IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-IA-01849-SCT

TROY MARTIN, ANNIE MAE SOUTHWARD AND

AZZIE LEE MARTIN

v.

CLARENCE LOWERY

DATE OF JUDGMENT: 08/20/2004

TRIAL JUDGE: HON. TALMADGE D. LITTLEJOHN

COURT FROM WHICH APPEALED: TISHOMINGO COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: MICHAEL DALE COOKE

ATTORNEY FOR APPELLEE: JAMES TRAVIS BELUE

NATURE OF THE CASE: CIVIL - UNCONSTITUTIONAL STATUTE

DISPOSITION: REVERSED AND REMANDED - 10/13/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1. Clarence Lowery filed a complain t alleging that an implied easement by necessity

existed across a plot of land owned by Troy Martin, Az z ie Lee Martin and Annie Mae

Southward. The Chancery Court of Tishomingo County denied Martin’s motion to dismiss

Az zie Lee Martin and Southward and retained jurisdiction contrary to Martin’s motion to

dismiss for lack of subject matter jurisdiction pursuant to Miss. Code Ann. § 65-7-201 (Supp.

2004).

¶2. We decline to rule on the constitutionality of the statute because t he parties never

raised th e issue, rather, it was raised solely by the chancellor. Furthermore, the Attorney2

General was not noti

fied as required. We find that the chancellor erred in failing to dismiss

Azzie Lee Martin and Annie Mae Southward pursuant to M.R.C.P. 4(h) a nd 4(e) for failure to

serve process as required. We need not address the remaining issue.

FACTS AND PROCEDURAL HISTORY

¶3. Lowery purchased a twenty-acre plot of l and from Troy Martin, Azzie Lee Martin and

Annie Mae Southward on December 8, 1992. The Martin estate had been divided up in 1978,

thereby creating several twenty acre blocks of real property origina lly comprised of one larger

tract of land. One of the twenty-acre plots retained by Martin and Southward had a small road

p roviding access while the plot Lowery purchased was landlocked. Lowery filed a complaint

for an implied easemen

t in the Chancery Court of Tishomingo County, Mississippi, on January

7, 2004. Service of process was effected on Troy Martin shortly after filing the complaint but

neither Azzie Lee Martin nor Annie Mae Southwa rd were served. Lowery claims that Tony

Martin asked Lowery not to serve Azzie Lee Martin or Annie Mae Southward because doing

so would damage settlement negotiations which all were involved at the time. Lowery asserts

that all parties , including the county board of supervisors and neighbors were in the midst of

tenuous settlement negotiations which would be damaged if the remaining two defe ndants were

formally served. In exchange for not serving the two defendants, Lowery alleges that he

permitted Troy Martin to not file his answer to the complain t in hopes that the negotiations

would be successful thereby not requiring litigation.

¶4. Azzie Lee Martin and Annie Mae Southward fil ed a motion to dismiss, which was joined

by Troy Martin, alleging that Lowery failed to serve them with process within 120 days as

required by M.R.C.P. 4(h). Moreover, they further allege that Lowery never sought an3

extension of time for service of process pursuant to 4(h). The motion also alleges that

pursuant to Miss. Code Ann. § 65-7-201 subject matter jurisdiction i s improper in chancery

court requiring Ti

shomingo County Court to retain jurisdiction in all claims utilizing the

special court of eminent domain.

¶5. The chancery court heard oral arguments on August 20, 2004, wherein the chancellor

found that Lowery had shown good cause for not serving A zzie Lee Martin or Ms. Southward

thereby refusing to dismiss the two defendants. The chancellor, acting sua sponte and without

citing any finding of facts, ruled Mis s. Code Ann. § 65-7-201 unconstitutional stating the

statute was “totally impractical and not workabl e and it cannot be carried out under due process

of law.”

¶6. Defend ants then filed a motion for interlocutory appeal on the chancery court’s denial

of their request to transfer the matter to circuit court. They claim a substantial differing of

opinion exists which may materially advance the ter mination of the litigation allowing them

to avoid exceptional litigation expenses, prevent irreparable injury, and res olve an issue of

great importance

in the administration of justice. The chancellor denied certification that a

substantial basis for a difference of opinion ex i sted. Troy Martin, Azzie Lee Martin and Annie

Mae Southward now cite three issues for consideration in this interlocutory appeal.

DISCUSSION

¶7. Generally, we apply the “manifest err or/substantial evidence rule” in reviewing a

chancellor's findings of fact. M iss. State Tax Comm'n v. Oscar E. A ustin Trust, 719 So.2d

1172, 117 3 (Miss. 1998). The reviewing court is prohibited from disturbing the chancellor's

findings of fact unless they are “manifestly wrong or clearl y erroneous.” Bowers Window &4

Door Co. v. Dearman, 549 So. 2d 1309, 1312-13 (Miss. 1989). Thus, the chancellor's findings

of fact are accorded great deference and will not be disturbed if they are s u pported by

substantial evidence. Bro oks v. Brooks , 652 So.2d 1113, 1124 (Miss. 1995). In contrast,

questions of law are reviewed de novo, and the reviewing court will reverse if the law has been

applied or interpreted erron eously. Miss. Transp. Comm'n v. Fires

, 693 So.2d 917, 920

(Miss. 1997).

I

¶8. We decline to address the issue of the const itutionality of the statute because it was not

raised by the parties, rather, it was raised solely by the chancellor. We write briefly only to

assert our reaso ning for refusing to consider this issue. This Court has previously held the

1942 Code predecessor to Miss. Code Ann. § 65-7-201 constitutional. Q uinn v. H o lly

, 244

Miss. 808, 811, 146 So. 2d 357 (1962). This Court has also held that a statute’s

constitutionality will not be considered unless it has been specifically pleaded. L awrence

County Sch. Dist. v. Bowden

, 2005 WL 613630 (Miss. 2005); City of Jackson v. Lakeland

Lounge of Jackson, Inc., 688 So.2d 742, 749 (Miss. 1996) (citing State ex rel. Carr v.

Cabana Terrace, Inc., 247 Miss. 26, 153 So.2d 257, 260 (1963); s ee also Colburn v. State,

431 So.2d 1111, 1114 (Miss. 1983); W itt v. Mitchell

, 437 So.2d 63, 66 (Miss. 1983). A

specifically pleaded issue is one that has been raised in a proper motion before the co urt.

Colburn, 431 So.2d at 1114. We have also held that a trial court may not raise the

constitutional issue sua sponte. I n re Estate of Miller v . Miller , 409 So.2d 715, 718 (Miss.

1982). Failure to raise the issue acts as a waiver and precludes the defendant or plaintiff from5

seeking reversal on

constitutional grounds on appeal. C olburn, 431 So.2d at 1114. The Court

in Lakeland Lounge stated “[t]he issues are framed, formed and bounded by the pleadings of

the litiga nts. The Court is limited to the issues r aised in the pleadings and proof contained

in the record.” Lakeland Lounge

, 688 So.2d at 750 (emphasis added ). The Court has relied

heavily upon Chief Justice Griffith’s Mississippi Chancery Practice guide which states:

The power of the c ourt, then, will be exerted only upon, and w ill not move

beyond, the scope of the cause as presented by the pleadings , for the

pleadings are the mean

s that the law has provided by which the parties may state

to the court what it is they ask of the court and the facts upon which they ask it;

and proof is received and is considered only as to those matters of fact that are

put in is sue by the pleadings, and never beyond or outside of them. If the rule

were otherwise courts could become the orig inators instead of the settlers of

litigious disputes, and parties would never know definitely wha t they will be

required to meet or how to meet it.

V.A. Griffith, Mississippi Chancery Practice § 564, at 587 (2d ed. 1950) ( emphasis added).

¶9. Furthermore, when a statute’s constitutionality is challenged, the Attorney General

must be notified and provided an opportunity to respond. I n re D.O.

, 798 So.2 d 417, 423

(Miss. 2 001) (citing Miss. R. Civ. P. 24(d)). The Mississippi Rules of Appellate Procedure

require that the Supreme Court n ot decide a constitutional issue until proper notice has been

given to the appropriate governmental body. P icken s v. Donaldson , 748 So.2d 684, 691

(Miss.1999) (citing M.R.A.P. 4 4 (c)). This Court has procedurally barred challenges to the

constitutionality of a st atute where a party failed to notify the Attorney General. Cockrell v.

Pearl River Valley Water Supply Dist.

, 865 So. 2d 357, 360 (Miss. 2004), citing B arnes v.

Singing River Hosp. Sys. , 733 So. 2d 199, 202-03 (Miss. 1999).6

¶10. The case at bar howeve r has a slightly different twist to it as the parties did not raise the

issue of the constitutionality of Miss. Code Ann. § 65-7-201 in their pleadings. In the

case at hand, neither party raised the constitutionality of Miss. Code Ann. § 65-7-201 in their

pleadings. The chancellor first mentioned the potential impracticality in the hearing on the

moti on to dismiss when he asked Martin “how in the world is the amendment to the code . . .

going to work as a practical matter.” Both attor neys briefly responded to the chancellor’s

question wherein the chancellor stated:

The [c]ourt hereby finds and holds, and you can take this up on appeal if you

would like, that 65-7-20 1 as amended is totally impractical and not workable

and it cannot be carried out under due process of law; and this court,

accordingly, holds it

unconstitutional as a result and because of these very facts

in this opinion.

. .[the court] finds that this statute was amended. . . in such a

haphazard way that it’s impossible and impractical to enforce it and carry it out.

Whoever wrote it needs to practice law a few years in the hills of north

Mississippi.

¶11. Only upon filing of their respective briefs in response to the interlocutory appeal did

either attorneys address the issue of constitutionality. Lowery correctly points this out in his

brief when he states “[i]n fact, the argument of due process of law w as not even raised by either

counsel in their argument before the [c]ourt.” Martin only argues the constitutionality point

in his brief when he states “[i]t is the Plaintiff’s position that arguing over the authority of the

Chancellor to declare 65-7-201 unconstitutional or indeed the constitutionality of the statute

is irrel evant.” While a chancellor does have the power to hold a statute unconstitutional,

constitutionality must first be specifically pled before the power of review is vested in the trial

court. S tate v. Watkins

, 676 S o.2d 247, 250 (Miss. 1996). Again, we hold that because

neither party raised this issue, nor was notice provided in advance to the Attorney General, and7

the chancellor sua spont e declared the statute unconstitutional, the chancellor exceeded his

authority in holding that Miss. Code Ann. § 65-7-201 unconstitutional. The issue is

procedurally barred. We therefore decline to further address the merits of the issue of

constitutionality of the statute at issue.

II

¶12. Lowery filed his complaint on January 7, 2004. M.R.C.P. 4(h) requires service of a

summons and complaint upon a defendant within 120 days after filing the complaint. Service

of the summons on all defendants should have occurred by May 6, 2004. Two of the three

defendants in the case at bar, Annie Mae Southward and Azzie Lee Martin were never served

with process. In fact, even at the time of the hearing on August 20, 2004, neither had ever been

served with a summons. Furthermore, Lowery did not move for an extension of time nor did

he assert good cause as to why service was not timely made. At the hearing before the

chancellor, counsel for Lowery alleged that the rea son for not effecting proper service was

because of ongoing settlements d iscussions. However, Annie Mae Southward and Azzie Lee

Martin were not part of those discussions.

¶13. In determining good cause this Court has held that the dec ision “would be a

discretionary ruling on the part of the trial court and entitled to defe r ential review of whether

the trial court abused its discre tion and whether there was substantial evidence supporting the

determination.” Rains v. Gardner , 731 So. 2d 1192, 1197 (Miss. 1999).

¶14. Ho wever, in the case at bar, the chancellor’s order fails to include sufficient findings

of fact in support a s to this issue. A dditionally, the chancellor’s bench opinion fails to specify

the ch ancellor’s findings of fact. “[W]hen there are no specific findings of fact, we8

sometimes assume the trial judge mad e determinations of fact sufficient to support the

evidence.” P

ace v. Owens

, 511 So. 2d 489, 492 (Miss. 1987) (citing Rives v. Peterson

, 493

So.2d 316, 317 (Miss. 1986)). Nevertheless,

[t]here are limita

tions upon this premise. It is one thing to employ algebraic

techniques to imply the numerical content of “X” in the equation 10 + 6 + X =

23. It is alt ogether different where, as here, we are asked to assume the content

of all variables in an equation X + Y + Z = 23 . . . .We simply have not received

enough help from the Chancery Court that we might derive the finding s it ought

to have made.

Tricon Metals & Servs., Inc. v. Topp , 516 So. 2d 236, 238 (Miss. 1987) (citing P ace

, 511

So.2d at 492)). We hold the latter applies to the case at hand. Here the chancellor merely

states “[t]hat the Plaintiff [Lowery] has shown good cause for not serving process on Annie

Mae Southward and Azzie Lee Martin within the 120 day period of Rule 4(h) . . . .” Hence, we

are also unable to derive what finding the Chancery Court of Tishomingo Cou nty “ought to have

made.”

¶15. Furthermore in Webster v. Webster

, 834 So. 2d 26, 28 (Mis s. 2003), this Court held

that “[a] determination of good cause is a discretionary ruling by th e trial court and is entitled

to deferential review of whether the trial court abused its discretion and whether there was

substantial evidence supporting the determination.” As previously indicated, it is not apparent

whether or

not the chancellor’s determination of good cause in this case is based on substantial

evidence. Again, this is a result of the chancellor’s failure to provide express reasoning and

facts upon whic h his determination was made. Thus, we determine that the chancellor’s failure

to make specific findings of fact is an abuse of discretion.9

¶16. Finally, we note if there was an attempt to waive service of process on the two

defendants, Rule 4(e) requires that any waiver of service of process “shall be in writing dated

and signed by the defend ant and duly sworn to or acknowledged.” M.R.C.P. 4(e). Because

Rule 4(e) does not provide for service of process waiver by oral agreements, Lowery is

prohibited from now claiming Rule 4(h) protection under a good cause argument.

CONCLUSION

¶17. We find

that the chancellor erred in raising and addressing the constitutionality of the

statute for the reasons cited, thus we apply the procedural bar. We also find that there was no

compliance with M.R.C.P. 4(h), nor Rule 4(e) and the chancellor abused his discreti on in

failing the set out specific reasons as to findings of fact in his order or his bench opinion. As

such, the chancellor erred in failing to dismiss the com plaint. We reverse the chancellor’s

judgment and remand this case with instructions that (1) the chancellor dismiss the case

without prejudice as to Azzie Lee Martin and Annie Mae Southward pursuant to M.R.C.P. 4(h),

and (2) consider anew the motion to dismiss for lack of subject matter jurisdiction filed by

Troy Martin.

¶18. REVERSED AND REMANDED.

WALLER AND COBB, P.J., EASLEY CARLSON, DICKINSON AND

RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE

WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.