3) an award of actual damages;
(4) an award of all civil penalties provided for by statute;
(5) an award of punitive damages;
(6) an accounting of all profits or gains derived in whole or in part by the Defendants through their fraudulent, unfair and/or deceptive acts or practices complained of herein;
(7) a constructive trust of the moneys illegally and impermissibly obtained from the Defendants' scheme;
(8) an order imposing a constructive trust on and/or requiring disgorgement by the Defendants of all profits and gains earned in whole or in part through the fraudulent, unfair and/or deceptive acts or practices complained of herein;
(9) an award of attorney fees, costs, and prejudgment interest; and
(10) such other and further relief as the Court may deem appropriate and just.

With a combination of equitable and legal requests-including injunctive relief, a constructive trust, and actual and punitive damages-the State filed this complaint in the DeSoto County Chancery Court, alleging proper venue and jurisdiction based on the defendants' ties to Mississippi, the business regularly conducted in DeSoto County, and the power provided through Mississippi Constitution Article VI, Section 159.

II. Procedural History

¶ 12. The defendants timely responded to the September 30, 2016, complaint with individual answers and motions to transfer the suits to circuit court. In their motions to transfer, the defendants argued that jurisdiction is proper in the DeSoto County Circuit Court because the State's complaint primarily seeks legal relief through legal claims and arguments. Additionally, they claimed that failing to transfer the matter to circuit court would deprive the pharmacies of their constitutional right to a jury trial.

¶ 13. In their motion-briefs, the defendants supported their arguments for transfer by distinguishing the coverage of two courts. Noting the chancery's limited jurisdiction, the defendants explained that the general jurisdiction of the circuit court is a better forum for the legal claims at issue. The defendants argued that, because the State's requested relief is not purely equitable and is connected to a contractual relationship, retaining the action in the chancery court would deprive the defendants of their right to a jury trial simply by a choice of forum. Arguing that the "driving thrust of the State's action is to recover money damages," the defendants asserted that, regardless of the State's equitable claims for injunctive relief and a constructive trust, the substance of the amended complaint requires that the case proceed in the circuit court.

¶ 14. Importantly, the defendants asserted that, although the State's complaint does not specifically include a count for breach of contract, a careful and comprehensive review shows that the State's allegations clearly are connected to a contractual relationship or other claims tied to questions of law. The defendants used this conclusion to argue that the court should look to the substance of the State's complaint, identifying the legal nature of its claims, and allowing the matter to proceed before a circuit court jury.

¶ 15. Finding these arguments convincing, Judge Lundy granted the defendants' request on February 16, 2017. In his order, the chancellor acknowledged that, although the State seeks some equitable relief from the court, the substance of its claims involve the recovery of compensation through actual and punitive damages. With deference to the Mississippi Constitution's inviolate right to a "trial by jury" ( Miss. Const. art. 3, § 31 ), the judge found that when claims are connected to a contractual relationship or are otherwise tied to a question of law, such questions of both law and equity are more appropriately presented in circuit court. With the substance of the State's complaint being legal with ancillary equity claims, the judge ordered the matter to be transferred from his court.

¶ 16. Aggrieved, the State filed a motion for reconsideration of the court's order transferring venue to the DeSoto County Circuit Court. The State reiterated that it was not asserting a breach of contract, but only that the pharmacies had violated Mississippi statutory and common law by presenting fraudulent claims to the State for reimbursement. The State argued that, while a contract may exist, it never pleaded any facts necessary to establish a breach-of-contract cause of action, and that relying on the absence of such facts to establish jurisdiction in the circuit court is inappropriate.

¶ 17. Notably, the State included citation to Mississippi Code Section 75-24-9 in its argument for reconsideration, averring that under this statute, the chancellor's transfer of the matter to the circuit court served to deprive the Attorney General of his constitutional authority to seek an injunction under the Mississippi Consumer Protection Act (MCPA). Citing this Court's decision in State of Mississippi v. McKesson Corp. , No. 2011-M-01066 (Miss. Dec. 15, 2011) for support, the State claimed that it is constrained to file its MCPA injunction anywhere other than chancery court. Arguing that the statute is jurisdictional, the State claimed that for the Attorney General to seek relief under the MCPA, the statutes and the Mississippi Supreme Court require that such claims must be presented in chancery court, and nowhere else.

III. Interlocutory Appeal

¶ 18. After thirty days, the chancery court failed to rule on the State's motion for reconsideration and the request was deemed denied on March 29, 2017. Three weeks later, the State filed its petitions for interlocutory appeal. While many of the issues raised by the State were identical to those presented at the trial level, one new issue-not discussed by the chancellor -was more thoroughly detailed by the State on appeal: whether Mississippi Code Section 75-24-9 is jurisdictional and establishes the Attorney General's authority to seek an MCPA injunction in the chancery court. This is the central issue which governs our analysis below.

ANALYSIS

I. Does the chancellor's decision to transfer the State's case to the circuit court conflict with the statutory requirement and the Mississippi Supreme Court's ruling that the Attorney General shall seek injunctive relief under the Mississippi Consumer Protection Act in chancery court?

¶ 19. In its briefs on appeal, the State reiterates that it seeks both legal and equitable remedies through the Attorney General. Because both remedies exist in a single action, jurisdiction properly rests in either chancery or circuit court. See Miss. Const. art. 6, § 157, 162. However, because the complaint was filed by the Attorney General and involves a claim for injunctive relief, the jurisdictional provision of the MCPA under Mississippi Code Section 75-24-9 dictates that such an action shall be brought in chancery court in certain counties. The state argues that, by transferring the matter to the circuit court, the chancellor ignored the mandates of Section 75-24-9, dismissed this Court's holding in State of Mississippi v. McKesson Corporation , and effectively stripped the Attorney General of his ability to enforce provisions of the MCPA.

A. Standard of Review

¶ 20. The State's first issue on interlocutory appeal asks both jurisdictional and statutory questions. "Jurisdiction is a question of law which this Court reviews de novo ." Germany v. Germany , 123 So.3d 423, 427 (Miss. 2013) (citing Trustmark Nat'l Bank v. Johnson , 865 So.2d 1148, 1150 (Miss. 2004) ). Accordingly, "[t]he standard of review for a ruling on a motion to transfer from chancery court to circuit court, or vice-versa, for lack of subject-matter jurisdiction is also de novo ." Id. (citing Union Nat'l Life Ins. Co. v. Crosby , 870 So.2d 1175, 1178 (Miss. 2004) ). In issues concerning statutory interpretation, this court applies the de novo standard, as well. Nelson v. City of Horn Lake ex. rel. Bd. of Aldermen , 968 So.2d 938, 942 (Miss. 2007). Therefore, we review the matter, in its entirety, de novo .

B. Section 75-24-9 and the Court's McKesson Order

¶ 21. To illustrate their position that the chancellor erred by transferring the matter to the circuit court, the State reiterates that the chancery court "shall have full jurisdiction [over] ... [a]ll matters in equity." Miss. Const. art. 6, § 159. Although the chancery court enjoys limited jurisdiction, see Hall v. Corbin , 478 So.2d 253, 255 (Miss. 1985), the State argues that the chancery court is permitted to exercise jurisdiction over cases involving both legal and equitable relief. See Leaf River Forest Prods., Inc. v. Deakle , 661 So.2d 188, 193 (Miss. 1995) ("Where the chancery court has exercised its equity jurisdiction, it may proceed to a complete adjudication of the suit and award all appropriate legal and equitable remedies."). Here, because the chancery court is situated properly to adjudicate fully the several equitable matters in this action, the State claims that the court may proceed to adjudicate all other legal questions as well. Moreover, because the chancery court is particularly suited to address the State's requests for an injunction, statutory civil penalties, a constructive trust, and an accounting of all profits/gains, the State argues that its additional request for legal damages should in no way divest the chancery court of its proper jurisdiction.

¶ 22. To further support its appeal, the State claims that Mississippi Code Section 75-24-9 requires the case to move forward in chancery court. The statute provides that

Whenever the Attorney General has reason to believe that any person is using, has used, or is about to use any method, act or practice prohibited by Section 75-24-5, and that proceedings would be in the public interest, he may bring an action in the name of the state against such person to restrain by temporary or permanent injunction the use of such method, act or practice. The action shall be brought in the chancery or county court of the county in which such person resides or has his principal place of business, or, with consent of the parties, may be brought in the chancery or county court of the county in which the State Capitol is located. The said courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of this chapter, and such injunctions shall be issued without bond.

Miss. Code Ann. § 75-24-9 (Rev. 2016) (emphasis added). Titled "Injunctive Relief," this section of the MCPA provides for the Attorney General's authority to prevent the "unfair methods of competition and unfair or deceptive trade practices" prohibited by the Act. Miss. Code Ann. § 75-24-5 (Rev. 2016). The State claims that, through this provision, the jurisdiction conferred upon the chancery court by the equitable claims in the suit is also required through this mandate of the MCPA.

¶ 23. The State concedes that the statute involves some language pertaining to venue, though it argues that the provision ultimately establishes the Attorney General's statutory authority to seek MCPA injunctions, exclusively in either county or chancery court. It claims that by moving the matter to the circuit court, the Attorney General will no longer be able to seek an injunction under the Act, and his constitutional authority to seek remedies for the citizens of this state will be stripped from his hands and absorbed by the court. According to the State, this makes the circuit court an impermissible option under the law.

¶ 24. To support this argument, the State cites this Court's order and ruling in State of Mississippi v. McKesson Corp. , No. 2011-M-01066 (Miss. Dec. 15, 2011). There, the Attorney General filed a claim for injunctive relief in the circuit court under the MCPA, though he made no direct claim for an injunction under Section 75-24-9. In an order authored by now-Presiding Justice Kitchens, the Court denied McKesson's petition to transfer the matter to the chancery court, and instead dismissed the State's claims for injunctive relief and ordered the matter to proceed in circuit court.

¶ 25. Much like this case, the issues on interlocutory appeal in McKesson surrounded whether the circuit or chancery court assumed jurisdiction over an injunction filed by the Attorney General under the provisions of the MCPA. Unlike this case, however, the Court found that the State claimed equitable relief in the form of an injunction, though it never actually requested that the trial court grant an injunction against the defendant. Finding that the State's complaint had failed to request the appropriate action from the trial court, the Court determined that the State had abandoned its MCPA claim and thereby ordered the case to proceed in circuit court without the ill-pleaded injunctive requests.

¶ 26. The State argues that this order supports the position that if an injunction is requested under Section 75-24-9, it must be filed in the chancery court. We find the State's argument misses the mark and that the McKesson order does nothing to support either party's position on appeal. While the underlying issues and the question before the Court were the same as those presented today, the McKesson Court properly moved past the issue of whether the statute required the case to be transferred and instead issued a ruling dismissing the improperly pleaded counts in the State's complaint. This decision answered the question of whether that matter should be transferred without actually determining whether the statute required the matter to be heard in chancery court. The McKesson order simply is not applicable to the matter before us.

¶ 27. Turning to the language of the statute, the defendants argue that Section 75-24-9 does not require the action to remain in chancery court because it concerns venue , not jurisdiction . As distinct matters, venue refers to the place where an action is to be heard and is largely a function of statute. M.R.C.P. 82. Jurisdiction , however, is governed by the Mississippi Constitution. See Miss. Const. art. 6, § 156, 157, 159-62. The defendants claim that nothing in the statute's text or its legislative history suggests the provision is anything more than a venue statute. Instead, the statute presumes that such equitable claims will be brought in the state's court of equity and indicates not whether chancery court should have jurisdiction, but which county's chancery court shall have venue over the matter.

¶ 28. Although we find this explanation deficient in some respects, we agree that the statute does nothing more than presume that an MCPA injunction, standing alone, will be filed in county or chancery court. Through the Mississippi Constitution, the chancery court's jurisdiction is limited to specific areas, including "all matters in equity." Miss. Const. art. 6, § 159 (a). As a result, injunctions like the one in question must be filed in the chancery court. Here, jurisdiction would attach through the equitable claims presented by the State, including the Section 75-24-9 injunction request. However, as the defendants correctly point out, when the complaint is considered as a whole, the thrust of the State's case clearly is legal in nature, restricting the limited jurisdiction of the chancery.

¶ 29. We recognize the importance of the State's request for remedies, including an accounting and a constructive trust, which typically require the chancellor's equitable review, and we certainly do not intend to devalue that importance here. But an application of the State's equitable claims is not enough to limit jurisdiction to the chancery court; not even through the application of Section 75-24-9. We have held that chancery courts maintain "the discretion to award legal and even punitive damages as long as" their jurisdiction has attached. Southern Leisure Homes, Inc. v. Hardin , 742 So.2d 1088, 1090 (Miss. 1999).

Though, in matters like the one before us today, "it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction." McDonald's Corp. v. Robinson Indus., Inc. , 592 So.2d 927, 934 (Miss. 1991) ; see also Hardin , 742 So.2d at 1090 ; Union Nat'l Life Ins. Co. v. Crosby , 870 So.2d 1175, 1182 (Miss. 2004).

¶ 30. We reiterated this position in Era Franchise Systems, Inc. v. Mathis , 931 So.2d 1278 (Miss. 2006). There, we noted that "equitable claims are more appropriately brought before a circuit court when they are connected to a contractual relationship or other claims tied to questions of law." Mathis , 931 So.2d at 1283 (citing Copiah Med. Assocs. v. Mississippi Baptist Health Sys. , 898 So.2d 656, 661 (Miss. 2005) ; Crosby , 870 So.2d at 1175 ; RE/Max Real Estate Partners v. Lindsley , 840 So.2d 709 (Miss. 2003) ). In Mathis , Venit Mathis filed a complaint against multiple defendants alleging various claims, framed as a derivative action on behalf of REP-an organization in which he alleged to have a fifty-percent stake. Like the State in the matter before us, Mathis pleaded several causes of action and prayed for both legal and equitable relief. After the chancery court determined that it would be best to bifurcate the action, leaving the equitable claims in chancery court and transferring the legal claims to the circuit court, the defendants appealed. This Court reviewed the matter and determined that the chancellor had committed reversible error. Mathis , 931 So.2d at 1283-1284. Following our holding in Crosby (stating that where a complaint seeks both actual and punitive damages, the "remedy is clearly legal rather than equitable in nature," Crosby , 870 So.2d at 1179 ), we determined that the circuit court's general jurisdiction is better suited to try a case when doubt exists as to whether the claims are equitable or legal. Mathis , 931 So.2d at 1282 (citing Burnette v. Hartford Underwriters Ins. Co. , 770 So.2d 948, 952 (Miss. 2000) ). Finding that Mathis's action revolved around issues stemming from contractual obligations not met by the defendants, we reversed the chancellor's decision denying the defendant's motion to transfer the matter to the circuit court. Id. at 1283.

¶ 31. Similarly, in the often-cited Crosby case, the plaintiffs brought an action to recover against the defendants for several common-law and statutory claims arising out of sale of insurance policies and allegedly exorbitant premiums. Crosby , 870 So.2d 1175 (Miss. 2004). Although the plaintiffs requested a constructive trust, an accounting, and injunctive relief, the defendants claimed that the complaint sounded in tort and contract law-not equity-and requested the case be transferred to circuit court. Reviewing the matter on interlocutory appeal, this Court reversed the chancellor's denial of the defendant's motion to transfer, and determined that "each and every one of Crosby's claims, even the equitable claims of unjust enrichment and constructive trust, arise from the sale and alleged breach of an insurance contract." Id. at 1182. We noted that an argument alleging otherwise

ignores the fact that, unless there was a contractual relationship between Union National and Crosby, she would have no claims arising from the sales, administration and service of the insurance policy....The alleged mismanagement and misappropriation of premium money concerns Crosby's contractual duty to pay for the insurance policy and Union National to provide her coverage.

Id.

¶ 32. This analysis is directly applicable to the State's claims against the pharmacies. While it is true that the State's complaint does not plead the facts necessary to establish a breach-of-contract cause of action, we must look to "the substance, and not the form" of the claims in our resolution of a matter. Copiah Med. Assocs. , 898 So.2d at 661. With the State's single theory of wrongdoing arising from the defendant's obligations under the Medicaid provider agreements, the State's decision to omit a breach-of-contract claim in no way affects the complaint's substance: the claims asserted and the relief requested present legal arguments and legal remedies. Moreover, much like Crosby and Mathis , the heart of the complaint concerns a provider agreement (a contract), its terms, and the parties who failed to abide by the arrangement. While the equitable issues pleaded are relevant and not to be ignored, the legal issues which flowed from the pharmacies' alleged inflated reimbursement requests predominate the State's claims and requests for relief. As a result, jurisdiction properly lies in the circuit court.

¶ 33. Putting aside the State's requests for restitution, accountings, constructive trusts, and injunctions, the complaint prays for millions of dollars in actual and punitive damages based on the defendants' alleged unwillingness to comply with the signed provider agreements. Whether the State disagrees that the basis of these complaints sounds in contract is of no moment. Rather, as most of the claims are legal in nature, the circuit court is the appropriate forum to rule on the matter.

¶ 34. This decision in no way strips the Attorney General of his constitutional authority to pursue an injunction. Rather, it allows the State fully and fairly to pursue all claims against the defendants, while providing the defendants with an opportunity to have those issues presented to a jury. The State, therefore, should fully and ably proceed with its complaint in circuit court.

C. Whether a Section 75-24-9 injunction may be obtained in the circuit court .

¶ 35. As noted above, chancery courts of this state are permitted to hear such legal claims when accompanied by equitable issues, though an application of the circuit court's pendant jurisdiction is particularly consequential in this action: a jury trial is warranted in this high-stakes suit and only the circuit court can ensure the defendant's jury request is granted. We find that, through a proper application of his discretion, the chancellor did not err in his decision to transfer the matter, and any apparent conflict with this decision and the Section 75-24-9 provision is inconsequential. Accordingly, an injunction under Mississippi Code Section 75-24-9 may be obtained in circuit court when the original court or the transferring court considers it appropriate under the circumstances.

II. Did the DeSoto Chancery Court's failure to grant the State's Motion for Reconsideration constitute an abuse of discretion?

¶ 36. In its second issue, the State claims that the chancery court's refusal to reverse its decision transferring the matter to circuit court was an abuse of discretion. Reiterating claims that the language of Mississippi Code Section 75-24-9 unambiguously confers jurisdiction on the chancery court, and that the Court in McKesson reenforced this fact in its 2011 order, the State claims that the trial court erred and its decision should be reversed.

¶ 37. The grant or denial of a motion for reconsideration is reviewed under an abuse-of-discretion standard. City of Jackson v. Internal Engine Parts Grp., Inc. , 903 So.2d 60, 66 (Miss. 2005). Mississippi Rule of Civil Procedure 60(c) provides that a Rule 60 motion shall be deemed denied if the "court fails to rule on the motion for reconsideration within thirty (30) days of the date of filing," M.R.C.P. 60(c). Under this rule, the party making the motion must make clear that any disputed order contains either clerical mistakes to be corrected by the court, or other inadvertent mistakes, newly discovered evidence, fraud, or other specifically outlined errors. M.R.C.P. 60(a), (b).

¶ 38. Having reviewed the State's motion for reconsideration, it is clear that the motion is largely a regurgitation of the claims made in its complaint and at the hearing on the defendant's motion to transfer. Accordingly, we find that the chancellor's denial of the State's motion was well within his discretion.

CONCLUSION

¶ 39. Applying its broad discretionary powers, the DeSoto County Chancery Court properly determined that a jury trial was appropriate in this case and transferred the matter to the circuit court for resolution. Such a decision did not strip the Attorney General of his power to pursue an injunction under the MCPA, and he may pursue such a claim in the circuit court. Accordingly, the chancellor's order is affirmed.

¶ 40. AFFIRMED AND REMANDED.

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

      The State's individual interlocutory appeals against Walgreens, CVS, and Fred's have been consolidated by this Court.

      The docket indicates that the State filed suit on June 28, 2016, and withdrew its initial complaint on September 30, replacing it with this, its First Amended Complaint.

      Like the vast majority of pharmacy chains across the country, the defendants implemented discounted drug programs which offer thousands of commonly prescribed drugs at prices ranging from $4 to $15. These prices are offered to customers regardless of Medicaid participation.

      The chancery court shall have full jurisdiction in the following matters and cases, viz.:
      (a) All matters in equity;
      (b) Divorce and alimony;
      (c) Matters testamentary and of administration;
      (d) Minor's business;
      (e) Cases of idiocy, lunacy, and persons of unsound mind;
      (f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation.
      Miss. Const. art. 6, § 159.

      Alternatively, Fred's claims that if the court fails to find that the circuit court has jurisdiction over the suit, then the DeSoto County Chancery Court is the inappropriate venue and the matter against the pharmacy should be transferred to the Lauderdale County Chancery Court.

      Interestingly, the parties dispute whether the transfer to circuit court was one of venue or jurisdiction. While the chancellor's order mentioned neither venue nor jurisdiction in his explanation of the transfer, the court's docket referred to the order as one transferring venue. The State alleges that the chancellor's transfer was jurisdictional while the defendants argue that the order was made for purposes of venue.

      The defendants argue that because the chancellor did not address this issue, it is not properly before the Court on appeal. The State did, however, include the argument in its motion for reconsideration. The motion was deemed denied without response from the chancellor after thirty days had passed without an order from the court. Further, the State briefly recited the language of Section 75-24-9 during argument on the defendant's motion to transfer. Although the McKesson order was not mentioned at the hearing, the core argument was presented for the chancellor's review and is properly before this Court.

      Claims included fraud, fraudulent inducement, breach of duty of good faith and fair dealing, tortuous breach of contract, breach of fiduciary duty, assumpsit, unjust enrichment, negligence, gross negligence, violation of the MCPA, and conversion.

      See Riverboat Corp. of Mississippi v. Harrison Cty. Bd. of Supervisors, 198 So.3d 289 (Miss. 2016), and Edmonds v. State , 234 So.3d 286 (Miss. 2017) (confirming that the right to a jury trial exists in civil matters). See also KD Hattiesburg 1128, Inc. v. Turtle Creek Crossing, LLC, 237 So.3d 157, 164 (Miss. 2018) (affirming the circuit court's retention of the matter and resolving that the plaintiff's "right to a jury trial would be infringed upon if this case were heard in chancery court").


source: Caselaw Access Project

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

license: Public Domain

text:
    Hunter Lane SARRETT a/k/a Hunter Sarrett, Appellant v. STATE of Mississippi Appellee
    NO. 2016-KA-01267-COA
    Court of Appeals of Mississippi.
    December 12, 2017 Rehearing Denied May 8, 2018 Certiorari Denied August 9, 2018
    ATTORNEY FOR APPELLANT: DONALD W. BOYKIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE E. KOONCE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Hunter Lane Sarrett was convicted of Count I, sale of cathinone within 1,500 feet of a school; Count II, conspiracy to sell cathinone; Count III, sale of alprazolam within 1,500 feet of a school; and Count IV, conspiracy to sell alprazolam. He was sentenced to serve sixteen years, with six years suspended, on Count I; twenty years, with ten years suspended, on Count II; sixteen years, with six years suspended, on Count III; and twenty years, with ten years suspended, on Count IV. The sentences were ordered to run concurrently with each other.

¶ 2. Upon release, Sarrett was ordered to serve five years on probation under the direct supervision of the Mississippi Department of Corrections. Sarrett was further ordered to pay $756.50 in court costs, a $1,000 fine, and $300 to the Mississippi Crime Lab.

¶ 3. Sarrett now appeals and asserts numerous assignments of error. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 4. On June 18, 2014, the Pearl Police Department arranged a controlled buy in order for Katy Young, a confidential informant, to purchase "molly" and Vicodin from Sarrett. Prior to the drug transaction, Young's car and person were searched and she was equipped with a key fob camera and a body wire. Young was given cash in order to purchase the drugs from Sarrett. The drug transaction occurred at Young's house, where she lived with Sarrett's sister.

¶ 5. Young and Sarrett exchanged text messages and spoke on the phone earlier in the day to arrange the meeting. At Sarrett's request, Young met Sarrett at her house, underneath the carport. The drug transaction was recorded on the key fob camera which, according to Young, was "a camera that goes on your key chain ... like a car remote." For reasons unknown, the body wire placed under Young's clothes did not record the transaction.

¶ 6. The key fob camera included both an audio and video recording of the drug transaction. The audio and video recording was admitted into evidence at trial as State's Exhibit 4 and played for the jury. Although poor quality, the conversation between Sarrett and Young can be heard. At the beginning of the audio recording, Sarrett told Young that he had "been to ten people's houses" and had to go to "like eight more-business is picking up." Sarrett advised Young that he had Xanax, not Vicodin. He asked Young how many Xanax pills she wanted. When Young inquired as to how many $20 would get her, Sarrett stated he would give her "all of them."

¶ 7. Sarrett then confirmed that Young wanted "2 fifteens" and asked whether Young planned to take both of them. When Young stated she intended to keep one and give one to a friend, Sarrett stated that that was fine, and explained that he was able to take two at a time, but likely had a higher tolerance.

¶ 8. It is undisputed that the actual drug exchange did not appear on the video. Young testified that Sarrett kept the drugs under the hood of his truck. At the end of the video, Sarrett can be seen standing at the front of his truck.

¶ 9. Young explained that she did not know how to turn the key fob camera on or off. She stated that law enforcement turned on the camera prior to the drug transaction. However, Young acknowledged that the camera "died" after Sarrett became visible.

¶ 10. Following the drug transaction, Young met with law-enforcement officers and gave them the drugs that she had purchased from Sarrett. Law enforcement searched Young's car and person and removed the recording devices. Moreover, law enforcement showed Young a picture of Sarrett to confirm that he was the individual from whom she had purchased the drugs.

¶ 11. Young testified that she did not go inside the house before meeting with law enforcement. She further testified that she had agreed to act as a confidential informant in hopes of having various misdemeanor charges, including a driving-under-the-influence charge, removed from her record.

¶ 12. Officer Zach Acy, a narcotics investigator with the Pearl Police Department, conducted surveillance of the entire transaction. Acy was parked approximately six houses down from Young's house. He saw Young pull into the driveway, and could see the front of the house as well as the carport. Acy testified that he saw a silver Toyota pickup truck under the carport, which came back registered to Gary Sarrett, Sarrett's father. According to Acy, once Young arrived at the house, the drug buy took approximately two to three minutes. Acy stated he never saw Young enter the house.

¶ 13. Allison Conville, a chemist in the drug section of the Mississippi Forensics Laboratory, was admitted as an expert in forensic science specializing in drug identification. Conville testified that she had received and tested two submissions. The first submission contained two capsules of ethylone, which is a substituted drug known as cathinone. The second submission contained fourteen tablets of alprazolam, which is also known as Xanax.

¶ 14. Sarrett's sister, Alyssa, testified on Sarrett's behalf and stated that on June 18, 2014, she and Sarrett were at her house, along with friends Matthew and Amy. According to Alyssa, when Young showed up, Young and Matthew went into the bedroom for about a minute. Young then walked out of the house. However, Victoria May, custodian of records for the Rankin County Sheriff's Department, testified that on June 18, 2014, Matthew was actually in custody in the Rankin County jail, and had been in custody since May 24, 2014.

¶ 15. A judgment of conviction was entered June 14, 2016. Thereafter, on July 28, 2016, Sarrett was sentenced. On August 4, 2016, Sarrett filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial. The circuit court denied the motion as untimely. Sarrett subsequently filed a notice of appeal on August 25, 2016.

¶ 16. On appeal, Sarrett argues: (1) the circuit court erroneously denied his motion in limine regarding other acts, crimes, or wrongs; (2) the prosecutor made inappropriate statements during the State's opening statement and closing argument; (3) counsel's failure to object to the authenticity of certain exhibits constituted ineffective assistance of counsel; (4) there was insufficient evidence to support his conviction on Counts I and II; and (5) the circuit court erred in denying his post-trial motion as untimely.

ANALYSIS

I. Motion in Limine Regarding Other Acts, Crimes, or Wrongs

¶ 17. Sarrett first claims the circuit court erroneously denied his motion in limine to preclude evidence of other acts, crimes, or wrongs. "The standard of review governing the admission or exclusion of evidence is abuse of discretion." Williams v. State , 991 So.2d 593, 597 (¶ 8) (Miss. 2008).

¶ 18. During the recording of the drug transaction, Sarrett stated he had been to "ten people's houses" and had "eight more" to go, followed by the statement "business is picking up." In his motion in limine, Sarrett sought the exclusion of any evidence of "other alleged crimes in which he was suppose to have committed or was going to commit." Sarrett claims that "the prosecution wanted the jury to believe [he] had engaged in past drug sales or past crimes" and therefore moved to exclude these statements under Mississippi Rules of Evidence 403 and 404.

¶ 19. Interestingly, Sarrett admits the statements heard on the recording say nothing about any prior crime or bad act. The circuit court acknowledged this in its ruling. Specifically, the circuit court stated, "[a]lthough it doesn't really say what [Sarrett] did at those houses or what business it is that's picking up, it still appears to me to be part of the same transaction here ...." The circuit court found the statements were part of the same transaction as the drug sale and therefore denied the motion in limine to exclude the statements. Based on our review of the record, we cannot say this was an abuse of discretion.

¶ 20. Under Rule 404(b)(1), "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." However, "[w]hen the charged crime and prior crime or bad act are so interwoven as to form a series of occurrences," such evidence may be offered "to tell the complete story so as not to confuse the jury." Edwards v. State , 124 So.3d 105, 113 (¶ 36) (Miss. Ct. App. 2013) (citation omitted). "The rationale for admitting evidence of certain closely related acts is that the prosecution has a legitimate interest in telling a rational and coherent story of what happened." Id. (citation omitted).

¶ 21. Here, the conversation between Sarrett and Young was a part of a series of occurrences which culminated in Sarrett's arrest. The statements at issue were a part of the entire conversation between Sarrett and Young, and were connected with the crime and included within the same transaction as the drug sale. Thus, we find the admission of the statements did not violate Rule 404(b).

¶ 22. Additionally, the record shows the circuit court performed a balancing test pursuant to Rule 403. The circuit court reviewed the recording, considered the arguments of counsel, and found the probative value of the evidence did not outweigh any prejudicial effect.

¶ 23. Overall, we find no abuse of discretion in the circuit court's denial of Sarrett's motion in limine regarding other acts, crimes, or wrongs.

II. Prosecutorial Misconduct

¶ 24. Sarrett next claims the prosecutor made improper statements during his opening statement and closing argument. Specifically, Sarrett claims the prosecutor's references to "drops" amounted to prosecutorial misconduct.

¶ 25. Our standard of review regarding alleged lawyer misconduct during opening statements or closing arguments is "whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Randolph v. State , 973 So.2d 254, 264 (¶ 29) (Miss. Ct. App. 2007) (citations omitted).

¶ 26. During opening statements, the prosecutor advised the jury that it would hear Sarrett say, "[b]usiness is picking up" during the transaction with Young, and that he had "done 8 to 10 drops today."

¶ 27. During closing arguments, the prosecutor stated, in part:

So what does the State of Mississippi have to prove to you? In each and everyone of these we have to prove that [Sarrett] acted willfully, unlawfully, feloniously, knowingly, intentionally, without authority of law.
So what does that mean? Basically, that means he meant to do it. It wasn't an accident. This was something he meant to do.
How do we know this is something that he meant to do? Well, we have what's been labeled as State's Exhibit 4. This is the recording of the transaction. So what did [Sarrett] say when he arrived-when Young arrived?
"Business is picking up. Business is picking up." This is a deliberate action by [Sarrett]. "Business is picking up. I've already had eight drops. Got two more."
Then [Sarrett and Young] go to talking about Vicodin, Xanax, two 15s. Willful, unlawful, knowing and intentional.

¶ 28. Later in his closing argument, the prosecutor again referenced the statement "business is picking up." However, there were no additional references to "drops."

¶ 29. Sarrett did not object at any point during the State's opening statement or closing argument. Generally, "[i]f no contemporaneous objection is made, the error, if any, is waived." Stevenson v. State , 156 So.3d 927, 930 (¶ 13) (Miss. Ct. App. 2015) (citation omitted). However, while the failure to contemporaneously object generally waives a claim of prosecutorial misconduct during opening statements or closing arguments, "we will review such a claim if the prosecutor's statement was so inflammatory that the [circuit] judge should have objected on his own motion." O'Connor v. State , 120 So.3d 390, 399 (¶ 26) (Miss. 2013).

¶ 30. Here, Sarrett was charged with two counts of sale of a controlled substance and two counts of conspiracy to sell. The jury heard the conversation between Sarrett and Young regarding the drug transaction. The jury was instructed that arguments, statements, and remarks of counsel were not evidence and that if counsel's recollection of the evidence differed from theirs, then they must follow their own recollection. Thus, the jury was able to consider the facts and evidence presented and to recall for itself what Sarrett said or did not say.

¶ 31. "There is wide latitude for counsel in both opening and closing arguments, expanding beyond mere facts and proof to include such deductions and conclusions one may reasonably draw therefrom ...." White v. State , 847 So.2d 886, 890 (¶12) (Miss. Ct. App. 2002) (citation omitted). "Any statement made must be viewed in context, taking into consideration the circumstances of the case." McCoy v. State , 954 So.2d 479, 488 (¶ 28) (Miss. Ct. App. 2007) (citation omitted). Considering the context in which the statements were made and the circumstances of the case, we conclude that the prosecutor's references to "drops" were not so inflammatory that the circuit judge should have intervened sua sponte. Accordingly, we find Sarrett waived this issue by failing to object. See O'Connor , 120 So.3d at 400 (¶ 27).

¶ 32. Notwithstanding the waiver, we cannot conclude based upon our review of the record that the natural and probable effect of the statements was to create unjust prejudice against Sarrett. See Randolph , 973 So.2d at 264 (¶ 29). Thus, Sarrett's prosecutorial-misconduct claim fails.

III. Ineffective Assistance of Counsel Regarding the Authentication of Exhibits

¶ 33. Sarrett asserts State's Exhibits 4, 12, and 13 were admitted into evidence without proper authentication. Defense counsel did not object to the admission of the exhibits. Sarrett claims his counsel's failure to object constituted ineffective assistance of counsel.

¶ 34. To prove ineffective assistance of counsel, Sarrett must show: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "We look at the totality of the circumstances to determine whether counsel's [performance was] both deficient and prejudicial." Dartez v. State , 177 So.3d 420, 423 (¶ 19) (Miss. 2015). "[A] presumption exists that an attorney's performance falls within the wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic." Braggs v. State , 121 So.3d 269, 273 (¶ 11) (Miss. Ct. App. 2013). "Only where it is reasonably probable that, but for the attorney's errors, the outcome would have been different, will we find that counsel's performance was deficient." Dartez, 177 So.3d at 423 (¶ 19).

¶ 35. "[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Bell v. State , 202 So.3d 1239, 1242 (¶ 12) (Miss. Ct. App. 2016). This Court may address ineffective-assistance-of-counsel claims on direct appeal only where: "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed." Id.

¶ 36. Whether Sarrett's trial counsel should have objected to the admission of the exhibits involves facts not fully apparent from the record before us. Additionally, the parties have not stipulated that the record is adequate. Thus, we are unable to adequately and properly address Sarrett's ineffective-assistance-of-counsel claim on direct appeal. If he chooses, Sarrett may apply for the Mississippi Supreme Court's leave to assert and argue this claim through a petition for post-conviction collateral relief. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

IV. Sufficiency of the Evidence as to Counts I and II

¶ 37. Sarrett argues "there is considerable doubt [that] the substance [Conville]

tested was [c]athinone or some substance unlisted as a controlled substance." Thus, Sarrett claims there was insufficient evidence to support his convictions on Counts I and II.

¶ 38. In considering whether the evidence is sufficient to sustain a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Williams v. State , 35 So.3d 480, 485 (¶ 16) (Miss. 2010) (citations omitted). Where the facts and inferences "point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is to reverse and render. Id. However, if "reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient. Id.

¶ 39. The record shows Sarrett did not object during Conville's testimony regarding the identification of cathinone. Moreover, Sarrett did not raise the issue in his motion for a directed verdict or his post-trial motion for a JNOV or a new trial. Instead, Sarrett raised the issue for the first time on appeal. "Issues raised for the first time on appeal and not contemporaneously objected to at trial are waived." McCain v. State , 971 So.2d 608, 612 (¶ 7) (Miss. Ct. App. 2007). Notwithstanding the waiver, we find sufficient evidence was presented to support Sarrett's convictions on Counts I and II.

¶ 40. Conville testified that the two capsules she tested "contained ethylone." Conville explained that ethylone is "a substituted drug known as [c]athinone." When asked to describe cathinone, Conville testified as follows:

Cathinone is just a group of drugs based on the same structure [as ecstasy]. And if you've ever seen the chemical structure, it's kind of like a hexagon and you can-each one of those points you can put different chemicals on there and then those become different drugs. This is one of those drugs and there are several compounds that are greatly used and [c]athinone is one of them that they can change to make different drugs.

Conville confirmed that cathinone was a Schedule I controlled substance.

¶ 41. At no time prior to or during trial did Sarrett question or challenge Conville's identification of the two capsules as cathinone. Instead, Sarrett focused on the fourteen tablets of Xanax and whether Conville had in fact tested all fourteen tablets.

¶ 42. Considering the evidence in the light most favorable to the prosecution, we find sufficient evidence was presented to show that the substance in evidence and tested by Conville was cathonine, a Schedule I controlled substance. Thus, this issue is without merit.

V. Post-trial Motion

¶ 43. Sarrett last claims the circuit court erroneously denied his post-trial motion for a JNOV or a new trial as untimely. A motion for a JNOV is subject to the same time limit as a motion for a new trial. Conwill v. State , 168 So.3d 1080, 1084 (¶ 19) (Miss. Ct. App. 2013). A motion for a new trial "must be made within ten days of the entry of judgment." Id. (quoting URCCC 10.05 (replaced by MRCrP 25.1(c))).

¶ 44. Here, Sarrett's judgment of conviction was entered June 14, 2016. Thus, to be timely, Sarrett would have had to file his motion for a JNOV or a new trial within ten days of that date, or June 24, 2016. Id. However, Sarrett did not file his motion until August 4, 2016, over fifty days later. Consequently, Sarrett did not timely file his post-trial motion.

¶ 45. Sarrett further claims "it was error for the [circuit] judge to deny him a hearing on his post-trial motion under the proposition that [it was] untimely filed." However, the record shows a hearing was held on the post-trial motion and, despite its untimeliness, Sarrett was allowed to proffer his argument on the motion. Thus, we find this issue meritless.

CONCLUSION

¶ 46. Upon review, we find Sarrett's claims on appeal are without merit. Accordingly, we affirm the circuit court's judgment.

¶ 47. AFFIRMED.

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

      "Molly" is a street name for ecstasy.

      Exhibit 4 is the video and audio recording of the drug transaction between Young and Sarrett. Exhibit 12 is a slow-motion version of Exhibit 4. Exhibit 13 is a still-image photograph taken from Exhibit 12.

      Sarrett does not claim the State failed to prove that the sale or conspiracy occurred. Instead, Sarrett claims "there was insufficient proof the substance was [c]athinone."

      Since Sarrett failed to timely file his post-trial motion, the time for filing a notice of appeal was not tolled. See id. at (¶ 18) (while a timely motion for a JNOV tolls the running of the time to file a notice of appeal, an untimely motion does not). Nevertheless, Sarrett timely filed his notice of appeal within thirty days of the imposition of sentence, as required by Rules 4(a) and (e) of the Mississippi Rules of Appellate Procedure.


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

text:
    Samuel Andrew JOHNSON and Kathy Johnson, Appellants v. Wythe RHETT, in his Individual Capacity, Appellee
    NO. 2016-CA-01532-COA
    Court of Appeals of Mississippi.
    January 9, 2018 Rehearing Denied May 8, 2018 Certiorari Denied August 9, 2018
    ATTORNEYS FOR APPELLANTS: JEFFREY CARTER SMITH, COURTNEY BRADFORD SMITH
    ATTORNEY FOR APPELLEE: CHARLES CAMERON AUERSWALD
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must decide whether Samuel and Kathy Johnson's claims against Wythe Rhett were time-barred by the statute of limitations and, as a result, whether summary judgment in favor of Rhett was proper. Because we find the statute-of-limitations issue dispositive, we decline to address the Johnsons' other assignments of error. The case on appeal (Rhett II ) is based largely upon facts and procedural history that occurred in previous litigation between the parties (Rhett I ).

FACTS AND PROCEDURAL HISTORY

I. Rhett I

¶ 2. In November 2005, the Johnsons contracted with Rhett Construction LLC, Rhett's company, to serve as the general contractor over certain renovations and new construction to their home. The Johnsons moved into the home in November 2007. After taking possession of the home, the Johnsons were dissatisfied with the work performed by Rhett Construction, alleging it was defective, poor workmanship, damaged, and so on. The Johnsons made an informal complaint in 2008 with the Mississippi State Board of Contractors, and an official complaint was later filed in 2009.

¶ 3. On August 26, 2010, the Johnsons filed suit in the Lowndes County Circuit Court against Rhett, d/b/a Rhett Construction, for breach of contract, and sought damages for the alleged negligent performance of the construction contract. On November 4, 2010, Rhett answered the complaint, denying liability and asserting affirmative defenses and counterclaims. The counterclaims Rhett asserted included one on behalf of the LLC to recover amounts owed to Rhett Construction under the contract and several on behalf of Rhett individually for malicious prosecution, abuse of process, slander, and intentional and negligent infliction of emotional distress. Rhett brought these individual counterclaims based on his belief that he should not have been named as a defendant in his individual capacity and that a complaint should not have been filed with the board of contractors against him individually. On February 11, 2011, in response to Rhett's counterclaims, the Johnsons filed a document titled "Response to Counter-claim, Affirmative Defenses, and Counter-claim to Claim of Wythe Rhett." The document, which was filed without seeking leave to amend, states, "These Original Plaintiffs and Counter-Defendants would file this their Amended-Claim or Amended Complaint against Wythe Rhett d/b/a Rhett Construction, LLC ...."

¶ 4. In February 2011, Rhett filed a motion to dismiss the claims against him in his individual capacity, and the trial court granted his motion on August 14, 2012, finding that Mississippi Code Annotated section 79-29-311 (Rev. 2013) shields members of LLCs from personal liability for claims against the LLC. Also on August 14, 2012, the trial court partially granted the Johnsons' motion for summary judgment, filed in January 2011, thereby dismissing Rhett's intentional-tort claims brought in his individual capacity against the Johnsons. This left the Johnsons' original claims, including breach of contract, and Rhett Construction's counterclaim for unpaid work performed under the construction contract.

¶ 5. On August 30, 2012, following the trial court's dismissal of Rhett in his individual capacity, the Johnsons filed a "First Amended Complaint." This amended complaint again named Rhett as a defendant in his individual capacity and again asserted claims of breach of contract, gross negligence, and added a claim for malicious prosecution. The Johnsons brought the malicious-prosecution claim in response to Rhett's intentional-tort counterclaims against them. The trial court struck the Johnsons' amended complaint on August 30, 2013, for failure to seek leave to amend. This prompted the Johnsons to file a new, separate action against Rhett (Rhett II ), the present action on appeal.

II. Rhett II

¶ 6. On September 12, 2013, the Johnsons filed a new suit in the Lowndes County Circuit Court against Rhett in his individual capacity, asserting claims of malicious prosecution, abuse of process, intentional infliction of emotional distress, and violation of the Mississippi Litigation Accountability Act. The parties agree that the act giving rise to this complaint was the filing of Rhett's counterclaim in Rhett I on November 4, 2010. Rhett moved for summary judgment, arguing that the Johnsons' claims were barred by the one-year statute of limitations for intentional torts. In response, the Johnsons argued that the statute of limitations was tolled by the filing of their counterclaim to Rhett's counterclaim on February 11, 2011. They also argued that the statute of limitations was again tolled by the filing of their first amended complaint on August 30, 2012. In ruling on Rhett's motion for summary judgment, the trial court found the following:

The Plaintiff is correct that ordinarily, when a complaint is filed, it tolls the statute of limitations on a claim. Therefore, by filing their counter[ ]claims on February 11, 2011, the statute of limitations was tolled until those claims were dismissed by Judge Kitchens on August 15, 2012. The real issue for this Court to decide is whether the filing of the Plaintiffs' amended complaint without first seeking leave to amend prevented the limitations period from running prior to that amended complaint being stricken. For the following reasons, the Court finds that it did not.
....
In Rhett I , the Plaintiffs were required to obtain leave from the Court prior to filing their amended complaint, and, since they did not obtain leave, their amended complaint was stricken.... In Curry , the Supreme Court of Mississippi held that a motion to amend with a copy of the amended complaint attached did not operate to toll the appropriate statute of limitations where the statute of limitations ran prior to the court ruling on said motion. Curry v. Turner , 832 So. 2d [508,] 514 [ (¶ 13) ] [ (Miss. 2002)
(overruled on other grounds by Pioneer Cmty. Hosp. of Newton v. Roberts , 214 So.3d 259, 265 (¶ 24) (Miss. 2017)) ]. Frankly, it seems illogical to this Court that a Plaintiff could avoid this effect simply by skipping the necessary step of seeking leave to amend prior to filing their amended complaint. For this reason, the Court finds that the improperly filed and later stricken amended complaint filed by the Plaintiffs in Rhett I did not operate to toll the one (1) year statute of limitations on their claims .... Therefore, these claims were time-barred prior to the filing of this action, and summary judgment is appropriate.

¶ 7. Finding that the Johnsons' claims were time-barred by the statute of limitations, the trial court granted Rhett's motion for summary judgment. From this grant of summary judgment in Rhett II , the Johnsons now appeal.

STANDARD OF REVIEW

¶ 8. The application of the correct statute of limitations is a question of law, which we review de novo. Lyas v. Forrest Gen. Hosp. , 177 So.3d 412, 416 (¶ 18) (Miss. 2015). A statute-of-limitations defense is proper for summary judgment. Robertson v. Moody , 918 So.2d 787, 789 (¶ 12) (Miss. Ct. App. 2005) (citing Smith v. Sanders , 485 So.2d 1051, 1053 (Miss. 1986) ). We also review the grant or denial of summary judgment de novo. Mitchell v. Ridgewood E. Apartments LLC , 205 So.3d 1069, 1073 (¶ 13) (Miss. 2016). In viewing the evidence in the light most favorable to the nonmoving party, summary judgment is proper 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 judgment as a matter of law." Id. (quoting M.R.C.P. 56(c) ).

DISCUSSION

¶ 9. The Johnsons argue that their counterclaims to Rhett's counterclaim and their first amended complaint in Rhett I tolled the statute of limitations for the claims they brought in Rhett II . We address the effect of each filing on the statute of limitations in turn.

I. The Johnsons' Counterclaim in Rhett I

¶ 10. In Rhett I , the Johnsons responded to Rhett's counterclaim by filing answers and submitted to the trial court that this filing constituted "their Amended-Claim or Amended Complaint against Wythe Rhett d/b/a Rhett Construction, LLC." The record shows that the Johnsons' "counterclaim" alleged that Rhett's counterclaim was "spurious [and] frivolous" and "caused vexatious, mental anguish and was filed with the sole purpose of causing willful infliction of emotional distress." The Johnsons argue that this filing asserted claims of individual liability against Rhett for intentional infliction of emotional distress and abuse of process, thus tolling the statute of limitations for those claims.

¶ 11. "The general rule in Mississippi is 'that, unless process is not timely served, the statute of limitations is tolled upon the filing of the complaint, and does not begin to run again until litigation has ended.' " Thornhill v. Ingram , 178 So.3d 721, 724 (¶ 14) (Miss. 2015) (quoting Sweet Valley Missionary Baptist Church v. Alfa Ins. , 124 So.3d 643, 645 (¶ 8) (Miss. 2013) ). The circuit court dismissed Rhett in his individual capacity from Rhett I on August 14, 2012, and dismissed the Johnsons' counterclaims on August 15, 2012. Thus, with respect to the Johnsons' claims of intentional infliction of emotional distress and abuse of process against Rhett, the litigation ended August 15, 2012, and the statute of limitations on these claims began to run again. See Thornhill at (¶ 14).

¶ 12. The statute of limitations for intentional infliction of emotional distress and abuse of process is one year under Mississippi Code Annotated section 15-1-35 (Rev. 2012). Trustmark Nat'l Bank v. Meador , 81 So.3d 1112, 1118 (¶ 16) (Miss. 2012) ; City of Mound Bayou v. Johnson , 562 So.2d 1212, 1218 (Miss. 1990). It is undisputed that the event giving rise to these claims occurred on November 4, 2010, when Rhett asserted his counterclaims in Rhett I . The Johnsons then filed their counterclaims approximately three months later on February 11, 2011. Accordingly, when these claims were dismissed on August 15, 2012, and the statute of limitations began to run again, there were approximately nine months left under the statute of limitations. The Johnsons asserted these two claims again in Rhett II by filing a new complaint on September 12, 2013-nearly thirteen months later. Thus, by this time, the one-year statute of limitations had run, and the Johnsons' claims in Rhett II were time-barred. Because there is no genuine issue of material fact regarding the expiration of the one-year statute of limitations for these claims, summary judgment was proper. This issue is without merit.

II. The Johnsons' Amended Complaint in Rhett I

¶ 13. The Johnsons also argue that their first amended complaint in Rhett I tolled the one-year statute of limitations for the malicious-prosecution claim brought in Rhett II . The amended complaint, filed on August 30, 2012, asserted claims again Rhett Construction and Rhett individually for breach of contract, gross negligence, and malicious prosecution.

¶ 14. Again, it is true that "[o]rdinarily, when a complaint is filed and properly served, that complaint tolls the running of the statute of limitations." Lincoln Elec. Co. v. McLemore , 54 So.3d 833, 839 (¶ 29) (Miss. 2010) (quoting Price v. Clark , 21 So.3d 509, 521 (¶ 27) (Miss. 2009) ). However, amended complaints, as is the case here, are specially governed by Mississippi Rule of Civil Procedure 15(a). " Rule 15(a) instructs a party to seek leave of the court or permission from the opposing party when seeking to amend the pleadings if a responsive pleading has been filed." D.P. Holmes Trucking LLC v. Butler , 94 So.3d 248, 255 (¶ 20) (Miss. 2012). "If a party fails to seek leave of the court or permission of the opposing party prior to amending the pleadings, such amendment is improper and will be struck." Id.

¶ 15. Here, the Johnsons failed to seek leave to amend the complaint as required and, in accordance with Mississippi law, the amendment was improper and thus stricken. Nevertheless, the Johnsons repeatedly argue in their brief that, "[i]n Mississippi, a dismissal of a complaint always tolls the running of a statute of limitations unless it is voluntarily dismissed by the Plaintiff." This is a gross misstatement of our caselaw.

¶ 16. The Johnsons cite Price v. Clark , 21 So.3d 509 (Miss. 2009), and Koestler v. Mississippi Baptist Health Systems Inc. , 45 So.3d 280 (Miss 2010), for their proposition. However, the Mississippi Supreme Court in Price held that a complaint that was properly filed and served-albeit lacking proper presuit notice under the Mississippi Tort Claims Act-still tolled the statute of limitations until the suit's dismissal. Price , 21 So.3d at 522 (¶ 30). The Price court further held that the proper remedy for failure to provide presuit notice was dismissal without prejudice. Id. at 528 (¶ 53). In Koestler , our supreme court held, "The filing of a complaint does not toll the statute of limitations when the plaintiff voluntarily dismisses the suit." Koestler , 45 So.3d at 283 (¶ 13). These holdings certainly do not-as the Johnsons contend-stand for the conclusion that "a dismissal of a complaint always tolls the running of the statute of limitations unless it is voluntarily dismissed by the plaintiff." Moreover, the instant case does not involve a properly filed complaint that was dismissed but, rather, an improperly filed amended complaint that was struck for failure to seek leave to amend as required.

¶ 17. The Johnsons state that they did file a "motion to grant leave to file first amended complaint" on or about December 14, 2011, which was outstanding in Rhett I when summary judgment was granted to Rhett in Rhett II. However, the trial court in Rhett II stated that the amended complaint in Rhett I was dismissed for failure to seek leave to amend. And this alleged filing from Rhett I is not included in the record before this Court. Even so, our law is clear that "the filing of a motion to amend does not toll the statute of limitations until the trial court rules on the motion." Wilner v. White , 929 So.2d 315, 319 (¶ 4) (Miss. 2006) (citation omitted). When a motion to amend has not been ruled on, it is "clear that the amended complaint [is nothing] more than an attachment to the motion ...." Id. at (¶ 5). And where that motion is denied, "the practical effect [is that] no amended complaint [is] filed." Id. It follows that in this case, because the amended complaint was improper and struck by the trial court, the practical effect was that no amended complaint was ever filed. Therefore, the amended complaint had no legal effect. Without legal effect, the amended complaint did not toll the statute of limitations.

¶ 18. It is well settled that the one-year statute of limitations governing intentional torts applies to malicious-prosecution claims. Joiner Ins. Agency v. Principal Cas. Ins. , 684 So.2d 1242, 1244 (Miss. 1996). The cause of action for a malicious-prosecution claim accrues and the statute of limitations begins to run when there is a termination of the proceedings in the plaintiff's favor. Id. Here, the parties agree that the cause of action for the Johnsons' malicious-prosecution claim accrued on August 14, 2012-when Rhett's claims against the Johnsons were dismissed by the trial court in Rhett I . As discussed, the stricken amended complaint in Rhett I did not toll the statute of limitations. Accordingly, the one-year statute of limitations for the malicious-prosecution claim expired on August 14, 2013. Therefore, when the Johnsons asserted the claim in Rhett II on September 12, 2013, the statute of limitations had already run. Thus, summary judgment was proper, as the malicious-prosecution claim was procedurally barred. This issue is also without merit.

III. Mississippi Litigation Accountability Act

¶ 19. The Johnsons also claim that the trial court in Rhett II erred in granting Rhett summary judgment on the Johnsons' claim for Rhett's alleged violation of the Mississippi Litigation Accountability Act in Rhett I . They urge "this Court [to] find there is a separate course of action under the Mississippi Litigation Accountability Act." However, our law is clear, "The Litigation Accountability Act does not create a separate, independent cause of action." Rose v. Tullos , 994 So.2d 734, 740 (¶ 28) (Miss. 2008). This issue is without merit.

¶ 20. AFFIRMED.

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