author: GRAVES, Justice,

text:
    Christopher MURRAY v. STATE of Mississippi.
    No. 2002-KM-01222-SCT.
    Supreme Court of Mississippi.
    March 4, 2004.
    Rehearing Denied May 6, 2004.

      Sorie S. Tarawally, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SMITH, P.J., CARLSON and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. Christopher Murray was convicted and sentenced in the Justice Court of Co-piah County for driving under the influence, first offense, and switched tag. More than 30 days later, Murray filed a notice of appeal to the Circuit Court of Copiah County. After a hearing, the circuit court dismissed Murray’s appeal as untimely. Hence, Murray appeals to this Court and raises the following issue on appeal:

I. WHETHER MURRAY’S APPEAL WAS PROPERLY DISMISSED AS UNTIMELY.

FACTS

¶ 2. On March 14, 2002, Christopher Murray was convicted and sentenced in the Justice Court of Copiah County for D.U.I. first offense, and switched tag. Murray registered a .121 reading for alcohol content in his blood based upon intoxi-lizer results. On April 23, 2002, Murray filed a notice of appeal with the Circuit Court of Copiah County. The prosecution filed a motion to dismiss that appeal as untimely. Murray filed a response to that motion which stated that he believed himself to have forty days, as stated by statute, Miss.Code Ann. § 99-35-1 (Rev.2000), as opposed to thirty days as stated in Rule 12.02A of the Uniform Rules of Circuit and County Court Practice (URCCC).

¶ 3. After a hearing, the circuit court dismissed Murray’s appeal as untimely. From that dismissal, Murray appeals to this Court.

DISCUSSION

¶ 4. Murray asserts that the circuit court erred in dismissing his appeal. Murray argues that his appeal was timely. Miss.Code Ann. § 99-35-1 (Rev.2000) allows a person adjudged guilty of a criminal offense by a justice court to appeal to circuit court within forty days of such judgment of conviction.

¶ 5. However, under URCCC 12.02A, which is applicable to the case at bar, Murray had thirty days to file a notice of appeal in the circuit court having jurisdiction.

¶ 6. Miss.Code Ann. § 99-35-1 ■ (Rev. 2000) provides in pertinent part:

In all cases of conviction of a criminal offense against the laws of the state by the judgment of a justice court, or by a municipal court, for a violation of an ordinance thereof, an appeal may be taken within forty (40) days from the date of such judgment of conviction ...

¶ 7. URCCC 12.02A (adopted effective May 1,1995) states in pertinent part:

Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal to the county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal and cost bond within 30 days of such judgment with the clerk of the circuit court having jurisdiction.

¶8. The issue presented before this Court is whether Section § 99-35-1 should take precedence over URCCC 12.02A.

¶ 9. This Court has held where there is conflict between a statute and a procedural rule created by the Supreme Court, the rule controls and the statute is void and of no effect. State v. Blenden, 748 So.2d 77, 88 (Miss.1999); see also Strickland v. State, 784 So.2d 957, 961 (Miss.2001) (plurality). Additionally, in Trull v. State, 811 So.2d 243, 247 (Miss.Ct.App.2000), the Court of Appeals correctly observed:

Our supreme court has the inherent power to adopt procedural rules governing the trial process, and any statute that conflicts with a rule established by the court is void, State v. Blenden, 748 So.2d 77 (¶ 38) (Miss.1999). Since the statute cited by Trull is inconsistent with Rule 3.04, the rule controls, the statute is void, and there is no error.

¶ 10. Murray relies on Sanchez v. City of Picayune, 656 So.2d 92, 94 (Miss.1995), where this Court held that the time to file an appeal is forty days. The Court in Sanchez cited § 99-35-1 and Rule 7.03 of the then — existent Uniform Criminal Rules of Circuit Practice as authority. However, the problem with relying on Rule 7.03 in Sanchez is that those rules are no longer applicable. The Uniform Criminal Rules of Circuit Practice were superseded by the Uniform Rules of Circuit and County Court Practice, adopted and effective May 1, 1995. These rules adopted a new deadline for filing an appeal, which is thirty days after judgment. URCCC 12.02A.

¶ 11. Although this Court has no choice but to hold that Murray’s filing is untimely, it is troubling that such an unfortunate result must obtain.

CONCLUSION

¶ 12. Pursuant to Rule 12.02A of the Uniform Rules of Circuit and County Court Practice, the circuit court did not err in dismissing Murray’s appeal as untimely. We affirm the judgment of the circuit court.

¶ 13. AFFIRMED.

PITTMAN, C.J., SMITH AND WALLER, P.JJ., COBB, EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Kenneth PEDEN, Sr. v. The CITY OF GAUTIER, Mississippi.
    No, 2002-CP-00546-SCT.
    Supreme Court of Mississippi.
    April 1, 2004.
    Kenneth Peden, Sr., appellant, pro se.

      Robert G. Ramsay, Pascagoula, Jerry L. Mills, Ridgeland, attorneys for appellee.
    Before SMITH, C.J., COBB, P.J., and CARLSON, J.
   CARLSON, Justice,

for the Court.

¶ 1. This case comes to us after the trial court granted the City of Gautier’s Motion For Summary Judgment. Plaintiff Kenneth Peden, Sr., filed a Motion For Injunc-tive Relief and Motion for Declaratory Relief in the Jackson County Chancery Court seeking to enjoin the enforcement of the chancery court’s order in a separate action approving the City’s annexation ' of the Gautier Utility District. Chancellor Jaye A. Bradley found that the Special Chancellor’s order in the annexation case was dis-positive of the issues raised in Peden’s pleadings and that summary judgment was thus appropriate. We agree.

FACTS AND PROCEEDINGS IN THE CHANCERY COURT

¶ 2. The City of Gautier filed á complaint for annexation, including the territory of the Gautier Utility District (GUD) on August 30, 1999. The Jackson County Chancery Court, Special Chancellor Donald Patterson, found that the annexation was reasonable. Kenneth Peden, Sr., a duly elected Commissioner of the GUD, filed several post-trial motions, including (1) a Motion For Injunctive Relief and Motion For Declaratory Relief and (2) a Motion for New Trial. The first motion was withdrawn by Peden. The second motion was denied. An appeal was filed by Brian Britt to this Court, which this Court dismissed. Britt v. City of Gautier, No. 2000-AN-01129-SCT.

¶ 3. In a separate and subsequent action commenced in the Jackson County Chancery Court, Peden filed a Motion For In-junctive Relief and Motion for Declaratory Relief, identical to the motion withdrawn in the annexation case. That motion was filed pro se and reflected that Peden was an elected commissioner of the GUD. In essence, the motion sought an injunction preventing the “proposed assumption of the GUD by the City of Gautier” because of violations of (1) Miss.Code Ann. § 21-27-7 for failure to conduct an election; (2) Local and Private Law Chapter No. 923, H.B. 1376, dated 1987, and Chapter 831, H.B. 1641, dated 1991, for failure to conduct an election and to submit the matter to the U.S. Attorney General; (3) H.B. 1641 because an area known as “Grasshopper Point” was exempted; and (4) H.B. 1641, Section 100 of the Constitution of the State of Mississippi, and Miss.Code Ann. §§ 19-5-151 et seq. for failure of the chancellor to make provision for or a finding relating to the assumption of the GUD.

¶ 4. The matter was removed from the chancery court’s active docket due to inactivity, but was later reinstated at Peden’s request. Although no minutes of GUD were provided in the record, the testimony reflects that GUD’s Board of Directors (“Board”) hired David Kihyet to represent the interests of the Board and/or Peden. The City filed a Motion for Summary Judgment claiming that Peden’s action was barred by the doctrine of res judicata.

¶ 5. Thereafter, several meetings of the Board were conducted. The final meeting was held the night before the hearing on the summary judgment motion where, by a vote of 4-0 (Peden abstaining), the Board voted to intervene in Peden’s lawsuit. Also, by a vote of 4-1, the Board voted to enter into an Agreed Order with the City finding: (1) that Miss.Code Ann. § 21-27-7 “has no application to the assumption of operation and maintenance and the assets, liabilities and other contractual obligations” of GUD by the City; (2) that Chancellor Patterson’s ruling in the annexation case complied with all laws cited in Peden’s complaint and is dispositive of all issues raised in that complaint; (3) that Section 100 of the Constitution and §§ 19-5-151 et seq. had no application to the assumption of operation and maintenance and the assets, liabilities and other “contractual obligations” of GUD by the City; (4) that the City was in the process of obtaining preclearance under Section 5 of the Voting Rights Act of 1965 and upon receipt of preclearance, the City would “assume the operation and maintenance of the facilities” and assume the “assets, liabilities, and other contractual obligations” of GUD; and (5) that upon that assumption, the GUD and its Board would no longer have any authority or liability and the GUD will be dissolved. At the hearing, Peden filed a motion for continuance, which was denied.

¶ 6. Because Peden refused to join in the agreed order, the court proceeded with the hearing on the summary judgment motion. At the same time, the court also heard Britt’s Motion to Intervene. The only testimony taken was that of Ray Vecehio, the author of the original bill which created the GUD. The chancellor also took judicial notice of the court file in the annexation proceedings. After a brief recess, the chancellor issued a ruling from the bench in which the City’s summary judgment motion was granted. In so ruling, the chancellor stated that the issues raised in Peden’s motion were already decided by Chancellor Patterson’s ruling in the annexation case, with the exception of the Voting Rights Act preclearance issue. However, the City was prevented from seeking pre-clearance until all pending litigation was finalized in the trial courts, including this pending litigation. Therefore, this issue was premature. Because summary judgment was appropriate, Britt’s motion for intervention was ruled moot. Peden appeals the judgment entered on March 19, 2002, raising four issues; however, in the interest of judicial efficiency, we shall combine two of those issues.

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF THE CITY.

¶ 7. In reviewing a trial court’s grant of summary judgment, this Court’s standard of review is well settled:

As to the review of a trial court’s granting of a motion for summary judgment under Rule 56, we employ a de novo standard of review and the motion should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. [Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209(116) (Miss.2001)] (citations omitted). See also Brown v. Credit Ctr., Inc., 444 So.2d 358, 362-65 (Miss.1983) and its progeny.

Richardson v. Sara Lee Corp., 847 So.2d 821, 823(¶ 5) (Miss.2003). Peden asserts that because the City put on no witnesses, the City offered no evidence in this matter. This Court disagrees. The City offered the trial court’s entire three-volume record in the annexation case as proof that the issues contained in Peden’s complaint were properly before Chancellor Patterson. “The trial court may take judicial notice of available evidence in its own court files.” Gulf City Fisheries, Inc. v. Bobby Kitchens, Inc., 518 So.2d 661, 664 (Miss.1988) (citing Johnson v. Ford Motor Co., 354 F.Supp. 645, 647 (N.D.Miss.1973); 29 Am. Jur.2d Evidence § 57, at 89-90 (1967); 31 C.J.S. Evidence § 50(1), at 1018 & § 50(2), at 1022). See also Miss. R. Evid. 201.

¶ 8. We note that Chancellor Patterson’s ruling in the annexation matter is not contained in the record on appeal.

Mississippi appellate courts may not consider information that is outside the record. Dew v. Langford, 666 So.2d 739, 746 (Miss.1995). The trial court’s rulings are presumed correct, and this presumption will prevail unless the record shows otherwise. Id.; Myers v. Miss. Farm Bureau Mut. Ins. Co., 749 So.2d 1173, 1174 (Miss.Ct.App.1999).

Hardy v. Brock, 826 So.2d 71, 76 (¶ 26) (Miss.2002). Thus, Peden has offered no evidence sufficient to show that summary judgment was improper. We find that summary judgment was proper where the chancellor found that a specially appointed chancellor had already found that the annexation was reasonable and that Peden’s complaint contesting the annexation was barred by the doctrine of res judicata. The only remaining issue concerned pre-clearance under the Voting Rights Act, which was premature while this litigation was pending in the trial court. Vecchio’s testimony was insufficient to defeat summary judgment. Vecchio offered his lay opinion as to what the City had to do in order to successfully complete the annexation. This, too, was included in Chancellor Patterson’s order concerning the annexation.

¶ 9. Inasmuch as there are no disputed facts, the City met its burden, and summary judgment was properly granted.

II. WHETHER THE CHANCELLOR ERRED IN REFUSING TO GRANT A CONTINUANCE.

¶ 10. Peden filed his Motion for Continuance on the morning of the hearing, citing that he was in poor health and that he was no longer represented by counsel. We review the chancellor’s decision under an abuse of discretion standard:

“The granting of a continuance is largely a matter within the sound discretion of the trial court and unless manifest injustice appears to have resulted from a denial, this Court should not reverse.” Thomas v. Hilburn, 654 So.2d 898, 904 (Miss.1995) (quoting Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss.1993)). This Court has further held that the trial court may exercise “reasonable latitude” in the setting and continuance of cases. Thomas, 654 So.2d at 904 (citing Watts v. Pennington, 598 So.2d 1308, 1312 (Miss.1992)).

Morgan v. Greenwaldt, 786 So.2d 1037, 1045 (¶ 26) (Miss.2001).

¶ 11. Peden argues that the matter should have been continued because he was in poor health and taking medication. The record reflects that Peden left the courtroom at one point to “go and make a phone call to [his] cardiologist.” However, the record does not reflect how long he was gone, but does reflect that after the court called a recess, Peden was in the courtroom and actively participated in the hearing before the trial court, including questioning his own witness.

¶ 12. In furtherance of his argument, Peden asserts that he was “forced to go forward unrepresented by counsel due to a sudden change of events that had occurred only 12 hours earlier and, consequently, caused Peden’s attorney to now become his adversary and oppose Peden at the hearing and act against Peden’s interest to the extent that his attorney actually cross-examined the sole witness called by Pe-den.” The chancellor stated that Peden had been acting pro se since his motion was filed June 29, 2000, through the hearing of March 19, 2002, with the exception of a brief appearance by Kihyet. Additionally, Kihyet represented the Board, of which Peden was a member, and on behalf of the Board entered into the Agreed Order, which would resolve this matter on its behalf.

¶ 13. Based upon the foregoing, we cannot say that the chancellor abused her discretion in denying the motion for continuance. Therefore, this issue is without merit.

III. WHETHER THE CHANCELLOR ERRED IN THE ENTRY OF THE AGREED ORDER BETWEEN THE CITY AND THE BOARD.

¶ 14. Peden asserts in this brief that the GUD was never granted leave to intervene and, therefore, was never a party to this litigation. Peden’s reliance on Dillon v. Allen-Parker Co., 223 Miss. 359, 78 So.2d 357 (1955), is misplaced. In Dillon, although the Mosseler Acceptance Company was not named as a defendant, it was permitted to enter an appearance and file a motion to dismiss for want of territorial jurisdiction. The Mosseler Acceptance Company asserted that it was doing business as Allen-Parker Company, the named defendant. Because Dillon failed to raise an objection at the trial court level, he was barred from doing so on appeal and the dismissal was affirmed. Dillon, 78 So.2d at 357.

¶ 15. In the case sub judice, Peden did not object in the trial court to the intervention of the other commissioners. The remaining commissioners filed a Motion to Intervene and for Joinder of Parties Pursuant to Miss. R. Civ. P. 18, 20 and 24. The Agreed Order entered by the trial court states that the commissioners “intervene in this action for'the purpose of the entry of this Order.” Peden failed to object in the trial court, and the remaining commissioners were permitted to intervene pursuant to the Agreed Order. Therefore, this issue is without merit.

CONCLUSION

¶ 16. For the foregoing reasons, we affirm the summary judgment granted in favor of the City of Gautier.

¶ 17. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., GRAVES AND DICKINSON, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.


author: WALLER, Presiding Justice,

text:
    MISSISSIPPI MANUFACTURED HOUSING ASSOCIATION v. BOARD OF ALDERMEN OF the CITY OF CANTON, Mississippi.
    No. 2002-CA-02092-SCT.
    Supreme Court of Mississippi.
    April 15, 2004.

      Powell G. Ogletree, Jr., Jackson, attorney for appellant.
    Wesley Thomas Evans, Ridgeland, attorney for appellee.
    Before WALLER and COBB, P.JJ., and GRAVES, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. The Mississippi Manufactured Housing Association (MMHA) filed a bill of exceptions in the Circuit Court of Madison County appealing the decision of the Board of Aldermen of the City of Canton to adopt a zoning ordinance and map restricting manufactured housing 'developments in the City. The circuit court dismissed MMHA’s bill of exceptions, finding that MMHA did not have standing to challenge the Board’s decision. MMHA appeals. Finding that MMHA has standing to challenge the City’s zoning decision, we reverse the circuit court’s judgment and remand for further proceedings.

FACTS

¶ 2. In anticipation of the new Nissan plant and the increase in population that would accompany it, the City of Canton reviewed its comprehensive plan, zoning map and zoning ordinances. On August 7, 2001, the City held a public hearing on the proposed zoning ordinance. At the hearing, the MMHA, a non-profit corporation that represents the manufactured housing industry in Mississippi, objected to any attempts to create or divide residential zones based on building construction methods or types.

¶ 3. The executive director of the MMHA made a presentation to the Board of Aldermen and the Mayor about manufactured housing. Two attorneys representing the MMHA were also allowed to speak before the Board and the Mayor. The Board voted to approve the comprehensive plan.

. ¶ 4. MMHA filed a bill of exceptions asking the court to set aside the city’s decision. The circuit court heard oral argument on the City’s motion to dismiss and dismissed MMHA’s bill of exceptions, finding MMHA did not have standing to challenge the Board’s decision. The circuit court’s order stated:

This court finds Belhaven Improvement Association Incorporated v. City of Jackson, 507 So.2d 41 (Mississippi 1967[Miss.1987]) (sic) is the controlling case authority. The Supreme Court of this State found that the Homeowner’s Association did in fact have standing to sue or participate in the process. It is evident that the Belhaven Association had members who were residents and landowners of. the area in question. In the instant case, this is not so. Mississippi Manufactured Housing Association does not own property in the area and its members are not residents of the area. The interest of Mississippi Manufactured Housing Association appears to be strictly pecuniary in nature and that is to further the sales of its members who are manufacturers of a certain type of housing unit. The interest of these manufacturers may not be in the best interest of the City of Canton or its citizens or in the orderly logical development of the highest and best use of available land, but quiet (sic) likely lies in their interest in their own profit or bottom line. It is the opinion of this Court that the associations/persons intended to be afforded standing to sue were associations/persons who had some property interest in the affected area. Those are the associations/persons who would be directly harmed or injured by legislative actions of governing authorities and thereby would be the ones who could or would suffer an adverse effect different from the general public.... The Court also recognized and relied on the Federal View- “Thus we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interest it seeks are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members of in the lawsuit.” Belhaven v. City of Jackson. None of the above requisites are found in the case at bar.

¶ 5. MMHA appeals, contending that it is an aggrieved party with. standing to challenge the City’s zoning decision. It also argues that the City waived its objection as to MMHA’s standing and that the City is judicially estopped from raising the issue of MMHA’s standing.

DISCUSSION

¶ 6. A motion to dismiss raises an issue of law. Burgess v. City of Gulfport, 814 So.2d 149, 151 (Miss.2002) (collecting authorities). We review questions of law de novo. Id. (citing T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995)). When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Id. at 1342.

I. WHETHER MMHA HAS STANDING TO APPEAL THE CITY’S ZONING DECISION.

¶ 7. Miss.Code Ann. § 11-51-75 (Rev. 2002) states “any person aggrieved by a judgment of ... municipal authorities ... may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment.”

¶ 8. Mississippi’s standing requirements are more relaxed than the stringent case or controversy requirements for standing in federal courts under Art. Ill, § 2 of the United States Constitution. Burgess, 814 So.2d at 152-53. In Mississippi, parties have standing to sue when they assert a colorable interest in the subject matter of the litigation or experience an adverse affect from the defendant’s conduct. Id.

¶ 9. In Belhaven Improvement Ass’n, Inc. v. City of Jackson, 507 So.2d 41 (Miss.1987), we addressed the issue of whether a neighborhood improvement association had standing to appeal a city’s zoning decision on behalf of members of the neighborhood. The circuit court dismissed the appeal, finding that the society was not an aggrieved party because it did not own any property or have an interest in any property that would be affected by zoning. We noted that jurisdictions throughout the country were divided.

¶ 10. Some jurisdictions have adopted the New York rule, which requires a court to consider four factors: (1) the capacity of the organization to assume an adversary position, (2) the size and composition of the organization as reflecting a position fairly representative of the community or interest which it seeks to protect, (3) the adverse effect of the decision sought to be reviewed on the group represented by the organization as within the zone of interests sought to be protected, and (4) the availability of full participating membership in the organization to all residents and property owners in the relevant neighborhood. See Douglaston Civic Ass’n v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317 (1974).

¶ 11. Other jurisdictions have adopted the federal rule. An association has standing to bring suit on behalf of its members when (1) its members would otherwise have standing to sue in their own right, (2) the interest it seeks are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383, 394 (1977).

' ¶ 12. In Belhaven, we set out our requirements for standing:

For standing, the person(s)' aggrieved, or members of the association, whether one or more, should allege an adverse effect different from that of the general public. Also, they should show the fact of a representative capacity, particularly of those adversely affected. An association should not be-permitted to close out minority members, cutting off their views entirely, particularly where the effect on some individuals would be greater than effect on the majority. Membership in the association should be limited to residents and property owners.

507 So.2d at 47. The Court then vacated the trial court’s judgment and remanded for an evidentiary hearing to determine the question of standing. Id. In Tallahatchie Valley Electric Power Ass’n v. Miss. Propane Gas Ass’n, 812 So.2d 912 (Miss.2002), citing Belhaven, we applied the federal test in finding that an association had standing to sue on behalf of one of its members. There, we found that MPGA, a non-profit association representing propane companies, had standing to bring suit when one of its members had been adversely affected by TVEPA, a non-profit association incorporated under the Mississippi Electric Power Association Law. TVEPA began investing in the propane business in efforts to keep its rates down and purchased DeSoto Gas. MPGA filed a complaint for injunctive relief and declaratory judgment against TVEPA. The trial court enjoined TVEPA from owning or operating DeSoto Gas.

¶ 13. One of the numerous issues on appeal was whether MPGA had standing to challenge TVEPA’s ownership of DeSo-to Gas. MPGA argued that it had standing inasmuch as one of its members, Dowdle Butane Gas Co., had standing to sue TVE-PA because it was a member-owner of TVEPA and could challenge any ultra vires act of TVEPA.

¶ 14. Applying the federal test to determine whether MPGA had standing, we found that MPGA had standing due to its representation of Dowdle Butane Gas Co., which was a member of MPGA and of TVEPA. Since Dowdle Butane could challenge TVEPA’s actions, MPGA could also. MPGA asserted interests relevant to its purpose because Dowdle Butane had been adversely affected by TVEPA’s actions. id. at 922.'

¶ 15. Applying the three-pronged federal test to the present case, we find that MMHA has standing to challenge the city’s zoning decision:

A. Whether MMHA’s members would otherwise have standing to sue in their own right.

,¶ 16. The issue under the first prong of the federal test is whether a member of MMHA would have standing to challenge the City’s zoning decision. MMHA asserts that one of its members owns property and manages a retail manufacturing housing center in the City of Canton.

¶ 17, Other jurisdictions have found associational standing in similar circumstances. _ In Colorado Manufactured Housing Ass’n v. Pueblo County, 857 P.2d 507 (Colo.Ct.App.1993), the plaintiffs, a manufactured housing association, dealers, and builders brought suit challenging a county’s zoning restrictions on manufactured housing. The plaintiffs had contracted with a buyer to purchase a mobile home. In accordance with the local zoning resolution, the county denied the buyer’s application for a permit to install the manufactured home on his property. The buyer then rescinded the contract with the manufactured home dealer. The plaintiffs alleged actual and threatened injury; specifically, that they suffered injury by the loss of the sale to the buyer and that their future sales would be adversely affected. The trial court dismissed the case, finding that the plaintiffs did not have standing. Id. at 510. On appeal the court found that the plaintiffs had standing, stating that the plaintiffs allegations of threatened injury were sufficient for purposes of standing. Id. at 511. The plaintiffs had already lost one sale and would lose more in the future.

¶ 18. Here, the first federal test factor is satisfied. Members of MMHA have standing under Mississippi’s liberal standing requirements to challenge the City’s zoning decision. Members of MMHA will experience an adverse effect from the City’s zoning decision that restricts the area where manufactured homes can be placed. The zoning decision will no doubt have a direct negative economic impact on any member of MMHA that sells manufactured homes in the City because their buyer’s market would be diminished.

B. The interests MMHA seeks to protect are germane to the organization’s purpose.

¶ 19. There is no doubt that MMHA’s challenge to the City’s zoning restrictions is of importance to MMHA’s members. MMHA is seeking to have a zoning ordinance struck down that will likely diminish business for its members. MMHA stated in its position statement presented to the Mayor and Board of Aldermen that, “Development, zoning and planning issues concerning manufactured housing issues are of critical importance to MMHA.”

C. Neither the claim asserted nor the relief requested requires the participation of individual members of the suit.

¶ 20. This prong has been interpreted as follows:

[Wjhether an association has standing to invoke the court’s remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supported that the remedy, if granted, will inure to the benefit of those members of the association actually injured.

Hunt, 432 U.S. at 343, 97 S.Ct. at 2441.

¶21. When an association seeks only prospective relief and raises only issues of law, it need not prove the individual circumstances of its members to obtain that relief. The third element of associational standing is met. Tex. State Employees Union/CWA Local 6184 v. Tex. Workforce Comm’n, 16 S.W.3d 61, 69 (Tex.App.2000).

¶ 22. Adopting the federal test to determine whether an association has standing to sue on behalf of its members, we find that MMHA has standing to challenge Canton’s zoning decision. Thus, the circuit court erred in dismissing MMHA’s bill of exceptions for lack of standing by MMHA.

II. WHETHER THE CITY IS ES-TOPPED FROM CHALLENGING THE MMHA’S STANDING AFTER THE MMHA PARTICIPATED IN THE CITY HEARING.

III. WHETHER THE CITY HAS WAIVED ANY CHALLENGE TO MMHA’S STANDING.

¶ 23. Because we find Issue I controlling, we will not address Issues II and III.

CONCLUSION

¶ 24. We expressly adopt the federal test for associational standing to be interpreted under Mississippi’s more liberal standing requirements and find that MMHA has standing to appeal the City of Canton’s zoning decision. Thus, the circuit court erred in dismissing MMHA’s bill of exceptions for lack of standing by MMHA. Therefore, we reverse the circuit court’s judgment, and we remand this case to the circuit court for further proceedings consistent with this opinion.

¶ 25. REVERSED AND REMANDED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ„ CONCUR. DIAZ, J., NOT PARTICIPATING.

      . MMHA is a Mississippi nonprofit corporation serving the manufactured housing industry in Mississippi. MMHA's membership includes retail dealers, manufacturers, community/park owners, service/supply companies, lenders, insurers, developers and friends of the industry. MMHA contends that it is the single voice of the manufactured housing industry in Mississippi. One of MMHA's goals is to educate the public and government officials concerning the quality, safety, and affordability of manufactured homes.

      . Other jurisdictions have also adopted the federal test to determine associational standing. See Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 783 So.2d 792 (Ala.2000); 312 Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 47 P.3d 383 (2002); Aged Hawaiians v. Hawaiian Homes Comm’n, 78 Hawaii 192, 891 P.2d 279 (1995); Louisiana Hotel-Motel Ass’n, Inc. v. East Baton Rouge Parish, 385 So.2d 1193 (La.1980); Modified Motorcycle Ass’n of Mass., Inc. v. Commonwealth, 60 Mass.App.Ct. 83, 799 N.E.2d 597 (2003); Missouri Outdoor Advertising Ass’n, Inc. v. Mo. State Hwys. & Transp. Comm’n, 826 S.W.2d 342 (Mo.1992); Forest Guardians v. Powell, 130 N.M. 368, 24 P.3d 803 (Ct.App.2001); Creek Pointe Homeowner's Ass’n, Inc. v. Happ, 146 N.C.App. 159, 552 S.E.2d 220 (2001); Beaufort Realty Co. v. Beaufort County, 346 S.C. 298, 551 S.E.2d 588 (Ct.App.2001); Parker v. Town of Milton, 169 Vt. 74, 726 A.2d 477 (1998).

      . MMHA concedes there is nothing in the record that indicates it has á member within the City of Canton.


author: DICKINSON, Justice,

text:
    TRIPLE “C” TRANSPORT, INC. and Herbert Henry v. Richard DICKENS.
    No. 2002-IA-01094-SCT.
    Supreme Court of Mississippi.
    April 22, 2004.

      David M. Sessums, attorney for appellants.
    Grady L. McCool, Joseph E. Roberts, Jr., Eugene Coursey Tullos, attorneys for appellee.
    Before SMITH, C.J., GRAVES and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. This interlocutory appeal requires us to evaluate the progression of events following a vehicular accident to determine whether the plaintiff is barred by the statute of limitations from pursuing claims against one or both defendants.

BACKGROUND

¶ 2. In Mississippi, there exist two unrelated companies with similar “Triple ‘C’ ” names. One is Triple “C” Transport, Inc., owned by Clyne Buffington, P.O. Box 346, New Augusta, MS. The other is Triple “C” Trucking, Inc., whose agent for process is Charles Richards, 142 West Pemble Road, Merigold, Mississippi, 38759.

¶ 3. On October 6, 1994, an accident occurred involving a car driven by Richard Dickens and a truck owned by Triple “C” Transport, Inc. The accident report lists Herbert Henry as the driver of the truck; “Triple C Trucking” as Henry’s employer, and Clyne Buffington as the owner of the truck.

¶ 4. Following the accident, Dickens employed counsel who, on October 11, 1994, sent a letter to Henry and “Triple ‘C’ Trucking,” mailed to Triple “C” Transport, Inc.’s address in New Augusta. The letter advised of counsel’s representation of Dickens.

¶ 5. On October 17, 1994, Great River Insurance Company sent Dickens’ counsel a letter acknowledging receipt of the October 11th letter of representation. This and other letters from Great River referred to their insured as “Triple ‘C’ Trucking.”

¶ 6. On July 14, 1997, following unsuccessful settlement discussions with Great River, Dickens filed suit in the Circuit Court of Smith County, naming “Triple ‘C’ Trucking Company and Herbert Henry” as defendants. Paragraph 2 of the complaint states:

That the Defendant, Triple “C” Trucking Company, is a resident corporation of the State of Mississippi and may be served with process by serving its registered agent for service of process Charles Richard, 142 West Pemble Road, Marigold, Mississippi 38759.

¶ 7. In an attempt to serve process on Triple “C” Transport, Inc., Dickens' sent the complaint and summons via certified mail, addressed to Charles Richards, 142 West Pemble Road, Merigold, Mississippi, 38759. Charles Richard signed for the certified mail on September 15,1997.

¶ 8. On or about September 18, 1997, an attorney for Triple “C” Trucking sent a letter to counsel for Dickens, stating that Triple “C” Trucking Company would be filing bankruptcy. The letter also stated, “Mr. Richard further advises me that the Codefendant, Herbert Henry, does not drive for the corporation and he does not know who this person is.”

¶ 9. October 6, 1997, marked three years following the accident. As of that date, Triple “C” Transport had not been named as a defendant, and service of process had not been attempted on Henry or Triple “C” Transport, Inc., in New Augusta.

¶ 10. On January 29, 1998, Dickens filed a Motion to Partially Lift the Automatic Stay in the Triple “C” Trucking bankruptcy proceeding. For reasons unrevealed by the record, it appears that no one involved in the Triple “C” Trucking bankruptcy proceeding informed counsel for Dickens that Triple “C” Trucking had not been involved in the subject accident and, on March 4, 1998, the automatic stay was lifted to the extent of liability insurance coverage.

¶ 11. Counsel for Dickens mailed, via certified mail, the summons and a copy of the complaint, to Henry, who signed for it on March 23,1998.

¶ 12. On April 28, 1998, Henry filed a Motion to Dismiss, alleging insufficient service of process and improper venue. Henry’s motion pointed out that the “Plaintiff first issued and served Summons on Defendant Henry more than eight months after filing his Complaint.”

¶ 13. Thereafter, finally realizing that two Triple “C” companies existed and that Triple “C” Transport in New Augusta was the proper Triple “C” defendant to be sued, counsel for Dickens sent a copy of the complaint, via certified mail, addressed to Triple “C” Trucking Company, Mr. Clyne Buffington, Owner; P.O. Box 346, New Augusta, Mississippi 39462. The certified mail was signed for on June 19,1998.

¶ 14. On September 20, 1999, defendants filed separate answers, both raising the affirmative defense of statute of limitations, and on December 26, 2001, both defendants filed motions to dismiss based upon Miss.Code Ann. § 15-1-49 (Rev. 2003). These motions were denied by order dated June 24, 2002, and it is from this order that interlocutory appeal was granted. See M.R.A.P.5.

DISCUSSION

Standard of Review.

¶ 15. “A trial court’s finding of fact on the existence of good cause for the delay in service of process has been deemed ‘a discretionary ruling ... and entitled to deferential review1 on appeal.” Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002) (citation omitted). ‘When reviewing fact-based findings, we will only examine whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. However, a decision to grant or' deny an extension of time based upon a question of law will be reviewed de novo.” Id.

¶ 16. In this case, there are two defendants, each with a separate argument as to why the statute of limitations prevents further litigation of the appellee’s claims.

The Claims Against Triple “C” Transport.

¶ 17. Upon review of the record, we can only conclude that Dickens filed suit against the wrong defendant. He allowed the statute of limitations to run before attempting to cure the error by having the complaint and summons (which continued to name the incorrect defendant) served upon the company which should have been named as defendant in the first instance.

¶ 18. When the accident occurred, Dickens can claim that he was misled by the accident report because in listed “Triple ‘C’ Trucking” as Henry’s employer. However, the accident report also named “Clyne Buffington” as the owner of the truck, and the address for both Buffington and Henry was listed in New Augusta, MS.

¶ 19. Counsel for Dickens was aware of the New Augusta addresses. He mailed a letter to Herbert Henry and “Triple ‘C’ Trucking” at their respective New Augusta addresses. ^ When filing suit, however, counsel for Dickens apparently searched the corporate records in the office of the Secretary of State, and discovered “Triple ‘C’ Trucking Company” with an address in Merigold, Mississippi. The complaint names Charles Richard as the registered agent. Counsel for Dickens apparently did not notice at that time that also listed was Triple “C” Transport Company, with an address in New Augusta, and with a registered agent named Clyne Buffington.

¶20. Once suit was filed and served upon the wrong Triple “C” company, counsel for Dickens received a letter from Lev-ingston & Levingston, P.A., the attorneys preparing a bankruptcy petition for Triple “C” Trucking Company. In that letter, dated September 18, 1997 (eighteen days before the three-year anniversary of the accident), counsel for Dickens was informed, “Mr. Richard further advises me that the Codefendant, Herbert Henry, does not drive for the corporation and he does not know who this person is.” Any equitable or “fairness” argument which may have been available to Dickens was, at that point, lost by his failure to investigate further. The record is silent as to any follow-up letters or phone calls regarding this revelation, which should have been quite disturbing just days before the running of the statute of limitations.

¶ 21. The complaint was served via certified mail upon the registered agent for Triple “C” Trucking Company. This is another unfortunate error which cannot be cured by equitable or “fairness” arguments. Service of process may not be had by certified mail upon an in-state defendant. Rule 4 of the Mississippi Rules of Civil Procedure, provides that process “may be had upon a domestic or foreign corporation ... by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.” Miss. R. Civ. P. 4(d)(4). Certified mail may be used to serve process upon persons “outside this state.” Miss. R. Civ. P. 4(c)(5). The comment to that rule provides that “[t]he certified mail procedure is not available to serve a person within the state.”

¶ 22. Thus, the sending of the complaint and summons, via certified mail, to the wrong .corporation did not serve to bring Triple “C” Transport Company into court on September 15,1997.

¶ 23. Dickens’s counsel argues that he realized, on or about June 19, 1998, that two Triple “C” Trucking companies existed and that the New Augusta company was the correct defendant. He further points out that Dickens then sent a copy of the complaint via certified mail delivery to Triple “C” Trucking Company, Mr. Clifford Buffington, owner, P.O. Box 346, New Augusta, Mississippi 39462. This presents several problems for Dickens.

¶ 24. First, Dickens made no effort to amend the complaint to name the correct defendant.

¶ 25. Second, the record does not indicate that a summons was issued and included with the .complaint which was served upon Buffington.

¶ 26. Third, whatever was served, was served via certified mail, which - was no service at all upon an in-state defendant.

¶ 27. Finally, the attempted service occurred more than three years following the accident. ■ •

¶28. In view of these incurable problems, the statute of limitations expired pri- or to any claim being filed against Triple “C” Transport Company, and any such claim is now barred.

'Herbert Henry.

¶ 29. The analysis regarding Henry is slightly different, but requires the same conclusion.

¶ 30. The complaint was filed against Henry on July 14, 1997. No explanation is offered by Dickens as to why he made no attempt to serve Henry with process at the same time he attempted service upon Triple “C” Trucking Company. Dickens implies that service of process was not pursued because of the bankruptcy of Triple “C” Trucking Company. This is no explanation at all, since the bankruptcy of one defendant would have no affect at all on Dickens’s responsibility or ability to serve pr.ocess and proceed against a different defendant. Nevertheless, we will analyze the facts as presented to us in view of the arguments offered by Dickens.

The Statute of Limitations.

¶ 31. Mississippi law provides that “[a]ll actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of action accrued, and not after.” Miss. Code Ann. § 15-1-49(1) (Rev.2003).

¶ 32. In the event the action is commenced within the period of limitation, the statute of limitations stops running, for a time. Watters v. Stripling, 675 So.2d 1242, 1244 (Miss.1996) (“The filing of an action tolls the statute of limitations until the expiration of the 120-day service period.”).

¶ 33. Mississippi law further provides:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

M.R.C.P. 4(h) (emphasis added).

¶ 34. In the event process is not served during the 120 day service period, the statute begins to run again. Holmes, 815 So.2d at 1185. In Holmes, this Court held that “[fjiling of a complaint tolls the applicable statute of limitations 120 days, but if the plaintiff fails to serve process on the defendant within that 120-day period, the statute of limitations automatically begins to run again when that period expires.” Id. In order to further toll the statute of limitations, the plaintiff must then refile the complaint before the statute of limitations ends, or show good cause for failing to serve process on the defendant within that 120 day period; otherwise, dismissal is proper. Id., citing Watters, 675 So.2d at 1244; Brumfield v. Lowe, 744 So.2d 383, 387 (Miss.Ct.App.1999).

¶ 35. Here, the accident occurred on October 6,1994. Dickens filed suit on July 14, 1997, 84 days before the expiration of the three years. Dickens did not attempt process on Henry during the 120 days, which ended November 11, 1997. Since process was not served on Henry as of that date, the statute of limitations began to run again, and it expired 84 days later, on February 3,1998.

¶ 36. A summons was issued on February 24,1998, returnable to Dickens’s attorney. The summons was returned un-served, and was filed on March 4, 1998. Dickens then, on March 19, 1998, sent the complaint and summons to Henry via certified mail, and Henry signed for them on March 23,1998.

¶ 37. Henry then moved for dismissal, claiming that service of process was defective. Nevertheless, the record does not reflect that Henry has ever been properly served with process.

¶ 38. This case now turns on the issue of whether Dickens has demonstrated “good cause” for failing to serve process within the 120 day period, thereby allowing him to properly serve Henry and proceed with his action.

Good Cause for Failure to Serve Process.

¶39. Even assuming arguendo that Henry was properly served with process on March 23, 1998, when he signed for the certified mail, the statute of limitations had already run on February 3, almost two months before. However, if a plaintiff who fails to serve process during the 120-day period can show “good cause” why proper service was not obtained, the claim may be pursued, but “[t]he Plaintiff bears the burden of establishing good cause.” Holmes, 815 So.2d at 1185.

¶ 40. The trial court stated that the motion to dismiss was denied “due to some confusion existing in the file at the outset of this matter regarding the identity of the defendant.” Even assuming this was an acceptable explanation as to Triple “C” Transport Company, it certainly would not apply to Henry. There was no confusion as to his identity or address. For reasons not apparent to this Court, Dickens did not even attempt to serve process on Henry until February 24,1998, which was 21 days after the statute of limitations had expired. Dickens offers no explanation or cause — good, bad or otherwise — for this failure. We now turn to Dickens’s discussion of “good cause.”

Two Triple “C” Companies.

¶ 41. The first argument offered by Dickens as to “good cause” implies that Dickens and his counsel were misled by the confusing names of two Triple “C” corporations, and also by the letters from Great River Insurance Co., referring to their insured as Triple “C” Trucking.

¶ 42. Dickens cites Holmes in support of his “good cause” argument. In Holmes, this Court held that, “at a minimum, a plaintiff attempting to establish ‘good cause’ must show ‘at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.’ ” Id. at 1186 (quoting Watters, 675 So.2d 1242, 1248). This Court also stated that “the rule should not be used to penalize plaintiffs who demonstrate reasonable diligence in effecting timely service on defendants” Id. Holmes further held that “good cause” may be found:

when the plaintiffs failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or informa pauper-is.

Id. (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 842 (3d ed.2000)).

¶ 43. Therefore, Dickens urges us to determine whether the defendants engaged in misleading conduct, whether the plaintiff acted diligently in trying to effect service and whether there were understandable mitigating circumstances. We shall consider each of these in turn,

a. Misleading Conduct

¶ 44. There are, claims Dickens, understandable mitigating circumstances regarding the proper name of the defendant Triple “C” Transport. We are urged to take into account the assertion that Triple “C” Transport and Great River both had notice that Dickens believed the name of the company to be Triple “C” Trucking. Blame is alleged against Triple “C” Transport and Great River for their failure to correct Dickens’s mistaken belief that Triple “C” Trucking was the proper name of the defendant.

¶ 45. Dickens misses the point. If the only deficiency in this case was that the plaintiff misnamed the defendant, then Dickens’s position would be sound. However, the failures in this case go far beyond misnaming one of the defendants. No misleading conduct attributable to others caused Dickens to improperly serve process by certified mail. No misleading conduct of others is offered to explain why Dickens did not even attempt to serve process upon Henry until after the statute of limitations had run. And no misleading conduct of others can explain why Dickens’s counsel did not investigate further upon receiving a letter which placed him squarely on notice that he had sued the wrong Triple “C.”

¶ 46. In summary, Dickens has wholly failed to demonstrate that anyone engaged in misleading conduct which prevented him from properly and timely serving process.

b. Diligence in Serving Process

¶ 47. Dickens goes into great detail explaining his attempts to serve Triple “C” Trucking. He points out that he “served” Triple “C” Trucking with process on September 16, 1997, which was within the 120 day period. He further points out that, on March 23, 1998, Henry signed a receipt for the summons and the complaint which he received via certified mail. Triple “C” Transport admits that it signed a certified mail delivery receipt.

¶ 48. But no explanation is offered as to why process was attempted by certified mail, rather than as provided by the Mississippi Rules of Civil Procedure. And most importantly (as to the claim against Henry), no explanation is offered as to why no service at all was attempted prior to the expiration of the statute of limitations.

¶ 49. These deficiencies prevent us from finding that Dickens or his counsel used diligence in attempting to serve process.

c. Understandable Mitigating Circumstances

¶ 50. Dickens’s final argument is that understandable mitigating circumstances were shown, which support good cause for the delay in service of process. These include the accident report, Great River’s correspondence, and the bankruptcy of Triple “C” Trucking Company. None of these facts rise to the level of mitigating circumstances which would excuse Dickens’s failure to serve process prior to the expiration of the statute of limitations.

CONCLUSION

¶ 51. Dickens’s argument that he should be allowed to proceed with his lawsuit against the defendants is without merit. The statute of limitations has run, and the circuit court erred in ruling otherwise. Therefore, we reverse the circuit court’s judgment, and we render judgment here finally dismissing Dickens’s complaint and this action with prejudice as barred by the statute of limitations.

¶ 52. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . The complaint names as a defendant, “TRIPLE "C” TRUCKING COMPANY.’’ The accident report listed Henry’s place of employment as Triple "C” Trucking. Thus, Dickens cannot claim he obtained from the Secretary of State the exact name of the defendant listed on the accident report.

      . This is true, even giving Dickens the benefit of the full 120-day tolling period. Stated differently, Dickens never attempted to have Henry served with process during thé three years, plus 120 days following the accident.


text:
    Richard Jackson JACOBS v. STATE of Mississippi.
    No. 2002-KA-01163-SCT.
    Supreme Court of Mississippi.
    April 22, 2004.

      Jim Davis, attorney for appellant.
    Jeffrey A. Klingfuss, Office of the Attorney General, attorney for appellee.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. Eighteen-year-old Richard Jackson Jacobs was indicted for the capital murder of Robert Martin. Also indicted were Jeremy Martin and Crystal Broadus. The cases were severed. The jury found Jacobs guilty, but could not agree on a punishment. The trial court sentenced Jacobs to life imprisonment without parole. Jacobs’s motion for a new trial was denied. Jacobs appeals to this Court and submits the following issues on appeal:

I. Whether the trial court erred in denying a continuance of the suppression hearing.
II. Whether the trial court erred in denying the motion to suppress Jacobs’s videotaped statement in Texas.
III. Whether the trial court erred in excluding the testimony of Joseph Bailey.
IV. Whether Jacobs was entitled the jury instruction of the lesser-included offense of manslaughter.
V. Whether the errors committed at trial, if not individually, cumulatively require reversal.

FACTS

¶ 2. The victim, Robert Martin, lived in Jackson County, Mississippi, with his son, Jeremy Martin. The defendant, Richard Jacobs, recently moved to Mississippi and had been staying at the Martin home for a couple of days. Martin was found dead on the couch in his home. The autopsy report concluded that Martin was sitting on the couch asleep when he was shot at close range in the head with a shotgun. After the murder, Jeremy Martin, Richard Jacobs, Crystal Broadus, and Donnie Ryals were missing along with Martin’s car.

¶ 3. Jeremy Martin exhibited signs of violence in the past, including stabbing his stepfather in the back and breaking his girlfriend’s nose and his father’s ribs. He had previously told other people that he planned to kill his father. Jeremy eventually decided he would kill his father. Because Jeremy needed a weapon, Crystal took a shotgun from her grandparent’s home where she was living. On the night of the murder, Crystal arrived at the Martin house with the shotgun. Richard Jacobs was there along with Donnie Ryals. As he slept on the couch, Martin was shot and killed. His keys and wallet were taken, and Jeremy, Crystal, Richard and Donnie left in Martin’s car. They planned to go to Texas where Richard’s father lived.

¶ 4. On their way to Texas, the foursome stopped in Louisiana and threw the shotgun in Irish Bayou outside of New Orleans. Richard eventually reached his father’s home in Bastrop, Texas, where he was arrested by Texas Ranger Rocky Wardlow. At the time of the arrest, Richard was in the yard with his father and brother. Richard was given a Miranda warning and placed in the police car. Richard’s father testified that he told Ranger Wardlow that he was going to call an attorney and then leaned into the police car to tell Richard not to sign anything or say anything until the attorney got to the jail. Jacobs testified that Wardlow was less than an arm’s length away when he said this. Ranger Wardlow denied hearing any statement by Richard at the scene of the arrest with respect to securing an attorney.

¶ 5. When Richard arrived at the Sheriffs office, a videotaped statement was made by him prior to his attorney’s arrival. Richard testified that he gave the statement of his own free will, was not threatened or coerced, and was not slapped around or promised anything. In his statement, Richard told Wardlow that he was the one who pulled the trigger while Jeremy held a .357 magnum to his head. After the arrests of the other individuals, the police recovered the shotgun, and it was identified as belonging to Crystal’s grandfather. There was no recovery of a .357 magnum or any pistol other than a BB pistol.

ANALYSIS

I. Whether the trial court erred in denying a continuance of the suppression hearing.

¶ 6. Jacobs filed his motion to suppress alleging his statement was unconstitutionally obtained by improper coercion and duress and/or promises of suggestion of leniency. He also argued that at the time of his arrest, officers were informed that an attorney had been called, yet they proceeded to question Jacobs. At the hearing, defense counsel requested a continuance because the videotape was inaudible, and he could not adequately represent his client until he knew what the tape said. The trial court denied the continuance. On appeal to this Court, Jacobs avers that the hearing on the motion to suppress should have been continued until a transcript of the tape was available to the defense in order to completely explore the implied promises of leniency contained in the tape.

¶ 7. We will reverse the denial of a motion for continuance only when manifest injustice appears to have resulted from the decision to deny the continuance. Johnson v. State, 631 So.2d 185, 189 (Miss.1994). Whether a continuance should be granted or denied is within the sound discretion of the trial court. Id. When analyzing whether there was an abuse of discretion or manifest injustice, it must be determined whether the absence of the transcript of Jacobs’s statement worked to his prejudice.

¶ 8. Jacobs argues that without the transcript, his attorneys were unable to thoroughly cross-examine Ranger Wardlow regarding his implication to Jacobs that they would “work with” his statement and other implied promises of leniency in the tape. However, the State points out that the trial judge, the prosecutor and defense counsel all listened to the tape, and all except the defense attorney found the tape to be audible. The State further asserts that the denial of continuance did not prevent counsel from making his arguments, or cross-examining the witness regarding the constitutional challenges to the statement. Therefore, there was no prejudice. This Court finds that the judge did not abuse his discretion because he listened to the tape and determined it to be audible. Additionally, the judge allowed the defense up to three additional weeks to supplement the evidence before the court with affidavits. Therefore, Jacobs was not prejudiced by the refusal of the court to make the transcripts of the tape available to defense counsel. This issue is without merit.

II. Whether the trial court erred in denying the motion to suppress Jacobs’s videotaped statement in Texas.

¶ 9. The Fifth Amendment protection against compelled self-incrimination includes the right to counsel at custodial interrogations. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981); Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If the individual states that he wants an attorney, the interrogation must cease until the attorney is present. Jacobs argues that the interrogation was started despite the fact that he, his parents and the police knew that an attorney was being contacted. Defense counsel claims that the totality of the circumstances indicates that Jacobs did not knowingly and intelligently waive his rights, free of implied promises of leniency, under Miranda. The implied promises of leniency that Jacobs is referring to are the statements by Wardlow on the videotape. Wardlow told Richard, “If you are the one that pulled the trigger, there’s probably a reason for it, and that can be entered, people can understand ... I mean, we can work with that.” Moreover, Jacobs claims that when a young person is arrested for a serious crime, and the parent in the presence of law enforcement informs them that he is calling a lawyer, that should be enough to invoke the right to counsel.

¶ 10. The State avers that none of Jacobs’s constitutional rights were violated. A confession is voluntary if, taking into consideration the totality of the circumstances, the statement is the product of the accused’s free and rational choice. Greenlee v. State, 725 So.2d 816, 826 (Miss.1998); Marshall v. State, 812 So.2d 1068, 1072 (Miss.Ct.App.2001). The circuit court sits as a fact finder when determining voluntariness of a confession, and its determination will not be reversed unless manifestly wrong. Blue v. State, 674 So.2d 1184, 1204 (Miss.1996), overruled on other grounds by King v. State, 784 So.2d 884 (Miss.2001). Here, Jacobs testified at trial that he was not promised, threatened or coerced to give the videotaped statement in Texas. Jacobs further testified that he gave his statement on his own free will, even though his father told him not to speak to anyone until his lawyer arrived. Based on the totality of the circumstances in the present case, Jacobs’s constitutional rights were not violated because his statement was given freely without coercion.

¶ 11. The State further asserts that Jacobs’s constitutional rights were not violated when he gave his statement because he voluntarily waived his Miranda warnings. Jacobs contends that his age hindered his ability to knowingly waive these warnings. The State relies on Horne v. State, 825 So.2d 627 (Miss.2002), where a fourteen-year-old was convicted of aggravated assault and capital murder and was sentenced to consecutive terms of 20 years for aggravated assault and life imprisonment without parole for capital murder. This Court stated:

We have held that, if the nature of the crime is one where the defendant could receive life imprisonment or death and if original jurisdiction in the case lies in the circuit court, it is not necessary that a minor have a parent present during interrogation. Blue, 674 So.2d at 1205. Horne’s age has “no special bearing on his ability to be questioned without a parent and voluntary waive his rights.” Id.

Horne, 825 So.2d at 639. In the present case, Jacobs’s father told him that he was calling an attorney and not to speak to anyone. However, Jacobs testified at trial that despite his father’s statement, he signed the Miranda warning card after his rights were read to him and gave his statement. He further testified that he was not forced or coerced into giving this statement. Moreover, Jacobs stated that once he asked for his attorney, the interview was stopped. The fact that Jacobs was eighteen years old at the time of the arrest has no bearing on his ability to comprehend the questions and waive his rights. The facts indicate that Jacobs did knowingly waive his rights, despite being told by his father not to speak without the presence of his attorney. We conclude that none of Jacobs’s constitutional rights were violated and that the trial court did not err in denying Jacobs’s motion to suppress the videotaped statements made in Texas.

III. Whether the trial court erred in denying the testimony of Joseph Bailey.

¶ 12. Joseph Bailey was Jacobs’s first witness at trial. Bailey had been indicted in a separate proceeding with a charge of criminal conspiracy in the murder for which Jacobs was on trial. Beyond his name and his pending charges, Bailey declined to answer any further questions based on his Fifth Amendment right against self-incrimination. The defense sought to question the law enforcement officer who interrogated Bailey in order to show through this introduction of hearsay that there was another gun that was used to put Jacobs in duress forcing him to kill. The trial court did not allow Bailey’s statements because they were found to be inconsistent, not corroborated by other evidence and contradicted by evidence already admitted. For these reasons, the court found that the statements were inadmissible because they were beyond the scope of the hearsay exception under Rule 804(b)(3) of the Mississippi Rules of Evidence:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have make the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

¶ 13. Bailey was clearly classified as an “unavailable” witness under this rule since he invoked his Fifth Amendment right. The inconsistent statement in question is Bailey’s statement to the Jackson County detective about where the handgun that Jacobs claims was held to his head was obtained. Bailey told the detective that he went with Crystal Broadus to get a handgun from her grandparents’ house. He said that she reached under the bed and took out a BB pistol, pushed it back under the bed and went to her closet and took another pistol. Bailey made this statement on three different occasions, and there were three different versions of the statement. However, all statements stated that Broadus did in fact go into her room to retrieve a handgun, and that a handgun, not a BB pistol was in Broadus’s possession.

¶ 14. Jacobs claims the totality of Bailey’s statement inculpated him and incriminated him to an extent that it satisfies the requirement that it is a statement against his criminal interest. Also, Jacobs claims that because this statement would subject Bailey to criminal liability, a reasonable person would not have made that statement unless he believed it was true. Therefore, Jacobs argues, Bailey’s statement meets the requirement of the hearsay exception under M.R.E 804(b)(3). Jacobs relies on Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), where the Supreme Court analyzed Federal Rule of Evidence 804(b)(3) in stating that this rule “is founded on the common sense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.” Id. at 599, 114 S.Ct. 2431.

¶ 15. Jacobs further asserts that the statement should have been admitted because the fact that Bailey told the story three time does not render it unreliable. Jacobs avers that Bailey had no motive to fabricate this statement because Bailey and Jacobs were not friends or acquaintances and there was no indication that Bailey somehow wanted to help Jacobs. “The United States Supreme Court has held that reliability can be inferred ‘where the evidence falls within a firmly rooted hearsay exception ...,” “otherwise, there must be ‘a showing of particularized guarantees of trustworthiness.’ ” Garrison v. State, 726. So.2d 1144, 1148 (Miss.1998) (quoting Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). In Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990), the United States Supreme Court further stated that “if the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial.”

¶ 16. Here, the dispositive question is whether Bailey’s statement shows particularized guarantees of trustworthiness. This Court finds that it does not. Because there were three different versions of Bailey’s statement, it cannot be said that if the statement had been cross-examined at trial it would have been of marginal utility. Due to the fact that there is three different versions of Bailey’s statement, there would be a need for cross-examination at trial. Therefore, the hearsay, rule bars admission of the statement due to lack of trustworthiness.

TV. Whether the defendant was entitled to the jury instruction of the lesser included offense of manslaughter.

¶ 17. Where under the evidence a reasonable jury could find the defendant not guilty of the principal charge made in the indictment but guilty of a lesser-included offense, the trial judge ordinarily should instruct the jury regarding the offense. Fairchild v. State, 459 So.2d 793, 800 (Miss.1984); Tyler v. State, 784 So.2d 972, 975 (Miss.Ct.App.2001). “We have repeatedly held that the accused is entitled to a lesser offense instruction only where there is an evidentiary basis in the record therefor. Such instructions should not be granted indiscriminately, nor on the basis of pure speculation.” Wilson v. State, 639 So.2d 1326, 1329 (Miss.1994) (citations omitted).

¶ 18. Jacobs argues that the trial court erred in refusing the jury instruction of the lesser-included offense of manslaughter. He claims that if the jury finds that there was not intent on the part of Jacobs to commit robbery because of the duress, there was not capital murder. This would reduce the crime to murder. Jacobs further avers that the evidence is such that a jury could find that Jacobs shot Mr. Martin because he was under the imminent threat of death himself, therefore, the jury should have been allowed to consider manslaughter as a lesser included offense.

¶ 19. This Court finds that the trial court was correct in denying the manslaughter instruction because there was no factual basis or evidence to support the instruction. Even if Jacobs was found not guilty of murder, he would nevertheless be guilty of capital murder because the victim was killed in the commission of a -robbery. The jury was given instructions that duress is a defense to robbery, and the jury found that there was no such duress. Therefore, because Jacobs was found guilty of robbery, and the death resulted in the commission of the robbery, Jacobs is guilty of capital murder regardless of whether a lesser-included offense instruction is given. The trial court did not err in refusing the jury instruction of the lesser-included offense of manslaughter.

V. Whether the errors committed at trial, if not individually, cumulatively require reversal.

¶ 20. Jacobs contends that the cumulative errors committed at trial are grounds for reversal. Baggett v. State, 793 So.2d 630, 636 (Miss.2001) (citing Mitchell v. State, 539 So.2d 1366 (Miss.1989)). There is neither individual nor cumulative reversible error in this case.

CONCLUSION

¶ 21. For these reasons, the trial court did not commit any reversible error. Therefore, the judgment of the trial court is affirmed.

¶ 22. CONVICTION OF CAPITAL MÍURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY AND DICKINSON, JJ., CONCUR. CARLSON, J., CONCURS IN RESULT ONLY. COBB, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.