              IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2007-IA-02054-SCT

ISSAQUENA WARREN COUNTIES LAND CO., LLC,
GARY K. BLAKENEY, KENNETH D. BLAKENEY,
EARNEST K. BLAKENEY, ROSE C. BLAKENEY,
ROBERT D. AINSWORTH, PAM HALEY, KEITH
HAWSEY, TOMMY L. THRASH, JOSH L. THRASH,
MIKE SUTTON, MICHAEL R. McTURNER, DONNA
M. McTURNER, ERVIN RAY, FAY RAY, GARY RAY,
HUGH J. PARKER, CYNTHIA B. PARKER, JOEY
HAVEN AND MARTY ELROD

v.

WARREN COUNTY, MISSISSIPPI


DATE OF JUDGMENT:               10/25/2007
TRIAL JUDGE:                    HON. VICKI R. BARNES
COURT FROM WHICH APPEALED:      WARREN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:       LISA ANDERSON REPPETO
                                MARK D. HERBERT
ATTORNEYS FOR APPELLEE:         KENNETH B. RECTOR
                                PAUL E. WINFIELD
NATURE OF THE CASE:             CIVIL - REAL PROPERTY
DISPOSITION:                    REVERSED AND REMANDED - 12/11/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


     BEFORE SMITH, C.J., CARLSON AND RANDOLPH, JJ.

     CARLSON, JUSTICE, FOR THE COURT:
¶1.    We previously granted the petition for interlocutory appeal filed by Issaquena Warren

Counties Land Co., LLC,1 (Issaquena) after the Warren County Chancery Court entered an

order transferring Issaquena’s previously commenced action to the Circuit Court of Warren

County. Finding that the chancellor erred in transferring this case to circuit court, we reverse

the chancellor’s transfer order and remand this case to the Chancery Court of Warren County

for further proceedings consistent with this opinion.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    In 2002, Issaquena purchased 1,200 acres of real property in Warren County.

Issaquena’s individual owners subdivided a portion of the property into fifteen lots, which

were conveyed individually by deed. Moreover, they constructed roads, installed utilities,

and all other necessary activities for the development of a subdivision. Warren County

maintains that the county advised Issaquena that such development would require compliance

with the county’s subdivision ordinance and floodplain ordinance, which requires county

approval for proposed subdivision and development plans. Warren County alleges that

Issaquena refused to comply with the ordinances.

¶3.    On June 3, 2006, and December 19, 2006, Warren County filed in the County Court

of Warren County twenty-three criminal summonses against the individual owners of

Issaquena for alleged violations of the Subdivision Ordinance and/or Floodplain Ordinance,


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       The remaining appellants are Gary K. Blakeney, Kenneth D. Blakeney, Earnest K.
Blakeney, Rose C. Blakeney, Robert D. Ainsworth, Pam Haley, Keith Hawsey, Tommy L.
Thrash, Josh L. Thrash, Mike Sutton, Michael R. McTurner, Donna M. McTurner, Ervin
Ray, Fay Ray, Gary Ray, Hugh J. Parker, Cynthia B. Parker, Joey Haven, and Marty Elrod.

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all misdemeanors. At the suggestion of the county court judge, Warren County decided to

pursue the matter civilly, and the criminal charges were dismissed with prejudice.

¶4.    Issaquena filed the present action on May 26, 2007, for declaratory and injunctive

relief as to Warren County’s ability to bring multiple actions against it for violations

previously alleged in other actions, and alternatively seeking declaratory judgment that it had

not violated the Subdivision and Floodplain Management Ordinances. On May 31, 2007,

Warren County filed an action in Warren County Circuit Court seeking declaratory relief

related to the applicability and enforceability of the subdivision ordinance and a claim for

damages. In response to the chancery court action, Warren County filed a Motion to

Dismiss, or in the Alternative, to Transfer to the Circuit Court on June 27, 2007. After

conducting a hearing on September 5, 2007, the chancery court granted Warren County’s

motion to transfer to circuit court by way of an order dated October 25, 2007. Issaquena filed

a petition for interlocutory appeal on the question of whether the chancery court erred in

granting Warren County’s motion to transfer to circuit court. After granting the petition for

interlocutory appeal, this Court stayed all proceedings in the trial court pending our

disposition of this appeal.

                                       DISCUSSION

¶5.    Jurisdiction is a question of law, which this Court reviews de novo. Trustmark Nat’l

Bank v. Johnson, 865 So. 2d 1148, 1150 (Miss. 2004) (citing Briggs & Stratton Corp. v.

Smith, 854 So. 2d 1045, 1048 (Miss. 2003); Rogers v. Eaves, 812 So. 2d 208, 211 (Miss.

2002)). A motion to transfer from chancery court to circuit court, or vice-versa, is also

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reviewed de novo. RAS Family Partners v. Onnam Biloxi, LLC, 968 So. 2d 926, 928 (Miss.

2007) (citing ERA Franchise Sys., Inc. v. Mathis, 931 So. 2d 1278, 1280 (Miss. 2006)).

¶6.    Issaquena assigns as error the following issue:

       WHETHER THE CHANCERY COURT ERRED IN GRANTING
       WARREN COUNTY’S MOTION TO TRANSFER THE PRESENT
       ACTION TO CIRCUIT COURT.

¶7.    On the issue of transfer of jurisdiction, the Mississippi Constitution states, “All causes

that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction

shall be transferred to the circuit court.” Miss. Const. art. 6, §162. Under the Mississippi

Constitution, chancery courts are courts of limited jurisdiction whereas circuit courts are

courts of general jurisdiction. See Miss. Const. art. 6, §159 (granting chancery courts

jurisdiction over “all matters in equity”); Miss. Const. art. 6, §156 (granting circuit courts

“original jurisdiction in all matters civil and criminal in this state not vested by this

Constitution in some other court”). Issaquena relies on the priority-of-jurisdiction rule

espoused in Scruggs, Millette, Bozeman, & Dent, P.A. v. Merkel and Cocke, P.A., 804 So.

2d 1000, 1006 (Miss. 2001) in support of its argument that the chancellor’s transfer order

must be reversed based on the following: (1) the chancery court can properly exercise

jurisdiction over both cases; (2) both cases involve the same parties; and (3) both cases

involve substantially the same subject matter and cause of action. Warren County cites In

Re Petition of Beggiani, 519 So. 2d 1208, 1210 (Miss. 1988), for the premise that, in order

for one court to retain jurisdiction to the exclusion or abatement of another action in a second

court, the same parties must be seeking the same remedy. Warren County counters with the

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fact that it seeks an additional remedy by way of damages; therefore, it argues the priority-of-

jurisdiction rule does not apply because it seeks a remedy different from that sought by

Issaquena, and as such, it is entitled to have its case heard in a court of law.

¶8.    The priority-of-jurisdiction rule stands for the premise that if the first court in which

the action is filed has proper subject matter jurisdiction, that court should retain jurisdiction

over the whole controversy. See RAS Family Partners v. Onnam Biloxi, LLC, 968 So. 2d

926, 929 (Miss. 2007). To this end, this Court has stated, “[t]he ‘first to file’ or ‘race to the

courthouse’ rule is well-established in Mississippi case law: ‘[w]here two suits between the

same parties over the same controversy are brought in courts of concurrent jurisdiction, the

court which first acquires jurisdiction retains jurisdiction over the whole controversy to the

exclusion or abatement of the second suit.’”Id. at 929 (quoting Scruggs, 804 So. 2d at 1006).

See also Beggiani, 519 So. 2d at 1210. For the purpose of determining which court first had

proper jurisdiction, this Court looks to “‘the date the initial pleading is filed, provided

process issues in due course.’” RAS Family Partners, 968 So. 2d at 929 (quoting Scruggs,

804 So. 2d at 1006). See also Huffman v. Griffin, 337 So. 2d 715 (Miss. 1976). In this case,

Issaquena filed its action in chancery court on May 26, 2007, following which process was

properly issued. Warren County filed its action in circuit court on May 31, 2007. Applying

the priority-of-jurisdiction rule, this case involves the same parties and the same issues, and

Issaquena filed first in chancery court. Thus, the Warren County Chancery Court has priority

jurisdiction to the exclusion and abatement of the complaint filed in Warren County Circuit

Court. It thus necessarily follows for the reasons stated that the motion to transfer should not

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have been granted by the chancellor, and the Warren County Chancery Court should have

retained jurisdiction over this case. While this rule is dispositive of the case, it is necessary

to address Warren County’s remaining arguments.

¶9.    Warren County argues that in seeking a declaratory judgment pursuant to Mississippi

Rule of Civil Procedure 57, it is entitled to a jury trial under this rule. Mississippi Rule of

Civil Procedure 57 has been held to be jurisdictionally neutral. Tillotson v. Anders, 551 So.

2d 212, 214 (Miss. 1989). In other words, declaratory relief is properly had in any court

found to have otherwise competent jurisdiction. Id. Thus, the fact that each of the parties

seeks a declaratory judgment has no effect on which court has proper jurisdiction.

Accordingly, this argument is without merit.

¶10.   Warren County argues that it is not seeking equitable relief, and therefore this case

should be heard in circuit court. Issaquena aptly states that upon review, this Court looks to

the substance of the claim rather than the form of the pleadings. Trustmark, 865 So. 2d at

1152. “To determine whether a court has subject matter jurisdiction, we look to the face of

the complaint, examining the nature of the controversy and the relief sought.” RAS Family

Partners, 968 So. 2d at 928 (citing Durant v. Humphreys County Mem’l Hosp./Extended

Care Facility, 587 So. 2d 244, 250 (Miss. 1991); Hood v. Dep’t of Wildlife Conservation,

571 So. 2d 263, 266 (Miss. 1990) (overruled on other grounds)). Warren County’s pleading

in circuit court states in pertinent part, “Plaintiff lacks an adequate remedy at law for

defendant’s failure to comply with the Subdivision Ordinance and Floodplain Management

Ordinance and will suffer irreparable harm and injury if compliance is not required by

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mandatory and prohibitory injunction.” Additionally, Warren County seeks attorney’s fees,

expert fees, and consequential damages. Likewise, Issaquena requests that Warren County

be enjoined from taking further action against it pursuant to the Subdivision Ordinance and

Floodplain Management Ordinance. Despite the fact that Warren County seeks damages, the

substance of the claim seeks an equitable remedy. The damages sought by Warren County

are ancillary to the equitable remedy of injunction. This Court has stated, where there

appears from the face of the well-pleaded complaint an independent basis for equity

jurisdiction, our chancery courts may hear and adjudge law claims. Tillotson v. Anders, 551

So. 2d 212, 213 (Miss. 1989) (citing Penrod Drilling Co. v. Bounds, 433 So. 2d 916

(Miss.1983); Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454, 464 (Miss.1983);

Burnett v. Bass, 152 Miss. 517, 521, 120 So. 456 (1929)). In such circumstances, the legal

claims lie within the pendent jurisdiction of the chancery court. Tillotson, 551 So. 2d at 213.

Based on the underlying substance of the claims by Issaquena and Warren County, a court

of equity unquestionably has proper jurisdiction; therefore, the issue of damages falls within

the purview of the chancery court’s pendent jurisdiction.

¶11.   Warren County also argues that it has a right to a trial by jury as to the issue of

damages, and it maintains that “[t]he right of trial by jury shall remain inviolate . . . .” Miss

Const. art. 3, § 31. In support of this proposition, Warren County cites Burnette v. Hartford

Underwriters Ins. Co., 770 So. 2d 948 (Miss. 2000), in which this Court emphasized the

difference between having a jury trial in chancery court versus circuit court, stating that “[i]n

‘chancery court, with some few statutory exceptions, the right to jury is purely within the

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discretion of the chancellor, and if one is empaneled, its findings are totally advisory.’”

Burnette, 770 So. 2d at 952 (quoting Louisville & Nashville R.R. v. Hasty, 360 So. 2d 925,

927 (Miss. 1978)). See also McLean v. Green, 352 So. 2d 1312, 1314 (Miss. 1977). The

damages sought by Warren County, however, are those properly provided for under the

Subdivision Ordinance and the Floodplain Management Ordinance. If the chancellor found

that this ordinance does apply to the owners of Issaquena, then the issue of damages could

be decided by the chancellor pursuant to the amount written into the ordinance.2 Putting on

proof before a jury as to damages would be unnecessary where the amount properly provided

for pursuant to the ordinance is fixed. Since the issue of damages is an ancillary one, the

chancery court properly would have pendent jurisdiction over claims at law.

                                      CONCLUSION

¶12.   For the reasons discussed, jurisdiction of this action properly lies with the chancery

court. Therefore, the chancery court’s order to transfer to circuit court is reversed, and this

case is remanded to the Chancery Court of Warren County for further proceedings consistent

with this opinion.

¶13.   REVERSED AND REMANDED.

    SMITH, C.J., WALLER, P.J., DICKINSON, RANDOLPH AND LAMAR, JJ.,
CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE
WRITTEN OPINION. DIAZ, P.J., NOT PARTICIPATING.



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        For reasons unknown, copies of the Warren County Subdivision Ordinance and
Floodplain Management Ordinance are not included in the pleadings, nor elsewhere in the
record.

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