author: COOKS, Judge.

text:
    STATE of Louisiana v. Matthew James NOLAN.
    No. KA06-989.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 2006.
    Hon. Don M. Burkett, District Attorney, Many, LA, for Appellee, State of Louisiana.
    Anita D. McKeithen, McKeithen Law Office, Shreveport, LA, for Appellant, Matthew James Nolan.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

hOn July 9, 2003, Defendant, Matthew James Nolan, was found guilty of second degree murder following a bench trial. The Defendant was sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence on November 7, 2003. The Defendant appealed and this court affirmed his conviction and sentence on November 7, 2003. State v. Nolan, 04-360 (La.App. 3 Cir. 9/29/04), 882 So.2d 1246.

The Defendant filed an application for post-conviction relief in the trial court on June 17, 2005. A hearing on the Defendant’s application for post-conviction relief was held on March 3, 2006. The matter was taken under advisement, and on March 20, 2006, the trial court issued a “Ruling on Post-Conviction Relief Application,” in which the application was denied. The Defendant filed a motion for appeal from the trial court’s judgment denying his application for post-conviction relief, which was granted by the trial court on April 11, 2006.

On August 7, 2006, this court issued a rule to show cause why the appeal in this case should not be dismissed as the judgment at issue is not appealable. The Defendant filed a brief with this court in response to the rule in which he acknowledges that the judgment is not an appeal-able judgment, but requests that the notice of appeal be changed to a notice of intent to file for supervisory writs.

Louisiana Code of Criminal Procedure Article 930.6(A) provides:

The petitioner may invoke the supervisory jurisdiction of the court of appeal if the trial court dismisses the application or otherwise denies relief on an application for post conviction relief. No appeal lies from a judgment dismissing an application or otherwise denying relief. (Emphasis added.)

Accordingly, the appeal in this case is hereby dismissed. Defendant-Appellant, Matthew James Nolan, is hereby permitted to file a proper application for supervisory |2writs, in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than thirty days from the date of this decision. The Defendant is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules — Courts of Appeal, Rule 4-3 as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. DEFENDANT-APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.


source: Caselaw Access Project

author: PAINTER, J.

license: Public Domain

text:
    STATE of Louisiana, BOARD OF ETHICS v. Jim DARBY, et al.
    No. CA 2006-1058.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 24, 2006.
    Glynn Douglas Dean, Dean Law Offices, Opelousas, LA, for Defendant Appellee, Charles Jagneaux St. Landry Parish Clerk of Court.
    R. Gray Sexton, Kathleen Marie Allen, Alesia M. Ardoin, Baton Rouge, LA, for Plaintiff Appellant, State of Louisiana, Board of Ethics.
    Merietta Spencer Norton, Elections Sect. Sec. State, Baton Rouge, LA, for Defendant Appellee, Louisiana Secretary of State.
    Jim Darby, In Proper Person, Opelou-sas, LA, for Defendant Appellee, Jim Darby.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, J.

L Pursuant to La.R.S. 18:1409 of the Election Code, we have granted expedited consideration to the appeal of the judgment denying the Louisiana State Board of Ethics’ (the “Board”) objection to the candidacy of Jim Darby (“Mr. Darby”) for Sheriff of St. Landry Parish, Louisiana. The Board, in its capacity as the Supervisory Committee on Finance Disclosure, asserted that Mr. Darby should be disqualified as a candidate because he falsely certified on his “Notice of Candidacy” that he did not owe outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act (“CFDA”), La.R.S. 18:1481, et seq. At the contradictory hearing on the matter, the trial court ordered Mr. Darby to pay the outstanding fees within twenty-four hours to avoid disqualification. Mr. Darby paid the fine and the trial court denied the petition of the Board. For the following reasons, we reverse and render.

ISSUES

Can a candidate who falsely swears in the “Notice of Candidacy” form that he does not owe outstanding fees, fines, or penalties pursuant to the Campaign Finance Disclosure Act avoid disqualification as a candidate by subsequently tendering payment of the outstanding amount due?

FACTUAL BACKGROUND

Defendant-appellee, Mr. Darby, qualified to run for Sheriff of St. Landry Parish by filing Louisiana’s qualifying form, the “Notice of Candidacy”, on August 11, 2006, with the St. Landry Parish Clerk of Court. Mr. Darby signed the form before |2two witnesses and a notary public on that date, certifying, among other things, the following:

6. I do not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act, and I acknowledge that I am subject to the provisions of the Campaign Finance Disclosure Act if I am a candidate for any office other than United States Senator, Representative in Congress, or member of a committee of a political party. [R.S. 18:463A(2)(a), 18:1481, et seq.]

On August 15, 2006, the Board, in its capacity as the Supervisory Committee on Finance Disclosure, filed a petition objecting to Mr. Darby’s candidacy, specifically alleging that pursuant to La.R.S. 18:492(A)(5), the false certification served as grounds for Mr. Darby’s disqualification as a candidate. The Board alleged that it had assessed late fees against Mr. Darby on September 14, 2004, for failure to timely file four campaign finance disclosure and/or expenditure reports, as mandated by La.R.S. 18:1484(1), relevant to the October 4, 2003, election in which Mr. Darby was a candidate for the office of State Senate, District 24. The Board’s Order | Sassessing $1,200.00 in late fees was subsequently converted into a Judgment by the 19th Judicial District Court on March 22, 2005. The Judgment was filed in the St. Landry Parish Clerk of Court records on November 18, 2005. The Board asserted that Mr. Darby failed to seek a waiver of the fees prior to a final Order being rendered and also failed to seek an appeal of the judgment within the delays allowed by law. Attached to the Board’s petition was the sworn Verification of Judith Jackson, the Campaign Finance Program Compliance Officer for the Ethics Administration Program. In that document she states that she receives and records payments of campaign finance late fee assessments and that as of August 14, 2006, Mr. Darby had made no payments on the $1,200.00 assessment.

On August 17, 2006, a contradictory hearing was held before the trial court on the Board’s challenge to Mr. Darby’s candidacy, in support of which the Board filed into evidence the “Notice of Candidacy” containing the false certification, a certified copy of the Board’s Order of October 14, 2004, which made absolute Mr. Darby’s assessment of late fees, and a certified copy of the 19th Judicial District Court’s Judgment converting the Order. Mr. Darby appeared at the hearing in proper person and denied that he had any knowledge of having been assessed late fees by the Board at the time he filed his “Notice of Candidacy” on August 11, 2006.

The trial court orally ruled that the Board established a prima facie case for Mr. Darby’s disqualification. The court, however, ordered Mr. Darby to tender the full amount owed to the Board by 10:30 a.m. the following morning in order to avoid being disqualified as a candidate. That day, Mr. Darby submitted two money orders totaling $1,200.00, as directed by the trial court. The trial court signed a Judgment denying the Board’s objection to Mr. Darby’s candidacy on August 18, 2006. The Board filed this appeal.

CLAW AND ANALYSIS

Revised Statutes 18:463(A)(2)(a) and (b) require a candidate to certify at the time of qualifying that he or she owes no outstanding fines pursuant to the CFDA:

§ 463. Notice of Candidacy; financial statements; political advertising; penalties

(2)(a) The notice of candidacy also shall include a certificate, signed by the candidate, certifying that he has read the notice of his candidacy, that he meets the qualifications of the office for which he is qualifying, that he is not currently under an order of imprisonment for conviction of a felony, that he is not prohibited from qualifying as a candidate for conviction of a felony pursuant to Article I, Section 10 of the Constitution of Louisiana, that he has attached to the notice of his candidacy the financial statement required by Subsection B of this Section, if applicable, that he acknowledges that he is subject to the provisions of the Campaign Finance Disclosure Act (R.S. 18:1⅛81 et seq.) if he is a candidate for any office other than United States senator, representative in congress, or member of a committee of a political party, that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act, and that all of the statements contained in it are true and correct. The certificate shall be executed before a notary public or shall be witnessed by two persons who are registered to vote on the office the candidate seeks. If the candidate is serving outside the state with the armed forces of the United States, his notice of candidacy shall be witnessed by a commissioned officer in the armed forces of the United States.
(b) For the purposes of this Paragraph, “outstanding fine, fee, or penalty” shall mean a fine, fee, or penalty equal to an amount of two hundred fifty dollars or more assessed by order of the Supervisory Committee on Campaign Finance Disclosure pursuant to the Campaign Finance Disclosure Act which has been converted into a court order for which all appeals have been exhausted or a judgment of a district court assessing civil penalties pursuant to the Campaign Finance Disclosure Act which has become executory pursuant to R.S. 18:1511.5. “Outstanding fine, fee, or penalty” shall not mean any fine, fee, or penalty which has been paid in full or for which the candidate is in compliance with a payment plan established in writing between the Supervisory Committee on Campaign Finance Disclosure and the candidate.

[fi(Emphasis added). The Election Code, in turn, establishes that a false certification in this regard that is set forth in the “Notice of Candidacy” is a ground for disqualification of the candidate. La.R.S. 18:492(A)(5). The Louisiana Board of Ethics, in its capacity as the Supervisory Committee on Campaign Finance Disclosure, has been given the duty of enforcement of the CFDA, and has standing to challenge a person’s candidacy for violations of the CFDA. See La.R.S. 18:1511.1(A); La.R.S. 18:491(C).

“In an election contest, the person opposing candidacy bears the burden of proving the candidate is disqualified.” Becker v. Dean, 03-2493, p. 7 (La.9/18/03), 854 So.2d 864 (citing La.R.S. 18:492). Once the burden of proof is carried, by the establishment of a prima facie case proving that the candidate is disqualified, the burden shifts to the person opposing the disqualification to rebut the showing. See Landiak v. Richmond, 05-0758 (La.3/24/05), 899 So.2d 535; see also, Louisiana State Board of Ethics v. Garrett, 06-0263 (La.App. 4 Cir. 3/21/06), 929 So.2d 176. If that party is unable to successfully rebut the evidence establishing the prima facie case for disqualification, the objection to the candidacy is to be sustained. See Garrett, 929 So.2d 176. According to La. R.S. 18:494(A), the effect of sustaining an objection to candidacy is disqualification:

§ 494. Effect of sustaining an objection to candidacy

A. Disqualification. When an objection to candidacy is sustained on the ground that the defendant failed to qualify for the primary election in the manner prescribed by law, that the defendant failed to qualify for the primary election within the time prescribed by law, or that the defendant does not meet the qualifications for the office he seeks, the final judgment shall disqualify the defendant as a candidate in the primary election for the office for which he failed to qualify properly.

In this case, we find that there was sufficient evidence presented by the Board to establish a prima facie case for disqualification based on a false certification in the | ¿‘Notice of Candidacy” filed by Mr. Darby. See La.R.S. 18:492(A)(5). The record reflects that Mr. Darby owed $1,200.00 in late fees, plus legal interest and costs, for his failure to comply with the CFDA leading up to an election in 2003 in which he was a candidate and that as of the date of filing his “Notice of Candidacy” in 2006, he had not made any payments to satisfy this assessment. The Board presented as evidence the “Notice of Candidacy,” a certified copy of its Order assessing the late fees, and the Judgment, converting the Order, that was rendered against Mr. Darby by the 19th Judicial District Court. Moreover, the record reflects that a copy of the Judgment rendered by the 19th Judicial District Court was mailed to Mr. Darby by the 19th Judicial District Clerk of Court’s office on March 25, 2005.

Mr. Darby, on the other hand, presented only his sole testimony that he had no knowledge that there was an outstanding Judgment against him for the late fees prior to him qualifying for the Sheriffs race. The trial court considered this testimony and the evidence presented and apparently found this testimony insufficient to rebut the evidence presented by the Board. We find no error in the trial court’s findings in this regard.

We, however, find that the trial court committed manifest error in ordering additional time for Mr. Darby to satisfy the outstanding obligation in order to avoid disqualification. Rather, pursuant to La. R.S. 18:494, we find that the petition objecting to the candidacy should have been granted, disqualifying Mr. Darby as a candidate for the office of Sheriff of St. Landry Parish. The language of La.R.S. 18:494 mandates the disqualification after such an objection is sustained. Therefore, the judgment of the trial court is reversed.

CONCLUSION

17Accordingly, we reverse the judgment of the trial court denying the Louisiana Board of Ethics’ Objection to the Candidacy of Jim Darby for the Office of Sheriff of St. Landry Parish. Jim Darby is disqualified as a candidate for the office of Sheriff of St. Landry Parish in the September 30, 2006 election. Costs of this appeal are assessed to defendant-appellee, Jim Darby.

REVERSED AND RENDERED.

      . The St. Landry Parish Clerk of Court, the Honorable Charles Jagneaux, was named as a co-defendant in this action, pursuant to La. R.S. 18:1402(A)(2), in his capacity as the qualifying official before whom Mr. Darby qualified as a candidate.

      . Revised Statutes 18:492(A)(5) states:
      § 492. Grounds for an objection to candidacy
      An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:
      (5) The defendant falsely certified on his "Notice of Candidacy” that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act as provided in R.S. 18:463(A)(2).

      . Revised Statutes 18:1484(1) provides:
      § 1484. Disclosure reports; persons required to file
      Except as otherwise specifically provided, the following persons or their campaign treasurers, if any, shall file reports of contributions and expenditures as more specifically provided in this Chapter:
      (1) Each candidate for major office or district office.

      . Revised Statutes 18:1483(7)(a) states that, " 'District office’ means the following offices but shall not include any major office: (a) The office of a member of the Louisiana Legislature.”


author: DECUIR, Judge.

text:
    STATE of Louisiana v. Brad DUCOTE.
    No. KA06-875.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 2006.

      Charles A. Riddle, III, District Attorney, Marksville, LA, for Appellee, State of Louisiana.
    Michael Reese Davis Hymel, Petersen & Davis, LLC, Baton Rouge, LA, for Appellant, Brad Ducote.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

On March 17, 2005, Defendant, Brad Ducote, pled guilty to forgery, a violation of La.R.S. 14:72, and was sentenced, pursuant to a plea agreement, to serve four years at hard labor, suspended, with general and special conditions. On March 16, 2006, the Defendant filed a motion to withdraw his guilty plea. A hearing was held on April 20, 2006, after which the trial court denied the Defendant’s motion. The Defendant thereafter filed a motion for appeal from the trial court’s judgment denying his motion to withdraw guilty plea and the trial court granted the motion for appeal on May 8, 2006.

On July 14, 2006, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed, as the judgment at issue is not appealable. The Defendant filed a brief with this court asserting that an appeal is the proper method of seeking review, and alternatively, that this court consider the appeal as a writ application and review the merits of his claim.

The judgment at issue herein is not appealable pursuant to La.Code Crim.P. art. 912.1, therefore, the appeal in the above captioned case is hereby dismissed. Brad Ducote, Defendant-Appellant, is hereby permitted to file a proper application for supervisory writs, in compliance with Uniform Rules — Courts. of Appeal, Rule 4, no later than thirty days from the date of this decision. The Defendant is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules— Courts of Appeal, Rule 4-3 as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. DEFENDANT-APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.


author: DICKINSON, Justice,

text:
    Tiffany HEARD v. Keith REMY.
    No. 2005-CA-01556-SCT.
    Supreme Court of Mississippi.
    July 20, 2006.
    Rehearing Denied Sept. 28, 2006.

      Roberta Lynn Haughton, West Point, attorney for appellant.
    Jack H. Hayes, Jr., attorney for appel-lee.
    Before SMITH, C.J., CARLSON and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. This is an appeal of an order dismissing a plaintiffs case as barred by the statute of limitations, which ran after the plaintiff failed to serve process on the defendant within the 120-day period allowed by Rule 4(h) of the Mississippi Rules of Civil Procedure. For the reasons discussed herein, we affirm.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On October 3, 2001, Tiffany Heard was a passenger in a vehicle driven by Patrice M. Staple which was traveling west on Highway 12 in Starkville, Mississippi. Keith Remy was the operator of a 1993 Buick exiting a parking lot onto Highway 12. When Remy turned left out of the parking lot, he collided with Staple’s vehicle. Heard filed a complaint alleging Remy’s negligence proximately caused the collision. Heard asserted she sustained injuries as a result of being propelled forward during the impact. Heard filed her complaint, and process was issued on September 29, 2004, five days prior to the running of the three-year statute of limitations. However, Remy was not served with process within the 120-day period that followed.

¶ 3. The 120-day period for service of process expired on January 27, 2005. On February 17, 2005, Heard filed a Motion for an Extension of Time within which to serve process on Remy. The trial court granted Heard an additional 60 days within which to serve process, but it did not make any findings as to whether Heard had shown good cause for her failure to serve. Remy was served with process on February 25, 2005.

¶4. After being served with process, Remy filed an Answer and Motion for Judgment on the Pleadings. The Answer contained several affirmative defenses, including failure to state a claim and expiration of the statute of limitations. The Motion for Judgment on the Pleadings alleged the three-year statute of limitations had run prior to Heard’s filing of the Motion for Extension of Time; therefore, the motion asserted, the court improperly entered the order granting Heard more time to serve Remy.

¶ 5. The trial court held a hearing on Remy’s Motion for Judgment on the Pleadings and ordered the parties to submit briefs of their arguments. The court subsequently entered an Order on July 8, 2005, dismissing Heard’s case. The Order stated Heard had not shown good cause for her failure to serve Remy within 120 days and noted the statute of limitations had expired. Heard filed a notice of appeal to this Court claiming the trial court erred in finding that Remy had not waived the defenses of insufficiency of process and insufficiency of service of process, that the statute of limitations had expired, that good cause did not exist, and that the motion for extension of time had to be made within 120 days.

DISCUSSION

¶ 6. Heard raises four issues on appeal:

I. Whether the trial court erred in finding Remy had not waived the defenses of insufficiency of process and insufficiency of service of process.

¶ 7. Heard asserts the trial court erred by not finding Remy waived the defenses of insufficiency of process and insufficiency of service of process. This assertion, however, is supported by neither the facts nor the law.

¶ 8. Mississippi Rule of Civil Procedure 4(h) provides that a failure to serve process within 120 days of the filing of the complaint, absent proof of “good cause” for the failure, shall warrant dismissal upon the court’s initiative or upon motion. Failure to assert the defense in an answer, motion, or other responsive pleading waives the defense. See Young v. Huron Smith Oil Co., 564 So.2d 36, 39 (Miss.1990). Under M.R.C.P. 12(b), “[n]o defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.” In Rains v. Gardner, 731 So.2d 1192, 1197 (Miss.1999), this Court explained:

a moving party has a choice of making a M.R.C.P. 4(h) objection to process by filing a M.R.C.P. 12(b)(4) or (5) motion prior to filing a responsive pleading; by asserting other general affirmative defenses; or by filing them simultaneously therewith. The M.R.C.P. 4(h) defense is waived only after the filing of an answer or affirmative defenses if the defense is not asserted prior to or simultaneously within the answer.

¶ 9. Remy was served with process ’ on February 25, 2005. He filed both his Am-swer and Affirmative Defenses and his Motion for Judgment on the Pleadings on March 10, 2005. His Answer contained several affirmative defenses, including failure to state a claim and expiration of the statute of limitations. His Motion for Judgment on the Pleadings specifically alleged that both the 120-day service period under Rule -4(h) and the three-year statute of limitations had run “without service of process being perfected upon the Defendant.”

¶ 10. These two pleadings sufficiently asserted the Rule 4(h) defense. Heard’s Response to Remy’s Motion for Judgment on the Pleadings acknowledged Remy’s assertion that “both the statute of limitations and the 120 day period ran on this- case prior to Plaintiff seeking extension of time to serve the Defendant....” Thus, Heard was fully aware from the content of the pleadings that Remy was pursuing dismissal based on both her failure to serve process within the time permitted and the expiration of the statute of limitations.

¶ 11. Heard claims that because Remy did not use the magic words “insufficiency of process” or “insufficiency of service of process,” those defenses are waived. We find this argument unpersuasive. Remy specifically pled that process was served after the expiration of both the 120 days for service of process and the three-year statute of limitations. Although the process may have been sufficient and valid in all other respects, the service was simply too late. Untimely service of process is insufficient service of process.

¶ 12. Furthermore, Heard’s reliance on Young is misplaced. In Young, the plaintiff served process on the defendant at his home in Tennessee by certified mail. 564 So.2d at 37. After process was returned marked “unclaimed,” the plaintiff attempted service when the defendant came into the state. Id. The defendant subsequently filed an answer in the case without any mention of improper service of process. Id. Then, more than two months later, the defendant filed a motion to dismiss based on improper service. Id. Following the trial court’s denial of the motion and the defendant’s subsequent appeal, this Court held that by failing to assert insufficiency of process in his answer and failing to obtain leave of court to amend his answer, the defendant waived the argument. Id. at 39. The Young case is inapplicable here because Remy’s answer and responsive pleadings properly set forth facts demonstrating that service was effected after the expiration of the 120-day period for service and the three-year statute of limitations.

¶ 13. Remy asserted the appropriate defenses regarding service of process, the statute of limitations, failure to state a claim, and expiration of the 120-day service period. For the reasons stated, Heard’s claim that the trial court erred in finding Remy did not waive the defenses of insufficiency of process and insufficiency of service of process is without merit.

II. Whether the trial court erred in finding the statute of limitations had expired in this case.

¶ 14. Heard next asserts the trial court erred in finding the statute of limitations expired prior to service of process on Remy. Specifically, Heard maintains the statute of limitations did not run because the case was not dismissed prior to the service of process. Because Heard’s analysis of the relevant law is incorrect, this issue is without merit.

¶ 15. It is true that Heard filed suit prior to the expiration of the statute of limitations. However, we have previously held that “[i]n the event the action is commenced within the period of limitation, the statute of limitations stops running, for a time.” Triple “C” Transp., Inc. v. Dickens, 870 So.2d 1195, 1199 (Miss.2004) (emphasis added) (citing Watters v. Stripling, 675 So.2d 1242, 1244 (Miss.1996)). If the defendant is not served during the 120-day service period, the statute begins to run again. Dickens, 870 So.2d at 1199-1200 (citing Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002) (“Filing 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.”)). Heard failed to serve process within the time allowed by Rule 4(h), and thus the statute of limitations began to run at the conclusion of the 120-day period.

¶ 16. Heard cites Crumpton v. Hegwood, 740 So.2d 292 (Miss.1999), for the proposition that the statute of limitations does not begin to run again upon the expiration of the 120 days allowed for service of process unless the court dismisses the case for failure to serve process. Crumpton, however, makes no such finding. The case turned on the question of whether the plaintiff demonstrated good cause for failure to serve process during the 120-day period allowed by Rule 4(h). Id. at 295. Where good cause is shown for an extension of time to serve process, and process is served within the time allowed, the statute of limitations will be tolled during the extension period. Id. at 294. We remanded in Crumpton for a determination of whether the plaintiff had shown good cause for the extension. Id. at 295.

¶ 17. As we held in Crumpton, an extension of time to serve process continues to toll the statute of limitations only if granted for good cause. If service is made within the additional time, the statute of limitations will not be held to have expired. In the current case, however, the 120-day period expired prior to Heard’s application for an extension of time. The trial court granted the requested extension without addressing either the issue of good cause or the issue of excusable neglect for failure-to timely file the motion. The trial court later found—and we agree—that Heard did not show good cause for her failure to serve process on Remy. Thus, the statute of limitations began to run again after the initial 120-day service period, and it expired on February 1, 2005.

¶ 18. The trial court erred in granting an extension of time without first addressing the issue of good cause, as required by M.R.C.P. 4(h). However, the trial court cured its own error by subsequently finding good cause had not been shown and the statute, of limitations had expired. Therefore, Heard’s second assignment of error is without merit.

III. Whether the trial court erred in finding good cause did not exist for failure to serve Remy within 120 days.

¶ 19. Heard claims the trial court erred in finding she failed to show good cause for not serving Remy during the required time period. Heard asserts that because the trial court granted her an extension of time to serve process, the court “evidently felt that Appellant’s stated reasons constituted good cause because the court signed the order granting” additional time. The trial court, however, did not make any such finding.of good cause in its order granting additional time for service of process. The trial court' subsequently found in its order dismissing the case that Heard failed to satisfy the criteria for good cause under Rule 4(h). Upon review of the record, • we hold the trial court did not err in this finding.

¶ 20. Heard contends the failure to serve Remy within the 120 days was the result of the process server’s failure to follow instructions. The individual instructed to serve Remy was an employee of Heard’s counsel’s law firm, yet Heard provides no explanation or testimony as to why process was not served within the 120-day period. Heard offers no evidence that Remy was avoiding process. In fact, the record demonstrates service was never attempted within the initial 120-day period.

¶ 21. While a party seeking service may show good cause as to why service was not made within 120 days of the filing of the suit in order to avoid dismissal, Heard has failed to demonstrate good cause existed for her failure to timely serve Remy in this case. This Court reviews a trial court’s determination of whether good cause exists on an abuse of discretion standard, deferring to the trial court when substantial evidence supports the determination. See Rains, 731 So.2d at 1196. “To establish ‘good cause’ the plaintiff must demonstrate ‘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.’ ” LeBlanc v. Allstate Ins. Co., 809 So.2d 674, 677 (Miss.2002) (quoting Sys. Signs Supplies v. United States Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir.1990)). The failure to attempt process on Remy may have been the result of a lack of communication and follow-up within the offices of Heard’s counsel. The continuing failure to attempt service for four months, without adequate explanation, shows a lack of diligence beyond excusable neglect. Therefore, the trial court did not abuse its discretion in failing to find good cause for Heard’s failure to serve Remy. Heard’s third assignment of error is without merit.

IV. Whether the trial court erred in holding a Motion for Extension of Time must be made within the 120 days provided by M.R.C.P. 4(h).

¶ 22. Finally, Heard claims the trial court erred in holding a Motion for Extension of Time must be made within the 120 days as provided by M.R.C.P. 4(h). After a careful reading of the Order of Dismissal, we note the trial court never concluded a motion for extension of time must be filed within the 120-day service period. Instead, the court found that because Heard did not show good cause for her failure to serve Remy within the time allowed, the case should be dismissed. Therefore, Heard’s final assignment of error is without merit.

CONCLUSION

¶ 23. For the reasons stated, we affirm the trial court’s order dismissing Heard’s case. This Court finds that because Heard has not shown good cause for her failure to serve Remy with process within the 120-day period allowed by M.R.C.P. 4(h), the statute of limitations began to run after the initial 120-day tolling period, and it subsequently expired, requiring that this case be dismissed with prejudice.

¶ 24. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P JJ., DIAZ AND CARLSON, JJ., CONCUR. RANDOLPH, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . A motion for an extension of time filed after the expiration of the initial period under M.R.C.P. 6(b)(2) requires a finding of excusable neglect for failure to timely file a request for extension. In addition, even in cases where excusable neglect is shown, the movant must still meet the M.C.R.P. 4(h) burden of showing good cause for failure to serve process before an extension of time for service of process may be granted.

      . The trial court noted in its Order of Dismissal that its standard practice is to grant an extension of time where good cause for non-service is alleged.


author: /s/ Chuck Easley Chuck Easley, Justice

text:
    Melvin BREWER, Appellant v. Sidney H. RAPER, Appellee.
    No. 2005-CA-01180-SCT.
    Supreme Court of Mississippi.
    Sept. 7, 2006.
   ORDER

This matter came before this Court, sitting en banc, to consider whether this appeal should be dismissed for failure to comply with the requirements of M.R.C.P. 54(b) for certification. The record provides that a partial summary judgment was granted by the Circuit Court of Talla-hatchie County, Mississippi, in favor of Sidney Raper against Melvin Brewer. The Appellant, Brewer, filed a motion for Rule 54(b) certification. However, a review of the record provides that Brewer never obtained an order from the circuit court granting the required Rule 54(b) certification in this case. Accordingly, we find that Brewer’s appeal is not properly before this Court and should be dismissed.

IT IS THEREFORE ORDERED that this appeal is hereby dismissed for failure to obtain an order of certification from the circuit court pursuant to M.R.C.P. 54(b). Brewer is taxed with costs of appeal.

IT IS FURTHER ORDERED that the Appellant’s motion to strike certain statements from the Appellee’s statement of facts is moot and hereby denied.

SO ORDERED.

/s/ Chuck Easley

Chuck Easley, Justice


author: COBB, Presiding Justice, EASLEY, Justice,

text:
    John BECK, Jr. and Kim Beck v. Mario SAPET, Jr. d/b/a Sapet Design & Construction.
    No. 2004-CA-02488-SCT.
    Supreme Court of Mississippi.
    Sept. 14, 2006.

      James (Jay) R. Foster, attorney for appellants.
    Richard Eugene Cassady, W. Edward Hatten, Jr., Gulfport, attorneys for appel-lee.
   COBB, Presiding Justice,

for the Court.

¶ 1. John Beck, Jr. and wife Kim Beck filed a complaint in the Harrison County Circuit Court, Second Judicial District, against Mario Sapet, Jr. d/b/a Sapet Design and Construction, citing numerous claims arising out of a contract whereby Sapet was to construct their new home. The Becks sought $300,000 in actual damages, $100,000 in punitive damages, and $75,000 in attorney fees. Sapet timely responded with his answer and defenses and applied for an order to proceed with mediation pursuant to the terms of the contract and a stay of proceedings while the matter was submitted to mediation.

¶ 2. The trial court ultimately granted Sapet’s Motion to Dismiss with Prejudice on November 3, 2004, on the basis of the Becks’ repeated failure to timely provide full and complete supplemental responses to written discovery requests. The last failure, which triggered the dismissal, was the Becks’s failure to comply with the court’s October 19, 2004, order to supplement discovery within 10 days of the court’s order.

¶ 3. The Becks’ Motion for Reconsideration and for Relief from Judgment was denied on December 10, 2004, and they timely appealed, stating the following issues: (1) they provided every document related to this case, and (2) they properly answered the interrogatories.

¶ 4. After due consideration, we affirm the judgment of the trial court.

FACTS

¶ 5. On September 1, 1999, the Becks entered into a written construction contract with Sapet for the construction of a large new home, at a cost of more than $1 million. Because the work was not completed within the stated time of “approximately 12 months”, and in the manner which the Becks expected under the terms of the contract, they filed a complaint against Sapet, on April 1, 2003, for breach of the construction contract, conversion of funds, detrimental reliance, negligence in the construction, gross negligence, breach of actual and implied warranty of fitness and for an accounting. The following is an abbreviated time line of the pertinent events in the trial court:

04/01/2003 Complaint filed.
06/06/2003 Sapet filed his answer and defenses.
06/10/2003 Sapet filed notice of discovery to the court that interrogatories and requests for productions of documents had been propounded to the Becks.
08/29/2003 The Becks filed an unopposed motion to extend time for discovery and hold the case in inactive status because John Beck was to undergo heart surgery.
11/14/2003 Letter from Sapet’s counsel to the Becks’ original attorney, inquiring as to the status of John Beck’s health and his availability for deposition, and noting the need to get the Becks’ written responses to the outstanding discovery.
12/19/2003 Similar letter pointing out that no response was received to the earlier letter and asking counsel for a response as soon as possible.
01/09/2004 A third similar letter noting no response to past two letters and saying would like to hear something as soon as possible.
01/26/2004 Sapet files his first motion to compel, stating “recent inquiries into the status of [plaintiffs] health and ability to proceed with discovery and litigation of this lawsuit that they filed have gone unanswered.”
05/03/2004 The Becks’ original counsel filed a Motion to Substitute Counsel, requesting the court to allow Jay Foster to replace him as counsel for the Becks. Neither of the Becks’ counsel responded to the motion to compel, nor did Foster, as the new attorney, request additional time to acclimate himself to the case or to answer the discovery.
05/17/2004 Trial court grants Sapet’s January 26, 2004, motion to compel discovery. This order stated the Becks must provide complete responses to discovery within 15 days or face sanctions.
05/19/2004 Order entered allowing substitution of counsel for the Becks and naming Foster. Still no request was made by Foster for additional time to complete responses to discovery.
06/01/2004 Deadline for complete responses to discovery passes without response.
06/09/2004 Sapet’s counsel writes Foster to advise that responses are now overdue and a Motion to Dismiss will be filed if responses are not filed by June 14, together with potential dates for the Becks to be deposed.
06/11/2004 Foster faxed the Becks’ unsigned draft responses to discovery, but did not follow up with final, signed responses or request additional time to do so.
06/14/2004 Sapet’s counsel writes to Foster thanking him for the draft discovery responses and requesting that, when they are completed and signed, Foster needs to have: supplemented Interrogatory 3; had a copy made of the audio and video tapes identified in Interrogatory 4 (Sapet to pay cost); copied other audio and video tapes, if any, which are referenced in interrogatories 5, 6, and 7; supplement No. 12 (Sapet to pay cost); and supplemented No. 13 to indicate what is contended in the “approximately $250,000” in damages. Further Sapet’s attorney asked when he could come and inspect and copy the documents referenced in nos. 14, 18, 19, and 21 of the Request for Production. Finally he reminded Foster that the answer to Nos. 15 and 16, saying “previously provided” was incorrect, as he had received nothing in response.
06/30/2004 Still not having received the requested completed and signed responses nor the other productions, Sa-pet filed a motion to dismiss, or alternatively for sanctions, because timely and proper response from the Becks to the May 17 order had not been received. At this point, more than one year had passed since the Interrogatories and Requests for Production were first served on the Becks.
07/02/2004 The Becks responded to Sa-pet’s discovery requests. A number of the answers simply said “The Plaintiff has boxes of documents that are available for copying at the office of Jay Foster.”
10/07/2004 Sapet files his second motion to compel and for sanctions, arguing that the Becks’ responses to Sa-pet’s interrogatories and requests for documents were still incomplete.
10/19/2004 Trial court once again grants Sapet’s motion to compel, requiring the Becks to supplement their responses to Sapet’s requests for interrogatories numbers 2, 3, 4, 12, and 13, as well as Sapet’s request for documents numbers 3, 4, 5, 6, 7, and 10, to be signed by the Becks “under oath, and delivered to [Sapet’s] counsel within 10 days of the entry of this Order, failing which the case will be dismissed with prejudice without further notice.”
10/20/2004 Sapet’s counsel sends Foster a four page URCCC 4.04 good faith letter, very specifically stating each response which was considered incomplete and why, and stating that they “really would rather resolve this matter without having to file another Motion to Compel.”
10/24/2004 Foster responds with terse letter, defending his actions as to each response.
10/29/2004 Becks do not provide any supplements, but rather, on the 10th day, filed a motion to reconsider with the trial court.
11/03/2004 After a hearing on the motion to reconsider, the trial court entered its final judgment dismissing the case with prejudice because the Becks did not comply with the October 19, 2004, order compelling discovery. However, the trial court did not rule on the motion to reconsider.
12/01/2004 Becks filed a motion for relief from judgment with the trial court.
12/10/2004 Trial court denied the Becks’ motion to reconsider and motion for relief from judgment.

DISCUSSION

¶ 6. The sole issue raised on appeal is whether the trial court erred in dismissing the case with prejudice. The standard of review this Court applies to a trial court’s dismissal of an action with prejudice as a result of a discovery violation is abuse of discretion. Salts v. Gulf Nat’l Life Ins. Co., 872 So.2d 667, 670 (Miss.2004). Trial courts have considerable discretion in discovery matters, and their decisions will not be overturned unless there is an abuse of discretion. Robert v. Colson, 729 So.2d 1243, 1245 (Miss. 1999). Further, this Court looks to the following factors to determine if a dismissal with prejudice is the proper remedy for discovery violations: (1) whether the discovery violation resulted from willfulness or an inability to comply; (2) whether the deterrent value of Rule 37 could not have been achieved through lesser sanctions; (3) whether the other party’s trial preparation has been prejudiced; (4) whether the failure to comply is attributable to the party itself, or their attorney; and (5) whether the failure to comply was a consequence of simple confusion or a misunderstanding of the trial court’s order. Pierce v. Heritage Props. Inc., 688 So.2d 1385, 1389 (Miss.1997). This Court only reverses if it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors. Caracci v. Int’l Paper Co., 699 So.2d 546, 556 (Miss.1997).

¶ 7. This Court has stated “failure to make or cooperate in discovery should first be resolved by making a motion in the proper court requesting an order compelling such discovery.” Robert, 729 So.2d at 1247 (citing M.R.C.P. 37(a)(2)). If the party fails to comply with this first order to compel, the trial judge may then sanction that party in accordance with M.R.C.P. 37(b), which includes dismissing the case with prejudice. Id. We have also held that:

dismissal is to be used as a sanction only as a last resort. “Lower courts should be cautious in either dismissing a suit or pleadings or refusing to permit testimony .... The reason for this is obvious. Courts are courts of-justice not of form. The parties should not be penalized for any procedural failure that may be handled without doing violence to court procedures.”

Id. (quoting Clark v. Miss. Power Co., 372 So.2d 1077, 1080 (Miss.1979)).

¶ 8. In the present case, the trial court entered its first order to compel on May 17, 2004, because the Becks had not yet responded to any of the discovery requests (interrogatories and requests for documents) propounded to them by Sapet almost a year earlier, on June 9, 2003. This order was violated because the Becks did not answer Sapet’s discovery requests until July 2, 2004, well outside of the 15 days required by that order. The Becks then violated the trial court’s second order to compel entered on October 19, 2004, which gave them 10 days to supplement their discovery responses.

¶ 9. The Becks’ attorney claims he did not attend the hearing that resulted in the court’s October 19, 2004, order to supplement discovery because he did -not receive notice. However, Sapet’s attorney told the judge at the December 6, 2004, hearing on the Motion to Reconsider that he sent notice to the Becks’ attorney and also referenced the hearing in a subsequent letter he sent to their attorney, and this was not disputed.

¶ 10. Although the Becks .filed a motion to reconsider on the tenth day after the order was entered, they failed to obtain a ruling on it and failed to supplement discovery within the time period specified in the order. The only reasons given for waiting until the tenth day- to file was that the judge was unavailable and that an agreement had been reached with Sapet’s attorney regarding when the Becks would supplement discovery. In response to this argument the trial court stated:

there was an attempt to ex parte notify the court by way of a faxed letter. If I’m not mistaken, however, by the time the Court received that fax, the order had already been entered, because I was in Jackson County at the time that the order was entered because I started a trial over there on November the 1st, as I recall, that took all week to try.
So in any event, notice was fairly given that dismissal would be had if it had not been responded to within the ten days of the order, that order having been entered more than ten days prior to the submission of the order of dismissal to the Court on October the 29th, I believe it was. The motion to set aside the order is overruled.

¶ 11. This Court has adhered to the rule that filing a motion is not a release from a trial court’s order unless the motion is heard and a decision is made. Salts, 872 So.2d at 672.

¶ 12. Even if the judge was busy, some effort should have been made to supplement discovery and deliver the responses to Sapet’s counsel within ten days or to document the alleged agreement to the contrary. Objections to specific items or information requested by Sapet then could have been subsequently raised with the trial judge, which is obviously safer and more appropriate than totally violating the trial court’s order, even if an undisputed agreement has been reached.

Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.

Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003) (citations omitted).

¶ 13. The present case provides an excellent example of the proper way to document the efforts made to obtain and provide adequate discovery responses. The record establishes a pattern of consistent follow-up regarding pending requests and a clear paper trail upon which the trial court and the appellate court can rely when considering the factors set forth in Pierce, as follows:

First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situations where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.

Pierce, 688 So.2d at 1389. The record clearly contains indications of the tone and substance important to determine willfulness, or inability to comply. Further, it provides insight for determination of whether the failure to comply is attributable to the party, or the attorney, and whether the failure to comply was a consequence of simple confusion or a misunderstanding of the court’s order. Inclusion of an analysis of all the Pierce factors in the trial court’s order would have been helpful to this Court and is preferred, but not required.

¶ 14. We see nothing in the present case which demonstrates that the trial court abused its discretion and that the dismissal was unwarranted. Although the result may be harsh for the Becks, the record before us simply does not provide sufficient reasons for this Court to find the trial court abused its discretion by granting the dismissal.

CONCLUSION

¶ 15. We afford great deference to a trial court’s discretion in resolving discovery disputes. We find no abuse of discretion in the trial court’s dismissal of this case. Therefore, we affirm the trial court’s judgment.

¶ 16. AFFIRMED.

WALLER, P.J., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J. DIAZ, J., NOT PARTICIPATING.

EASLEY, Justice,

Dissenting:

¶ 17. I must respectfully dissent from the majority’s affirmance of the trial judge’s judgment dismissing the Becks’ case with prejudice. On this record, the trial judge abused his discretion and should have imposed an alternate form of sanction in place of the dismissal of the case with prejudice. Such a harsh sanction to the Becks is not warranted in this case, and other alternative measures to dismissal of the Becks’ case with prejudice were not first considered by the trial judge. The record does not indicate that the trial judge even considered alternative sanctions such as imposing fines and sanctions against the Becks’ attorney, James (Jay) R. Foster, where the Becks were blameless in their attorney’s alleged failure to provide discovery. Therefore, I must respectfully dissent.

¶ 18. In Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003), we held:

Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.

However, dismissal with prejudice is a drastic and harsh punishment that should be reserved for the most extreme and egregious situations, usually where clear delay and lesser sanctions are present. See M.R.C.P. 41(b) cmt.; see also Peoples Bank v. D’Lo Royalties, Inc., 206 So.2d 836, 837 (Miss.1968); Vosbein v. Bellias, 866 So.2d 489, 493 (Miss.Ct.App.2004). “[Dismissal for failure to comply with an order of the district court is appropriate only where there is a clear record of delay or contumacious conduct and lesser sanctions would not serve the best interests of justice.” Wallace v. Jones, 572 So.2d 371, 376 (Miss.1990) (citing McGowan v. Faulkner Concrete Pipe, 659 F.2d 554, 558 (5th Cir.1981); Tralcas v. Quality Brands, Inc., 245 U.S.App. D.C. 165, 759 F.2d 185, 187 (D.C.Cir.1985)).

¶ 19. On May 17, 2004, the trial court entered its first order to compel because the Becks had not yet responded at all to the discovery requests propounded to them by Sapet. The Becks’ attorney did not answer Sapet’s discovery requests within the fifteen day time period stipulated in the order. The trial judge entered a second order to compel on October 19, 2004, providing the Becks ten days to supplement their allegedly inadequate discovery responses after conducting a hearing on the same day.

¶ 20. The Becks’ attorney contends that he did not attend the hearing that resulted in the order to supplement discovery since he failed to receive notice of the hearing. Sapet’s attorney maintains that he sent notice of the hearing to the Becks’ attorney.

¶ 21. The Becks’ attorney filed a motion to reconsider the order entered on October 19, 2004, ten days after the order was entered. The Becks’ attorney asserts that he waited ten days to file because the trial judge was unavailable and the parties had reached an agreement regarding when the Becks would supplement discovery. The trial judge acknowledged that the Becks’ attorney had tried to contact him regarding the order and overruled the motion to set aside the order, stating:

[Tjhere was an attempt to ex parte notify the court by way of a faxed letter. If I’m not mistaken, however, by the time the Court received that fax, the order had already been entered, because I was in Jackson County at the time that the order was entered because I, started a trial over there on November the 1st, as I recall, that took all week to try.
So in any event, notice was fairly given that dismissal would be had if it had not been responded to within the ten days of the order, that order having been entered more than ten days prior to the submission of the order of dismissal to the Court on October the 29th, I believe it was. The motion to set aside the order is overruled.

¶ 22. It is well settled that the filing of a motion does not release one from a trial court’s order unless the motion is heard and a decision is rendered by the court. See Salts v. Gulf Nat’l Life Ins. Co., 872 So.2d 667, 672 (Miss.2004). Likewise, the whole discovery process in this case certainly leaves something to be desired. Without question, the Becks’ attorney failed to comply with the discovery order and failed to obtain an extension of time or have the motion to reconsider heard or set before the ten days expired. However, dismissal with prejudice of the Becks’ case as the sanction does not fit the infraction as it was the actions of the Becks’ attorney and not that of the Becks themselves. Consequently, the trial judge did abuse his discretion in dismissing the case with prejudice.

¶ 23. Here, several facts weigh in favor of finding the dismissal with prejudice to be disproportionately harsh for the discovery violations in this case. The record is unclear as why the Becks’ responses to the requests for documents were inadequate and the Becks’ responses to interrogatories were insufficient. The Becks’ attorney argues that there was no wilful refusal to comply with the discovery requests.

¶ 24. The Becks’ attorney contends that the audio and video tapes had already been furnished to Sapet’s attorney months before October 19, 2004. The tapes had been picked up by Sapet’s attorney from the company that had made the copies for the Becks. The record excerpts contain a letter dated August 26, 2004, from the Becks’ attorney’s paralegal to Sapet’s attorney supplementing the video tape requested in the request for documents.

¶25. The written documents were delivered to a printing company for copying. On August 3, 2004, the Becks’ attorney’s paralegal faxed a letter to Sapet’s attorney that the documents had been copied and were ready to be picked up at the print shop. Sapet’s attorney picked up the documents prior to October 19, 2004.

¶26. As to the interrogatories, the Becks’ attorney contends that the requests were answered to the best of their ability. He further provides that interrogatory request number two requesting information as to all persons that had knowledge of the allegations was satisfied by providing a list of twenty-seven names. According to the Becks’ attorney, the Becks were unaware of the name of every contractor or subcontractor that had been hired by Sapet to work on the home. Further, the Becks’ attorney argues that interrogatory request number three regarding expert witnesses was also satisfied because the response provided that the Becks may call the witnesses listed in response to interrogatory number two as expert witnesses. Likewise, the response to the requests for documents number one and two provided that no decision regarding who would be called as an expert had been reached at that time.

¶27. The Becks’ attorney states that approximately 1,838 pages of documents were provided to Sapet months before the October 19, 2004, order was entered. Likewise, at the hearing on the motion to reconsider, the Becks’ attorney informed the trial judge that on October 8, 2004, he had faxed Sapet’s attorney advising him that everything requested in discovery had already been provided, and the Becks had nothing left to produce. However, he received no response from the fax. On October 12, 2004, the Becks’ attorney again faxed Sapet’s attorney that everything had been supplied except as to interrogatory number twelve regarding a witness, Rich Cassidy, which was supplemented by the faxed letter. Again, the Becks’ attorney received no response.

¶ 28. After not receiving any response, the Becks’ attorney telephoned Sapet’s attorney. According to the Becks’ attorney, an agreement was reached with Sapet’s attorney regarding the discovery requested. He subsequently confirmed the conversation with Sapet’s attorney regarding the discovery by fax.

¶ 29. The Becks’ attorney did not attend the October 19, 2004, hearing which resulted in the trial judge entering the order to compel. According to the Becks’ attorney, he did not receive notice of the hearing, and he was in court in Gulfport, Mississippi, at the time of the hearing which took place in Biloxi, Mississippi. Therefore, the trial judge only heard arguments from Sapet’s attorney on this issue.

¶ 30. As previously discussed, the Becks’ attorney filed a motion for reconsideration on the tenth day. According to the Becks’ attorney, he did not file the motion for reconsideration before the tenth day because the trial judge was out of town presiding over another case and unavailable to hear the reconsideration, and Sapet’s attorney was likewise unavailable until then.

¶ 31. Nothing in the record suggests that the Becks themselves did anything to willfully violate the court’s orders or to prolong the case unnecessarily. On the contrary, John Beck underwent heart surgery and was unable to participate in this litigation for some time. According to the Becks’ attorney, he had already provided everything to Sapet’s attorney that he had to give in discovery.

¶ 32. The trial judge’s judgment to dismiss with prejudice was the first sanction the trial judge imposed against the Becks. The Becks’ attorney at the hearing on the motion to reconsider stated:

You signed the motion to dismiss obviously thinking that, you know, [the Becks’ attorney] is not answering discovery ... As I stand before you today, I do not have anything left to give them, and I haven’t had anything left to give them for some number of months now. So I do not understand, especially in light of the fact that [Sapet’s attorney] and I got on the phone and agreed as to what I was going to do. I did exactly what he asked me to do, and then he turns and sends Your Honor an order dismissing the case.

¶ 33. Further, a review of our legal precedent supports reversal of the trial judge’s judgment as an abuse of discretion. In Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1387 (Miss.1997), this Court affirmed the trial court’s imposition of dismissal as a discovery sanction under Rule 37(b)(2) & (e) and the court’s inherent power to protect the integrity of the judicial process where the plaintiff willfully concealed the fact that another person was present when she was injured. The plaintiff in Pierce submitted false responses to various discovery requests and false deposition testimony. Id. at 1390. Pierce admitted her misconduct only after she discovered the defendant uncovered the truth. Id.

¶ 34. This Court in Pierce provided guidance in evaluating the appropriateness of dismissal of an action as a sanction:

First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situations where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.

Pierce, 688 So.2d at 1389. Here, nothing in the record demonstrates that the Becks themselves contributed to the delays. Further, there is no evidence present to support that the Becks acted in bad faith in not complying with the trial judge’s orders.

¶ 35. In Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 997 (Miss.1999), this Court affirmed the trial court’s dismissal with prejudice because “Scoggins wilfully submitted false answers to interrogatories and knowingly did not answer deposition questions truthfully.” Here, nothing in the record demonstrates that the Becks submitted any false answers.

¶ 36. This Court in Wood v. Biloxi Public School District, 757 So.2d 190 (Miss.2000), reversed the trial court’s dismissal finding that the case was distinguishable from Scoggins. In Wood, the “trial court’s ruling [to dismiss the case was] based upon a single alleged untruthful response in an interrogatory.” Id. at 191 (emphasis added). This Court reversed the trial judge because it was “not established that Wood knowingly made a false statement and it [was] certainly not established that he submitted a pattern of false responses under the facts here, and applying] our precedent case law, other more appropriate sanctions should be considered by the lower court.” Id. at 191-92 (emphasis added).

¶ 37. In Ill. Cent. R.R. v. Winters, 815 So.2d 1168, 1181 (Miss.2002), overruled on other grounds, Cooper Tire & Rubber Co. v. McGill, 890 So.2d 859, 867 (Miss.2004), this Court required Illinois Central to pay expenses for violating the trial court’s order to compel. This Court held:

Not until Monday afternoon, the day the depositions were to commence at 9 a.m. in Chicago, did Illinois Central file a motion to reconsider the order. Instead of attempting to comply with the order, Illinois Central clung to its arguments that these executives could not be deposed, or that discovery should not be extended, even though the trial court continued to reject these arguments.

815 So.2d at 1181. As in the case at hand, Winters involved a discovery violation as opposed to false responses discussed in Scoggins and Wood. In Winters, Illinois Central was ordered to pay expenses as the sanction in a factual situation much more severe than the facts in this case which resulted in the ultimate sanction of the Becks’ case being dismissed with prejudice.

¶ 38. For these reasons, the trial judge’s dismissal with prejudice of the Becks case was too harsh and a lesser sanction is appropriate. I find that the trial judge abused his discretion. Accordingly, I would reverse the trial judge’s judgment and remand the case to the Circuit Court of Harrison County to impose alternative sanctions instead of the dismissal of the Becks’ case with prejudice.

SMITH, C.J., JOINS THIS OPINION.

      . The responses were due within 30 days of service, M.R.C.P. 33(b)(3) & 34(b), and all discovery should have been completed within ninety days from service of Sapet’s answer, URCCC 4.04(A).

      . The trial court docket reflects that the notice of the hearing was filed on October 6, 2004.


author: ISHEE, J.,

text:
    Larry WALKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00081-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2006.
    Rehearing Denied June 27, 2006.
    Earl Lindsay Carter, attorney for appellant.

      Office of the Attorney General by W. Glenn Watts, Claiborne McDonald, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. After a trial, Larry Walker was convicted in the Lawrence County Circuit Court of carjacking, kidnapping, and attempted forcible sexual intercourse. For each count, Walker was sentenced to serve a term of life without eligibility for parole in the custody of the Mississippi Department of Corrections, with all sentences to run consecutively. Aggrieved by the judgment against him, Walker appealed. He now asserts three assignments of error. Finding error, we reverse and remand for a new trial in accordance with this ruling.

FACTS

¶2. On the night of August 25, 2001, sixteen-year-old B.D. was driving her father’s truck to visit her mother when she stopped at a convenience store in Monticello, Mississippi to get a bottle of water. As she was getting back into the truck, Walker approached her from behind and told her that he had a pistol. Walker ordered B.D. to get into the truck and she would not get hurt. B.D. got into the truck, slid over on the seat, and Walker got behind the wheel.

¶ 3. Walker drove away from the convenience store and headed south on Highway 27. After attempting several stops, Walker turned down Manning’s Crossing Road, stopped in a field, and turned off the truck’s headlights. He instructed B.D. to remove her clothing from the waist down and to lie down. After she did this, he attempted to have intercourse with her, but was unsuccessful. Walker told B.D. she would not get hurt if she cooperated, and that she had to perform oral sex on him. In the darkness, B.D. pretended to use her mouth, but used her hand instead. Walker ejaculated on her face and shirt.

¶ 4. On February 19, 2002, Walker was indicted by a Lawrence County grand jury for car jacking, kidnapping, attempted forcible intercourse, two counts of sexual battery, and robbery. Walker’s first trial began on January 14, 2004. The trial took place in Marion County by order by Walker for a change of venue. The jury found Walker not guilty for one count of sexual battery and robbery. The jury could not reach a verdict as to the other charges.

¶ 5. Walker’s second trial was also held in Marion County, on June 22, 2004. The jury found him guilty of carjacking, kidnapping, and attempted forcible intercourse. He was found not guilty of the remaining sexual battery charge. The trial court sentenced Walker as a habitual offender to a term of life imprisonment on each of the three counts, with the sentences to run consecutively and with no eligibility for parole. Aggrieved by the judgment against him, Walker now appeals. He asserts the following assignments of error: (1) the trial court erred in overruling Walker’s Batson objection against the State for exercising peremptory challenges in a racially discriminating manner; (2) the trial court erred in overruling Walker’s objection and not declaring a mistrial concerning B.D.’s testimony; and (3) the verdict of guilty was against the overwhelming weight of the evidence.

ISSUES AND ANALYSIS

I. Whether the trial court erred in overruling Walker’s Batson objection against the State for exercising peremptory challenges in a racially discriminating manner.

¶ 6. Walker, who is an African American, first contends that the State violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) when it used peremptory challenges to methodically purge the jury panel of all but one African American. Walker asserts that most of the race-neutral reasons given to the trial court were extremely weak and pretextual in nature. Specifically, Walker points to the exclusion of Julius Johnson from the jury. Johnson was initially accepted as a juror because the court determined that the race-neutral reasons provided by the State were not sufficient. However, after the addition of another African American to the jury Johnson was removed. The State contends that Johnson was removed because the prosecution provided a race-neutral reason, namely, that Johnson was inattentive during voir dire by the prosecution.

¶ 7. The appropriate standard of review for a trial court’s findings under Batson is well established. The conclusion that a striking party engaged in discrimination is largely a factual finding by the trial court. Manning v. State, 765 So.2d 516, 519(¶ 8) (Miss.2000) (citing Thorson v. State, 721 So.2d 590, 593(¶ 4) (Miss.1998)). Consequently, we must give great deference to the trial court’s findings of whether or not a peremptory challenge was race-neutral. Id. (citing Id.). We will not overrule a trial court’s ruling on a Batson issue absent indication in the record that the ruling was clearly erroneous or against the overwhelming weight of the evidence. Id. (citing Thorson, 721 So.2d at 593(¶ 4)).

¶ 8. In the instant case, the State used peremptory challenges on five jurors, all of whom were African American. Lenna Farr was excused after the State argued that her unemployment was a race-neutral reason. The trial court then excused William Jefferson, accepting the reasoning that he was a victim of a crime and had dealings with the district attorney’s office. Nakisah Varnado was excused next because she was on non-adjudication. The trial court also excused Latonia Peters, on the grounds that she was possibly illiterate and that she listed the same address as that of someone the State prosecuted for capital murder.

¶ 9. We now turn to the circumstances surrounding the dismissal of juror Johnson, who was the fifth African American the State sought to strike using a peremptory challenge. The record reflects the following:

BY MR. KITTRELL: Your Honor, on Johnson Lane, law enforcement informed us that they have had the S.O.— or law enforcement has informed us that they’ve had a little difficulties in that area, and also that he — I watched Mr. Johnson during the voir dire, and he was asleep more than he was awake except, of course, when the daughter issue came up, and he answered specifically to Mr. Jones about the daughter. So we would — we would assert that both his location of where he lives, as well as also just the inattention that was shown by him during the course of the voir dire.
BY THE COURT: All right, that will not be a sufficient reason. He’ll be on there. All right, he’s Number 21. (JURY SELECTION CONTINUED-OFF THE RECORD). All right, we have Victoria Hall as a juror, and I would say that the reasons given for Julius Johnson would be—
BY MR. JONES: Judge — well—
BY MY. HAYS: Your Honor—
BY THE COURT: My whole purpose on Johnson was just to be sure that— cause normally—
BY MR. JONES: What is the reason, the race neutral reason to strike ... Victoria Hall? They can’t just strike her without a race neutral reason.
BY THE COURT: They’re keeping her, and because they’re keeping her, I’m going to let them strike Julius Johnson, who they wanted to strike to begin .with.

¶ 10. The State is correct that juror inattentiveness has been accepted as a valid race-neutral reason. Stevens v. State, 806 So.2d 1031, 1047-48 (¶¶ 68-71) (Miss.2001). The case at bar is distinguishable from Stevens, however. In Stevens, the State presented the following race-neutral reasons to strike the juror in question: (1) she failed to complete a juror questionnaire; (2) she did not follow court directions; and (3) she appeared inattentive and preoccupied the entire time. Id. at 1047(¶ 68). Before making a determination of whether the reason provided was race-neutral, the court in Stevens inquired if the State was going to accept the next African American juror. Id. at (¶ 69). The State responded that it planned to accept the next juror who was black. On that understanding, the trial court allowed the juror to be struck. Id.

¶ 11. In the instant case, the trial court initially included Johnson on the jury, as it found on the record that the reasons provided by the State were not race-neutral. The court decided to allow the State to strike Johnson only after another African American was added to the jury. If the trial court initially found the State’s reasons to be insufficiently race-neutral, we fail to see how the addition of another African American juror could alter this conclusion. We find that the trial court’s Batson findings as to juror Johnson were clearly erroneous. Accordingly, we reverse and remand for a new trial consistent with this holding. As we reversing and remanding on the first issue, we decline to address the remaining issues.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF LAWRENCE COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAWRENCE COUNTY.

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


author: IRVING, J„

text:
    De'Lisa GEORGE, Appellant v. W.W.D. AUTOMOBILES, INCORPORATED d/b/a Tom Wadler Nissan, Richard Stephney and Leonardo Weatherspoon, Appellees.
    No. 2004-CA-01944-COA.
    Court of Appeals of Mississippi.
    June 13, 2006.

      Anita M. Stamps, attorney for appellant.
    Robert F. Stacy, Christine B. Tatum, Oxford, attorneys for appellees.
    Before MYERS, P.J., SOUTHWICK, IRVING and BARNES, JJ.
   IRVING, J„

for the Court.

¶ 1. De’Lisa George sued W.W.D. Automobiles, Inc. (doing business as Tom Wa-dler Nissan), Richard Stephney, and Leonardo Weatherspoon, alleging malicious prosecution. After discovery, the Appel-lees filed a motion for summary judgment, which the trial court granted. Aggrieved, George appeals and asserts that the trial court erred in granting summary judgment.

¶ 2. We find that the trial court erred in granting summary judgment. Therefore, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

FACTS

¶ 3. In June 2001, George went to Tom Wadler Nissan to purchase a vehicle. Since her primary concern was financing, George did not begin shopping for a vehicle until after her credit application was approved. Ultimately, George decided to purchase a 2000 Ford Taurus. She made a $1,000 down payment on the vehicle and received a bill of sale, application for certificate of title, retail agreement to provide insurance, odometer disclosure statement, arbitration agreement, retail installment contract, and a customer’s purchase order. The car was placed in her possession under a conditional delivery agreement that allowed her to take possession of the vehicle prior to actual purchase contingent upon the following conditions: (1) George entering into a retail installment contract, and (2) the dealer assigning or selling the retail installment contract to a third-party lending institution on terms and conditions acceptable to the dealer. The agreement further provided that, in the event that Tom Wadler Nissan was not able to sell or assign the retail installment contract, the dealership reserved the right to cancel the sale of the vehicle to George. George agreed to return the vehicle to Tom Wa-dler Nissan within twenty-four hours of any written or oral notice that the dealership had been unable to sell or assign the retail installment contract.

¶ 4. Shortly thereafter, problems arose with financing the vehicle. Tom Wadler Nissan informed George that it could not obtain financing for her and made numerous requests for her to return the vehicle. Based on the belief that she had finalized the purchase of the vehicle and on advice of counsel, George chose not to return the vehicle and, instead, decided to await notification regarding her right to arbitrate any dispute arising from the purchase of the vehicle. Due to her refusal to return the vehicle, Tom Wadler Nissan instituted a criminal action against George by executing an affidavit charging her with unauthorized use of a vehicle in violation of Mississippi Code Annotated section 97-17-61 (Rev.2000).

¶ 5. A warrant was issued by a municipal court, and George was arrested at her job in the presence of her co-workers. She was handcuffed, and she watched while her vehicle was repossessed. George was taken to the police station, where she was fingerprinted, photographed, and placed in a holding cell. George was required to post a bond and to retain a lawyer to represent her in a municipal court trial. Ultimately, the ease was dismissed because it was determined that the alleged offense was civil in nature, and not a criminal matter.

¶ 6. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

STANDARD OF REVIEW

¶ 7. “For a summary judgment motion to be granted, there must exist no genuine issue of material fact, and the moving party must be entitled to a judgment as a matter of law.” Corey v. Skelton, 834 So.2d 681, 684(¶ 7) (Miss.2003) (quoting M.R.C.P. 56(c)). Appellate courts conduct a de novo review of a trial court’s grant of summary judgment. Id. (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988)). We must examine all evidentiary matters before us, such as admissions in pleadings, answers to interrogatories, depositions, and affidavits, in the light most favorable to the party against whom summary judgment is made. Id. (citing McFadden v. State, 542 So.2d 871, 874 (Miss.1989)). “If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed.” Id. (citing Miller v. Meeks, 762 So.2d 302, 304(¶ 3) (Miss.2000)).

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. The elements of the tort of malicious prosecution are:

(1) The institution of a proceeding
(2) by, or at the insistence of the defendant
(3) the termination of such proceedings in the plaintiffs favor
(4) malice in instituting the proceedings
(5) want of probable cause for the proceedings
(6) the suffering of injury or damage as a result of the prosecution.

McClinton v. Delta Pride Catfish, Inc., 792 So.2d 968, 973(¶8) (Miss.2001) (citations omitted). “These elements must be proven by a preponderance of the evidence.” Id. (citing Van v. Grand Casinos of Miss., Inc., 724 So.2d 889, 891(¶ 8) (Miss.1998)).

¶ 9. At the hearing on their motion for summary judgment, the Appellees conceded that elements one, two, and three above were present in George’s cause of action. However, in their brief to this Court, the Appellees contend that George cannot prove that the prosecution terminated in her favor because the “case was not tried on the merits but was dismissed upon agreement by Tom Wadler Nissan.” We disagree. “The termination requirement is met when the action is either abandoned by the prosecuting attorney or by the complaining witness.” Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss.1991). Therefore, element three of the tort of malicious prosecution was established when Tom Wadler Nissan dismissed the case. Having found that George has satisfied the first three elements of the tort, we limit further discussion to whether George produced sufficient evidence to establish the remaining three elements of malicious prosecution.

1. Malice

¶ 10. The Appellees contend that there was absolutely no evidence that they acted with any malice in instituting the proceedings against George. They argue that they reasonably believed that George was not entitled to possession of the vehi-ele once they requested the return of the vehicle after financing was not obtained. The Appellees further argue that they attempted several less drastic measures to retrieve the vehicle before eventually executing the affidavit charging George with unauthorized use of the vehicle.

¶ 11. Malice in relation to malicious prosecution “connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice; as such, it refers to the defendant’s objective, not his attitude.” Strong, 580 So.2d at 1293 (citations omitted). In Strong, the Mississippi Supreme Court held that malice existed where the defendants freely admitted that their lone purpose in instituting criminal proceedings against the plaintiffs was to “get their stuff back.” Id.

¶ 12. The Appellees’s motive for instituting criminal proceedings in the instance case is analogous to the defendants’s motive in Strong. The following deposition testimony of Ward, general manager of Tom Wadler Nissan, reveals the dealership’s sole objective in instituting criminal proceedings against George:

Q. Do you know whether or not you signed the affidavit against Ms. George?
A. I don’t remember, but I would assume I did.
Q. What makes you assume that you did?
A. Because I was the general manager at the time.
Q. Okay. And what was the purpose of you signing an affidavit against Ms. George?
A. To get the car back.
Q. Okay. Did you want her to be prosecuted?
A. No.
Q. Did you want her to be arrested?
A. Uh-uh.
Q. Pardon me?
A. No.
Q. Did you want to have her put in jail?
A. No.
Q. Did you understand that by signing the affidavit she could be arrested, prosecuted, and put in jail?
A. Yes.
Q. Did you know that at the time?
A. I would assume I knew it. I don’t remember to be honest with you. At that point in time, I was just strictly trying to get the car back.

(emphasis added).

¶ 13. Like the defendants in Strong, the Appellees concede that their lone purpose was to get the vehicle back. Ward unequivocally testified that he was not interested in bringing George to justice, a fact further evidenced by the dealership’s dropping of the charge once it regained possession of the vehicle. Based upon these facts, a jury could easily make a finding of malice. Therefore, a material issue of fact exists as to whether the Appellees instituted the prosecution against George for a purpose other than to bring her to justice.

2. Probable Came

¶ 14. George argues that a jury could reasonably find that there was no probable cause for the Appellees initiation of criminal charges against her for unauthorized use of a vehicle. We agree. In reference to probable cause, we look to the facts reasonably available to the Appellees at the time the malicious prosecution was initiated. Strong, 580 So.2d at 1294. “Probable cause requires the concurrence of (1) a subjective element — an honest belief in the guilt of the person accused, and (2) an objective element — reasonable grounds for such beliefs.” Id. (citing Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1190 (Miss.1990)). “The question in the end is not whether the defendant thought he had probable cause, but whether the fact-finder thinks he did.” Id.

¶ 15. George was charged with violating Mississippi Code Annotated section 97-17-61 (Rev.2000). The statute states in pertinent part:

Any person who shall, without consent of the owner or his agent, take away any .... automobile, truck or other motor vehicle, where such taking and carrying away shall not amount to larceny, shall upon conviction, be fined not exceeding one thousand dollars ($1,000), or be imprisoned not exceeding one (1) year in the county jail, or both.... This section shall not apply to anyone who takes such property believing, in good faith, that he has a right to it.

(emphasis added).

¶ 16. The statute requires a taking and carrying away of an automobile without the consent of its owner. Here, there clearly was not a taking and carrying away of the vehicle. Notwithstanding the conditional delivery agreement, the vehicle was nevertheless placed in George’s possession. Moreover, Tom Wadler Nissan provided George with relevant documents which clearly demonstrated some indicia of ownership. George did not take and carry away the vehicle “without the consent of the owner.” At the least, the facts and evidence on this element present triable issues of fact to be determined by a jury.

S. Damages

¶ 17. The Appellees contend that the circuit court correctly granted summary judgment because George cannot prove that she sustained any damages as a result of the prosecution. George counters that the Appellees’s contention is simply false. According to George, she suffered humiliation, anxiety, nervousness, and crying spells as a result of her arrest and subsequent trial in municipal court. George also testified that she was the subject of gossip in her community, and that she suffered embarrassment when repeatedly asked about the incident by her family and peers. George also stated that she sought the advice of a therapist and that her ability to work was affected as a result of the ordeal. Furthermore, George testified that she feared applying for future employment because of having to disclose that she had been arrested. Additionally, a jury could conclude that George suffered some damages resulting from the mental anguish and distress associated with the possibility of having to pay a hefty fine, the possibility of serving at least one year in jail, or both.

¶ 18. Therefore, the merits of George’s assertion of damages amounts to a triable issue of fact to be determined by a jury.

¶ 19. In short, we find that genuine issues of material fact exist. Therefore, we reverse the lower court’s grant of summary judgment and remand this case for a trial on the merits.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . For clarity, the Defendants in the court below will be collectively referred to as “the Appellees.”

      .The lower court granted the Appellees’s motion for summary judgment because it found that "no issue had been created as to the 'lack of probable cause' element of malicious prosecution.” The basis for the court's ruling was that: (1) the Appellees had an honest belief that George was guilty of "unauthorized use of a vehicle,” (2) the fact that George’s initial possession of the vehicle was lawful did not change the fact that she "effectively took the car without authority after financing was not obtained,” (3) the Appellees were reasonable in believing that George had no intentions to return the car, and (4) the municipal court judge who signed the warrant and the police officer involved in the case both believed that George was guilty of the charged offense.

      . Steve Ward, general manager of Tom Wa-dler Nissan, agreed not to pursue the case because he already had the vehicle back in his possession.

      . It is uncontradicted that there was an institution of a proceeding against George by W.W.D. Automobiles. Therefore, the first two elements of malicious prosecution were clearly established.

      . In Strong v. Nicholson, Strong offered to buy a boat from Nicholson for $18,500. The parties agreed that Strong would pay no money down, would obtain immediate use of the boat, and would make a first payment of $6,000 by a certain date. Strong, 580 So.2d at 1290. Nicholson executed an "as is" bill of sale; in exchange, Strong gave a ship mortgage evidencing the debt and giving Nicholson repossession rights in the event of nonpayment. Id. Strong never paid Nicholson any amount towards the purchase. As a result, Nicholson, with the assistance of her brother, Edward Ellis, attempted to repossess the boat by securing the boat and its contents with a "no trespassing” sign. Id. at 1291. Strong, attempting to retrieve personal items that he had left on the boat, went before a justice court clerk and swore out an affidavit charging Nicholson and Ellis with grand larceny. Id. Strong testified that his motive in instituting the action was to "get his stuff back.” Id. Nicholson and Ellis were arrested and had to post bond. They also had to obtain the services of an attorney. Id. at 1292. When the charges were presented in justice court, Strong did not appear and the charges were dismissed. Id. Thereafter, Nicholson and Ellis sued for malicious prosecution. Id.