author: BRIDGES, P.J.,

text:
    LEXINGTON INSURANCE COMPANY, Appellant v. Charles BUCKLEY, Appellee. Lexington Insurance Company, Appellant v. Charles Buckley, Appellee.
    Nos. 2003-CA-01249-COA, 2003-CA-02183-COA.
    Court of Appeals of Mississippi.
    Sept. 6, 2005.
    Rehearing Denied Feb. 7, 2006.
    Certiorari Denied April 6, 2006.

      Lawrence Cary Gunn, Hattiesburg, Louis B. Lanoux, Jackson, attorneys for appellant.
    Samuel Steven McHard, David Shoe-make, attorneys for appellee.
    Before BRIDGES, P.J., GRIFFIS and BARNES, JJ.
   BRIDGES, P.J.,

for the Court.

I.

BACKGROUND

¶ 1. Charles Buckley witnessed a tragic accident and filed emotional distress and negligence claims against Allied Products. Because Allied had purchased a liability insurance policy from Lexington Insurance Company, Buckley and Lexington attempted to negotiate a settlement. Lexington offered to pay Buckley $140,000 to settle the claim, and Buckley accepted the offer with the added provision that Lexington pay the settlement funds within ten days of their agreement. When Lexington did not tender settlement funds, Buckley filed a complaint for specific performance in the Covington County Chancery Court. Lexington did not respond to the suit and Buckley obtained a judgment against Lexington.

¶ 2. When Lexington discovered the judgment, Lexington filed a motion to extend time for an appeal. The chancellor granted Lexington’s motion and Lexington’s appeal of the judgment comprises one of the present consolidated appeals.

¶ 3. After Lexington filed its successful motion for extension of time, Lexington filed a motion to set aside the judgment. Buckley also filed a motion to reconsider granting Lexington’s motion for extension of time. The chancellor addressed both motions in one hearing and denied both. Lexington also appeals the chancellor’s denial of its motion to set aside the judgment. That appeal is the second of the present consolidated appeals.

¶ 4. Aggrieved by the two decisions mentioned above, Lexington argues: (1) that the chancery court lacked personal jurisdiction over Lexington due to insufficient service of process, (2) that the chancery court erred when it set the matter for trial, (3) that the chancery court erred when it awarded a judgment, (4) that the chancery court erred when it denied Lexington’s motion to set aside the judgment, and (5) that the chancery court erred when it awarded a judgment based on improper amended complaints. Aggrieved by the chancellor’s decision to deny his motion to reconsider granting Lexington’s motion for extension of time, Buckley cross-appeals and asks this Court to review that decision.

¶ 5. Finding that the chancery court lacked personal jurisdiction over Lexington because of improper service of process, and that the chancery court erred by conducting a trial on the merits where Lexington failed to answer Buckley’s complaint or otherwise appear, we reverse the chancellor’s decision to award a judgment in Buckley’s favor. Because the chancery court lacked jurisdiction, Lexington’s other issues become moot. Likewise, Buckley’s cross-appeal becomes moot.

II.

FACTS AND PROCEDURAL HISTORY

¶ 6. This complicated case involves a terrible accident, a lawsuit by a witness to that accident, a failed settlement, litigation over that failed settlement, and an end result of two awards to the original plaintiff. The plaintiffs first award came by way of a settlement related to the original claim. The plaintiffs second award stems from a judgment connected to the litigation over the failed settlement.

¶ 7. Charles Buckley is the plaintiff in both of the underlying actions and the appellee and cross-appellant in the matter at hand. During August of 1998, Charles Buckley “bush hogged” the medians near the intersection of 1-55 and Lakeland Drive in Jackson, Mississippi. . As Buckley mowed, the mower blade, manufactured by Allied Products, broke and shot out from under the mower.

¶ 8. Tragically, Camilla Dawn Haynes, traveling with her children and her mother, died when the mower blade went through the. windshield of her van and virtually decapitated her. Camilla’s mother and children survived. Buckley only realized the cause and severity of the situation' when he approached Camilla’s van and saw the results of the broken mower blade for the first time.

A.

Claim One

¶ 9. In November of 2000, Buckley filed a complaint in the Covington County Circuit Court. By way of his complaint, Buckley asserted claims against Allied Products. Buckley claimed that he suffered emotional trauma from having witnessed the event mentioned above. Allied’s insurer, Lexington Insurance Company, retained counsel and had Buckley’s claim removed to federal district court. Meanwhile, Allied filed Chapter 11 bankruptcy proceedings. On December 4, 2001, Buckley had the bankruptcy stay lifted and proceeded with his claim against Allied.

¶ 10. In October of 2002, Buckley and Lexington, on Allied’s behalf, attended a conference aimed at developing the prospects of settling Buckley’s claim. Accordingly, the parties reached a tentative settlement agreement. Lexington offered to pay Buckley $140,000, provided Allied and the creditor committee in the bankruptcy proceeding withdrew their pending claims against Allied’s policy and any proceeds from that policy.

¶ 11. Buckley’s attorney responded with a letter and accepted the terms, but Buckley added the condition that Lexington must tender the $140,000 within ten days of the date of the mailing of Buckley’s response letter. While Buckley claims that his response to Lexington’s offer constituted a valid acceptance, Lexington disputes that claim and argues that Buckley, by adding the condition of payment within ten days, actually tendered a counteroffer. However, this dispute is immaterial to the present issues, which will become clearer as this opinion proceeds. At any rate, Buckley did not receive payment within ten days. Lexington claims the delay occurred as a result of Allied’s bankruptcy proceedings. That is, Lexington could not acquire the funds until it could be sure that, in so doing, it had clearance from Allied and the bankruptcy creditor committee. Rather than moving forward with his claim, Buckley attempted to enforce the settlement.

B.

Buckley Attempts to Enforce the Settlement of Claim One

¶ 12. Buckley sought two avenues to enforce the settlement. First, Buckley went to the federal district court and filed his motion to enforce the settlement. The federal district court granted Buckley’s motion to enforce and ordered Lexington to pay Buckley $140,000 within seven days of the filing of that order. Lexington appealed the order enforcing the settlement, but the record is silent as to the results of that appeal. Buckley’s second attempt at enforcing the settlement would eventually give rise to this appeal.

C.

Claim Two

¶ 13. On December 31, 2002, Buckley filed a complaint in the Covington County Chancery Court. In his complaint, titled “Complaint for Specific Performance and Other Relief,” Buckley asserted claims for (1) tortious interference with a settlement agreement, (2) intentional infliction of emotional distress, (3) breach of contract, and (4) specific performance of the settlement agreement. As for damages, Buckley requested “specific performance of the [settlement [a]greement, plus interest since November 1, 2002, attorneys fees, costs, interest, and all compensatory and punitive damages allowed by law.” Buckley also requested “all other relief, either general or specific, as he may be entitled to.”

¶ 14. On February 14, 2003, Buckley filed his first amended complaint. Buckley amended the requested damages portion of his original complaint. Though the requested damages in his original request were open and non-specific, Buckley’s amended request sought relief “not to exceed $74,500.”

¶ 15. On February 26, 2003, Lexington paid Buckley the $140,000 contemplated in their settlement agreement. Consequently, Lexington paid Buckley the amount of money that Buckley sought in his specific performance action. Regardless, Buckley’s specific performance action proceeded in the chancery court.

¶ 16. On April 7, 2003, Buckley attended a hearing before the Covington County Chancery Court. No one was present for Lexington or Allied, and Lexington had not answered Buckley’s complaint or entered an appearance. Still, Buckley and the chancery court set a trial date for April 10, 2003.

¶ 17. On April 8, 2003, Buckley filed his second amended complaint. Again, Buckley amended his damages request. While his first amended complaint modified his damages request to $74,500, Buckley’s second amended complaint was non-specific as to the requested damages. Like his original complaint, Buckley’s second amended complaint modified his damages to a request for “interest on $140,000 from November 1, 2002, to February 28, 2003, attorneys’ fees, costs, interest, and all compensatory and punitive damages allowed by law.” Buckley also modified his request to include “all other relief, either general or special, as he may be entitled to.”

¶ 18. On April 10, 2003, Buckley showed up for trial, but no one was present for Lexington. Likewise, Lexington had not responded to any of Buckley’s three complaints, or entered an appearance. The chancellor had Buckley put forth evidence from two witnesses, as well as eleven exhibits. After the trial, the chancellor entered the following judgment:

THIS CAUSE having come on for hearing on its merits and the Court after taking evidence, having heard testimony of two witnesses and reviewing eleven exhibits identified and admitted.
FINDS:
1. Lexington Insurance Company failed to answer or plead and is defaulted.
2. Charles Buckley suffered severe emotional distress and mental injury as a result of the unreasonable and vexatious conduct of Lexington Insurance Company.
WHEREFORE IT IS ORDERED THAT the Plaintiff, Charles Buckley is hereby awarded the sum of $75,000.00 for compensatory damages for his injuries sustained, plus the sum of $37,500.00 in actual attorney’s fees and the sum of $1,012,500.00 as punitive damages, for a total judgment of $1,125,000.00 against Lexington Insurance Company.

D.

Proceedings Following the Judgment

¶ 19. According to Lexington, it first heard about the judgment on or about May 20, 2003. Lexington filed two motions after it heard about the default judgment. On June 3, 2003, Lexington filed its first posttrial motion: a motion to extend time for appeal or, alternatively, to reopen time for an appeal. On June 9, 2003, the chancellor entered an order and granted Lexington’s motion to extend time for appeal. Lexington appealed the chancellor’s April 10th judgment. That appeal is one of the present consolidated appeals.

¶20. Also on June 9, 2003, Lexington filed its second posttrial motion: a motion to set aside the April 10th default judgment. On June 19, 2003, Buckley filed his motion to reconsider Lexington’s extension of time to appeal. On August 15, 2003, the parties conducted a hearing on two motions: Lexington’s motion to set aside the judgment, and Buckley’s motion to reconsider Lexington’s extension of time. The chancellor denied both motions. The other consolidated appeal follows the chancellor’s denial of Lexington’s motion to set aside the judgment.

STANDARD OF REVIEW

¶ 21. We examine two consolidated appeals. The first appeal is of the chancery court judgment. The second appeal is of the chancellor’s decision to deny a motion to set aside the judgment. “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.” Triple “C” Transport, Inc. v. Dickens, 870 So.2d 1195 (¶ 15) (Miss.2004) (citations omitted). We review a question of law de novo. Id.

ANALYSIS

I.

Is the judgment against Lexington void based on defective service of process?

¶ 22. Lexington finds fault with the service of process incident to this matter. Lexington claims that the chancery court judgment is void for lack of personal jurisdiction. Buckley maintains that service of process was appropriate under Rule 4 of the Mississippi Rules of Civil Procedure and Section 83-21-37 of the Mississippi Code.-

¶ 23. If Buckley failed to comply with the standards governing adequate service of process, then the chancery court lacked personal jurisdiction over Lexington. If the chancery court lacked personal jurisdiction over Lexington, then the judgment is invalid because “no judgment order or decree is valid or binding upon a party who has had no notice of the proceeding against him.” James v. McMullen, 733 So.2d 358 (¶ 3) (Miss.Ct.App.1999).

¶ 24. Lexington is not incorporated in Mississippi. It has no registered agent for service of process here. For all intents and purposes, Lexington is a nonresident of Mississippi. “The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests on nonresident defendants.” Noble v. Noble, 502 So.2d 317, 319-20 (Miss.1987) (quoting Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)). “When a defendant is a non-resident of the state ... and the court has jurisdiction of the subject matter, it is necessary that complainants be able to obtain process on a non-resident defendant by some means; otherwise, parties would not be able to enforce their rights in a judicial proceeding.” Mosby v. Gandy, 375 So.2d 1024, 1030 (Miss.1979). Thus, to enter a valid judgment, a “court must not only have jurisdiction of the subject matter, but also of the persons of the parties to give validity to its final judgment.” James v. McMullen, 733 So.2d 358 (¶3) (Miss.Ct.App.1999) (citing Rice v. McMullen, 207 Miss. 706, 727, 43 So.2d 195, 201 (1949)).

¶25. “The concept of personal jurisdiction comprises two distinct components: amenability to jurisdiction and service of process.” James, 733 So.2d at (¶ 3). “Service of process is simply the physical means by which [personal] jurisdiction is asserted.” Id. (citations omitted). “The existence of personal jurisdiction ... depends upon the presence of reasonable notice to the defendant that an action has been brought.” Noble, 502 So.2d at 320 (quoting Kulko, 436 U.S. at 91, 98 S.Ct. 1690).

¶ 26. Under the present circumstances, Buckley intended to utilize statutory provisions to effectuate reasonable notice through service of process. Our analysis mandates consideration of two overriding issues; (1) whether Buckley was entitled to serve process under the relevant provisions and (2) whether Buckley followed the logistic provisions necessary to complete proper service of process.

1.

Could Buckley serve the Mississippi Insurance Commissioner?

¶ 27. Buckley attempted to serve Lexington with process by mailing a copy of the summons and complaint to George Dale, the Mississippi Insurance Commissioner. It is undisputed that Dale is not Lexington’s registered agent for service of process. Still, Mississippi law dictates that, under specific circumstances, service upon the insurance commissioner may be sufficient to effectuate service of process on an out-of-state insurer. Pursuant to Section 83-21-37 of the Mississippi Code, upon certain events, an unauthorized insurer appoints the Mississippi Insurance Commissioner as a statutory agent for service of process. Buckley contends that service of process was valid under Section 83-21-37 because Lexington acted in compliance with the methods for statutory appointment of the Mississippi Insurance Commissioner.

¶ 28. The legislature was specific as to what events constitute statutory appointment:

Any of the following acts in this state, effected by mail or otherwise, by an unauthorized or alien insurer: (1) the issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein, (2) the solicitation of applications for such contracts, (3) the collection of premiums, membership fees, assessments, or other considerations for such contracts, or (4) any other transaction of insurance business is equivalent to and shall constitute an appointment by such insurer of the commissioner of insurance and his successor or successors in office to be its true and lawful agent, upon whom may be served all lawful process in any action, suit, or proceeding instituted by or on behalf of an insured or beneficiary arising out of any such contract of insurance, and any such act shall be signification of its agreement that such service of process is of the same legal force and validity as personal service of process in this state upon such insurer.

Miss.Code Ann. , § 83-21-37 (Rev.1999). So, for Buckley’s service of process upon Dale to be appropriate, Lexington must have acted according to one of the four contemplated actions equating to statutory appointment.

¶ 29. The first instance by which an insurer appoints the insurance commissioner is where the insurer issues or delivers contracts of insurance to Mississippi residents or to corporations authorized to do business in Mississippi. Miss.Code Ann. § 83-21-37. Section 83-5-5 of the Mississippi Code defines a contract of insurance as “an agreement by which one party for a consideration promises to pay money or its equivalent, or to do some act of value to the assured, upon the destruction, loss, or injury of something in which the assured or other party has an interest, as an indemnity therefor.”

¶ 30. Assuming the settlement agreement was valid, clearly one party, Lexington, promised to pay Buckley a sum of money. However, the offer to pay money was not incident to the loss of something. Rather, Lexington offered to pay Buckley money because of the existence of Buckley’s claim against Lexington’s insured, Allied Products. As such, Buckley could not serve Lexington due to Lexington’s issuance or delivery of insurance contracts, as no evidence in the record supports such a finding. So Lexington did not act in accordance with the first instance comprising statutory appointment of the insurance commissioner as Lexington’s agent for service of process.

¶ 31. The second instance by which an insurer appoints the insurance commissioner as its registered agent for service of process occurs when the insurer solicits applications for insurance contracts. Miss. Code Ann. § 83-21-37 (Rev.1999). There is no proof in the record that Lexington solicited applications for insurance contracts to Mississippi residents or corporations licensed to do business in Mississippi. Likewise, Buckley does not allege that Lexington solicited such applications. Accordingly, we rule out the possibility that Lexington appointed Dale when Lexington solicited Mississippi residents for applications for insurance contracts. So Lexington did not act in accordance with the second instance comprising statutory appointment of the insurance commissioner as Lexington’s agent for service of process.

¶ 32. The third instance in which an insurer appoints the insurance commissioner occurs when the insurer collects premiums or other valuable consideration. Miss.Code Ann. § 83-21-37 (Rev.1999). Like the second instance, there is no proof in the record that Lexington acted accordingly, nor does Buckley allege such. Thus, we do not find that Lexington appointed Dale due to Lexington’s collection of insurance premiums. So Lexington did not act in accordance with the third instance comprising statutory appointment of the insurance commissioner as Lexington’s agent for service of process.

¶ 33. Finally, the last instance in which an insurer appoints the insurance commissioner occurs when an insurer conducts any other transaction of insurance business. Miss.Code Ann. § 83-21-37 (Rev. 1999). The statute does not specifically define what constitutes conducting a transaction of insurance business. Whether Lexington was conducting a transaction of insurance business when it negotiated a settlement on behalf of its insured is questionable. Still, it is unnecessary to determine whether Lexington’s conduct fits within the criteria of “conducting insurance business” if Buckley did not follow the proper procedures for effectuating service of process. Assuming, for the sake of argument, that negotiating a settlement of a claim on behalf of an insured constitutes a transaction of insurance business, Buckley must still follow proper procedures to effectuate valid service of process.

2.

Did Buckley follow the statute governing proper service of process?

¶ 34. Buckley attempted to serve process on Lexington by mailing a copy of the summons and complaint to George Dale, the Mississippi Commissioner of Insurance. Lexington claims that Buckley failed to follow the necessary procedures in effectuating proper service of process. Buckley contends that service of process on the insurance commissioner was valid pursuant to Section 83-21-39 of the Mississippi Code of 1972 and Rule 4 of the Mississippi Rules of Civil Procedure.

¶ 35. Section 83-21-39 of the Mississippi Code sets forth a specific procedure for service of process:

Such service of process shall be made by delivering to and leaving with the commissioner of insurance, or some person in apparent charge of his office, two (2) copies thereof and the payment to him of such fees as may be prescribed by law. The commissioner of insurance shall forthwith mail by registered mail or certified mail one of the copies of such process to the defendant at its last known principal place of business, and shall keep a record of all process so served upon him. Such service of process is sufficient, provided notice of such service and a copy of the process are sent within ten (10) days thereafter by registered mail or certified mail by plaintiff or plaintiffs attorney to the defendant at its last known principal place of business, and the defendant’s receipt, or receipt issued by the post office with which the letter is registered, showing the name of the sender of the letter and the name and address of the person to whom the letter is addressed, and the affidavit of the plaintiff or plaintiffs attorney showing a compliance herewith are filed with the clerk of the court in which such action is pending on or before the date the defendant is required to appear, or within such further time as the court may allow.

Miss.Code Ann. § 83-21-39 (Rev.1999).

¶ 36. Accordingly, the first step in service of process under Section 83-21-39 is to “deliver and leave with the commissioner of insurance, or some person in apparent charge of his office, two copies of the summons and complaint.” Id. Lexington reasons that Buckley failed to “deliver and leave” the summons and complaint with the insurance commissioner when Buckley mailed the summons and complaint to George Dale. Lexington claims that the law requires personal service of process on Dale, the Mississippi Insurance Commissioner.

¶ 37. Section 83-21-39 does not specifically define what “deliver and leave with” entails. That description suggests that a plaintiff must execute personal service of process. That is, while one could accomplish “delivery” by mail, it is impossible to deliver “and leave with” by mail. To leave something, someone must personally present that something. So, unless a process server personally delivers the summons and complaint, it is impossible to leave a summons and complaint.

¶ 38. Despite the fact that Section 83-21-39 does not specifically state that “deliver and leave with” equates to personal service of process, the Mississippi Rules of Civil Procedure are dispositive of this issue. The Mississippi Rules of Civil Procedure control “where no statute applicable to the proceedings provides otherwise or sets forth procedures inconsistent with” a provision of the Rules of Civil Procedure. M.R.C.P. 1. The rules for service of process are contained in Rule 4 of the Mississippi Rules of Civil Procedure. Section 83-21-39 does not address the means for delivering service of process. Nor does that statute provide for procedures of delivering service of process inconsistent with Rule 4. As such, Rule 4 controls where Section 83-21-39 is silent or nonspecific. E.g., M.R.C.P. 1. So, we turn to Rule 4 to resolve whether Buckley may serve the insurance commissioner, whose office is located in Mississippi, by certified mail.

¶ 39. In Triple “C” Transport, 870 So.2d at (¶ 21), the Mississippi Supreme Court held that “[s]ervice of process may not be had by certified mail upon an instate defendant.” Undoubtably, Lexington is not an “in-state” defendant, but their alleged statutory agent for service of process is a Mississippi resident, and it was the insurance commissioner that Buckley served. “The comment to [Rule 4(c)(5) ] provides that ‘[t]he certified mail procedure is not available to serve a person within the state.’ ” Id. Accordingly, the certified mail procedure is not available to serve the insurance commissioner.

¶ 40. Moving on, the second requirement under Section 83-21-39 mandates that “[t]he commissioner of insurance shall forthwith mail by registered mail or certified mail one of the copies of such process to the defendant at its last known principal place of business, and shall keep a record of all process so served upon him.” The insurance commissioner fulfilled his statutory obligation to mail a copy of the summons and complaint to Lexington when Dale sent Lexington a copy of the summons and complaint by certified mail, return receipt requested. The record contains the return receipt. Suffice it to say, Dale fulfilled the second statutory step.

¶ 41. However, Buckley was obligated to send Lexington, via certified mail, notice of service and a copy of process within ten days after Buckley served Dale with process. Miss.Code Ann. § 83-21-39. The record contains no evidence suggesting that Buckley fulfilled this step. What is more, two additional filings are necessary to complete service of process under Section 83-21-39: Buckley should have filed Lexington’s receipt with the court clerk, and Buckley should have filed an affidavit of compliance with the court clerk. As mentioned, the return receipt incident to Dale’s obligation to send a copy of the summons and complaint to Lexington does appear in the record. There is no other return receipt incident to Buckley sending Lexington notice of service and a copy of process within ten days of serving Dale. Moreover, the record does not contain Buckley’s filed affidavit of compliance.

¶ 42. As it stands, Buckley improperly served process via certified mail to a person within the state. No evidence suggests that Buckley mailed the notice of service to Lexington since the return receipt incident to such a mailing does not appear in the record. Likewise, Buckley failed to comply with Section 83-21-39 because the record contains no evidence that Buckley filed his affidavit of compliance. Consequently, Buckley did not complete service of process.

¶ 43. Still, Buckley contends that the return receipt demonstrates that Lexington received Dale’s certified letter, along with a copy of the summons and complaint on February 10, 2003. The statute is clear. Dale’s obligation to send a copy of the summons and complaint to Lexington is only one obligation under the statute. Section 83-21-39 does not provide that service of process is proper where a plaintiff meets the obligations that he chooses, nor does it provide that service of process is proper where the plaintiff meets some or most of the obligations listed. Rather, Buckley had to fulfill every obligation under the statute. The evidence and record before this Court demonstrates that Buckley failed in that regard.

¶ 44. Moreover, the Mississippi Supreme Court has dictated that “actual knowledge by a defendant of the pendency of a suit against him is immaterial, unless there has been a legal summons or a legal appearance.” James, 733 So.2d at (¶ 3) (citations and internal quotations omitted). “In the absence of process on a defendant, even though the defendant may know of the pendency of the action, defendant’s knowledge of the existence of the action does not supply the want of compliance with requirements of valid process.” Mosby v. Gandy, 375 So.2d 1024, 1027 (Miss.1979).

¶45. “Service of process on a non-resident defendant is jurisdictional, requiring strict compliance with statutory procedures.” Birindelli v. Egelston, 404 So.2d 322, 323-24 (Miss.1981). Since Buckley failed to serve appropriate process on Lexington, the chancery court lacked jurisdiction to grant a judgment in Buckley’s favor. Unfortunately, this matter does not end with resolution of this issue. We now turn to the judgment against Lexington.

II.

THE JUDGMENT

¶ 46. There has been much confusion on the topic of the judgment, and rightfully so. Lexington never responded to Buckley’s complaint and never entered an appearance, but the chancellor granted a judgment after a trial on the merits. The chancellor specifically stated that the judgment was not a default judgment, despite the language in the judgment citing Lexington’s default. So, what type of judgment was it?

¶ 47. The judgment stated that “Lexington Insurance Company failed to answer or plead and is defaulted.” However, during the August 15, 2003 hearings, the chancellor stated that the judgment was not a default judgment. What is more, during the hearing, the chancellor clarified his reasoning on why the judgment was not a default judgment. When counsel for Lexington pointed out that the record did not contain the court clerk’s entry of default, the chancellor explained “[y]ou won’t ever find [an entry of default] in mine. I don’t let my clerks file them.” The chancellor elaborated:

I do not let [the clerks enter default]. I set the cases. I set cases for trial. I have docket calls every time I have trial. If somebody does not answer, I set the case for trial and we try it. If somebody is not there, then technically they are in default, but I don’t consider it as a default. I consider it as them not being there, and putting on whatever testimony they want to put on. So my clerks have been instructed by me not to enter defaults because I’m not going to enter a judgment based on defaults. There’s no sense in cluttering up the file.

Later during the same hearing, the chancellor further elaborated on his procedure:

The chancellor: So you’re taking this that I gave them a default judgment, is that your position?
Lexington: Yes, sir. That’s what the judgment says, that they were defaulted.
The chancellor: No. It didn’t say they were defaulted. It just says they are in default which—
Lexington: Lexington Insurance Company failed to answer a plea and is defaulted.
The chancellor: Okay.
Lexington: David [Shoemake] prepared it.
The chancellor: Okay.
Lexington: If you look at 54(c). I have given the Court as tab C there—
The chancellor: I’m going to be real honest, I don’t need to hear anything because as far as — if your sole basis is arguing that that was a default judgment, then I can overrule your motion right now and you can take it to the Supreme Court ever how you want to take it because I heard the case. I set it at docket call. The people were in default in that they did not answer. I did grant — it was never the intention of this court and I think the record will reflect that. I may be wrong, but I don’t think anywhere in there I said I’m giving you a default judgment. I think I said I’m giving you a judgment for this, this, this and this.

Thus, the chancellor specifically stated that it was his intent that the judgment was not a default judgment, but a trial on the merits.

¶ 48. Again, we turn to the Mississippi Rules of Civil Procedure. “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.” M.R.C.P. 55(a). The Rule does not offer any room for discretion. When a party does not plead or otherwise defend a claim, the clerk is directed to enter a default. It is undisputed that Lexington did not answer or plead in response to Buckley’s complaint. The proper procedure would have been to pursue a default judgment, as Rule 55 does not offer the option in the use of the word “shall.” If Rule 55 said that the clerk may enter default, it might be otherwise, but the Rule is clear. The chancellor erred by conducting a trial on the merits.

BUCKLEY’S CROSS — APPEAL

¶ 49. Having found that the chancery court lacked jurisdiction to award a default judgment against Lexington, there is no need to consider the merits of Buckley’s cross-appeal.

CONCLUSION

¶ 50. This case proceeded by flawed procedure from its inception. Not only did Buckley fail to serve process, but the chancellor erred when he failed to follow our rules of civil procedure. Because the chancery court lacked personal jurisdiction to enter a judgment following an improper trial on the merits, it is unnecessary to delve into the questionable amendment of complaints and whether the chancellor should have granted Lexington’s motion for extension of time to appeal. Regardless, the chancery court lacked personal jurisdiction over Lexington. In default cases, where proper service of process is not shown in the record, the default judgment is void. Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992). Finding the judgment void, we reverse the chancery court’s judgment and render judgment for Lexington.

¶ 51. THE JUDGMENT OF THE COVINGTON COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE, P.J., MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Wendall HARRELL, Appellant v. LAMAR COMPANY, LLC and Mae Frances Smith, Appellees.
    No. 2004-CA-00870-COA.
    Court of Appeals of Mississippi.
    Sept. 20, 2005.
    Rehearing Denied Dec. 13, 2005.
    Certiorari Denied April 6, 2006.

      A.R. Wright, Carthage, attorney for appellant.
    Mark D. Herbert, Lisa Anderson Rep-peto, Jackson, attorneys for appellees.
    Before BRIDGES, P.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Wendall Harrell appeals the decision of the Leake County Chancery Court holding him liable for $6,645 in damages for the intentional destruction of an outdoor advertising sign. Finding no error on appeal, we affirm.

FACTS

¶ 2. On May 1, 1965, Roger Smith, Jr. (“Mr.Smith”) entered into a lease agreement with Lamar Advertising Company of Mississippi, Inc. (“Lamar”), in which Mr. Smith agreed to erect and maintain an outdoor advertising structure on his property along Highway 35 in Carthage, Mississippi. The lease was never recorded. On December 24, 1966, Mr. Smith married Mae Frances Smith (“Mrs. Smith”) and shortly thereafter informed her of the lease agreement. Mrs. Smith knew of the lease agreement and did not object to Mr. Smith’s leasing the property, which lease continued uninterrupted for nearly forty years.

¶ 3. The 1965 lease provided for a three-year term from May 1, 1965 to May 1, 1968, with a right to renew for one three-year term. On April 2, 1982, Mr. Smith entered into a three-year lease agreement with Lamar, the term to run from May 1, 1981 to April 30, 1984. Mrs. Smith did not sign the lease and the agreement was never recorded. In 1991, the Smiths sold the 2.6 acres of land upon which the Lamar sign had been erected to Mr. and Mrs. Burgess (“Burgess”) and Mr. and Mrs. Thomas (“Thomas”). The warranty deed conveying the property stated that “[tjhere is reserved from this conveyance the advertising ‘sign’ which is leased to Lamar and that Smith retains all rentals and shall continue to receive rentals from Lamar as long as the sign shall continue to be rented.” Both Mr. And Mrs. Smith signed the warranty deed, which was recorded with the Leake County Chancery Clerk.

¶ 4. Burgess and Thomas borrowed the money to purchase the property from the Carthage Bank, using the purchase property as security. The deed of trust to the Carthage Bank made no exception or reservation for an easement on land leased to Lamar. However, it did reserve the sign and rent therefrom. On May 1, 1993, Mr. Smith executed another lease to Lamar, in this instance for a term of ten years. Due to Mr. Smith’s blindness at that time, Mrs. Smith signed the May 1993 lease on Mr. Smith’s behalf, in his presence and with his permission. The lease was never recorded. Subsequently, Burgess and Thomas defaulted on their loan from the Bank of Carthage. On December 13, 1996, the 2.6 acres previously conveyed to Burgess and Thomas was sold in a foreclosure sale to Wendell Harrell (“Harrell”). The property was conveyed by a substitute trustee’s quitclaim deed. Harrell had viewed the property and had seen the sign prior to purchasing the property. Neither the trustee’s deed nor the certificate of title obtained by Harrell pursuant to the sale made special mention of any exception or reservation regarding the sign. While affirming that there were no taxes, enrolled judgments or liens against the property, the certificate of title did except any “reservations and/or conveyances, if any.”

¶ 5. In June of 2001, some five years after he purchased the property, Harrell contacted Lamar seeking to obtain rent for the sign structure. Lamar officials scheduled a meeting with Harrell on June 19, 2001, to discuss the matter. Harold Smith and David Johnson, the Lamar representatives, obtained a copy of the warranty deed from the Chancery Clerk of Leake County. When Harold Smith attempted to show the deed to Harrell, Harrell slapped the deed out of his hand and told the men that if they did not get off his property he would “whip their a* Immediately after his encounter with the men from Lamar, Harrell bulldozed the Lamar sign to the ground. Mrs. Smith was at home working in her yard and heard the noises caused by the destruction of the sign. Shortly thereafter, Harrell knocked at her door and offered her $2,000 for her interest in the property, which she refused.

¶ 6. After learning of the destruction of the sign, Lamar filed suit against Harrell in Leake County Chancery Court for damages to the sign. An injunction was issued against Harrell on July 5, 2001, in order to prevent him from impairing Lamar in its attempts to restore the sign. Harrell filed an answer and counterclaim asserting that Smith and Lamar had violated his property rights and encroached upon his land, and additionally asking the court to adjudicate the lease contracts as void and dissolve the injunction.

¶ 7. After an evidentiary hearing on March 3, 2004, the chancery court entered its final judgment finding that Harrell had committed tortious acts by destroying the sign and that Lamar had a valid right to the property. The court ordered Harrell to pay Lamar $6,645 for replacement of the sign and $20,392.86 in attorney’s fees. Harrell was also permanently enjoined from taking any action to interfere with Lamar or the sign. Aggrieved by the decision, Harrell asserts the following errors on appeal: (1) whether the chancery court erred in failing to find the various leases and deeds defective; (2) whether Harrell is a subsequent innocent purchaser without notice; (3) whether Smith and Lamar committed acts of conspiracy, collusion and fraud; (4) whether the chancery court erred by failing to sustain Harrell’s motion to strike Mrs. Smith’s affidavit; (5) whether the sign is a trade fixture or real property; and (6) whether the chancery court’s validation of the leases and reservation of land gives liberal interpretation to favor Lamar and creates uncertainty.

ISSUES AND ANALYSIS

I. Whether the chancery court erred in failing to find the various leases and deeds defective.

¶ 8. Harrell first asserts that the chancery court erred for multiple reasons in failing to find the various deeds and leases to be defective. Among Harrell’s arguments to void the 1965, 1982, and 1993 leases are the following: the leases were printed on forms prepared by Lamar and filled in by Lamar; the leases are unacknowledged; the leases are unrecorded; Lamar prevented public notice of the leases; Lamar and Smith did not survey the proposed location of the sign to be erected; the leases do not contain adequate legal descriptions of the leaseholds or easements; Harrell did not have notice of the lease contracts; the sign erected in 1965 was on land in which Smith did not have a vested interest; the 1965 lease fails to provide Lamar with an easement for access to Smith’s property; the 1965 lease expired on April 30, 1971; Mrs. Smith did not sign the lease of homestead property; Mr. Smith did not sign the 1993 lease; the 1993 lease attempted to renew a void lease; the 1965 and 1982 leases are not signed by an officer of Lamar; and the leases are vague and ambiguous.

¶ 9. Before examining Harrell’s assignments of error, we first note our guiding standard of review. This Court employs a limited standard of review in reviewing the decisions of a chancellor. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). The findings of a chancellor will not be disturbed unless this Court finds the chancellor abused his discretion, was manifestly wrong or applied an erroneous legal standard. Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). As for questions of law, the standard of review is de novo. Zeman v. Stanford, 789 So.2d 798, 802 (¶ 12) (Miss.2001).

¶ 10. In determining whether a lease is void for vagueness or ambiguity, this Court will look to the intent of the parties to determine the meaning of any disputed provision and the validity of the contract. See Stampley v. Gilbert, 332 So.2d 61, 63-4 (Miss.1976). Furthermore, “[t]here is also the universal rule of construction that when the terms of a contract are vague and ambiguous, they are always construed more strongly against the party preparing it.” Id. at 63. The intent of the parties to the lease in the case sub judice is readily apparent. Lamar was to lease a site for a sign from the Smiths, an understanding that lasted for thirty-nine years. There is no need to construe the leases against Lamar as the drafter.

¶ 11. Harrell also argues that the description of the land upon which the sign was placed was inadequate, thereby voiding the leases. Harrell cites Overby v. Cavanaugh, 434 So.2d 1365, 1366 (Miss.1983), for the proposition that the description sub judice is void for vagueness as “[tjhere are several different configurations or shapes that may be drawn from the subject description, and thus, the description is not valid and reversal is required....” Harrell’s reliance on Overby is misplaced, as the Mississippi Supreme Court has unequivocally recognized that there is a material difference between the construction to be given a tax deed as opposed to a voluntary conveyance. Neil v. Jones, 497 So.2d 797, 799 (Miss.1986). Specifically, the Mississippi Supreme Court has recognized that the intent of the parties is controlling when construing the description in a voluntary conveyance, but may be irrelevant in a tax deed, since the owner conveys nothing and intends to convey nothings. Id. at 799-800. According to the leases before this Court, the property to be leased is easy to ascertain, and no confusion is caused by the description as to what property is described. Furthermore, no doubt exists as to the intent of the parties to the leases.

¶ 12. Harrell next challenges the acknowledgment and recording of the leases. Harrell argues that the signatures of the individuals representing Lamar are insufficient as it is unclear whether they signed the documents on their on behalf or on the behalf of Lamar. An examination of the leases as a whole reveals that the individuals signing the leases did so on behalf of Lamar. See White v. Delta Foundation, Inc., 481 So.2d 329, 333-34 (Miss.1985) (“interpretation of acknowledgments encompasses examination of the body of the instrument itself, and an acknowledgment will not necessarily be deemed fatal for an omission which can be supplied from the body of the instrument itself’). Failure to acknowledge the deed or leases, while imprudent, does not affect the validity of a deed, but only its admittance to record. Crum v. Butler, 601 So.2d 834, 837 (Miss.1992) (citing Miss.Code Ann. § 89-3-1 (1972)). The effect of the lack of acknowledgment is that any such instrument which is filed of record without an acknowledgment or proof shall not be notice to creditors or subsequent purchasers for valuable consideration. Id. at 837 (citing Miss.Code Ann § 89-3-1 (1972)). However, in Crum, the court went on to hold that, under the facts of the case, the unrecorded deed was effective against the subsequent purchaser due to the actual knowledge imparted by the presence of the railroad tracks on the property prior to the conveyance. Id. Here, as in Crum, while the leases themselves were not recorded, the 1991 warranty deed, which was duly recorded, clearly referenced the leases. The sign, which Harrell admitted he had seen, had been standing on the property since 1965. As such, the leases gave Harrell notice of the interests of Lamar and the Smiths in the property.

¶ 13. Harrell next argues that the 1982 renewal lease is void under the homestead statute because Mrs. Smith did not sign it. Mississippi Code Annotated § 89-1-29 (1972) provides that a conveyance of a homestead by an owner without the signature of a spouse is void. Harrell’s argument fails as a matter of course. Mr. and Mrs. Smith married in 1966, one year after Mr. Smith first leased his property to Lamar for the billboard sign. Consequently, the homestead rights acquired by Mrs. Smith were subject to the pre-existing 1965 agreement. See Hughes v. Hahn, 209 Miss. 293, 298, 46 So.2d 587, 589 (1950) (“[t]he statute controls except as to an encumbrance to secure the payment of the purchase price of the homestead, and except as to a prior covenant or encumbrance executed by the husband while single, or a deed given in pursuance of the prior covenant after marriage and occupancy as a homestead”). Furthermore, Mrs. Smith’s uncontested testimony was that she knew of the lease and agreed to the 1982 renewal at the time Mr. Smith signed it. She later affirmed this agreement by executing the 1991 warranty deed that specifically incorporated by reference the 1982 lease renewal. She affirmed the agreement again by the 1993 lease renewal. Under Mississippi law, it is not necessary that Mr. and Mrs. Smith sign the lease at the same time. It is only necessary that each party presently consent at the time the other signed. Id. at 299, 46 So.2d at 589. Therefore, we find that the chancellor committed no error of law in concluding that the homestead statute was inapplicable for the purpose of voiding the leases.

¶ 14. Harrell also argues that upon expiration of the 1965 lease after May 1, 1971, Lamar became a tenant at sufferance. He further alleges that, since the 1982 lease is void, Lamar was a holdover tenant until July 12, 1991 when the Smiths conveyed the 2.6 acres to Burgess and Thomas. This argument relies wholly upon the assumption that the 1982 lease renewal was void, which it was not. This argument is therefore without merit.

¶ 15. Harrell further argues that the 1993 lease renewal is void, as it is a renewal of a “void” lease. This argument again relies on the faulty assumption that the 1965 or 1982 leases were void. For the aforementioned reasons, Harrell’s first assignment of error is without merit.

II. Whether Harrell is a subsequent innocent purchaser without notice.

¶ 16. Harrell argues that he is a bona fide purchaser for value without notice of the lease. Harrell acquired the 2.6 acres in question by a substitute trustee’s deed of J.E. Smith, Jr., for Carthage Bank, dated December 13, 1996, and recorded on December 17, 1996. A good faith purchaser is “one who has in good faith paid a valuable consideration without notice of the adverse rights in another.” Giesbrecht v. Smith, 397 So.2d 73, 77 (Miss.1981). Harrell argues that the lease contracts to Lamar were unrecorded, and that the deed to Harrell made no reservation or exception for the leases or for the land where Lamar had erected the billboard sign. Harrell further argues that he had no constructive or inquiry notice of the leases. “Constructive notice arising from the record ... imputes only such knowledge as the instrument there recorded discloses, and not what a diligent inquiry into its meaning might disclose.” Simmons v. Hutchinson, 81 Miss. 351, 356, 33 So. 21, 22 (1902). Harrell relies on Robertson v. Domroski, a case in which a chancellor’s order to partition a tract of land was reversed, for the following proposition: “Where a subsequent purchaser for value takes title from a prior bona fide purchaser for value without notice, then the subsequent purchaser is entitled to all the protection the recording system offered his grantor ...” Robertson v. Dombroski, 678 So.2d 637, 640 (Miss.1996). Harrell asserts that he did not know the sign was on the property when he purchased the land at public auction, and thus takes the property free and clear of any leasehold.

¶ 17. When one seeks to acquire property the law in Mississippi is that:

A purchaser of land is charged with notice not only of every statement of fact made in the various conveyances constituting his chain of title, but he is also bound to take notice of and to fully explore and investigate all facts to which his attention may be directed by recitals in said conveyance contained. The duty is also imposed on him to examine all deeds and conveyances previously executed and placed of record by his grant- or-either immediate or remote-if such deeds or conveyances in any way affect his title. And if any such deed or conveyance there is contained any recital sufficient to put a reasonably prudent man on inquiry as to the sufficiency of the title, then he is charged with notice of all facts which could and would be disclosed by a diligent and careful investigation.

Bedford v. Kravis, 622 So.2d 291, 295 (Miss.1993) (citing Dead River Fishing & Hunting Club v. Stovall, 147 Miss. 385, 395-96, 113 So. 336, 337-38 (1927)). At trial the chancellor held that Harrell was not a bona fide purchaser based upon the following facts: first, both the sign structure and the Lamar lease with the Smiths were clearly noted in the 1991 warranty deed from the Smiths to Burgess and Thomas; second, Harrell admitted that he had never bothered to look at the 1991 warranty deed prior to purchasing the property; and third, the conspicuous nature of the sign itself was more than sufficient to put Harrell on notice of Lamar and the Smiths’ continued interests in the property.

¶ 18. Lamar argues on appeal that its possession of the property as tenant imports knowledge of its rights in the property to Harrell. Stevens v. Hill, 236 So.2d 430, 434 (Miss.1970) (“[possession of real estate is constructive notice of the title in the occupant to the same extent as that imputed by the record of a deed to him thereto.”). Similarly, the Mississippi Supreme Court has held that “[o]pen and notorious possession of land under claim of title is sufficient to put subsequent purchasers on inquiry [notice] as to the possessor’s rights therein.” Beauchamp v. McLauchlin, 200 Miss. 83, 94, 25 So.2d 771, 775 (1946) (citing Bolton v. Roebuck, 77 Miss. 710, 27 So. 630 (1900)). Lamar argues that it was undisputed that the sign and lease were referenced in the 1991 warranty deed conveying the 2.6 acres to Burgess and Thomas. It is undisputed that Lamar was occupying the property prior to Harrell’s purchase at the foreclosure sale. Likewise, Lamar argues that Harrell did not dispute .that he had seen the sign prior to his purchase.

¶ 19. The chancellor found that Harrell had seen the sign on the 2.6 acres prior to purchasing the property, and that Harrell took through the trustee deed only such interest as was conveyable, namely the interest subject to the reservation of the 1991 deed to Burgess and Thomas. We find no error in the chancellor’s findings that Harrell had actual and constructive notice of the lease and that Harrell was not a bona fide purchaser for value without notice. Thus this assignment of error is without merit.

III.Whether Smith and Lamar committed acts of collusion, conspiracy, and fraud.

¶20. Harrell alleges that Lamar and Mrs. Smith conspired to defraud him as the future owner of the 2.6 acres in question. Harrell asserts that Mr. Smith’s lease of a second sign site to Headrick Outdoor Signs in 1994 and the erection of a sign on an adjacent piece of property are evidence of a conspiracy between Lamar and Mr. Smith, and that the sign is a nuisance to Harrell that seriously affects the present and future value of Harrell’s property. This assertion was dismissed by the chancellor at trial as it was unsupported by any evidence or authority. Harrell has cited no authority on appeal. “It is the appellant’s duty to provide authority and support for its issue.” Rigby v. State, 826 So.2d 694, 707(¶ 44) (Miss.2002). We therefore find this issue to be without merit.

IV. Whether the trial court erred by failing to sustain Harrell’s motion to strike Mrs. Smith’s affidavit.

¶ 21. Harrell next asserts that Mrs. Smith filed a false affidavit in support of her motion for summary judgment. According to Harrell, the affidavit stated false matters and that when Mrs. Smith quoted from the 1991 deed reservation clause, she added the words “right,” “site,” “renew,” and “pursuant” in order to bolster her interpretation of the clause. The chancellor’s order denying Harrell’s motion to strike explicitly stated that the chancellor would not use the assertions of any affiant to construe the meaning of the reservation clause of the 1991 deed. There is no evidence that the chancellor acted in a manner contrary to his own order, thus this issue is without merit.

V. Whether the billboard sign is a trade fixture or real property.

¶ 22. Harrell asserts that the billboard is a trade fixture and that if the leases are void, the trade fixtures can be removed from Harrell’s property. The leases are not void. This issue is moot.

VI. Whether the chancery court’s validation of the leases and reservation of land gives liberal interpretation to favor Lamar and creates uncertainty.

¶23. For his last assignment of error Harrell argues that the chancery court’s interpretations of the leases were liberally construed in favor of Lamar. Harrell also argues and that the leases themselves were ambiguous. The chancellor, in examining the intent of the parties to the leases, found no such ambiguities. Due to this fact, there was no need to construe the leases against the drafter Lamar, nor is there any evidence that the chancellor did so. This assignment of error is without merit.

¶ 24. THE JUDGMENT OF THE LEAKE COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR.


author: IRVING, J.,

text:
    Ronald POWELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00635-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2005.
    Rehearing Denied Jan. 17, 2006.
    Certiorari Denied April 6, 2006.

      Michael Lee Knapp, Thomas M. Fort-ner, Jackson, Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory Eleanor, Faye Peterson, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. Ronald Powell was convicted by a Hinds County jury of burglary of a building and was sentenced to serve seven years in the custody of the Mississippi Department of Corrections. On appeal, Powell argues that the trial court erred in admitting certain items into evidence that were not disclosed by the State during discovery and in denying his proposed jury instruction on eyewitness testimony. Finding no reversible error, we affirm Powell’s conviction.

FACTS

¶ 2. On the night of August 18, 2002, Robert Finch stopped by his place of employment at a local tire store to use the restroom. As he approached the building, Finch noticed that a truck was parked on the side of the building, and on the back of the truck were several items that had been taken from the store. Upon entering the store, Finch was confronted by a man with a gun. Finch testified that when the man, who was approximately three feet away from him, asked him what he was doing in the store, he informed the man that he was there to use the restroom. When Finch inquired as to the reason why the man was in the building, the man responded that he was “taking [him] some stuff.” The man then allowed Finch to use the restroom and loaded several tires onto his truck before leaving the store. Thereafter, Finch called the police and notified the store’s owner, Timothy Naylor, of the burglary.

¶ 3. Naylor testified that after arriving at the store, he was standing outside when he observed a truck pass by that matched the description of that driven by the man who had burglarized the store earlier that night. Naylor followed the truck to a local gas station and observed the driver attempting to sell some of the tires that had been taken during the burglary. Naylor left the gas station and notified the police. When Naylor returned, the driver of the truck, who was later identified as Ronald Powell, had been taken into police custody. Thereafter, Finch was taken to the gas station where he immediately identified Powell as the man whom he had seen burglarizing the store.

¶ 4. Powell, however, gave a different version of events. At trial, he testified that he was on his way to a party when he stopped to assist a stranded motorist. Powell further testified that he agreed to load items from the motorist’s truck onto his own, and then drove to the gas station to wait for the arrival. Powell testified that he was arrested by the police while waiting on the motorist at the gas station. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Discovery Violations

¶ 5. In his first two assignments of error, Powell argues that the trial court erred in allowing certain items into evidence that were not disclosed by the State during discovery. He specifically contends that the State’s failure to tender a record of his prior false pretense conviction and several photographs depicting the stolen property constituted a discovery violation under Uniform Circuit and County Court Rule 9.04. In support of his argument, Powell has also filed a motion with this Court, seeking to supplement the record with certain documents provided to him by the State during discovery, namely a copy of his National Criminal Information Center (NCIC) report and several documents which make reference to the photographs at issue. By an order entered contemporaneously with this opinion, we grant Powell’s motion. Therefore, we consider the foregoing evidence in our resolution of the issues before us.

¶ 6. We first address Powell’s argument that the trial court erred in allowing the State to use his prior false pretense conviction to impeach him. Powell contends that because the NCIC report provided by the State failed to set forth the conviction, the State failed to comply with his discovery request. The State, however, maintains that because Rule 9.04 only requires the disclosure of a defendant’s criminal history, and not necessarily certified copies of convictions, the NCIC report provided to Powell constituted sufficient notice of his false pretense conviction.

¶ 7. According to the record, Powell’s attorney submitted a written discovery request for a “[c]opy of the criminal record of the [defendant.” In response, the prosecution provided the defense with a copy of Powell’s NCIC report which set forth various charges for which Powell had been arrested. The NCIC report, however, failed to expressly or implicitly reference Powell’s false pretense conviction.

¶ 8. During trial, over strenuous objection, the State was allowed to impeach Powell with a certified copy of an abstract of the conviction. In allowing the State to proceed with the impeachment of Powell, the trial court erroneously ruled that no disclosure on the part of the State was required since the conviction was being used for impeachment purposes. Powell never brought to the court’s attention that its ruling contravened the clear wording of Rule 9.04 A.8, which provides that a “[c]opy of the criminal record of the defendant, if proposed to be used for impeachment” must be tendered to the defendant as part of pretrial discovery.

¶ 9. In support of his argument, Powell cites Box v. State, 437 So.2d 19 (Miss.1983) as authority. Although the Box case first set forth the appropriate procedures and remedies for the trial court to consider in resolving discovery violations, that procedure is now reflected in Rule 9.04 of the Uniform Circuit and County Court Rules. McCullough v. State, 750 So.2d 1212, 1217 (¶ 18) (Miss.1999) (citing Duplantis v. State, 644 So.2d 1235 (Miss.1994)).

¶ 10. If the prosecution fails to comply with its disclosure obligations, Rule 9.04 provides in part:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.

URCCC 9.04 I.

¶ 11. We find that the prosecution was clearly in violation of Rule 9.04 for failing to provide Powell with a copy of his false pretense conviction. Because the rule specifically mandates the disclosure of a defendant’s criminal record when used for impeachment purposes, Powell was entitled to notice that his false pretense conviction would be used against him. We also find that the trial court erred when it allowed the State to impeach Powell without complying with the requirements of Rule 9.04.

¶ 12. After Powell was convicted, he filed a motion for a new trial in which he averred that the court erred in allowing the State to impeach him because he was not given a copy of the impeaching document. During the hearing on the motion, the State again insisted that it had complied with Rule 9.04 by tendering to Powell a copy of his NCIC report. Powell continued to insist that the State failed to tender, during discovery, a copy of his false pretense conviction. However, Powell never gave the trial court a copy of the NCIC report tendered to him by the State, and never specifically said to the court that the conviction was not referenced or reflected in the NCIC report, as claimed by the State.

¶ 13. While the trial court clearly erred in allowing the State to use an impeaching document that was not disclosed, we cannot find that this error requires us to reverse. There are two reasons for this position. First, we cannot put the trial court in error regarding a matter that was never brought to the court’s attention. As stated, Powell never brought to the court’s attention that the conviction was not listed in the NCIC report as the State claimed. Therefore, the court never had a chance to rule on whether the State’s tendering of the NCIC report satisfied the State’s obligation under Rule 9.04. Additionally, it would have been preferable for Powell to have brought to the court’s attention, when the matter first arose during trial, that the court’s ruling — that a copy of Powell’s conviction of false pretense was not required to be given to Powell during discovery because it was impeachment material— was at odds with the prosecution’s obligation under Rule 9.04 A.3. Had Powell done so, the court would have been compelled to proceed in accordance with the dictates of Rule 9.04 I. Second, a violation of Rule 9.04 by the prosecution does not necessarily result in a reversal of the defendant’s conviction.

¶ 14. The Mississippi Supreme Court has repeatedly held that a violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that a violation caused a miscarriage of justice. See Wyatt v. City of Pearl, 876 So.2d 281, 284 (¶ 10) (Miss.2004) (citing Buckhalter v. State, 480 So.2d 1128 (Miss.1985)). Although Powell contends that the State’s use of the false pretense conviction to impeach him was devastating to his credibility with the jury, we cannot say that, based on the facts of this case, a miscarriage of justice occurred. This is not a circumstantial evidence case; Powell was caught in the criminal act of which he was convicted. Therefore, we find that the State’s violation constituted harmless error. However, we find that the State’s erroneous representation to the trial court, as well as to this Court during oral argument, is indefensible. Surely, the State should have taken the time to read the NCIC report to confirm the State’s assertion that the NCIC report did in fact contain a reference to Powell’s false pretense conviction. We expect better from the State.

¶ 15. Powell next contends that the trial court erred in admitting certain photographs into evidence. The State counters that Powell received notice of the photographs’ existence; therefore, a discovery violation did not occur.

¶ 16. During its examination of Naylor, the prosecution sought to introduce several photographs into evidence that depicted stolen property recovered from Powell’s truck. A bench conference was held, and the trial judge allowed the photographs to be admitted into evidence. Thereafter, during a subsequent hearing on Powell’s motion for a new trial, the prosecution offered the following undisputed argument in support of the judge’s prior ruling which allowed the photographs into evidence:

BY MR. ALEXANDER [Prosecutor]: First of all, as far as the photographs are concerned, your Honor, the discovery which was given to counsel opposite listed six photographs. It said six photographs. At no point in time did Mr. Jones ask me for those photographs. As a matter of fact, in open court he told the Court that I just thought he wasn’t going to use them because he never brought them over to me.
On the morning of the trial I showed him the photographs. And then when the Court asked-prior to beginning voir dire the Court asked are there any things that need to be brought up. Mr. Jones said nothing at that time either. He didn’t say he wanted to keep the photographs out. He didn’t file a motion ore tenus in limine to keep out the photographs.
He was put on notice that the photographs did, in fact, exist, so he waived that right. And the Court had a hearing, a bench trial during the trial outside the presence of the jury about those photographs before they went in, and the Court properly ruled that he was put on notice and that they should come in.

¶ 17. We have reviewed the documents provided by the State during discovery, and we find that the documents effectively put Powell on notice of the existence of the photographs. Similarly, according to the prosecution’s undisputed recollection of events, Powell was given an opportunity to view the photographs on the morning of trial. Therefore, he cannot now claim prejudice or unfair surprise by the images depicted therein. As a result, we find that the trial court did not err in allowing the photographs into evidence.

(2) Jury Instruction D-Jp

¶ 18. Powell next challenges the trial court’s denial of jury instruction D-4, his proposed instruction on eyewitness testimony. He specifically contends that the court’s denial of the instruction deprived him of the right to present his theory of misidentification to the jury.

¶ 19. Instruction D^4 states:

The Court instructs the jury that whether Ronald Powell was the person who committed the crimes in this case is a matter for you, the Jury, to decide. The State has the burden of proving beyond a reasonable doubt the identity of Ronald Powell as the perpetrator of the crime. If you are not convinced from the evidence beyond a reasonable doubt that Ronald Powell was the person who committed this crime, you must find him Not Guilty.

Identification testimony is an expression of belief - or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

In appraising the identification testimony of a witness you should consider the following:

(1) Are you convinced that the witness had the capacity and adequate opportunity to observe the offender and to give an adequate description of the offender upon which to base a subsequent identification?
(2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of their own recollection?
(3) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether they are truthful, and consider whether they had the capacity and opportunity to make a reliable observation on the matter covered in their testimony.
If any of the above factors are considered by you, they should be considered along with all of the other matters, facts, and things in evidence in this case and in light of you [sic] own human experience, common sense and sound judgment.
If, after considering all of the above, you have a reasonable doubt that Ronald Powell was the person who committed these crimes, then it is your sworn duty to find him Not Guilty.

¶ 20. In support of his argument that the trial court should have granted instruction D-4, Powell directs our attention to Warren v. State, 709 So.2d 415, 421 (¶ 28) (Miss.1998), where the Mississippi Supreme Court held that a trial court’s failure to give an identification instruction was reversible error because the defendant’s identification was based solely upon the testimony of a single witness. We find that Powell’s reliance upon Warren is misplaced. Unlike the defendant in Warren, Powell’s identification and subsequent conviction did not rest entirely upon the testimony of a single witness. Instead, the State offered the testimony of three witnesses: Finch, Naylor, and arresting officer Angela Hart, all of whom positively identified Powell as the perpetrator. Similarly, the State presented evidence that property stolen from the store was recovered from Powell’s truck, which provided additional independent evidence of his involvement in the crime. Powell’s argument to the contrary is without merit.

¶ 21. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A BUILDING AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR.

      . Although the store had closed for the night, the lights were still on inside the building.

      . The abstract shows that Powell entered a guilty plea to the false pretense charge in Jackson Municipal Court on August 19, 2002. The record also reflects that a bench conference was held in response to Powell’s objection to the false pretense conviction. Although Powell claims that the trial court did not allow him an opportunity to make a record of the bench conference, we find that he fails to offer evidence that a request was made by him for an on-the-record conference and that the request was denied by the trial court.

      . The bench conference was not made part of the record.

      . Powell argues that Finch's initial physical description of the robber as "a black man” warranted the giving of instruction D-4. Powell contends that Finch initially gave police a generalized physical description of the perpetrator, and did not crystallize his identification until after observing him in the police car. The record however does not support Powell's contention. Finch testified that he described Powell as "a black guy about five-eight to five-nine in height,” that "looked to be in his mid-thirties.”