MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 6/1/2017

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1 MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 6/1/2017 LEWIS v. PAGEL, NO CA SCT Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Contempt - Jurisdiction - Venue - Waiver - Section M.R.C.P. 12(b) - M.R.C.P. 82(d) - M.R.C.P. 81 HON. CARTER O. BISE HARRISON COUNTY CHANCERY COURT THOMAS W. TEEL DEAN HOLLEMAN Justice Chamberlin Affirmed. Facts: Tonia (Lewis) Pagel and Drake Lewis were divorced in Drake filed his first appeal from the order of divorce. On certiorari, the Supreme Court affirmed in part and reversed in part, remanding the case to the chancery court. After remand, the chancellor issued his judgment and an order on modification and contempt. Drake filed his second appeal from the judgment and the order. At a hearing on a contempt motion filed by Tonia, while the second appeal was pending, Drake filed a motion for a continuance and argued for the first time in the litigation that the divorce action was void for lack of jurisdiction due to improper venue under section The chancellor granted the motion for continuance, and Drake filed a Motion to Declare Prior Orders Void and to Dismiss Actions. Eventually, the chancellor denied the motion. The chancellor found that Drake s motion was frivolous and awarded attorney s fees to Tonia. Drake later entered into three agreed orders that the Harrison County Chancery Court had subject-matter jurisdiction over the divorce action. In 2015, the chancellor granted Tonia s motion for contempt and entered a judgment of contempt against Drake in the amount of $197,812 with interest on the judgment set at 2.5 percent. As part of the judgment, the chancellor awarded Tonia attorney s fees but specifically excluded any recovery for the time Tonia s counsel spent defending Drake s venue objection. He also set the purge amount at $25,000. Tonia filed an M.R.C.P. 59 motion. On January 11, 2016, the chancellor ordered the parties to set a date to hear the child-support issue that the Supreme Court had remanded in August 2015 in its resolution of the second appeal. The chancellor also ordered Drake to pay the purge amount of $25,000 pursuant to the May 2015 judgment on the date of the hearing on child support. Also, the chancellor ordered Drake to pay Tonia an additional $2,000 in attorney s fees. On February 1, 2016, Tonia filed for contempt for support due to her since the May 2015 judgment. Drake filed his notice of appeal of the January judgment on February 4, After the filing of the notice of appeal, the parties entered three agreed orders. The first order recognized that Drake had tendered a check for $35, to the chancery court clerk and directed the clerk to disburse the funds to Tonia. The order also noted that Drake was paying Tonia the purge amount and attorney s fee judgment of January 11, 2016, with the remaining amount to be credited toward the May 19, Page 1 of 15

2 2015, contempt judgment. The second order entered judgment against Drake for $30,000 for the lump-sum alimony owed between March 2015 and February 2016 and for $1, for attorney s fees that were ordered as a result of Drake s 2014 venue objection. This second order reserved ruling on the issue of contempt in relation to these amounts owed by Drake. The third order merely recognized that Drake had tendered payment of $35, to the chancery court clerk to be disbursed to Tonia. Analysis: Issue 1: Jurisdiction The chancellor found that Harrison County was the proper venue for the divorce, as Drake resided in Harrison County at the time Tonia filed the divorce petition. Substantial evidence from the record supports this finding. Drake listed his address on his initial 8.05 statement as Harrison County. He also listed his mortgage payment on the marital home as his previous household. Also, Drake testified in an 2007 deposition that he lived in Harrison County before January of Further, Drake s residence was established at trial by Tonia s unrefuted testimony. In addition, Tonia testified that when Drake left the marital home in Jackson County, he packed his truck with his belongings and left to live at his aunt s condominium in Harrison County. All of this evidence supports the chancellor s finding that Drake was domiciled in Harrison County. Issue 2: Waiver In addition to residing in Harrison County, Drake waived his objection to improper venue by not timely raising it. Venue may be waived. Section 159 of the Mississippi Constitution vests subject-matter jurisdiction in the chancery courts over divorce proceedings. Personal jurisdiction in a divorce proceeding, though, is governed by section which provides that [t]ransfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure. Further, M.R.C.P. 12(b) provides the procedure for contesting improper venue. To the extent that prior cases hold that section confers subject-matter jurisdiction on chancery courts, they are overruled. Subject-matter jurisdiction is conveyed by the Mississippi Constitution. Section governs the venue of a divorce action and limits the chancery court s exercise of personal jurisdiction over the defendant. The Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper. Additionally, even if the venue argument was correct, the appropriate remedy would have been transfer of the matter to Jackson County. M.R.C.P. 82(d), explicitly incorporated by section s amendment, allows the court to transfer an action only on timely motion. Drake s motion challenging venue, eight years after the initial complaint, was untimely. Drake did not answer Tonia s complaint for divorce, although he was permitted to do so under M.R.C.P. 81. Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent. Therefore, Drake has waived his objection to venue by litigating in Harrison County. Issue 3: Contempt The evidence supports the chancellor s decision to hold Drake in contempt. Throughout the divorce proceedings and subsequent hearings, the chancellor found several times that Drake was not a credible witness. The chancellor specifically found that Drake had the present ability to pay and had chosen not to do so. The chancellor also emphasized that Drake s father was heavily involved in Drake s finances. The chancellor also recognized that Drake Page 2 of 15

3 had the $132,000 when he was ordered to pay it to Tonia in Drake s offers of judgment to Tonia were ineffective to negate the judgment of contempt. Drake was ordered to pay Tonia cash. He never offered her cash, only a combination of real and personal property with much of the real property encumbered by mortgages. It was Drake s duty to convert enough assets into cash to pay Tonia; Tonia is not obligated under Mississippi law to accept an offer of judgment comprised of real property. Thus, the record contains sufficient evidence to support the chancellor s findings that Drake has the present ability to pay what he owes to Tonia and willfully chose not to do so. Page 3 of 15

4 JOHNSON v. HENDERSON, NO CA SCT Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Wills & estates - Willful failure to appear for deposition - Dismissal of action - M.R.C.P. 37(d) - M.R.C.P. 37(b)(2) HON. MITCHELL M. LUNDY, JR. DESOTO COUNTY CHANCERY COURT KERRY MILLS BRYSON GREGORY C. MORTON, JOSEPH M. SPARKMAN, JR. Justice Maxwell Affirmed. Facts: Analysis: After Robert Johnson s father died, his stepmother, Myra Linda Henderson, filed a petition to probate his father s will. This will left nothing to Johnson or his brother. Johnson filed a petition to contest the will. Henderson noticed Johnson s deposition for October 22, The deposition was to take place at Henderson s attorney s office. Johnson, a California resident, filed a motion to quash and for a protective order. The judge ruled Johnson had to come to Mississippi to be deposed. And Johnson, through his counsel, agreed he should be deposed in Mississippi. The chancellor denied Johnson s motion to quash, but suggested Henderson give Johnson at least thirty days notice before deposing him. The same day as this ruling, Henderson filed a second notice of deposition. This notice informed Johnson he would be deposed thirty-two days later. The deposition was set for December 11, 2015, at Henderson s attorney s office. Johnson failed to appear for his deposition. Henderson immediately filed a motion for sanctions, requesting Johnson s will contest be dismissed. The chancellor granted Henderson s motion to dismiss. Johnson appeals. M.R.C.P. 37(d) provides that [i]f a party... fails... to appear before the officer who is to take his deposition, after being served with a proper notice,... the court in which the action is pending on motion... may take any action authorized under subsections (A), (B), and (C) of subsection (b)(2) of this rule. One of the actions authorized by subsection (b)(2) is the issuing of an order dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.] Under Rule 37(d) s plain language, Johnson s failure to appear triggered the chancellor s discretionary authority to dismiss his will contest with prejudice. Johnson argues that his nonappearance was not willful, because he was just too busy to be there. However, Johnson made no prior mention of work obligations or serious conflicting business duties. It was only afterward that his attorney suggested to the chancellor that Johnson s California business would have been disrupted had he attended the deposition. Nor did he seek court intervention or direct his counsel to work with Henderson s lawyer to find a more suitable date to be deposed. Henderson s lawyer contacted Johnson s attorney three days before the scheduled deposition to verify Johnson would be there. Only then did Johnson s lawyer tell him his client was not coming. The record supports the chancellor s finding that it was in fact Johnson, not his attorney, who decided to skip the deposition. Based on this willful, unexcused failure to attend the December 11 deposition, the chancellor was within his discretion under Rule 37(d) to sanction Johnson by dismissing his action. Page 4 of 15

5 DISSENT Justice Kitchens joined by Presiding Justice Dickinson and Justice King Page 5 of 15

6 OAKS v. BALL, NO CT SCT Civil - ON WRIT OF CERTIORARI Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Wills & estates - Terms of lease - Third-party beneficiary - Testamentary conveyance - Vested right in contract HON. EDWARD E. PATTEN, JR. LINCOLN COUNTY CHANCERY COURT JOHN R. REEVES, JOHN JUSTIN KING WILLIAM D. BOERNER, BRAD RUSSELL BOERNER, JOE ROBERT NORTON, IV Presiding Justice Dickinson Court of Appeals affirmed; Chancery court reversed and remanded. Facts: Rose Greer leased land she owned in Lincoln County to David and Jene Nunnery. Section 3 of the lease which extended until July 31, 2025, in automatically renewing one-year terms stated, In the event of the death of the Lessor, this lease agreement shall not terminate, rather the rights and obligations of Lessor shall immediately be transferred to Linda Ball, who will also have the right to receive payments hereunder. Greer later executed a will leaving all her property to John Oakes and naming him executor of her estate. After Greer s death, Oakes filed a petition to probate Greer s will. The chancellor admitted the will to probate and issued Oakes letters testamentary. Oakes then filed a complaint for declaratory relief in the chancery court, asking the chancellor to find Section 3 testamentary in nature and declare it invalid because it lacked the formalities of a will; to determine whether the lease remained in effect after Greer s death; and if enforceable, to determine Ball s rights and obligations under the lease. The chancellor concluded Section 3 was not testamentary and that it effectively assigned Greer s rights and obligations. Oakes appealed, and the Court of Appeals reversed the chancellor s judgment, finding that Section 3 was testamentary and unenforceable. The Supreme Court granted certiorari. Analysis: If Ball was not an intended third-party beneficiary, it is clear she had no vested interest during the life of the grantor and the chancellor erred by finding that the conveyance was not testamentary. If she was an intended third-party beneficiary, the answer to that question is more nuanced. The parties to the contract had vested contractual rights during the life of the grantor. An intended third-party beneficiary possesses the right to enforce the promise for her benefit in the contract. A right is vested when it has become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute. Because Greer and the Nunnerys could have modified the lease to remove Ball s benefit under Section 3, Ball possessed no vested right in the contract even if she were an intended third-party beneficiary. It matters not that Greer needed the Nunnerys consent to terminate this provision during her lifetime. The relevant question is when the interest vests in the grantee and whether it may be modified during the grantor s life, not who has the right to prevent any interest from vesting. Because Ball, the grantee, lacked a vested right, Section 3 must be deemed testamentary in nature and treated as a will. The parties agree the lease failed to comply with the statutory formalities required of a will. Thus, the Court of Appeals decision is affirmed. Page 6 of 15

7 DISSENT Justice Kitchens joined by Justices King and Chamberlin Page 7 of 15

8 ESTES v. ESTES, NO CT SCT CONSOLIDATED WITH No CT SCT Topics: Wills & estates - Renunciation of will by spouse - Section Abandonment of marriage - Desertion Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Civil - ON WRIT OF CERTIORARI C. MICHAEL MALSKI LEE COUNTY CHANCERY COURT AMY K. PIETROWSKI RHETT R. RUSSELL Chief Justice Waller Court of Appeals reversed; Chancery court affirmed and remanded. Facts: Analysis: Three days after Sarah Young and Joe Estes married, Joe Estes was hospitalized for a foot injury that eventually resulted in the amputation of his left leg above the knee. Two months later, Estes returned to the hospital for surgery to clear blocked arteries in his neck. Young testified that, following these medical procedures, despite providing care for her husband, Estes s behavior changed. She testified that he would lash out at her, even threatening to kill her. Young consulted with a doctor regarding Estes s mental state. Following the doctor s advice, she reported the incident to the sheriff s department. In mid-january, after another episode in which Estes accused Young of adultery, Young decided to separate from Estes. Estes s family members tell a different story. In 2007, after Estes had refused to seek medical or mental help, Young initiated involuntary-commitment proceedings against Estes. After his psychiatric evaluation, Estes was found to be competent, with no indication of any psychiatric illness or anger-management problems. The evaluation also concluded that Estes was no danger to himself or anyone else. Thus, Estes was released from psychiatric care. Immediately thereafter, Estes sought a restraining order against Young. Approximately one month later, Young filed for divorce, seeking half of all of Estes s assets, including the value of his land and his bank accounts. A few weeks later, Estes counterclaimed for divorce and also sought a restraining order. Eventually the parties entered into a mutual restraining order. In May 2007, Estes received notice of the final divorce hearing. The next day he shot and killed himself. Estes s will did not provide for Young to inherit anything from his estate. Young renounced the will. The trial court granted Young a $12,000 widow s allowance as well as a one-fifth, child s share of the estate in the amount of $68, Estes s two sons, acting as co-executors, appealed. The Court of Appeals determined that Young was not entitled to a widow s allowance since she was living apart from Estes, through no fault of his own, and without support from him at the time of his death. The Court of Appeals remanded the case. On remand, the chancellor again found that Young had not clearly abandoned the marriage and confirmed her award of a child s share. Estes appealed, and the Court of Appeals held that the chancellor had erred in not finding that Young had deserted and abandoned her marriage to Estes. The Supreme Court granted Following the renunciation of a will that fails to include the spouse, the will proponent may raise abandonment and desertion as estoppel to the renunciation. Section allows the surviving spouse automatically to renounce the will, thus the burden to show evidence of clear abandonment or desertion is on the aggrieved party. As this case is close factually and there was no legal change of marital status, the chancellor was not manifestly wrong in Page 8 of 15

9 granting Sarah Young a child s share of Joe Estes s estate. Page 9 of 15

10 STATE v. SCOTT, NO KA SCT Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Death penalty post-conviction relief - Independent findings by judge - Atkins claimant - Intellectually disabled - Malingering test - Expert opinion - M.R.E Qualifications of expert witness HON. JOHNNIE E. WALLS, JR. BOLIVAR COUNTY CIRCUIT COURT OFFICE OF THE ATTORNEY GENERAL: JASON L. DAVIS, BRAD ALAN SMITH JAMES W. CRAIG, MEGHAN SHAPIRO Justice Maxwell Affirmed and remanded. Facts: Analysis: A circuit court judge ruled death-row inmate Kevin Scott was intellectually disabled and thus ineligible for the death penalty under the Eighth Amendment. The State appeals. Issue 1: Independent findings The State argues that the trial judge failed to make independent findings but instead the judgment reflects an almost-verbatim adoption of Scott s proposed findings of facts and conclusions of law. The ultimate issue of whether an Atkins claimant is, in fact, intellectually disabled for purposes of the Eighth Amendment, is one for the trial judge, who sits as the trier of fact and assesses the totality of the evidence as well as the credibility of witnesses. Adopting one side s proposed findings versus making independent findings seriously undermines the trial judge s role as the fact-and-credibility finder. However, in this case, the State fails to support its contention with record evidence. Instead, the State attached a copy of Scott s proposed findings as an exhibit to its brief. But the State did not make this document part of the record, and merely attaching something to a brief does not make it record evidence. The State does not explain why it never sought to make Scott s proposed findings of facts and conclusions of law a part of the record. Nor does it explain why it never moved to supplement the record once it was filed with the Court. Because there is no record evidence to support this allegation, this issue is without merit. Issue 2: Malingering test The State argues that Dr. Zimmerman never administered a test specifically designed to detect malingering. However, the point of law that was made previously, that the MMPI-II test is required prior to adjudication on a claim of mental retardation, was expressly overruled by the Court. With that overruling went the requirement that Scott had to obtain any further testing before his Atkins hearing. The State argues that in order to meet the same burden as any other Atkins claimant in Mississippi, Dr. Zimmerman had to administer a test specifically designed to detect malingering simply administering two different IQ tests and comparing the results could not suffice. However, there is no mandate of specific testing to meet Chase s requirements. Instead, Scott could rely on any other tests and procedures permitted under the Mississippi Rules of Evidence, and deemed necessary to assist the expert Page 10 of 15

11 and the trial court in forming an opinion as to whether the defendant is malingering. Both Scott s expert and the State s expert claimed no malingering test has been normed for the intellectually disabled. For this reason, Dr. Zimmerman administered no malingering tests, instead finding consistency across different IQ tests ruled out malingering. So long as the expert opinion about malingering is admissible under our Rules of Evidence, the chosen method for reaching that conclusion goes to the weight and credibility of the expert opinion. The State alternatively argues that Dr. Zimmerman s expert opinion that Scott was not malingering was inadmissible under M.R.E. 702 because the back-to-back-iq-test procedure does not find support within the forensic-psychology community. But at the Atkins hearing, Scott presented evidence the forensic-psychology community has accepted Dr. Zimmerman s method. Thus, there is no reversible error in admitting Dr. Zimmerman s expert opinion that Scott s multiple consistent IQ scores in the intellectually disabled range ruled out the possibility of malingering. Issue 3: Additional expert The State argues the trial judge erred by permitting a school psychologist to testify, because she is not a licensed psychologist. Instead, she is a masters-level school psychologist for the Coahoma County School District, licensed through the Mississippi Department of Education, with more than thirty years experience in special education and administration of IQ tests. While the expert opinion of at least one licensed psychologist is required, expert testimony is not restricted to licensed psychologists only. So long as the witness properly qualified as an expert under M.R.E. 702, she could give an expert opinion at Scott s hearing. Her testimony of Scott s 1993 assessment and school records was relevant. And her education and experience supported the trial judge s finding that her expert testimony was reliable. Issue 4: Opposing experts The State argues the trial judge picked the wrong expert. Instead of relying on Dr. Zimmerman s opinion to support a holding of intellectual disability, the State suggests the trial judge should have believed the view of its expert, who found Scott was malingering. Where there are experts who take opposite positions as to whether Scott is intellectually disabled, Mississippi law requires that the Court defer to the trial judge, who sits as the trier of fact and assesses the totality of the evidence as well as the credibility of witnesses. Page 11 of 15

12 PERRY v. STATE, NO KA SCT Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Aggravated assault & Possession of weapon by convicted felon - Right to speedy trial - Section Habitual offender status - Section HON. LEE SORRELS COLEMAN CLAY COUNTY CIRCUIT COURT OFFICE OF THE STATE PUBLIC DEFENDER: JUSTIN T. COOK, GEORGE T. HOLMES OFFICE OF THE ATTORNEY GENERAL: LAURA H. TEDDER Justice Chamberlin Affirmed. Facts: Analysis: Byron Perry was convicted of aggravated assault and possession of a weapon by a previously convicted felon. He was sentenced as a habitual offender to twenty years for the aggravatedassault conviction and ten years for the weapon conviction. He appeals. Issue 1: Right to speedy trial Factors to consider in determining if the defendant s right to a speedy trial has been violated include length of delay; reason for delay; defendant s assertion of the right; and prejudice to the defendant. Perry was arrested on May 25, He was not indicted until October 11, The next day, Perry waived arraignment, and his trial was set for January 11, But due to a series of continuances, he was not tried until July 21, 2015, a delay of approximately five years and two months. This period of delay was presumptively prejudicial. The vast majority of the delay in this case was attributable to continuances generated by the defense. Of the approximately five-year delay between Perry s arrest and his trial, 339 days were attributable to the State, and 1,548 days were attributable to Perry. Because the vast bulk of the delay was caused by continuances requested by Perry, the reason for the delay weighs against him. Perry s second and third speedy-trial demands were made after more than four years worth of delay caused by defense continuances. The trial court continued the trial for an unknown reason between his second and third demand. Due to the timing of Perry s second and third speedy-trial demands, this factor weighs only slightly in favor of Perry. Perry argues that he was prejudiced because, three years after he was indicted, the State moved to amend his indictment to charge him as a habitual offender. He also argues that actual prejudice resulted from the stress and anxiety of waiting for trial. Because Perry already had the two prior convictions the State used to enhance his sentence, the State could have used those convictions to seek his indictment as a habitual offender at its presentment of the case to the grand jury. Therefore, Perry has not shown prejudice regarding the habitual-offender amendment. Further, the record reveals no missing witnesses, faded memories, or other detriment to the defense caused by the delay. And Perry himself requested the continuances that caused the majority of the delay to prepare his case and to procure a mental evaluation. Any anxiety or stress that Perry experienced due to the delay was outweighed by the fact that his defense was assisted, not hindered, by the delay. Given these factors, Perry s constitutional right to a speedy trial was not violated. Perry contends that his statutory speedy-trial right was violated because he waived arraignment on Page 12 of 15

13 October 12, 2010, and he was not tried in 270 days. However, Perry requested numerous continuances, and the trial court found that these requests were well taken. Thus, good cause existed for the 1,548 days that were attributable to the continuances granted to the defense, and that number of days must be deducted from the statutory time calculation. After the deduction, 198 days remained between Perry s arraignment and his trial. There was no statutory speedy-trial violation under section Issue 2: Habitual offender status Perry argues that the State failed to show his habitual-offender status beyond a reasonable doubt. Under section , the length of time served by the convicted is irrelevant so long as he or she was sentenced to one year or more. The record clearly shows that Perry was sentenced to one year, one month, and twenty-seven days for his prior felony conviction in Georgia. Therefore, the only issue is whether Perry was sentenced to one year or more for his prior, Lowndes County conviction. For this conviction, the State submitted a certified copy of the sentencing order. The face of this Lowndes County sentencing order plainly and unambiguously shows that Perry was sentenced to three years in the custody of the Mississippi Department of Corrections for this conviction. Thus, there is no error. CONCUR IN PART, DISSENT IN PART Justice Kitchens joined by Justice King Page 13 of 15

14 AZOMANI v. STATE, NO CT SCT Criminal - ON WRIT OF CERTIORARI Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Medicaid fraud - Venue - Section (1) - Waiver - Miss.Const. Art. 3, Sec Statute of limitations - Section HON. BETTY W. SANDERS WASHINGTON COUNTY CIRCUIT COURT GLENN S. SWARTZFAGER OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER Chief Justice Waller Affirmed. Facts: Analysis: Dr. Hosan Azomani practiced pediatric medicine under the name Children s Medical Group of Greenville PLLC. In 2007, the Division of Medicaid conducted an audit of Dr. Azomani s patient files, which revealed three coding errors. Though Dr. Azomani admitted to the errors, he claimed that he had not deliberately made the mistakes. Later, following three complaints involving Dr. Azomani s choices of treatment for patients, an officer of the Medicaid Fraud Control Unit investigated Dr. Azomani s Medicaid billing. The officer testified that Dr. Azomani regularly billed the highest-level code for almost all of his patients. Dr. Azomani was indicted on thirteen counts of Medicaid fraud. The jury found him guilty of two counts of fraudulently misusing the highest-level billing code, an inappropriate code for the 125 children he treated on two days. Dr. Azomani was acquitted on the other eleven counts. Dr. Azomani was sentenced to three years for each count. He appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari. Issue 1: Venue During pretrial proceedings, Dr. Azomani filed a motion to dismiss for improper venue, arguing that venue would be proper in Madison County, his home county, or Hinds County, pursuant to section (1) of the Medicaid Fraud Control Act. However, Dr. Azomani s lawyer advised the trial court that he was not going to pursue the motion for improper venue. Following the State s case, Dr. Azomani moved for a directed verdict based on the State s failure to prove venue. Dr. Azomani, for the first time on appeal, argued that the State had failed to establish venue. The Court of Appeals found that the venue issue asserted under the Medicaid Fraud Control Act was waived, and, as a result, it found the issue was procedurally barred. Dr. Azomani argues that the issue of venue can be raised for the first time on appeal as a constitutional right. The Court of Appeals erred in holding venue in a criminal case can be waived. However, the Court of Appeals also reviewed the claim of improper venue on the merits as an exception to the procedural bar and found the issue was without merit because Article 3, Section 26 of the Mississippi Constitution provides that a defendant has a constitutional right to be tried in the county where the offense was committed. As correctly noted by the Court of Appeals, the only reasonable interpretation of the venue provisions under the Medicaid Fraud Control Act under Section (1) is that their application would be limited to civil cases. Because Dr. Azomani s trial was in the county where the offense was committed, as provided by Article 3, Section 26 of the Mississippi Constitution, venue was proper in Washington Page 14 of 15

15 County. Issue 2: Statute of limitations Dr. Azomani argues that, since section specifically does not include Medicaid fraud, then Medicaid fraud has a two-year statute of limitations. However, Medicaid fraud is a species of or within the definition of obtaining money or property under false pretenses or by fraud. Thus, this issue is without merit. CONCUR IN PART AND IN RESULT Presiding Justice Dickinson joined by Justice Coleman Page 15 of 15