IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-IA-00946-SCT CLINTON HEALTHCARE, LLC

v. MARY MAC ATKINSON

DATE OF JUDGMENT: 06/20/2017 TRIAL JUDGE: HON. LARITA M. COOPER-STOKES TRIAL COURT ATTORNEYS: W A RREN LOUIS MARTIN, JR. KELLY HOLLINGSW ORTH STRINGER S. MARK W ANN JASON RICHARD BUSH JOSEPH SPENCER YOUNG, JR. COURT FROM W HICH APPEALED: HINDS COUNTY COUNTY COURT ATTORNEYS FOR APPELLANT: KELLY HOLLINGSW ORTH STRINGER S. MARK W ANN ATTORNEY FOR APPELLEE: W A RREN LOUIS MARTIN, JR. NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED - 01/10/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. KING, JUSTICE, FOR THE COURT: ¶1. M a r y M a c A t k i n s o n a l l e g e s that s he slipped on a liquid substance at C l i n t o n Healthcare a nd injured her knee as a result. Af ter the p arties conducted signif icant am ounts of discovery , Atkinson m oved f or a spoliation det e rm ination, requesting a spoliation jury instruction regarding a m issing video, and m oved f o r partial s u mm ary judgm ent as toliability ; and Clinton Healthcare m oved f or s um m a ry judgm ent. T he trial court granted the

m otion f or spoliation, granted Atkinson’s m otion f o r partial sum m ary judgm e nt, and denied Clinton Healthcare’s m otion f or sum m ary judgm ent. Because genuine issues of m aterial f act exist, the t rial c ourt erred b y granting Atkinson’s m otion f or partial sum m ary j udgm ent, and correctly d enied Clinton H ealthcare’s m otion f or sum m a ry judgm ent. Additionally , the trial
court’s order regarding spoliation a n d t he entitlem ent to a spoliation jury instruction was
prem ature. T heref

ore, this Court af

f irm s the trial c ourt’s judgm ent in part, reverses it in part, vacates the spoliation order, and rem ands the case f or f urther proceedings.
FACTS AND PROCEDURAL HISTORY ¶2. Atkinson was visiting her m other in the nursing hom e f acility a t Clinton Healthcare

on Decem

ber 24, 2015. At about 10:55 a .m ., A t k i n s o n f ell in the hallway o f Clinton Healthcare. Clinton Heal t h c a r e c o n t r a c t e d w i th Felder Services (Felder) f or its h ousekeeping and janitorial services. 1 Several em ploy ees of both C linton Healthcare and Felder were in the vicinity

of Atkinson’s f

all and responded. ¶3. Atkinson testif

ied in h er deposition that som e dam pness was u nderneath her af ter she
f ell, but that she was n ot sure what the s ubstance was. S he did no t k n ow how long the substance had been on the f loor or how it got there. Betty Thom as, a housekeeper working

at Clinton Healthcare through Felder, testif ied in her deposition that she s a w Atkinson f all. She stated that she put a sheet under Atkinson and noticed a clear liquid that she assum ed

was water on the f

loor. The sheet she placed u nder Atkinson got dam p. Thom as saw water

1 F eld er settled w i th A tk in so n an d h as b een d i sm issed f r o m t h i s case. 2near the door of the shower room , and had seen patients g o i n and out o f the shower room

to be showered prior to the f all. One resident had com e out o f the s hower room about f if teen

m inutes bef

ore t he f a ll. She s tated that Atkinson f ell “in f r ont of ” the shower room d o or. Lisa Fears, t he director o f nursing em ploy ed by C l i n ton Healthcare, was paged to com e to the scene of Atkinson’s f all. Fears testif

i ed t h a t w h e n she arrived shortly af ter the f all the sheet u nderneath Atkinson was damp and that Atkinson had wetness on the bottom of her shoe. She was unable to identif y the substance. S he testif i ed that A tkinson wa s located “[ r]ight near” the shower room door. B arbara McGee, an activity assistant e m ploy ed by Clinton Healthcare, witnessed Atkinson’s f all. She testif

ied i n her deposition that she did not

see any liquid on the f

loor. She placed the sh e e t u n d er Atkinson and did n ot o bserve any dam pness on the sheet. She f

u r ther testif ied that earlier that m orning, she had showered m ore than one wheelchair-bound p a t i e n t i n the shower r oom in the hall where the f all occurred. McGee agreed that it was possible that residual w ater was p resent o n the wheelchairs af ter the showers, a nd t hat s he could n ot def in i tively state that no water was on the f loor f rom those wheelchairs. S he noted that they only used towels t o d ry t he residents and that no other dry i ng m echanism f

or the residents, their w heelchairs, or the f loors e x i s ted. McGee also testif i ed that she had walked down the sam e h all f if t een m i nutes bef

ore the f all and had not

seen a ny l iqu i d o n the f

loor, although she was not looking f or l iquid on the f

loor. Gloria Terrell, a supervisor em

ploy ed by Felder, was the F elder supervisor on duty on Decem ber 24, 2015. Terrell arrived a t the site of the f all approxim ately one hour af ter t he f al l , a f t e r Atkinson had departed. At that tim e, T errell di d n o t o b serve any water on the f loor.

3Shedrick Jordan, then a n em ploy ee of Felder working at Clinton Healthcare as a f loor tech,

saw Atkinson f

a ll out o f the “ c o r n e r o f h i s ey e.” He did n ot approach her a f t er the f all, b e cause s everal others were a ttending her. He testif i ed that nothing wet was on the f l o o r . He stated that the shower r oom door was approxim ately ten f eet f rom where A tkinson f

ell.
He a l so testif

i ed that a “ wet f

loor” sign was out, despite testif y ing that the f

loor was not wet. ¶4. Fears testif

ied that she reviewed video of the N orth Hall where the f all occurred, but that the f all w as not visible on any video. Terrell also testif ied that she v iewed a video with

t h e adm inistrator a nd that the video did not show Atkinson’s f all. D annie Barlow, th e Adm inistrator at Clinton H ealthcare, t estif ied that h e was out of town the day Atkinson’s f all

occurre d

. H e w a s unsure of t he date he returned t o work, b ut believed it to be J anuary 1, 2016, or af

ter. Barlow viewed the North Hall video, queuing it f rom the tim e Fears inf

orm ed
him t he f all occurred. Barlow testif ied that the video d id not show the area of the f all, but it did s how McGee walking toward that area to p rovide Atkinson aid. Clinton Healthcare’s video surveillance autom atically erased once storage w a s f ull, af ter approxim ately ten day s. 2
Clinton H ealthcare received t h e s u mmons in this case on January 21, 2016. During discovery , Atkinson r equested video “which shows any part of the evidence leading up to, during, or af

ter the a ccident at issue,” as well as video showing t he f loors bef o re, during, or af ter A tkinson’s f

a ll. Clinton Healthcare did not p reserve the video af ter v iewing it several tim es, and m aintained that the video was autom atically erased prior to b eing served with the

com plaint. A dditionally , on the day of the f all, Atkinson requested a s tatem ent regarding the

2 C lin to n H ealth care e m

p lo y ees in d icated t h a t th ey d id n o t d o w n lo a d th e v id eo in o rd er to v iew it, th e y

v iew ed it w h ile it w as still o n th e serv er w ith o u t sav in g it.

4f

all f rom Fears. Fears denied her request. ¶5. Atkinson f

i led a m otion f

or spoliation o f e vidence and a request f o r t h e s p o liation
inf erence regarding the video. She also f iled a m otion f

or partial sum m ary

judgm ent as to liability

. Clinton Heal t h c a r e a l so f iled a m otion f

o r s um m ary judgm ent. The trial court granted Atkinson’s m otion f or s p o l i a t i on and f

ound that “the appropriate inf erence instruction s hall be s ubm itted at the trial,” denied Clinton Healthcare’s m otion f o r sum m ary judgm ent, and granted A t k i n s o n ’ s m otion f or partial sum m ary judgm ent as to l iability

. A panel of t his Court granted Clinton Healthcare perm ission to b ring t his interlocutory appeal.
See Miss. R. App. P. 5; Unif . Cir. & Cty . Ct. R. 4.05.

ANALYSIS 1. Prelim inary Issues ¶6. Atkinson argues that t his appeal violates Mississippi Code Section 11-51-79, which provid e s t h a t i n terlocutory appeals m ay not b e taken f rom county court decisions and that certain appeals f

rom county court m

ust be m ade to the circuit court. This Court has f ound that its Court rules regarding appeals f rom county court t ake precedence over Section 11-51-
79. Brown v

. C o l l e c t i o ns, I nc. , 188 So. 3d 1 171, 1177-78 (Miss. 2016); Jackson HMA,
LLC v. Harris , 242 So. 3d 1, 4-5 (Miss. 2018). This issue is without m erit. ¶7. In its reply brief

, Clinton Healthcare takes is s u e w i t h t h e f a c t t h a t A t k inson’s appellee’s brief was d

ue on Thursday April 26, 2018, but was not f iled until Monday April 30, 2018. Clinton Healthcare states that, because t he brief w a s u n t i mely , it should not be considered by t his Court. First, Clinton Healthcare d oes not cite any authorit y f or the

5proposition that this C ourt should not consider Atkinson’s b rief b ecause it i s untim ely , thus

this Court need not consider the argum ent. Se e M i s s . R. App. P. 28(a)(6). Moreover, the rules provide that a late appellee’s brief “ may be stri c k e n f r o m t h e record on m otion of appellant or on m otion of the appropriate appellate court.” Miss. R. App. P. 3 1(d) (em phases added). Clinton Healthcare did n ot f ile a m otion to strike Atkinson’s brief

. N o r d o e s i t allege that the f

our-day -late f

iling caused it any injustice or prejudice. This issue is without

m erit.
2. Motions for Sum m ary Judgm ent ¶8. This Court r eviews grants and denials of m otions f or sum m ary judgm ent d e n o vo. Hardy ex rel. Hardy v. K Mart Corp. , 669 So. 2d 34, 37 (Miss. 1996). The Court v iews the evidence in the light m o st f avorable to the nonm oving party

. Id. Sum m a ry judgm ent should only be granted whe n n o g e n u i n e issue exists as to any m aterial f act s uch that the m oving
p a r t y i s e ntitled to a judgm ent as a m atter of law. Miss. R

. Civ. P. 56(c). “Issues of f a c t suf f i cient to require a denial of a m otion f or sum m ary judgm ent are obviously present where

one party swears to one v ersion of the m atter in issue and another s ay s the opposite.” Miller
v. Meeks , 762 So. 2d 302, 304 (Miss. 2000). An issue of f act m a y a l so exist where there i s m ore than one reasonable interpretation of undisputed testim ony , where m aterially dif f erent but reasonable inf

erences m ay be d

rawn f rom uncontradicted evidentiary f acts, or when the purported establishm ent of the f a cts has been s uf

f iciently incom

plete or inadequate that the trial j u d ge cannot say with reasonable conf idence that the f

u l l f a cts of the m atter have been disclosed.
Id. at 304-05. ¶9. In a negligence action, the plaintif f m ust show duty , breach, causation, and dam a ges.

6Hardy , 669 S o. 2 d at 37-38. A business owner owes a duty to a n invitee 3 to keep its prem ises

in a r easona bly saf

e condition and to warn the invitee of dangerous conditions that are not readily apparent. Drennan v. Kroger Co. , 672 So. 2d 1168, 1170 (Miss. 1996). However, “[ n]o proof of the operator’s knowledge of the c o ndition i s necessary where the condition is created by his negligence or the negligence of som eone u n d e r h i s a uthority .” Id. Otherwise, the plaintif

f m ust prove actual or constructive knowledge. Id. ¶10. Atkinson relies on the theory that Clinton H ealthcare n e g l i g e n t ly c reated the condition by showering residents in wheelchairs and leaving standing w ater outside the shower room door, thus she need not show k nowledge of the condition. She does n ot m ake any a rgum ent

o f consequence that Clinton Healthcare had actual or c o nstructive knowledge of th e substance’s presence. Clinton Heal t h c a r e argues that Atkinson d id not m e et her burden, claim ing that “no evidence” exists regarding w hat the substance was or h o w i t c a me t o be present on the f

l oor. It c oncedes f

or p urposes of sum m ary judgm ent only that a s ubstance was on the f

loor. ¶11. In exam ining C linton Healthcare’s m otion f o r s um m a ry judgm ent, a l l evidence m ust be viewed in the light m ost f avorable to Atkinson. Atkinson need not def i nitively prove what the substance on t he f

loor was, as Clinton Healthcare argues. Such a h olding would lead to absurd results, practically requiring a potential plaintif f to take a sam

pling of the s ubstance and have it analy

zed. Moreover, testim ony exists that the substance was clear, and that it was likely water. Clinton Healthcare also alleges that A tkinson provides no evidence regarding

3 F o r p u rp o ses o f A tk in so n ’s m o tio n f o r su m m ary j u d g m e n t , C lin to n H eal t h c a r e co n ced ed th at A tk in so n w as an in v itee. 7how the substance got on the f l oor. However, t estim o ny existed t hat at least one resident was showered shortly bef

ore the f all, that the f

all occurred i n f

ront of or very n ear to the shower

room door, a nd t hat water m ay drip f rom wheelchairs a f

t er the showers. In Mum

ford, Inc.

v. Flem ing , Flem ing slip p e d o n a p uddle of water that had leaked f r om a bottle of water. Mum ford, Inc. v. Flem ing , 597 So. 2d 1282, 1283 (Miss. 1992). An e m ploy ee testif

ied that she custom arily

adjusted the bottles on the shelves, and that several custom ers had been in the store between the last tim e she checked the aisle and the tim e of the a c cident. Id. She denied ever having h a ndled the bottles in a way that would open them

. Id. a t 1 285. The trial

court d enied Mum f

o rd’s m otion f

or a judgm ent notwithstanding t he verdict, which claim ed

t hat the evidence was insuf f icient to show t hat M um f ord breached a duty to F lem ing. Id . at 1283. This Court reversed t he denial as to Mum f o rd’s actual or constructive knowledge, but upheld it on the issue of whether the puddle was created by Mum f ord’s negligent acts. Id. at 1284-85

. T h e C o u r t noted that, based o n the em ploy ee’s testim ony , “the jury could have f ound one of the custom ers caused the bottle to leak, [ but] i t w as a lso possible that the jury –having heard F ord-Cuevas’s testim ony a n d v i ewed her c redibility –f ound she either
f ailed to see the puddle or she a djusted the water bottles and accidentally caused one of t hem

to leak.” Id. at 1285. It noted t hat the f actual question o f c a

usation “was subject to dif f erent determ inations.” Id. Thus, i t d eterm ined that the issue o f causation was p r o perly a jury question. Id. Si mi l a r l y , in Mississippi Winn-Dixie Superm arkets v. Hughes , Hughes slipped o n pasta in t he aisle. Miss. Winn-Dixie Superm arkets v. Hughes , 156 So. 2d 734,
735 (Miss. 1963). The e vidence a t t r ial showed that the p asta p ackage looked as if it had

8been cut or gouged and that the store’s e m ploy e es unpacked boxes of m erchandise using case
cutters. I d. at 737. It also showed that, shortly bef ore the f a ll, s everal children had run out of the store wi t h l o o s e p a s ta in their hands. Id. T he Court f ound that, considering this evidence and the reasonable inf erences that f

low f rom it, the trial court properly subm itted the issue of liability t o the jury because the child r e n c a u s i ng the s pill and the e m ploy ees causing the spill were both reasonable interpretations of t he evidence. I d. ¶12. Atkinson need not definitively prove the exact identity of the substance or how it cam e
to be on the f

loor. 4 Negligence “m ay b e f ound f ro m c i r c u ms t a ntial evidence of adequate probative value.” Id. at 736. “[ T ]he plaintif f m ay p rove circum stances f r om which the jury

m ight conclude reasonably that the condition o f the f loor was one which was t raceable to the proprietor’s own act or om i ssion, i n which no proof o f notice is necessary [ .]” Id. Juries m ay reasonably

inf er the existence of

one f act f r om the existence of

another f act or set of

f acts. Id. “Verdicts m ay

rest upon reasonable probabilities.” Id. W h en viewing the evidence in the l ight m ost f

avorable to Atkinson, A t k i n s on p roduced evidence t hat residents in wheelchairs were showered s h ortly bef ore her f all, that standing water was i n f ront of the shower r oo m d oor, that she slipped in f ront of t he shower room d oor, and that n o dry ing

m echanism other t han towels was used f or dry ing residents a f

t er s h owers. For the purposes of sum m ary judgm ent and viewing the evidence a nd its inf erences in the light m ost f

avorable

to Atkinson, Atkinson p roduced suf f icient evidence such that a jury c ould inf er that Clinton Healthcare c reated the s ituation by f ailing to properly dry residents a nd/or their wheelchairs

4 A tk in so n ’ s n o t n eed in g to p ro d u ce ab s o lu te d e f i n i tiv e p ro o f d o es n o t reliev e h er o f th e b u r d en o f

p ro o f at trial. 9af

ter showering them

. Atkinson “should be given the benef it o f every r e a s o n a b l e d

oubt .”
Renner v. Retzer Resources, Inc. , 236 So. 3d 810, 815 ( Miss. 2017). W hen d oubt is present about w hether any genuine issues o f m aterial f act exist, the trial court should deny the m otion
f or sum m ary j udgm ent and perm i t a f ull trial. I

d . T h a t i s exactly what the t rial court did here. T heref

ore, the trial court did n o t e r r b y deny ing C linton Healthcare’s m otion f or

sum m ary judgm ent. ¶13. W h en reviewing the trial court’s grant of sum m ary judgm ent on liability in f avor of Atkinson, this Court reviews the evidence in the light m ost f avorable to Clinton H ealthcare.
W h ile several witnesses testif i ed that a substance was o n the f loor where Atkinson f

ell, two witnesses testif

i ed t h a t n o substance was on the f loor where Atkinson f

ell. “ Issues of f

act suf f i cient to require a denial of a m otion f or s u m m ary j udgm e n t are obviously present where

one p arty swears to o ne version of the m atter in issue and another say s t he opposite.” Miller , 762 So. 2d at 3 04. More than one witness swore that no substan c e , t he presence of which is t he heart of the lawsu i t , w a s even present. This is clearly a case in which i ssues of f act suf f i cient to require a denial of sum m ary judgm ent are present because som e witnesses swore
t o o ne v ersion of the m atter in issue, and others swore to the opposite version. T h e r e f o r e , the trial court erred by granting Atkinson’s m otion f or p artial summa r y judgm ent a s to liability

. 3. Spoliation ¶14. Clinton Hea l t h c a r e a r g u e s that the trial c ourt’s order f i nding that spoliation had occurred and o rdering that an “appropriate” spoliation inf e rence instruction be given at trial

1 0was im

proper because i t d i d not destroy evidence n egligently or f raudulently

. It also argues that this Court m ay

provide guidance in the event this issue is prem ature. ¶15. “Jury instructions are t o be gran t e d only where evidence has been presented which supports the instruction.” DeLaughter v. Lawrence C ty. Hosp. , 601 So. 2d 818, 824 (Miss. 1992). The jury m

u st hear the evidence at trial f or t he jury ins t r u c t ion to be proper. “Theref ore, evidence o r argum en t f rom a p retrial h earing is n ot a basis f or a spoliation instruction.” Teal v. J

o nes , 222 So. 3d 1052, 1059 (Miss. Ct. App. 2 0 1 7 )

. Evidence regarding the circum s tances surrounding the m issing evidence m ust be presented at trial so the j ury m ay determ ine the signif i cance. Id. This Court has also held that “the explanation
f or the original re c o r d’s absence m ay be f ully satisf y ing either that it w as lost through no f ault o f the [ party ], t hat the [ party ] deliberately d estroy ed it, o r as in m ost cases, som ewhere
in b etween, thereby m aking i t a jury is s u e . ” D e L a u ghter , 601 So. 2d at 821 (em phasis added). W hen the evidenc e f a l ls within the “in between” range, “the i nstruction should require the jury to f

irst d eterm ine whether reasonable explanation f or the loss of the m issing original [ e v i d e n c e ] h a s b een presented

. . . .” Id. at 822. If the jury determ ines that no reasonable explanation f

or the loss has been pr esented, it m ay then i nf er that the evidence would have been unf

avorable to the party

responsible f

or the loss. Id. ¶16. Mandating that a spoliation instruction be given at trial bef ore a trial even happens,

as occurred in this case, was i nappropriate, as the trial c o urt does not know w hat evidence regarding spoliation will be presented to the jury , and thus cannot know w h ether t he evidence

at trial will support t h e instruction. If the evidence at trial “reveals t hat the video was lost

1 1intentionally o r n e g l i g e ntly ,” Atkinson would a t that p oint be entitled to a spoliation jury

instruction. See Renner , 236 S o. 3d at 816. If the evidence is, as in DeLaughter , not clear either way , then that issue would be a jury issue.
CONCLUSION ¶17. Thi s C o urt af

f i rm s the trial court’s denial o f Clinton H e a lthcare’s m otion f or sum m ary j u d g ment and reverses the trial c ourt’s g rant o f Atkinson’s m otion f or partial sum m ary judgm ent on liability

. T his C ourt vacates the t r i a l c o u r t’s order regarding spoliation as
prem ature, as the trial court cannot grant a jury instruction without knowing what evidence is bef ore a jury

. W e rem and this case f or f urther proceed i n g s not i nconsistent with this opinion. ¶18. AFF I R M E D I N P A R T , REVERSED IN PART, VACATED IN PART, AND REMANDED. WALLER, C.J., KITCHENS, P.J., MAX WELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. COLEMA N , J ., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.

COLEMAN, JUSTICE, DISSENTING: ¶19. As was the case in J ackson HMA, LLC v. Harris , 242 So. 3d 1, 7-8 (¶¶ 14-19) (Miss. 2018) (Colem an, J., d issenting), I m ust, with r espect, dissent. The Mississippi Suprem e Court does not have jurisdiction to hear the i nstant appeal. The Mississ i p p i L e gislature, which we have previously acknowledged has plenary power over Suprem e Court jurisdiction and to which our S tate’s Constitution grants explicit authority to set circuit court appellate jurisdiction, chose t o prohibit i nterlocutory appea l s f r o m county c ourts and to direct that

1 2appeals of m atters such as the one sub judice be taken in circuit court when they are taken.

Today , the m ajority runs roughshod over both d i r e c t i v e s , a s the instant appeal is both an interlocutory

appeal f rom county court and m ade directly to the Suprem e Court.
I. The Legislature’s Pow e r to Set Appellate Jurisdiction ¶20. As ratif

ied in 1890, Article 6, Section 146 of the Mississippi C onstitution read, “The Suprem e C ourt shall have such jurisdiction as p roperly belongs to a c ourt o f appeals.” In 1984, however, the people of Mississippi a m ended our constitution to read, “The Suprem e Court shall have such jurisdiction as properly belongs t o a court of appeals a nd shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law.” Miss. Const. art 6, § 146 (em phasis added ). Jurisdiction is n othing m ore or less than the power of a given c ourt to decide a m atter. City o f Jackson v. Allen , 242 So. 3d 8, 21 (¶ 49) (Miss. 2018) (citing Jurisdiction , Black’s Law Dictionary (10th ed. 2014)); see also In r e Steen , 160 Miss. 8 74, 134 So. 67, 7 2 (1931) (“‘Appellate jurisdiction’ is def ined

to be the power and authority conf erred upon the Suprem e Court to h ear and determ ine

causes which have been tried in inf erior courts.”) (citation om itted). There can b e no other interpretation o f p ost-am endm ent Article 6, S ection 146, t han the f ollowing: In order f

or the Mis s i s s i p p i S u p rem e Court to have the power and authority to hear an appeal, t hat power

m ust be granted either b y the language of the C onstitution itself or in t he general laws of the
State as expressed in t he statutes passed b y its Legislature. T he Court acknowledged as m uch
in Dialysis Solutions, LLC v. Mississippi State Departm ent of Health , 96 S o. 3d 713 (Miss. 2012), where w e h e l d

– a nd not f

or the f irst tim e – that the Legislature exercises “plenary

1 3power” over appellate court jurisdiction. Id. at 716-717 (¶ 8).

¶21. In addition, the Co n s t i t u t i o n w i t h o u t a mb i g u i t y o r equivocation grants to the Legislature the authority to establish appellate jurisdiction i n the circuit courts of the State. Article 6 , Section 156, of t he Mississippi Constitution of 1 890 provides, “The circuit court shall have original j urisdiction in all m atters c ivil and crim inal in this state not vested by this Constitution in som e other court, and such appellate jurisdiction as shall be prescribed by law .” (Em

phasis added.)
II. The Statute Passed by the Legislature Pursuant to Its Constitutional Authority to Set Appellate Jurisdiction that Governs Appeals from County Courts ¶22. I n M i s s i ssippi Code Section 11-51-79, t h e M i s s i s s i p p i L e g i s l a t

u r e p r e s c r i b e d

a p p e l l a t e jurisdiction in Mississippi’s circuit court s over appeals f rom county courts. Am ong other things, Section 1 1-51-79 prohibits interlocutory appeals f r om county court and requires that appeals f rom the “law side” of

county courts be presented to the circuit court. O n its f ace, Section 11-51

- 7 9 c o nstitutes a clear exam ple of the Legislature exercising power derived
f rom the constitutional p rovisions described above. T oday , and as it has in t h e p a s t , t he
Court disregards the provisions of the Constitution i tself when it takes jurisdiction over the controversy

bef ore it in violation of

Section 11-51-79. ¶ 23. Brown v. Collections, Inc. , 188 So. 3d 1171 (Miss. 2016), c i ted by the m ajority

f or its holding that Section 11-51-79 m ust give way to various ru l e s of c ourt procedure with which it conf

licts, contains no discussion of the above-described constitu t i o n a l grant of authority to the Legislature to set appellate jurisdiction in b o t h t h e c i r cuit courts and the Mississippi Suprem e Court. A lthough Brown was a near-unanim ous decision in w h i ch I

1 4concurred, 5 I would now overrule it.

¶24. P u r s u a n t t o t h e s e p a r ation of the powers e x ercised by the t h r e e b r a n c h e s o f Mississippi’s governm ent, and as he l d i n N ewell v. State , 308 So. 2d 71 (Miss. 1975), the

courts h a v e s o l e authority to s et rules of court procedure. However, the power to set appellate jurisdiction in the circuit court and, p ur s u a n t t o Article 6, Section 1 46, quoted above, in the Suprem e Court rests w i t h t h e Legislature and specif ic provisions of the Constitution. No specif

ic provision i n the law or the Constitution grants jurisdiction to the Suprem e Court over appeals f r om county courts. ¶25. T h e B r o w n h o lding, as applied today , gives the courts the power to set t h e i r o w n jurisdiction over appeals with rules o f procedure, w hich runs directly c ontrary t o the applicable constitutional p rovisions that g i v e t h at exact authority

. Moreover, it is worth noting that the Brown C ourt did not include any d iscussion of t h e a b o v e-quoted constitutional provisions that explicitly g rant the Legislature the p ower over appellate jurisdiction. Indeed, a review of the brief s of the parties in Brown shows that neither party cited them to the Court. W e should now consider the im pact of the e xplicit l anguage of our constitution on the Brown Court’s holding that the rules of procedure act to overrule a statute passed under an express grant of constitutional authority

. ¶26. “[ A]ppellate jurisdiction is solely a creature of statute and exi s t s i n n o case unless conf erred by st atute, and then only in the m anner and to the extent so conf erred.

. . .”
Drum m ond v. State , 184 Miss. 738, 185 So. 207, 208 (1938). The Drum m ond Court went

5 Ju stice L am ar co n cu rred in p art an d in resu lt w ith o u t a sep arate w ritten o p in io n . 1 5on to hold as f ollows:
It f ollows, theref

ore, inescapably , that since the legislature has plenary p ower over this s u

bject of appeals, it could p rescribe that a n a ppeal f rom this inf

erior court in this class of

cases, or in any

other particular class of

cases, m i ght be direct to t he Suprem e Court. If the power of the legislature in this regard is to be restricted or lim ited, then som e section of the Constitution m ust b e pointed to which so lim it s o r r estricts the power. As already m entioned, n o such section of the Constitution can be f ound. It is, theref

ore, a m atter solely f

or the legislature to de c i d e , a n d the legislature h aving so decided, the Court is without power to avoid this said legislation.
Id. at 209. The Court h a s taken f or itself the power to hear interlocutory appeals f rom Mississippi’s c o u n t y c o u r ts. It i s nowhere granted t o us by the Constitution of 1890 or general law. I would dism iss the instant appeal f or lack of jurisdiction. RANDOLPH, P.J., JOINS THIS OPINION.

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